There’s an old adage in Texas criminal justice reform that’s become downright apocryphal: It goes that jailtime should be reserved for the criminals we’re “scared of, not the ones we’re mad at.” In the case of 23-year-old Daniel Athens, who will be spending a full year and a half in a State Jail facility for peeing on the Alamo, we can probably downgrade that to “seriously annoyed with.”
To be certain, peeing on the Alamo is not okay. We wholeheartedly oppose the idea that the side of the Alamo is an appropriate place to relieve oneself, whether you are a regular 23-year-old or the lead singer of Black Sabbath. You will find no one among us who would endorse this action.
But let’s talk about this for a second, because eighteen months in a State Jail does not seem like an example of the punishment fitting the crime. Perhaps a good, hard smack upside the head, and a reciprocal peeing-on of Athens’ favorite pair of Nikes, and a whole summer spent performing community service and studying Texas history. But eighteen months on a State Jail Felony—the maximum allowable punishment, according to Athens’ plea agreement—is more than a little excessive. Especially because, the way Texas’ criminal justice system works, an eighteen-month sentence on a State Jail Felony is essentially the equivalent of a three-year sentence—or higher—on a more serious felony.
Athens’ case highlights both the absurdity of locking people up for dumb, offensive pranks and the problems with the State Jail Felony as a classification of crime in Texas.
So let’s start with a little bit of history: the State Jail Felony was created as a class of crime in 1993 to address the overcrowding of the Texas prison system. It came into effect the next year, and the way it worked was a model of criminal justice reform: a variety of low-level crimes (certain drug charges, some property crimes, peeing on the Alamo) would be classified as State Jail Felonies, which regarded the charges with seriousness, but recognized that the people who committed them were most likely in the “mad at” category.
Essentially, people convicted of State Jail Felonies would be sentenced, but would serve those sentences on community supervision—probation—rather than in a crowded prison system. If they failed to adhere to the terms of their probation, then they would be sent to a State Jail Facility. (In certain cases, judges would have the ability to sentence those convicted to a brief stay in the jail in advance of probation.) These facilities were specifically intended to be rehabilitative: substance abuse treatment, educational opportunities, etc. If that sounds cushy, consider the catch: whereas in a standard prison, early release is a frequent occurrence, in a State Jail, people would spend every single day of their sentence inside the facility. If you’re sentenced to 18 months of prison, you could be out in less than a year with good behavior, or through parole. If you get 18 months in a State Jail, though, you will be in there for 18 months.
This might ensure that the prisoners were required to take full advantage of the rehabilitative opportunities the State Jail provided, but the system quickly changed: two years after the State Jail system was created in 1993, the legislature decided to make the probation period discretionary in some cases, and to increase the maximum amount of time that a person could be required to spend in jail before that period began. By 1997, the mandatory probation was done away with completely, and the rehabilitation services that justified the day-for-day policy regarding early release never properly materialized.
Subsequent attempts to fix the system were patchwork: In 2003, the legislature reinstated mandated community supervision for certain first-time drug offenses, while in 2007 judges were given the opportunity reduce certain State Jail Felonies to Class A Misdemeanors, so people whose sentences would be egregious under the current State Jail system would have more flexibility.
All of this is the context for the 18 months that Alamo Pee-er David Athens will spend in jail. Under the State Jail system as originally conceived, he’d be a good candidate: He did something really stupid that is a bit more serious than it might have seemed in the moment (the limestone at the Alamo’s base is sensitive to the salts in urine, plus it’s the friggin’ Alamo and you don’t pee on the Alamo), and it needs to be treated as though it is a real crime. At the same time, it’s unlikely that he’s going to pursue a life of crime after this, or that an army of future Alamo pee-ers would see that he spent a few weeks in jail, and a year and a half on probation, and decide to take up the mantle of urinating on the great landmarks of Texas history. Meanwhile, if Athens so much as gets high with his friends and laughs about the good time he had peeing on the monument to the men who died that brave night in 1836, he could find himself serving the time that the judge clearly decided he deserved to spend. Out: Peeing on the Alamo. In: Peeing in a cup!
Alas, it’s not to be, and the broken State Jail system—which will require Athens to spend more time behind bars than he’d have spent had he been sentenced to a 3rd degree felony, ostensibly a more serious charge—will claim 18 months of this dumb, dumb young man’s life, while serving none of the purposes for which it was created.
We might be mad at David Athens, but it’s hard to believe that anyone feels safer knowing that he’ll be locked up for the next 18 months of his life.