Handicapping potential special session topics: Capital sentencing for 17-year olds and cell-phone privacy

Grits has heard second-hand rumors now from a couple of sources that Governor Rick Perry will likely soon add a handful of additional issues to the special session call, though no one can say whether they will include the red-meat topics for which Lt. Gov. David Dewhurst was hoping.

On the criminal-justice front, statehouse handicappers seem to think the most likely topic to make the cut to be adapting Texas law to comply with US Supreme Court rulings regarding sentences for 17-year old capital murderers. Regular readers will recall that by eliminating the death penalty and life without parole (at least as the only punishment option) for juveniles, SCOTUS effectively eliminated all available punishments on the books in Texas for capital murder committed by 17 year olds, who under Texas law are treated as adults. Legislation filed by Sen. Joan Huffman this session (SB 187, since re-filed as SB 23) would have added the option of life with the chance of parole to LWOP - a sentencing structure that would apply solely to 17-year old defendants, who would be treated differently from both 16 and 18 year olds charged with capital murder. What a mess!

Grits thinks the system would limp along fine without the bill - particularly given the form it took during the regular session. If the Governor does place the issue on the call, legislators should significantly change the bill from its earlier form, which added life with parole to LWOP as the only sentencing two options for juvenile capital murderers. Houston attorney Mark Bennett has adumbrated why that sentencing structure fails to comply with the core tenets of the SCOTUS ruling that spurred the change to the law in the first place. He portrays Huffman's bill as a prosecutorial effort to take decision making out of the hands of unpredictable juries:

The unstated premise under­ly­ing the pros­e­cu­tors’ argu­ment: only a pros­e­cu­tor, and not a jury, can decide what jus­tice is. This is non­sense, of course. Twelve mem­bers of the com­mu­nity are a much bet­ter arbiter of jus­tice than a sin­gle bureau­crat. If a jury would give some­one five years in prison for a mur­der, that per­son shouldn’t be doing life, either with or with­out parole. (That’s the cen­tral point of Miller v. Alabama, which Huff­man and [Harris County DA Mike] Ander­son would pre­fer to ignore.)

Right now, Texas law complies with Miller v. Alabama because 17 year olds convicted of "regular" murder can be sentenced from 5-99 or life under Texas' first-degree felony sentencing scheme. If the Governor insists the Lege revamp the law, the goal should not be to create a new sentencing strata that treats 17-year olds differently but to rationalize capital punishment for juveniles, including 17 year olds, altogether.

Offhand, Grits sees at least two ways to go about this besides the path Sen. Huffman charted. First, one could perhaps most elegantly resolve the matter by raising the age at which Texas' justice system treats youth as adults from 17 to 18. That would make Texas law match federal definitions and ensure this same issue doesn't come up every single time a new SCOTUS ruling applies to juvenile cases. IMO that would make the most sense long term, but politically it would be the more difficult path.

Another alternative: Change sentencing for 14-16 year old capital murders to match the current, "regular" murder charge applied to 17 year olds. That would provide jurors ample discretion to consider mitigating factors as required in Miller and keep the law consistent. Sen. Huffman's proposal to create a separate sentencing strata for 17-year olds consisting of LWOP and "regular" life a) probably doesn't allow sufficient consideration of mitigating factors to satisfy Miller, for reasons Mark Bennett articulated, and b) creates a stratified, confusing sentencing structure with different outcomes for 16, 17, and 18 year olds, respectively. Does that really make sense? The goal should be to rationalize sentencing of young murderers, not to make the code more byzantine, arbitrary and confusing.

During the regular session, SB 187 by Huffman for the most part flew under the radar, making its way through the legislative process with relatively little substantive debate. The Lege never fully debated whether it was the only or best way to respond to the Supreme Court's evisceration of Texas' capital sentencing structures for juveniles. They were just informed of the "problem" and told this was the fix.

If the topic is added to the special session call, Grits hopes legislators take the opportunity to have a more in-depth debate about the meaning of Miller and how best to craft a sentencing scheme that complies with the relevant Supreme Court precedents. SB 23/SB 187 is what the prosecutors want but for reasons we've discussed, prosecutors haven't been able to call shots this session at the Legislature as consistently as in years past. With just a few issues to focus on during a special, one hopes the matter would get more attention from the defense bar and advocates. Perhaps the addition of non-prosecutor perspectives can improve the shortcomings of the unfortunate version that died in the House during the regular session.

ALSO: Governor should add warrants for cell-phone location data to special session call. If  Governor Perry does add more items to the special session agenda, Grits hopes cell-phone privacy is among them. I'd come to despair there was little chance of it, then the governor weighed in on the NSA phone monitoring scandal this week and all of a sudden the idea doesn't seem so far-fetched. AP reported Friday ("Gov. Rick Perry likens phone surveillance to China") on a remarkable speech from Gov.  Perry related in part to domestic surveillance under the Obama Administration. The article hailed:

Perry's fiery tone and focus on non-Texas issues while addressing the National Federation of the Grand Order of Pachyderm Clubs, a Republican grassroots group active in 14 states.

"We have an administration today that is taking alarming steps to infringe upon our rights in the name of consolidating their power," Perry told about 200 activists who gathered in San Antonio for the organization's national convention.

It was revealed this week that the National Security Agency has been collecting the phone records of hundreds of millions of U.S. phone customers. That includes users of Verizon's land and mobile phones, but also those from other companies.

"Who knew, when you were watching the Verizon ad and the guy said, 'Can you hear me now?,' that was really just a mike check for the Obama administration," joked Perry, who drew a standing ovation.

He called the federal government's secret surveillance into America's phone records a "fundamental misuse of the massive power of the federal government," and added, "These acts are something I would expect to see out of China but not out of the United States."

Word of the phone surveillance came as the Obama administration already faces questions over the federal tax agency's improper targeting of conservative groups and the seizure of journalists' phone records in an investigation into who leaked information to the media.

"They have spied on us, they have intercepted reporters' communications, they have unleashed the IRS to target conservative groups and not just conservative groups ... Faith-based groups," Perry said.

While Grits has no direct knowledge, these comments made me think there is an extremely remote but perhaps not completely far-fetched possibility that the Governor will heed privacy groups' request to place warrants for cell-phone location data on the special-session call. After all, in 2011 Perry placed the TSA groping bill on the call after it failed during the regular session. Rep. Hughes' and Sen. Hinojosa's (and Estes') warrants-for-cell-phone-location data bill, by contrast, would be more likely both to pass and to withstand scrutiny by the federal courts if and when it becomes law. Indeed, Hughes' bill enjoyed 13 more coauthors, even, than the surprisingly popular "groping" legislation from the 82nd session.

Rick Perry is nothing if not a shrewd politician. Clearly he can see that the Obama Administration is vulnerable on these topics. Elevating electronic privacy to the special-session call would not only play to the GOP's Tea Party base but also function as a wedge issue among liberals and independents while snubbing an unpopular president (at least, he's unpopular among the GOP primary voters Perry most cares about). There are many benefits to a hard-right governor from pushing such issues and few political pitfalls. Worst case: It makes the police unions mad, but since when do GOP presidential candidates care about public-employee unions?

Perhaps that's a privacy buff's pipe dream. But there's a chess player's perspective from which it would make strategic sense. And Grits must admit, six months ago I couldn't imagine Rick Perry railing against the government's warrantless access to personal data from cell-phone companies to the National Federation of the Grand Order of Pachyderm Clubs. Who knows? Perhaps we'll look back later and view the NSA's PhoneGate scandal as a tipping point on electronic privacy for small-government conservatives. That may be reading too much into his remarks but these are not matters on which I've ever heard Rick Perry embrace a populist stance. Whether that says more about the governor's evolving worldview or the zeitgeist of the times, who can say? In any event, that's why Grits would be pleased but not completely surprised if, after the NSA scandal, cell-phone privacy ended up on Texas' special-session call. It'd be a politically smart thing to do.