By Jack Thorton

Many times when we consider making a purchase, engaging in a business venture or making many routine decisions, often it becomes a matter of risk over reward.  What is the possible reward compared to the amount of risk? If I am offered a job with a new company that pays 20% more should I take it?  The reward is a 20% pay increase and a better position; however there are a lot of risks.  I am going to be on a 90 day probation.  I may not like my coworkers.  If I have to move to be closer, is the family going to adapt?  Should I sell my house and risk not getting my investment back when I repurchase?  Although the 20% pay raise is a nice reward, there may be too many risks.

This is the exact same process that many go though when they are considering taking a plea deal from the Prosecuting Attorney.  They are offered a sweet deal if they plead guilty to the crime. However if they refuse, the DA threatens to throw the book at them Salesmanand scares them with an incredibly bad sentence.  And so many times they end up pleading guilty to a crime that they may or may not have committed.

Every attorney I have talked to said they had at one time, had a client, who they felt was innocent, but because the risk was too high, the client pled guilty.  However at the same time I have interviewed numerous convicts who later said, if they knew then what they know now, they would have never pled guilty.

There is a reason that Idaho is the #1 Incarceration State in the Nation.  And a big reason for that is the fact that defendants regularly take plea deals, where they believe falsely, that the risk of taking it to trial is too high.

Why?  Because their risk –vs- reward decision was based on bad information.  That bad information led them to believe the risk was much higher and the reward was much lower.

So if you are charged with a crime you did not commit in the State of Idaho, here are seven things you need to consider before taking any plea deal.

First– In the State of Idaho the parole board statistically rarely releases anyone after completing their minimum sentencing.  In most States across the Nation, the State has mandated a clear liberty interest.  And so unless the inmate has behavioral issues, refused to take classes or violated the terms of the judges mandate at sentencing, he is automatically released on to supervised probation once his fixed time or minimum sentence has been served.  However in Idaho, no such mandate is practiced.  Parole Boards have complete discretion[1] and instead target 150% of fixed time[3].  And so if you are looking at a 10 year sentence if it goes to trial, but if you are offered a plea deal of 5 years minimum, plan on spending at least 7 ½ years in prison before being release on parole.

Second– Probation is much more stringent in Idaho than you might expect.  In most States across the US parolees generally have to commit another crime in order to violate probation – with the exception of specific Court orders, like drug testing, no contact order- that are included in the Judge’s sentencing.  However in Idaho, released inmates regularly get sent back to prison for breaking the technical terms of their probation, rather than committing another crime[4][5].  These policies can include, missing a meeting with your parole officer, failing to pay probation fees, change of address without permission making a major purchase without permission, visiting out of state without permission, or engaging in a romantic relationship without permission.  Voice Stress analysis tests are regularly given to determine if any of these policies have been shady-salesmanviolated.  And because of these stringent rules almost half on parole violate these policies and are sent back to prison[4].  One parolee, C. Hanson, was sent back to prison for an additional 4 years for two violations: 1) For  engaging in a romantic relationship with a female without her being approved by both his parole officer and his supervisor.  2) For making an overnight trip to Ontario to visit his parents, without permission, even though this trip had been approved multiple times in the past.  Both of these violations are clearly administrative policies not criminal offences.   Thomas Boyce was sent back to prison for going on a camping trip even though he did not leave the area, claims he told his parole officer and did not miss any of his meetings with his parole officer [4].

Third– Prosecutors in Idaho regularly practice “Charge stacking”- where the DA often charges you with as many crimes as possible, whether or not they would actually be allowed by a Judge.  They do this for a couple reasons.  First, bail is set byGreat Deal the stacked charges.  Although you might be able to easily pay bail on the reckless driving charge, when you sped out of your drive way and ran over your neighbor’s dog, you can’t afford bail on the “man slaughter” charge the DA threw in.  Multiple studies have shown that Defendants are much more likely to take a plea deal if they are sitting behind bars than if they are out on bail.[6][7][8]  Also compared to the “stacked charges” the deal offered by the Prosecution looks much more attractive.

Forth– Parole boards routinely ignore time served.  According to Idaho Department of Correction Timely Release Report[3], the #1 cause of Parole Boards releasing an inmate past the 150% percent benchmark is because previous time served was not a consideration for releasing them.  So if you waited 2 years in county Jail to get a trial, and the DA offers you a sweet deal of a 2 year sentence, don’t be surprised if you spend another 2 years in prison.

Fifth– If you can’t afford a hired attorney, and are using a public defender, chances are that court appointed attorney is pushing you to take the deal- whether it is a good one or not.  The News Media in Idaho is rife with numerous articles that refer to the complete inadequacy of Idaho’s public defense system.  The Governor has admitted it.  The former U.S. Attorney General has admitted it. The ACLU filed a lawsuit because of it.  According to a draft study by the Idaho Public Defense Commission court appointed attorneys in the State of Idaho spends on average 4 hours preparing for a Felony case while at the same time reporting they require at least 38 hours to give adequate defense[9].  The bottom line is that your court appointed attorney does not have the time to prepare for trial and has a lot of vested interest in getting you to take a deal- whether it is a good deal or not.

Sixth– No credit is given for time out on parole.  If you are released from prison after 2 years and have 5 years left to serve, no matter how much time you spend on supervised probation, you still have the full 5 years in prison available for you to serve.  If you have 10 years on supervised probation and after 9 years and 364 days, you splurge on an “out of probation party”, and that party violates your probation, you can most definitely go back to prison for the full 5 remaining years.

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Seventh– You have less control over whether or not you will successfully complete a rider program than you think you might.  Many times, based on the nature of the crime, offenders are offered an intensive education program at Retained Jurisdiction usually for up to a year.  This is also known as a Rider Program.  However successful completion and release from the Rider Program is completely discretionary much like a parole hearing [2].  For instance Byron Sanchez in 2015, because of an alcohol problem, was offered as part of his plea agreement six months of Retained Jurisdiction (Rider Program) at Cottonwood.   Although at the time he had no disciplinary actions (DORs), he was not able to complete the rigorous class program due to the fact that he received 2 injuries at Cottonwood.  He broke his leg in a basketball game and lost 90% vision in one eye due to delays in his shingles treatment.  These medical delays placed him behind in his program and so he was “flopped on his rider” and was sent straight to State Prison.  Also this Rider hearing took place without him being present, so he was given no opportunity to explain why he had delays in his program.  Rider programs are a nice offer, but there are no guarantees you will be able to successfully complete it.

There is a reason that Idaho is the #1 Incarceration State in the Nation[4][10].  And a big reason for that is the fact that defendants regularly take plea deals, where they believe falsely, that the risk of taking it to trial is too high.  And that mistake can easily cost them decades of their lives.

 

 

[1] https://robinainstitute.umn.edu/news-views/parole-release-reconsideration-states-discretionary-release
[2] ID Code § 19-2601
[3] Idaho Department of Correction Timely Release Report https://www.idoc.idaho.gov/content/document/timely_release_report_for_2017
[4] https://csgjusticecenter.org/jr/idaho/media-clips/idaho-the-prison-state-may-reform-its-way/
[5] https://isc.idaho.gov/opinions/boyce38574.pdf
[6] http://www.slate.com/articles/news_and_politics/jurisprudence/2015/06/bail_is_unfair_here_s_a_simple_way_to_fix_it.html
[7] https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html
[8] https://www.theguardian.com/commentisfree/2013/feb/14/america-bail-system-law-rich-poor
[9] https://www.usnews.com/news/best-states/idaho/articles/2018-02-13/ap-newsbreak-idaho-public-defenders-get-just-4-hours-a-case
[10] https://www.newsmax.com/fastfeatures/idaho-incarceration-rate/2016/02/18/id/715056/