Oldest Texas Death-Row Prisoner Files Petition for Clemency Citing Time on Death Row, False Prediction that He Would be Dangerous in Prison

Texas’ old­est death-row pris­on­er, Carl Wayne Buntion (pic­tured), has filed a peti­tion with the state Board of Pardons and Parole seek­ing com­mu­ta­tion of his death sen­tence to life with­out parole. Buntion is cur­rent­ly sched­uled to be exe­cut­ed on April 21, 2022. 

In a peti­tion filed March 30, 2022, the 78-year-old Buntion’s lawyers asked the Board to rec­om­mend that Gov. Greg Abbott grant him clemen­cy, argu­ing that his death sen­tence was imposed by a jury that false­ly pre­dict­ed he would pose a future dan­ger to fel­low pris­on­ers and prison staff. Alternatively, the peti­tion seeks a reprieve of 90 days ​“to allow the courts an oppor­tu­ni­ty to decide what access to his spir­i­tu­al advi­sor Mr. Buntion should have while in the execution chamber.”

“Mr. Buntion is a frail, elder­ly man who requires spe­cial­ized care to per­form basic func­tions,” the peti­tion states. ​“He is not a threat to any­one in prison and will not be a threat to any­one in prison if his sen­tence is reduced to a less­er penal­ty. … During the thir­ty-one years he has been incar­cer­at­ed under a sen­tence of death, he has been cit­ed for only three dis­ci­pli­nary infrac­tions, and he has not been cit­ed for any infrac­tion what­so­ev­er for the last twenty-three years.”

The peti­tion also argues that, ​“giv­en the amount of time Buntion has been incar­cer­at­ed on death row (most of which was pur­suant to an uncon­sti­tu­tion­al sen­tence), it would vio­late the Eighth Amendment’s pro­hi­bi­tion of cru­el and unusu­al pun­ish­ment to exe­cute him now.” It notes that on the same day he filed his peti­tion, the Texas Court of Criminal Appeals denied his legal chal­lenges con­cern­ing the jury’s erro­neous pre­dic­tion of future dan­ger­ous­ness and the uncon­sti­tu­tion­al­i­ty of his exe­cu­tion after three decades.

Buntion told the Board that because Texas prison offi­cials refuse to con­firm that they will com­ply with the U.S. Supreme Court’s deci­sion per­mit­ting spir­i­tu­al advi­sors to pray aloud and offer pas­toral touch to pris­on­ers in the exe­cu­tion cham­ber, he was being forced to lit­i­gate that issue in court. He said a 90-day reprieve is nec­es­sary to per­mit the courts to mean­ing­ful­ly con­sid­er and address that claim.

Buntion was con­vict­ed and sen­tenced to death in 1991 for the mur­der of a Houston police offi­cer. He does not con­test his guilt. The penal­ty phase of his tri­al was con­duct­ed under a statute that uncon­sti­tu­tion­al­ly lim­it­ed the jury’s abil­i­ty to con­sid­er and give full effect to mit­i­gat­ing evi­dence. The U.S. Supreme Court struck down the sen­tenc­ing pro­ce­dures in 2001, say­ing that in the absence of a cor­rec­tive jury instruc­tion, jurors would have no mech­a­nism to mean­ing­ful­ly con­sid­er a defendant’s evi­dence. In 2009, after eigh­teen years on death row, the Texas courts applied that deci­sion to his case and over­turned his death sen­tence. He was resen­tenced to death in 2012.

In October 2021, the U.S. Supreme Court refused to review Buntion’s exe­cu­tion chal­lenge. In a state­ment regard­ing the Court’s deci­sion to deny review, Justice Stephen Breyer wrote that ​“pro­ce­dur­al obsta­cles … make it dif­fi­cult for the court” to hear the case. Nonetheless, he said, Buntion’s ​“lengthy con­fine­ment, and the con­fine­ment of oth­ers like him, calls into ques­tion the con­sti­tu­tion­al­i­ty of the death penal­ty and rein­forces the need for this court, or oth­er courts, to con­sid­er that ques­tion in an appro­pri­ate case.” Buntion ​“has now been on death row under threat of exe­cu­tion for 30 years … [and] has spent the last 20 of those years in soli­tary con­fine­ment, iso­lat­ed in his cell for 23 hours a day,” Breyer not­ed, much of it caused by his first uncon­sti­tu­tion­al death sen­tence. Such ​“exces­sive delay both,” Breyer wrote, ​“under­mines the death penalty’s peno­log­i­cal ratio­nale and is in and of itself … espe­cial­ly cru­el because it sub­jects death row inmates to decades of espe­cial­ly severe, dehu­man­iz­ing con­di­tions of confinement.”

Buntion’s clemen­cy peti­tion indi­cat­ed that his coun­sel ​“antic­i­pate they will pur­sue” that claim and his future non-dan­ger­ous­ness claim in the fed­er­al courts. The clemen­cy peti­tion argues that his­to­ry has proven that the jury’s assess­ment that Buntion would present a future dan­ger if giv­en a sen­tence less than death was wrong. This, the peti­tion con­tends, rais­es broad­er issues relat­ing to Texas’ unique sen­tenc­ing statute, as well as the effects of aging on death row. Texas is ​“the only death penal­ty state in America in which a jury’s deci­sion to sen­tence a defen­dant to death is based large­ly if not entire­ly on a pre­dic­tion that, if not exe­cut­ed, the defen­dant will be dan­ger­ous in the future,” the peti­tion explains. ​“What has been made per­fect­ly clear dur­ing the thir­ty-one years that he has been incar­cer­at­ed on death row is that Carl Wayne Buntion does not pose a dan­ger to any­one in any Texas prison.”

The peti­tion attach­es the three dis­ci­pli­nary infrac­tions Buntion has com­mit­ted in his 31 years on death row — none of which occurred in the past 23 years. They include a sin­gle vio­lent infrac­tion in 1999, when Buntion punched a fel­low pris­on­er in an alter­ca­tion in the prison chow line. The minor nature of the infrac­tion was evi­dent in the pun­ish­ment met­ed out for the vio­la­tion: Buntion’s com­mis­sary priv­i­leges were revoked for 15 days. His oth­er two infrac­tions were for hav­ing more tow­els, shorts, and sheets in his cell than were per­mit­ted and for refus­ing to be strip searched.

The peti­tion notes that even if Buntion ever had posed a dan­ger in prison, his dete­ri­o­rat­ing phys­i­cal con­di­tion ensures that he longer does. “[A]s he has aged,” the peti­tion says, ​“he has devel­oped phys­i­cal impair­ments which would pre­vent him from harm­ing any­one.” It item­izes a litany of med­ical con­di­tions from which Buntion suf­fers, includ­ing arthri­tis, ver­ti­go, hepati­tis, sci­at­ic nerve pain that makes it dif­fi­cult to walk, and cir­rho­sis. Executions of oth­er elder­ly and infirm pris­on­ers have pre­sent­ed a range of legal, prac­ti­cal, and human­i­tar­i­an con­cerns, includ­ing eth­i­cal ques­tions about the jus­ti­fi­ca­tion for exe­cut­ing an indi­vid­ual debil­i­tat­ed by phys­i­cal and/​or cognitive impairments.

If the board does not rec­om­mend clemen­cy, the peti­tion asks for a 90-day reprieve to allow the Texas Department of Criminal Justice (TDCJ) to decide whether Buntion’s spir­i­tu­al advi­sor will be allowed to touch him and audi­bly pray while he is exe­cut­ed. Just days before Buntion’s peti­tion was sub­mit­ted, the U.S. Supreme Court decid­ed the case of John Henry Ramirez, a Texas death-row pris­on­er who had chal­lenged Texas’ pol­i­cy ban­ning his pas­tor from touch­ing him or audi­bly pray­ing dur­ing his exe­cu­tion. The Court’s deci­sion in Ramirez v. Collier found that Texas had pro­vid­ed weak argu­ments that a ban on audi­ble prayer and touch­ing was the least restric­tive method to pre­serve the safe­ty and solem­ni­ty of the exe­cu­tion cham­ber. The Court not­ed that through sim­ple reg­u­la­tions com­mu­ni­cat­ed in advance of the exe­cu­tion, Texas could address its safe­ty and security concerns. 

Buntion’s request to TDCJ was denied before Ramirez was decid­ed, and TDCJ has refused to indi­cate whether it intends to make the reli­gious accom­mo­da­tions required by Ramirez avail­able to Buntion. A reprieve is nec­es­sary, he argues because ​“only three weeks before he is sched­uled to be exe­cut­ed, nei­ther Buntion nor his attor­neys know whether his request will be grant­ed or whether TDCJ will stand firm in its deci­sion to deny Buntion’s request, neces­si­tat­ing fur­ther lit­i­ga­tion on this issue.”