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The Ethics of the Texas Death Penalty and Its Impact on a Prolonged Appeals Process

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The Ethics of the Texas Death Penalty and Its Impact on a Prolonged Appeals Process The Ethics of the Texas Death Penalty and Its Impact on a Prolonged Appeals Process Theodore Pearlman, MD Society remains sharply divided as to the deterrent value of capital punishment. Following the reintroduction of the death penalty in the United States, Texas law mandates the affirmative predictability of future dangerousness beyond a reason- able doubt before a jury can impose the ultimate penalty for capital murder. The validity of prediction of dangerousness has been challenged in three Texas land- mark cases before the U.S. Supreme Court. The case of Karla Faye Tucker highlights the moral controversy that occurs when execution follows an appeals process stretching over more than a decade, during which time personality growth and the effects of prison rehabilitation may have eliminated or curbed criminal tendencies. farewell? What did helshe chose as a final "To trade and traffic with Macbeth in riddles meal? Who were the execution wit- and affairs of deathw-Shakespeare, Mucbeth, nesses? What were hislher final words? Act 111, Scene V During the decade from 1966 until 1977. there was a moratorium on executions in Society remains deeply divided on life the United States. In Funnan v. Georgia, ' and death issues, such as abortion, as- the U.S. Supreme Court determined that sisted suicide, and capital punishment. states imposed the death penalty in an Ambivalent attitudes toward the death arbitrary and capricious manner, thus vi- sentence are reflected in the public's avid olating the Eight Amendment, which for- but morbid interest in press reports fea- bids cruel and unusual punishment. The turing hour by hour details of a con- Court ruled that for states to execute de- demned prisoner's final day of living: fendants found guilty of capital crimes, What time did he or she awaken? Which procedural guidelines needed to be devel- family members and visitors were bid oped so that a jury could fairly and ob- jectively consider specific circumstances Dr. Pearlman is Clinical Assistant Prolessor, Dcpart- before imposing the death sentence. In ment of Psychiatry, Baylor College of Medicine, Hous- ton, TX. Address correspondence to: Theodore Pearl- due course, 36 states and the federal gov- man, MD, Greenpark Two-Suite 320, 7505 South Main, Houston, TX 77030. E-mail address: docpearl@ ernment reinstituted capital punishment n1sn.com with policies in compliance with the Su- J Am Acad Psychiatry Law, Vol. 26, No. 4, 1998 655 Pearlman preme Court mandate. Texas adopted a ecuted. The first woman to be executed in new sentencing policy requiring the jury the United States since the Supreme to answer three questions at the punish- Court reinstated the death penalty was ment phase of a capital murder trial. Was Velma Barfield of North Carolina, who the conduct of the defendant deliberate poisoned four people. and with reasonable expectation that In addition to gender difference, a Uni- death would ensue? Was the defendant's versity of Iowa study of Georgia's death conduct an unreasonable response to sentencing occurrences concluded that provocation, if any, by the deceased? Was nearly one-third of the death sentences it probable that the defendant would com- imposed in Georgia may be racially dis- mit future criminal acts of violence con- criminatory."he study reports that de- stituting a continuing danger to society? fendants charged with killing whites were Should the jury find that the state has sentenced to death in 11 percent of the proved beyond a reasonable doubt that cases, whereas those charged with killing the answer to each of these questions is blacks were condemned in only 1 percent affirmative. the death sentence is im- of the cases. Statistical analysis con- posed. If the answer to any of these ques- cluded that the odds of the death sentence tions is negative, a sentence of life im- for those charged with killing whites was prisonment results. 4.3 times higher than odds of the death Since the reintroduction of capital pun- sentence imposed upon defendants ishment in 1977, the country's prison and charged with killing blacks. The majority jail population had increased to an esti- on the U.S. Supreme Court in McCleshy mated 1.6 million by 1996.~Simulta- v. ruled that these data did not neously the pace of executions has risen prove the presence of purposeful racial steadily. In 199 1 there were just 14 exe- discrimination. However. the dissent ar- cutions. By 1997 the annual incidence gued that demonstration of a significant had increased to 74. half of which were risk of discrimination, rather than defini- carried out in Texas. Since reinstatement tive proof, is all that is needed to show of capital punishment, about 450 persons constitutional violation. Several studies have been put to death, Texas leading the examining contemporary death sentenc- nation with nearly one-third of the total ing patterns in other states have reached executions. Texas has executed 145 per- conclusions that parallel the Georgia sons since 1982. study." Not only is society sharply divided on Although Texas has reduced the arbi- the pros and cons of the death penalty, trariness and capriciousness implicit in including its deterrent value, but discrim- imposition of the death sentence by inative epidemiological statistics con- adopting procedural guidelines, it's fair- pound the controversy. There is a stark ness and constitutionality have been re- gender difference. Whereas in the past 15 peatedly challenged. In Jurek v. ex as^ years Texas has killed 144 men, only 1 the petitioner argued that the imposition woman, Karla Fay Tucker. has been ex- of the death penalty under any circum- 656 J Am Acad Psychiatry Law, Vol. 26, No. 4, 1998 Ethics of the Texas Death Penalty stances is cruel and unusual punishment. three cases in the prediction of future The petitioner stated that arbitrariness violent behavior. Judge Blackmun wrote still pervades the Texas criminal justice that because death in its finality differs so system because of prosecutorial variance starkly Gom life imprisonment, absence between capital charges and plea bargain- of reliability in determination of future ing. The U.S. Supreme Court upheld Ju- violence in death sentence cases con- rek's sentence, asserting that Texas law flicted with Eighth Amendment jurispru- permits a defendant to offer balancing dence. Judge Blackmun pointed out that mitigating evidence to counter and rebut the American Bar Association had repeat- state testimony relating to aggravating edly warned that sentencing juries are factors. In Barefoot v. ~stelle,~the con- particularly incapable of dealing with in- demned man argued that the imposition formation relating to the likelihood that of the death penalty by the jury, premised defendants will commit other crimes and upon state psychiatric testimony that his similar predictive judgments. future dangerousness was predictable be- In Estelle v. Smith, lo psychiatric evi- yond a reasonable doubt. constituted un- dence that Smith was sociopathic and scientific evidence. In this case the state likely to commit further acts of violence psychiatrist. Dr. Grigson, without having resulted in his receiving the death pen- examined Barefoot, hypothetically deter- alty. However, because at a competency mined that Barefoot was a severe socio- to stand trial examination the psychiatrist path and that he constituted a 100 percent had failed to warn Smith that information absolute risk of committing future acts of that he disclosed could be used as evi- criminal violence. Based upon Dr. Grig- dence against him, the Supreme Court son's evidence, the jury answered "yes" vacated the sentence at a capital scntenc- to the statutory questions that resulted in ing hearing. Contrary to the psychiatric imposition of the death sentence. Al- evidence asserting beyond a reasonable though the American Psychiatric Associ- doubt that Smith would continue to be a ation. participating in this case as amicus danger to society, he is currently serving curiae, argued that psychiatrists have no time in a minimal security prison. He has special training or skills in predicting fu- exhibited no recurrence of previous vio- ture dangerousness, least of all answering lent propensities. Whether his nonviolent hypothetical questions without having ex- behavior as currently evident will sustain amined a patient, the Supreme Court. by a itself outside of the confines of prison life majority of 6 to 3, affirmed the convic- is unpredictable, but remains a reasonably tion. However, the three dissenting judges likely possibility. opined that the long term prediction of future violence by psychiatrists is ex- Texas v. Karla Faye Tucker tremely unreliable. These judges quoted Karla Faye Tucker, a 38-year-old con- the research of John ~onahanhho victed double murderess, was executed in found that psychiatrists and psychologists Huntsville, Texas. on February 3, 1998. were accurate in no more than one out of She was the first woman to be executed in J Am Acad Psychiatry Law, Vol. 26, No. 4, 1998 657 Pearlman Texas in 134 years. With her then-boy- Texas, George Bush 111, pleading for friend, Danny Garret. Tucker had partic- clemency. Support for Tucker came from ipated in a pickaxe murder of a 27-year- Pope John 11, the European Parliament, old man and his 32-year-old girlfriend. and the United Nations, moved by her Garret died in prison in 1993 before he claim that she had turned to God. The could be executed. In mitigation of sen- Governor responded to letter writers stat- tence, Tucker claimed that at the time of ing that unless the Texas Board of Par- commission of the capital offense she was dons and Paroles recommended mercy. high on alcohol and drugs. She also he had no authority to commute Tucker's claimed that a deprived childhood, in- death sentence to life imprisonment. The cluding being forced into prostitution at Governor stated that he believed that the an early age, had adversely affected her death sentence was a deterrent.
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