DECEMBER 5, 2000
Why is Texas #1 in executions?
By NED WALPIN*
There are many legal and cultural explanations for why Texas executes far more people than any other state and is doing so at a pace that has no parallel in the modern era of the death penalty in the U.S. What follows is a summary of the analyses.
Texas has become ground zero for capital punishment. Between 1976 (when the Supreme Court lifted its prohibition on the death penalty) and 1998 Texas executed 167 people. Next in rank was Virginia which executed 60 during the same period.
(**my note** as of today, Texas has executed 237 individuals, and Virginia has executed 80)
Why do capital murder cases proceed through the Texas state court system with a speed unimaginable in other parts of the country? Brent Newton, in an article entitled "Capital Punishment: Texas Could Learn a Lot from Florida,"1argues that there are three procedures unique to the state's judicial system that enable it to execute convicted murderers with astonishing frequency:
1. Texas' appellate judges are elected to office and hence serve according to the pleasure of the public. Not surprisingly, they require a record of toughness on criminals in order to win re-election. Also, there are many indications that elected appellate judges generally are of a lesser quality than their appointed counterparts in other states. Newton even claims that these elected judges do not carefully consider the complexities of each specific death penalty case. As evidence, Newton argues that "[e]specially during the past few years...the Texas Court of Criminal Appeals has refused to publish most of its decisions in death penalty cases, including many cases that discuss important issues of 1st impression. Often these opinions take positions entirely inconsistent with prior decisions by the court and fail to mention the conflict. Generally speaking, there is a hit-and-mostly-miss quality in the Court of Criminal Appeals' death penalty decisions. Only a few judges during the past decade have been capable of or willing to write thoughtful, scholarly decisions, whether granting or denying relief."
Additionally, Newton notes that these judges tend to dismiss habeas corpus appeals even in cases where there appears to be glaring unanswered questions about the defendant's guilt.
2. Texas does not have a public defender system for indigent defendants, and instead relies upon court-appointed lawyers who likely do not have experience in capital murder defenses or appeals. Newton notes that incompetent defenses in capital murder cases are legion in Texas, and that, even in a death penalty appeal, bad lawyering is hard to prove. One decision, which turned down a defendant's habeas appeal due to bad lawyering, concluded that "[t]he Constitution does not say that the lawyer has to be awake" during trial proceedings. Furthermore, Texas was not obliged to provide lawyers free of charge to post-conviction habeas appeals until September 1, 1995, and the amount the state is willing to pay lawyers for these appeals is sufficiently low that most defendants still do not receive counsel for their appeals.
3. Until the early 1990s, Texas did not permit jurors to adequately consider mitigating evidence in the sentencing phase of a trial. Thus, there are a number of people currently on death row that may well not be there had information about their mental illness or youth been weighed.
In addition, some other features of the Texas judicial system streamline the process between conviction and execution for death row inmates.
Texas gives the bulk of clemency power to its Board of Pardons and Paroles and not to the governor. Indeed, the Board must vote to recommend commutation in order for the governor to grant clemency. Stephen E. Silverman examined the impact of this procedure on the frequency of executions. In a law review note, entitled "There is Nothing Certain Like Death in Texas: State Executive Clemency Boards Turn a Deaf Ear to Death Inmates' Last Appeals,"2Silverman argues that the Supreme Court appears to affirm the constitutionality of curtailing repeated habeas appeals in part because of the existence of executive clemency. However, the Governor of Texas' inability to grant clemency himself is an unconsidered loophole in the procedural safeguards that the Court cited in its argument. In other words, Texas--as well as eleven other states--can execute inmates who might have been granted executive clemency had the governor had the power to do so. Silverman thus concludes that "[t]he assertion by three Justices of the United States Supreme Court that state clemency procedures adequately protect against executing those later able to make convincing claims of innocence may not be accurate. Even though only twelve states that provide for the death penalty require some sort of panel decision to grant clemency, these tend to be states with the most aggressively enforced capital murder laws. The dilution of responsibility that operates as a consequence of giving no single person the power to commute a death sentence could tend to reduce the chances for the condemned to have an opportunity to have his clemency appeal receive meaningful consideration."
Moreover, Jordan Steiker, of the University of Texas Law School, notes that execution dates in Texas are set by the trial judge, not by the governor, thus removing an informal power of clemency. The governor is unable simply to not assign an execution date. Many governors in other states have that power.
More generally, Steiker points out that Texas, unlike many other states, has worked out the statutory and procedural "kinks" in death penalty cases and appeals. In particular, Texas' 1995 law expediting state appeals has successfully cut down the time between conviction and execution.3He argues that Texas doesn't sentence more people to death than a number of other states, but it executes a higher percentage because many other states' procedures have not been fully tested and affirmed. Steiker believes that other states will soon catch up with Texas' execution rate. Indeed, Virginia came relatively close to matching Texas' rate in 1998: Texas executed 20 individuals, and Virginia executed 13.
Finally, it bears noting that the 5th Circuit of the Federal Court of Appeals is strongly pro-death penalty, and hence places extremely few roadblocks to executions in the states over which it has jurisdiction. In comparing the Fifth Circuit with the neighboring Ninth Circuit (which has jurisdiction over California and other Western states), Michael Sharlot, dean of the University of Texas Law School, states that "The Fifth Circuit is a much more conservative circuit. It is more deferential to the popular will."4
Some have speculated that the Texas execution rate also reflects a heritage of frontier justice coupled with modern urban crime.
However, James W. Marquart, Sheldon Ekland-Olson, and Jonathan R. Sorensen offer a more complex thesis. In their book, The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990,5 they argue that Texas' execution rate reflects the Southern "cultural tradition of exclusion," and that "[s]uch exclusion was a basic element of the legacy of slavery."
In other words, the South has a cultural tradition of dehumanizing certain groups of people, which has made it easier for Southerners to separate themselves from those who do not adhere to the normal social (and in this case, legal) code. The authors argue that this cultural tendency accounts for the fact that, in 1992, "the states in the former Confederacy accounted for approximately 90 % of the total executions in the 1st 2 decades following Furman [v. Georgia]."6The authors argue that Texas provides the clearest case study to help explain this larger Southern phenomenon.
One way they show how Texas' current execution rate continues certain social norms of the former Confederacy is by exploring the historical relationship between state-sanctioned executions and illegal lynchings. Lynching, in their interpretation, did not represent justice but rather the clearest way to exclude someone (or, implicitly, a whole group) from society. A member of a society who breaks the law experiences the force of justice; the representative individual who is forcibly rejected by, or excluded from, society is lynched. Based on this understanding of lynching, their findings are compelling: there is a direct, inverse relationship between executions and lynchings over the course of the twentieth century. Executions simply replaced lynchings as the accepted way to sate the popular (white) need to "dehumanize" or "exclude" certain groups from normal society. If lynchings reminded white folk and black folk alike who was an "insider" and who was an "outsider"--who was "us" and who was "them"--then executions were implemented to serve the exact same purpose.
How could the coldly bureaucratic and legalistic execution serve the same socio-cultural purpose as the heated, violent and carnival-like lynching? The authors' argument is quite complex. The end of the Civil War undermined the disenfranchisement of blacks that had characterized the ante-bellum South. Lynchings had been a tool white Southerners used to combat their insecurity about the status of blacks. However, white insecurity diminished as the Southern states enforced segregation and so it was only natural that "local mobs gave way to centralized state-sanctioned executions." The authors thus claim that lynchings in Texas (and across the South) declined in the early twentieth century because "the enactment of Jim Crow and related disenfranchising legislation, buttressed by the Supreme Court's Plessy v. Ferguson decision in 1896," codified and enforced the social and cultural demands that had often culminated in lynchings.
Of course, Texas now executes a far wider racial and ethnic mix of individuals than African-Americans. How, then, could it be that Texans and Southerners in general continue to approach society in such a provincial and exclusivist way? Indeed, the authors recognize that we can no longer simply regard the Southern predisposition toward the death penalty as a continuation of the ideals of the Confederacy. The authors claim that the shift to state-sanctioned executions and away from lynchings now also reflect the success of the civil rights movement to "redefine the boundaries of 'place' in a more inclusive fashion." Thus, the authors conclude, Texas' support for state-sanctioned executions both reflects the continuing legacy of slavery on cultural beliefs, as well as the transformation of Southern cultural beliefs due to the civil rights movement. They portray this paradoxical development in the following way: Texas (and Southern states generally) still executes a lot of people, but there now is a greater regard for the defendant's rights. They argue that "this broader attention to the protection of rights, along with the associated hesitancy to exclude individuals from the life-protecting boundaries of the community, are specifically evidenced in the three trends [of] in the post-Furman years: decreased sentencing disparities, narrowed locus of discrimination, and lengthened time from conviction to execution."
Texas' current execution policy, then, reflects the continued struggle between the Old and New South. And, needless to say, that cultural struggle will continue for the foreseeable future.
1. Texas Lawyer, February 26, 1996. (back)
2. 37 Ariz. L. Rev. 375 (back)
3. This law sets significant time constraints on applications of habeas appeals, and it limits the number of appeals a
defendant can make. (back)
4. As quoted in Robert Bryce, "Why Texas is Execution Capital," The Christian Science Monitor, December 14, 1998. (back)
5. Austin: University of Texas Press, 1998. The percentage declines slightly when one tallies all executions from 1976-Jan 1999. (back)
6. Emphasis added. (back)
Ned Walpin is research associate for FRONTLINE ONLINE)(back)
The number of inmates on Texas’ death row dropped again this year, continuing a decades-long trend.
The decline is caused largely by fewer new death sentences and more reduced punishments in recent years, according to end-of-year reports released Thursday by groups critical of the death penalty in Texas and across the country. But Texas still held more executions than any other state.
“Prosecutors, juries, judges, and the public are subjecting our state’s death penalty practices to unprecedented scrutiny,” said Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty, in the release of the group’s annual report. “In an increasing number of cases, they are accepting alternatives to this flawed and irreversible punishment.”
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which has supported death penalty practices in legal cases throughout the country, said he agrees that the decline is partially due to shifting attitudes among jurors and prosecutors, but added that death sentences are also down because there has been a drop in the murder rate nationwide.
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“The support for the death penalty for the worst crimes remains strong,” he said.
There are currently 234 inmates living with death sentences in Texas, according to the state’s prison system. That number has been dropping since 2003. The death row population peaked at 460 in 1999, according to the Bureau of Justice Statistics.
Here’s how the death row population has changed over the last year:
Seven men were executed.
The same number of men were put to death this year as in 2016, which had the fewest executions in two decades. But even with its relatively low number, Texas was still the state with the most executions in the country. This isn’t unusual given that the state has put to death nearly five times more individuals than any other state since the death penalty was reinstated in 1976, according to the Death Penalty Information Center.
Texas accounted for 30 percent of the nation’s 23 executions in 2017. Arkansas was second in the country with four. Last year, Georgia put more people to death than Texas — the first time Texas hasn't been responsible for the most executions since 2001.
Four more men got cells on death row.
One more person was sentenced to death this year than in 2015 and 2016, when only three men were handed the death penalty in each of those years.
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The number of new sentences, which ranged in the 20s and 30s each year in the early 2000s, dropped in 2005 after jurors were given the option to sentence convicts to life without the possibility of parole as an alternative to the death penalty. Before then, if a capital murder convict wasn’t sentenced to death, he or she would be eligible for parole after 40 years. About 10 people in Texas were sentenced each year after that until the additional decrease in 2015.
Two men died while awaiting execution.
Joseph Lave and Raymond Martinez both died this year before they were taken to the death chamber, even though they had had extended stays in prison. Lave passed away more than 22 years after his murder conviction, and Martinez had lived more than 30 years with a death sentence.
Four men had their sentences changed from death to life in prison.
Two U.S. Supreme Court decisions this year have so far resulted in the reduction of three death sentences to life in prison. The high court ruled against Texas in the death penalty cases of Duane Buck and Bobby Moore.
Buck reached a plea agreement with Harris County prosecutors to change his death sentence to life in October after a February ruling by the court said his case was prejudiced by an expert trial witness who claimed Buck was more likely to be a future danger because he is black.
In Moore’s case, the justices invalidated Texas’ method for determining if a death-sentenced inmate was intellectually disabled and therefore ineligible for execution. Though Moore’s case has yet to be resolved (Harris County has asked the Texas Court of Criminal Appeals to reduce his sentence to life), two other men on death row with intellectual disability claims received life sentences after the ruling.
Another man this April received a new punishment hearing in a 1991 murder and pled guilty, landing four consecutive life sentences over the death penalty, according to the Texas death penalty report.
Nine men narrowly escaped execution — for now.
Executions were scheduled — then canceled — for nine men this year. Six were stopped by the Texas Court of Criminal Appeals in light of pending appeals, and one was stopped by a federal court, the report said.
One man, Larry Swearingen, evaded execution in November because of a clerical error, and convicted serial killer Anthony Shore’s death was postponed because prosecutors were concerned he would confess to the murder for which Swearingen was convicted.
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