Saturday, June 13, 2009

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 . 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.

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