Capital punishment in Texas

Capital punishment has been used in the U.S. state of Texas and its predecessor entities since 1819. Since that time 1110^[1][2] people have been legally executed, by a variety of methods — hanging, firing squad, electrocution and lethal injection. Most executions were for murder, but other crimes such as piracy, treason, desertion and rape have been subject to death sentences. Currently, only the crime of "capital murder" (which is equivalent to such terms in other states as "murder with malice aforethought", and is defined roughly as the intentional and willful taking of another's life) is eligible for the death penalty.

For a full list of those executed since 1982 see the list of individuals executed in Texas.

History pre-Furman

Prior to statehood in 1845, eight executions were carried out. All were by hanging, which was the method used for almost all executions up until 1924, when the electric chair came into use. The only other method used at the time was execution by firing squad. This was used for four Confederate deserters during the American Civil War as well as a man convicted of attempted rape in 1863. Hangings were administered by the county where the trial took place. The last hanging in the state was that of Nathan Lee, a man convicted of murder and executed in Brazoria County on August 31, 1923.

The law was changed in 1923 requiring the executions be carried out on the electric chair and that they take place at the Huntsville Unit. From 1928 until 1965, this was also home to Death Row. The first executions on the electric chair were on February 8, 1924 when Charles Reynolds, Ewell Morris, George Washington, Mack Matthews, and Melvin Johnson had their death sentences carried out. As of 2005, the five executions were the most carried out on a single day in the state; current practice is to schedule only one execution on a particular day.

A total of 361 people were electrocuted by the state, with the last being Joseph Johnson on July 30, 1964. It would be 18 years until the next execution.

A de facto moratorium existed for all U.S. executions after several decisions of the United States Supreme Court, primarily the case of Furman v. Georgia, 408 U.S. 238 (1972). In this case, struck down Georgia's "unitary trial" procedure, in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment. They found this to be unconstitutional, on the grounds that it was a cruel and unusual punishment, in violation of the eighth amendment to the United States Constitution.

This lead to a revisions of the Texas Penal Code in 1973. The first person setenced to death under this new statute was John Devries on February 15, 1974. Devries hanged himself in his cell before he could be executed.

Post Gregg v. Georgia

The first execution after this Supreme Court decision was that of Charles Brooks, Jr. on 7 December 1982. Brooks was also the first person to die from a lethal injection in the United States and the first African American executed in United States since 1967.

Up until November 18, 2005, 354 further executions have been carried out since then. This accounts for over one third of executions carried out in the United States since 1976. For a full listing of those executed post-Gregg, see the list of individuals executed in Texas.

Why the high rate?

There are a variety of proffered legal and cultural explanations as to why Texas has more executions than any other state. (Delaware, and not Texas has the highest execution rate.)

First, Texas' appellate judges are elected by the people of the state. Given Texas' general conservative political tone, some say this means they often take a tough stance on crime to ensure reelection. There is also purported evidence that the quality of these elected jurists is not as high as those appointed in other states.

The quality of the attorneys is also purportedly low for capital cases in Texas. Often the accused are unable to afford their own representations and must use court-appointed lawyers. These people may not have experience with death penalty cases, others have been simply incompenent. In the case of Calvin Burdine, his lawyer fell asleep during the trial. Appeals were first turned down on the grounds that the constitution does not say anything about the lawyer needing to be awake during the trial. After further appeals, this case has now gone back for a retrial. Much has been done to improve the quality of legal representation recently, but there are many people on death row who were sentenced under the previous laws and rules.

Further, federal appeals are made to the United States Court of Appeals for the Fifth Circuit. Michael Sharlot, dean of the University of Texas at Austin Law School, found the Fifth Circuit to be a "much more conservative circuit" than the neighbouring Ninth. According to him, the Fifth is "more deferential to the popular will". Thus, the possibility of an appeal being overturned is higher than in some other circuits.

Along with these legal reasons, some have argued that there are cultural reasons. James W. Marquart, Sheldon Ekland-Olson, and Jonathan R. Sorensen write in their book The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990 that the execution rate in Texas is a symptom of the "cultural tradition of exclusion" in the Southern United States. They found there was an inverse relationship between the number of executions and lynchings. When the number of lynchings declined, the execution rate went up. They said that executions are a way to continue to "dehumanize" and "exclude" certain groups from normal society.

Public opinion

A 2002 Houston Chronicle poll of Texans found that when asked "Do you support the death penalty?" 69.1% responded that they did, 21.9% did not support and 9.1% were not sure or gave no answer. This is slightly higher than the support of 68% found by a Scripps Howard News Poll in March 1998. Support has fallen from 86% in 1994.

Legal procedure

Capital trials and appeals are regulated differently than non-capital proceedings in Texas.

Trial

A capital trial in Texas proceeds through two phases. In the first, the guilt-innocence phase, the jury determines whether the accused is guilty or not guilty of the capital offense charged. In the second, the punishment phase, the jury determines whether the person will be sentenced to death or life in prison.

The guilt-innocence phase in a capital case in Texas proceeds identically to a non-capital case with the exception of voir dire (jury selection). In a capital case, voir dire is conducted individually rather than in a group and the jury is 'death qualified,' which means that jurors who express absolute opposition to the death penalty are ineligible to sit. In Texas, a person can be convicted "as a party" to the offense, including capital murder, which means a person can be convicted if he or she did not personally commit the elements of the capital murder but is otherwise responsible for the conduct of another as defined by law, which includes soliciting, enouraging, and aiding the commission of the offense as well as participating in a conspiracy to commit any felony where one of the conspirators commits capital murder, whether capital murder was the felony agreed to be committed.

In the punishment phase of a capital murder trial in Texas, the jury must answer either two or three (if the person was convicted as a party) questions to determine whether a person is sentenced to death or will receive life. In a non-party case, the first question is whether there exists a probability the defendant would commit criminal acts of violence that would constitute a continuing threat to society (this includes both inside and outside of prison). The second question is whether, taking into consideration the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there exists sufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence. If the jury answers the first question 'yes,' and the second, 'no,' the defendant is automatically sentenced to death. Any other combination of answers results in a sentence of life (as of 2005, without parole being imposed; for any crimes committed prior to 2005 the sentence is life with parole after 40 calendar years).

If the person was convicted as a party, an additional "anti-parties" charge is given asking whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or "anticipated" that a human life would be taken. If this question is also answered 'yes,' a sentence of death is automatically imposed.

As a result of the special issues in death penalty cases, there are also different rules of evidence that apply in capital cases in the punishment phase than for a non-capital case. In a non-capital case, the State may introduce evidence of prior bad acts that did not result in a conviction only if "shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible." There exists no such limitation in capital cases, and the State may introduce evidence "as to any matter that the court deems relevant to sentence" without any burden of proof. As a result, the State may present evidence in the punishment phase relating to a case for which the capital defendant has in the past already been tried and acquitted on, and this has happened in Texas.

Considerable controversy surrounds the first special issue (continuing threat to society) because of its speculative nature. In the past, the State has relied on "experts" who have opined that a particular defendant would constitute a future danger, in part, because of his race.

Direct appeal

The imposition of a death sentence in Texas results in automatic appeal to the Texas Court of Criminal Appeals, the state's highest criminal tribunal. In a direct appeal, the record is examined for trial error. In a non-capital case, direct appeal is not automatic (one must file a notice of appeal) and the appeal is to the regional appellate court. Effective representation of counsel is a constitutional right at this stage regardless of whether the case is capital or non-capital.

Habeas corpus

In Texas, capital defendants have a state statutory (not constitutional) right to representation by counsel during their initial state habeas corpus proceedings. Habeas proceedings, unlike direct appeals, consider matters extraneous to the trial record in order to determine the constitutionality of the proceedings and hence the validity of the conviction and sentence. The habeas attorney is appointed at the same time as the direct appeal attorney, and the habeas application is due within 180 days.

Following a hearing, if any, the applicant and the State both submit proposed findings of fact and conclusions of law, and the trial court is to make its own written findings of fact and conclusions of law regarding the application. and the case is at that point transferred to the Court of Criminal Appeals of Texas, which usually adopts the findings and conclusions of the trial court and renders an order either denying relief or granting a new trial as appropriate.

A study conducted by the Texas Defender Service concluded that meaningful review in practice was not occurring in habeas corpus proceedings in Texas. It found that in 79% of the capital habeas cases it studied, no hearing at all was held on the application. In 84%, the trial court's findings of fact and conclusions of law were "identical or virtually identical" to the State's proposed findings and conclusions. And in 93% of those cases, the Court of Criminal Appeals summarily adopted the trial court's findings. Critics of capital punishment in Texas note the importance of failing to provide meaningful review in state habeas proceedings, because federal law binds federal courts to defer to state courts' findings. Critics point out that the process as practiced in Texas, therefore, is driven entirely by the State, whose proposed findings are usually adopted verbatim as a routine matter.

Execution procedure

Brooks' and all subsequent exections are carried out at the East Building of the Huntsville Unit. Male Death Row inmates are housed at the Polunsky Unit, where they have individual 60 square feet cells. The prisoners are segregated from the general prison population and recreate individually. Female death row inmates are housed at the Mountain View Unit. The cost per day to the government of Texas was $61.58 in the 2002 fiscal year.

Under Texas law, executions are carried out at or after 6 p.m.:

"by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead"^[3]

The chemicals used for the lethal injection are:

• sodium thiopental (from Abbott Pharmaceuticals)
• pancuronium bromide (from Organon Pharmaceuticals)
• potassium chloride (from Roxane Laboratories, Inc.)

Death should come within seven minutes of the start of the injections. According to the Texas Department of Criminal Justice these chemicals cost $86.08.

Along with the executioner and those designated as assistants, those legally allowed to be present at the execution are:^[4]

• the Board of Directors of the Department of Corrections
• two physicians
• the spiritual advisor of the condemned
• the chaplains of the Department of Corrections
• the county judge and sheriff of the county in which the Department of Corrections is situated
• no more than five relatives or friends of the condemned person. This cannot include any convicts.
• since 1996, no more than five close relatives of a victim

Capital offenses

The following crimes (all of which involve murder in some form) are considered capital offenses under Texas state law:^[5]

• Murder of an on-duty public safety officer or firefighter
• Murder in the course of committing or attempting to commit a felony offense (such as kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat)
• Murder for remuneration (both the person who does the actual murderer and the person who hired them)
• Murder during prison escape
• Murder of a correctional employee
• Murder by a state prison inmate who is serving a life sentence for any of five offenses — murder, capital murder, aggravated kidnapping, aggravated sexual assault, aggravated robbery
• Murder while incarcerated with the intent to establish, maintain, or participate in a combination or in the profits of a combination
• Multiple murders (at least two or more murders during the same "criminal act", which can involve a series of events not taking place at the same time)
• Murder of an individual under six years of age
• Murder of a person in retaliation for or on account of the service or status of the other person as a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court.

Any person found guilty of these offenses will receive (for offenses in 2005 or thereafter) a minimum sentence of life imprisonment without parole (for offenses prior to 2005, the minimum sentence is life with the possibility of parole after 40 calendar years).^[6]

See also

• Capital punishment in the United States

Notes

1. ^ Texas Executions 1819–1964
2. ^ Executed offenders from the Texas Department of Criminal Justice
3. ^ Texas Code of Criminal Procedure. Art. 43.14. Execution of convict
4. ^ Texas Code of Criminal Procedure. Art. 43.20. Present at execution
5. ^ Texas Penal Code. § 19.03. Capital Murder
6. ^ Texas Penal Code. § 12.31. Capital Felony

References

• Summaries of Recent Poll Findings from the National Coalition to Abolish the Death Penalty
• Death Row Facts from the Texas Department of Criminal Justice
• Why is Texas #1 in Executions?
• Texas Defender Service Publications