Probation for Murder?
posted by Daniel Solove
Texas is typically notorious for being a “hang em” state, where the death penalty is about as easy to get as junk mail. But the Dallas Morning News reports on an interesting study:
Probation? For murder? In Texas?
The idea seemed so strange that a Houston lawyer in the Legislature this year promised colleagues free meals if they showed him one case prosecutors had approved in his city.
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.
As The Dallas Morning News has shown this week, it is not only legal, it happened at least 120 times in Texas from 2000 through 2006.
Dallas County led the state, by far, in granting probation for murder. It returned at least 47 killers to the streets, more than double the number the county sent to death row.
Wow — 120 cases where a murderer got probation in a seven-year period. Many of these cases involved plea bargains, but some involved sentences at trial.
This article is Part V of a series of articles examining sentencing and plea bargaining in Texas. For the entire series, click here.
From the first article in the series:
The News began investigating the probation-for-murder phenomenon last year after writing about John Alexander Wood, who was charged with murder for shooting an unarmed prostitute in the back. He claimed that he was merely trying to scare the victim and shot him accidentally.
Mr. Wood came from a politically prominent family, and his character witnesses included the pastor of First Baptist Church in Dallas. The victim was poor and had no grieving relatives in court.
As jurors struggled to decide whether to convict him, Mr. Wood pleaded guilty to murder in exchange for probation. He went on to violate the terms of his probation repeatedly but avoided prison nonetheless.
Was the case a fluke? Or did it reflect larger patterns?
No one in the United States had researched systematically who gets probation for murder and why. So reporters analyzed thousands of government records, including some from confidential criminal files. They interviewed more than 200 people, including police, prosecutors, defense lawyers, judges, probation workers, victims’ families and the killers themselves. (The News’ study excluded capital murder cases, for which probation is not permitted, and unintentional forms of homicide, such as manslaughter.)
Dallas County, it turned out, granted probation for murder far more frequently than Texas’ other large, urban counties – more than twice the rate in Harris County, home to Houston, and more than three times the rate in Tarrant County.
Bill Hill, the Dallas County district attorney until the end of 2006, could not explain the county’s high rate of probation-for-murder sentences. “It surprised me,” he said, especially in light of the local justice system’s “hang ‘em high” reputation.
Here are some more interesting facts about the study:
Most of the murderers in The News’ study were minorities who killed minorities. That racial pattern is typical of killings overall in Dallas, where most of the probation-for-murder cases occurred.
About half of the defendants in the study were poor enough to qualify for court-appointed lawyers.
Most of the victims had something in common with Mr. Wood’s victim. They had few advocates, and their deaths attracted little news coverage. They had done something unsavory, perhaps, or they had contributed in some way to a confrontation.
In short, there was a way to make them seem unsympathetic.
Sympathy matters because Texas, unlike most states, lets juries determine sentences. That’s a recipe for extreme disparity because each group of 12 people starts from scratch – and most have no experience putting a price tag on human life, no legal background beyond watching Law & Order.
Photo credit: Falaschini