It’s been busy in Huntsville. This year, Texas already has executed 12 men 
at its prison facility there. And the state is scheduled to execute another 
five in the next several weeks. Texas is unchallenged as the leader in 
cumulative executions since 1982, with more than 265 people being put to 
death here. It’s not a statistic that should make Texans proud.


The people executed and awaiting execution were convicted of committing 
terrible crimes – actions unthinkable to most people. The public watching 
the recent trials, like those for the murder of the Battaglia children or of 
Aubrey Hawkins, may find little room for compassion. But, and there’s always 
a but, questions in other cases surface, questions that trouble ethical 
people about the use of the death penalty – especially in Texas.

State legislators last year attempted to resolve one of the state’s most 
egregious wrongs: incompetent counsel. The newly formed Task Force on 
Indigent Defense oversees standards for counties’ defense appointments. 
However, that won’t help the approximate 450 current death row inmates who 
may have been victims of Texas’ infamous too-often-incompetent appointed 
lawyers. And with the Court of Criminal Appeals deciding recently that 
Texans have “no constitutional right to effective assistance of counsel” in 
part of the appeals process, the poor on death row may have little recourse 
to justice.

Other questions also persist about access to a fair trial. The Illinois 
Commission on Capital Punishment studied the death penalty process for two 
years and recently issued its report with more than 80 recommendations. The 
commission members included judges, prosecutors and defense lawyers. Its 
recommendations for improved justice can apply to most criminal proceedings.

Texans should take heed.

As Greg Wiercioch of the Texas Defender Service says, “These issues are not 
only relevant to Illinois because it borders on the Great Lakes. If 
anything, Texas epitomizes the issues such as eyewitness identification, 
prosecutorial misconduct, elected judges and racism.”

Hanna Liebman Dershowitz, the legal director of Texas Appleseed, says some 
of the proposed Illinois safeguards would be easy to implement. They include 
videotaping interrogations and allowing eyewitnesses to view possible 
suspects in sequence rather than in a lineup.

Also, some basic ethical considerations raised in the study still challenge 
Texas, such as executing the mentally retarded.

Texas juries may be becoming more sophisticated in their understanding of 
mental illness, but they don’t understand retardation, which is a basic 
impairment of intellectual functioning. Retarded Texas death row inmate John 
Paul Penry now is getting his third sentencing hearing because the Supreme 
Court determined that earlier juries were never properly instructed – new 
jury selection and the sentencing process is expected to take months. This 
case may be overridden by a ruling from the Supreme Court on whether 
executing the retarded should be outlawed as cruel and unusual punishment. 
Many hope the court also provides guidelines for defining retardation. One 
Texas lawyer notes his mentally retarded client is scheduled for execution 
in early June. Even if the Supreme Court doesn’t rule out the death penalty 
for retarded people, this state should.

Texas justice is fearsome. But it should be fair. That’s why the Legislature 
should use this time between sessions to review the work of the Illinois 
commission ( www100.state.il.us). It also should consider whether the death 
penalty in Texas suffers from racial bias, the issue that prompted the 
Maryland governor to place a moratorium on executions this month. And it 
needs to be clear on the financial cost of the death penalty.

The Senate Jurisprudence Committee, chaired by Dallas Sen. Royce West, 
and/or the House Criminal Jurisprudence Committee, chaired by McAllen Rep. 
Juan Hinojosa, should take on the task. Other elected officials, like the 
attorney general, should review recent reports and reconsider Texas 

Texans must have a clearer conscience about the people it puts behind bars 
or to death, especially given the rate of executions in this state.

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