Under New York law, the sentence for a garden variety second degree murder is fairly clear. The lowest sentence available is 15 years to life. The highest is 25 years to life. One thing is clear: He’s going to prison. The Legislature has not given the courts any other option.
But not so in Texas. A curiosity, since the perception we have of Texas is that there’s line waiting outside the door of the death chamber. If a New York lawyer had to take a guess at the sentencing options for a Houston murder, we would be inclined to guess gas chamber, lethal injection, electric chair or public hanging. Pick ’em.
Not so. In fact, just yesterday lawprof Daniel Solove at Concurring Opinions posted about an option that could never be had in New York: Probation. Imagine that, in the land of death, convicted murderers can receive probation! According to Dallas Morning News, even politicos didn’t realize that probation was an option for murder because it was so rare.
It happens “probably once in a hundred years,” Rep. Harold Dutton told the House Committee on Criminal Jurisprudence in March. Committee chairman Aaron Peña said he didn’t know probation as a sentence for murder was legally possible.
Not surprising, really. We’re talking about a top of the line crime. Murder is serious stuff. It doesn’t get any more serious. It would seem that probation for murder would be the rarest of sentences possible, only occurring in the rarest of cases. From my New Yorker’s perspective, where probation is generally unavailable for a simple gun possession, this is a most extraordinary sentence. Frankly, I can’t even imagine how it’s available.
Between 2000 and 2006, probation was the sentence a total of 120 times in murder cases. But this includes plea bargains, a benefit to prosecutors who want to use the sentence as a carrot to dangle for cooperation. The story doesn’t say how often a defendant receives probation after a trial conviction. You would have to believe this would happen far more rarely, since few murders give a jury (yes, the sentence would be impose by a penalty phase jury in Texas) that warm and fuzzy feeling that makes them want to put the murderer back out on the street immediately.
And by the way, the Texas Tornado, Mark Bennett, who suffered a major blow when his client was convicted of murder a couple of days ago despite a hard-fought defense, got back on the horse the next day to try the penalty phase. No time to feel bad about the conviction, Mark still had work to do.
Bennett’s client was convicted of murder. His sentence: Probation. Not too shabby. It could never happen in New York, an enlightened state.
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A nice Thanksgiving. Even for the prosecutor, because the jury made the decision. Bennett’s client will be supervised.
Thanks, Scott. Two notes:
First, probation will not be a sentencing option for the jury for a murder committed after September 1, 2007. The law has changed; the hoopla about probation for murderers (Dallas Morning News article and so forth) is, in my mind, much ado about old news.
Second, my case really wasn’t much of a murder. The prosecutor’s theory was that our lads were liable as parties to a felony murder, for which the underlying felony was deadly conduct (firing a gun at or toward a car). The jury could find our clients guilty of murder without believing they had killed the victim, without believing that they had intended to kill the victim, and arguably while acting with justification.
As Kathleen points out, our clients will be supervised (for ten years). They’ll also be “convicted murderers” for life. They’ll also be spending the next 178 days in Harris County Jail as a condition of probation. The big question is: when your client gets probation for murder, do you appeal?
Would the defendant want to appeal a sentence of probation for felony murder? Versus the verdict only? And give the prosecutor the chance to knock the jury off its pedestal (this once) in his reply? Seems like a wildcard.
Hope everyone involved would be or gets thankful that things are not worse. It is no trick to violate probation as it is.
So good luck to your client.
And congratulations.
I mean this altruistically. What I am getting at is that sometimes a client may consider not scratching where it itches. “You’re a damn fool and you should stop,” attributed to Abraham Lincoln, when he practiced law.
As co-author of the Dallas Morning News investigation, I wanted to correct a misconception about probation for murder as stated by Mr. Bennett.
The probation-for-murder story is not “old news,” as he states. We reported that juries are no longer allowed to give probation for murder, as he noted. But a closer read of our series shows that prosecutors still can offer probation through plea bargains with defendants. In fact, our investigation showed that the majority of probation-for-murder deals come about this way — rather than by jury sentences.
Thank you,
Reese Dunklin,
The Dallas Morning News
Kathleen,
I think you’re probably right. The odds on appeal do not favor my client.
Excellent journalism. I hope we all learn something every time the justice system stumbles, as when we paroled convicted serial killer Kenneth McDuff from death row and he immediately went back to killing.