Probation for Murder: Justice Served or Excessive Prosecutorial Discretion?

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2 Responses

  1. SHG says:

    Dan, just wanted to note that this piece came from a terrific series of posts by Houston Criminal Defense Lawyer Mark Bennett at his blawg, Defending People.

    http://www.bennettandbennett.com/blog/2007/11/texas-murder-sentences-probation-to.html

  2. Thanks for the blogversation, Daniel! And Scott’s right to give Mark Bennett big ups.

    While I realize the Gabriel case was pled out by a prosecutor, the ADA did so because he believed it was “unlikely jurors would sentence his killer to prison.” From the broad outlines presented by the News, IMO he was probably correct. So (as my pal Shannon Edmonds at the Texas prosecutors association would vociferously argue), norms set by juries over time influenced the case, even if this particular one didn’t go all the way to verdict in front of 12 people.

    That said, Texas law intentionally gives DAs massive discretion, for good or ill. A first degree felony like murder has a baseline 5-99 year sentence, and for all but certain sex offenses, probation can be granted.

    About 97% of criminal adjudications in TX are plea bargains, and the baseline sentences for the rest are really set differently county to county depending on the politicians in charge. The drug salesman who gets 6 years in Austin might get 99 in Midland or Wichita Falls. None of that has changed in big picture for a long time, and I’ll guaran-damn-tee we’re not moving to a Sentencing Commission model anytime soon with all the elected DAs and judges vying for headlines – perhaps because they’re elected pols, they guard their turf a lot more ably than the federal bunch has done. best,