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July 8, 2009

In praise of Texas justice (and shame on the press and public policy activists) on juve LWOP

Thanks to a comment to this post, Scott of Grits for Breakfast informed me that "Texas abolished life without parole for juveniles this year legislatively. The Governor signed it.  It's now a 40-year minimum for juveniles convicted of capital murder in TX.  Here's the legislation."  In addition to being quite pleased and impressed that Texas passed legislation to reduce sentences for certain juvenile killers, I was troubled that I had completely missed this interesting and important story about a change to Texas justice.

I then spent some time this morning looking for press reports about this new legislation and/or materials about this notable Texas reform from various public policy groups that focus on juvenile justice issues.  Disappointingly and aggravatingly, I could not find ANY significant media coverage or materials from public policy groups about this reform to Texas justice.  (Grits had a few helpful posts on bill here and here and here, but these posts only confirmed my sense that this Texas story deserves a lot more attention.)

The troublesome silence about the Texas reform is especially notable because many folks are now focused on juve LWOP issues because of the Supreme Court's decision to consider the constitutionality of two non-murder) juve LWOP cases from Florida.  And, as death penalty fans know, state legislative developments are central to the Supreme Court's modern Eighth Amendment jurisprudence.  I sure hope that folks writing briefs in the SCOTUS cases of Graham and Sullivan are aware of this recent important reform in Texas justice even though it has been overlooked and ignored by the media and public policy groups.

Because I am eager to know a lot more about this Texas reform to severe juve sentencing, I hope anyone and everyone with additional information and/or materials concerning this legislative change will send stuff my way (or provide links in the comments to this post).

July 8, 2009 at 10:18 AM | Permalink


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Thanks for the blog love, Doug, even if you don't consider Grits posts "significant" coverage. ;) Here's the backstory:

After Roper v Simmons, when Texas had to eliminate its death sentence for juveniles convicted of capital murder, prosecutors agreed to create an LWOP option that applied in capital cases to either adults or juveniles. The main player among DA's offices spearheading the compromise (they'd opposed the LWOP option for years, fearing it would reduce the number of death sentences) was then-Harris County DA Chuck Rosenthal who wanted a real LWOP option for juveniles in Roper's wake.

Alas, the Fates took an unhappy view of Mr. Rosenthal's political career and between that time and this session, he was hounded out of office after admitting to drug addiction and an extramarital affair with his secretary in a painful episode that reminds one in retrospect of Gov. Sanford's too-much publicized mea culpa. He was replaced by a more moderate Republican.

Meanwhile, as described in this post, one of the most vocal lock-em-up DAs from a suburban county outside of Austin stepped forward at the committee hearing this spring (saying he'd actually come to speak on another bill) and said he thought 40 years was completely reasonable. There was no other public opposition and from that point on the thing just sailed through all the way to the Governor's desk. It was like watching a dam break open.

Texas saw quite a bit of good criminal justice legislation pass this year, and more would have gotten through if it weren't for a massive partisan meltdown at the end.

Posted by: Gritsforbreakfast | Jul 8, 2009 11:16:54 AM

Looking back at the witness list, I should clarify that the Harris DA still officially opposed the bill when it came up first in the Senate, but they notably did not speak against it in the House and my sense was they'd backed off. In any event, it was definitely my impression the lack of strong DA opposition combined with unlikely support from a typically-tuff DA was what made the bill sail through. That seemed to be the interest group whose support was most critical for passage.

Posted by: Gritsforbreakfast | Jul 8, 2009 11:44:44 AM

Although I continue to have major problems with Grits for his attribution to me of reprehensible beliefs I do not have and he could not reasonably believe I have, I am constrained to agree with his conclusion here.

I think rehabilitation is for the most part baloney, but there is more to be said for the possibility of authentic rehabilitation when the defendant is 17 or younger. In addition, 40 years is a very, very long time. To categorically pretermit the possibility that a teenage defendant could be worthy of parole when he's approaching 60 strikes me as an extremist position. This does not mean parole would be automatic, but I think that refusing to give him even the chance to show he's earned it goes too far.

So as a policy matter, the Texas legislation seems wise.

This is not at all to say that as a CONSTITUTIONAL matter, juvenile LWOP is impermissible. While I'm not going to analyse the Eighth Amendment case in this post, I will say that the kind of analysis the defense would like the Court to employ historically has been reserved only for death sentences. To cross the line into applying that analysis to terms of imprisonment would invite what is in my view excessive judicial intervention into value judgments properly -- and until now, exclusively -- left to the legislative branch.

Posted by: Bill Otis | Jul 8, 2009 4:26:03 PM

In 123D, these problems are solved. Repeat offenses make the decision automatic decreasing effect of bias. A false third conviction is less important given the first two. The taxpayer does not pay for health care of old age. No prison crowding. No misconduct in prison. Less cruel than prison. Less cruel than average death. Thousands of crimes prevented by absence of criminal, assuming no deterrence. Real massive deterrence from certainty of counting to three.

Problem not solved: 90% fewer lawyer jobs in criminal law.

Posted by: Supremacy Claus | Jul 9, 2009 4:29:09 AM

You know, Doug, it hadn't even dawned on me about the lack of media coverage, but after scouting around for stories myself, you're right, and also about the advocates, too. The only item I found mitigating that critique was written testimony on the Texas Criminal Justice Coalition's website (see here).

I don't know what explains that lack of media and advocacy focus. Maybe it fell off the pro and con DP groups' radar after Roper and, other than TCJC (which is a Texas-state level group without a national presence - well-respected here, but no reason you'd know about them), nobody picked up the ball. But for state Sen. Juan "Chuy" Hinojosa it was a legislative priority, and FWIW, Grits readers knew about it. :)

Posted by: Gritsforbreakfast | Jul 9, 2009 8:24:14 AM

The reason why there is no press is because if the average voter in Texas finds out this has happened they'll not only demand repeal, they'll demand the death penalty, dern Supreme Court be damned!

Posted by: Dweedle | Jul 9, 2009 1:44:59 PM

No outrage for this hate crime, here.


Posted by: Supremacy Claus | Jul 9, 2009 6:41:11 PM

Hello Professor Berman - thanks for this. I picked it up on a Google Alert.

I edit a blog for Reclaiming Futures, a national initiative of the Robert Wood Johnson Foundation designed to improve alcohol and drug treatment outcomes for youth in the justice system. While LWOP isn't really within our usual bailiwick, I do sometimes post links to stories about it in our Friday news roundup posts, and I hadn't seen anything either.

I've let the Campaign for Youth Justice know about it, as this news is central to their mission.

Posted by: Benjamin Chambers | Jul 9, 2009 10:34:13 PM

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