This is the first bill I have ever seen that seeks to prohibit plea bargaining: HB 416.
Can it be done?
Doesn't 12.42(c)(2) also effectively deny the prosecutor the right to plea bargain? Instead, of course, you charge bargain, or just fail to prove the date the offender was arrested (under the proposed statute in question). To answer your question, yes, I think the legislature can impose a mandatory sentencing provision. Whether it is wise is another issue.
Passing a mandatory sentencing law is not the same as prohibiting plea bargaining. This bill says that a prosecutor may not fail to enhance and sentence under the law. How can that be enforced?
If a prosecutor has no other power, it is is the power to decide how to charge a defendant. That is the core power. For the legislature to prohibit it is a violation of the separation of powers.
And how, exactly, would the Leg propose enforcing this provision? If a prosecutor, through plea bargaining, declines to recommend the enhancing sentence and a judge accepts the recommendation, who would complain?
Okay, this one has me scratching my head . . .
Wait a second here...this doesn't cut it for another reason. Note that the punishment is enhanced for every year the guy is not arrested. so, if we the state just dog it for a couple years, we can enhance him right up and out of probation eligibility and into habitual ranges.
So, a punishment range that has nothing to do with the conduct of the defendant. Anyone think that is a little problem?
Well, you might argue it discourages fugitivism . . . is that a word . . . but you could make the opposite argument, too . . . looks like another solution without a real problem
OK, Rob, although the increased punishment does seem to be affected by conduct of the defendant (in the case of a fugitive), I readily agree that the conduct is post-offense and thus should probably be the subject of a separate statute. The date of a murder offense is often in doubt, so the statute could not be applied equally or fairly (a single day of absence could mean a lot). Plus there are all those cases that say you must be informed of the penalty for your conduct ahead of time. E.g., Milligan, 859 S.W.2d at 119.
Query:Could the state penalize fugitivism in a properly crafted statute (for murder or any other offense)?
Shoot, as long as we are writing new laws, how about adding on a year to a probationer's sentence for every year he is an absconder?
I'm curious to know the horror story that caused this to be filed; and who wrote this. If it passed as written, I don't think it could be enforced anyway. It first says that the term is bumped by 5 years for each fugitive year when the guy is sentenced for the murder. THEN it says that the enhancement runs consecutively with the murder sentence. We are talking about one sentence here, aren't we? How can it run consecutively with itself. I think what they were trying to say is that the minimun punishment range is increased by five years for each fugitive year but the last part of this thing makes it unintelligible.
Note that the bill refers to the time between the offense and the date of arrest, not necessarily the time during which the defendant was a fugitive. While I recognize that sentencing provisions only apply to the guilty, does it trouble anyone that a person may not realize that they will eventually become the suspect in a murder case that remains unsolved for several years, and find himself facing a much higher minimum sentence that he would have had he been charged closer in time to the crime? Even if the State is not intentionally creating the situation, as in Rob's scenario, what if the case just takes that long to solve?
I agree that this bill looks like a really bad idea as written. It could at least be partially "fixed" by making the "enhancement" apply from the date of arrest or indictment, minimizing the effect of a long investigation. Also, wouldn't this create at least a potential problem with charging "on or about..." - especially in close cases where the dates are slightly more or less than a number of years apart? What a nightmare when we get a post-conviction DNA that exonerates the convicted defendant (say 10 years after conviction), AND the DNA matches a known sample (TDCJ inmate at some time, sex offender, whatever). So we prosecute the "new" defendant - who now has a minimum sentence of 50+ years, and we can't plea bargain it?!?!
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