The New York Times reports that
A 50-year-old Dallas man whose conviction of raping a boy in 1982 cost him nearly half his life in prison and on parole won a court ruling Wednesday declaring him innocent. He said he was not angry, “because the Lord has given me so much.”
The parolee, James Waller, was exonerated by DNA testing, the 12th person since 2001 whose conviction in Dallas County has been overturned long after the fact as a result of genetic evidence, lawyers said.
“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.
It was just last week that the 11th exoneration prompted The Dallas Morning News to call for a moratorium on executions. Andrew Gossett was the 11th Dallas County man granted his freedom after DNA confirmed what he had been saying for seven years: He didn’t do it.
Now is the time for the new Dallas County District Attorney Craig Watkins to join the call for a moratorium on executions.
How to Enact a Moratorium
The Texas Legislature can enact a moratorium on executions by amending the Code of Criminal Procedure to revise the parameters around which convicting courts can set execution dates, for example by prohibiting courts from setting execution dates over the next two years, which is the time it would take for a blue ribbon commission to study the death penalty system in Texas. Under such a bill, courts could still sentence people to death during the moratorium, they just could not set any execution dates until after the moratorium. Of course, Governor Perry would have to refrain from vetoing such a bill.
Another route to a moratorium would be for the Legislature to pass a constitutional amendment that would enact a moratorium immediately upon approval by the voters in November of this year. Such a route would bypass the governor and put the decision in the hands of the voters of whether to stop executions temporarily while a commission studies the death penalty. This is the route that was endorsed by the El Paso Times in 2001 in its editorial “Let the people decide: Moratorium on executions should go to voters”.
A third and far less desirable method would be to pass a constitutional amendment giving the governor the power to enact a moratorium, but such a route would require a governor willing to call a moratorium. The Texas Constitution only allows the Governor to grant one 30-day stay of execution on his own. The Governor may grant a longer stay with the written recommendation of the Board of Pardons and Paroles.
Theoretically, the Governor could ask the BPP to recommend staying each execution. This would allow a moratorium to be enacted, however it would require some cooperation between the Governor and the BPP. The Governor can not enact a moratorium acting alone under the current Texas constitution.
The judiciary could enact a moratorium on its own by not setting any execution dates, but in Texas execution dates are set by the convicting courts and they all act independently. It would be theoretically possible for all judges to voluntarily not set any execution dates for two years, although that is unlikely to happen without guidance from the Legislature and the Governor. The ideal situation would be for the Governor and the Legislature to agree that we should take a time-out on executions. Then the Legislature could pass a bill prohibiting the convicting courts from setting any execution dates for two years and the Governor could agree by not vetoing the bill.
Below is the section of the Code of Criminal Procedure that could be amended to enact a moratorium.
Sec. 8. MORATORIUM. Chapter 43.141, Code of Criminal Procedure, is amended by adding Subsection (f) to read as follows:
Art. 43.141. Scheduling of execution date; withdrawal; modification
(a) If an initial application under Article 11.071 is timely filed, the convicting court may not set an execution date before:
(1) the court of criminal appeals denies relief; or
(2) if the case is filed and set for submission, the court of criminal appeals issues a mandate.
(b) If an original application is not timely filed under Article 11.071 or good cause is not shown for an untimely application under Article 11.071, the convicting court may set an execution date.
(c) The first execution date may not be earlier than the 91st day after the date the convicting court enters the order setting the execution date. A subsequent execution date may not be earlier than the 31st day after the date the convicting court enters the order setting the execution date.
(d) The convicting court may modify or withdraw the order of the court setting a date for execution in a death penalty case if the court determines that additional proceedings are necessary on a subsequent or untimely application for a writ of habeas corpus filed under Article 11.071.
(e) If the convicting court withdraws the order of the court setting the execution date, the court shall recall the warrant of execution. If the court modifies the order of the court setting the execution date, the court shall recall the previous warrant of execution, and the clerk of the court shall issue a new warrant.
(f) The convicting court may not set an execution date that falls on or after September 1, 2007 and on or before September 1, 2009, in order to allow time for the 81st Texas Legislature to consider recommendations contained in the report of the Texas Capital Punishment Commission created by the 80th Legislature.
Below is an example of language for a proposed constitutional amendment which would enact a moratorium directly upon approval of the voters:
A JOINT RESOLUTION
proposing a constitutional amendment relating to a moratorium on
the execution of persons convicted of capital offenses.
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 11, Article IV, Texas Constitution, is
amended by adding Subsection (c) to read as follows:
c) The Texas Department of Criminal Justice is prohibited
from performing executions until September 1, 2009. The Governor may extend or re-establish the moratorium on executions by executive order or the 81st Legislature or a subsequent Legislature may enact a statute that extends or re-establishes the moratorium on executions established by this subsection.
SECTION 2. This proposed constitutional amendment shall be
submitted to the voters at an election to be held on November 6,
2007. The ballot shall be printed to permit voting for or against
the proposition: “The constitutional amendment establishing a
moratorium on executions of persons convicted of capital offenses”.