88-49, motion to table prevails.

Now, there is a motion to delay the debate until Monday at 3 PM.

Rep. Dutton has introduced an amendment to HB 8 (Jessica’s Law) that would remove the penalty of death for second offenses of sexual assault against a child. A motion has been made to table the amendment and will be voted on shortly.

One reason that the death penalty provision should be removed is that it could endanger some children. As we said in an earlier post,

“It is frightening to think that this death penalty provision may result in the death of a child who otherwise would not be killed, if the criminal thinks he has to murder the victim in order to eliminate the only witness to the crime. If the punishment for raping a child is the same as the punishment for raping and murdering a child, then a child may one day be murdered who otherwise would not be murdered because some nut is going to reason that he might as well get rid of the only witness since the punishment is the same anyhow”.

Another reason to remove the death penalty provision is that, despite what Rep Riddle just misleadingly represented to the House in an exchange with Rep Terri Hodge, applying the death penalty in cases where a child is not murdered is probably unconstitutional. Riddle is misleadingly arguing that there is consensus in the legal community that her bill is constitutional and that she has been told by attorneys that it is, but UT law professor Rob Owen testified to the House Criminal Jurispridence Committee that the Supreme Court would most likely rule it unconstitutional. There is currently a case from Louisiana working its way up to the Supreme Court on this issue.

As we wrote in an earlier post:

In 1977, the U.S. Supreme Court ruled in Coker v. Georgia that the death penalty for people who commit rape of an adult is unconstitutional, because the punishment is disproportionate to the crime. The Court has not ruled on whether they would also consider the death penalty for a person who rapes a child as disproportionate, but it is highly likely that it would. There has not been an execution in the United States for non-homicide crime since 1964. There are provisions for the death penalty for some crimes that do not involve murder, such as treason, but treason is eligible for the death penalty because the assumption is that treason can result in the deaths of people. For example, Robert Hanssen, who is the subject of the current movie “Breach” could have been given the death penalty for his treason, which caused the deaths of at least three people, who were executed by the KGB after Hanssen told the Russians that they were working for the U.S. Hanssen received a sentence of life in prison without parole, instead of the death penalty for which he was eligible, because he cooperated with prosecutors.

The Texas House should amend HB 8 to add a provision for a moratorium on executions and the creation of a commission to study the death penalty system. Contact your legislators (if you live in Texas). HB 8 is a version of Jessica’s Law that includes a provision for the death penalty for a second offense of sexual assault against a child. The bill is likely to come up for a vote on the floor of the Texas House of Representatives as early as this week. Before Texas lawmakers expand the death penalty in Texas, they should first ensure that the system is not putting innocent people at risk of execution. The problems in the criminal justice system that can lead to innocent people being convicted are statewide problems, but recent events in Dallas make it particularly understandable for a Dallas area legislator to offer an amendment to HB 8.

The Dallas Morning News argued in an editorial in January 2007 that executions should be temporarily halted because of the many innocent people who have recently been exonerated after being wrongfully convicted in Dallas County. The editorial was published following the release of Andrew Gossett, who “became the 11th Dallas County man granted his freedom after DNA confirmed what he had been saying for seven years: He didn’t do it. Mr. Gossett had been sentenced to 50 years in prison for a sexual assault he did not commit”.

Soon after Gossett’s release another man, James Waller, became the 12th Dallas County person exonerated by DNA testing since 2001. “Nowhere else in the nation have so many individual wrongful convictions been proven in one county in such a short span,” said Barry C. Scheck, co-founder of the Innocence Project, the legal clinic that championed Mr. Waller’s case. In fact, Mr. Scheck said, those 12 such instances are more than have occurred anywhere else except the entire states of New York and Illinois since the nation’s first DNA exoneration, in 1989.

We need to protect children from sexual predators, but we also need to protect innocent people from being wrongfully convicted and sentenced to death. If HB 8 passes with the death penalty provision intact, then it is highly likely that another innocent person will wind up on death row for a crime he did not commit. Amending HB 8 to attach a provision for a two-year moratorium on executions would provide enough time for a special commission to study the death penalty system and make recommendations that would decrease the risk of executing an innocent person. While the system is being studied, the prudent step is to halt executions, so that we do not make a mistake that can not be corrected.

The Texas House Committee on Criminal Jurisprudence approved HB 8 on a 5-0 vote with four members of the committee absent. Four absent members? Hey people, recess is over, back to work. You were elected to be there to vote on bills and to help the committee reach informed decisions by articulating your position on issues before the committee. The absent members were Representatives Escobar; Hodge; Mallory Caraway; and Paul Moreno.

The bill passed with the provision for the death penalty for repeat child molesters intact. What a waste of time. That provision will most likely be found to be unconstitutional as a violation of the 8th Amendment’s prohibition of cruel and unusual punishment. The committee heard expert testimony to that effect, but chose to ignore it. At least those members who were present when the testimony was given chose to ignore it. The absent members just ignored the whole thing. Hmm, it would be nice to think that they also thought that the committee was wasting time with this issue, but we don’t know what they thought, since they weren’t there to tell anyone.

It is frightening to think that this death penalty provision may result in the death of a child who otherwise would not be killed, if the criminal thinks he has to murder the victim in order to eliminate the only witness to the crime. If the punishment for raping a child is the same as the punishment for raping and murdering a child, then a child may one day be murdered who otherwise would not be murdered because some nut is going to reason that he might as well get rid of the only witness since the punishment is the same anyhow.

In 1977, the U.S. Supreme Court ruled in Coker v. Georgia that the death penalty for people who commit rape of an adult is unconstitutional, because the punishment is disproportionate to the crime. The Court has not ruled on whether they would also consider the death penalty for a person who rapes a child as disproportionate, but it is highly likely that it would. There has not been an execution in the United States for non-homicide crime since 1964. There are provisions for the death penalty for some crimes that do not involve murder, such as treason, but treason is eligible for the death penalty because the assumption is that treason can result in the deaths of people. For example, Robert Hanssen, who is the subject of the current movie “Breach” could have been given the death penalty for his treason, which caused the deaths of at least three people, who were executed by the KGB after Hanssen told the Russians that they were working for the U.S. Hanssen received a sentence of life in prison without parole, instead of the death penalty for which he was eligible, because he cooperated with prosecutors.

Only five states allow the death penalty for child rapists and only one person (in Louisiana) has been convicted of such a crime and sentenced to death. Several juries in Louisiana have been asked by prosecutors to sentence child rapists to death, but only one jury has so far chosen death.

The Supreme Court has been limiting the use of the death penalty lately, not allowing it to expand. There seems to be a national consensus that the death penalty is not appropriate unless the crime results in a killing. The Supreme Court banned executions of juvenile offenders and people with mental retardation in recent years, because they concluded that a national consensus existed against such executions. At the time of both of those Supreme Court rulings only 18 of the 38 death penalty states had banned executions of either juvenile offenders and people with mental retardation. Today, only five of the 38 death penalty states allow the death penalty for child rapists, so 45 states do not allow it. That looks a lot like a national consensus against such a severe punishment in these cases.

If you live in Texas, please use this link to contact your state senator and state representative and ask them to support a moratorium on executions and to create a blue ribbon commission to conduct a comprehensive study of the Texas capital punishment system.

While executions have slowed in other states, the torrid pace continues in Texas. So far in 2007, there have been five executions in the U.S. and four of them were in Texas. Through March, there are seven more executions scheduled in the U.S. and six of them are in Texas. In many states, executions have recently been halted because of challenges to the lethal injection process or, as in New Jersey, because of broader questions about the administration of the death penalty, but executions continue in Texas.

Yet, it is in Texas where there have been reports that Texas may have executed three innocent people: Ruben Cantu, Cameron Todd Willingham and Carlos De Luna.

Save the date of March 13, which is the date for the Death Penalty Issues Lobby Day and “Day of Innocence” at the capitol.