Probation for Murder: Justice Served or Excessive Prosecutorial Discretion?
posted by Daniel Solove
A few days ago, I blogged about a series of articles in the Dallas Morning News about the many instances where murderers received probation in Texas. Over at Grits For Breakfast, Scott Henson has a provocative argument that probation isn’t always inappropriate for murder:
As I wrote in a “first impression” about the series, it’s possible to:
identify several recurring situations where murderers frequently received probation: a) Prosecutors had weak or circumstantial cases and the defendant may not have done it, b) the defendant was guilty via the “law of parties” but didn’t actually kill anyone themselves, c) the defendant was elderly, sick or incapacitated to the point where they were no longer a threat, and d) the victim was a worse person than the murderer and basically “needed killin’,” so juries sympathized and gave the defendant another chance.
While Dallas News columnist Gromer Jeffers identifies what’s wrong with reason A for granting probation in murder cases, who thinks reasons B, C, or D are not sometimes justified? Following Bennett’s lead, let’s think more closely about category D, in particular, the ones whose victims “needed killin’.” Consider the case of Synnissa Gabriel who murdered Hosia Abdallah, her estranged boyfriend:
She told police in 2005 that Mr. Abdallah had stalked her and vandalized her home, in violation of a protective order. Then she tracked him down and shot him several times.
Heath Hyde, who prosecuted the case, said he offered a deal because the victim had a long history of violence against women. That made it unlikely jurors would sentence his killer to prison, he said. Defense attorney Nancy Ohan described her client as “the classic case of the battered woman … there was a definite mental break.”
So a battered woman who continued to be stalked and harassed in violation of a protective order finally took matters into her own hands and gunned down her assailant. Why’d she get probation? Because prosecutors believed jurors would conclude the victim “needed killin’” – in other words, that justice had been served by the defendants’ actions. It may not be true under the law, but in the gray-area balancing act jurors do in their own minds while making life or death decisions, it’s true in point of fact.
In some other cases, defendants had possibly viable self-defense claims or otherwise could credibly portray themselves to a jury as protecting themselves. Not all the cases find a sympathetic killer and a much-scarier victim, but when they do, is it wrong for a jury to sympathize with the defendant?
Isn’t that what juries are about, letting members of the public come to their own conclusions about what constitutes justice?
Is this just the jury system at work? Or is it evidence that prosecutors have too much discretion? Even accepting Scott’s argument that juries are about letting the public come to its own conclusions about justice, the Synnissa Gabriel case didn’t involve the public making the decision — instead, the prosecutor decided. I’m not opining on the merits of Gabriel’s case, but I will note that I am sympathetic to the battered woman’s syndrome defense. That said, however, the immense power of the prosecutor in this case — to offer a plea for probation for what would ordinarily be a first degree murder — takes the matter out of the hands of juries and the courts, as well as sidesteps the criminal statutes that the state has passed through its elected officials. Plea bargaining is a necessary evil in the criminal justice system — without it the system would probably collapse — but it has gotten out of hand, giving prosecutors such an immense power and making the criminal justice system not one about statutes, or about courts, or about juries — it’s about prosecutors and their astounding discretion.
In the end, regardless of whether justice may have been served in Gabriel’s case with probation, it is the process that makes me very uneasy.
Photo credit: Falaschini
November 21, 2007 at 1:23 pm
Posted in: Capital Punishment, Criminal Law, Criminal Procedure
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Responses (2)
SHG - November 21, 2007 at 2:27 pm
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
Gritsforbreakfast - November 21, 2007 at 2:37 pm
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,
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