Crystal Mason was sentenced to five years in prison for voting in the 2016 Presidential Election because Texas judges think that federal supervised release is a punishment under the law. It is not. Under federal law, supervised release is considered the rehabilitative stage of a criminal proceeding, but that did not stop Justices Wade Birdwell, Elizabeth Kerr, and Dabney Bassel from the Second Appellate District of the Texas Court of Appeals from ruling that Mason had illegally cast a provisional ballot before her punishment for tax fraud had been fully discharged and therefore committed voting fraud.
Congress created supervised release to replace parole in the federal system as part of the Sentencing Reform Act of 1984. As explained by Chapter 7(A)(2)(b) of the United States Sentencing Guidelines (USSG):
"(b) Supervised release, a new form of post-imprisonment supervision created by the Sentencing Reform Act, accompanied implementation of the guidelines. A term of supervised release may be imposed by the court as a part of the sentence of imprisonment at the time of initial sentencing. 18 U.S.C. 3583(a). Unlike parole, a term of supervised release does not replace a portion of the sentence of imprisonment, but rather is an order of supervision in addition to any term of imprisonment imposed by the court."
Conditions of supervision are governed by 18 U.S.C. 3583(c) which lists the factors to be considered when imposing a term of supervised release as
"section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)." Those subsections allow several factors to be considered when imposing a term of supervised release. Noticeably missing from that list is 3553(a)(2)(A) which allows courts to consider "just punishment" when imposing a sentence of imprisonment. That is because supervised release is technically considered the rehabilitative phase of criminal proceedings and not the punishment phase; see U.S. SENTENCING COMMN, FEDERAL OFFENDERS SENTENCED TO SUPERVISED RELEASE (July 2010) "The legislative history indicates that section 3553(a)(2)(A) was not included for consideration under 18 U.S.C. 3583(c) because the primary purpose of supervised release is to facilitate the integration of offenders back into the community rather than punish them."
The Court admitted that they could not find anything in the state court system identical to federal supervised release. The closest was "community supervision" which could only be imposed if: "(A) criminal proceedings are deferred without an adjudication of guilt; or (B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part." That differs from federal supervised release because supervised release is only imposed in cases involving a conviction and prison time in addition to prison time whether or not part of that time is suspended. Unable to equate "community supervision" with supervised release they next went to a dictionary and used the definition "[t]he series of acts involved in managing, directing, or overseeing persons or projects." Then they incorporated definitions of probation an parole that showed neither of those definitions fit before adding:
"Applying normal grammar rules and construction aids to Section 11.002(a)(4)(A)'s phrase, 'has not been finally convicted of a felony or, if so convicted, has . . . fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court,' we glean two important meanings. First, this subsection contemplates that under Texas law the punishment for a criminal conviction a sentence can consist of one or a combination of consequences. By introducing the words 'incarceration', 'parole', and 'supervision' and the phrase 'completed a period of probation' with the word 'including,' the legislature indicated that those things are not an exhaustive list of what can be included in a sentence. See Tex. Govt Code Ann. art. 311.005(13) ('"Includes" and "including" are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.'). The plain wording of the statute indicates that whatever modes of punishment one or more make up a sentence, they must all be completed for the person to regain eligibility to vote after a felony conviction."
The key to that paragraph is in the last sentence, where they say that "The plain working of the statute indicates that whatever modes of punishment one or more make up a sentence, they must all be completed for the person to regain eligibility to vote after a felony conviction." In order for part of a sentence to fit that definition it must be a punishment. Texas cannot change federal supervised release to a punishment just because the state of Texas considers supervision to be punishment. Doing so allows the state to change the meaning of federal statutes. Crystal Mason is clearly innocent.
Even if that statute includes non-punitive sentencing conditions, that opens up other types of objections. Such as the statute being too vague to put a person of ordinary intelligence on notice or what is prohibited and punishment without due process of law. Unfortunately, The Court ruled that Mason's counsel failed to preserve a void for vagueness objection for appeal and therefore the issue was not ripe for review. They said that after ruling Mason's counsel was not ineffective for reasons other than failing to challenge the statute for being too vague. This makes us wonder how effective her appellate counsel was. She was reported represented by the ACLU of Texas, so a good question for them would be why they did not raise a claim of ineffective assistance of counsel for failing to challenge the statute for being too vague. If an appellate court has to go to so much trouble to figure out the meaning of a statute then surely it is not reasonable to expect a lay person to understand it.
Mason will take this fight to the Texas Supreme Court next and then maybe even the Supreme Court of the United States. We sincerely hope that her conviction is overturned or at least her sentenced is reduced. Five years is a ridiculous amount of time for casting a vote that was not even counted. Trying to vote is a harmless activity that people should feel free doing. It is up to the people running the elections not to count ineligible votes. Expecting the voters to police themselves is unreasonable and ridiculous. The appeals court of course seems more interested in making sure ineligible voters don't try to vote. They're probably more concerned about sending a message to all the illegal aliens in that state to not even try voting than fair punishment for Crystal Mason.
Public records contain the following information about Judges Wade Birdwell, Elizabeth Kerr, and Dabney Bassel:
James Wade Birdwell
TEXANS FOR LIFE COMMITTEE
TEXANS FOR LIFE COALITION
LIFE DECISIONS EDUCATIONAL FOUNDATION
Last Known Home Address:
3902 N SHADYCREEK DR
ARLINGTON, TX 76013
Possible Email Address:
Elizabeth Sturdivant Kerr
MNS ESK LLC
Last Known Home Address:
3317 BELLAIRE PARK CT
FORT WORTH, TX 76109
Possible Email Addresses:
Dabney Dorsett Bassel
BASSEL & WILCOX, PLLC
LAW OFFICE OF DABNEY BASSEL
Last Known Home Address:
5804 FOREST BEND PL
FORT WORTH, TX 76112-1065
Possible Email Address:
We are making these addresses available for non-violent purposes only. We believe that they would be great places for groups like Black Lives Matter to protest injustice. We ask that if you choose any of these places to express yourself that you do so without damaging property or physically harming anyone. We would be happy to remove them if the Texas Supreme Court or SCOTUS overturns their outrageous opinion or if they issue public retractions denouncing their opinion and ask the higher courts fix their mess.
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