Texas is 1 of 7 states that elects its own judges in partisan elections and 1 of 2 states with a bifurcated appellate process, meaning there are separate appeals courts for civil and criminal matters. Although the state has 14 lower courts, where criminal cases are typically heard before they reach the Texas Court of Criminal Appeals, death penalty cases are unique and go directly to the Court of Criminal Appeals, the state's highest criminal court.
Of the Court of Criminal Appeals' 9 members, 3 judges are up for re-election this year: Mary Lou Keel, Scott Walker and Jesse McClure, although Keel is running uncontested. Currently, all 9 judges are Republicans. Democrats have not won a seat on the court since the late 1990s.
Because judges in Texas are chosen in partisan elections, voters could potentially flip 2 seats in the midterms. While a shift in the court's makeup wouldn't be enough to give Democrats a majority, voters could elect 2 liberal judges who are generally less supportive of the death penalty than their conservative counterparts, studies show.
"With Republican judges more likely to uphold death sentences and the current court entirely composed of Republicans, it may be no surprise that Texas tends to execute more individuals than most other states in the U.S.," Alex Badas, an assistant professor of political science at the University of Houston, told Newsweek.
Texas is among 27 states with the death penalty. Since 1976, the state has executed 576 state inmates and 6 federal inmates—the highest number executions per state in the U.S. In the last 2 years, 9 people have been executed in Texas. Comparably, Oklahoma has executed 6 people since 2020 and Missouri has executed 3.
The Texas Court of Criminal Appeals, which oversees cases where individuals challenge their death sentence and determines whether there were legal errors in previous proceedings, has rarely overturned the death penalty.
Although it is much more likely for the court to uphold a death penalty conviction, there have been cases in which judges ordered death sentences to be revisited. Earlier this year, the court halted the executions of Melissa Lucio and Ramiro Gonzales.
In May, the court issued a stay of execution for Lucio, who was convicted of capital murder in the death of her 2-year-old daughter, 2 days before she was set to die by lethal injection. And in July, the court halted the execution of Gonzales, who was sentenced to death for kidnapping, raping and killing Bridget Townsend, 2 days before his scheduled execution.
"Even in Texas, while a majority still support the death sentence, the numbers are getting smaller," Badas said. "There is some evidence that judges—especially those who are elected—may be influenced by public opinion when hearing death penalty appeals."
A poll conducted by the University of Texas/Texas Tribune last year found that while the majority of Texas voters, 63 %, support keeping the death penalty for people convicted of violent crimes, that figure has fallen drastically in the last decade. When pollsters asked the same question in 2010, 78 percent of Texas voters supported the death penalty.
Of the 3 judges up for re-election this year, two are facing Democratic challengers—Judge Dana Huffman, who is running against Walker, and Judge Robert Johnson, who is running against McClure. Huffman and Johnson were elected as trial court judges, but they will need significantly greater support to defeat the Republican incumbents on the Court of Criminal Appeals.
"Trial court judges are elected in local communities, but they are now running for statewide office," the University of North Texas' Wendy Watson told Newsweek. "And Texas is a very, very big state."
Most Texas voters know little about who is on the Court of Criminal Appeals, and even less about their challengers, so they are likely to vote based on political affiliation. This can make it difficult for liberal judges to win, as Republican voters significantly outnumber Democratic voters in Texas.
While judicial elections are notoriously "low information" elections, Watson said, "information [about a candidate] is far more likely to hurt than to help them." Judges running for election typically want to appear neutral and as though they have not prejudged any issue that might come before them. To do this, they often avoid taking clear stances, especially on the death penalty.
"If you visit the websites of all of these candidates—regardless of partisan affiliation—you will find a commitment to making the courts accessible, and that is about it," Watson said. "They have not publicly staked out a position on any actual legal issues."
Given the political beliefs of many Texans, a candidate who is explicitly opposed to capital punishment would be unlikely to win election, even for a lower court in the state. And it would be wise for judges, even after they're elected, to refrain from taking a strong position on the death penalty if they want to serve more than one term.
Since Keel will keep her seat and because McClure and Walker, who is the most conservative of the 3, are favored to win, Badas said Texas' highest criminal court is likely to stay all Republican.
"Based on this, I would expect the court would be more likely to deny relief in death penalty cases and more likely to uphold them," he said.
Source: Newsweek, Katherine Fung, October 28, 2022
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde