Good Times, Bad Times

As far as anyone knows, Juan Caraballo was a model prisoner during his brief stay in the Harris County Jail. Not that he got any credit for it.

He didn't get any credit, at least, until he pleaded no contest and was sentenced to 90 days in jail for misdemeanor theft. Then, even though his jailhouse behavior didn't change, he started getting "good-time" credit of two days for every day served.

Caraballo has finished his term and is back in New York, but his experience triggered a federal lawsuit against Harris County Sheriff Tommy Thomas, who has decreed that no one in the county jail can get good-time credit until they agree to a plea bargain or are convicted by a jury.

The change in policy is unfair to indigent misdemeanor defendants who can't post bond and are stuck in jail awaiting trial, lawyer Randall Kallinen says, and it gives an impressive hammer to prosecutors seeking plea bargains: Plead guilty now and start racking up two-for-one credit for days served, or sit in jail for months, probably for a longer period than whatever your eventual sentence might be.

"It's a way of getting people to plead guilty that has nothing to do with any evidence of whether they're guilty or not," says Kallinen. "It's like saying, 'We'll give you better food if you plead out.' "

Kallinen's suit before U.S. District Judge David Hittner argues that Thomas's policy arbitrarily takes away the rights of indigent defendants who want a trial and that it violates federal equal-protection rights by applying the policy differently to defendants who plead out or demand a trial.

Good-time credit can be taken away, he argues, only by documented evidence of disciplinary problems. Thomas's policy takes away such credit for reasons having nothing to do with inmate behavior, he says.

Prior to the February 1997 change in policy, Harris County inmates received two-for-one good-time credit from the time they entered the jail. (Fifteen or so years ago, when jail and prison overcrowding was at its peak, defendants got three-for-one credit from their first day in jail.)

Why did Thomas change the policy? County officials aren't talking, citing the fact that there's pending litigation over the change. "We feel that commenting would be like giving the other team our playbook [in the lawsuit]," says Sheriff's Department spokesman Captain Don McWilliams.

McWilliams added, though, that the county "feels like it's in a strong position" defending the suit.

Texas law is clear that county sheriffs have the power to award good-time credit; judges have limited discretion in making adjustments to that credit as they sentence a defendant.

McWilliams says, and evidence compiled by Kallinen shows, that the policy change was at least approved by the major players in the county's criminal justice system -- judges, the D.A.'s office and the County Attorney's office.

"The change came as a result of a work group consisting of all the entities involved in the criminal justice system here," he says.

Many of those players, according to defense lawyers across the city, are so obsessed with moving their criminal dockets that they apply heavy pressure to defendants to plead rather than seek a time-consuming trial. Offering good-time credit to a misdemeanor defendant is often irresistible; if that credit was already being accumulated, more defendants might seek to roll the dice and face a jury.

"Harris County prosecutors actively dangle the policy in front of jailed defendants to forego jury trials and coerce guilty pleas," Kallinen's suit claims.

More than 51,000 misdemeanor cases were filed in Harris County courts in 1998, including first-time and second-time DWIs, minor thefts and simple assaults; the good-time policy does not affect felony defendants, who head to state prisons.

The maximum punishment a misdemeanor defendant can face is a year in the state jail. Once good-time credit starts accumulating, therefore, the maximum jail stay for anyone convicted would be six months.

"It can easily take six months to get a trial, so if you're going to be sitting in jail, it just makes more sense to plead and start getting the good-time credit," Kallinen says.

"It's to your detriment to do nothing more than assert your Sixth Amendment right to a trial," says criminal defense lawyer David Mitcham.

Harris County prosecutor Chuck Noll, head of the office's misdemeanor division, says that most defendants get to trial in 60 to 90 days and that plea bargain negotiations aren't affected at all by the policy change.

"These are petty misdemeanors where people usually plead to 30 or 60 days," he says. "You don't get that many cases where people plead to a year. I'm sure there are lawyers out there who would say, 'The only reason my client pleaded guilty is because he wasn't getting this credit,' and not because he beat the shit out of his wife and got 30 days."

Noll also says you could make the argument that a defendant shouldn't get good-time credit on his sentence until he actually begins serving his sentence, as opposed to being subject to pretrial detention.

San Antonio's Bexar County offers two-for-one credit from the first day in jail. Officials in Dallas County gave conflicting answers as to whether the policy there had recently changed to match Harris County's, and couldn't resolve the discrepancy by press time.

Kallinen argues that the policy change is costly to Harris County taxpayers. He says that information gained from the other side during the discovery phase of the lawsuit shows that keeping a defendant in jail costs the public $41 a day. With some perhaps aggressive math, he claims that tens of thousands of defendants have been affected since the change by being kept in jail longer than they should have been.

"I'm going to do discovery to get exact numbers on the number of people affected, but it's a large number," he says.

Kallinen filed the suit in December. This isn't the first time he has tangled with the county bureaucracy over what might seem to be an unpopular cause: Several years ago he successfully sued on behalf of what some would say are the criminal-law equivalent of ambulance-chasing lawyers.

Harris County had begun blocking out relevant information on arrest forms as a way of preventing lawyers from combing through the reports and contacting potential clients. Kallinen sued in federal court in 1996, and U.S. District Judge Ken Hoyt ordered the county to stop the practice.


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