I mentioned here that a Texas jury could, when setting punishment, make a binding recommendation of probation in almost any case in which (a) the the sentence was ten years or less and (b) the accused had not been convicted of a felony or placed on felony probation before. This was true even in murder cases.
There are some cases in which a person can commit murder and reasonably be placed on probation. In jury selection on murder cases, prosecutors often gave the example of the elderly man giving his ailing wife too much morphine to end her pain. That’s a rare situation; more common is the case in which the accused had just enough of a part in the killing to be liable under the law of parties, but didn’t participate directly. Here is one such case from six weeks ago, in which the jury found probation appropriate.
Juries could, after considering all of the circumstances, decide whether the murderer deserved life in prison or probation or (most often) something in between; that decision was entirely up to them. They didn’t do it often, but only when the accused was very deserving. I know of no problems with that system. I never heard of a single person on probation for murder reoffending; there was certainly not an epidemic of such recidivism.
But the Texas Legislature decided that jury-recommended probation for murder was a problem that needed solving. They passed a package of “probation reform” in Texas House Bill 1678 (PDF), and as of September 1, 2007, juries will be no longer have the power to recommend probation for people convicted of murder.
“Feh,” I hear my east coast brethren saying, “so what? Our juries don’t even have the power to set punishment. Recommend probation? For a murderer? Fuhgeddaboutit!”
I like murder cases. There is no type of case I would rather defend, partly because there is so much at stake, partly because the State is throwing its best at me, and partly because there are so many possible ways to win. Taking away the jury’s power to put one of my clients on probation if it convicts him narrows the field of satisfactory results considerably. Not only can the jury not put my client on probation, but the narrowed range will create psychological pressure on the jury to give a higher sentence.
But the big “so what” is this: the jury is a check on governmental power. Now, thanks to the Texas Legislature, Texas juries have less power. Less power for the jury means more power for the government. And, as you know, more power for the government means less freedom for the people.[Edit: the law change applies only to murders committed after September 1, 2007. So. . .]