Some time in March or April, the state of Texas will mark another contemporary milestone in capital punishment. According to the current schedule — handily maintained online by the Texas Dept. of Criminal Justice (www.tdcj.state.tx.us/stat/scheduledexecutions.htm ) — on March 12, Delma Banks Jr. will become the 300th person executed by Texas since 1982, when the state resumed executions following the 1976 revision of its statute.
We’re in no danger of surrendering the overall lead — Virginia is second with a paltry 87 — and the 300th will also represent an internal milestone. Although many people presume there were more executions in the good old days before they took prayer out of the schools, the opposite is true. It took us 34 years (1930 to 1964) to electrocute 299 people; we will have accomplished the same feat by lethal injection in just over 20 years — 247 in just the last 11 years. Of the 12 executions in the U.S. this year, Texas (with less than 10% of the U.S. population) has performed eight, and last year the state accounted for nearly half of all executions (33 of 71). Should Texas maintain its current pace throughout 2003, the state could easily exceed its own one-year record of 40, set in 1999.
The raw Texas numbers help sustain another myth about the death penalty: that it is somehow a cultural remnant of “frontier justice,” the inevitable heritage of posse law and order. If that were true, the numbers should not be increasing (by design) in recent years, thanks largely to “streamlining” changes in both state and federal law. Moreover, other states match or exceed Texas in their rates of execution (executions per capita). Over the last 10 years (through December 2002), both Delaware and Oklahoma surpassed Texas in their execution rates, and Virginia and Missouri were very close behind.
When it comes to the death penalty, Texas is in fact more Southern than Western: the Southern states have accounted for roughly 80% of the 832 U.S. executions since 1976. Since a greatly disproportionate number of the condemned are black or brown and poor, it doesn’t take a great leap of imagination to comprehend the historical circumstances that have led the Deep South states down this path. In the longest view, the death penalty replaced lynching, but did not end it.
Broken Machinery
Those numbers are all the more striking in light of the recent decision by outgoing Illinois Republican Gov. George Ryan to pardon four death-row inmates outright and commute the sentences of another 167 to life in prison. Ryan described the Illinois capital punishment system as “arbitrary and capricious, and therefore immoral,” and (quoting former Supreme Court Justice Harry Blackmun) declared he would “no longer tinker with the machinery of death.”
Gov. Rick Perry immediately denounced Ryan’s decision as “inappropriate” and lacking in leadership. “If he has a problem in his state, which obviously he does — you do it case by case,” Perry said. “You don’t just walk in, because there are some victims of crime that you spit in the eye of.”
Ryan did not “just walk in.” He reacted to independent investigations which had exonerated 13 condemned Illinois inmates, one more than the state had executed since 1976. Ryan declared a moratorium, and over a three-year period he and an independent commission reviewed “each and every case.” They discovered arbitrary or biased prosecutions; inadequate or incompetent defense; mentally ill or retarded defendants; reckless use of jailhouse or accomplice informants; coerced confessions; and four more confirmed innocents. Only when the Illinois Legislature three times refused to enact reforms to reduce the errors and unfairness of the system did Ryan act “to rid [Illinois] of the shame of threatening the innocent with execution and the guilty with unfairness.” (Gov. Ryan’s full Jan. 11 statement is available at www.deathpenaltyinfo.org/RyanCommuteSpeech.html.)
Despite Perry’s protestations, every single one of the Illinois defects has also disfigured Texas capital convictions, as repeatedly demonstrated by pro bono defense teams able to review only a handful of cases. Only last week, three judges on the Texas Court of Criminal Appeals — hardly a fountainhead of mercy — complained that their colleagues had allowed an inmate to be executed in December without the benefit of effective appeal counsel. A year ago, three judges noted that the CCA’s majority apparently believes that a law degree is itself sufficient evidence of “competent counsel.” The “guarantee of ‘competent counsel’ would be a cruel joke,” the dissenters wrote, “if it did not comprehend the right to the effective assistance of counsel [emphasis added]. The Legislature could not have intended a cruel joke.”
Why It Works
Based on direct observation, the judges’ confidence in the Legislature does not appear entirely justified. There are, however, several bills filed this session that will again attempt to tinker with the Texas machinery of death, reform it substantially, or even propose to eliminate it altogether. Democratic Sens. Rodney Ellis (Houston), Eliot Shapleigh (El Paso), and Eddie Lucio (Brownsville), and Democratic Reps. Harold Dutton (Houston), Elliott Naishtat (Austin), and Lon Burnam (Fort Worth), have all filed substantial reform bills. These measures would ban the execution of juveniles or the mentally retarded, allow capital sentences of life without parole, require the Board of Pardons and Paroles actually to meet in person to decide on clemency, create moratoriums and investigative commissions, or even abolish the death penalty altogether. A couple of these measures may even escape death by committee.
Much more likely, however, are new laws that add to the list of capital offenses (HB 11, murder-cum-“terroristic threat,” from Austin GOP Rep. Terry Keel) or that require capital prosecution if the victim is a police officer (SB 320, from Sen. Ken Armbrister, D-Victoria). In this light, the most likely “reform” to survive the Legislature is a bill allowing post-conviction review of a defendant’s mental retardation. A similar bill was passed last session but vetoed by Gov. Perry, who called it unnecessary. Last July, the U.S. Supreme Court disagreed.
One new bill — carried by Keel and Sen. Todd Staples and already embraced by prosecutors — would essentially provide constitutional cover for executions of the mentally retarded, by asking the same jury that heard the murder evidence to determine the defendant’s retardation. Rep. Pete Gallego has filed an alternative that would give the job to post-conviction “experts.” Sen. Ellis, meanwhile, has a bill that calls for pre-trial review, which in addition to being more fair to the accused could occasionally save the state the considerable expense of a capital trial. Yet even at a moment of budget-cutting frenzy, the odds are heavily against the Ellis bill.
That’s because the Texas capital punishment system, for all its obvious flaws, still performs very well its primary function: to help elect prosecutors, judges, and state politicians.
This article appears in February 21 • 2003.
