SB187: Panic in Austin

 Posted on May 25, 2013 in Uncategorized

(tl;dr version: Texas prosecutors think that only they know justice; they want to take power out of the hands of the community; they intend to pass an unconstitutional law and apply it unconstitutionally ex post facto to do so; and they don't care what lies must be told to get it done.)

Texas's capital-murder sentencing scheme provides for a choice between death and life without parole for all defendants. In the 2005 case of Roper v. Simmons the U.S. Supreme Court took the death penalty off the table for murderers who committed their crimes before age eighteen, leaving Texas with life without parole as the only punishment for someone convicted of capital murder in adult court between age ten and age seventeen.

In the 2012 case of Miller v. Alabama the U.S. Supreme Court also invalidate life without parole, leaving Texas with no permissible punishment for a seventeen-year-old (or younger) convicted of capital murder. So people who committed capital murders when they were under eighteen in Texas could only be prosecuted for murder.

The sentencing range on non-capital murder is between five years and life in prison. That life sentence carries parole eligibility (which does not mean parole) after forty years. Faced with a child who committed (which means "participated in"-he does not have to have been the trigger child) a capital murder, a jury might reasonably decide that something less than life is appropriate. (Are you a different person than you were at seventeen?)

Texas prosecutors, including Senator Joan Huffman, do not like that possibility one bit:

Texas prosecutors will be unable to convict 17-year-olds on capital murder charges for the next two years after a key criminal justice bill died in the House on Tuesday.That means brutal killers could receive lighter sentences for their crimes, lawmakers confirmed Friday.Prosecutors from around the state are demanding that legislative leaders fix the miscue, but there were no assurances a solution would be found before the session adjourns Monday."This is a big problem that needs to be fixed now," said state Sen. Joan Huffman, R-Houston, whose bill did not pass the House before a procedural deadline. "Right now, Texas has no valid punishment for these 17-year-olds, because our current statute was overturned by the U.S. Supreme Court. I'd say that's a problem."

( Austin American-Statesman. )

Huffman's bill would replace life without parole in the capital-murder sentencing statute with murder life (with the possibility of parole after forty years). What she is trying to take off the table is the jury's discretion to take into account mitigating circumstances and sentence a child murderer to less than life.

That's what "lighter sentences for their crimes" means: a jury, instead of the prosecutor, might decide what punishment is appropriate. Prosecutors such as Huffman don't trust a jury to do the right thing.

Huffman said the measure would have treated 17-year-old capital murderers the same as those who are 14 to 16 years old, with a maximum penalty of life in prison without parole.

That's the Austin American-Statesman again. Did Huffman actually read her bill? Did she read Miller? Life without parole is unconstitutional for 14-, 15-, or 16-year-olds as well as seventeen-year-olds. Her bill-Senate Bill 187-would impose a mandatory (not "maximum") sentence of life with (not "without") parole on child murderers.

But Miller v. Alabama didn't just say "no life without parole for murderers under age eighteen." It said:

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.

That is, what was missing from Alabama's juvenile-capital-murder sentencing scheme was not the possibility of parole, but the opportunity for the sentencing authority to consider mitigating circumstances. Senate Bill 187, which still doesn't give the sentencer the opportunity to consider mitigating circumstances, still fails this test.

Back to the American-Statesman story:

Without the bill, Huffman and other lawmakers said, 17-year-olds can probably be charged with only murder - rather than capital murder - and face a maximum life sentence, under which they are eligible for parole in 40 years.

With the bill, 17-year-olds face the same maximum.

Prosecutors implored legislative leaders to fix the mistake. In a letter, they asked Gov. Rick Perry to add the fix to the agenda of an expected special session, seen as likely to begin soon after the regular session ends.Crime victims' groups also demanded action. "This is a no-brainer. You have four days. Fix it!" was the message of Cam Furman, a Houston advocate for crime victims.

Why the urgency? I don't know what the annual numbers are like, statewide, for children convicted of capital murder in adult court for murders convicted before age eighteen, but I suspect it's in the single digits.

(This, by the way, is an example of victimocracy, in which victims' opinion is treated as more important than other people's.)

The number of 17-year-olds accused or convicted of murder could not immediately be determined.In Houston, which historically has the state's highest conviction rate for capital murder, Anderson said there are 12 youths awaiting trial or sentencing who are in legal limbo because of a lack of a sentence for the crime.

That may be so, but Westlaw shows ten appeals of capital murder convictions by seventeen-year-olds in the last twenty-five years, and three since Roper v. Simmons in 2005. This is probably a fair representation of the total number of capital life-without-parole sentences for juveniles in the last eight years, since a juvenile sentenced to life without parole would have every reason to appeal. (Anderson's number may include many who will never be sentenced for capital murder, regardless of the statutory penalty.)

"Dozens of capital murder suspects who were 17 years old at the time of their alleged crime are still awaiting trial for an offense with no punishment, and other convicted capital murderers are now appealing their life-without-parole sentences" due to the Supreme Court decision, states the letter to Perry from Harris County District Attorney Mike Anderson."The problem in these cases is that the courts have no permissible sentence to impose until the Texas Legislature creates one."The letter was signed by 18 other prosecutors, including Hays County Chief Criminal District Attorney Sherri Tibbe and Bell County District Attorney Henry Garza. Neither could be reached for comment.

As I understand the argument, SB 187 is supposed to solve this problem ex post facto. Here's what the bill says:

The change in law made by this Act: (1) applies to a criminal action pending, on appeal, or commenced on or after the effective date of this Act, regardless of whether the criminal action is based on an offense committed before, on, or after that date....

Does it violate the Ex Post Facto Clause? When the "dozens" of capital murder suspects committed their crimes, the only legal punishment range was five years to life. Anderson and his cohorts want to change that range, retroactively, to automatic life. How does that not violate the constitution?

The American-Statesman again:

"Prosecutors and crime victims throughout the state are in the same situation as they await justice in their cases, some of which involve police officers killed in the line of duty or multiple homicides committed by the same offender," Anderson said. "The only recourse for prosecutors around the state is to try (or retry) these offenders for lesser offenses with punishments of as little as five years in prison."The deceased victims are left without justice in those cases - and those victims' surviving family members will continue to suffer - until the Legislature sends you a bill to remedy this problem."

The unstated premise underlying the prosecutors' argument: only a prosecutor, and not a jury, can decide what justice is. This is nonsense, of course. Twelve members of the community are a much better arbiter of justice than a single bureaucrat. If a jury would give someone five years in prison for a murder, that person shouldn't be doing life, either with or without parole. (That's the central point of Miller v. Alabama, which Huffman and Anderson would prefer to ignore.)

I'm indebted to the Twitter account of the Texas District and County Attorneys Association, @TDCAA, for calling the bullshit-ridden Austin American-Statesman article to my attention via Twitter:

Even more, though, I thank them for the tweet that followed:

"We're so desperate for attention to this issue, we'll forgive the two legal errors."

I'm not sure which two legal errors they're referring to; take your pick. What's important is that the Texas District and County Attorneys Association so desperately wants to keep out of the hands of the people the power to decide what sentence is appropriate that the truth doesn't matter to them.

If you don't know many prosecutors, that might surprise you.