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Public amnesty international UNITED STATES OF AMERICA Too much cruelty, too little clemency Texas nears 200th execution under current governor 30 April 2009 AI Index: AMR 51/057/2009 Texas long ago decided that the death penalty is a just and appropriate punishment for the most horrible crimes committed against our citizens. While we respect our friends in Europe, welcome their investment in our state and appreciate their interest in our laws, Texans are doing just fine governing Texas. Spokesperson for Governor Rick Perry on EU call for halt to Texas executions, August 2007 1. A ‘POINTLESS AND NEEDLESS’ DEPRIVATION OF LIFE On the evening of 9 January 2001, 37-year-old Jack Clark was taken from his prison cell in Texas, USA, and killed. This calculated killing was conducted by state government employees. It was not necessary. It could have been stopped. While deemed lawful by the courts, in the end it was a political choice to carry it out. Although such a killing could have, and has, occurred in a number of other US states both before and since – indeed one was carried out in Oklahoma on that same evening – it would not have happened in a majority of other countries at the beginning of the 21st century. Eight years later, even fewer countries operate this particular state policy. It is becoming less and less part of the modern world. It was not the first time such a killing had happened in Texas – far from it – and it was not to be the last. However, the execution of Jack Clark was the first to be carried out under the governorship of Richard Perry, the Lieutenant Governor who had been sworn in as the state’s 47th Governor three weeks earlier, on 21 December 2000, following the election of the previous governor, George W. Bush, to the office of US President. The outgoing governor’s subsequent disregard for international law in the White House was perhaps less surprising to those familiar with his record on the death penalty in Texas where such disregard could be said to have been incubated. Meanwhile, under his successor in the Texas Governor’s Mansion, the state’s resort to judicial killing has continued apace, not infrequently breaching the USA’s international obligations. There were 152 executions in Texas during the nearly six years of the Bush governorship (1995-2000). Now looming is the 200th execution during Rick Perry’s term in office.1 The combined total of more than 350 executions in Texas under these two governors represents 30 per cent of the national total since executions resumed in the USA in 1977. Virginia is ranked second to Texas in executions. In 30 years, Virginia has killed 103 people in its death chamber, half the number put to death in Texas in eight. This is geographic bias on a grand scale. Texas, where about seven per cent of the population of the USA reside, and where fewer than 10 per cent of its murders occur, accounts for 37 per cent of the country’s 1 At the time of writing, there had been 197 executions during this period. The 200th execution was due to take place on 2 June 2009. As noted below, at least one capital clemency case came before Lt. Governor Perry when Governor Bush was out of state on the presidential campaign trail. The prisoner in question was executed, after a reprieve for DNA testing was rejected. The original trial judge now believes that the condemned man may have been innocent. AI Index: AMR 51/057/2009 Amnesty International 30 April 2009 2 Too much cruelty, too little clemency. Texas nears 200th execution under current governor executions since 1977, and 41 per cent since 2001. Rid Texas of executions and, in terms of judicial death toll, the country could effectively be almost halfway to a nationwide moratorium. Not every murder in the USA, or in Texas, is punishable by the death penalty and not every capital murder is punished by execution. Jack Clark, for example, was convicted of one of the 2,000 murders in Texas in 1989, and one of 21,500 murders nationwide that year. He became one of 26 defendants to be sentenced to death in Texas in 1991, and one of 268 nationwide. Under US capital law, only the “worst of the worst” crimes and offenders are subject to execution, resulting in an attrition rate by which only around one per cent of murders result in the death penalty. In the words of the US Supreme Court, the death penalty is “limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution”.2 Carefully framed capital statutes, guided prosecutorial discretion, juror consideration of mitigating and aggravating factors, and multiple judicial appeals, ensure consistency, accuracy and fairness in capital justice. And then, in the words of the US Supreme Court’s Chief Justice in 1993, in a Texas death penalty case, because “it is an unalterable fact that our judicial system, like the human beings who administer it, is fallible”, executive clemency provides “the ‘fail-safe’ in our criminal justice system”. At least that is the theory. Reality is very different. Arbitrariness, discrimination and error mark the death penalty in Texas as elsewhere in the USA, along with the inescapable cruelty of this outdated punishment. Clemency all too often fails to prevent injustice. International law recognizes that some countries retain the death penalty. However, this acknowledgment of present reality should not be invoked “to delay or to prevent the abolition of capital punishment”, in the words of Article 6.6 of the International Covenant on Civil and Political Rights. With a view to abolition, international standards require a narrowing of capital punishment and the application of safeguards aimed at minimizing arbitrariness and irrevocable error. Children, the mentally impaired, the inadequately defended, and those whose guilt remains in doubt are among those supposed to be protected from the death penalty. Those executed in Texas since Jack Clark was put to death have included individuals from each of these categories. This report looks back at a few of the cases of prisoners executed in Texas during Governor Perry’s term in office, and forward to a few cases that may yet come across his desk. This is not to suggest that the governor alone is responsible for the fate of those on death row. Many people are involved in capital justice – from prosecutors to jurors, from legislators to prison staff, from judges to members of the clemency board. In some cases, even the prisoners themselves assist the state in its pursuit of execution. About one in 10 of the more than 1,150 executions carried out in the USA since 1977 have been of condemned inmates who had given up their appeals and “consented” to being killed by the state.3 While some prisoners give up their appeals after years on death row, the death wish of others precedes their trials. Their unwavering pursuit of execution suggests that for them, far from being the deterrent some politicians claim, the death penalty represents a form of escape, whether from the torments of their lives, their crimes, or their minds. There have been seven such executions in Texas during Governor Perry’s time in office. For example, Christopher Swift was put to death on 30 January 2007 after less than two years on death row. According to one of his trial lawyers, “receiving the death penalty is what he’s wanted from day one, from the first day I met him.” Christopher Swift had prevented his lawyers from presenting any witnesses at his 2005 trial. He waived his right to a lawyer for his automatic mandatory appeal, and when the death sentence was affirmed, asked for an execution date to be set. 2 Roper v. Simmons (2005), quoting Atkins v. Virginia (2002). 3 See: USA: Prisoner-assisted homicide - more ‘volunteer’ executions loom, May 2007, http://www.amnesty.org/en/library/info/AMR51/087/2007/en. Amnesty International 30 April 2009 AI Index: AMR 51/057/2009 Too much cruelty, too little clemency. Texas nears 200th execution under current governor 3 The power of the Texas governor to intervene in death penalty cases is somewhat circumscribed. Under Texas law, while the governor has unfettered authority to issue a one-off 30-day reprieve for anyone facing execution, he or she cannot grant a longer reprieve or commute a death sentence without a recommendation to do so from a majority of the members of the state Board of Pardons and Paroles. At the same time, the governor can reject such a recommendation. Nevertheless, it would be surprising if the governor would not have substantial influence with the Board if he or she chose to take stands in favour of clemency in capital cases. The governor appoints the Board’s members (with state Senate confirmation), and the seven current members were all appointed by Governor Perry. Moreover, under the Texas Administrative Code, “The board shall investigate and consider a recommendation of commutation of sentence in any case, upon the written request of the governor.” Before the Board decides on a case, then, the Governor could inform them that he favoured clemency. Following clemency denials by the Board, the Governor could use his power of reprieve to send such cases back with a clear message that he favours commutation. Like his predecessor, however, Governor Perry has rarely exercised the power of reprieve.4 In one case where he did, in December 2004 he granted a 120-day reprieve to Frances Elaine Newton on the recommendation of the Board of Pardons and Paroles.
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