Saturday, January 13, 2018

'Agree with me or I will kill you': On plea bargaining, the death penalty, and life without parole

Me, Harris County DA Kim Ogg, and Shannon Edmonds from the Texas District and County Attorneys Association commented in a Houston Chronicle story this week on the role of life-without-parole sentences in plea bargaining in capital cases. I'd suggested:
"There has always been speculation about whether that has encouraged prosecutors to file capital cases more than they otherwise would because what better leverage do you have in a plea bargaining situation than, 'Agree with me or I will kill you,'" said Scott Henson policy director with the non-profit Just Liberty, which advocates for reducing incarceration. "The government will literally kill you if you don't go for life without parole and there is no stronger bargaining chip than that."
District Attorney Kim Ogg, whose office has overseen less than 25 life without parole sentences since she took the reins last year, pushed back against that suggestion. 
"We don't use the death penalty as a plea bargaining tool," she said.
Hmmmm ... What is plea bargaining, Grits wonders, if not a negotiation over sentences? More lenient sentences are offered as an incentive for the defendant to admit guilt and avoid a trial. Since the only two sentences available for capital crimes in Texas are death and LWOP, one wonders what else there is to bargain over if the death penalty isn't used "as a plea bargaining tool"?

Taking the claim on its face, perhaps this might explain the large number of cases charged as capital which don't result in capital sentences: when prosecutors take death off the table in a capital case, LWOP becomes the top sentence in a plea negotiation. So offering non-capital murder or some other charge with the possibility of parole would become the only negotiating chip to incentivize plea deals. Sufficient, county-level charging data doesn't exist, to my knowledge, to confirm that hypothesis, but I'm not sure why anyone would plea bargain to LWOP if the death penalty weren't being threatened.

If the Harris DA under Kim Ogg doesn't use the death penalty to get LWOP plea bargains, I'm glad to hear it. Shannon Edmonds from TDCAA, however, considered it par for the course "that prosecutors used the death penalty to get a guilty plea."
Shannon Edmonds, staff attorney and director of governmental relations for the Texas District and County Attorneys Association, said his group doesn't have an official position on the matter. 
"It kind of tickles me that defense lawyers are upset that prosecutors aren't trying to kill their clients," he said. "Even if the punishment was a minimum of 40 years on a capital life sentence, they still complained that prosecutors used the death penalty to get a guilty plea. That's not anything unique to life without parole."
So, there's that.

Finally, Houston attorney Pat McCann raised an issue that's been discussed recently on this blog and on the podcast - non-capital cases don't receive legal representation at the habeas-corpus stage, nor automatic review by the Texas Court of Criminal Appeals or the federal courts:
Unlike with death-sentenced cases, there's no automatic appointment of post-conviction appellate counsel and no punishment phase of the trial, which makes the whole process quicker and cheaper. 
"Life without parole was an unintentional gift to major urban prosecutors' offices," McCann said. "It makes it very easy to dispose of a large number of violent and often youthful offenders without any more thought than one would need to toss away a piece garbage."
Much has been written about the financial costs of the death penalty, but McCann's observation raises another important and less-often-discussed point: The reason the death penalty tends to drive criminal-justice debates isn't just the symbolic importance of imposing the maximum punishment. It's that defendants sentenced to the death penalty have attorneys representing them throughout the process, and so weak or unconstitutional prosecutions are more likely to be exposed.

Flawed forensics, for example, may be challenged at the habeas stage under Texas' junk science writ. But only capital defendants are guaranteed an attorney at that stage. Same goes for ineffective assistance, prosecutor misconduct, and other common habeas claims.

Death cases these days are more thoroughly vetted by appellate courts, at least at the federal level. (State-level representation in Texas capital cases too often remains shoddy.) But for the LWOP prisoners, McCann's "piece of garbage" comment isn't far off. Court of Criminal Appeals Judge Elsa Alcala has suggested extending the right to counsel in habeas proceedings to non-capital cases in order to pursue ineffective assistance claims. There's a strong argument to be made that LWOP sentences deserve the same level of automatic, post-conviction vetting.


Anonymous said...

In 2017, the State of Texas put 7 people to death.

Texas Coalition to Abolish the Death Penalty

wait till you see Inflow Shoretel Support said...

A little creepy.

Steven Michael Seys said...

You're right, Scott. The only reason that so many flaws are found in death penalty cases during post-conviction proceedings is the elevated level of scrutiny these cases receive under current law. Knowing that the case will be so closely scrutinized, prosecutors are on their best behavior when they call for the defendant to be executed. That said, how many more errors are committed in a case that doesn't have that elevated level of scrutiny and the prosecution is not minding their Ps and Qs? The way the system is rigged, in a criminal case, post-conviction proceedings are as important, if not more so, as direct appeal. Yet SCOTUS has ruled that the sixth amendment right to council ends the moment that CCA issues a final judgment on appeal, the moment that representation by counsel is most needed.

Anonymous said...

That is exactly what was said to my son in Travis County, he agreed to plea for 30 years with a chance of parole, but when the final words were said.... 40 years, life without parole. He wasn't 21 yet and has served 23 years, what good will this 62 year old man do when he gets out, no rehab, being ignorant to society, no job skills, no income. Give him a fighting chance NOW, while he is young enough to be productive

Polunsky Death Row-Voice of the Voiceless said...

Kim Ogg can say what she wants to say and what she wants the public to perceive, but that does not make it truthful. 25 Capital cases, whether resulting in a Death Sentence or LWOP in one year is HORRENDOUS!!! Ogg wants to present herself as a "reformer", but this will only work to a certain degree. Let's be clear--LWOP is another Death Sentence, only wrapped differently. The same cell, the same rigid conditions of being in the cell 23 hours a day, the same restrictive conditions and when assigned to Polunsky, often the same Pod as Death Row. GRITS has pointed out the difference of the LWOP having no State-appointed attorneys for the appeals, which often times leads the condemned to feel helpless and, therefore "act out" and cause major problems in the prisons. Pat McCann was very correct when stating "...It makes it very easy to dispose of a large number of violent and youthful offenders without any more thought than one would need to toss away a piece of garbage". One needs to think about this statement, however--with so many Death Sentences being overturned and, especially the number of men being affected with the "Moore issue", how many INNOCENT people are being given LWOP? I also find it hard to believe that there are no stats on County-level charging. Please dig deeper, GRITS. LWOP is cheaper for the County and the State and makes Kim Ogg look like a hero.

Anonymous said...

So the anti-death penalty lobby fought tooth and nail for the Lege to create LWOP in the hope that prosecutors would choose that option more often rather than seeking the death penalty. If memory serves, one of the main selling points for counties was that LWOP would be much less expensive than the death penalty. And now that the concept worked exactly as expected, Grits, Pat Harwell, etc. are bitching about it? Cry me a river! Incidentally, Pat, would you please explain how Ms. Ogg can somehow control how many capital murders are actually committed in Harris County?

Anonymous said...

She can't control the number of capital murders are committed in Harris County, but she avoids a tremendous amount of oversight by accepting pleas of LWOP since those defendants are only figuratively being killed.

The original legislation does seem to be working exactly as designed. Now it's time to review how that design runs in the long term and there are obviously problems.

What's your issue with government accountability?

Gritsforbreakfast said...

@11:55, I'll explain it. The number of capital murders committed in Harris County is a function of the DA's charging decisions. A murder is "capital" if it meets the criteria AND the DA decides to charge it that way. But the DA can also charge those folks with regular murder. And, likely many plea deals involve defendants charged with capital murder pleading to non-capital murder. So Ogg by definition controls that number.

Also, personally I disagreed with the change in law to LWOP in 2005, so even if it's "working exactly as designed," that does not imply that I agree with it, or ever did.

Anonymous said...

If the Legislature didn't want a particular type of murder to qualify as a capital murder, couldn't they just change the law? I fail to understand the logic behind the apparent criticism of Ms. Ogg here if she's simply using the tools that elected policy makers give her.

Steve said...

I served as the spiritual advisor for a woman on death row and she absolutely hated the idea of LWOP. She would rather have been executed. It always brought to mind a line from Shawshank. "They send you here for life, that’s exactly what they take. The part that counts, anyways." Since both the death penalty and LWOP essentially take a person's life away, it would seem that the appeals process should be the same.

I always hated the argument about cost of executions. How in the world do you put a price on a life, especially the life of a person who might be innocent?

Anonymous said...

Dateline--Spring, TX. Whaddya think here, Grits. Probably only one of these turds was the shooter. Cold blooded, execution style slaying of two hard working immigrants who became successful living the American Dream. What would you have Ms. Ogg do? Just plead 'em to first degree murder?

Anonymous said...

Its not Grits, but Ms Ogg who is going to plea them down to first degree murder, and it's going to be to 1) not have to have a trial, and 2) to keep anyone from double checking her work like they would if she stuck to her guns and demanded their heads.

Anonymous said...

As I've said time and again, the powers-that-be, prosecutors, judges, they only care about are Convictions, the kick backs and acclaims from said Convictions. As for Texas, TDCJ & TYC, Unlike what people are led to believe, Convictions/Inmates make more money for Texas, than Texas actually puts out. Approx 45k yearly per inmate in, add in what they make off commissary/ecomm yearly per inmate, then add in what their cut is for the inmate phone service. It's all about the almighty dollar!

Anonymous said...

Steve you are so positively correct!!!!!