The Death Penalty in Practice

Illustration by Craig Staggs

The needles are charged and ready.

After a brief legal hiatus to determine whether the commonly used drug-injection cocktail can stand constitutional muster – and the courts having ruled that we shouldn't pay too close attention to such things – the Texas death machine, headquartered in Austin and administered in Huntsville, is again building up speed. Two Texas inmates were executed in July, with one more scheduled at press time; at this writing, six are scheduled to die in August, three more in September, and two in October. That pace will allow Texas to maintain its long-running leadership in the capital punishment sweepstakes. Although in recent years some states have approached Texas in per capita executions, in raw numbers of staged homicides, Texas has no peer.

Speaking in Austin last month, Lawrence Lessig recalled his own experience as a Supreme Court clerk (to Justice Antonin Scalia) and specifically the bureaucratic nightmare of capital punishment litigation, in which issues of life and death regularly defer to obstructive legislation, biased courtrooms, and arbitrary judicial deadlines. "You can have differing views about the death penalty," Lessig said, "but you cannot support the death penalty once you see how the system actually works." Reporting on the death penalty – especially as practiced in Texas – delivers much the same impression: Once you look closely at almost any capital punishment case, you discover how arbitrary, capricious, and politicized is the administration of death. Virtually every capital case record is tainted by incomplete investigation, inadequate defense counsel, overzealous prosecution, pre-emptive judgment, and a political and cultural atmosphere that makes a mockery of the fair application of justice. The more heinous the crime, the less likely a fair trial or subsequent appeal – too much is at stake for the state to risk its authority to kill.

In her story this week, Jordan Smith looks closely at just three of the upcoming string of death row executions scheduled this month. The first case raises issues of international law, for which Gov. Rick Perry and Texas are defying the federal government, President Bush, and U.S. treaty obligations in order to make certain the state can kill one young thug without delay – and ignore the legal claims of another 15 Mexican nationals on death row. The second undermines the state's continuing reliance on an unexamined and unregulated method of poisoning its victims and demonstrates that the state is officially uninterested in examining its casually adopted execution procedures, designed chiefly to hide the effects of our actions from our own eyes. The third case involves a mentally disabled young man who wasn't even present when his "capital crime" took place – the state's unique "law of parties" provides a special adaptation to amplify the ricochet of a single murder.

As Smith's story documents, the application of the death penalty will always be arbitrary and capricious, and therefore unjust. The three cases reported here are more rule than exception, and the appeal process is a sham. When President Bush chose to commute the sentence of Lewis "Scooter" Libby for obstruction of justice, David Dow of the University of Houston Law Center pointed out in a letter to The New York Times:

When George W. Bush was governor of Texas, he presided over more than 150 executions. In more than one-third of the cases – 57 in all – lawyers representing condemned inmates asked then-Governor Bush for a commutation of sentence, so that the inmates would serve life in prison rather than face execution.

Some of these inmates had been represented by lawyers who slept during trials. Some were mentally retarded. Some were juveniles at the time they committed the crime for which they were sentenced to death.

In all these cases, Governor Bush refused to commute their sentences, saying that the inmates had had full access to the judicial system. ...

President Bush's commutation of Mr. Libby's sentence is certainly legal, but it just as surely offends the fundamental constitutional value of equality.

Because President Bush signed a commutation, a rich and powerful man will spend not a day in prison, while 57 poor and poorly connected human beings died because Governor Bush refused to lift a pen for them.

In short, you can hold any number of theoretical opinions about capital punishment. But in good conscience, when you honestly consider how the Texas capital punishment system actually works, you cannot support the death penalty.