Privatize the death penalty? Victims who "need killin'," or why probation for murder may not always be such a bad idea

Last week's Dallas News series on murderers sentenced to probation left me at a bit of a loss concerning what message to take from the story overall. An impressive piece of paper-trail journalism, Dallas News reporters Brooks Egerton and Reese Dunklin identified 120 people who'd received sentences of probation for murder - either from a plea deal or a jury verdict - between 2000 and 2006.

Unfortunately, the series suffered from a bit of a breathless tone that invited readers to conclude, "Can you believe Texas is soft on crime? We should get tuffer!" To me, that's decidedly not the conclusion I draw from the evidence they've presented, but what if any larger lessons may be drawn from their work? Houston defense attorney Mark Bennett's observation on the subject IMO hits closer to the mark:

The truth is that Texas's propensity for killing its citizens, and its leniency with some murderers, are both expressions of the a single principle. Texas doesn't execute murderers to show its regard for the value of life; it does so because some people (as the parable says) need killing. Sometimes the guy who -- in the eyes of Texas -- needs killing is the accused, and sometimes he's the complainant.

"He needed killin', and my guy was the guy to do it" has long been a viable defense in some Texas murder cases. These are cases in which the State often couldn't secure convictions despite being technically murder; it'll be even less able to secure convictions in the future from juries that know that, if they convict, prison will be the only option.

That strikes me as an accurate assessment of the general public's attitude toward intentional killing in Texas, whether by the state or by individuals. Looking at specific cases analyzed by the News, that analysis explains quite a few of them. As I wrote in a "first impression" about the series, it's possible to:

identify several recurring situations where murderers frequently received probation: a) Prosecutors had weak or circumstantial cases and the defendant may not have done it, b) the defendant was guilty via the "law of parties" but didn't actually kill anyone themselves, c) the defendant was elderly, sick or incapacitated to the point where they were no longer a threat, and d) the victim was a worse person than the murderer and basically "needed killin'," so juries sympathized and gave the defendant another chance.

While Dallas News columnist Gromer Jeffers identifies what's wrong with reason A for granting probation in murder cases, who thinks reasons B, C, or D are not sometimes justified? Following Bennett's lead, let's think more closely about category D, in particular, the ones whose victims "needed killin'." Consider the case of Synnissa Gabriel who murdered Hosia Abdallah, her estranged boyfriend:

She told police in 2005 that Mr. Abdallah had stalked her and vandalized her home, in violation of a protective order. Then she tracked him down and shot him several times.

Heath Hyde, who prosecuted the case, said he offered a deal because the victim had a long history of violence against women. That made it unlikely jurors would sentence his killer to prison, he said. Defense attorney Nancy Ohan described her client as "the classic case of the battered woman ... there was a definite mental break."

So a battered woman who continued to be stalked and harassed in violation of a protective order finally took matters into her own hands and gunned down her assailant. Why'd she get probation? Because prosecutors believed jurors would conclude the victim "needed killin'" - in other words, that justice had been served by the defendants' actions. It may not be true under the law, but in the gray-area balancing act jurors do in their own minds while making life or death decisions, it's true in point of fact.

In some other cases, defendants had possibly viable self-defense claims or otherwise could credibly portray themselves to a jury as protecting themselves. Not all the cases find a sympathetic killer and a much-scarier victim, but when they do, is it wrong for a jury to sympathize with the defendant?

Isn't that what juries are about, letting members of the public come to their own conclusions about what constitutes justice?

I've described before my own mixed feelings on the death penalty: It's not that I don't think there are bad folks out there who "need killin'," I just don't trust the government's ability to distinguish between them and the rest of us. (If Texas hasn't already executed an innocent person, at the rate we're going it's only a matter of time.) Bureaucratic mistakes that we tolerate at the drivers license bureau are unacceptable in deciding whether someone should live or die, so I'm troubled by placing such an irreversible decision in the hands of government bureaucrats, even ones with "J.D." after their names.

The "needed killin'" defense and the possibility for receiving probation for murder (after Sept. 1, prosecutors can still plead to deferred adjudication, though juries may no longer grant probation) basically recognize, pragmatically, that many Texans hold similar sentiments, that some murders occur amidst shades of gray, and that the prosecutor may not always be right just because they work for the gub'mint.

From a public interest perspective in these cases, at least in a pro-death penalty Texas jury's mind, the existence of the death penalty assumes it is possible for intentional killing to promote justice. If you believe that (and capital juries must be "death penalty qualified," so sometimes they are REQUIRED to believe it even to serve), you might well believe, upon hearing the facts, that the victim had it coming, as prosecutors feared they would in Ms. Gabriel's case.

In that sense, the punitive mentality that supports the death penalty may also be a two-edged sword for prosecutors in ways that aren't very often discussed. Texas juries may well decide it's just fine to essentially privatize the death penalty, to decide that the killer's vigilante justice was the right justice and give the defendant a pass. (The mentality perhaps harks back to Texas' frontier days, when Mexican alcaldes assessed penalties for theft at four times the amount stolen, but left justice for murder to the friends and family of the deceased.)

The more I think about it, the idea of defendants getting probation for murder on a case by case basis for the reasons described in the series really doesn't bother me save that, upon reflection, I think the Legislature should revisit the question to reinstate juries' authority to give that punishment.

The missus thinks I'm going to "get in trouble" for writing this, but I think, as a practical matter, I'd prefer a death penalty privatized on a case by case basis at the discretion of 12 jurors than operated by the government itself. What do you think?

More from the Dallas News:

• Probation for Murder: The Series
  
• Reporters discuss the story
• Gromer Jeffers: Probation tactic renders Watkins less a crusader
• Dallas News Reader Forum on the series
  

BLOGVERSATION:

• Defending People: Here and here
• The Defense Perspective
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