Tried to Death
Capital punishment has already earned several honorable filings – but even with the U.S. Supreme Court currently taking a dim view of Texas death penalty practice, Texans shouldn’t hold their breath in anticipation of dramatic changes. Sen. Eddie Lucio, D-Brownsville, and Rep. Ruth Jones McClendon, D-San Antonio, have each filed life-without-parole bills (SB 60 and HB 66) – perennial teeth-gnashers for prosecutors, who speciously argue that a third capital-sentencing option would end in terminal confusion for presumably stone-cold stupid jurors. What they really fear, of course, is that a no-parole option would lessen their ability to secure a death sentence. McClendon has also proposed a ban on executing juvenile offenders, a bill that may very well be rendered moot by the U.S. Supreme Court’s opinion in a pending Missouri juvie death case (a decision in Roper v. Missouri is expected soon).
Although the Supremes banned execution of the mentally retarded in 2002, Texas lawmakers are still arguing over how to incorporate that ban into the state’s capital statute. As usual, there are two competing proposals – pre- and post-trial systems. Sen. Rodney Ellis, D-Houston, is again proposing that a determination of a defendant’s mental retardation be made during a pretrial special hearing with an individual jury. In the other corner is Palestine Republican Sen. Todd Staples, who would prefer to add a fourth “special question” to the list jurors now ponder during the sentencing portion of a capital trial. The cumulative answer determines whether a defendant is sentenced to death; an affirmative finding of mental retardation – by a preponderance of the evidence – would prevent a death sentence, but jurors would not be bound to accept a past finding of mental retardation as grounds for answering “yes” to that question.
– Jordan Smith
This article appears in January 14 • 2005.
