Texas Justice? An Oxymoron.

Texas Justice. The phrase elicits thoughts of the state's frequent use of the death penalty, or the old west justice in a Texas saloon. One thing that never crosses our minds is probation for murder. You might think that a negligent homicide could be punished with probation, and a true negligent homicide in most jurisdictions can carry a light punishment. However, Texas is the only state I know of that will allow probation as a punishment for an intentional homicide, otherwise known as murder. If an offender has no prior record, and he stabs someone intentionally to kill him, he may be sentenced to probation.

How can that be? The state that is in the top 5 in executing murderers, could be your best bet in staying away from prison if you intentionally take the life of an innocent human being. The Dallas Morning News investigated and found 120 cases between 2000 and 2006 where murderers were actually sentenced to probation. That is an average of 17.1 probation sentences per year, roughly 3 less than the average of death sentences per year of 20.4 during that same time period (Analysis on the table found at http://www.tdcj.state.tx.us/stat/offendersondrow.htm) . With the defendant's option of having a jury hand out the sentence, this option allows the defense to paint the defendant in a sympathetic light to avoid any jail time once convicted. On the other hand this option makes it easier to plea bargain. Those who know me know that I am a fan of the plea deal, but a policy of pleading guilty to murder and receiving probation seems like an old time bait and switch on the voters in the Biggest State in the lower 48. The District Attorney can show all the convictions she has secured, and the voters see a District Attorney that is tough on crime. All the while the public is oblivious to the murderer next door and his weekly appointment with a probation officer. With roughly a 40% recidivism rate for homicide nationally this law arguably has put the public at risk.

In the 2009 Texas Legislative session, Representatives Hochberg, Edwards, and Gallego authored House bill that would raise the minimum sentence for murder to 2 years. It isn't much, but the families that have seen their loved one's killer go free would most likely welcome the change. When the bill emerged from the House Criminal Jurisprudence Committee the wording had been changed from ". . . by making defendants charged with the offense of murder . . . "to". . . by making certain defendants charged with the offense of murder . . .."The change was subtle, but it guaranteed that some defendants could still be sentenced to probation. The revised bill was very popular, passing the House vote with flying colors. The Senate Criminal Justice committee has subsequently sat on the bill. The session ended, and the bill secretly placed on a back burner never to be seen again.

For each committee the legislature will hear testimony from both sides: pro and con. The only testimony offered was by David Gonzalez from the Texas Criminal Defense Lawyers Association who was accompanied by Kevin Petroff from the Harris County District Attorney's Office. Both were there in opposition of the bill. No one was asked to testify in support of abolishing leniency for convicted murderers. Where were the families of those killed by those currently on probation? They simply were not asked to participate. The victims apparently were considered irrelevant.

Other states have much higher minimum sentences for murder, yet it appears the Texas Legislature believes it is necessary to have a probation sentence for intentional murder. For this law to change now would require starting over. The language must be amended to eliminate the ambiguity added by the House Criminal Jurisprudence Committee, and it must get through the committees and be voted on by both bodies in the legislature then signed by the governor. The people of Texas must be heard or the politicians will continue to let murderers go free.

If you live in Texas and care about what the state is doing with convicted murderers, please contact your state representative and senator and call them to action. Until this law is changed Texas Justice will continue to be an oxymoron.

Observations on Impact Statements

Nicholas Christopher was stabbed in an attempt to kill. The boys survival was a miracle, as he had to hold his intestines in his body as he was transported to the ambulance. Payne v. Tennessee, 501 U.S. 808, 815 (1991). He was the only person to survive Pervis Payne's attack, his mother and sister succumbed to the injuries Payne had inflicted. Id. at 812. At trial, a jury convicted him of murder, and the Prosecutor sought the death penalty. This requires the jury to hear additional testimony in a sentencing phase of trial. In his final statement the prosecuting attorney said:

You saw the videotape this morning. You saw what Nicholas Christopher will carry in his mind forever. When you talk about cruel, when you talk about atrocious, and when you talk about heinous, that picture will always come into your mind, probably throughout the rest of your lives....

. . . . .
... No one will ever know about Lacie Jo because she never had the chance to grow up. Her life was taken from her at the age of two years old. So, no there won't be a high school principal to talk about Lacie Jo Christopher, and there won't be anybody to take her to her high school prom. And there won't be anybody there-there won't be her mother there or Nicholas' mother there to kiss him at night. His mother will never kiss him good night or pat him as he goes off to bed, or hold him and sing him a lullaby.
. . . . .
[The Defense] wants you to think about a good reputation, people who love the defendant and things about him. He doesn't want you to think about the people who love Charisse Christopher, her mother and daddy who loved her. The people who loved little Lacie Jo, the grandparents who are still here. The brother who mourns for her every single day and wants to know where his best little playmate is. He doesn't have anybody to watch cartoons with him, a little one. These are the things that go into why it is especially cruel, heinous, and atrocious, the burden that that child will carry forever.

Id. at 815-816 (quoting App. 13-15).


Payne was sentenced to death.

Payne appealed to the Supreme Court of the United States on the grounds that victim impact evidence should have been barred by two supreme court decisions: Booth and Gathers. Booth specifically barred a victim of the crime to testify to the impact the crime had on her. Gathers barred the prosecutor offering such evidence herself. See Booth v. Maryland, 482 U.S. 496 (1987); See South Carolina v. Gathers, 490 U.S. 805 (1989).

The Supreme Court in Payne ruled that victim impact evidence was not barred by the U.S. Constitution in a death penalty case, and overruled both Booth and Gathers. Prior to and since that decision victim impact evidence has been admissible in criminal trials across the United States at sentencing. The question decided in Booth, Gathers, and Payne is limited to the death penalty case, where a jury must decide the sentence.

Opponents to impact evidence claim that it is arbitrary and prejudicial because it is emotional in nature. These arguments falter due to the defense being able to offer mitigating evidence with very little limitation. If a victim decided she wanted the defendant to be spared the death penalty the court would have to allow it. To bar the victim who does not want the victim to be spared capital punishment would create a systemic bias for the defense.

The second main argument used to oppose this evidence is that the evidence is emotional and therefore prejudicial. There are a couple flaws in this argument. First, prejudicial evidence may be admitted if it has probative value. When sentencing the defendant, the court attempts to find the punishment that is just for the crime actually committed. Justice in this sense is impossible without knowing the result of the actual crime. Fortunately, the jurors (more than likely) have not been a victim of such a crime. For a layperson to understand the impact of homicide is impossible without victim impact evidence. The emotional nature argument is absurd due to the type of evidence the defense may use, often a defense attorney uses pure emotion to sway the jury from death.

The nature of a sentencing phase is not to determine guilt or innocence. It is to determine the punishment that the crime deserves. It is impossible to understand what punishment is deserving without knowing the harm of that actual crime.

As a victim of crime these statements are difficult to write. The victim typically relives the trauma of the crime all over again. However, this reliving of emotions linked with horrible events does not deter all victims, because they seek a just punishment for the crime.

During the sentencing phase Nicholas Christopher did not speak, he was three years old at the time of the attack. Instead the prosecuting attorney spoke for him:

Somewhere down the road Nicholas is going to grow up, hopefully. He's going to want to know what happened. And he is going to know what happened to his baby sister and his mother. He is going to want to know what type of justice was done. He is going to want to know what happened. With your verdict, you will provide the answer.

Payne v. Tennessee, 501 U.S. 808, 815 (1991)(quoting App. 12).