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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Texas' death penalty beyond repair so think about ending it, judge says

We welcome Judge Elsa Alcala's frank - and courageous - assessment of the Texas death penalty, not for what people wish the state's capital punishment system to be, but for what it is: Discriminatory, inefficient and immoral.

That assessment coming from an experienced judge on the Texas Court of Criminal Appeals - the state's highest court in criminal matters - is not easily dismissed.

It's true that many Texans support the death penalty as a tough, fair and painless way to punish those convicted of certain heinous crimes. That category includes crimes in which more than one person was murdered, a law enforcement officer was killed, or circumstances that involve murder and another aggravated felony. An example of the latter would be fatally shooting a store clerk during the course of a robbery, or killing someone during a sexual assault or kidnapping.

To be sure, those are horrible crimes that warrant the toughest punishment on the books. The problem with the death penalty is that it is final. Once done, it cannot be undone. As such, it requires a perfect system in which to operate justly and morally. An imperfect system means a killer gets away, while an innocent is imprisoned or executed.

It's no wonder that Alcala has growing discomfort with the Texas death penalty system, riddled with imperfections. She wrote about them in a recent opinion regarding the case of Julius Jerome Murphy, sentenced to die for the 1997 shooting death of a man whose car had broken down along Interstate 30 in Texarkana.

"I think there are, as I said in that opinion, significant problems with the death penalty," Alcala told the American-Statesman's Chuck Lindell. "There are lots of problems, and I think the public is not aware of the problems."

Alcala wrote that Texas courts should study whether the death penalty is unconstitutional because it is arbitrarily imposed by race, disproportionately affecting minorities, and whether excessive delays in imposing the ultimate sentence results in cruel and unusual punishment because inmates are held in solitary confinement for years, if not decades. Those inequities are reflected in state figures that show 71 % of those awaiting execution in Texas are African American or Latino.

Alcala came to the bench in 2011, when then-Gov. Rick Perry tapped her to fill a vacancy. Her doubts and concerns regarding the system have been sown by cases that came before her, including:

-- Bobby James Moore: Alcala wrote that her court's reliance on a decades-old standard to measure intellectual disability, which is no longer used by medical professionals, "is constitutionally unacceptable."

-- Duane Buck: Alcala sharply criticized rulings allowing Buck to be executed despite trial testimony that he was a future danger to society because he is black.

Such concerns grabbed the attention of the U.S. Supreme Court, which earlier this month, announced it would examine the constitutionality of the death sentences given to Moore and Buck.

Pointing out the flaws in the state's death penalty system takes political guts, given the wide support it enjoys in Texas, topping 70 % on a recent Gallup poll. That kind of courage has been in short supply since judge Tom Price left the state Court of Criminal Appeals in 2014. Before his departure, Price called for an end to the death penalty, saying he was haunted by a growing fear that Texas will execute an innocent inmate, if it hadn't already. He worried aloud whether he had participated in executing an innocent person.

As a long-time judge on the court, Price was part of a body with a dubious history in death penalty matters. The court still is plagued by its unfortunate "sleeping lawyer" ruling more than a decade ago refusing to halt an execution of a death row inmate whose attorney had snoozed through major portions of his capital murder trial.

Following that embarrassment, there was the "we close at 5" incident in a 2007 case.

Presiding Judge Sharon Keller closed the court clerk's office at 5 p.m., preventing attorneys from filing a last-minute appeal for twice-convicted killer Michael Richard, who ultimately was executed without his final appeal being heard in court. That prompted the State Commission on Judicial Conduct to issue a public warning to Keller, but the rebuke was later dismissed on a technicality after Keller appealed.

Aside from the court's well-documented missteps, there are other signs of the system's imperfections in the wave of exonerations of Texans, such as Michael Morton, who were wrongfully convicted and sent to prison for many years, while the true criminals went free. Oftentimes, the guilty go on to commit more crimes, which was true in the Morton case in which the person who murdered Morton's wife, went on to kill another woman.

It's worth noting that Texas led the nation in the number of people wrongly convicted of crimes, who were exonerated in 2015, according to figures compiled by the National Registry of Exonerations. In all, 54 people were exonerated for mostly homicide and drug cases going back to 2004. New York was 2nd with 17. False identifications by witnesses, misconduct by police or prosecutors, errors by crime labs or defense attorneys, all are among the things that can and do go wrong.

It's no wonder Alcala is uncomfortable remaining silent. Doing so perpetuates the fallacy that the state's death penalty is carried out fairly and justly. That might be what many wish it to be, but it is not the reality.

Source: Editorial Board, Austin American Statesman, June 2, 2016

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