"Texas long ago decided that the death penalty is a just and appropriate punishment for the most horrible crimes committed against our citizens. While we respect our friends in Europe, welcome their investment in our state and appreciate their interest in our laws, Texans are doing just fine governing Texas. "
Spokesperson for Governor Rick Perry (photographed) on EU call for halt to Texas executions, August 2007
1. a ‘pointless and needless’ deprivation of life
On the evening of 9 January 2001, 37-year-old Jack Clark was taken from his prison cell in Texas, USA, and killed. This calculated killing was conducted by state government employees. It was not necessary. It could have been stopped. While deemed lawful by the courts, in the end it was a political choice to carry it out. Although such a killing could have, and has, occurred in a number of other US states both before and since – indeed one was carried out in Oklahoma on that same evening – it would not have happened in a majority of other countries at the beginning of the 21stcentury. Eight years later, even fewer countries operate this particular state policy. It is becoming less and less part of the modern world.
It was not the first time such a killing had happened in Texas – far from it – and it was not to be the last. However, the execution of Jack Clark was the first to be carried out under the governorship of Richard Perry, the Lieutenant Governor who had been sworn in as the state’s 47thGovernor three weeks earlier, on 21 December 2000, following the election of the previous governor, George W. Bush, to the office of US President. The outgoing governor’s subsequent disregard for international law in the White House was perhaps less surprising to those familiar with his record on the death penalty in Texas where such disregard could be said to have been incubated. Meanwhile, under his successor in the Texas Governor’s Mansion, the state’s resort to judicial killing has continued apace, not infrequently breaching the USA’s international obligations.
There were 152 executions in Texas during the nearly six years of the Bush governorship (1995-2000). Now looming is the 200thexecution during Rick Perry’s term in office.1The combined total of more than 350 executions in Texas under these two governors represents 30 per cent of the national total since executions resumed in the USA in 1977. Virginia is ranked second to Texas in executions. In 30 years, Virginia has killed 103 people in its death chamber, half the number put to death in Texas in eight. This is geographic bias on a grand scale.Texas, where about seven per cent of the population of the USA reside, and where fewer than 10 per cent of its murders occur, accounts for 37 per cent of the country’s executions since 1977, and 41 per cent since 2001. Rid Texas of executions and, in terms of judicial death toll, the country could effectively be almost halfway to a nationwide moratorium.
Not every murder in the USA, or in Texas, is punishable by the death penalty and not every capital murder is punished by execution. Jack Clark, for example, was convicted of one of the 2,000 murders in Texas in 1989, and one of 21,500 murders nationwide that year. He became one of 26 defendants to be sentenced to death in Texas in 1991, and one of 268 nationwide. Under US capital law, only the “worst of the worst” crimes and offenders are subject to execution, resulting in an attrition rate by which only around one per cent of murders result in the death penalty. In the words of the US Supreme Court, the death penalty is “limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution”.2Carefully framed capital statutes, guided prosecutorial discretion, juror consideration of mitigating and aggravating factors, and multiple judicial appeals, ensure consistency, accuracy and fairness in capital justice. And then, in the words of the US Supreme Court’s Chief Justice in 1993, in a Texas death penalty case, because “it is an unalterable fact that our judicial system, like the human beings who administer it, is fallible”, executive clemency provides “the ‘fail-safe’ in our criminal justice system”.
At least that is the theory. Reality is very different. Arbitrariness, discrimination and error mark the death penalty in Texas as elsewhere in the USA, along with the inescapable cruelty of this outdated punishment. Clemency all too often fails to prevent injustice.
International law recognizes that some countries retain the death penalty. However, this acknowledgment of present reality should not be invoked “to delay or to prevent the abolition of capital punishment”, in the words of Article 6.6 of the International Covenant on Civil and Political Rights. With a view to abolition, international standards require a narrowing of capital punishment and the application of safeguards aimed at minimizing arbitrariness and irrevocable error. Children, the mentally impaired, the inadequately defended, and those whose guilt remains in doubt are among those supposed to be protected from the death penalty. Those executed in Texas since Jack Clark was put to death have included individuals from each of these categories.
This report looks back at a few of the cases of prisoners executed in Texas during Governor Perry’s term in office, and forward to a few cases that may yet come across his desk. This is not to suggest that the governor alone is responsible for the fate of those on death row. Many people are involved in capital justice – from prosecutors to jurors, from legislators to prison staff, from judges to members of the clemency board. In some cases, even the prisoners themselves assist the state in its pursuit of execution. About one in 10 of the more than 1,150 executions carried out in the USA since 1977 have been of condemned inmates who had given up their appeals and “consented” to being killed by the state.3 While some prisoners give up their appeals after years on death row, the death wish of others precedes their trials. Their unwavering pursuit of execution suggests that for them, far from being the deterrent some politicians claim, the death penalty represents a form of escape, whether from the torments of their lives, their crimes, or their minds. There have been seven such executions in Texas during Governor Perry’s time in office. For example, Christopher Swiftwas put to death on 30 January 2007 after less than two years on death row. According to one of his trial lawyers, “receiving the death penalty is what he’s wanted from day one, from the first day I met him.” Christopher Swift had prevented his lawyers from presenting any witnesses at his 2005 trial. He waived his right to a lawyer for his automatic mandatory appeal, and when the death sentence was affirmed, asked for an execution date to be set.
The power of the Texas governor to intervene in death penalty cases is somewhat circumscribed. Under Texas law, while the governor has unfettered authority to issue a one-off 30-day reprieve for anyone facing execution, he or she cannot grant a longer reprieve or commute a death sentence without a recommendation to do so from a majority of the members of the state Board of Pardons and Paroles. At the same time, the governor can reject such a recommendation.
Nevertheless, it would be surprising if the governor would not have substantial influence with the Board if he or she chose to take stands in favour of clemency in capital cases. The governor appoints the Board’s members (with state Senate confirmation), and the seven current members were all appointed by Governor Perry. Moreover, under the Texas Administrative Code, “The board shall investigate and consider a recommendation of commutation of sentence in any case, upon the written request of the governor.” Before the Board decides on a case, then, the Governor could inform them that he favoured clemency. Following clemency denials by the Board, the Governor could use his power of reprieve to send such cases back with a clear message that he favours commutation.
Like his predecessor, however, Governor Perry has rarely exercised the power of reprieve.4In one case where he did, in December 2004 he granted a 120-day reprieve to Frances Elaine Newton on the recommendation of the Board of Pardons and Paroles. In a statement, he said that “he saw no evidence of innocence”, as the prisoner claimed, but decided to allow further review in the courts. He said that “justice delayed in this case is not justice denied”. The Harris County District Attorney, whose office prosecuted Newton and who had opposed a reprieve, expressed his disappointment at the decision. He was quoted as saying: “On the other hand, it doesn’t make any difference to me if she is executed today or in 120 days.” When the case came back to Governor Perry in 2005, he refused to issue a 30-day reprieve, saying it “would only delay justice”. Frances Newton was killed on 14 September 2005.5
Two years later, on 25 September 2007, Governor Perry denied the request for a 30-day reprieve in the case of Michael Richardfacing execution that evening. On that same day, the US Supreme Court agreed to hear the case of Baze v. Rees, a challenge to the constitutionality of lethal injection, the method used by Texas in all its executions since 1982. The Court’s consideration of this issue led to the suspension of executions nationwide for the next seven months. Michael Richard was put to death, however, after the Presiding Judge on the Texas Court of Criminal Appeals refused to keep her office open in order to receive his last-minute plea for a stay in light of the Supreme Court’s announcement. At the time of writing, there were continuing moves in the state legislature to seek to impeach Judge Sharon Keller for “her apparent irresponsible refusal to abide by the prior practice of the Texas Court of Criminal Appeals in order to receive the appeal of Michael Richard, which conduct may have resulted in Mr Richard’s deprivation of life without due process of law… by means of a potentially unlawful execution by lethal injection, and in the embarrassment of the State of Texas in a manner that casts severe doubt on the impartiality of the Texas Court of Criminal Appeals and the entire criminal justice system of this state”.6
While the courthouse door was shut on Michael Richard, the door to clemency, if open, remains the tightest of squeezes for the vast majority of the Texas condemned, despite their frequently compelling petitions. Although Governor Perry has commuted the death sentences of some 30 Texas prisoners after they fell under the US Supreme Court rulings in 2005 and 2002 prohibiting the execution of juvenile offenders and people with mental retardation, it was not until nearly seven years after he took office that he commuted the death sentence of a prisoner facing imminent execution in whose case there was not a judicial ruling effectively requiring clemency. During this time, 163 condemned prisoners had been put to death in Texas. There has not been another such commutation since.
Not only that, but in 2004, in the case of an inmate suffering from very serious mental illness, Governor Perry rejected a recommendation for commutation by the Board of Pardons and Paroles (see Section 3). While Amnesty International considers that Governor Perry abdicated his responsibility to provide human rights leadership in this case, it was a reminder of political reality in Texas. Given that the state electorate has twice returned Governor Perry to office, his record on executions has clearly not registered enough concern among enough voters to cause him to change direction on this issue.7
Politicians in the USA frequently seek to justify the death penalty as democracy in action. The people want the death penalty, the argument goes. If they did not, they could vote for politicians and legislators who would bring about abolition. Of course, this argument assumes a fully informed electorate fully engaged on this issue, and an elected class fully responsive to such public opinion. In any event,respect for human rights should not be dependent on opinion polls or other indicators of majority public sentiment.8As has surely been illustrated by US government conduct in recent years, just because democratically elected officials approve a policy or law for use against individuals deprived of their liberty that is incompatible with human dignity, it does not make it right.
Amnesty International opposes the death penalty in all cases, unconditionally. It is the ultimate cruel, inhuman and degrading punishment. To end the death penalty is to abandon a destructive, diversionary and divisive public policy that is not consistent with widely held values. It not only runs the risk of irrevocable error, it is also costly, in social and psychological terms as well as to the public purse (a fact which is drawing increasing public concern in the USA in the current economic climate).9It has not been proved to have a unique deterrent effect. It tends to be applied in a discriminatory way, on grounds of race and class. It denies the possibility of reconciliation and rehabilitation. It promotes simplistic responses to complex human problems, rather than pursuing explanations that could inform positive strategies. It prolongs the suffering of the murder victim’s family, and extends that suffering to the loved ones of the condemned prisoner. It diverts resources that could be better used to work against violent crime and assist those affected by it.
The death penalty state perpetuates the myth that judicial killing is a constructive, effective tough-on-crime policy, when the reality is that the lethal power of the state is being turned against individuals often already socially or economically marginalized or psychologically scarred by dysfunctional backgrounds of deprivation, abuse and neglect. In case after case among the condemned, for example, a history of physical, sexual or emotional abuse is revealed. Time after time, lawyers appointed by the state to defend indigent capital defendants have failed to investigate such backgrounds, leaving juries in the dark about the life stories of those whose execution they are being urged by the state to approve.
On 14 November 2001, Jeffrey Tuckerbecame the 15thprisoner to be put to death during Governor Perry’s first term in office, providing an early indication that the quality of mercy in Texas would remain strained. In his final statement before being killed, Tucker apologised for the suffering caused to the family of the man he killed, saying “I never intended for your husband and father to be killed, it was just an accident. I sincerely regret any pain and sorrow”. In terms of his selection to be among the USA’s “worst of the worst” who should die for his crime, Jeffrey Tucker was one of 29 people sentenced to death in Texas in 1989 (and one of 258 nationwide), having committed one of the more than 2,000 murders in the state in 1988 (out of a national total of more than 20,500). The jury which sentenced him to death heard little of his abusive childhood and no expert evidence about its effects on his mental health. In 1997, both of his trial lawyers signed affidavits acknowledging their failure. One of them wrote: “it was certainly not due to any legal strategy, tactic or plan that we neglected to pursue and introduce documents or testimony regarding Mr Tucker’s mental illness... The idea of investigating a client’s childhood and mental health history was new to us.” Both lawyers said they believed that such evidence could have saved their client’s life.
A psychological evaluation in 1997 found compelling evidence that Jeffrey Tucker had experienced severe post traumatic stress disorder (PTSD) since adolescence. It suggested that if he had had appropriate treatment, the crime might never have happened. It found evidence that the shooting of the victim may have occurred during a PTSD flashback when the victim lunged at Tucker. Jeffrey Tucker had himself recalled that during this episode, “I saw my Dad jumping out at me. I was back there. Then the gun went off.” The evaluation described Jeffrey Tucker’s case as “a prototypical illustration of the possible long-term consequences of untreated childhood sexual abuse. A pervasive sense of stigmatization, betrayal, powerlessness, and traumatic sexualization derived from the child physical and sexual abuse that he endured, coalesced and literally ‘ticked away’, much like a psychological time bomb, until a constellation of certain external and internal stimuli and intrusive recollections ‘detonated’ within Jeffrey…”. This is not, as defenders of the death penalty might suggest, to excuse violent crime, but to seek to explain it. The pursuit of answers to the complexity of criminal behaviour surely does not lie in the state eradication of a small selection of the human beings who commit murder.
The US Court of Appeals for the Fifth Circuit upheld Jeffrey Tucker’s death sentence in 2001, adding that it did “not profess to be unmoved by the dreadful circumstances of Tucker’s childhood, and we understand the relevance of such evidence to the jury’s determination of Tucker’s moral culpability at the time of the crime”. After the courts washed their hands of the case, neither the Board of Pardons and Paroles, nor Governor Perry, were moved to stop the execution. Yet their ability to do so was not limited by the strictures of legal precedent to which judges may consider themselves bound.
Every death sentence passed and every execution carried out in Texas is based on a finding of the condemned individual’s so-called “future dangerousness”. Before passing a death sentence, a Texas capital jury must decide whether there is a “probability” that the defendant would commit “criminal acts of violence” that would “constitute a continuing threat to society” if allowed to live. This aspect of Texas capital sentencing – developed by the state legislature in 1973 as it moved swiftly to reinstate the death penalty after the US Supreme Court had invalidated the country’s death penalty statutes in 1972 (in Furman v. Georgia) – continues to raise serious concerns. Texas prosecutors have repeatedly resorted to the highly dubious use of “expert” testimony purporting to be able to predict dangerousness. Research has shown such predictions to be wildly inaccurate. Not least because of the number of teenaged offenders and mentally impaired individuals sentenced to death (see Sections 2, 3 and 4), concerns about the future dangerousness scheme include whether it has allowed fear to drive juror decision-making rather than an entirely rational consideration of defendant culpability. Moreover, Texas prosecutors have introduced a range of “evidence” at sentencing that purports to illustrate the individual’s dangerousness. This has included information about past convictions, unadjudicated acts, juvenile records, property crimes, and non-violent disciplinary problems in school.10For example, seeking to persuade the jury to vote for the execution of Troy Kunklefor a crime committed when he was 18 years old, the prosecution presented three witnesses who worked at schools that Troy Kunkle had attended. They testified that he had had behaviour problems, such as truancy and failure to follow rules against smoking and disruption in the classroom. The death sentence passed by the jury was carried out in 2004.
According to the US Supreme Court in its death penalty rulings, “standards of decency” are evolving in the USA. Applying this framework, in 2002 it outlawed the execution of people with mental retardation, and three years later, it did the same in the case of people who were under 18 years old at the time of the crime. Against the latter category of defendant, in clear violation of international law, Texas had been the USA’s leading user of the death penalty to this point, and was a leader in the former category also. Texas was out of step even with national standards.
On 16 July 2007, Texas again moved away from national standards when Governor Perry signed into law a bill allowing execution for the non-homicidal rape of a child, joining five other states that allowed such use of the death penalty.11Within a year of Texas passing the law – which contradicted the requirement under international standards to narrow the scope of the death penalty – the US Supreme Court, applying its “evolving standards of decency” framework, ruled that such use of the death penalty was excessive.12 The Texas administration had filed a legal brief in the case pleading with the Court to conclude that “the Constitution allows democratically elected legislatures to choose the most severe punishment” in such cases. The brief stated: “This Court’s precedents have long spoken of evolving standards of decency. Such evolution need not be in only one direction”. Responding to the Court’s subsequent ruling, Governor Perry issued a statement saying that “we recognize that our state is guided by the decisions of the US Supreme Court”. Nevertheless, he chose to quote from the Court’s dissenting opinion, and added that “I believe the vast majority of Texans agree that the death sentence is the appropriate punishment for someone convicted of raping a child”.
Again, the political attraction of the death penalty threatens to obscure human complexity. Six years earlier, on 20 August 2002, Governor Perry had allowed the execution of Gary Etheridgeto proceed. Like many among the condemned in the USA, Etheridge had himself suffered a childhood of appalling abuse. In such cases the death penalty becomes part of a cycle of violence. Etheridge had been physically abused by his father, particularly when his father was drunk. He was repeatedly raped and physically abused by an older brother starting from when he was six years old. He began using drugs and getting into trouble with the law from the age of 12. As a young man, he attempted suicide on at least two occasions, once after being raped while serving a prison term for a prior, non-violent offence. His severe depression, when left untreated outside prison, contributed to his self-medicating with illegal drugs and to serious drug addiction. He was intoxicated on a combination of heroin and cocaine when, as a 26-year-old, he sexually assaulted and murdered a 15-year-old girl. At his trial for that murder, his lawyers were aware of the mitigating evidence of his horrific upbringing, but chose not to present it. They feared that this evidence could be used by the prosecutor to argue that Gary Etheridge would be a future danger if allowed to live. Indeed at the 1990 trial, the (elected) judge had referred to the defendant as a “piece of trash” and a “blight on society”. Such language has all too often been used by elected officials when advocating for the dehumanizing penalty that is capital punishment.
To date, Governor Perry has continued to offer his full support for the death penalty. On 17 June 2005, he signed into law a bill passed by the Texas legislature to change the terminology used on the death certificates of executed prisoners in his state. In a statement, Governor Perry said that “individuals who commit unspeakable crimes against Texas citizens and are put to death under Texas law are not victims. They are criminals and the final document that bears their name should reflect this fact.” The legislation required the death certificate to record the death as “judicially ordered execution”. There can be no masking the human reality of the death penalty, however. And, in the end, the only measurable impact of the 200 executions conducted during Governor Perry’s term in office – beyond the millions of dollars spent in getting these selected individuals to the death chamber – will have been the creation of 200 more dead bodies.
By focussing on cases of the condemned in this report, Amnesty International does not seek to downplay the seriousness of the crimes of which they were convicted or to minimize the suffering caused. It seeks only to further its aim of bringing about an end to the death penalty in Texas, the USA and worldwide.13As is common among elected officials who advocate judicial killing, Governor Perry’s statements on the death penalty usually emphasize the heinous nature of the crimes for which those on death row have been convicted. It is beyond dispute that these crimes – all of them involving the murder of one or more people – are serious. But so too, are the many more murders that did not result in the death penalty.
The macabre milestone of the 200thexecution under an eight-and-a-half-year governorship will hopefully give pause for thought for those in political or judicial office with the power over life and death in the capital justice system to reflect on how this policy flies in the face of widely held concepts of justice and human dignity. Any of them, whether judge or prosecutor, legislator or governor, can and should speak out for an end to this cruel and unnecessary punishment. Governor Rick Perry should join such calls, and work with the state legislature to abolish the death penalty in Texas. Meanwhile, he should do all in his power to prevent further executions in his state.
After the US Supreme Court, in Baze v. Rees on 16 April 2008, upheld the constitutionality of lethal injection as an execution method, Governor Perry issued a statement that “Texas is a law and order state, and I stand by the majority of Texans who support the death penalty as it is written in Texas law”. Texas resumed executions on 11 June 2008, and has carried out more than 30 since then.
Governor Perry’s response to the Bazeruling contrasts with the opinion in the ruling itself of the most senior Justice on the US Supreme Court, who wrote that “the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State is patently excessive and cruel and unusual punishment”. Justice John Paul Stevens has served on the Court for 33 years, a time which has seen six Texas governors come and go and a seventh in his ninth year in office. More to the point, Justice Stevens has witnessed the entire “modern” era of the US death penalty from the bench of the country’s highest court. Given that theirs is the country’s leading executing state, it would behove the people and politicians of Texas to pay special attention to what Justice Stevens has said about what his experience has taught him about the death penalty, and recognize that it is a destructive and brutalizing waste of resources, a cruel tradition that belongs to history.
2. Killed for crimes committed when children
2.1 denying possibility of change: young offenders still face death penalty
3. killing condemned prisoners with mental illness
3.1 still alive, but on death row and suffering from mental illness
4. clemency no failsafe against inconsistencies after atkins
5. inadequate representation, ineffective clemency
5.1 appeal deadlines missed in assembly line of death
6. one bullet, two defendants, rare clemency
7. ‘future dangerousness’: unreliable predictions
7.1 undermining culpability determinations?
7.2 no reassessment of ‘future dangerousness’ for clemency
8. an inescapable flaw – the risk of irreversible error
8.1 the continuing risk of error
9. violations of international law in the ‘lone star state’
10. breaking ‘habit and inattention’, ending faith in executions
Source: Amnesty International, April 30, 2009
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