Discussions with DPIC Podcast: Retired Judge Elsa Alcala on the Death Penalty in Texas

In this month’s episode of Discussions with DPIC, Managing Director Anne Holsinger speaks with Judge Elsa Alcala, who served on the Texas Court of Criminal Appeals from 2011 to 2018. In addi­tion to serv­ing as a judge at the appeals and tri­al lev­el, she worked as a pros­e­cu­tor, crim­i­nal defense attor­ney, and most recent­ly as a jus­tice-reform lob­by­ist dur­ing her three-decade career in crim­i­nal law. She shares how these expe­ri­ences have informed her per­spec­tive on the death penal­ty and iden­ti­fies rec­om­men­da­tions for crim­i­nal legal reforms. 

Judge Alcala, who had tried three cap­i­tal cas­es dur­ing her time as pros­e­cu­tor in the ear­ly 1990s, joined the bench believ­ing that the death penal­ty was used for the worst of the worst offend­ers, but she left the bench as a death penal­ty oppo­nent. ​“The peo­ple who end up with the death penal­ty, in, at least in Texas, his­tor­i­cal­ly, were poor peo­ple who were peo­ple of col­or. And so when I real­ized that dis­crep­an­cy between who was get­ting the death penal­ty, the types of crimes that were hav­ing the peo­ple get the death penal­ty, [and] the risk of con­vict­ing an inno­cent per­son, I became con­vinced that we had to abol­ish the death penal­ty alto­geth­er,” she said. 

Texas exe­cut­ed 60 peo­ple, ​“which was at the rate of about one per­son every month,” dur­ing her tenure. Judge Alcala reviewed many cap­i­tal and non-cap­i­tal appeals with inno­cence and unfair tri­al claims, includ­ing claims of inef­fec­tive defense coun­sel and the fail­ure of pros­e­cu­tion to dis­close excul­pa­to­ry evi­dence. ​“So I saw all of those prob­lems while I was on the court and I became con­vinced that the risk of exe­cut­ing an inno­cent per­son is just too high and that too many pros­e­cu­tors and judges are over­ly focused on mak­ing the crimes or the con­vic­tions for the crimes final. They’re more inter­est­ed in final­i­ty than they are in the accu­ra­cy of the con­vic­tion or the sen­tence,” she said. 

Among her col­leagues on the bench, Judge Alcala was out­spo­ken, author­ing a total of 117 dis­sent­ing opin­ions. She specif­i­cal­ly drew atten­tion to prob­lems in death penal­ty lit­i­ga­tion, includ­ing in Duane Buck’s case, where the Texas Court of Criminal Appeals upheld his cap­i­tal con­vic­tion 6 – 3 and the U.S. Supreme Court lat­er reversed the con­vic­tion. ​“The record in this case reveals a chron­i­cle of inad­e­quate rep­re­sen­ta­tion at every stage of the pro­ceed­ings, the integri­ty of which is fur­ther called into ques­tion by the admis­sion of racist and inflam­ma­to­ry tes­ti­mo­ny from an expert wit­ness,” said Judge Alcala’s dis­sent­ing opin­ion, which was joined by joined by fel­low Judges Tom Price and Cheryl Johnson. 

After leav­ing the bench, Judge Alcala worked as Policy Director for the Texas Defender Service, a non­prof­it orga­ni­za­tion that seeks death penal­ty reform and rep­re­sents cap­i­tal­ly charged defen­dants. ​“A lot of the prob­lem is leg­isla­tive, at the fed­er­al lev­el and at the state lev­el,” she said. ​“We have too many laws that pro­hib­it review of cas­es under the the­o­ry that you should have one bite at the apple that you know, you have your one full and fair tri­al, one full and fair appeal or habeas review, and that that should be the end of it. What I know for sure is that that’s not work­ing.” She men­tions four key reforms: allow­ing a motion for a new tri­al when the pros­e­cu­tion, defense and judge mutu­al­ly agree that there’s been a mis­car­riage of jus­tice; elim­i­nat­ing the use of junk sci­ence, which is already barred in the guilt stage, in the pun­ish­ment stage of cap­i­tal tri­al; bar­ring the exe­cu­tion of the severe­ly men­tal­ly ill; and per­mit­ting ​“post-con­vic­tion chal­lenges, assert­ing that the ini­tial habeas coun­sel was inef­fec­tive.” There have been efforts to imple­ment these reforms, ​“but the changes that we’ve tried to make have been met with obsta­cles by peo­ple who I think either just don’t know bet­ter, or they don’t care,” explains Judge Alcala. She empha­sizes the impor­tance of con­vic­tion integri­ty units in inde­pen­dent­ly exam­in­ing claims of wrong­ful con­vic­tion and adds that some­times pros­e­cu­tors are ​“unwill­ing to admit that they had any role in a wrong­ful con­vic­tion,” rather than focus­ing on the truth.