Texas Criminal Lawyer Blog

As if the Border Patrol didn't invite enough controversy, Texas is now permitting private guards to police the U.S.-Mexico border. The Texas Department of Public Safety has given the International Security Agency license to operate in the Rio Grande Valley. Its clients would be ranchers and local businesses threatened by violence from drug cartels. With the promise of this extra safety, however, comes questions of who exactly controls these new knights in shining armor.

ISA President Jerry Brumley insists that his guards are seasoned, responsible veterans. Any applicant to the ISA must have been in the military for at least four years with an honorable discharge, a federal or civil law enforcement officer with at least two years of service, or a security officer with six years of experience. Unlike the Blackwater guards in Iraq, his guards have never been charged with a crime. And the guards themselves would only police private property near the border -- not interfere with border agents' duties.

Yet the ISA also peddled their services to local ranchers and farmers by showing newsreel clips of a bomb exploding in a city, of smugglers abandoning cars and goods in the Rio Grande -- events that are not only not on private property, but are designed to get people pumped up and hotheaded. And ISA guards aren't troubled by traditional limitations like waiting for culprit to shoot first. "Our practice is if someone raises a weapon to me and I feel threatened, with my life or the life of my client, I am taking action," says Brumley.

So we have a private company meant to operate on private land, yet for a very public reason--the federal government failed. "It is the federal government's responsibility to protect Americans by securing the international border," says Governor Perry's press secretary, Katherine Cesinger. "[T]he federal government is not fulfilling that responsibility." With these sentiments in mind, it's a question of how long before one of these private guards takes action on public property. If they do, they might not be bound by the Fourth Amendment the way public law enforcement agencies are.

The Fourth Amendment prevents public law enforcement agents from searching a house without a warrant, auto search and seizure without probable cause, and detaining someone without reasonable suspicion. In other words, you can't just go up to someone, pin him down, and start searching through his pockets. While Fourth Amendment protections have been weakened in many troubling ways, the idea still is that you must have a reason for detaining someone, more than just a vague suspicion. What is more, your use of force must be in proportion to the danger.

Recently, a judge was sentenced to 28 years in federal prison for accepting a $1 million kickback from a builder of for-profit juvenile prisons. Although the judge, Mark Ciavarella, presided in Luverne County, Pennsylvania, this story is chilling for criminal defense attorneys across the country who represent juvenile crime suspects.

In return for the kickback, Judge Ciavarella reportedly made a habit of sentencing youths to time in the prisons that were being built. Children as young as 10 years old were sentenced, for "outrageous" crimes such as stealing a jar of nutmeg or posting a web page containing spoofs of an assistant principal. In one especially sad case, a 17-year old with no prior history of conviction was sentenced to several months in a private prison and wilderness camp for possessing drug paraphernalia. He never recovered from the experience and took his life at the age of 23.

If this is true (Judge Ciavarella denies it), it represents the gross abuse of a trusted position -- in fact, this guy sounds like a character in a Dickens novel. This blog has already discussed the vulnerable position of juvenile defendants. Here in Texas, juveniles' constitutional rights are repeatedly overlooked. Though juvenile defendants are supposed to receive notice of the charges they are facing, they frequently do not. They also have a Sixth Amendment right to competent representation, but too often, the kindest word you can use to describe it is "inadequate." Too often, teenagers are treated like young adults -- "Certified" as Adults, and given adult sentences and put in adult prisons under the misguided belief that they would never "learn their lesson" in a juvenile detention center. Things have gotten a bit better, with the state focusing a tiny bit more on rehabilitation than "lock 'em up" policies, but much of the neglect still needs to be addressed.

Yet it is one thing to be a judge who neglects to uphold juvenile suspects' constitutional rights -- a terrible failure on their part, to be sure -- but there is something incredibly vicious about a judge who deliberately harms young people for his own gain, and who does it because they are so young, and have less understanding and fewer resources to fight back. Not every juvenile defendant can obtain the help of a defense attorney who knows how to defer prosecutions or find the right expert testimony. The prison-building industry is quite lucrative in Texas and in many other parts of the country: could there be other judges who while not rising to the heinous example set by this judge, nevertheless wittingly or unwittingly engage in prison building behavior toward the juveniles who come before them?

Young people are taught in school to honor and respect our system of government, including the judicial system. Judges are at the pinnacle of that honored system. What message do young people receive when judges use their role to harm those they are supposed to be objective towards?

To be fair, in my experience most judges who handle juvenile cases are honorable and try to follow the law and work hard to see to it that kids are handled fairly in their courts. But the system itself contributes heavily to the incarceration of kids--first in juvenile facilities, then inevitably to Adult institutions.

Judge Ciavarella's 28-year sentence amounts to life in prison (he is 61 years old), yet probably not nearly enough as far as his young victims are concerned. More importantly he is off the bench. I hope and believe that the juvenile system in Texas and elsewhere can see beyond incarceration and prison building and act in the best interest of the child and in so doing act in the best interest of society.

Recent news headlines have reported the Hudspeth County judge's refusal to allow Willie Nelson to plea to a lesser charge on his pot bust in Sierra Blanca, Texas, the notorious border patrol stop on Interstate 10 about 100 miles east of El Paso.

County Judge Becky Dean Walker, who is not a lawyer (quite common in small counties) is entitled to reject a plea just like any other judge; however, she may not impose a sentence on her own. Rather, she must allow the Defendant to withdraw his plea and the case goes back on the docket.

Kit Bramblett, the County Attorney, told me that he recently took the case to the Justice of the Peace and filed it as a Class C misdemeanor, the lowest misdemeanor in Texas, for the same fine amount he had previously recommended to Judge Walker, who had rejected it. A County Judge can hear a class C at the court's discretion; in this case, Judge Walker rejected the plea offer, and Mr. Bramblett just walked it over to the J.P. and filed it in the lower court, which is set up to take care of traffic tickets, bad checks, and, in this case, the one of greatest entertainment personalities in the world.

Willie may pay the fine just like a traffic ticket. His presence in court is not required.

The lesson here is that a judge cannot tell a prosecutor what to charge or how to charge; all a judge can do is accept it or reject it. In this case, the County Attorney had the option of taking the case to a lower court, which is exactly what he did.

Sources:

Willie Nelson plea rejected in Marijuana Possession case

In what signals a welcome trend, Texas is closing down its first prison. Not only will the state close down the Central Unit in Sugar Land, but it will also shutter three juvenile detention centers. The reasons have to do with budget cuts, as well as a shift from prosecution to rehabilitation for drug use.

In 2005, Texas began to make changes to its sentencing procedures, shifting money the from tough-on-crime approach to rehabilitation and prevention programs. This slowed the number of incarcerations and led to a 12.8% drop in the number of violent crimes since 2003. Since then, the state has seen its crime rate drop to a 38-year low and has saved $2 billion that would have otherwise been spent on building new prisons.

By closing Central Unit and the juvenile detention centers, Texas has become part of a national trend of prison closure. The Central Unit closure in particular has a special significance. Opened in 1909, it was made famous in the folk song "Midnight Special" sung by inmate Huddy "Lead Belly" Ledbetter. Lyrics include "you'd better walk right" or else "Benson Crocker will arrest you, Jimmy Boone will take you down" and "you're Sugar Land bound." Since Central Unit's opening, the surrounding farmland has been replaced by suburban neighborhoods. Since prisons and suburbia don't mesh, the prison's days were numbered. Lawmakers finally decided to close it to save $25 million over two years.

It is exciting to see that Texas's new approach is paying off. A Texas criminal defense attorney knows how frequently clients' freedom can be taken away based on trivial crimes. The state and federal sentencing guidelines have traditionally been tough on repeat offenders, even for nonviolent crimes. Texas's juvenile justice system has often served young people poorly, ignoring constitutional protections and punishing them harshly for minor crimes. Furthermore, prison time is hardly the deterrent that many tough-on-crime advocates believe it to be. People who go to prison often become hardened and are highly likely to return to crime once they are released. Meanwhile, prison conditions can be highly dehumanizing. In Brown v. Plata, the U.S. Supreme Court ruled in favor of federal judges who found that California's overcrowded prisons violated the Eight Amendment ban on cruel and unusual punishment. These judges had ordered the release of 46,000 inmates. While no one has suggested that Central Unit's conditions were so brutal, the prison's age was making it more expensive to maintain. Its 900 inmates have been transferred to other facilities.

There has been so much dismal news about criminal suspects -- usually about how their rights have been chipped away little by little. To hear that Texas is making progress by using a less punitive approach is very welcome news indeed. Coupled with the news that states across the country are rethinking their sentencing guidelines, maybe it is finally safe to say that lawmakers are turning away from the tough-on-crime approach for good. That is something that in the long run could benefit Texans and the country as a whole.

Border Patrol agents are a common sight on the United States-Mexico border, especially at Texas checkpoints like Sierra Blanca. But most people don't expect to see so many agents at the U.S.-Canadian border. Most Canadians don't appear to be eager to cross the border looking for a better life in the United States. Drug smuggling is also not considered to be a major concern, even with reports of widespread drug use in Vancouver. Yet the U.S. has nearly completed a Border Patrol headquarters in Port Angelo, Washington that cost around $5.7 million. It is expected to house 50 agents.

The goal to increase enforcement along the U.S.-Canadian border dates back to at least 1999. Then, an Algerian terrorist named Ahmed Ressam was caught trying to cross the border in the very location where the new Border Patrol headquarters now stands. He belonged to a Montreal-based terrorist cell with links to Al Qaeda, and was planning to launch a "millennium terror attack" on Los Angeles International Airport. Flash forward to 2001, when the U.S. government was doing everything it could think of to prevent another terrorist attack on U.S. soil. The U.S. and Canada signed a Joint Statement of Cooperation on Border Security and Regional Migration Issues in December 2001, with the intent to work together to deter, detect, and prosecute possible security threats. In 2003, the two countries announced the creation of more border enforcement groups to improve border security.

The border between the lower 48 states and Canada covers 4,000 miles and is the longest shared border in the world. By contrast, the U.S.-Mexico border is just 2,000 miles long. Yet while the U.S. has 44% of the southern border under "operational control," just 2% of the northern border meets that standard.

It makes sense that the U.S. government, in its zeal to eliminate threats, would finally remember its northern border. Even though Canada is a peaceful country, an unguarded border means that someone with criminal intent could cross into the United States -- with consequences too great to imagine. At the same time, it's hard not to pity the poor people in the northern states. They now will get a little taste of what people from Texas and other southern border states have to put up with on a routine basis. Will Border Patrol agents be as unforgiving of Washington and other northern residents? Will people from the northern states be pulled over so that an agent can do a search and seizure without reasonable suspicion? Years of experience have given a Texas federal criminal defense attorney the skill and knowledge to fight charges based on illegal border searches. Now the northern state defense attorneys will have their turn.

Then there is the eternal question of how much security is too much. One commentator noted that 50 Border Patrol agents at Port Angelo was "about 45 more... than is probably needed." These agents "have little or nothing to do except to cruise aimlessly around the Olympic Peninsula." It's true that Port Angelo isn't a harmless spot, as evidence of Ahmed Ressam's arrest and a 2005 drug smuggling tunnel between British Columbia and Washington shows. However, it's also true that the U.S.-Canadian border is not a hive of criminal activity. So why treat everyone who crosses it as a potential criminal? Hopefully the Border Patrol at the northern border will be a kinder, gentler version of the one on the southern border -- but don't depend on it.