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The Death Penalty in Texas

Few issues in the United States today are as emotionally charged and controversial as the death penalty. Formally know as capital punishment, the death penalty has been hotly debated not only as a legal issue, but as a religious, ethical, and political one, historically as well as in the present day. Although many states currently administer the death penalty, Texas has been put in the spot light this past year because of the recent presidential race. The moral question of whether or not it is right to kill another human being is ever-present in today’s society. However, when looking at it from a political standpoint, one must also consider whether or not it is even legal. After looking at a combination of Supreme Court rulings and individual Texas laws, one must conclude that it is perfectly legal to carry out a death penalty sentence. However, there are a number of things Texas could do to improve their capital punishment system.

Thirty-eight states presently allow the death penalty. Alaska, Main, Hawaii, Michigan, Minnesota, Iowa, Wisconsin, Rhode Island, Vermont, Massachusetts, North Dakota, West Virginia, and the District of Columbia do not. Texas and California lead the other states with 400 convicts on death row. Texas leads the nation in the number of executions since the death penalties revival in 1976 (Stewart 85).

The death penalty is legal according to a Supreme Court ruling, Gregg vs. Georgia. In the ruling, the Supreme Court ruled the death penalty is not cruel and unusual punishment. It was ruled that it is not in violation with the Constitution as long as “guided discretion” was used (Almonte 7). In many cases, petitioners have tried to reverse decisions by petitioning and holding up gruesome signs of a man “frying”; usually with his eye-balls popping out and blood running down his face. However, this is a very non-factual picture. There is very little to no blood in electrocutions. Secondly, the method of choice is currently lethal injection.

In response to those who fondly quote the eighth amendment, the Constitution actually makes reference to the death penalty not one, but twice. The first occurrence is in the fifth amendment of the Bill of Rights, which says that, “no person shall be held to answer for a capital…crime, unless on a presentment or indictment of a Grand Jury… nor be deprived of life… without due process of law” (Stewart 21). In other words, the Constitution is specifying that the death penalty may be used, but warns that there are certain stipulations that must first be met. The second mentioning is in the Fourteenth Amendment which says states shall not, “deprive any person of life, liberty, or property, without due process” (Stewart 22). Once again, the same law regarding the death penalty is passed on to the states. In either case, the constitution is permitting the death penalty, but stating that there must be a due process in which the verdict is made.

The death penalty was legalized in Texas in 1923. It was instituted as an alternative to lynching and county level executions. Since Texas was a rather prejudice state, lynching were common after the abolition of slavery. After the death penalty was instituted, the number of lynchings was significantly reduced (Bright 1).

The new capital punishment statute took effect the morning of February 8, 1924. At 12:09 A.M. Charles Reynolds walked through the door to the electrocution chair, was strapped in by the guards, and because the first man executed in the state of Texas. Reynolds was pronounced dead at 12:16 after three jolts of electricity. After Reynolds, there was a quick succession of inmates sentenced to die that night. Ewell Morris, George Washington, and Mack Mathews followed, and Melvin Johnson was granted a one hour stay of execution. He receive no further reprieves, however, and was pronounced dead at 2:00 A.M., becoming the fifth man to die in under two hours. All five of theses prisoners were African-American and from eastern Texan counties. These first five executions were coined the “harvest of death” (Marquart 19).

Many critics of capitol punishment argue that because criminals receive different penalties for the same crime, the death penalty discriminates. It is argued that wealth, race, gender, and geographical location all effect who gets the death penalty and who doesn’t. When presented with the facts, one may find that more blacks than whites have been executed in Texas, and many agree that it is the case in many other states as well. In 1987, the Supreme Court ruled on the case of McCleskey v. Kemp, a race case. Warren McCleskey was a black man who had been convicted of killing a white police officer. He claimed the Georgia’s death penalty laws were discriminatory. McCleskey argued that because he was black and his victim was white the prosecutor was more likely to seek the death penalty. The court disagreed. It said that those who asked for the death penalty, in McCleskey’s case, were not doing so on the basis of racial discrimination. However, in general, it can be very difficult to prove when someone is purposely trying to discriminate (Almonte 25).

When looking for racial motivation, one must consider many other elements before judging the Texan court system. Just under half of the 421 offenders sentenced to death in Texas between 1974 and 1988 were convicted in counties that define the six major metropolitan regions of the state. Nearly 60 percent of the capital murderers were in their twenties during the time of their arrest. Six offenders were seventeen years old when arrested. The oldest, Margarito Bravo, was 55 when arrested in 1976 for killing a police officer. These inmates were evenly split between Anglo and non-Anglo males (36 percent were African-American, 14 percent were Hispanic). Two-thirds were single or divorced at the time they committed their offense. Almost all of them had committed previous offenses. Those on death row were primarily unskilled laborers (68 percent) or craftsmen (13 percent), with less than a high school education (just less than 90 percent). Over half of those convicted after 1972 had one ore more property crime convictions. Fifty-six percent had a violent crime conviction. Just over half of the prisoners had been previously sentenced to prison for other offenses. Murder in the course of a robbery was by far the most common crime committed, with a total of 207 convicts on death row. The next closest are 77 prisoners convicted of rape/murder. One third of the robbery murderers were from Huston. Sixty-five percent of those one death row used a gun to kill their victims. Forty-seven percent had help in committing their offense (Marquart 135-137). After examining these statistics, one must conclude that there is no outstanding numbers to prove any racial motivation for sentencing.

According to the Chicago Tribune, in a study of the 145 executions under Bush, it was found that in 40 of the cases the defense attorneys made no real defense. Dozens of defendants were compromised by unreliable evidence. An example would be in the case of Gary Gram. Gram was convicted of killing Bobby Grant Lambert in a Safeway parking lot. He was found guilty after only two days. If this wasn’t enough to enrage protesters, no murder weapon was found, nor were there any fingerprints, blood, or DNA matches. He was identified by a woman who picked him out on a second chance line-up. Gram was the only man to appear in both line-ups (Black 1). Gram was only a teenage at the time of his conviction and his execution was postponed eight times. He was finally put to death at age 36. He was the 135th person put to death in Texas since George W. Bush became governor (Arnold 1).

The choosing of court-appointed councils has also been called into question in Texas. In Gram’s case, the appointed attorney, Ron Mock, had been disciplined for unprofessional conduct four times. He has never won a murder case (Black 1). Texas has no statewide system of public defenders. It is up to local judges, elected mind you, to appoint lawyers to poor defendants. Going by the record, these appointments tend to be poorly qualified. In one case, the lawyer actually slept through the trial. The judge in this case stated that “the Constitution doesn’t say the lawyer has to be awake.” The Texas legislature voted for a public defenders system, but Bush vetoed the bill (Hunter 1). It is important to realize that these judges responsible for appointing judges are elected. Because they are elected, staying in office requires keeping the public, i.e. the voters, happy. In Texas, and other southern states particularly, the people want to see death penalty convictions. This could lead to judges assigning under qualified representatives to ensure a conviction (Bright 3).

Bush has also vetoed other crucial bills regarding the death penalty, including one to ban executions of the mentally handicapped. He recently resided over an execution in which the prisoner was transported from the intensive-care ward directly to the place of execution after attempting suicide (Hunter 1). However, the Supreme court held that the Constitution does not prohibit the execution of the mentally retarded, with a 5-to-4 vote. John Paul Penry’s sentence was set aside because the jury, in his case, was not instructed to take into consideration his retardation (Bright 1).

Although much of the previous information does report very approvingly of Bush, there are many positive aspects of the Texan death penalty system. First of all, the harsh system helps to deter crime. A very conclusive report was filed by researcher Isaac Enrlich, who found that based on statistics from 1933 to 1969, each execution prevented about seven or eight people from committing murder. A little later, in 1985, Mr. Stephen K. Layson published a study claiming that, on average, every execution of a murderer deters 18 murderers who would have otherwise killed their victim. Also suggested by the study is that if the number of convictions for death row increase by only one percent, it would prevent 105 murders from occurring. Currently, only 38 percent of all murder cases in the United States result in a conviction. Of these convicted murders, only .1 percent are executed (Guernsey 67-68).

Many critics do not see how the death penalty can have any effect on a potential murderer. However, in an article in the National Review, Steven Goldberg, a sociology professor, tried to sum up the logic in the following few sentences:

“Potential murders simply act; the deterrent effect of the death penalty, if there is one, acts upon them. If it acts with sufficient strength, it prevents their becoming murderers.”

Although he is not stating that in every case the death penalty stops people from committing murders, he is saying that if the death penalty means anything to the person, there’s a good chance it could stop him. It would not be hard to understand if Bush argued he was preventing many more deaths of innocent victims then he was putting criminals to death (Guernsey 69). With the extremely high possibility of getting handed the death penalty, one would have to think twice before committing a murder. Also, in Texas there is little possibility of getting a sentence commuted, so if one was sentenced to death in Texas, it is most unlikely one would be able avoid the chair.

The next president of the United States will have a big impact on the legality of the death penalty. Under his term, the president will be more than likely be able to appoint at least two justices to the Supreme Court. If Governor Bush was to become president, he would likely appoint justices that favored the death penalty. Many of the courts most important capital punishment decisions have been decided on a 5-to-4 vote. In these cases, the deciding votes have usually been those of Sandra Day O’Connor and Anthony Kennedy. Scalia, Thomas, and Rehnquist are also usually the other deciding votes. Bush has expressed his admiration for Scalia and Thomas, who maintain that the Constitution allows states to execute its prisoners. As you can see, the next President will probably change the balance of power in the Court’s review of capital cases. The court could either play a larger role by restricting the use of the death penalty, or they could give the states “free reign” to carry out their executions (Bright 1).

The Supreme Court has the right to overturn a death penalty ruling under the Writs of Habeas Corpus. However, the Court has many procedural barriers, preventing many cases from being reviewed. For example, you must file a federal habeas corpus petition within a year of sentencing as stated in the Antiterrorism and Effective Death Penalty Act, signed by Clinton in 1996 (Bright 3). Significant delays on habeas corpus proseedings are caused by successive petitions to district courts, delays in those courts, and repetitive appeals to the court of appeals. The habeas corpus restrictive rules simply delay the imposition of the death penalty and render it meaningless as a deterrent. The purposes of tough law enforcement is best served by full hearings instead of allowing the procedural chaos to defeat the substantive benefits of capital punishment (Schonebaum 21).

The death penalty has been apposed ever since the Quakers set foot on this land hundreds of years ago. Since then, in almost every time period, one can find strong opposition by influential people or parties. The morality has been called into question thousands of times, linking it to other “moral crimes” such as abortion and mercy killing. Last January, the Catholic bishops of Texas appealed to Gov. George Bush, asking him to follow in the footsteps of Gov. George Ryan (the governor of Illinois), and outlaw the death penalty. His replay to the bishops was, “These were people found guilty by a jury of their peers. These are people who have had full access to the court of law. There’s no doubt in my mind that each person who has been executed in my state was guilty of the crime committed” (Black 1). To the bishops’ dismay, Bush did not follow in Governor Ryan’s footsteps.

It has been argued that, while on death row, the convicts are not treated fairly and humanely, therefore violating their constitutional rights. Death row inmates are kept physically separate from other inmates. They occupy cell blocks on one end of the prison, opposite the general prison population. In a sense, death row is actually a prison within a prison. Security here is maximized. Guards follow strict and detailed procedures when transporting death-row inmates. Condemned prisoners who leave the death-row wing are to be escorted by two prison officers. As they move through the prison, they must wait to clear many locked gates along the way. They most often alert the officers with the phrase, “Dead man coming through!”. However, a consent decree signed in conjunction with Ruiz vs. Estelle, one of the most comprehensive prisoners’ rights cases, changed the conditions on death row for some inmates. In this decree, prison officials agree to classify death row prisoners as “death row work capable” or “death row segregation”, as it said in the 1985 “Death Row Activity Plan.” As a result of this, some death row prisoners have access outside their cell up to five times a week. Inmates considered threats to security are also allowed recreation, but only in “recreation cages”, which are merely outside areas near their cell block (Marquart 139).

It has also been debated that whether it is morally right to execute a woman, rather than a man. The laws in Texas concerning the death penalty do not mention gender at all. The reason one may not see very many women on death row is that they rarely commit a crime punishable by death. Some of these would be: Murder of a peace officer, murder during a felony, murder for hire, murder during a prison escape, and murder of more than one person. A lover’s quarrel that erupts in a murder is not a capital offense. Until recently, no woman had been executed in Texas since 1863. There are currently seven women on death row in Texas. Three of them have been there for more than ten years. Another reason for few women having been executed is that the governors used to have the power to commute a sentence (Curtis 1).

For a century or more, governors in Texas commuted sentences regularly. Sometimes they had very good reasons, other times little reason at all. From the late nineteenth century until modern times, Texas governors commuted 20 percent of the executions in the state, including every execution set for a woman. However, today the rules have changed. When the death penalty was reinstated in 1976, it came back with certain limitations. In 1983 a constitutional amendment put restrictions on the governor’s power to commute a sentence. The process now follows a system close to this: Near the end of the appeals process, the original judge sets a date for the execution. The date is then sent to the governor and the Texas Board of Pardons and Paroles. Two thirds of the board of 18 must recommend to commute the sentence. If the board votes to commute, the recommendation is sent to the governor, who can then chose to commute the prisoner or not. Without the approval of the board, all the governor can do is grant a 30-day stay of execution (Curtis 3). George Bush has never made any attempt to commute a sentence, however, none of the seven women seem to be likely candidates. An example would be Betty Lou Beets. Beets was convicted in 1983 for shooting her fifth husband to death for his insurance and pension benefits. His body was buried in a wishing well at their home near Gun Barrel City in East Texas. Investigators also found the remains of her fourth husband, who had also been shot, buried under a shed on the property. Police began to suspect her when an informant said he had gone to a motel with her, both drunk and laughing, and she had said, “You wouldn’t think it was so funny if you knew that the last son of a bitch I laid up with I buried in the front yard” (Curtis 3). Beets was the 121st person to get the needle in Texas in the five years Bush has been governor.

Another possible reason for Bush not trying to commute any sentences is that he’s giving the Texans what they want, and the people of Texas like executions. In the recent Democratic primary for governor in Texas, one candidate, Mr. Mark White, put out a gruesome commercial in which he strode triumphantly past photographs of the people who had been executed while he was governor in 1983-87. He still lost. However, Jim Mattox, one of the two Democrats who competed in the run-off election for the party’s nomination on April 10th, tried in similar vein to take credit for executions even though, as Texas’s attorney-general, he is involved with civil cases, not criminal ones. When his rival, Mrs. Ann Richards, received unwanted support from a prison newspaper, the Mattox campaign quickly adopted the slogan: Jim Mattox. There are no endorsements for him on death row” (Brown 2).

From a political standpoint, you must conclude that the death penalty is legal, according to the constitution and state law, when a prisoner has stood trial and been convicted. However, one must question the way in which people are being convicted in Texas. With the highest number of people on death row, and by far the largest number

of executions, it is a likely conclusion that the system in Texas needs improvement. George Bush has done little to correct the loop-holes in his states system, but there has been little call to do so from the people he governs. Not until now, with the presidency on the line, must Bush, along with Texas, face up to their record and do something about it.

Almonte, Paul. The Facts About Capital Punishment. New York: Crestwood House, 1991.

Arnold, Kari. “Capital Punishment on Trial in Texas.” Maclean’s. July 1, 2000. 59.

Black, Johnson. “A Bush-Gore hedge on Capital Punishment.” The Christian Science Monitor. June 16, 2000. 11.

Bright, Stephen B.. “The Killing Machine.” The Nation. Oct. 9, 2000. v271 i10. 17.

Brown, Howard. “The Politics of Death.” The Economist. March 24, 1990. v314 n7647. 25.

Curtis, Gregory. “Seven Women.” Texas Monthly. Oct 97. v25 n10. 7-10.

Guernsey, JoAnn. Should We Have Capital Punishment?. Minneapolis: Lerner Publications Co., 1993.

Hunter, Gardner C.. Against the Death Penalty. Waterloo: Herald Press, 1997.

Marquart, James. The Rope, the Chair, and the Needle. Austin: University of Texas, 1994.

Schonebaum, Stephen. Does Capital Punishment Deter Crime?. San Diego: Greenhaven Press, 1998.

Stewart, Gail B. The Death Penalty. San Diego: Greenhaven Press, 1998.

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