Senator Jose Rodriguez: Senate bill 2 “likely unconstitutional.”

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Last week, Senator José Rodríguez cast the single vote in the Texas Senate against S.B. 2, a bill that provides for the possibility of parole after 40 years served for capital murder convictions of 17-year-olds, because he believes it is unconstitutional.

If you read my post last week, you'll remember that the June 2012 Supreme Court ruling in Miller v. Alabama held that a mandatory life sentence without the possibility of parole for those under 18 is unconstitutional. The Supreme Court's decision had left Texas without legal penalties on the books for 17-year-olds convicted of capital murder, so Governor Perry added juvenile justice sentencing reform to the special session agenda.

The Supreme Court also held that that factors such as age, family and home environment, likelihood of rehabilitation, and the circumstances of the homicide offense ought to be considered when by judges and juries during sentencing, though. For these reasons, I noted in my previous post, some thought that S.B. 2 didn't address the constitutional issues raised by the Supreme Court.It seems that Senator José Rodríguez shared those concerns. His office released the following:

The June 2012 Supreme Court ruling in Miller v. Alabama held that a life sentence without the possibility of parole for those under 18 is unconstitutional, and that factors such as age, family and home environment, and the circumstances of the homicide offense to include familial and peer pressure ought to be considered when sentencing.

Brain science shows that children under the age of 18 are hard-wired to fail to take the consequences of their actions into account before acting. In addition, in the Miller decision, the Supreme Court indicated that a judge or a jury should also be able to weigh the greater likelihood of a young person to be rehabilitated.

“When the Senate Committee on Criminal Justice considered this bill during the first special session, I expressed serious concerns that the proposed legislation did not fully comport with the requirements of the U.S. Supreme Court's decision,” Rodríguez said. “However, I voted for it because it closed a gap in current state law created by the Miller decision that affected 25 pending cases across the state, including one in my district.

We had time to make the bill better but the Legislature did not do so. In the end, I voted against the bill because I believe it is unnecessarily inflexible and takes discretion out of the hands of Texas judges and juries, who are in the best position to judge the merits of each case.”

Ultimately, Rodríguez's vote against the bill did not change its outcome. S.B. 2 has been passed by the House and Senate, and it is awaiting Governor Rick Perry's signature.

Thoughtful sentencing reform bills in “tough on crime” Texas don't make for the best politics, because they have the potential to become big issues during election season. Senator Rodriguez took a risk by voting against S.B. 2, because it's easy to demagogue on public safety.  So, I commend him for his courage, and I appreciate the thoughtful reasons he presented for voting against the bill.

It will be interesting to see whether Rodríguez files legislation next session to address the concerns he raised about S.B. 2.  

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