Tinkering With the Machinery of Death

By Doug Potter

It happened so quickly you might have missed it, but President Bush briefly declared his opposition to capital punishment last week. Speaking to supporters in Omaha, Bush said, "Those of us who have spent some time in the agricultural sector and in the heartland understand how unfair the death penalty is -- the death tax is -- and we need to get rid of it." Quickly catching his mistake, Bush reassured his chuckling audience: "I don't want to get rid of the death penalty. Just the death tax." (It might also be news to Texans that for Bush, running a few head of cattle on his Crawford vacation ranch is apparently the equivalent of "spending some time in the agricultural sector.")

The president was in fact stumping for his tax cuts -- specifically, the elimination of the estate tax -- and, as his amused Nebraskan audience immediately understood, would never dream of abandoning his longtime support for the death penalty. It is certainly an indication of the national priorities that eliminating the inheritance tax on millionaires is now a central congressional controversy, while ending the execution of paupers is at best a marginal question. Before he moved from "the heartland" to Washington, Gov. Bush set a modern record by presiding over 40 state executions in 2000 (135 overall), but his Democratic opponent -- who also supported capital punishment -- found that dismal achievement unworthy of public debate.

Back home in Texas, as the 77th Legislature began, Bush's successor declared his intent to continue the Bush tradition. "Like most Texans," Gov. Rick Perry said, "I am a proponent of capital punishment because it affirms the high value we place on innocent life." There was an undeniable irony in the governor's juxtaposition of the death penalty and innocence -- since it's become increasingly apparent in recent years that any decent respect for innocent life argues for the abolition of capital punishment. That was the conclusion of another Republican governor, George Ryan of Illinois, who last year declared a moratorium on executions in his state after numerous condemned inmates were found to have been convicted in error. Ryan has put a stop to executions, he said, "Until I can be sure with a moral certainty that everyone sentenced to death in Illinois is truly guilty and that no innocent man or woman is facing lethal injection." Late last year, Ryan called the use of the death penalty a "shameful scorecard in Illinois."

Perry, on the other hand, has expressed his confidence in the superior workings of Texas justice. Yet there is abundant evidence that, in capital cases, the Texas record is at least as shameful as that of Illinois. It took out-of-state publications covering the presidential campaign to examine the issue in depth, but last year the national press took a close look at the state's use of capital punishment. Both The Washington Post and The New York Times described several capital prosecutions that were certainly irregular and very probably convicted innocent men. Going further, the Chicago Tribune investigated 131 cases under Bush's watch, concluding, "Under Gov. George W. Bush, Texas has executed dozens of Death Row inmates whose cases were compromised by unreliable evidence, disbarred or suspended defense attorneys, meager defense efforts during sentencing, and dubious psychiatric testing." The "due process" in many of these 131 cases included: psychiatric testimony concerning future dangerousness by "experts" who had never examined the convicted inmate; defense attorneys who were later disbarred or suspended; notoriously untrustworthy jailhouse informants; use of visual "hair evidence" known to be unreliable; sleeping or incompetent lawyers and judges, and so on. "Yet all 131 of these cases," the Tribune reported, "cleared every hurdle designed to prevent flawed cases from proceeding to execution -- from the trial court through appeals to the governor."

In a memorable 1994 dissent, U.S. Supreme Court Justice Harry Blackmun (who 18 years earlier had voted to restore the death penalty) wrote: "From this day forward, I no longer shall tinker with the machinery of death." Yet if there will be any change in the machinery of death in Texas, where the death penalty remains politically untouchable, it is likely to arrive in small increments. For the current legislative session, there are 26 bills filed concerning capital punishment, addressing everything from sentencing alternatives to giving commutation power directly to the governor. Not all the bills would moderate the death penalty: HB 322, filed by Dallas Democrat Dale Tillery, would add to the already baroque list of capital offenses murders on "educational premises"; HB 1925, sponsored by El Paso Republican Pat Haggerty (and apparently aimed at the New Black Panthers, who noisily protested last year's execution of Gary Graham) would prohibit weapons "within 1,000 feet of an execution"; HB 1962, by Brenham Republican Lois Kolkhorst, would require that the inmate's death certificate give the cause of death as "legal execution" (a coroner's notation of "homicide" apparently ruffled some official feathers).

Austin Republican Rep. Terry Keel has filed HB 347, which would require the state to pay for travel and lodging for a homicide victim's family to attend the inmate's execution. It would appear only equitable that the state also underwrite the execution-related expenses of the family of the condemned -- HB 347 does not address that issue. But HB 520, Pete Gallego, D-Alpine, would allow compensation (with a limit of $100,000) to a condemned inmate later proven to be innocent. (Comparing the eventual fiscal notes for those two bills should also tell us something about the financial priorities of the state of Texas.) The filing of such a bill by Gallego is noteworthy for another reason. Three sessions ago, in 1995, he was the author of legislation that had the effect of imposing drastic limits on the capital appeals process -- subjecting death penalty appeals to what came to be known as the "rocket docket."

It's encouraging that this year, most of the bills under consideration would chip away at the state's power to kill with impunity. Several would offer the alternative sentence of "life without parole"; some would prohibit the execution of the mentally retarded; one (HB 1860, Sylvester Turner, D-Houston) would make more difficult the execution of minors by requiring a court hearing to determine maturity. Another, filed by Sen. Rodney Ellis, D-Houston, would take the radical step of requiring that the Board of Pardons and Paroles actually meet to decide cases of capital clemency (currently, to avoid public scrutiny, the board votes by fax). Some of these proposals are back after defeats in earlier sessions, so it remains uncertain whether they now have a better chance of survival. But the number of bills proposing life-without-parole sentences -- and the fact that even Gov. Perry has said that the state should consider the option -- suggests that is the reform most likely to receive serious consideration this session.

In practice, under the current statutory life sentence (no less than 40 years before parole consideration), most inmates will not live long enough to leave prison. But juries don't necessarily know that, and therefore tend to vote more readily for execution. In testimony last month before the House Committee on Criminal Jurisprudence, a Houston businessman who had recently served on a capital jury made exactly that argument. "We needed that third option," said Fred Baca, the foreman on a jury that, despite its misgivings, reconfirmed an inmate's earlier death sentence for a robbery-murder for fear the inmate might eventually gain parole. "We knew the appropriate punishment," Baca told the committee, "but we did not have that punishment." Baca's remarks were echoed by several other speakers, including Keith Hampton of the Texas Criminal Defense Lawyer's Association, who said, "Juries want [the option], and the public wants juries to have it."

But district attorneys from around the state argued against any change in the law, or alternatively that the life-without-parole sentence be strictly a plea-bargain option controlled solely by prosecutors. "The system's not broke," said Harris County DA Chuck Rosenthal (who has succeeded his former boss, the now-retired Johnny Holmes, from a staff that convicted roughly a third of all inmates currently on Huntsville's death row). "I don't see any reason to fix it." Over disagreement from committee chair Juan Hinojosa (who himself is sponsoring one of the life-without-parole bills), Rosenthal expressed the prosecutors' real fears: Allowing juries to "opt out" of execution for life without parole "would lead to the abolition of the death penalty." It's a mark of the actual tenuousness of the executioners' position that they fear that even Texas juries -- selected in capital cases precisely because of their willingness to invoke the death penalty -- might hesitate to apply it when faced with the moral complexities of actual capital cases, choosing instead the "moderate" alternative of permanent incarceration.

Gov. Perry is indeed correct that, as the ritual polls show, "most Texans" support the death penalty, in the abstract. But when the questions are based upon real, particular cases -- executing juveniles, the mentally ill or retarded, the rehabilitated, or those convicted without adequate defense or real due process -- most citizens, in Texas as elsewhere, oppose capital punishment. Still, it may be years before that simple human understanding works its way through the legislative process. For capital punishment is only secondarily a judicial matter. It is first, and most importantly, a political weapon -- useful for judges, prosecutors, and legislators to wave as a bloody shirt at election time, but with only an arbitrary, cruel, and utterly inequitable relationship to actual, realizable justice.

In recognition of that situation, three bills propose outright moratoriums on the death penalty (which would require amending the state Constitution). Austin Rep. Elliott Naishtat proposes (HJR 59) simply giving the governor the power to declare a moratorium -- which would at least remove the governor's perennial refrain that he has "no power" to prevent executions. Going further, Rep. Harold Dutton, D-Houston, and Sen. Eliot Shapleigh, D-El Paso, have each filed resolutions that would create commissions to examine the capital punishment system in Texas (HB 720, SB 680), and in the meantime declare an outright, two-year moratorium on executions (HJR 56, SJR 25).

Dutton told me, "If I were designing a republic, it would be unlikely to have a death penalty, but this bill is not about abolishing capital punishment." Pointing to recent cases like that of Christopher Ochoa, which remind us that wrongful convictions do occur, Dutton said, "The system as it exists has completely broken down, and we need to pull back and consider if there's any way to fix it. We should not be executing innocent people." Shapleigh acknowledged that the moratorium bills have little chance of passage, but said he was moved to file his by the revelations during the presidential campaign concerning the ingrained injustices of the state's capital punishment system. He hopes that legislative attitudes have shifted enough at least to allow a discussion of the issues. "I'm not proud of Texas' record in this regard," Shapleigh told me. "I hope to use these bills to encourage members to examine their feelings about the death penalty."