Judges

Prior to her retire­ment as a Texas Court of Criminal Appeals judge, for­mer pros­e­cu­tor Elsa Alcala described the death penal­ty as unre­li­ably and dis­crim­i­na­to­ri­ly applied in the nation’s most aggres­sive cap­i­tal pun­ish­ment state. In a Houston Chronicle ​“Behind the Walls” pod­cast, Judge Alcala – who calls her­self ​“a Republican hang­ing on by a thread” – told reporter Keri Blakinger, ​“I think we know enough right now to even call for a mora­to­ri­um or just to pause all of this and to say, you know, ​‘What is going on? Why does Texas have such a high per­cent­age of peo­ple who get the death penal­ty and are exe­cut­ed as com­pared to the rest of the country?’”

Hired as a pros­e­cu­tor by Harris County District Attorney Johnny Holmes, who gained noto­ri­ety as one of the nation’s dead­liest pros­e­cu­tors, Alcala spent nine years try­ing cap­i­tal cas­es in the DA’s office of the country’s lead­ing death-sen­tenc­ing coun­ty. She then served as a coun­ty tri­al judge before being appoint­ed by then-gov­er­nor George W. Bush to serve on the state’s high­est crim­i­nal court, the Texas Court of Criminal Appeals. As she was exposed to a range of prob­lems in Texas death penal­ty cas­es, her views on the cap­i­tal pun­ish­ment evolved. She became a skep­tic of cap­i­tal pun­ish­ment, often dis­sent­ing from denials of death-penal­ty relief and, in the case of Julius Murphy, called on the court to con­sid­er whether the state’s death penal­ty was con­sti­tu­tion­al­ly admin­is­tered. When she left the bench, Judge Alcala accept­ed a pol­i­cy role at the Texas Defender Service, where she will advo­cate for crim­i­nal jus­tice reform. In an inter­view with the Texas Tribune, she joked, “[m]aybe I can have more suc­cess at the leg­isla­tive lev­el to get some­body to under­stand that there are some real true problems.”

In the pod­cast inter­view, Alcala cites a range of fac­tors that changed her views about cap­i­tal pun­ish­ment. She dis­cuss­es inef­fec­tive lawyers and parole laws that, at the begin­ning of her career, forced jurors to choose between a 15-year prison sen­tence and a death sen­tence for death-eli­gi­ble defen­dants. ​“What do you do with these peo­ple who … got there back to in the 90s when we know for a fact that the lawyers were not doing what they should have been doing in my mind?” Alcala asked. ​“And then the ques­tion is, as they come up to be exe­cut­ed, are we going to con­tin­ue to exe­cute them and tol­er­ate the fact that things were done imper­fect­ly? … I think, still per­co­lat­ing through all of that is that a lot of those [cas­es] are sub­ject to that old parole law.”

When asked about the decline of the death penal­ty in Texas, Alcala said, ​“It is on the decline sig­nif­i­cant­ly. Whether it will ever go away and when it will go away – I don’t know, I think it is imper­fect. More accu­rate­ly, I should say it is unre­li­able – I have lost faith in the reli­a­bil­i­ty of the death penal­ty. And that is what under­lies my involve­ment with the Texas Defender Service. It is: If you’re going to have the death penal­ty, then do it cor­rect­ly. You know, give them a good tri­al lawyer, give them a good appel­late lawyer, give them a good habeas lawyer at the state lev­el, give them a good fed­er­al lawyer and don’t let racial prej­u­dice at all influ­ence any­thing that’s going on.” The death penal­ty, she said, ​“is just not reli­able. It’s not some­thing that I can say is being done the way that it should be done to give you con­fi­dence in it as a pun­ish­ment form. … I think, why is Texas so out of line with the rest of the coun­try? It can’t be that our peo­ple are worse, right? I mean, Texans are good peo­ple. Are our crimes worse than the rest of the coun­try? I don’t think so. Are our peo­ple worse than the rest of the coun­try? I don’t think so. So some­how we are out of line.”

(Keri Blakinger, Listen: Former Texas judge rais­es pos­si­bil­i­ty of death penal­ty mora­to­ri­um, Behind the Walls Podcast: Houston Chronicle, January 9, 2019; Jolie McCullough, Eight years on Texas’ high­est crim­i­nal court turned Elsa Alcala into a death penal­ty skep­tic. How will the court change with­out her?, Texas Tribune, Jan. 16, 2019.) See Arbitrariness, Representation, and Race.

In a dis­cus­sion at the University of Florida Law School, for­mer U.S. Supreme Court Justice John Paul Stevens said that recent research reveals that Texas almost cer­tain­ly exe­cut­ed an inno­cent man in 1989. Stevens said:

Within the last year, Jim Liebman, who’s a pro­fes­sor at the Columbia Law School and was a for­mer law clerk of mine, has writ­ten a book…called The Wrong Carlos…He has demon­strat­ed, I think, beyond a shad­ow of a doubt that there is a Texas case in which they exe­cut­ed the wrong defen­dant, and that the per­son they exe­cut­ed did not in fact com­mit the crime for which he was pun­ished. And I think it’s a suf­fi­cient argu­ment against the death penalty…that soci­ety should not take the risk that that might hap­pen again, because it’s intol­er­a­ble to think that our gov­ern­ment, for real­ly not very pow­er­ful rea­sons, runs the risk of exe­cut­ing innocent people. 

Prof. Liebman’s research showed that Carlos DeLuna’s case involved faulty eye­wit­ness tes­ti­mo­ny and police fail­ure to inves­ti­gate an alternative suspect.

(T. Nashrulla, ​“Former Supreme Court Justice Confirms Texas Once Executed An Innocent Man,” Buzzfeed News, January 26, 2015; video of John Paul Stevens’ dis­cus­sion, quote begins at 57:00).

The Chief Justice of California ​‘s Supreme Court, Tani Cantil-Sakauye, called for a re-eval­u­a­tion of the state’s death penal­ty sys­tem, say­ing the sys­tem is not work­ing and ​“not effec­tive.” In her first pub­lic com­ments on the issue since she became head of the the state’s high­est court, Justice Cantil-Sakauye point­ed to the present predica­ment for the state, say­ing the death penal­ty sys­tem need­ed ​“struc­tur­al change, and we don’t have the mon­ey to cre­ate the kind of change that is need­ed.” The court sys­tem was forced to cut $200 mil­lion from its bud­get this year. When asked if she sup­port­ed cap­i­tal pun­ish­ment, the for­mer pros­e­cu­tor appoint­ed to the court by Governor Arnold Schwartzenegger, said, ​“I don’t know if the ques­tion is whether you believe in it any­more. I think the greater ques­tion is its effec­tive­ness and giv­en the choic­es we face in California, should we have a mer­it-based dis­cus­sion on its effec­tive­ness and costs?” She said the issue ​“real­ly is up to the vot­ers or to the Legislature,” ask­ing whether the crim­i­nal jus­tice sys­tem can ​“make bet­ter use of our resources.” The chief jus­tice’s com­ments echoed those of her pre­de­ces­sor, Chief Justice Ronald M. George, also a for­mer pros­e­cu­tor, who called the state’s cap­i­tal pun­ish­ment sys­tem ​“dys­func­tion­al.”

(M. Dolan, ​“California chief jus­tice urges reeval­u­at­ing death penal­ty,” Los Angeles Times, December 24, 2011.) A pro­posed 2012 bal­lot mea­sure would replace California’s death penal­ty with a sen­tence of life with­out parole. See SAFECalifornia​.org. See also California.