More than 20 people were killed and two dozen more injured after a shooting at a shopping center in El Paso, Texas. The shooter has been identified as Patrick Crusius, a 21-year-old from Allen, Texas. Crusius is believed to have posted a white nationalist manifesto on 8chan 20 minutes prior to the shooting. The manifesto blames immigrants and first-generation Americans for taking jobs. The question many have now is whether Patrick Crusius will get the needle for his acts. This article explores the possibility in the state and federal system.
A person who intentionally or knowingly kills more than one individual during a single course of criminal conduct is guilty of capital murder. A person facing capital murder charges may face the death penalty. The State (meaning the local district attorney) will decide as to whether prosecutors will seek the death penalty. In this case, El Paso County District Attorney Jamie Esparza has already announced plans to see the death penalty.
When the State seeks the death penalty, and the individual is found guilty, a jury will decide whether or not to impose the death penalty. Only a jury can render a verdict of death.
Chapter 411.046 of the Texas Government Code defines hate crimes for reporting purposes in Texas. A hate crime is one that is motivated by prejudice, hatred, or advocacy of violence. That finding does not impact sentencing. For limited offenses, the Code of Criminal Procedure provides for an enhancement of one level if an offense was committed “because of the defendant’s bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference or by status as a peace officer or judge.”
There’s no sentencing enhancement in the state system for capital murder based on the offense qualifying as a hate crime. Article 42.014, Code of Criminal Procedure does not allow for a sentencing enhancement other than for arson, graffiti, or criminal mischief.
Federally, this offense could be prosecuted as a hate crime. 18 USC 249 is the federal Hate Crime statute. 18 USC 249 (a)(1) covers willfully causing bodily injury or death “because of the actual or perceived race, color, religion, or national origin” of the victim(s). The federal murder statute, covered in 18 USC 1111, occurs when a person possesses malice aforethought and unlawfully kills victims with a firearm. A person convicted of first-degree murder can receive the death penalty. In capital cases, the decision to seek the death penalty rests with the Attorney General. 18 USC 3591 sets forth instances when a person can be sentenced to death in the federal system.
Federal prosecutors rarely seek the death penalty, but they did seek it – and received it – for Dylann S. Roof, the white supremacist who shot and killed nine African-American churchgoers in 2015.
In the Crusius case, federal prosecutors have said that they are exploring hate-crimes and domestic terror charges that are death penalty eligible in the federal system.
Many already wonder if Crusius will be able to avoid a capital sentence by claiming he was insane.
Insanity is a very difficult defense to raise successfully in Texas. “The insanity defense and the requirements to raise the defense is codified in Texas Penal Code Section 8.01.(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.(b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”
In the federal system, insanity can be raised the defendant as an affirmative defense that the defense would have to prove by a preponderance of evidence pursuant to 18 USC 17. The defendant would have to prove a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.
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