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A Report by the Death Penalty Information Center J I-"~"--

• The Future of the Death Penalty in the United States: A Texas-Sized Crisis

"[T]he scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come. We cannot let it • continue. " -J ustice Thurgood Marshall 153841 U.S. Department of Justice National Institute of Justice

This document has been reproduced exactly as received from the person or organization originating it. Points of view or opinions stated in this document are those of the authors and do not necessarily represent the official position or policies of the National Institute of Justice. Permission to reproduce this copyrighted material has been grar.ted by Death Penalty Infonnation Center

to the National Criminal Justice Reference Service (NCJRS). Further reproduction outside of the NCJRS system requires permission of the copyright owner.

A Report by the Death Penalty Information Center Written by Richard C. Dieter, Executive Director 1606 20th St. NW Washington, DC 20009 202/347-2531 • May 1994 • Table of Contents

Executive Summary ····~'a············ ...... I11 •••••••••••••••• 1

Introduction ...... 2

The Death Penalty In Texas: A State of Crisis

1. Official Misconduct ...... 4 NATIONAL IMPLICATIONS ...... 9

2. Racism In Deciding Who Should Die ...... 10 NATIONAL IMPLICATIONS ...... 13

3. The Crisis in Represenfation in Texas ...... 15 NATIONAL IMPLICATIONS ...... 21

4. Clemency in Texas ...... 22 NATIONAL IMPLICATIONS ...... 23

5. Texas Crime and the State's Response ...... 23 NATIONAL IMPLICATIONS ...... 26

Conclusion ...... 27

References ._ ...... 28

• The Future of the Death Penalty 1

Executive Summary rose to become the nation's leading death penalty state, its Texas is the nation's foremost crime rate grew by 24% and its • executioner. It has been violent crime increased by 46%, responsible for a third of the much faster than the national executions in the country and has ?verage. Texas leads the country carried out two and a half times as ill numbers of its police officers many death sentences as the next killed and more Texans die from leading state. Death warrants are gunshot wounds than from car being signed at an unmanageable accidents. pace, yet the Texas death row is bulging with unprecedented But Texas's death penalty numbers of inmates. But this problems are certainly not unique. accelerated form of justice comes Many states with large death rows at a price. The rest of the country have also been plagued by should heed the warning of the prosecutorial misconduct, innocent Texas experience before it embarks defendants sentenced to death, on a wholesale expansion of the racism in the application of justice, death penalty. inadequate representation, and the high costs of the death penalty. The death penalty in Texas is Forty-eight defendants have been in a state of crisis. Numerous released from death row since death penalty convictions have capital punishment was reinstated been tainted by overzealous after evidence of their innocence prosecutions and the use of was discovered. Half of the perjured testimony. State paid nation's death row is made up of medical "experts" make unreliable minorities and almost all capital • cases involve white victims. predictions about defendants' future dangerousness while other doctors simply lie about tests they Many in America are pushing never performed. Six innocent for a faster pace and a wider use of people have been sentenced to the death penalty on both the state death and later released since 1987. and federal levels. Texas is a The race of the defendant and paradigm of what can happen victim playa major part in which under such an expansion. caE'.es are selected for the death penalty. Legal representation of Some politicians and law indigent defendants at trial is enforcement officers in Texas are frequently incompetent, and beginning to have second representation for appeals is often thoughts about their state's non-existent. And the costs of the practice of the death penalty. death penalty in Texas are in the While people want to address the hundreds of millions of dollars problem of crime, they also want with no end in sight. solutions that really work. Nationally, there should be a And yet, Texas has little to careful examination of death show for all this expense and the penalty justice in Texas before we sacrifice of judicial due process. embrace an expansion of • During the period when Texas executions as an answer to crime. l 2 The Future of the Death Penalty I

When in Gregg v. Georgia the Supreme Court gave Us seal of approval to capital punishment, this endorsement was premised on the promise that capital punishment would be administered • with fairness and justice. Instead, the promise has become a cruel and empty mockery. If not remedied, the scandalous state of our present system of capital punishment will cast a pall of shame over our society for years to come. We cannot let it continue. -Justice Thurgood Marshall, 19901

From this day forward, I no longer shall tinker with the machinery of death. . .. I feel morally and intellectually obligated to concede that the death penalty experiment has failed. -Justice Harry Blackmun, 19942

more than three times as many Introduction executions as any other state and carried out almost half of the Between 1967 and 1977, death sentences in the entire executions in the United States country. were halted as evidence of racial injustice and arbitrariness in the The accelerated pace of use of the death penalty mounted. executions and the disturbing When most states revised their number of inmates facing death capital punishment laws, the without legal representation in Supreme Court allowed the death Texas has drained both the state's • penalty to resume in 1976. But resources and the ability of the this approval inaugurated a new defense bar to adequately respond. period of experimentation At the same time, the political regarding the application of the pressure to achieve even more death penalty. In the eyes of death sentences and more many, including Justice Blackmun executions has frequently given who oversaw this entire critical due process a back seat. period of death penalty history, that experiment has failed to meet But the size and problems of even the minimal standards of capital punishment in Texas are fairness and justice. And not unique to that state. The nowhere are these failings more United States is perched on the evident than in the state of Texas. precipice of a wholesale expansion of the death penalty. Before it No other state comes close to tak?'" the plunge, the country the number of executions being should look at Texas' experience. carried out in Texas. It has put to The warehousing of hundreds of death more than twice as many people awaiting execution, half of inmates as any other state shce whom are minorities, the the death penalty was reinstated. constant signing of death In 1993 alone, Texas accounted for warrants, the grisly spectacle of • A Texas-Sized Crisis 3

------weekly executions, and the perpetuate Texas' death • erosion of due process by the penalty problems. The United States is relentless press to execute will be perched on the much more common in the years • The absence of clemency as a precipice of a ahead if the United States chooses realistic remedy to prevent to follow the Texas model. The wrongful executions; and wholesale problems which Texas has been expansion of the experiencing in its rise to the • The way in which Texas' death penalty. position as the nation's foremost emphasis on the death penalty Before it takes the executioner are already emerging interferes with addressing the plunge, the country in other states throughout the larger problem of crime. country. should look at At each step of the way, the Texas' experience. This report will look at report will look at the national various dimensions of the death implications of what is happening ------penalty crisis in Texas: in Texas. It will identify the extent to which the Texas death penalty • The examples of official is likely to be mirrored in the rest misconduct and resulting of the United States in the near mistaken convictions; future. Finally, the report will point to the signs of official • The evidence of racism disillusionment with the death infecting the application of the penalty in Texas. The death death penalty; penalty crisis in Texas should be a warning to our entire country as • • The crisis in death penalty we struggle to respond to the representation which serves to national problem of crime.

I 1 I 4 The Future of the Death Penalty

The Death Penalty in Texas: • A State of Crisis

"lTlhe scandalous To get an idea of the size of the danger because of the death state of our present death penalty in Texas, it is penalty: U[T]he scandalous state of instructive to look at what the our present system of capital system of capital death penalty in the entire punishment will cast a pall of punishment will country would be like today if shame over our society for years cast a pall of shame every state had proportionately to come.u4 As the nation moves over our society for followed Texas' lead. toward an even greater expansion years to come." of this practice, it should consider In 1993 alone, there would whether capital punishment is -Justice have been 250 executions, one for worth the mantle of such a pall of Thurgood Marshall every business day of the year and shame. the largest number of executions in the country's history. In the last ten years, the U.S. would have executed over 1,000 people. The nation's death row would house 1. Official more than 5,300 condemned individuals. The national cost for Misconduct: The the death penalty would be at least Death Penalty With • two billion dollars, with much more expense to come. The courts A Vengeance of appeals and the Supreme C(Jurt Texas has pursued the death would be deluged with petitions penalty with a vengeance. from condeml1ed inmates, while Prosecutors and politicians have at the same time hundreds of staked their careers on getting inmates would have no attorney people executed. Unfortunately, as their execution dates such political grandstanding approached. Meanwhile, all of results in more than rhetoric -­ these executions would have done individual rights have been nothing to lower the nation's sacrificed and innocent people 3 murder rate. have been sent to death row.

In achieving this proficiency in This phenomenon is certainly executions, Texas has sacrificed not unique to Texas, but Texas the pursuit of justice. It was politicians have campaigned probably no coincidence that shamelessly on the strength of Justice Blackmun chose a Texas their commitment to ever more case to condemn the death executions. In the 1990 penalty. Justice Thurgood guberna torial race, former Marshall had earlier warned that Governor Mark White portrayed the entire country was in similar • L_. ---_._._--.------_...... _----

A Texas-Sized Crisis 5

his "toughness" by walking simply the product of honest • through a display of large photos prosecutorial mistakes. When of people executed during his Randall Dale Adams had his term, while Attorney General Jim murder conviction unanimously Mattox insisted that he was the overturned by the Texas Court of one who should be given credit Criminal Appeals, Judge M. P. for the many executions under his Duncan sharply castigated the watch. And the Republican prosecution: "[T]he State was candidate, Clayton Williams, guilty of suppressing evidence claimed that his proposed laws to favorable to the accused, deceiving expand the death penalty were the trial court during the "the way to make Texas great applicant's trial, and knowingly again."S using perjured testimony."6

The end result of all this Similarly, when Texas Special political posturing was a spoof of District Judge Perry Pickett Texas on "Saturday Night Live" reviewed Clarence Brandley's and the election of Ann Richards conviction in 1987, he concluded as governor. Governor Richards that the state's investigative was the least vociferous of the procedure was "so impermissibly candidates on the death penalty suggestive that false testimony but has nevertheless presided was created, thereby denying ... over a dramatic increase in the due process of law and a pace of executions in Texa~. fundamentally fair trial."7 Furthermore, the state had • Convicting the Innocent "wholly ignored any evidence or leads to evidence that might "The State was Among elected state prove inconsistent with their guilty of prosecutors, death penalty rhetoric premature conclusions that suppreSStng has sometimes spilled over into Brandley had committed the serious abuses in order to secure a murder. The conclusion is evidence favorable death sentence. Two of the most inescapable that the investigation to the accused, famous Texas examples of this was conducted not to solve the deceiving the trial misconduct involved Randall crime, but to convict Brandley."g court during the Dale Adams and Clarence applicant's trial, Brandley, both of whom were In their zeal to obtain capital released from Texas' death row convictions, Texas prosecutors and knowingly after years of struggle to prove have made wide use of medical using perjured their innocence. Adams'story "experts" selected because of their testimony. " was eloquently told in the award willingness, in case after caGe, to -decision winning movie, The Thin Blue parrot the exact words the Line, and Brandley's struggle with prosecutor needs to get a overturning Texas racism is related in Nick conviction. One such "expert" is Randall Dale Davies' book, White Lies. Dr. James Grigson -- or "Dr. Adams' conviction Death," as he came to be known. The original convictions of • Adams and Brandley were not

~ ______a:_== ___ , ______6 The Future at the Death Penalty

Dr. Death, I Grigson made these same predictions about Randall Dale • In Texas, jurors are required to Adams, despite Adams' having determine "whether there is a no history of violence. The fact probability that the defendant that Adams was exonerated of all would commit criminal acts of charges and was freed from prison violence that would constitute a a number of years ago has done continuing threat to society."9 nothing to sway Grigson's Not only is it difficult for a lay certainty about his predictions.13 person to make such a judgment, it is also impossible for In later cases, Grigson would professionals. Naturally, a jury offer his absolutely certain view of would give considerable weight to the future without even a state psychiatrist who interviewing the defendant. He unhesitatingly predicts with would simply listen to the scientific certainty that the person prosecutor's description of the sitting in front of them will defendant's crime and background invariably kill again if helD is and then offer the conclusion that allowed to live. such a person would certainly kill again, no matter what the setting. Dr. James Grigson offered just such predictions in at least 124 The American Psychiatric death penalty cases, 115 of which Association has unequivocally resulted in death sentences.ll Dr. condemned the process that Dr. Grigson tra veled the plains of Grigson has used so liberally. Texas offering his testimony in "[P]sychiatric testimony of future • exchange for sizable fees. At first, dangerousness impermissibly Grigson would personally distorts the fact-finding process in examine the defendant, perhaps capital cases,"1L! they said in a brief for 90 minutes. Based on this to the Supreme Court. cursory interview, Dr. Grigson would then be asked by the Moreover, empirical studies prosecutor in court: have shown the inaccuracies of pr·edicting future dangerousness. Can you tell us whether or not, One study in Texas examined 92 in your opinion, having killed in fonner death row prisoners the past, he is likely to kill in the whom juries had sentenced to future, gi7Jen the opportunity? death because of their future dangerousness. For various Grigson would reply: reasons, these inmates had their sentences changed from death to He absolutely will, regardless life imprisonment. The study of whether he's inside an concluded: institutional-type setting or whether he's outside. No matter where he is, he will kill again.12 • I A Texas-Sized Crisis 7

Overall these former death that the defendant must serve 40 • row prisoners were not a years before even being considered disproportionate threat to the for parole. But jurors are told institutional order, other inmates, only that their alternatives are the or the custodial staff. Indeed, their death penalty or a life sentence. total rate of assaultive They are left with their erroneous institutional misconduct was assumptions that a life sentence lower than those of both the will allow a dangerous murderer capital murder offenders who to be released in 10 years or less,17 were given a life sentence [to begin with] and the general prison population. IS

Dr. Death, II 250 Another critical element of the prosecution's case in a capital trial 200 is proof that the victim's death resulted from the defendant's violent actions. To tie that knot, 150 many prosecutors in Texas have utilized a pathologist by the name of Ralph Erdmann, who has also 100 earned the name "Dr. Death." • Erdmann received his medical degree in Mexico in the 1950s and 50 traveled to 40 Texas counties supposedly performing 400 autopsies a year in capital and o non-capital cases. Lubbock County alone paid Dr. Erdmann $140,000 a year for his work. Now the verdicts in at least 20 capital murder cases and dozens of other prosecutions are being appealed because Erdmann lied, falsified Despite the unreliability of reports and even neglected to such predictions, Dr. Grigson's perform some of the autopsies he testimony has been used by the testified about.1 8 prosecution in one-third of Texas' death sentences.I6 The problem of Erdmann's word began to be manipulating juries with fear is doubted when one family read his compounded by Texas law which autopsy report indicating that the forbids telling the juries what the deceased's spleen had been alternative to a death sentence examined and weighed as part of really means. A life sentence in a the examination. However, the capital case in Texas now means family knew that the dead man's

...==------~-----,------

8 The Future of the Death Penalty

spleen had been removed years the prosecutors who indicted earlier. As a result of the family's them was settled in favor of the • intervention, the body was plaintiffs with the agreement that exhumed and no incision marks the prosecutions be permanently from an autopsy were found.19 At stopped, that the policemen be that point, attorney Tommy restored to their jobs with full Turner of Lubbock was appointed back pay, and that they be awarded special prosecutor to look into $300,000 in damages.22 Erdmann's deceptions. Turner concluded that Erdmann was a Dr. Erdmann had earlier liar and a con man: "If the pleaded no conte3t to seven felony "If the prosecution prosecution theory was that death charges. He was sentenced to 10 theory was that was caused by a Martian death ray, years probation, and fined $17,000 death was caused then that was what Dr. Erdmann for botched autopsies and by a Martian death reported.'o2O exhumation expenses. He also ray, then that was surrendered his medical license Killing the Messenger and moved to another state.23 what Dr. Erdmann reported'" When Erdmann's methods As disgraceful as the behavior -Special and testimony came under of these medical "experts" has prosecutor Tommy increasing criticism in death been, the real scandal is that Turner penalty cases, some prosecutors prosecutors were willing to retaliated by prosecuting repeatedly utilize such witnesses Erdmann's critics. Two police in order to get convictions and officers, Patrick Kelly and William death sentences. In other Hubbard from Lubbock County, instances, prosecutors failed to • who had testified about investigate cases thoroughly and Erdmann's misdeeds, were allowed defendants, later found indicted for alleged perjury. And innocent, to be sentenced to death. nationally famous death penalty Besides Randall Dale Adams and defense attorney, Millard Farmer Clarence Brandley, at least four of Atlanta, was indicted for other Texas death row inmates supposedly tampering with a have been found innocent in witness. However, this effort to recent years (Muneer Deeb, 1993; cover-up the growing scandal Federico Macias, 1993; John around Dr. Erdmann fell apart. Skelton, 1990; and Vernon McManus, 1987) and that number A federal District Court judge could increase as further abuse is ordered a halt to the prosecutions examined. Unfortunately, this and stated that those being pattern of prosecutorial attacked "have offered substantial misconduct in capital cases is not evidence that the prosecutions unique to Texas. were brought in bad faith and for purposes of retaliation."21

A suit brought by the police officers and Mr. Farmer against • A Texas-Sized Crisis 9

NATIONAL evidence helpful to the defense."25 • Richardson was released in 1989. IMPLICATIONS: Official Misconduct Just last year, five people were released after years on death row The pressure on prosecutors for {:rimes they did not commit.26 and police to succeed in death In the case of Walter McMillian in penalty cases has resulted in Alabama, prosecutors admitted miscarriages of justice all over the that the case had been country. Representative Don mishandled. Evidence was Edwards, Chair of the House improperly withheld from the Judiciary Subcommittee on Civil defense, the state's three main and Constitutional Rights, witnesses all admitted that they released a staff report in October, had lied, and the "eyewitness" 1993, recounting 48 cases since said that he had been pressured to 1970 in which the defendants were pin the blame for the murder of sentenced to death but later the young white woman on exonerated and released.24 In McMillian, who is black.27 many of these cases, the prosecutors or police illegally In the case of Kirk withheld vital information from Bloodsworth in Maryland, the defense, encouraged witnesses prosecutors improperly withheld to lie, and deceived the court in a evidence of a different suspect variety of ways. In other cases, who bore a striking resemblance prosecutors pushed for the death to the police sketch in the rape • penalty in headline cases in which and murder of a young girl. The they lacked sufficient evidence other suspect had been found in even to sustain a conviction. the woods near the murder scene, had a blood-like spot on his shirt, For example,. when Attorney and was very dirty except for his General Janet Reno was a hands, which were meticulously prosecutor In Dade County, clean. Moreover, the police found Florida, she helped uncover a a young girl's underwear in this pattern of official abuse in the suspect's car. The suspect had a death penalty conviction of James prior conviction for indecent Richardson. Richardson had been exposure and had failed a sentenced to death for poisoning polygraph test.28 Nevertheless, his own children in 1968. He was prosecutors sought and obtained a spared the electric chair when the death sentence against Supreme Court overturned all Bloodsworth. Fortunately, he was existing death sentences in 1972, completely cleared in June, 1993, but he remained in prison. when a new DNA test confirrn(~d Reno's 1989 investigation that someone else had committed affirmed what had long been the crime.29 claimed by the defense: the state had "knowingly used perjured Federal prosecutors are also • testimony and suppressed not immune from such practices. 10 The F u t u reo f the De a t h Pen a 1 t Y

If Congress passes a greatly line in it nowheres that makes it expanded federal death penalty in illegal to kill a Chinaman. The • 1994, U.S. Attorneys will be defendant is discharged." responsible for a much larger -Judge Roy Bean, preSiding at number of death penalty cases. the trial of his son for murdering However, recent investigations a Chinese laundryman who into abuses in the EI Rukin gang overcharged him32 prosecution in IlHnois and a major racketeering case in Los The cop paused and stared at Angeles in which an appellate the two of them, the black man in court described the government's his white T-shirt and shabby jeans, conduct as "intolerable,"30 have the little white man with the thick shown that some federal glasses and the ballooning belly. prosecutors also engage in "One of you two is gonna hang for misconduct to obtain convictions. this," said the cop. Then he turned to Brandley. "Since you're Attorney General Janet Reno the nigger, you're elected." has promised much swifter -Nick Davies in White Lies, investigations into allegations of quoting testimony in the appeal of abuse by federal prosecutors. But Clarence Brandley33 "One of you two experience has shown that is gonna hang for evidenc~ of prosecutorial abuse, if In 1993, national attention was this," said the cop. discovered at all, may come only drawn to two murder cases in Then he turned to long after the defendant's Texas. In one case, the defendant conviction. In capital cases that was given the death sentence; in Brandley. "Since may be too late. This problem the other, he was placed on you're the nigger, • raises the almost certain specter probation. Although, the cases you're elected." that innocent people will be differ in some respects, the most -testimony executed, especially if capital glaring inequity is that a young punishment is expanded.31 white man was given leniency for leading to Clarence the murder of a black man, while Brandley's release a young black man was condemned to death for the 2. Racism In murder of a white man. This disparity is symptomatic of Deciding Who broader inequities in Texas Should Die depending on the race of the defendant and the race of the Judge (Roy) Bean opened the victim. session by spending two hours reading the Texas statutes aloud to Both of those convicted of the fhe courtroom spectators. He then crimes were 17 years old at the closed the law book, and, dropping time of the murders. In the first it on the bench, declared: "That's. case, a white supremacist . . the complete statutes of this skinhead, Christopher Brosky, was here state from the Alamo on given 10 years probation for the ahead, and there ain't a damned murder of Donald Thomas, a • I ATe x a s - S i zed C r i sis 11

black man. One of the jurors period, 34% had their sentences • responsible for the sentence commuted. Only 20% of the commented: "We just felt like this blacks received clemency.37 might be a man who might be able to turn his life around .... If we The race of the victim was an had sent him to Huntsville, he even more certain predictor of might have corne back in worse which cases would receive the shape."34 death penalty. Prior to 1972, 80% of the victims in Texas death In the second case, a young penalty cases were white.38 In black man, Gary Graham, was rape cases where the death penalty given the death penalty for the was applied, 95% of the victims murder of Bobby Lambert in were white. When a black man Houston back in 1981. Graham was convicted of raping a white has been on death row in woman, the sentence was Huntsville ever since. Both cases virtually always death. No white have split the community and man, however, was u{ecuted for resulted in demonstrations raising raping a black woman.39 issues of race and the administration of justice. Before 1924, central state Graham's case gained particular records on executions were not attention in 1993 because of new compiled, since the death penalty evidence pointing to his was carried out locally. However, innocence.35 His execution has Texas' part in the history of been stayed three times, but he lynchings in the U.S. reveals an • remains on death row. even more severe practice of racial bias. In post-Civil War Texas, Racism in Texas' Earlier lynchings were often used as a Use of the Death form of punishment and Penalty intimidation. Not surprisingly, almost all of those who suffered Outcomes based on race in this illegal form of vigilante death penalty cases have a long justice were black. From 1889 to history in Texas. From the time of 1899, over 95% of the recorded the first state executions, the race lynchings in Texas were of of the defendant played a large blacks.40 The geographical pattern role in who was given the death of lynchings in Texas closely penalty. For example, between followed those areas where 1924, when centralized state slavery had been most executions were begun, and 1972, prevalent.41 361 people were put to death in Texas. About 70% of them were As part of a response to the either African- or Mexican­ embarrassment of racial American, with blacks lynchings, state legislators voted constituting 63% of those to move executions to a central executed.36 Of the whites state location in Huntsville and to • sentenced to death during this change the method of execution ----~------~ 1 12 The F u t u reo f the D eat h Pen a 1 t Y

from hanging to the electric still a large disproportion. chair.42 Interestingly, the warden However, the racial disparities • of the Huntsville prison, Captain with respect to victims has RF. Coleman, resigned over this changed little. In capital cases, if unwanted duty, saying: "A you murder a white person in warden can't be a warden and a Texas, you are over five times "Coleman was killer too. The penitentiary is a more likely to receive the death rep laced by a more place to reform a man, not to kill penalty than if you murder a black accommodating 45 him."43 Coleman was replaced by person. In none of the 74 Texas warden, and four a more accommodating warden, executions was the victim black and four days later on Feb. 8, 1924, and the defendant white. In fact, a days later on Feb. 8, the State of Texas electrocuted its recent Texas study of homicide 1924, the State of first five prisoners, all black.44 cases between 1980 and 1988 found Texas electrocuted that no white offender who killed its first five a black victim has even been Racism in the Current prisoners, all Use of the Death charged and convicted with capital Penalty murder.46 black."

Racial discrimination in the Racism in the death penalty application of capital punishment does not fully explain the pace of was one of the factors that led the executions or the size of death row U. S. Supreme Court in 1972 to in Texas. However, it is a throw out virtually all existing recurrent and largely untreated death penalty statutes and sore which skews the use of the sentences. Their ruling required death penalty in Texas and eats states to more carefully craft new away at the hope for better • statutes that narrow the class of relations among the races. A defendants who can receive the Texas governmental report death penalty. Texas was one of showed that racial disparities are the first legislatures to approve evident in other areas of criminal new death penalty laws, less than justice, as well. For example, the one year after the High Court's incarceration rate for blacks in decision. In 1976, when the Court Texas is over eight times the rate allowed the death penalty to for whites.47 Almost half of black resume, the Texas statute was one offenders are sentenced to prison, I of three such laws that the Court but less than one-third of white approved. offenders are so sentenced.48

The racial cOmposition of But in many respects, the racial Texas' death row has improved problems in other states are as only slightly since the death severe as they are in Texas. penalty resumed. The percentage of minorities on Texas' death row has decreased from 70% to 55%, • ATe x a s - S i zed C r i sis 13 • Texas Death Row By Race

Other

Source: NAACP Legal Defense & Educ. Fund, Death Row USA (1/94) •

is the case in Texas, however, the form of racial discrimination NATIONAL which is most directly attributable IMPLICATIONS: to capital punishment concerns Race and the Death the race of victims. Penalty Blacks constitute about 50% of the victims of homicide in this country.49 One might expect, Racism is also apparent in therefore, that the percentage of national death penalty statistics. death penalty cases involving Half of those on death row are black victims would approximate from minority populations that 50%. That has never been the case, make up only 20% of the and all the reforms instituted at country's population. Blacks are the insistence of the Supreme I represented on death row at three Court in 1976 have done nothing and a half times their proportion to alleviate the problem. I. in the population as a whole. As l 14 The F u t u reo f the D eat h Pen a 1 t Y

Since 1976, 84% of the victims approved by the Attorney General • in the cases resulting in an for capital prosecutions have been execution were white. In 1993, either black or Hispanic the numbers were even worse: defendants.52 89% of the cases resulting in an execution involved white victims. The continuation of racial Only one out of the 226 executions disparities in the use of capital between 1976 and 1993 involved a punishment is an embarrassment white defendant who had killed a for the entire country. The riots black victim. This represents a following the verdict in the first consistent pattern since the Rodney King beating case in founding of this country. California indicate the serious repercussions possible when a In all, only 31 of the over jury appears to ignore the facts 18,000 executions in this country's and decide a case based on the history involved a white person status of who committed the being punished for killing a black crime and who was the victim. person.50 In 1990, the U.S. General There have been some Accounting Office reviewed the Congressional attempts to rectify existing studies on racism and the the problem in capital cases, but death penalty in the United States these were defeated when and concluded: prosecutors argued that any law that prohibited racially Our synthesis of the 28 studies disproportionate death sentencing shows a pattern of evidence would mark the end of the death • indicating racial disparities in the penalty in the entire country. charging, sentencing, and "mhose who imposition of the death penalty This ongoing problem of racial after the Furman decision. disparities was addressed by murdered whites Supreme Court Justice Harry were found more In 82 % of the studies, race of Blackmun in his dramatic dissent likely to be the victim was found to influence to a death penalty ruling: "Even sentenced to death the likelihood of being charged under the most sophisticated with capital murder or receiving death penalty statutes," said than those who the death penalty, i.e., those who Blackmun, "race continues to murdered blacks." murdered whites were found playa major role in determining -U.S. General more likely to be sentenced to who shall live and who shall die." Accounting Office death than those who murdered He announced that he would no blacks.51 longer "tinker with the machinery of death" because he had The federal government's use concluded that "the death penalty of the death penalty has been even experiment had failed."53 more racially disproportionate than the states. Under a new 1988 statute aimed at murders by drug "king-pins," almost 90% of those •

L ______ATe x a s - 5 i zed C r i sis 15

As the number of people on particular defendant will • "Even under the death row and the number of ultimately receive the death most sophisticated people executed in this country penalty, probably the most continue to grow, the patterns of important is the quality of death penalty rac:al disparity will become clearer representation he or she receives. statutes, race and more disgraceful. What has In Texas, death penalty defendants continues to playa been a perennial problem in are frequently given major role in Texas' administration of the death inexperienced and underpaid penalty will become apparent as a attorneys at trial. For some critical determining who national problem as well. stages of their appeal, the shall live and who defendants are given no attorney shall die." at all. -Justice Hairy A. Blaclonun As in other states, almost everyone who is charged with a capital crime in Texas cannot afford his own attorney. The state is therefore required to provide 3. The Crisis of him with one. Texas delegates that responsibility to the local Representation in county which is trying the case. Texas The State of Texas itself provides no funds for the representation of You are an extremely those charged with a capital crime. intelligent jury. You've got that The selection and qualifications of • man's life in your hands. You can the attorney, the fee he or she will take it or not. That's all I have to be paid, and the amount of say. resources which will be made -entire defense offered by a available for investigation and Texas attorney for his client, Jesus expert witnesses are totally in the Romero, at a capital sentencing54 hands of the 375 local judges, who have widely varying economic The state [of Texas] paid resources. defense counsel $11.84 per hour. Unfortunately, the justice system In the larger counties, such as got only what it paid for." those encompassing Houston or -u.s. Court of Appeals Dallas, the judge might select overturning Federico Macias' from more experienced defense death penalty conviction55 counsel and pay them a higher rate. In poorer counties, a general The enormity of the death practitioner might be chosen and penalty in Texas has overtaken paid as little as $800 for an entire the state's willingness to mete this case.56 In Randall County, for punishment out with even a example, defense counsel Mallory modicum of fairness and due Holloway was told that he had process. Of all the factors which better not ask for investigation determine whether or not a funds since he had already l 16 The F u t u reo f the De a t h Pen a 1 t Y I

drained the county's budget by Until 1987, the statute insisting on co-counsel.57 regarding payment of attorneys for • such work made no mention of Recently, the State Bar of Texas compensation for the commissioned a study of the investigation, research and system of representation in death consultation with experts before penalty cases. A comprehensive trial. The statute did provide report prepared by the minimum payments for in-court Spangenberg Group of appearances and these often Massachusetts was released in became the de facto maximum "We believe, in March, 1993. The report found paid to attorneys for the entire the strongest terms that capital representation in case. Although the statute was possible, that Texas Texas was plagued with changed in 1987, the rates paid in tremendous problems at both the many counties did not change, has already reached trial and appellate level. It and Texas' compensation for the crisis stage in described the lack of counsel and court-appointed attorneys remains capital the inadequacy of funding as near the lowest in the country.59 representation . .. "desperate" and "urgent" and The prosecutors, on the other the prob lem is concluded: hand, represent a team of salaried state employees with ample substantially worse We believe, in the strongest resources and ready access to other than that faced by terms possible, that Texas has law enforcement agencies for any other state with already reached the crisis stage in investigating and pursuing their the death penalty." • capital representation and that the cases.60 problem is substantially worse -Spangenberg than that faced by any other state The rate of compensation Report with the death penalty.58 often determines the quality of representation. The Spangenberg Representation At Trial Report concluded that defending death penalty cases in Texas is The problem of representation frequently a losing financial in capital cases in Texas is multi­ venture for attorneys: "The rate layered, beginning at the trial of compensation provided to stage. Texas is the only death court-appointed attorneys is penalty state which makes absurdly low and does not cover practically no use of a public the cost of providing defender system to provide representation."61 Without attorneys. Instead, Texas allows adequate compensation, it would each county to secure counsel be unrealistic to expect the through the private bar, often on a consistent provision of a contract basis. The county judges thorough defense. can individually determine what they believe to be a "reasonable The consequences of poor attorney fee" and compensation representation can be disastrous. for "reasonable expenses," Federico Macias, for example, came within two days of execution in Texas because his trial attorney ATe x a s - S i zed C r i sis 17

did almost nothing to prepare for Dale Adams, Clarence Brandley, • trial. Today he is a free man, Federico Macias, and Muneer thanks to volunteer counsel from Deeb were extremely fortunate a large Washington law office that that others became interested in intervened just before Macias' their cases and helped them attain execution. With qualified counsel freedom. But Texas has severely and ample resources, Macias was limited that access by not not only granted a stay of providing attorneys during critical execution but was eventually appeal stages. And most recently, cleared of all charges in 1993. The the state has even pushed for "The state [of federal court's order overturning executions prior to the completion Texas] paid defense the conviction noted that the first of a defendant's appeals. attorney had missed evidence of counsel $11.84 per Macias' innocence: Death row inmates are entitled hour. to representation for only one Unfortunately, the We are left with the firm direct state appeal of their justice system got conviction that Macias was denied conviction or sentence. After that only what it paid his constitutional right to appeal, Texas generally provides adequate counsel in a capital case no attorney for subsequent for." in which actual innocence was a appeals. Unless some court grants -u.s. Court of close question. The state paid a stay, execution warrants can be Appeals defense counsel $11.84 per hour. signed and carried out despite the Unfortunately, the justice system fact that an inmate might have got only what it paid for. 62 significant issues requiring state and federal review. • Another man who was freed from death row this past year in With respect to this period of Texas was Muneer Deeb. Deeb post-conviction representation, said he was poorly represented at the Spangenberg Report found his first trial. At his re-trial, that: however, he was represented by one of Texas' best known criminal [T]he situation in Texas can attorneys, Dick DeGuerin, and was only be desC1'ibed as desperate. acquitted of all charges.63 Other The volume of cases is death row inmates who may also overwhelming. Presently no be innocent are not so fortunate. funds are allocated for payment of counselor litigation expenses at the state habeas level.64 Post-Trial Representation: A Whereas most other states Desperate Situation have a system for appointing and compensating attorneys after the Access to the appeals process is direct appeal is over,65 Texas critical to sparing the lives of leaves this important step to the those who are mistakenly discretion of the local judge. In sentenced to death. Former Texas almost every case, no attorney is death row inmates like Randall appOinted for state post-

I 18 The F u t u reo f the D eat h Pen a 1 t Y

conviction relief, and those who rush to judgment in place of do the legal work do it without justice."68 • pay. Similarly, funds for expert witnesses and expenses are almost In response to this crisis, the never approved.66 Texas Resource Center recently brought a case before the U.S. With the defendant Supreme Court to clarify the unrepresented, local prosecutors federal courts' authority to stay have recently begun to push for executions while attorneys are executions, and some local judges being found to properly prepare are no longer granting stays until death row appeals.69 In an amicus an attorney can be found. The curiae brief filed supporting the dangerous consequences of this Resource Center's position, the procedure were seen in the recent American Bar Association called case of Lesley Lee Gosch, who was Texas' attempted denial of an scheduled to die just after opportunity to appeal a "perverse midnight on September 16, 1993 process" which "effectively and who had no attorney. Despite nullifies the Great Writ" of habeas the fact that the Texas Attorney corpus.70 General's office acknowledged that Gosch still had legitimate Thus, the death penalty in appeals to pursue, the prosecution Texas is caught in a spiraling persuaded federal District Judge crisis: Hippo Garcia to refuse a stay of execution, which was just hours • The volume of cases in Texas away. which has reached the post­ • conviction stage surpasses that As time was running out, the of any other state and is Texas Resource Center told Judge exhausting the supply of Garcia that an attorney had been volunteer attorneys from found to represent Gosch. The Texas and around the country. Judge still refused to stay the execution and instead appointed • No state funds are available for the Resource Center to represent carrying on the appeals Gosch. Finally, just 25 minutes necessary to prevent an before the execution, with the inmate's execution, thus inmate already being prepared for discouraging attorneys who the lethal injedjon, Judge Garcia might represent death row relented and granted a stay inmates.71 because, he said, new unresolved legal questions deserved review.67 • With the defendant Jay Jacobson, Executive Director of unrepresented, the state the ACLU of Texas, sharply pushes ahead for executions. criticized this unnecessarily close Death warrants are signed, call: "Texas justice is in mortal putting prospective volunteer danger of reverting back to the attorneys under more pressure speedy vigilantism of Roy Bean; a • ------,------....3Y'

ATe x a s - S i zed C r i sis 19

and creating even more Despite Texas' relatively high • reluctance to take these cases. rate of executions, the situation would be much graver without The Texas Resource the Resource Center. The Center Spangenberg Report concluded that the Resource Center's staff In response to the inadequate provides "an invaluable array of system of representation for death services under truly unique row inmates in Texas, pressures and circumstances."73 representatives from the They are not staffed, however, to University of Texas School of Law fill all the gaps created by Texas' and a committee of attorneys failure to appoint and pay counsel concerned about the crisis in capital cases. proposed a resource center to recruit and train volunteer Not surprisingly, the Resource attorneys to handle death penalty Center's pursuit of legal cases after the direct appeal. The representation and their success in Texas Resource Center was created stopping many executions has in 1988 aI~d receives the bulk of its drawn reactions from prosecutors funding from the federal and politicians intent on an government's Administrative expeditiously functioning death Office of the U.S. Courts. penalty. There have been attempts to discredit the Resource With over 360 people on death Center in the media and to have row and with new cases being Congress withdraw its funding,74 • constantly added to the list, there These challenges have, in turn, is no way that the 16 attorneys of been met by prominent members the Resource Center can represent of the Texas Bar, some of whom even a significant proportion of serve on the Board of Directors of the appeals. The Resource Center the Resource Center.75 The recently estimated that more than dispute illustrates the highly 75 death row inmates in Texas had political nature of the death no representation, many of whom penalty in Texas. were scheduled for execution within 5 weeks.72 Much of the Center's efforts go into recruiting and assisting counsel from other states who agree to represent Texas' death row inmates . • l 20 The F u t u reo f the D eat h Pen a 1 t Y • The Pressure to Execute: A Chronology

Eleventh hour scrambles are inevitable in Texas death penalty cases. Death warrants are often signed at a pace which exceeds the defense community's ability to respond in a thorough and timely fashion. The following is an approximate chronology of what was almost Leonel Herrera's final day of life. Even though the U.S. Supreme Court had agreed to hear his case, the state pressed for his execution:

February 17 Federal District Court judge grants a stay to hear constitutional claims regarding the execution of an innocent person.

February 18 Texas Attorney General's office obtains a Circuit Court order vacating the stay on the grounds that a claim of innocence is irrelevant in federal court.

9:30 PM Defense attempts to obtain another stay of execution from the state or federal courts.

10:00 PM Request for stay filed with U.S. Supreme Court.

12 :05 AM Defense checks with local weather station regarding the exact time of sunrise: Texas law requires that the execution take place before sunrise on the appointed day.

1:00 AM Supreme Court rejects stay by vote of 5-4.

4:30 AM Supreme Court again refuses to stay execution but indicates it will entertain a request to review the issue of executing the innocent.

4:35 AM State of Texas informs attorneys that it will begin the lethal injection of Herrera in 30 minutes if a stay is not in place.

4:35-6:20 AM Frantic efforts to obtain a stav from state and federal courts; two members of the Texas Court of Criminal Appeals ·and a federal District Court judge agree to stay execution so the Supreme Court can hear the case; Texas Attorney General attempts to have stays vacated; State court stay upheld.

6 :20-6 :55 AM Silence regarding Herrera's status.

7:00 AM Clerk of Supreme Court announces that state court stay is valid.

7:08 AM Texas sunrise: no execution.76

Leonel Herrera's case was eventually argued before the Supreme Court eight months later, in October 1992. He argued that he should be given a hearing to review new evidence of his innocence and that it would be unconstitutional to execute someone who was innocent. Witnesses, including a former Texas judge, revealed that Herrera's brother had actually confessed to the crime. A decision was reached on January 25, 1993, with Herrera losing on a vote of 6-3. Herrera was executed on May 12, 1993. ______,, ______:4 T e X a s - S i zed C r i sis 21

Nt\TIONA1L cases, and wholly unrealistic caps • on the funds available for defense. !MPLICAT~Ot~S: With limits on attorneys' fees of The C~'isisijn $1,000 in states like Alabama, Louisiana, and Mississippi, Representation lawyers offering even minimal representation were working for The crisis in death penalty 8 representation is starting to spread $5 an hour.7 Such meager pay obviously can affect performance. to other death penalty states as well. Because of the number of people o.n Texas' death row and In Tennessee, a state not the rate at which those people are included in the Law Journal study, now being processed for it is not uncommon for trial execution, the problem in Texas is attorneys to spend less than 100 more acute than in other places. hours preparing a capital case, But the size of the national death while it typically takes over 1,000 row is also increasing rapidly: at hours in other states. In two least 250 people are sentenced to death row cases, the attorneys death each year and other states spent 10 and 16 hours respectively are experiencing both a shortage of preparing for triaI.79 In 17 attorn8Ys and a shortage of funds Tennessee cases, no mitigation to Pi:1Y for the death penalty. evidence whatsoever was offered during the penalty phase of the A six month study by The trial. Under Tennessee law, if no Nationul Law Journal of death mitigation evidence is presented, the court is compelled to direct a "Southern justice penalty representation in the south concludrd: sentence of death, assuming the 'in capital m.u.rder prosecutor has presented triaJ's is 'n'lOre like a Southern justice in capital aggravating circumstances.80 rando·J11. flip of the 1'I'lUrder trials is more like a Tennessee has one of the lowest compensation rates for indigent coin. than a delicate rando'm flip of the coin than a .. 1 . ,., h delicate balancing of the scales . defense in the country: $20/hr. for va anCt1tg oJ t e Who will live and who will die is out-of-court time and $30/hr in­ 81 scales.tr decided HOt- just by the nature of court. -I\fational Law the crime committed but equally Journal by the skills of the defense lawyer In cuntrast, the state of Ohio appoint'eel by the court. And in allowed $40,000 for two attorneys the nation's DeJ.lh Belt, that in capital cases.82 In California, lmayer too often is ill-tmined, attorneys are paid about $75 an uflprepared and grossly hour and total fees often exceed HncI I:'.rpn.z'd .. 77 $100,000 just for the appellate work.83 But even in California, The study found high which recently surpassed Texas as disbarxnent rates for attorneys the state with the largest death who represented death row· row, nearly a third of those on inmates, wldesprE!ad inexperience death row lack lawyers for their among those appointed to capital appeals.84

I 22 The F u t u reo f the D eat h Pen a l t Y

In Georgia 60 of the 80 people last chance for relief lies with the • on death row who have gone governor, there have been no beyond their direct appeals are commutations granted at a being repreE,ented by lawyers from defendant's request since the outside the state. "Many [Georgia] death penalty was reinstated.88 firms view defending a person on Texas has refused clemency in one death row as politically case where it was requested by the unpopular, bad public relations prosecutor and by the father of the and bad business," said Robert victim,89 and in another case Remar, who heads a state bar where it was even requested by committee to correct the the Pope.90 Clemencies have been problem.8S rare in other states as well, but most of those states have had few Ronald Tabak, chair of the inmates who had exhausted all ABA's Individual. Rights and their appeals and sought Responsibilities death penalty clemency. committee, said that the situation is "getting materially worse The case of Gary Graham, because demand for lawyers is discussed above, is testing the growing substantially as the seriousness of Texas' clemency number of inmates moving into procedure. Graham was state post-conviction and federal convicted and sentenced to death "Despite the habeas proceedings is on the basis of one eyewitness Supreme Court's increasing."86 States like who viewed him only from a assurances that • California, Ohio, Pennsylvania distance at night. New evidence and Illinois, with bulging death indicating that Graham may be clemency exists as a rows but few executions so far, are innocent has emerged, but it has protection against a warning that the crisis in death been barred by Texas procedural executing an penalty representation will soon rules which forbid introducing be spreading. new evidence more than 30 days innocent person, it after a conviction.91 has never been used in Texas, or most Graham was denied clemency other death penalty and the Pardon Board did not states, since 1972." 4. Clemency in even meet to hear his evidence. Texas He has filed a suit claiming that his due process rights have been The U.S. Supreme Court violated because he was not given recently ruled in the Herrera case a hearing by the Pardon Board. that a defendant with a claim of The Graham case tests whether innocence still has the there is any substance to Texas' opportunity to apply for executive clemency process. Texas courts are clemency.87 Even though Texas still considering whether the has by far the most death row Board will be required to hold the inmates who have reached the hearing and possibly spare end of their appeals and whose Graham's life. But regardless of • ------~

ATe x a s - S i zed C r i sis 23

the outcome in Graham's case, • clemency in Texas has not been 5. Texas Crime the safety-valve recommended by the High Court. And the State's Response NATIONAL The word 'crisis' is used far too often in politics and government IMPLICATIONS: -- but a crisis is precisely what Clemency Texas faces today. The Texas criminal justice With respect to clemency, the system is failing. extreme hesitancy of governors to -Report from the Texas Office utilize this process in death of the Comptroller95 penalty cases is also a national problem. Clemency used to be Closely intertwined with the granted more liberally by death penalty is the broader governors in capital cases. Prior to response which a state makes to the Furman decision in 1972, the problem of crime. Not commutations were granted in surprisingly, the turmoil exhibited approximately one in five death in Texas' administration of the sentenced cases. The current rate death penalty is reflected in an is roughly one out of forty.92 The even larger crisis with crime. In increased politicization of the the same period in which Texas death penalty has meant that a moved from its first execution in • governor could suffer a sharp 1982 to become the undisputed decline in popularity for granting leader in the use of the death a commutation.93 Indeed, of the penalty, the state also experienced 31 c1eme:1cies granted since 1972, a tremendous growth in its more than half were by governors violent crime rate. From 1982 to as they were leaving office.94 1991, the national crime rate rose by 5%. In the same period, the Thus, despite the Supreme Texas crime rate rose by 24%, and Court's assurances that clemency the violent crime rate in Texas "Despite the need exists as a protection against rose by nearly 46%. In 1990, Texas for real solutions, executing an innocent person, it earned the dubious distinction of public debate over has never been used in Texas, or being the first state in which more people died from gunshot wounds crime in T e.xas most other death penalty states, since 19/2. As long as the issue of than from traffic accidents.96 In revolves around capital punishment is thought of 1991, Texas' overall crime rate was hollow calls for the as a litmus test for politicians to third in the nation, and its state to become attain and retain office, the murder rate was the second 'tougher. ", prospect of clemency for any death highest. row inmate will remain dim. -Texas Office of But the problems in Texas go the Comptroller far beyond mere crime statistics . • A recent report from the Texas 1 24 The F u t u r e (] f the D eat h Pen a 1 t Y

Office of the Comptroller pointed to a larger crisis in the state's As a response to crime, then, • response to crime: the death penalty is exceedingly expensive and focuses on only a [D]espite the need for real tiny fraction of the problem. solutions, public debate over Nevertheless, politicians crime in Texas revolves around throughout Texas have hollow calls for the state to consistently seized on the death become "tougher." In fact, this is a penalty as an answer to violence. call for the status quo -- frr more They have pushed the death of the same, only more so. It is a penalty at every possible turn and call for a continuing cycle of have lashed out at anyone cynical quick fixes and stop-gap opposing them. But when the measures, for costly prison causes of crime are rooted in guns, construction that cannot keep pace gangs, drugs, and the deterioration with the demand for new prison of the social fabric, capital space -- for a constant drain on punishment offers nothing in the state and local treasuries that way of a solution. make Texas taxpayers poorer, not safer.97 The Winds of Change

The death penalty is precisely Crime was recognized as a one of those "quick fixes" that paramount problem in Texas well drain the taxpayers' money. A before national media attention "Life without 1992 stud~f by the Dallas Morning began to focus on crime. In the parole could save News reported that each death 1990 gubernatorial race, the millions of dollars. .' penalty case, followed through to candidates tripped over each other It currently costs the federal appeal, is costing in an effort to look tougher in three times as much taxpayers $2.3 million. That is in their responses to violence. The line with the costs that other states death penalty became the leading -- more than $2 have projected. New York symbol of toughness. In fact, million per inmate estimated that each capital case populist Democrat Jim Hightower -- to carry out the would cost $1.8 million, without described the campaign as lOa race death sentence than including costs past the direct to see who could kill the most appeal. Florida calculated the cost Texans.,,99 The rapid rise in the to keep an inmate in of each execution to be about $3.2 pace of executions in Texas also prison for 40 years." million.98 began in 1990, but now -former Texas dissatisfaction with both the Attonley General, With over 70 executions since process and the results is starting Jim Mattox 1976 and close to 400 other people to emerge. waiting on death row, Texas has Jim Mattox, the former likely spent several hundred Attorney General of Texas who million dollars on the death oversaw 36 executions in the state, penalty, far more than it would was one of the candidates for have if there were no death governor who campaigned on his penalty and people were support for the death penalty. But sentenced to life imprisonment. cases like Gary Graham's and • I ------ATe x a s - 5 i zed C r i sis 25

Clarence Brandley's, which raised • the prospect of innocent people He pointed out that the new "On a death being executed, have given him law can also bring a sense of second thoughts. finality to the victim's family: penalty case, I can't "On a death penalty case, I can't ever tell [the family1 For one thing, Mattox doesn't ever tell them they won't have to they won.'t have to believe the death penalty is a come back and live it all over come back and live deterrent to crime: "It is my own again. This can go on ad it all over again. experience that those executed in nauseam." But under the new life Texas were not deterred by the sentence law, "there's a finality to This can go on ad existence of the death penalty all this. "105 nauseam," But law," he said.lOO "I think in most under the new life cases you'll find that the murder On another occasion he said: sentence law, was committed under severe drug "Even though I'm a firm believer "there's a finality to and alcohol abuse."lOl in the death penalty, I also understand what the cost is. If all this," As an alternative to the death you can be satisfied with putting a -Norman Kinne, penalty, he suggests a sentence of person in the penitentiary for the Assistant District life without parole, which other rest of his life ... I think maybe we Attorney, Dallas Texas prosecutors have resisted so have to be satisfied with that as far: "Life without parole could opposed to spending $1 million to County save millions of dollars," said try and get them executed."106 Mattox. "It currently costs three times as much -- more than $2 Dr. George Beto, who headed million per inmate -- to carry out the Texas prison system for ten • the death sentence than to keep an years, also favors the death inmate in prison for 40 years." penalty in theory but opposes it in practice. He has clearly recognized "In other words," he wrote, some of the problems with the "it's cheaper to lock 'em up and application of capital punishment: throwaway the key .... As "[I]n a democratic society like ours, violent crime continues to the death penalty is capriciously escalate, it's something to and inequitably administered. consider."102 Whether a person is convicted depends on the quality of his Others in law enforcement defense, the hysteria of the agree. Norman Kinne, First moment in the community and Assistant District Attorney of the culture."107 Dallas County, praised a new Texas law which allowed And in Washington, some of sentences for life with no Texas' Congressional delegation possibility of parole for 35 years have been leading the way (now 40)103: "I think we can take towards alternatives to the death more violent offenders out of penalty. Rep. Craig Washington society for longer periods of time (D-TX) has spearheaded the effort with less expense to the to present an alternative federal • taxpa yers. "1 04 crime bill which excludes the ._------_.-

26 The F u t u reo f the D eat h Pen a 1 t Y

death penalty and emphasizes a solution. If the people buy this range of positive responses to promotion as they did in Texas, • crime, and Rep. Henry Gonzalez then it is likely that other states (D-TX) is the perennial sponsor of will match Texas' high rate of a constitutional amendment to executions. The federal end the death penalty altogether. government, for example, has increased dea th penalty Meanwhile, juries in Texas are prosecutions and is seeking ways also beginning to see things to greatly expand their role as a differently, especially with the response to the national problem availability of longer guaranteed of violence. States like New York, sentences. Formerly, criminals in Kansas, and Alaska have all beer. Texas were serving only 20% of considering reinstating capital their sentence and some of those punishment. with life sentences were released after only five years.1 08 Now that On the other hand, states that life can mean no parole for 35-40 have used capital punishment years, juries have real alternatives extensively, like Texas, have been to a death sentence. Dallas County beset with its problems. The death District Attorneys, for example, penalty has failed to reduce the used. to have a perfect record number of murders, it has proved when seeking the death penalty. enormously expensive, and there "But three of the past six capital continues to be the uncomfortably cases have ended in life sentences. present danger of executing an "Sometimes it makes you think innocent individual. As a result the public isn't 100 percent with of these problems, some states are • you," said Assistant District relying more on the alternative of Attorney Hugh Lucas, who life sentences with severe recently "lost" a capital case when restrictions on parole.110 The it ended in a life sentence for political tug of war between more Anthony Hampton.109 and faster executions on the one hand, and more efficient and NATIONAL effective ways of reducing crime on the other, is a battle raging in IMPLICATIONS: the entire nation, as well as in The Crime Problem Texas.

The issue of violent crime has now reached national prominence as well. Politicians all over the country have been using the headlines of crime to promote the death penalty as a quick fix • A Texas-Sized Crisis 27

CONCLUSION: Foreshadowing A • National Crisis

The death penalty in Texas is become more severe. It is clear in a state of crisis. Even more even to proponents of capital alarming, however, is the prospect punishment that this expansion that what is happening in Texas of the death penalty will mean will be happening across the that hard choices must be made country if the U.S. expands its use between preventive methods of of the death penalty. The size of law enforcement and more costly the national death row, the and ineffectual executions. willingness of the courts to accept the practices utilized in Texas, the Furthermore, the crisis in increasing pace of executions, the death penalty representation, public's concern about crime -- all which is closely related to the Texas has been indicate that the use of the death problem of costs, augurs poorly for the nation's crucible penalty could become as common the country as a whole. What is a for this experiment nationwide as it is in Texas. crisis in Texas because of the with the death numbers involved and the penalty, and the On the other hand, the scarcity of qualified counsel problems in implementing the willing to take these cases, will results of this death penalty in Texas are a become a national problem as the • experiment should warning to the rest of the country number of inmates approaching speak volumes to that it is wading into a swamp that execution continues to grow. those who choose it should avoid. The death penalty skews the process of Such a death penalty may not to listen. prosecution and leads to official be acceptable to the American abuse. The death penalty has also public. Moreover, such a death been a symbol of racial division. penalty may not meet the As the numbers of executions standards of the High Court, begins to rise, the impact of these which set this experiment in injustices will force itself more motion 18 years ago. That clearly into our consciousness. experiment, as Justices Marshall and Blackmun have pointed out, Similarly, the costs of the has so far established that the death penalty are not a problem death penalty remains arbitrary only in Texas. As thousands of and capricious. Texas has been the cases move into the later stages of nation's crucible for this appeal and as more and more experiment with the death people are added to death row penalty, and the results of this every year, the costs will become experiment should speak greater and the strain on other volumes to those who choose to • crime fighting programs will listen. 28 The F u t u reo f the D eat h Pen a I t Y

References •

1. Speech at Annual Dinner in Honor of the Judiciary, American Bar Association, 1990, quoted in The National Law Journal, Feb. 8, 1993.

2. Callins v. Collins, No. 93-7054, slip opin., at 4 (Feb. 22, 1994) (Blackmun, J., dissenting).

3. Projections based on Texas population of 17.66 million and United States population of 259 million. The cost projection was based on a cost of $2 million per execution and a national projection of 1,027 executions. See, e.g., P. Cook & D. Slawson, The Costs of Processing Murder Cases in North Carolina (Duke University, May, 1993), at 1 (lithe extra cost ... per execution exceeds $2 million.")

4. See note 1.

5. See Millions Mis::;pent: What Politicians Don't Say About the High Costs of the Death Penalty, The Death Penalty Information Center, October 1992, at 13.

6. M. Radelet, H. Bedau, & c. Putnam, In Spite of Innocence 71-72 (1992).

7. Id. at 133. 8. Id. at 134 (emphasis added). • 9. Texas Penal Code Art. 37.071(b)(2) (Vernon's 1985).

10. Since executions were centralized at one state facility in 1924, Texas has not executed any women. There are, however, four women currently on Texas' death row. Since defendants in capital cases are almost exclusively male, the male pronouns will sometimes be used in a generic sense.

11. See R. Rosenbaum, Travels With Dr. Death, Vanity Fair, May, 1990, at 142.

12. Rodriguez v. Texas" trial transcript, p. 2136 (1978), quoted in J. Marquart, et al., Gazing Into The C~'Ystal Ball: Can Jurors Accurately Predict Dangerousness in Capital Cases?, 23 Law & Society Review 449, 458 (1989).

13. See R. Rosenbaum, note 11, at 142.

14. Barefoot v. Estelle, 463 U.S. 880 (1983) (amicus curiae brief).

15. Marquart, et al., note 12, at 464.

16. See id. at 457.

17. Although the defense can offer their own experts to refute such claims that the defendant will be a danger to society, they are at a distinct disadvantage for two reasons. First, the defense is severely limited in the funds available fo: such • ------. ----

ATe x a s - S i zed C r i sis 29

I

• experts. Secondly, even if a psychiatrist could be found who would predict with absolute certaintly that someone would not be a danger in the future, the jury is less likely to believe that claim since it has already convicted the defendant in the underlying crime.

18. R. Sura, Impact of a Pathologist's Misconduct Ripples Through West Texas Courts, The New York Times, Nov. 22, 1992, at 22.

19. Id.

20. R. Fricker, Pathologist's Plea Adds to Turmoil, American Bar Association Journal, Mar. 1993, at 24.

21. G. Simmons,Judge Condemn's Ware's Tactics, The Lubbock Avalanche­ Journal, Mar. 5, 1993, at 1 (emphasis added).

22. V. Salazar, Parties Settle Federal Suit, The Globe News, April 19, 1993, at 1A.

23. R. Suro, note 18, at 22.

24. Innocence and the Death Pettatly: Assessing the Danger of Mistaken Executions, Staff Report by the Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary (1993) (reprint available fram the Death Penalty Information Center).

25. M. Curriden, No Honor Among Thieves, American Bar Association Journal, June, 1989, at 54 (quoting Janet Reno).

26. Walter McMillian (Ala.), Federico Macias (Tex.), Muneer Deeb (Tex.), Kirk Bloodsworth (Md.), and Gregory Wilhoit (Ok.).

27. See P. Applebome, Black Man Freed After Years on Death Row, The New York Times, Mar. 3, 1993, at AI.

28. Bloodsworth v. State, 307 Md. 164, 173 (1986).

29. See P. Valentine, Jailed for Murder, Freed by DNA, The Washington Post, June 29,1993, at A1.

30. A Reno Reform, The Washington Post, Dec. 20, 1993 (editorial).

31. See, e.g., Justice Blackmun's comments on ABC-TV's Nightline, in which he said that he believed innocent people have been executed during his term. Transcript, ABC-TV News, Nightline, Nov. 18, 1993.

32. M. Radelet, Executions of Whites for Crimes Against Blacks: Exceptions to the Rule?, 30 The Sociological Quarterly 529, 530 (1989) (citing B. Botkin, A • Treasury of American Folklore (1944» . 30 The F u t u reo f the D eat h Pen a I t Y

33. N. Davies, White Lies: Rape, Murder, and Justice Texas Style 23 (1991) (the • story of Clarence Brandley's conviction and eventual exoneration for a murder in Texas).

34. J. Floyd & S. Crawford, Skinhead Gets Probation in Murder of Black Man, The Dallas Morning News, Mar. 24, 1993, at 1A.

35. See, e.g., N. Hentoff, Death and Reasonable Doubt in Texas, The Washington Post, May 29, 1993.

36. J. Marquart, S. Ekland-Olson, & J. Sorensen, The Rope, The Chair, and The Needle: Capital Punishment in Texas, 1923-1990 21-22( 1994).

37. Id. at 24.

38. Id.

39. Id. at 65.

40. Id. at 6.

41. See id. at 4 & 6, maps 1.1 & 1.2.

42. Id. at 14-15.

43. Id. at 15.

44. Id.

45. See J. Sorenson & J. Marquart, Prosecutorial and Jury Decison-Making in Post­ Furman Texas Capital Cases, 18 N.Y.U. Review of Law & Social Change 743, 765- 72 (1990-91).

46. Marquart, et a1., note 36, at 169.

47. See Criminal Justice Trends in Texas: Overview by Race, Criminal Justice Policy Council of Texas, at 2 (April, 1992) (1991 rates).

48. Id. at 8.

49. See, e.g., S. LaFraniere, FBI Finds Major Increase in Juvenile Violence in Past Decade, The Washington Post, Aug. 30, 1992, at A13 (half of U.S. murder victims are black). .

50. See D. Margolick, White Dies for Killing Black, For the First Time in Decades, The New York Times, Sept. 7, 1991.

51. U.S. General Accounting Office, Death Penalty Sentencing, February, 1990, at 5 (emphasis added). • ATe x a s - S i zed C r i sis 31

• 52. See Racial Disparities in Federal Death Penalty Prosecutions, 1988-1994, Staff Report by the House Judiciary Subcommittee on Civi and Constitutional Rights (March, 1994) (reprint available from Death Penalty Information Center).

53. Callins v. Collins, No. 93-7054, slip opin. at 4 (Feb. 22, 1994) (Blackmun, J., dissenting).

54. See Romero v. Lynaugh, 884 F.2d 871 (5th Cir. 1989) (Romero was executed in 1992), cited in National Law Journal, see note 56, at 34.

55. Martinez-Macias v. Collins, 979 F.2d 1067 (5th Cir. 1992) (Macias was freed in 1993).

56. Fatal Defense, National Law Journal, June 11, 1990, at 34.

57. See Hafdahl v. Texas, 69,646 (Texas Crim. App., 1988), cited in Fatal Defense, note 56, at 34.

58. The Spangenberg Group, A Study of Representation of Capital Cases in Texas, at 4 & 152 (March, 1993) (emphasis added) [hereinafter Spangenberg].

59. Id. at 14-15.

60. "State funding pays the salaries of the primary district or county felony prosecutor ... and provides cash supplements for partial funding of assistants' salaries and other expenses." Texas Crime, Texas Justice 49, Office of the Comptroller (Sept., 1992). There is also an Office of the State Prosecuting Attorney to represent the State's interests in the Court of Criminal Appeals. Id. at 47.

61. Spangenberg, note 58, at vi (Major Findings).

62. Martinez-Macias, note 55, 979 F.2d at 1067.

63. B. Kessler, Fighting the System, The Dallas Morning News, Nov. 4, 1993, at 1A.

64. Spangenberg, note 58, at ii (emphasis added).

65. Id. at 127.

66. Id. at vii.

67. M. Graczyk, Death Row Inmate's Lawyers Had Close Call, The Dallas Morning News, Sept. 18, 1993, at 26A.

68. ACLU press release, Sept. 16, 1993 (on file with Death Penalty Information • Center) .

I l 32 The F u t u reo f the D eat h Pen a 1 t Y

69. See McFarland v. Collins, No. 93-1954, on Writ of Certiorari to the U.s. Court • of Appeals for the 5th Cir. (argument Mar. 29, 1994).

70. Id., Brief of the American Bar Association, at 7.

71. Federal funds are available for indigent defendants in federal habeas corpus proceedings. See Anti-Drug Abuse Act, 21 U.S.c. § 848 (l9:~8). However, federal procedure requires that an inmate first exhaust all possible state remedies. Thus, lack of funds and attorneys at the state level directly affects what, if anything, can be accomplished at the federal level.

72. C. Hoppe, Center Sees Crisis in Shortage of Public Defenders for Death Row, The Dallas Morning News, Oct. 27, 1993.

73. Spangenberg, note 58, at 9.

74. See, e.g., R. Walt, Ending the Death Penalty Chaos, Texas Lawyer, Dec. 6, 1993, at 20 (quoting former Assistant Texas Attorney General: "Unlike any governmental entity, as best as can be detem1ined the [Texas Resource] center is answerable to nobody."); S. Warren, Taking Offense at Death Row Defense, Houston Chronicle, Nov. 7, 1993, at 20A ("Prosecutors, though, were in a lousy mood, complaining of more trouble, more stress and more frustration in their jobs than ever before. Accusing fingers pointed in one direction: the Texas Resource Center."). _. 75. See, e.g., C. Hoppe, note 72 (Resource Center has been responsible for proving the innocence of a number of people on death row but current surge of cases endangers adequate representation); see also letter and accompanying report to Meryl Silverman of the Administrative Office of the U.S. Courts from Edward Sherman, Chair of the Board of Directors of the Texas Resource Center, Oct. 29, 1993, on file with the Death Penalty information Center; see also, Crisis in Representation of Texas Death Row Inma!'es, released by the Board of Directors of the Texas Resource Center, Oct. 25, 1993.

76. Unpublished chronology from Leonel Herrera's defense attorneys on file with the Death Penalty Information Center (Feb. 20, 1992).

77. Fatal Defense, The National Law Journal, June 11, 1990, at 1.

78. ld. at 33.

79. W. Redick, The Crisis in Representation of Tennessee Capital Cases, Tennessee Bar Journal, Mar.! April, 1993, at 23.

80. ld. at 24.

81. Id. at 25.

82. Id. at 32. ATe x a s - S i zed C r i sis 33

• 83. M. Coyle, Death Counsel Shortage Grows, The National Law Journal, Sept. 27,1993, at 3, 46.

84. R. Smothers, A Shortage of Lawyers to Help the Condemned, The New York Times, June 4,1993.

85. M. Curriden, Ga. Bar Calls on Local Lawyers, The National Law Journal, Dec. 6, 1993, at 3.

86. See M. Coyle, note 83, at 3.

87. See Herrera v. Collins, 113 S.Ct. 853 (1993).

88. There have been 36 commutations granted in Texas for the sake of judicial expediency when the death sentence has been overturned by the courts. In Texas, the trial jury determines the sentence of the defendant in capital cases. If a mistake was made in the sentencing process, the whole case, including the guilt/innocence phase, would have to be tried again before a new jury. To avoid this re-trial, when courts have discovered errors in the sentencing process, the state has frequently asked the governor for a commutation of the death sentence to a life sentence, thus avoiding the necessity for a new trial and possible exoneration of the defendant. These should be distinguished from the cases in which the defendant requests clemency. None have been granted in this latter category. See, e.g., M. Radelet & B. Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 Univ. of Richmond Law Review 289, 293-94 (1993).

89. See Slayer of Store Manager Executed Despite Plea By Father of Victim, The New York Times, June 20, 1986, at A13, col. 1.

90. See Pape's Plea Stops Execution, The New York Times, Jan. 8, 1992 (Johnny Frank Garrett was granted a 30 day stay by the governor, but was then executed on Feb. 11, 1992).

91. A recent ruling by the Texas Court of Criminal Appeals will allow Graham to petition for a new trial based on new evidence. He will have to show that the new evidence "shows that no rational trier of fact could find proof of guilt beyond a reasonable doubt." See S. Verhovek, Texas Opens Door for Death-Row Appeals, The New York Times, April 21, 1994.

92. M. Vandiver, The Quai'ity of Mercy: Race and Clemency in Florida Death Penalty Cases, 1924-1966, 27 Univ. of Richmond Law Review 315, 315 n.2 (1993).

93. See, e.g., former California Governor Pat Brown's book, Public Justice, Private Mercy: A Governor's Education on Death Row (1989) (with Dick Adler) for a discussion of the political pressures surrounding clemency.

94. Governor Tony Anaya commuted all fiv(~ death row inmates in New Mexico as he left office. Governor Celeste of Ohio commuted eight death sentences at the end of his term. Governor Wilder of Virginia commuted the sentence of Earl ~ Washington in 1994 on his last full day in office.

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34 The F u t u reo f the D eat h Pen a 1t Y ! • 95. See Texas Crime, Texas Justice, note 60, at 119.

96. Id. at 4. Also, "[£lor the sixth straight year, Texas was the most deadly state in which to be a law enforcement officer." C. Flournoy, Texas Tops Lethal List for Officers, The Dallas Morning News, Jan. 2, 1994, at 25A.

97. Id. at p.119 (emphasis in original).

98. For a discussion of the costs of the death penalty, citing the cost studies mentioned, see Millions Misspent: What Politicians Don't Say About the High Costs of the Death Penalty, The Death Penalty Information Center, October 1992.

99. See id. at 13.

100. R. Dugger, In the Dead of the Night, The Texas Observer, April 22, 1988, at 7.

101. Id.

102. J. Mattox, Texas' Death Penalty Dilemma, The Dallas Morning News, Aug. 25,1993.

103. For crimes after Sept. I, 1993, the sentence is no parole for 40 years. See S. Scott, Prosecutors Find Juries Balking at Death Penalty, The Dallas Morning News, Dec 26.,1993, at 42A.

104. D. Barber, Law Could Curb Texas Execlltions, The Dallas Morning News, April 18, 1993, at 35A, 37 A.

105. Id. at 37A.

106. C. Hoppe, Executions Cost Texas Millions, The Dallas Morning News, Mar. 8, 1992, at 12A.

107. Texas Town Leading in Executions In a New U.S. Era of Death Penalty, The New lork Times, Sept. 6, 1986, at 8, col. 4.

108. See, e.g., B. Denson, The Pros, Cons of Throwing Away Key, The Houston Post, July 14,1991, at A-I.

109. S. Scott, Prosecutors Find Juries Balking at Death Penalty, The Dallas Morning News, Dec. 26, 1993, at 41-42A.

110. See, e.g., Sentencing for Life: Americans Embrace Alternatives to the Death Penalty, Death Penalty Information Center, April, 1993, at 19 (decrease in death sentences in states giving jurors the option of life without parole).

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The Death Penalty Il"lormation Center Is a non-profit organIzation serving the media and the public with analysis and Information on issues concerning capital punishment. The Center prepares in-depth reports, issues press releases, conducts briefings for journalists, and serves as a resource to those working on this issue. The Center is a project of the J. Roderick MacArthur Foundation.