Today was a great day for the House of Representatives. Its leaders–and I don’t mean those in positions of power, but rather the unofficial leaders whom the body respects as guardians of the institution and the legislative process and public policy–stepped into a difficult debate over child predators and capital punishment and said Whoa, we need to call time out and be sure of what we are doing here. John Smithee, a career good guy, moved to postpone the debate over Jessica’s Law to Monday because, he felt, the stakes were so high (people’s lives) and the concern of members about the nuances of the law ran so deep that members needed to go home over the weekend, talk to their prosecutors and their children’s advocacy groups, and be sure of what they were doing: “It doesn’t do us any good to pass a bill that gets struck down by the courts.” Dan Gattis went to the back mike to help. Earlier, Will Hartnett had asked questions from the back mike supportive of a Dutton amendment to remove the death penalty from the bill. When Ellen Cohen was struggling with a parliamentary inquiry, Jim Keffer walked up to give her advice. For the first time in a long, long time, there were no party lines.
Linda Harper-Brown didn’t get it. Clueless, she implied that Smithee was really helping to kill the bill. By your third session, you’re supposed to know who is trustworthy and who isn’t, and no one is more straight-up than Smithee. “This is serious business, Linda,” Smithee said. “I have laid awake at night because people died because of votes I cast.” The House voted to postpone by 131-10. At the risk of losing my membership in the Cynical Media club, I can say that the people of Texas can be proud of their House today.
The bill has been problematic from the beginning. Prosecutors and victims groups were worried about a 25-year sentence for first-time offenders. The problem is that many sexual offenses are committed by members of the victim’s families. The families will report the crime if it means that their relative is going to go to prison for a few years. The fear is that they won’t report it if the sentence is 25 years. Sex offenses are not necessarily easy to try. The victim may not be able to comprehend the offense in order to testify. Many cases are disposed of in plea-bargains that remove the perpetrator from society. But no one is going to plea bargain to a 25-year sentence for a violent sexual offense. That was a sufficient concern that sponsor Debbie Riddle adjusted the penalty to 5 to 99 years.
Another problem was the death sentence for a second conviction for rape of a child. Actually, this created two problems. First, as critics pointed out, the law created an incentive for the predator to kill his victim. As Hartnett said, “I get death either way, whether I let her live or not.” Riddle tried to argue that predators are not sophisticated enough to know this, a transparently weak response. She had obviously worked hard on this bill, and cared deeply about it, but she wasn’t up to debating the legal issues. What apparently impelled Smithee to make his motion to postpone was Riddle’s motion to table an amendment without offering any argument against it.
The second problem with the death penalty was its constitutionality. In 1977, in Coker v. Georgia, the U.S. Supreme Court ruled that capital punishment was a disproportionate sentence for rape and therefore violated the Eighth Amendment’s prohibition of cruel and unusual punishments. Nevertheless, five states have made sexual assault of a child a capital offense: Georgia, Florida, Louisiana, Oklahoma, and Montana. Only one case has resulted in a death sentence, in Louisiana. That state’s Supreme Court found the statute constitutional, distinguishing the case from Coker on the grounds that the latter dealt with rape of an adult victim, and sexual assault of a child was a more heinous offense that justified the death penalty. This is a questionable ruling that awaits scrutiny by the federal courts. Generally, and in Texas, capital punishment applies only to murder, and only then when the murder occurs in specific circumstances, such as during the commission of a felony, or when the victim falls into a protected class, such as a peace officer or a child under the age of six. According to testimony in the Criminal Jurisprudence Committee on Riddle’s bill, however, federal law allows the death penalty for treason, espionage, and trafficking in large quantities of drugs.
We cannot know how the Supreme Court will rule. However, testimony in committee by a Fort Worth prosecutor who spoke in support of the bill indicated that the Supreme Court in recent years has been narrowing, rather than expanding, the application of the death penalty. It has held that it may not be applied to offenders under 18 years of age, or to the mentally retarded, or to the mentally ill, or if there are mitigating circumstances. More significantly, the prosecutor testified that the death penalty “really doesn’t help me” for practical reasons. Death penalty cases require a high quality of evidence and the absence of mitigating evidence. They are difficult and expensive to try and may involve years of appeals, and it is much easier to seek a life sentence without parole. “I have tried hundreds of cases,” the prosecutor said, and I can’t think of a case where I would have used it.” A UT law professor testified that the Supreme Court looks for a broad national consensus in death penalty cases, which does not exist at this time in sexual assault cases. Like the prosecutor, the professor did not speak in opposition to the bill.
The bill will surely pass the House on Monday, but only after it has received the scrutiny it should have received in committee. Criminal Jurisprudence has every appearance of being a talent-poor committee. This bill was rushed to the floor. Smithee, Hartnett, et al are going to need to keep a close eye on the committee’s work for the rest of the session.