An example of this scenario is playing out in Weatherford, Texas, where a judge has refused to rule whether a 17-year old capital murder defendant can be tried on charges for which there exist no punishments on the books that the Supreme Court considers constitutional. From the Weatherford Democrat ("Judge declines to rule on punishment question," Jan. 24):
Texas law currently provides two penalties for capital murder - death or life imprisonment without parole.Notably, state Sen. Joan Huffman has filed SB 187, ostensibly to clarify the law. Under Huffman's bill, "a sentence of life imprisonment is mandatory on conviction of the capital felony, if the individual committed the offense when younger than 18 years of age." In that scenario, a 17-year old convicted of capital murder theoretically could be paroled after 40 years, as is now the case for younger defendants, while at 18 they would be sentenced to either death or life without parole. (Even if Huffman's bill passes, cases charged before the law changes would not be affected.)
Because of a 2005 U.S. Supreme Court ruling that the death penalty for those under 18 years old at the time of the offense is unconstitutional and a 2012 U.S. Supreme Court ruling that a sentence of life without the possibility of parole for a defendant under the age of 18 at the time of the offense is unconstitutional, Moore argued that the state could not pursue a charge under which there is no lawful sentence.
The Supreme Court's ruling in Miller v. Alabama was unambiguous: The high court insisted "that sentencing authorities consider the characteristics of a defendant and the details of his offense," giving an option for a lesser sentence if the facts so warrant. The Miller court explicitly held that, "Life without parole 'forswears altogether the rehabilitative ideal' (citation omitted). It reflects 'an irrevocable judgment about [an offender’s] value and place in society,' at odds with a child’s capacity for change." One wonders, though, couldn't the same be said for a mandatory 40-year sentence? Grits recently mentioned a non-capital murder case where an adult defendant was sentenced to 20 years, so clearly for some killers, individual circumstances do matter at sentencing.
(As an aside, at least one legal commentator has speculated that SCOTUS' line of reasoning in Miller could result in further restrictions on mandatory minimum sentences in the future, especially where "a mandatory minimum sentence extends the term of the sentence beyond the life expectancy of the offender," or in "cases where consecutive sentences extend the term of the sentence beyond the life expectancy of the offender.")
Make me philosopher-king and I'd change Texas' capital statutes to provide both greater consistency and more sentencing options for juries. In general, recent jurisprudence from SCOTUS strongly implies that our capital statutes are more likely to be deemed constitutional when juries doing the sentencing have wider leeway to choose among punishments. That's why IMO there should be three sentencing options for adults charged with capital murder, not two: Life with the possibility of parole (as was the case prior to 2005), life without parole, and death. Limiting the option only to the latter two is what caused the conundrum Huffman's current bill seeks to fix. If they'd retained the third option back in 2005, there'd be no dilemma for the judge in the Weatherford case, nor any need for her bill.