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Death and Texas: the Unevolved Model of Decency View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by UNL | Libraries Nebraska Law Review Volume 90 Issue 1 Article 5 2011 Death and Texas: The Unevolved Model of Decency Patrick Metze Texas Tech University, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation Patrick Metze, Death and Texas: The Unevolved Model of Decency, 90 Neb. L. Rev. (2013) Available at: https://digitalcommons.unl.edu/nlr/vol90/iss1/5 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. \\jciprod01\productn\N\NEB\90-1\NEB105.txt unknown Seq: 1 30-AUG-11 12:43 Patrick S. Metze* Death and Texas: The Unevolved Model of Decency TABLE OF CONTENTS I. Introduction ........................................ 241 R II. History of Modern Death Penalty Law............... 242 R III. Texas Penal Code Section 19.03 Capital Murder ..... 246 R IV. Mens Rea in the Capital Murder Context ............ 247 R V. Diminished Capacity ................................ 251 R VI. Party Responsibility ................................ 258 R VII. Section 19.03(a)(1) Penal Code: Murder of a Peace Officer or a Fireman ................................ 263 R VIII. Section 19.03(a)(2) Penal Code: Murder in the Course of Committing or Attempting to Commit Certain Crimes ............................................. 264 R A. Nexus between the Murder and the Underlying Crime ........................................... 265 R 1. Robbery ..................................... 265 R 2. Aggravated Sexual Assault .................. 272 R 3. Kidnapping .................................. 273 R 4. Burglary .................................... 274 R 5. Arson ....................................... 276 R 6. Obstruction or Retaliation ................... 277 R Copyright held by the NEBRASKA LAW REVIEW. * Associate Professor of Law, Director of Criminal Clinics (Criminal Defense Clinic, Capital Punishment Clinic and Caprock Regional Public Defender Clinic) at Texas Tech University School of Law; B.A. Texas Tech University 1970; J.D.The University of Houston 1973. This paper was adapted from a paper prepared for presentation to The State Bar of Texas 36th Annual Advanced Criminal Law Course July 26-29, 2010, San Antonio, Texas. Thanks to a man I am honored to call my colleague, Professor Arnold Loewy, Texas Tech University School of Law Judge George R. Killam Jr. Chair of Criminal Law, who has willingly been my mentor and friend during my transition from a lifetime of practicing law to my new life of passing along the lessons I learned along my way. Also, thank you to the rest of my colleagues on the faculty of the Tech Law School who graciously gave me the opportunity to do this work. Special thanks goes to my research assistant, Kama Lawrence, who has shared with me her intellect and amazing legal research talents while being a patient, cheerful, and insightful companion on this journey. 240 \\jciprod01\productn\N\NEB\90-1\NEB105.txt unknown Seq: 2 30-AUG-11 12:43 2011] DEATH AND TEXAS 241 7. Terroristic Threat ........................... 279 R IX. Section 19.03(a)(3) Penal Code: Murder for Remuneration ...................................... 280 R X. Section 19.03(a)(4) Penal Code: Murder while Escaping or Attempting to Escape From a Penal Institution .......................................... 282 R XI. Section 19.03(a)(5) Penal Code: Murder while Incarcerated in a Penal Institution .................. 283 R A. Penal Institution Employee ...................... 283 R 1. Combination ................................ 284 R XII. Section 19.03(a)(6) Penal Code: Murder while Serving a Sentence for Certain Crimes ...................... 287 R XIII. Section 19.03(a)(7) Penal Code: Murder of more than One Person ......................................... 291 R XIV. Section 19.03(a)(8) Penal Code: Murder of a Child Under Six Years of Age ............................. 298 R A. Constitutionality ................................ 298 R B. Murder of a Fetus ............................... 299 R XV. Section 19.03(a)(9) Penal Code: Murder of a Judge . 306 R XVI. Capital Punishment for Non-Murder Crimes ......... 306 R XVII. The Legislature’s Expansion of Section 19.03 ........ 310 R XVIII. The Court of Criminal Appeals’ Complicity .......... 313 R XIX. Evolving Standards of Decency ...................... 318 R XX. Conclusion .......................................... 329 R XXI. Appendix A ......................................... 335 R XXII. Appendix B ......................................... 338 R “One murder made a Villain, Millions a hero—Princes were privileg’d To kill, and numbers sanctified the crime.”* *BEILBYPORTEUS, DEATH: A POETICAL ESSAY, 12 (1759) “Confusion now hath made his masterpiece! Most sacrilegious murder hath broke ope. The Lord’s anointed temple, and stole thence. The life o’ the building!” WILLIAM SHAKESPEARE, MACBETH act 2, sc. 3. I. INTRODUCTION Capital punishment practice in recent years has diverged from em- phasis on guilt-innocence to dedicate virtually all resources to punish- ment issues. This Article attempts to avoid this myopic approach by taking stock of the current state of substantive capital law at its very foundation. After a brief history of modern death penalty jurispru- dence and a restatement of the current rendition of Texas’s capital murder statute, this Article will focus first on two troubling themes in capital representation. First, how mens rea issues can address the \\jciprod01\productn\N\NEB\90-1\NEB105.txt unknown Seq: 3 30-AUG-11 12:43 242 NEBRASKA LAW REVIEW [Vol. 90:240 lack of “diminished capacity” in Texas capital punishment law while suggesting a seldom used or understood legal strategy. A second reoc- curring problem in the application of the Texas capital statutes and the cases interpreting those statutes is the use of “party responsibil- ity” to qualify a defendant other than the “trigger man” for the death penalty. Following a detailed review of section 19.03 of the Texas Penal Code (the Code), with its history and current advancements in the law, I make the argument that the current statute is unconstitutional, that it has “unevoled” once again into a vehicle which drove previous capital statutes to be stricken as capricious, arbitrary, racist, and vio- lative of the Eighth Amendment. Finally, I argue that rather than reintroduce the constitutional limits that once made the statute palat- able the statute should be scrapped altogether. The current statute is incomprehensible to the ordinary person, subject to the capricious whims of prosecution and appellate review, and disproportionate in its application to minorities. As evidence continues to mount of the probability that innocent people are being executed, of the overbearing financial burden this remedy places upon society, and of the growing disfavor by which the death penalty is viewed, justice calls for the end to this transgression upon the human condition consistent with the evolving standards of decency in our maturing society. II. HISTORY OF MODERN DEATH PENALTY LAW A brief history of modern capital punishment jurisprudence will put this discussion into context. In 1972, the United States Supreme Court struck down the application of the existing capital sentencing schemes finding them unconstitutional in the manner applied as in violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution.1 The unfettered dis- cretion to arbitrarily2 and capriciously3 impose a death sentence was labeled “freakish[]” and “wanton[].”4 The Court further noted the role of racism in the arbitrary administration of state statutes, as well as the disproportionate number of African American defendants in capi- tal cases.5 State statutes that provided for automatic death sentences for all capital murders or first-degree murders were struck down as 1. Furman v. Georgia, 408 U.S. 238 (1972). 2. Id. at 273 (Brennan, J., concurring); Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996); see TEX. PENAL CODE ANN. § 7.01(c) (West 2003 & Supp. 2010) (“All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”). Consequently, the Courts will use the term “party” or “accomplice” interchangeably. 3. Furman, 408 U.S.at 295. 4. Id. at 310 (Stewart, J., concurring). 5. Id. at 249 (Douglas, J., concurring). \\jciprod01\productn\N\NEB\90-1\NEB105.txt unknown Seq: 4 30-AUG-11 12:43 2011] DEATH AND TEXAS 243 violations of not only the Eighth but also the Fourteenth Amendment.6 Responding to Furman, thirty-five states came forward with new statutes.7 In 1976 the Supreme Court reviewed five of the new stat- utes, approving three and rejecting two.8 In striking down North Car- olina’s mandatory death sentence for murder, the Court said such a mandatory statute failed to consider the character and record of the defendant or the circumstances of the offense and violated the “funda- mental respect for humanity” which supports the Eighth Amend- ment.9 This is the genesis of mitigation in modern death penalty jurisprudence.10 6. The Court specifically noted: [D]eath stands condemned as fatally offensive to human dignity. The punishment
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