Death Watch: Quiet on Death Row

COVID-19 has skewed the numbers but they're eye-popping nonetheless. In 2020, Texas – the leading practitioner of capital punishment in the nation and perhaps the world – executed just three people. Our state's juries sentenced just two people to death.

The numbers are low because the pandemic shut down courtrooms and stopped executions beginning with the March lockdowns. But a recent report from the Texas Coalition to Abolish the Death Penalty shows that, even without COVID-19, death sentences and executions are decreasing year after year. Our state is changing.

Still, Texas was one of only two states to conduct an execution during the pandemic. As the coronavirus sickened prisoners and corrections officers throughout the system in July, the Texas Depart­ment of Criminal Justice decided it was nonetheless safe enough to kill Billy Joe Wardlow.

Billy Joe Wardlow at the Allan B. Polunsky Unit, which houses inmates who are awaiting execution on Texas' death row, in 2019. Wardlow's execution earlier this July was the first execution to proceed in the state since the start of the pandemic. (Courtesy of Danielle Allen)

Wardlow was 18 years old when he murdered a man in a botched robbery in 1993. He had argued that his jury's prediction that he would remain dangerous was scientifically impossible, because his brain was still developing when he committed the crime. His 25 years as a peacemaker on death row supported his claim. Two of the jurors from his trial, 60 Texas legislators, and a variety of scientists and child development experts asked that his execution be stopped. State and federal courts refused.

Texas had carried out two other executions, in January and February, before COVID-19 hit. Since then, eight executions have been delayed – six in the interests of public health during the pandemic, two for case-specific reasons. The Texas Court of Criminal Appeals stayed the execution of the profoundly mentally ill Randall Mays this spring, concerned that he doesn't understand why he is to be put to death. (He believes his warden is executing him in order to steal a device he has invented that would supply the world with free energy.) And the U.S. Supreme Court stopped Ruben Gutierrez's execution in June after he asked that a chaplain be present; Christ­ian chaplains had routinely attended executions in Huntsville until April 2019, when an inmate requested a Buddhist advisor. Flustered, officials abruptly banned all spiritual advisors from the execution chamber.

Even with COVID-prompted shutdowns of capital murder trials, the two death sentences imposed this year are in line with recent numbers. The TCADP report shows that Texas juries have sent three to seven people to death row in each of the last five years, down from a high of 48 in 1999. This reflects the decline in public support for the death penalty, which is at its lowest level since the 1960s. Rice University released a poll of Houston-area residents in April that showed approval of capital punishment has fallen from 41% in 2000 to 20% today.

Criminal justice reformers have replaced law-and-order prosecutors in Texas' big cities. Since the 1970s, Harris County has sent over 300 men to death row, but since taking office in 2017, District Attorney Kim Ogg has sought the death penalty in only two cases. Dallas County has sent only one person to death row in the last seven years, and district attorneys in San Antonio and El Paso have pledged to avoid the death penalty. Here in Austin, D.A.-elect José Garza campaigned on a promise never to seek it.

Consequently, the state's death row population has decreased year after year, now down to 210 from a high of 460 in 1999. The general population of the Texas prison system as a whole is falling as well, down from 140,000 to 120,000 in just the last year. One thing has remained constant: African Americans and Hispanic people account for 70% of those on death row now, and of those who've been sentenced to death since 2015.

The CCA and the Fifth U.S. Circuit Court of Appeals have continued to review capital defendants' appeals during the pandemic, and both the state and federal courts are still accused of rubber-stamping prosecutions and sentences and ignoring the needs and rights of mentally ill inmates like Mays. But progress is being made for those with intellectual disabilities; the 2017 SCOTUS ruling in Moore v. Texas, which held that the state used non-medical criteria to determine which inmates are disabled, led to six death sentences being commuted to life in prison this year.

Reformist prosecutors, trial judges, and the CCA all agreed these men are constitutionally barred from execution. Bobby Moore himself, the namesake of Moore v. Texas, was granted parole and released in August after 40 years of incarceration and many, many appeals. Former CCA Judge Elsa Alcala points out that resentencing these men will save the state a great deal of money. "The state devoted an exorbitant amount of time, energy, and resources to maintaining these unconstitutional death sentences," Alcala said, "even though evidence of intellectual disability was presented years ago."

Currently, TDCJ has six executions scheduled for 2021; each will face appeals at all levels of the justice system and will likely be delayed. Five of the six have already been delayed at least once before.

The National Picture

Like TCADP, the Death Penalty Infor­ma­tion Center released its year-end report on Dec. 16, covering the national picture. As in Texas, juries across the nation handed down the fewest death sentences in the modern era this year; executions were the lowest in 37 years. Colorado became the 22nd state to outlaw capital punishment, and other states that once regularly executed prisoners have now gone a decade or more without doing so.

As most of the country has effectively abolished the death penalty, DPIC's report shows that in 2020, for the first time in history, the federal government executed more people than the states. Ten of this year's 17 executions came, effectively, on the orders of Donald Trump, timed for the election season, with seven conducted rapidly from July to late September.

Since the election, Trump and his Depart­ment of Justice have conducted the first lame-duck executions in more than a century, with three longtime federal prisoners executed in the last month. Another three are scheduled to be killed before Trump leaves office, including Lisa Montgomery, a mentally ill inmate who would be the first woman executed by the feds in more than 70 years.

The DPIC report looks at the impact to be felt with the death of Justice Ruth Bader Ginsburg: "A DPIC analysis of Supreme Court death-penalty decisions since 2014 found that Justice Ginsburg had provided a vote in favor of death-row prisoners in every case in which the court overturned a capital conviction or death sentence and in every instance in which the Court granted a stay of execution." Ginsburg authored the 5-3 decision in Moore v. Texas, and also went to bat for mentally ill inmates and those convicted of capital crimes committed as minors.