As courts consider death penalty questions, other states stopping
By ED TIMMS / The Dallas Morning News
Texas’ bigger-than-life ethos is sometimes more brag than fact, but one
distinction is apparent: No other state has executed more inmates this year.
So far, 28 offenders have been put to death nationwide, 12 in Texas. And
Texas accounts for all but two of the 15 executions scheduled in the United
States through mid-September.
Because of legal complications and angst over how the death penalty is
administered, several other states that until recently executed offenders
have stopped – at least for the present.
Several factors contribute to Texas’ sobering record.
Those include a political climate in which the penalty is not a liability,
as well as state and federal appeals courts that are not hostile to the
Texas Gov. Rick Perry repeatedly has voiced his support for the death
penalty, vetoed a bill last year that would have barred the execution of
mentally retarded offenders and opposes a moratorium on executions.
Such sentiments are not uncommon among political leaders in the states where
most executions are carried out.
“You have a lot of states outside the South with very large death row
populations and no executions,” said University of Texas law professor
Jordan Steiker, an authority on capital punishment who once served as a law
clerk law clerk to Supreme Court Justice Thurgood Marshall. “Outside the
South and the border states, there simply hasn’t been the same political
Some critics claim that the Texas Court of Criminal Appeals, the state’s
highest criminal court, repeatedly has turned a blind eye to serious
shortcomings in how capital cases are tried. Similar charges are leveled
against the 5th U.S. Circuit Court of Appeals, which also reviews Texas
death penalty cases.
“We have a politicized, partisan judicial system,” said Steve Hall, director
of the StandDown Texas Project, which is seeking a death penalty moratorium.
But even as national and international attention focuses on the Lone Star
State because of the death penalty, and legal challenges continue, juries in
Texas, which decide punishment in capital cases, continue to sentence
defendants to die.
“If people in Texas are really, by and large, disgusted with the fact that
we have a death penalty, I think you would see far fewer death penalty cases
handed out,” said Diane Beckham, staff counsel for the Texas District and
County Attorneys Association.
She said she sees little evidence that Texas legislators are being
encouraged by their constituents to oppose the death penalty.
Texans who oppose the death penalty, or seek a moratorium so that its
application can be reviewed, assert that the system under which defendants
are convicted for capital crimes and sent to death row is profoundly flawed.
And they suggest that Texans are increasingly concerned about how the death
penalty is applied.
“No other state carries out executions at such a relentless pace as Texas,”
said Mr. Hall. “This headlong dash occurs in spite of many controversies
over police and prosecutorial misconduct, inadequate standards of legal
representation, dubious testimony by so-called experts, an appeals court
that puts a seal of approval on sleeping lawyers, and a clemency process
that simply does not fulfill its historic responsibility.”
What some have described as isolated incidents, Mr. Hall said, represent
Roe Wilson, chief of post-conviction writs for the Harris County district
attorney’s office, said that Texas’ death penalty statute has been examined
repeatedly by higher courts and has withstood the scrutiny.
“Anyone who is executing the death penalty, putting it into place and
carrying it through like we do in Texas … then you’ve got a vested
interest in doing it the right way and making sure that the law is as tight
and well-defined as you possibly can,” Ms. Wilson said.
Mr. Steiker said that by defining what qualifies as a capital murder
narrowly at the guilt-innocence stage of trial, Texas has avoided much of
the litigation in other states, as has having juries sentence the defendants
in capital cases. Still, some Texas executions have been held up, as courts
consider the merits of appeals. Whether that’s part of a cycle, is a fluke,
or reflects a broader hesitation about the death penalty, is open to
Last-minute reprieves this month postponed the executions of two Texas death
row inmates, Curtis Lee Moore and Brian Edward Davis, after the U.S. Supreme
Court received petitions alleging that they were mentally retarded.
The 5th U.S. Circuit Court of Appeals intervened and delayed the execution
of Smith County death row inmate Henry Dunn last week; in that case,
questions were raised about the competence of Mr. Dunn’s appellate counsel.
And in February, the Supreme Court also agreed to hear the case of Thomas
Miller-El, who was sentenced to death in 1986 for the murder of an Irving
hotel clerk during a robbery. Mr. Miller-El’s attorneys claimed that
potential jurors were excluded from his trial because of their race.
Supreme Court cases
Two cases before the Supreme Court, neither from Texas, could have a
significant impact on the death penalty in America.
One case, Atkins vs. Virginia, resulted in reprieves for Mr. Moore and Mr.
Davis. It examines whether executing mentally retarded offenders is cruel
and unusual punishment, which is prohibited by the Eighth Amendment of the
U.S. Constitution. The court is expected to rule in the Atkins case this
More than a decade ago, the Supreme Court overturned the conviction of Texas
death row inmate Johnny Paul Penry, ruling that instructions to his jury did
not allow proper consideration of mitigating evidence, such as his mental
retardation. Justice Sandra Day O’Connor wrote in the majority opinion that,
at that time, there was not sufficient evidence of a “national consensus
against executing the retarded.”
Mr. Penry was convicted in a subsequent trial, but his death sentence was
overturned by the Supreme Court last year. A new punishment hearing is under
Mr. Steiker theorized that if the Supreme Court decides in the Atkins case
“that there is now an emerging, prevailing consensus against executing
people with mental retardation,” that would suggest that the way the court
gauges “societal consensus” is shifting.
Such a shift, he said, could have ramifications for other death row inmates.
For example, he said, the Supreme Court justices might find that executing
offenders who were under the age of 18 at the time of the offense is
unconstitutional, or they might revisit the issue of executing offenders who
were not directly responsible for a capital murder, so-called
‘Up to the states’
Richard Dieter, executive director of the nonprofit Death Penalty
Information Center, said that if the Supreme Court decides to bar the
execution of the mentally retarded, the justices “may not lay down neatly
what mental retardation is, and leave it up to the states and courts to
figure this out.”
And that, he said, is likely to set off considerable debate and legal
Harris County prosecutors, for example, assert that Mr. Davis, convicted for
the 1991 stabbing death of Michael Alan Foster in Humble, is not mentally
retarded – and that claim was first raised in legal petitions on the day he
was to be executed.
His attorneys point to Mr. Davis’ long history of difficulties in coping
with day-to-day life, placement in special education classes while in
school, and a test that placed his IQ at 74 – four points above 70, one
benchmark for retardation, but within the margin of error.
The Supreme Court also could decide that the execution of the mentally
retarded does not constitute cruel and unusual punishment. If that occurs,
inmates who were granted reprieves because of Atkins could be facing
execution again in the near future.
Sentencing by judge
In the second case, Ring vs. Arizona, Supreme Court justices will examine
the constitutionality of death sentences being handed down by a judge rather
than a jury.
The case does not directly affect cases in Texas, where juries in capital
cases decide punishment. But the Ring case has contributed to Texas’
dominance of death row statistics in 2002: Pending a ruling by the Supreme
Court, several states in which judges assess the death penalty are not
Ms. Wilson, the Harris County prosecutor, predicts that frequency of
executions in Texas will increase.
Death penalty reforms in 1995, she said, which restructured the appeals
process, resulted in “a tremendous number of cases in the federal system.”
“We had a huge glut of cases that arrived … about the same time,” she
said. “And now they’re starting to come out.”
As courts consider death penalty questions, other states stopping
Texas Moratorium Network (TMN) is a non-profit organization with the primary goal of mobilizing statewide support for a moratorium on executions in Texas. Significant death penalty reform in Texas, including a moratorium on executions, is a viable goal if the public is educated on the death penalty system and is encouraged to contact their elected representatives to urge passage of moratorium legislation.
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