Wednesday, November 21, 2007

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:


Anonymous said...

nhzaHaving been in the probation business for over 30 years has led me to believe that while there are a few out there that need killin', it is often, but not always, in the eye of the beholder. Allowing juries to grant probation for Murder should not be left solely to the people with J.D. after their names. It should be a part of the juries sentencing options. I see a few not guily verdicts resulting from juries thinking he "needed killin" too.

Anonymous said...


Fifteen to 20 years ago there was a killing in a bar in downtown Elgin, in the middle of a warm weekday afternoon. It was a neighborly beer bar; mixed drinks were not served. Among people in the bar at the time of the killing were one or two City Councilmen, and the Chief of Police.

An individual with a community reputation that was exceedingly bad -- a criminal record and suspected of being a major drug dealer in Bastrop County -- came into the bar. There was bad blood between this guy and the owner of the bar, over what I'm not sure.

This guy stood at the bar and ordered a beer. The owner, who was tending bar that afternoon, directed this guy to leave. Instead of leaving, he responded with some remark to the owner; again, I'm not sure what it was. The owner then reached under the bar, drew out his handgun, and shot the other guy point blank, killing him.

As you can probably imagine, there was a frantic, hysterical, immediate emptying of the bar.

The owner was subsequently indicted for some sort of illegal homicide. The State and Defense agreed upon a non-jury trial before the District Judge who heard most felony criminal cases.

At the end of the State's case, the Defense declined to put on any evidence.

The Judge declined to make a ruling on a verdict, stating in open Court that he was taking the matter under advisement.

About 10 years later, circumstances placed me and the Judge in adjoinging urinal stalls in a Bastrop County Courthouse Mens Room. His Honor -- already showing some signs of memory problems which would move him off the trial bench shortly thereafter -- asked me, with an honest-sounding tone of voice, a question about whatever happened to that guy who killed that other guy in that bar up in Elgin a few years back.

I was temporarily speechless. But, gathering my wits so as not to be overtly impertinent toward His Honor, I told him that he had taken that case under consideration.

His Honor grimaced, developed a bright red face flush, zipped his pants and exited the Mens Room without another word. (He didn't flush and he didn't wash his hands.)

Obviously, the Decedent was a guy whom everyone (except possibly Decedent's family) -- the District Attorney, the Judge, law enforcement -- considered needed killing. The Defendant was probably perceived as having performed a community service by killing the guy; he saved the County a lot of money on under-cover drug investigations and a future jury trial of the Decedent, and he permanently removed a dealer of really bad drugs from the County. Law enforcement rarely has the opportunity to summarily execute bad guys like this private citizen did under the right circumstances.

No. I don't know if the Judge ever made a formal decision in the case.

Sam said...

Sometimes too, we offer deferred adjudication, a type of probation, because there is a weakness in the State's case and we do it to get a plea. If the defense takes the offer and the defendant later violates a term or condition of his/her probation then their exposure is the full range of punishment which, for a murder in Texas, is 5 to 99 years.

ideally, you go to trial on these cases and let the jury sort it out, but it seems sometimes the plea is the best you can do.

Anonymous said...

Let me share the three unwritten rules that are known in every Texas courthouse:

1. "Blood is always thicker than water"

2. "Sin ain't sin if good people do it"

3. "It ain't against the law to kill a sonofabitch"

#1 applies to family violence cases or fake alibis from momma; #2 applies to gambling (8-liners, etc.), prostitution, and other "morals" crimes; and #3 is the one that you have identified, Scott. For better or worse, you hit the nail on the head with this post. I wouldn't worry about the missus' warning.

Gritsforbreakfast said...

For those who don't know, Shannon lobbies for the Texas prosecutors' association, and on his sage advice I'll let the missus know she can stop worrying.

So whaddya think, Shannon? Next session, we abolish the death penalty in Texas, but enshrine into law, verbatim, that "It ain't against the law to kill a sonofabitch"?

Abolish the death penalty by privatizing it: Can you think of a single other proposal that would simultaneously make BOTH death penalty abolitionists AND the Castle Doctrine folks happy? ;)

Anonymous said...

Where do we start the list of "sonofabitches?"

Gritsforbreakfast said...

That's the only problem, 1:16. Depending on who you asked, there's a pretty decent chance I'll make the list!

Anonymous said...

HA!!! Not unless TYC and TDCJ are in charge of drafting the statute, Grits.

Anonymous said...

Now, now, let's not get carried away, Scott. ;)

I personally agree with the accuracy of many of your insights, including:

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

- "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."


- " ... Texas juries may well decide ... that the killer's vigilante justice was the right justice and give the defendant a pass."

But that being said, jurors giving certain defendants a "pass" does not mean those same jurors want that defendant to have carte blanche to walk around wasting any SOB he wants.

One could argue (and I will, since it's a really slow day-before-Thanksgiving here) that the reason we have a "public" death penalty instead of a "privatized" one is that the privatized one was tried and found wanting due to abuses by the private citizenry. However, Texans still support the death penalty -- or, as you put it, "intentional killing to promote justice" -- by a 2-1 margin. Not just death penalty-qualified juries -- TEXANS as a whole. By landslide margins. Therefore, they've left it up to their state to carry it out. And that's why we have it on the books today, rightly or wrongly.

p.s. - as for sonofabitches (correctly pronounced "sum'bitches"), don't worry about a list. It's more like obscenity -- you know one when you see one!

Anonymous said...

Then I'll definitely try to stay away from any mirrors. Have a good Thanksgiving.

hipparchia said...

I have nothing useful to add to the conversation, but I toss out my 2 cents worth anyway.

W W Woodward said...

I agree. Some people just need killin'. However, in the State of Texas, If you find it necessary to kill somebody who needs killin', the killin' should be conducted within certain guidelines.

Reference Texas Penal Code:



(a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.

If you will notice - There is a period after the word "individual". If you kill somebody, unless it is totally accidental with no negligence involved, you have by letter of law committed a criminal homicide. For example; An armed, dope crazed burglar breaks into your home in the middle of the night and fires a shot at your wife while she is peacefully sleeping. You grab your trusty hogleg off the nightstand and cap the sumbitch, ‘til he dies. You have at the very least “knowingly caused the death of an individual”. You have committed criminal homicide. Remember the period after the word “individual”?

The penal code then lists the various forms of criminal homicide in the following subsection (b).

(b) Criminal homicide is murder, capital murder, manslaughter, or criminally negligent homicide.

These different varieties of criminal homicide are determined by the culpability of the killer at the instance of the homicide.

Now, we can take a look at that portion of the penal code that offers a defense to prosecution for criminal homicide.]



It is a defense to prosecution that the conduct in question is justified under this chapter.

[Chapter 9 covers self defense, defense of others, defense of property, arrest and search, and prevention of escape from custody along with other situations.]

Basically, chapter 9 of the Texas Penal Code establishes justification guidelines for the use of force and deadly force as well as other criminal acts.

If you feel it absolutely necessary to do anything to anybody, it would serve you well to become totally familiar with the provisions of Chapter 9 of the Texas Penal Code.

For clarification; my use of the word “you” is intended to mean “to whom it may concern”.

The Abolishment Movement said...

I think that many inmates got convictions because the Government felt they "needed killin", Many of these were charged under the Law of Parties, and were gang members, or other known criminals. Like Susan Reed's "Gang database". If the name comes up as a gang member, it doesn't matter if they killed anyone, they get death under the LOP. Ex Kenneth Foster.
Many more inmates who the prosecution feels "needs killin" are those who were victims of the states jail house informants. I've never heard of a rich man being executed. Cleaning up the streets this way is a form of genecide.

Anonymous said...

Scott, once again you have managed eloquently to put into words the very thoughts that have been swirling around in my head.

I worked on a case about ten years ago in Harris County (Houston) where one night a battered woman got into an argument with her abusive husband. In a nutshell, the argument got physical, weapons were drawn (he pulled a knife, she drew a gun), and she ended up firing four shots into his chest at point blank.

It wasn't really self-defense, so here's what the defense attorney decided to do. He advised his client to plead no contest, and then he asked the court for a pre-sentence investigation, which was granted. In a pre-sentence investigation, the rules are such that hearsay is admissible, so this defense attorney, a former PI and bailbondsman who has remarkable investigative skills, managed to track down seemingly every person the dead sumbitch had assaulted or otherwise mistreated, including previous women he had raped and one guy whose ear he had sliced off in a bar fight. He obtained certified copies of the decedent's numerous criminal convictions, and he conducted interviews and obtained affidavits to be included in the pre-sentence investigative report.

On the day of sentencing, it was clear that the judge had read the report, and was inclined to give the defendant a sentence which involved no jail time. The prosecutor stamped her foot and demanded 40 years. The judge responded that while he knew it wasn't self defense, he certainly wasn't going to send her for prison "for killin' a worthless sumbitch that needed killin."

The defendant got ten years deferred adjudication. After two and half years or good behavior, clean urine, and no missed appointments, the lawyer filed a motion to dismiss, and it was granted.

This woman is not a threat to society, and justice was truly served.

Interesting that you should write about this issue while the Joe Horn case is so fresh in our minds. Joe, y'all may recall, is the man in Pasadena who caught two guys in flagrante delicto burglarizing his neighbor's home. He dialed 911, but when he concluded that the police weren't going to make it there in time to stop the criminals, the old geezer grabbed his 12-gauge and killed both burglars.

The police showed up a minute later, and they didn't even arrest Joe. Next week the case will be presented to a Harris County grand jury, and I don't know anyone around the courthouse who thinks that Joe will spend one day behind bars. I'm betting that he might plead to a lesser charge, such as discharging a firearm in the city limits.

I'm hardly a redneck, but as far as I am concerned, Joe *should* go free simply 'cause the two sumbitches needed killin'.



Anonymous said...

Probation for murder is always a bad idea. If someone is guilty of a mercy killing or killing in self defense, then they shouldn't be charged with murder. The DA should be trying all murder cases before the jury. The jury is the voice of the community, so if a murderer is returned to the streets, it should be the decision of the jury, not the DA. When the DA plea bargains a murder case, they bargain away the public's right to see justice served and they place the public at risk while they gamble on the chances of using the "back door to prison." The law needs changing.

Mark Bennett said...


Probation for murder is not always a bad idea, is it? Even if it "the decision of the jury"?

The problem with the recent change in the law is that it takes that decision out of the jury's hands, concentrating power in the hands of the bureaucrats. A more rational change would have been to take the power to give probation away from the prosecutors and judges and leave it with juries.

Anonymous said...

I'll stick with the premise that probation for murder is always a bad idea if the crime is deliberate, unmitigated murder, which many of the Dallas cases were. However, I agree that the recent law change did nothing to solve the probation for murder problem. In fact, by taking the discretion away from juries, it empowers the bureaucrats to cut more probation plea deals because that is the only way a defendent can receive probation in a murder case. The law should have limited the DA's discretion, not the jury's.

Mark Bennett said...

Lots of "murders" in Texas are neither deliberate nor unmitigated. The law calls them murder, but they're not what people generally think of when they hear that term. It's for those murders that juries rightly had -- and occasionally used -- the power of probation.

Anonymous said...

We're on the same page, Mark. Perhaps the problem isn't as much granting plea bargained probation to blood thirsty killers as it is charging someone with murder when the killing was unintentional or justifiable in light of the circumstances. I see no problem with the jury granting probation in the questionable murder cases. It's the cold blooded killers receiving probation that bothers me.