Another Special Session Republican Bill Might Be Unconstitutional

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Texas may wade into a long and costly constitutional battle if it passes Senator Joan Huffman's Senate Bill 2, a bill intended to reform sentencing of 17-year-old capital murderers to comply with a Supreme Court ruling from last year.

Currently, the fate of 17-year-old killers convicted of capital murder in Texas is uncertain. Before 2005, 17-year-olds convicted of capital murder had two sentencing options available to them: death or mandatory life in prison without parole. But in two important cases, in 2005 and 2012, the U.S. Supreme Court held both of those punishments unconstitutional for people under 18 years of age.

Because of the high court rulings, Governor Perry added the goal of establishing a new sentencing scheme for 17-year old capital murderers to the agenda of the special legislative session currently under way.

The bill reported out by the Senate Committee on Criminal Justice may not actually solve the issues raised by the Supreme Court, though, and some argue that it may be best for lawmakers to do nothing at all.

Read more below the foldMark Bennett at Defending People argued during the Regular Session that the Supreme Court's 2012 ruling was more sweeping than Huffman's bill seems to recognize. Bennett convincingly argued that the court didn't just intend to do away with mandatory life without parole sentences for those under 18 years of age in its 2012 case. It also intended to allow sentencing authorities to consider mitigating circumstances while sentencing juveniles in capital cases:

Miller v. Alabama didn't just say “no life with­out parole for mur­der­ers under age eigh­teen.” It said:
Gra­ham, Roper, and our indi­vid­u­al­ized sen­tenc­ing deci­sions make clear that a judge or jury must have the oppor­tu­nity to con­sider mit­i­gat­ing cir­cum­stances before impos­ing the harsh­est pos­si­ble penalty for juveniles.

That is, what was miss­ing from Alabama's juvenile-capital-murder sen­tenc­ing scheme was not the pos­si­bil­ity of parole, but the oppor­tu­nity for the sen­tenc­ing author­ity to con­sider mit­i­gat­ing cir­cum­stances. Sen­ate Bill 187, which still doesn't give the sen­tencer the oppor­tu­nity to con­sider mit­i­gat­ing cir­cum­stances, still fails this test.

In Texas, you can be considered to have committed a capital murder if you “participated” in the murder. That is, you don't have to have be a trigger-man to be convicted of committing murder. Bennett's argument is that a sentencing authority ought to be able to consider facts like that when punishing a 17-year-old for capital murder. Huffman's bill removes the ability of sentencing authorities to consider those facts, and it may therefore violate the core tenets outlined by the Supreme Court in its 2012 decision.

Absent a good alternative or a change to Senator Huffman's bill, no action may be the best option for Texas lawmakers. Scott Henson of Grits for Breakfast thinks that the sentences for 17-year-old murderers are fine as they are. He writes:


“…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…”

It will be interesting to see how our lawmakers deal with this issue.

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