Austin — Lawmakers are one step closer to fixing constitutional problems that have left prosecutors without any sentencing options for 17-year-olds convicted of capital murder in Texas.
Gov. Rick Perry  expanded the agenda of the special session to include legislation establishing a mandatory sentence of life with parole for 17-year-olds convicted of capital murder. Prosecutors argue they need lawmakers to quickly address sentencing options for those criminals after the U.S. Supreme Court ruled last year that juveniles could not be sentenced to mandatory life without parole.
In Texas, 17-year-olds have faced the same sentencing options as adults convicted of capital murder: the death penalty and life without parole. In 2005, the Supreme Court prohibited the death penalty for anyone younger than 18, deciding that the less-developed brains of juveniles render them less culpable for their behavior. That left only the possibility of life without parole as punishment for 17-year-olds found guilty of capital crimes.
After last year's Miller v. Alabama  ruling, prosecutors said they were left with no sentencing options for 17-year-old killers.
"We’re talking about capital murder and none of these cases are anything but very, very, very serious," Harris County Assistant District Attorney Lance Long told the House Criminal Jurisprudence Committee on Tuesday.
The Senate approved Senate Bill 23  by state Sen. Joan Huffman , R-Southside Place, last week. The bill would make 17-year-old capital murderers subject to the same mandatory punishment as 14-, 15- and 16-year-olds who are certified to stand trial as adults and convicted of capital murder: a life sentence with parole eligibility after 40 years. But critics of the bill worry that it might not meet constitutional muster because of the length of time before an offender would be eligible for parole and because judges and juries would have no discretion in deciding the sentence.
"You are inviting a successful challenge to the constitutionality," Katherine Maris Mattes, a professor at Tulane University Law School, told the House committee this week.
The U.S. Sentencing Commission considers a life sentence to be 470 months, or about 39 years, because that is the average life expectancy of someone confined to federal prison. If Texas requires youths to remain in prison for 40 years before they are eligible for parole and gives juries and judges no other sentencing option, it would be essentially the same as mandatory life without parole, Mattes said. And that would likely run afoul of the high court's holding in Miller.
"I'd be very concerned that that is not providing a meaningful opportunity for release," Mattes said.
But Long told the committee that whatever solution lawmakers choose it is likely to be challenged by criminal defense attorneys. SB 23, he said, is a simple option that aligns the law for 17-year-old murderers with the law for younger offenders and gets prosecutors the tools they need to handle cases involving young killers. Justice for their victims' families, he said, depends on lawmakers' solution.
"These are real families and these are real lives, and they’ve been sitting here waiting," Long said.
The House took the next step on Friday when it tentatively passed SB 23. But it did so after the chamber adopted an amendment by state Rep. Matt Schaefer , R-Tyler, that opponents of the measure said would also draw the ire of the courts. The amendment would place life without parole back on the table if the judge or jury considered mitigating factors. Shaefer said it’s in line with the Supreme Court’s ruling, and would allow the option of placing people convicted of heinous crimes behind bars for good.
But state Rep. Harold Dutton , D-Houston, said the measure wouldn’t stand up against a court challenge.
“It indirectly allows jurors to do what the court directly said it couldn’t,” he said.
State Rep. Lois Kolkhorst , R-Brenham, carried the bill in the House and conceded that the court’s decision was open to broad interpretation. She left the vote on the amendment to the will of the House, but added she thought that, at least in her interpretation, it was in line with what the Supreme Court wanted.
“It said you cannot give life without parole without the jury having another choice” after hearing mitigating circumstances, she said.
Reporter Julián Aguilar contributed to this report.
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This article originally appeared in The Texas Tribune  at http://www.texastribune.org/2013/06/21/house-debates-sentencing-17-year-old-murderers/ .