Angelica Garcia received 40 years in a double fatal DWI crash. Facebook posters complained she didn’t get life.
Michael Breeding received 10 years for indecency with a child. Facebook posters called it a slap on the hand. Some noted drug users have gotten more time.
Former Ector County District Attorney Bobby Bland said he doesn’t miss the job he had for 15 years and one of the biggest reasons why was the criticism that was part and parcel of the position.
“A friend of mine said being a district attorney is the process of slowly alienating all of your electorate, because people get mad for who you prosecute and how you prosecute,” Bland said. “Eventually, people are going to have someone they like get prosecuted by you and/or they’re going to know someone that is a victim and they’re not going to like the results.”
People just naturally have an emotional reaction to sentences, but they don’t necessarily realize all of the factors that lead to sentences, local attorneys agree.
Whether someone enters a plea agreement or is convicted at trial, they can’t receive a sentence that is outside the range dictated by state lawmakers. For example, someone convicted of a Class 2 Felony, such as intoxication manslaughter, like Garcia, can only receive a sentence from two to 20 years in prison per count.
When it comes to plea agreements, prosecutors are still required to remain in the appropriate range. However, prosecutors have a multitude of factors they look at when determining where within the range they’d like to land.
If prosecutors only have uncooperative witnesses, they’re more likely to offer a plea agreement, Ector County District Attorney Dusty Gallivan said. Other times, pleas are offered if witnesses can’t be located or if the case is weak for some other reason, he said.
“It could be, in a child case, the child is young and we don’t want to put them on the stand and put them through direct or cross examination, have them actually have to sit there and look at the person who hurt them. I mean, that’s worth a lot. That’s a lot of trauma for a kid to go through if they’ve never been a witness,” Gallivan said.
Prosecutors also rely on history when working out plea agreements, Gallivan said.
“We’ve been doing this for a while. We have an understanding of what a jury might do in a lot of cases so we try to fit our offers within that range for judicial economy,” Gallivan said. “Yeah, we could go for life on every (Class 1 felony) case, but a jury is not going to give life on every case. So why waste their time? Why waste our time?”
Prosecuting cases isn’t about racking up convictions, Gallivan said.
“It’s to see justice is done. So we try to take into account all the circumstances of the case. From a victim’s standpoint, from the defendant’s standpoint, the strength of the evidence, etc. A good plea effort makes nobody happy. We’re not happy because we wanted to go to trial and maybe get more, they’re not happy because they think they could have had less. But it’s an agreement to mitigate the risk,” Gallivan said.
Bland, who is now a criminal defense attorney, agreed.
“You try to get the best results and usually that means both sides are a little unhappy,” Bland said.
When he was the DA, Bland said he stopped looking at social media comments and advised his attorneys to do the same.
“I don’t look at the comments because, they’ll say ‘Oh, yeah, they’ll put people away for drugs but not child molesters’ and if you put a child molester away for life, they’ll say, ‘Yeah, but not in our case.’ If you put a murderer away they go ‘Yeah, but you won’t do it for child molester.’ Again, everybody reacts based on their personal circumstances,” Bland said.
What makes Texas unusual is that it is only one of a handful of states that allows defendants who go to trial to choose who will impose their sentence, a jury or the judge. Most states opt to have judges impose sentences, arguing that when judges impose sentences they tend to be proportionate to the crimes they committed and there’s more uniformity when defendants in similar cases are compared.
Kentucky, Arkansas, Missouri and Oklahoma have similar sentencing practices to Texas, but two years ago, Virginia joined all of the other states in allowing judges to make those decisions.
According to an Associated Press story, legislators changed the 224-year-law after a fierce debate. Supporters of the change said giving judges the sentencing responsibility would result in fairer sentences, but prosecutors predicted it would result in more jury trials and therefore require additional judges, court clerks and public defenders.
Gallivan is just fine with the way Texas does things and hasn’t heard any rumblings about changing things.
He doesn’t subscribe to the idea that jurors are more likely to allow anger to influence their sentencing decision, after all, he said, judges are people, too.
“I think if we switched to letting the judges do it at their discretion, you’d probably end up with higher sentences, which I, personally, am not opposed to,” Gallivan said. “But, I personally like the idea of the community setting the punishment because that gives us an idea of how they think about certain cases when we’re working on plea agreements. It’s nice to know what the community thinks of certain cases because, believe it or not, we get similar fact patterns over and over again.”
Gallivan said some of his attorneys opt not to recommend specific sentences during the sentencing phase of trials, others always name a number. You can count on him to ask for the highest sentence possible.
“My general philosophy is if we go to trial, and we get to that point in the trial, I’m going to ask for the max because the defendant had an opportunity to take responsibility, get less and they didn’t. Now a jury obviously may disagree,” Gallivan said.
Bland, too, likes Texas sentencing structure.
“I love being in a state where the defendant gets to choose whether their peers do it or the judge does….I think it’s important to let citizens have a voice in the sentence and obviously it gives the defendants options on how they’re going to proceed,” Bland said.
Another former Ector County District Attorney, Mike Holmes, said every case is different and so his advice when it comes to sentencing varies.
“It depends on the judge. There are some cases that I definitely think should go before a jury, as a defense lawyer. My problem with sentencing is that I think they are too harsh in this state on average, but I don’t blame jurors for that, I blame the system,” Holmes said.
In Texas, prosecutors can ask for enhanced sentences for habitual offenders and often do, even when the third offense is for a relatively minor crime, Holmes said.
“I look at other countries and I look at other states and our sentences are far harsher. Then, of course, some people like that. Unless it’s their son or daughter,” Holmes said. “Over the last several months there have been a pretty wide difference in jury verdicts on similar cases…I do like jurors as a general rule, but I think the sentences in Texas are too harsh.”
Defense attorney Michael McLeaish said one of the problems with the existing sentencing laws is that jurors don’t have all of the facts when making their sentencing decision. Specifically, jurors are not told that judges have the option of making their sentences run consecutively, which is what happened in the Garcia case. As a result, jurors may think a defendant is going to get one sentence, but they end up getting double.
And, most judges are likely to stack the sentences, he said.
“Judges are elected and they are aware of the public’s perception that harsh sentences should be imposed,” McLeaish said. “They’re not going to be handing out lenient sentences because some lawyer is going to pick up on it and use it when they’re running against them.”
McLeaish remembers being fired by a client facing 25 counts of child pornography because he recommended he accept a plea agreement offered by the state. The defendant went to trial, was convicted on all 25 charges and sentenced to seven years on each count. The judge ran them consecutively, so he was sentenced to 175 years in prison. McLeaish is convinced the judge, left to make the decision by himself, would have given him the maximum sentence of 10 years on each count and stacked them for a total of 250 years.
He’d like the law to be changed so that either jurors can be told judges have the option of imposing sentences concurrently or consecutively. Or, alternatively, he’d like jurors to be given the ability to recommend concurrent or consecutive sentences.
In some cases, defendants are given sentences where they’d have to die and be resurrected to complete them, McLeaish said.
There are pros and cons to both allowing jurors to impose sentences or judges, the attorneys all agreed.
Asking jurors for leniency when you’ve just gotten done arguing they’re not guilty of the crime, is a “difficult pivot,” Bland said.
“You have to try your best to change gears appropriately. I’ve seen defense attorneys get angry at jurors and it doesn’t always go so well,” Bland said.
When deciding what evidence to put on during the sentencing phase, defense attorneys have to consider what went on during deliberations. How quickly did the jury come back? What questions did they ask? Were there any obvious divisions within the jury? Bland said.
Providing jurors with mitigating evidence is important, but attorneys have to be careful not to alienate the jurors, the defense attorneys agreed.
Although there have been a few exceptions, Gallivan said it’s been at least 20 years since Texas has overhauled its sentencing guidelines. In one exception, lawmakers agreed to enhance assault of a pregnant woman to a felony.
In recent years, there have been complaints that intoxication manslaughter and certain other vehicular death cases are only second-degree felonies punishable by two to 20 years, Gallivan said.
“We can’t change that. By law, that’s what it is. If people think it’s too low, they need to ask their legislators to change it,” Gallivan said. “If it’s multiple people, or if there are certain other facts, you should be able to upgrade it to a first degree. Same thing with racing if they kill somebody. Obviously we see a lot of those.”
