Death Penalty 

It’s time for Texas to pause 

Dallas Morning News Editorial Board 04/22/2001 

The process takes no more than seven minutes. 

The death-bound prisoner, strapped on a gurney, is already hooked to an intravenous feed of saline solution. Upon the warden’s signal, the executioner plunges into the tube a lethal dose of sodium thiopental to sedate the prisoner. This is followed by a muscle relaxant so that involuntary body functions cease, collapsing the diaphragm and lungs. The only sound is the prisoner’s one or two snorts as air rushes to equalize pressure in the chest cavity. Potassium chloride is then added to stop the prisoner’s heart. Then everyone waits, and a doctor is admitted to pronounce the prisoner dead. 

State executions are less grotesque than in the days when electricity was used to shock the life out of convicts, but they still are a gruesome business. Nonetheless, last year Texas found it necessary to take the lives of 39 men and one woman because they took many more than 40 lives in more brutal ways. 

But what if the state was wrong? Texas has executed 245 people since the death penalty was reinstated in 1976; 449 await execution. What if one, two, three, pick a number, did not commit the crimes alleged? 

Some argue the fact that dozens of people have been moved off Texas death row over the years proves the system of safeguards works. 

However, The Dallas Morning News believes the contrary – the close calls make one wonder how many got called right. Texas leaders are beginning to admit the system’s faults. The governor this month signed a bill expediting DNA testing to clarify culpability. The Legislature looks likely to pass a proposal to improve the quality of indigent defense. The attorney general this year confessed state error in allowing a psychologist to use race as a factor in death sentencing hearings. 

Correcting these admitted wrongs may improve the judicial system in the future. But these actions won’t redress all avenues of possible error. And they will only reduce the chance of future error; they will not remedy all past wrongs. 

That’s why Texas needs to pause in its administration of the death penalty and take a larger look at its justice system. Measures making their way through the Legislature would allow Texans to vote for a moratorium on the death penalty while a commission on capital punishment investigates and evaluates the fairness of the death penalty’s implementation. 

The system needs evaluation. Consider the recent testimony of Houston lawyer Scott Atlas before the committee. 

Mr. Atlas and nearly a dozen other lawyers at the Vinson & Elkins firm spent $2.5 million of their time to investigate the case of death row inmate Ricardo Aldape Guerra. The illegal alien, who had no previous arrests, claimed innocence in the 1982 killing of a Houston police officer. The team was able to find alleged eyewitnesses and to obtain evidence about bullet trajectories that proved not only Mr. Aldape Guerra’s innocence but also strong police and prosecutor misconduct in coercing false witness testimony. 

Defendants without the pro bono services of a major law firm or the money to spend on quality defense have little hope of being saved from false charges. As a result, the poor – typically minorities – populate death row. 

That’s one of the issues being considered by a commission studying the death penalty in Illinois, where last year GOP Gov. George Ryan ordered a moratorium on executions. The commission appointed by the governor includes defense and prosecuting lawyers, judges, death penalty opponents and some nonlawyers. 

Illinois Deputy Gov. Matt Bettenhausen says that public hearings have highlighted the whole issue of fairness, including disparities in charges and sentencing based on wealth as well as race. 

“You can have like cases with similar facts and one will get 40 years and another will get death,” Mr. Bettenhausen states. He notes that two-thirds of the 160 Illinois death row inmates are African-American. 

The commission also has met frequently as a working group to consider errors in cases and ways to correct them. No date is set for a final report. 

The legislation being considered in Texas would require a completed review of the state judicial system by the next legislative session. This would allow some assessment of any reforms enacted this year and consideration of other reforms, such as barring the appointment of defense lawyers with state bar disciplinary problems and creating stricter procedures for use of jailhouse informant testimony. It also would allow a determination of whether the death penalty has been applied discriminatorily and whether the process for reviewing claims is fair. In Texas, 42 percent of the death row inmates are black and 22 percent are Hispanic. 

The moratorium on executions would start only if voters approved it in a referendum this November. It would expire by September 2003. 

What redress could a moratorium achieve? 

The state would not be forced to retry the outstanding death penalty cases. However, the commission might recommend that the Legislature determine the need for an independent review of cases where new evidence warrants consideration, especially given that the Texas Court of Criminal Appeals rarely grants claims of new evidence. 

Our state leaders and citizens should support a study commission and moratorium on executions. The cost of postponing those very final seven minutes for some prisoners would not be great, but the potential savings to the Texas conscience could be. 

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