Texas sentences for 17-year old murderers fine as they are: No need for special session call

So far, Gov. Perry has resisted adding anything to the special session call besides redistricting and Grits' must admit I'm grateful. Unless he surprises me and put warrants for cell-phone location data on the list (which he should), not much good can come of any of the criminal-justice topics the Governor is most likely to add to a special session which some, like Lt. Gov. Dewhurst, would like to fill with right-wing red meat.

One surprising omission so far has been the failure of the 83rd Legislature to establish a legal punishment for 17-year old capital offenders. Texas treats them as adults but the US Supreme Court considers them juveniles. So SCOTUS rulings banning the death penalty and life without parole (LWOP) for juveniles have left Texas with no legal punishments on the books for 17-year olds charged with capital murder. They can still be charged with "regular" murder, which could get them a sentence of up to 99-life, but with the eventual possibility of parole.

Grits doesn't consider that an especially unfair sentencing range and sees no pressing need to change it, but from the prosecutors' rhetoric you'd think the end of the world is nigh. Some thought the issue was pressing enough to call a special session back in 2012, and in years past one would have expected anything from the DA's must-have wish list to immediately make a special-session call. But as we've discussed earlier this session, prosecutors' clout at the Texas Lege has lessened and they don't automatically get what they want anymore, though in this case I'll be surprised if the Governor ignores their demands completely.

During the regular session there are hundreds of bills to monitor on a zillion different topics and every lobby interest must make cost-benefit analyses regarding where they spend their time. Likely for that reason, nobody really focused much on SB 187 besides the prosecutors who brought it to Sen. Huffman. The bill responded to the Supreme Court's Miller v. Alabama ruling by giving juries a choice when sentencing 17-year old capital murderers: life without parole or life with the possibility of parole. No other options. It died for time of its own accord thanks to the House leadership's annoying habit this session of slow walking bills through the process.

But that means, in a special session, if it's added to the call then criminal-justice reformers can pay more focused attention and perhaps improve the bill from its earlier form, or preferably kill it. At Defending People, Mark Bennett recently laid out the core shortcoming of Sen. Huffman's solution to this "problem" as articulated in SB 187: It arguably doesn't comply with the Supreme Court's ruling in Miller v. Alabama which, as Bennett said did not simply mandate the possibility of parole but"the oppor­tu­nity for the sen­tenc­ing author­ity to con­sider mit­i­gat­ing cir­cum­stances." That sentencing goal is better served by prosecuting 17-year olds (and for that matter 14-16 year olds) under "regular" murder statutes.

By contrast, wrote Bennett, "Huffman’s bill would replace life with­out parole in the capital-murder sen­tenc­ing statute with mur­der life (with the pos­si­bil­ity of parole after forty years). What she is try­ing to take off the table is the jury’s dis­cre­tion to take into account mit­i­gat­ing cir­cum­stances and sen­tence a child mur­derer to less than life."

Criminal-justice reformers should oppose adding another version of SB 187 to the "call." The law handles these cases just fine as it stands and Texas prosecutors simply need to adjust to the new reality. If the issue is added, though, someone besides Huffman should propose an alternative solution: to eliminate "capital" murder for 14-16 year olds to comply with the discretion demanded by Miller in their sentencing. Bennett's interpretation of Miller is utterly mainstream and yet was barely articulated as SB 187 meandered through the process. That should change if the Lege takes the issue up again during the special session.