A System Gone Bad

It’s not just the parole board’s fault; our criminal justice apparatus is jailing the bicycle thieves and freeing the McDuffs.

It took the case of Kenneth Allen McDuff to reveal to the public what Texas politicians have known for years: The state parole system is rife with bad judgment and the potential for corruption. Now an Austin grand jury is investigating allegations that McDuff and other violent criminals have bought their way out of state prisons.

In a way, this is just the latest twist in an old story that goes back at least to the 1920’s, when first Pa Ferguson and then Ma Ferguson used the governor’s power of clemency to free thousands of convicts. According to one apocryphal account, the way to get out of prison in those days was to buy a mule from Pa for $200. And why would a convict need a mule? To ride home from prison, was Pa’s suggestion.

But the current scandal is not just limited to the parole board. It goes to the heart of what is wrong with Texas’ approach to criminal justice. Ever since 1972, when a federal court ruled that the Texas prison system was overcrowded, the state has had the choice, in effect, to build more prisons or to have fewer prisoners. Three successive governors—Dolph Briscoe, Bill Clements, and Mark White—talked tough about crime but did nothing to encourage the building of new prisons, which were expensive. By 1987, the start of Clements’ second term, the system had just about broken down. Clements’ belated solution was to build more prisons, but in the meantime, to make parole easier. The order came down to parole 750 inmates a week, and when that became nearly impossible—soon there weren’t even 750 inmates a week who met eligibility standards—the decision was made to lower the standards.

As pressure mounted, the parole board cracked. In its haste to meet the quota, the board began rubber-stamping applications almost as soon as it got them. One result was that twenty former death row inmates, including Kenneth McDuff, were set free.

This kind of obvious stupidity is the result of three fundamental problems with the system as it currently operates:

1. Some people we are putting in prison are far less dangerous than the people we are letting out. “We’re jailing hot check writers and DWIs and letting out the Kenneth McDuffs,” says Jim Parker, the legislative director for Governor Ann Richards. In our panic to make our streets safe again, we’re imprisoning nonviolent offenders; we’re filling up the available prison space with people who belong in drug rehabilitation centers or whose debt to society could be paid by doing community service.

2. Because the Board of Pardons and Paroles has no power to set policy about who gets paroled, its decisions are, as one lawyer phrased it, “as random as throwing darts.” When the Legislature was debating the provisions of the Criminal Justice Reform Act in 1989, the central argument was over whether the board should be run by the governor or by the prison system. Under the governor, the board would have been separate and apart from the prison system and its concrete-and-bars mind-set—in effect, free to grade the prison system’s judgment on which inmates should be considered for parole. The opposition argued that paroles were a necessary extension of the prison system. The Legislature decided to split the difference, lumping together formerly autonomous agencies (prisons, paroles, and probations) into a new superagency called the Texas Department of Criminal Justice. But in the reorganization, the parole board became a bastard child, appointed by the governor, funded by TDCJ, and run by no one—not even itself. By controlling the purse strings, TDCJ’s institutional division (the prisons) is able to pressure the parole board, at least to a point.

In determining which inmates are safe to release, the parole board relies on a few assumptions and theories. Since most murders are committed in moments of rage or passion, goes one assumption, killers are good parole risks, unlikely to kill a second time. While that is generally true, the assumption doesn’t allow for criminals who kill for the pure enjoyment of killing, people like Kenneth McDuff. Another theory is that prison breaks an inmate, burns out the meanness. Certainly this was a consideration when McDuff was released after serving 23 years. In the crunch to keep the system operating, the Mc-Duffs inevitably get lumped with more-benign kill-ers. Pressure to release large numbers of inmates is so great that the board has begun approving pa-roles up to 3 years ahead of actual release dates. “The oddity isn’t that we have a McDuff,” says Jim Parker. “It’s that we don’t have hundreds of McDuffs.”

3. Under current laws, the parole board is in danger of becoming a revolving door through which people who are owed political favors enter, serve for a few years, then go into private practice and help obtain paroles for the same inmates whose fate they once controlled. No law regulates parole board consultants or prevents former board members from peddling influence or inside information on parole files. No other state agency allows for mer employees to represent clients who have appeared before them. In an area so obviously linked to public safety, even the appearance of conflicts within the parole board is intolerable.

A few things are improving. The governor is considering legislation that would reestablish the parole board as an autonomous agency. The Legislature has passed a law requiring that inmates convicted of capital murder serve a minimum of 35 years before becoming eligible for parole. Another new law provides for the construction of drug and alcohol rehabilitation centers that will house 12,000 inmates by 1995, freeing up prison space that can be used for violent offenders. If nothing else, the outrage over Kenneth McDuff has brought a sorry situation to light, hopefully in time to prevent disaster.

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