The Future of the Death Penalty in the U.S.: A Texas-Sized Crisis

Texas is the nation’s fore­most exe­cu­tion­er. It has been respon­si­ble for a third of the exe­cu­tions in the coun­try and has car­ried out two and a half times as many death sen­tences as the next lead­ing state. Death war­rants are being signed at an unman­age­able pace, yet the Texas death row is bulging with unprece­dent­ed num­bers of inmates. But this accel­er­at­ed form of jus­tice comes at a price. The rest of the coun­try should heed the warn­ing of the Texas expe­ri­ence before it embarks on a whole­sale expan­sion of the death penalty.

The death penal­ty in Texas is in a state of cri­sis. Numerous death penal­ty con­vic­tions have been taint­ed by overzeal­ous pros­e­cu­tions and the use of per­jured tes­ti­mo­ny. State paid med­ical ​“experts” make unre­li­able pre­dic­tions about defen­dants’ future dan­ger­ous­ness while oth­er doc­tors sim­ply lie about tests they nev­er per­formed. Six inno­cent peo­ple have been sen­tenced to death and lat­er released since 1987. The race of the defen­dant and vic­tim play a major part in which cas­es are select­ed for the death penal­ty. Legal rep­re­sen­ta­tion of indi­gent defen­dants at tri­al is fre­quent­ly incom­pe­tent, and rep­re­sen­ta­tion for appeals is often non-exis­tent. And the costs of the death penal­ty in Texas are in the hun­dreds of mil­lions of dol­lars with no end in sight.

And yet, Texas has lit­tle to show for all this expense and the sac­ri­fice of judi­cial due process. During the peri­od when Texas rose to become the nation’s lead­ing death penal­ty state, its crime rate grew by 24% and its vio­lent crime increased by 46%, much faster than the nation­al aver­age. Texas leads the coun­try in num­bers of its police offi­cers killed and more Texans die from gun­shot wounds than from car accidents.

But Texas’s death penal­ty prob­lems are cer­tain­ly not unique. Many states with large death rows have also been plagued by pros­e­cu­to­r­i­al mis­con­duct, inno­cent defen­dants sen­tenced to death, racism in the appli­ca­tion of jus­tice, inad­e­quate rep­re­sen­ta­tion, and the high costs of the death penal­ty. Forty-eight defen­dants have been released from death row since cap­i­tal pun­ish­ment was rein­stat­ed after evi­dence of their inno­cence was dis­cov­ered. Half of the nation’s death row is made up of minori­ties and almost all cap­i­tal cas­es involve white victims.

Many in America are push­ing for a faster pace and a wider use of the death penal­ty on both the state and fed­er­al lev­els. Texas is a par­a­digm of what can hap­pen under such an expansion.

Some politi­cians and law enforce­ment offi­cers in Texas are begin­ning to have sec­ond thoughts about their state’s prac­tice of the death penal­ty. While peo­ple want to address the prob­lem of crime, they also want solu­tions that real­ly work. Nationally, there should be a care­ful exam­i­na­tion of death penal­ty jus­tice in Texas before we embrace an expan­sion of exe­cu­tions as an answer to crime.

When in Gregg v. Georgia the Supreme Court gave its seal of approval to cap­i­tal pun­ish­ment, this endorse­ment was premised on the promise that cap­i­tal pun­ish­ment would be admin­is­tered with fair­ness and jus­tice. Instead, the promise has become a cru­el and emp­ty mock­ery. If not reme­died, the scan­dalous state of our present sys­tem of cap­i­tal pun­ish­ment will cast a pall of shame over our soci­ety for years to come. We can­not let it con­tin­ue.

–Justice Thurgood Marshall, 1990 [1]

From this day for­ward, I no longer shall tin­ker with the machin­ery of death.… I feel moral­ly and intel­lec­tu­al­ly oblig­at­ed to con­cede that the death penal­ty exper­i­ment has failed.

–Justice Harry Blackmun, 1994 [2]

Between 1967 and 1977, exe­cu­tions in the United States were halt­ed as evi­dence of racial injus­tice and arbi­trari­ness in the use of the death penal­ty mount­ed. When most states revised their cap­i­tal pun­ish­ment laws, the Supreme Court allowed the death penal­ty to resume in 1976. But this approval inau­gu­rat­ed a new peri­od of exper­i­men­ta­tion regard­ing the appli­ca­tion of the death penal­ty. In the eyes of many, includ­ing Justice Blackmun who over­saw this entire crit­i­cal peri­od of death penal­ty his­to­ry, that exper­i­ment has failed to meet even the min­i­mal stan­dards of fair­ness and jus­tice. And nowhere are these fail­ings more evi­dent than in the state of Texas.

No oth­er state comes close to the num­ber of exe­cu­tions being car­ried out in Texas. It has put to death more than twice as many inmates as any oth­er state since the death penal­ty was rein­stat­ed. In 1993 alone, Texas account­ed for more than three times as many exe­cu­tions as any oth­er state and car­ried out almost half of the death sen­tences in the entire country.

The accel­er­at­ed pace of exe­cu­tions and the dis­turb­ing num­ber of inmates fac­ing death with­out legal rep­re­sen­ta­tion in Texas has drained both the state’s resources and the abil­i­ty of the defense bar to ade­quate­ly respond. At the same time, the polit­i­cal pres­sure to achieve even more death sen­tences and more exe­cu­tions has fre­quent­ly giv­en due process a back seat.

But the size and prob­lems of cap­i­tal pun­ish­ment in Texas are not unique to that state. The United States is perched on the precipice of a whole­sale expan­sion of the death penal­ty. Before it takes the plunge, the coun­try should look at Texas’ expe­ri­ence. The ware­hous­ing of hun­dreds of peo­ple await­ing exe­cu­tion, half of whom are minori­ties, the con­stant sign­ing of death war­rants, the gris­ly spec­ta­cle of week­ly exe­cu­tions, and the ero­sion of due process by the relent­less press to exe­cute will be much more com­mon in the years ahead if the United States choos­es to fol­low the Texas mod­el. The prob­lems which Texas has been expe­ri­enc­ing in its rise to the posi­tion as the nation’s fore­most exe­cu­tion­er are already emerg­ing in oth­er states through­out the country.

This report will look at var­i­ous dimen­sions of the death penal­ty cri­sis in Texas:

• The exam­ples of offi­cial mis­con­duct and result­ing mistaken convictions;
• The evi­dence of racism infect­ing the appli­ca­tion of the death penalty;
• The cri­sis in death penal­ty rep­re­sen­ta­tion which serves to per­pet­u­ate Texas’ death penalty problems.
• The absence of clemen­cy as a real­is­tic rem­e­dy to pre­vent wrong­ful exe­cu­tions; and
• The way in which Texas’ empha­sis on the death penal­ty inter­feres with address­ing the larg­er prob­lem of crime.

The United States is perched on the precipice of a whole­sale expan­sion of the death penal­ty. Before it takes the plunge, the coun­try should look at Texas’ experience.

At each step of the way, the report will look at the nation­al impli­ca­tions of what is hap­pen­ing in Texas. It will iden­ti­fy the extent to which the Texas death penal­ty is like­ly to be mir­rored in the rest of the United States in the near future. Finally, the report will point to the signs of offi­cial dis­il­lu­sion­ment with the death penal­ty in Texas. The death penal­ty cri­sis in Texas should be a warn­ing to our entire coun­try as we strug­gle to respond to the nation­al prob­lem of crime. 

To get an idea of the size of the death penal­ty in Texas, it is instruc­tive to look at what the death penal­ty in the entire coun­try would be like today if every state had pro­por­tion­ate­ly fol­lowed Texas’ lead. 

“[T]he scan­dalous state of our present sys­tem of cap­i­tal pun­ish­ment will cast a pall of shame over our soci­ety for years to come.”

–Justice Thurgood Marshall 

In 1993 alone, there would have been 250 exe­cu­tions, one for every busi­ness day of the year and the largest num­ber of exe­cu­tions in the coun­try’s his­to­ry. In the last ten years, the U.S. would have exe­cut­ed over 1,000 peo­ple. The nation’s death row would house more than 5,300 con­demned indi­vid­u­als. The nation­al cost for the death penal­ty would be at least two bil­lion dol­lars, with much more expense to come. The courts of appeals and the Supreme Court would be del­uged with peti­tions from con­demned inmates, while at the same time hun­dreds of inmates would have no attor­ney as their exe­cu­tion dates approached. Meanwhile, all of these exe­cu­tions would have done noth­ing to low­er the nation’s mur­der rate. [3]

In achiev­ing this pro­fi­cien­cy in exe­cu­tions, Texas has sac­ri­ficed the pur­suit of jus­tice. It was prob­a­bly no coin­ci­dence that Justice Blackmun chose a Texas case to con­demn the death penal­ty. Justice Thurgood Marshall had ear­li­er warned that the entire coun­try was in sim­i­lar dan­ger because of the death penal­ty: “[T]he scan­dalous state of our present sys­tem of cap­i­tal pun­ish­ment will cast a pall of shame over our soci­ety for years to come.” [4]As the nation moves toward an even greater expan­sion of this prac­tice, it should con­sid­er whether cap­i­tal pun­ish­ment is worth the man­tle of such a pall of shame. 

1. Official Misconduct: The Death Penalty With A Vengeance

Texas has pur­sued the death penal­ty with a vengeance. Prosecutors and politi­cians have staked their careers on get­ting peo­ple exe­cut­ed. Unfortunately, such polit­i­cal grand­stand­ing results in more than rhetoric — indi­vid­ual rights have been sac­ri­ficed and inno­cent peo­ple have been sent to death row.

This phe­nom­e­non is cer­tain­ly not unique to Texas, but Texas politi­cians have cam­paigned shame­less­ly on the strength of their com­mit­ment to ever more exe­cu­tions. In the 1990 guber­na­to­r­i­al race, for­mer Governor Mark White por­trayed his ​“tough­ness” by walk­ing through a dis­play of large pho­tos of peo­ple exe­cut­ed dur­ing his term, while Attorney General Jim Mattox insist­ed that he was the one who should be giv­en cred­it for the many exe­cu­tions under his watch. And the Republican can­di­date, Clayton Williams, claimed that his pro­posed laws to expand the death penal­ty were ​“the way to make Texas great again.” [5]

The end result of all this polit­i­cal pos­tur­ing was a spoof of Texas on ​“Saturday Night Live” and the elec­tion of Ann Richards as gov­er­nor. Governor Richards was the least vocif­er­ous of the can­di­dates on the death penal­ty but has nev­er­the­less presided over a dra­mat­ic increase in the pace of exe­cu­tions in Texas. 

Convicting the Innocent

Among elect­ed state pros­e­cu­tors, death penal­ty rhetoric has some­times spilled over into seri­ous abus­es in order to secure a death sen­tence. Two of the most famous Texas exam­ples of this mis­con­duct involved Randall Dale Adams and Clarence Brandley, both of whom were released from Texas’ death row after years of strug­gle to prove their inno­cence. Adams’ sto­ry was elo­quent­ly told in the award win­ning movie, The Thin Blue Line, and Brandley’s strug­gle with Texas racism is relat­ed in Nick Davies’ book, White Lies.

The orig­i­nal con­vic­tions of Adams and Brandley were not sim­ply the prod­uct of hon­est pros­e­cu­to­r­i­al mis­takes. When Randall Dale Adams had his mur­der con­vic­tion unan­i­mous­ly over­turned by the Texas Court of Criminal Appeals, Judge M. P. Duncan sharply cas­ti­gat­ed the pros­e­cu­tion: “[T]he State was guilty of sup­press­ing evi­dence favor­able to the accused, deceiv­ing the tri­al court dur­ing the appli­can­t’s tri­al, and know­ing­ly using per­jured tes­ti­mo­ny.” [6]

“The State was guilty of sup­press­ing evi­dence favor­able to the accused, deceiv­ing the tri­al court dur­ing the appli­can­t’s tri­al, and know­ing­ly using per­jured tes­ti­mo­ny.”

–deci­sion over­turn­ing Randall Dale Adams’ conviction

Similarly, when Texas Special District Judge Perry Pickett reviewed Clarence Brandley’s con­vic­tion in 1987, he con­clud­ed that the state’s inves­tiga­tive pro­ce­dure was ​“so imper­mis­si­bly sug­ges­tive that false tes­ti­mo­ny was cre­at­ed, there­by deny­ing … due process of law and a fun­da­men­tal­ly fair tri­al.”[7] Furthermore, the state had ​“whol­ly ignored any evi­dence or leads to evi­dence that might prove incon­sis­tent with their pre­ma­ture con­clu­sions that Brandley had com­mit­ted the mur­der. The con­clu­sion is inescapable that the inves­ti­ga­tion was con­duct­ed not to solve the crime, but to con­vict Brandley.”[8]

In their zeal to obtain cap­i­tal con­vic­tions, Texas pros­e­cu­tors have made wide use of med­ical ​“experts” select­ed because of their will­ing­ness, in case after case, to par­rot the exact words the pros­e­cu­tor needs to get a con­vic­tion. One such ​“expert” is Dr. James Grigson — or ​“Dr. Death,” as he came to be known. 

Dr. Death, I

In Texas, jurors are required to deter­mine ​“whether there is a prob­a­bil­i­ty that the defen­dant would com­mit crim­i­nal acts of vio­lence that would con­sti­tute a con­tin­u­ing threat to soci­ety.” [9]

Not only is it dif­fi­cult for a lay per­son to make such a judg­ment, it is also impos­si­ble for pro­fes­sion­als. Naturally, a jury would give con­sid­er­able weight to a state psy­chi­a­trist who unhesi­tat­ing­ly pre­dicts with sci­en­tif­ic cer­tain­ty that the per­son sit­ting in front of them will invari­ably kill again if he [10] is allowed to live.

Dr. James Grigson offered just such pre­dic­tions in at least 124 death penal­ty cas­es, 115 of which result­ed in death sen­tences. [11] Dr. Grigson trav­eled the plains of Texas offer­ing his tes­ti­mo­ny in exchange for siz­able fees. At first, Grigson would per­son­al­ly exam­ine the defen­dant, per­haps for 90 min­utes. Based on this cur­so­ry inter­view, Dr. Grigson would then be asked by the pros­e­cu­tor in court:

Can you tell us whether or not, in your opin­ion, hav­ing killed in the past, he is like­ly to kill in the future, giv­en the opportunity?

Grigson would reply:

He absolute­ly will, regard­less of whether he’s inside an insti­tu­tion­al-type set­ting or whether he’s out­side. No mat­ter where he is, he will kill again.[12]

Grigson made these same pre­dic­tions about Randall Dale Adams, despite Adams’ hav­ing no his­to­ry of vio­lence. The fact that Adams was exon­er­at­ed of all charges and was freed from prison a num­ber of years ago has done noth­ing to sway Grigson’s cer­tain­ty about his pre­dic­tions. [13]

In lat­er cas­es, Grigson would offer his absolute­ly cer­tain view of the future with­out even inter­view­ing the defen­dant. He would sim­ply lis­ten to the pros­e­cu­tor’s descrip­tion of the defen­dan­t’s crime and back­ground and then offer the con­clu­sion that such a per­son would cer­tain­ly kill again, no mat­ter what the setting.

The American Psychiatric Association has unequiv­o­cal­ly con­demned the process that Dr. Grigson has used so lib­er­al­ly. “[P]sychiatric tes­ti­mo­ny of future dan­ger­ous­ness imper­mis­si­bly dis­torts the fact-find­ing process in cap­i­tal cas­es,” [14] they said in a brief to the Supreme Court.

Moreover, empir­i­cal stud­ies have shown the inac­cu­ra­cies of pre­dict­ing future dan­ger­ous­ness. One study in Texas exam­ined 92 for­mer death row pris­on­ers whom juries had sen­tenced to death because of their future dan­ger­ous­ness. For var­i­ous rea­sons, these inmates had their sen­tences changed from death to life imprisonment. 

Overall these for­mer death row pris­on­ers were not a dis­pro­por­tion­ate threat to the insti­tu­tion­al order, oth­er inmates, or the cus­to­di­al staff. Indeed, their total rate of assaultive insti­tu­tion­al mis­con­duct was low­er than those of both the cap­i­tal mur­der offend­ers who were giv­en a life sen­tence [to begin with] and the gen­er­al prison pop­u­la­tion.[15]

Despite the unre­li­a­bil­i­ty of such pre­dic­tions, Dr. Grigson’s tes­ti­mo­ny has been used by the pros­e­cu­tion in one-third of Texas’ death sen­tences.[16] The prob­lem of manip­u­lat­ing juries with fear is com­pound­ed by Texas law which for­bids telling the juries what the alter­na­tive to a death sen­tence real­ly means. A life sen­tence in a cap­i­tal case in Texas now means that the defen­dant must serve 40 years before even being con­sid­ered for parole. But jurors are told only that their alter­na­tives are the death penal­ty or a life sen­tence. They are left with their erro­neous assump­tions that a life sen­tence will allow a dan­ger­ous mur­der­er to be released in 10 years or less. [17]

Dr. Death, II

Another crit­i­cal ele­ment of the pros­e­cu­tion’s case in a cap­i­tal tri­al is proof that the vic­tim’s death result­ed from the defen­dan­t’s vio­lent actions. To tie that knot, many pros­e­cu­tors in Texas have uti­lized a pathol­o­gist by the name of Ralph Erdmann, who has also earned the name ​“Dr. Death.” Erdmann received his med­ical degree in Mexico in the 1950s and trav­eled to 40 Texas coun­ties sup­pos­ed­ly per­form­ing 400 autop­sies a year in cap­i­tal and non-cap­i­tal cas­es. Lubbock County alone paid Dr. Erdmann $140,000 a year for his work. Now the ver­dicts in at least 20 cap­i­tal mur­der cas­es and dozens of oth­er pros­e­cu­tions are being appealed because Erdmann lied, fal­si­fied reports and even neglect­ed to per­form some of the autop­sies he tes­ti­fied about. [18]

Erdmann’s word began to be doubt­ed when one fam­i­ly read his autop­sy report indi­cat­ing that the deceased’s spleen had been exam­ined and weighed as part of the exam­i­na­tion. However, the fam­i­ly knew that the dead man’s spleen had been removed years ear­li­er. As a result of the fam­i­ly’s inter­ven­tion, the body was exhumed and no inci­sion marks from an autop­sy were found.[19] At that point, attor­ney Tommy Turner of Lubbock was appoint­ed spe­cial pros­e­cu­tor to look into Erdmann’s decep­tions. Turner con­clud­ed that Erdmann was a liar and a con man: ​“If the pros­e­cu­tion the­o­ry was that death was caused by a Martian death ray, then that was what Dr. Erdmann report­ed.”[20]

“If the pros­e­cu­tion the­o­ry was that death was caused by a Martian death ray, then that was what Dr. Erdmann report­ed.”

–Special pros­e­cu­tor Tommy Turner 

Killing the Messenger

When Erdmann’s meth­ods and tes­ti­mo­ny came under increas­ing crit­i­cism in death penal­ty cas­es, some pros­e­cu­tors retal­i­at­ed by pros­e­cut­ing Erdmann’s crit­ics. Two police offi­cers, Patrick Kelly and William Hubbard from Lubbock County, who had tes­ti­fied about Erdmann’s mis­deeds, were indict­ed for alleged per­jury. And nation­al­ly famous death penal­ty defense attor­ney, Millard Farmer of Atlanta, was indict­ed for sup­pos­ed­ly tam­per­ing with a wit­ness. However, this effort to cov­er-up the grow­ing scan­dal around Dr. Erdmann fell apart.

A fed­er­al District Court judge ordered a halt to the pros­e­cu­tions and stat­ed that those being attacked ​“have offered sub­stan­tial evi­dence that the pros­e­cu­tions were brought in bad faith and for pur­pos­es of retal­i­a­tion.” [21]

A suit brought by the police offi­cers and Mr. Farmer against the pros­e­cu­tors who indict­ed them was set­tled in favor of the plain­tiffs with the agree­ment that the pros­e­cu­tions be per­ma­nent­ly stopped, that the police­men be restored to their jobs with full back pay, and that they be award­ed $300,000 in dam­ages.[22]

Dr. Erdmann had ear­li­er plead­ed no con­test to sev­en felony charges. He was sen­tenced to 10 years pro­ba­tion, and fined $17,000 for botched autop­sies and exhuma­tion expens­es. He also sur­ren­dered his med­ical license and moved to anoth­er state. [23]

As dis­grace­ful as the behav­ior of these med­ical ​“experts” has been, the real scan­dal is that pros­e­cu­tors were will­ing to repeat­ed­ly uti­lize such wit­ness­es in order to get con­vic­tions and death sen­tences. In oth­er instances, pros­e­cu­tors failed to inves­ti­gate cas­es thor­ough­ly and allowed defen­dants, lat­er found inno­cent, to be sen­tenced to death. Besides Randall Dale Adams and Clarence Brandley, at least four oth­er Texas death row inmates have been found inno­cent in recent years (Muneer Deeb, 1993; Federico Macias, 1993; John Skelton, 1990; and Vernon McManus, 1987) and that num­ber could increase as fur­ther abuse is exam­ined. Unfortunately, this pat­tern of pros­e­cu­to­r­i­al mis­con­duct in cap­i­tal cas­es is not unique to Texas. 

National Implications: Official Misconduct

The pres­sure on pros­e­cu­tors and police to suc­ceed in death penal­ty cas­es has result­ed in mis­car­riages of jus­tice all over the coun­try. Representative Don Edwards, Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights, released a staff report in October, 1993, recount­ing 48 cas­es since 1970 in which the defen­dants were sen­tenced to death but lat­er exon­er­at­ed and released. [24] In many of these cas­es, the pros­e­cu­tors or police ille­gal­ly with­held vital infor­ma­tion from the defense, encour­aged wit­ness­es to lie, and deceived the court in a vari­ety of ways. In oth­er cas­es, pros­e­cu­tors pushed for the death penal­ty in head­line cas­es in which they lacked suf­fi­cient evi­dence even to sus­tain a conviction.

For exam­ple, when Attorney General Janet Reno was a pros­e­cu­tor in Dade County, Florida, she helped uncov­er a pat­tern of offi­cial abuse in the death penal­ty con­vic­tion of James Richardson. Richardson had been sen­tenced to death for poi­son­ing his own chil­dren in 1968. He was spared the elec­tric chair when the Supreme Court over­turned all exist­ing death sen­tences in 1972, but he remained in prison. Reno’s 1989 inves­ti­ga­tion affirmed what had long been claimed by the defense: the state had ​“know­ing­ly used per­jured tes­ti­mo­ny and sup­pressed evi­dence help­ful to the defense.”[25] Richardson was released in 1989.

Just last year, five peo­ple were released after years on death row for crimes they did not com­mit. [26] In the case of Walter McMillian in Alabama, pros­e­cu­tors admit­ted that the case had been mis­han­dled. Evidence was improp­er­ly with­held from the defense, the state’s three main wit­ness­es all admit­ted that they had lied, and the ​“eye­wit­ness” said that he had been pres­sured to pin the blame for the mur­der of the young white woman on McMillian, who is black. [27]

In the case of Kirk Bloodsworth in Maryland, pros­e­cu­tors improp­er­ly with­held evi­dence of a dif­fer­ent sus­pect who bore a strik­ing resem­blance to the police sketch in the rape and mur­der of a young girl. The oth­er sus­pect had been found in the woods near the mur­der scene, had a blood-like spot on his shirt, and was very dirty except for his hands, which were metic­u­lous­ly clean. Moreover, the police found a young girl’s under­wear in this sus­pec­t’s car. The sus­pect had a pri­or con­vic­tion for inde­cent expo­sure and had failed a poly­graph test. [28] Nevertheless, pros­e­cu­tors sought and obtained a death sen­tence against Bloodsworth. Fortunately, he was com­plete­ly cleared in June, 1993, when a new DNA test con­firmed that some­one else had com­mit­ted the crime. [29]

Federal pros­e­cu­tors are also not immune from such prac­tices. If Congress pass­es a great­ly expand­ed fed­er­al death penal­ty in 1994, U.S. Attorneys will be respon­si­ble for a much larg­er num­ber of death penal­ty cas­es. However, recent inves­ti­ga­tions into abus­es in the El Rukin gang pros­e­cu­tion in Illinois and a major rack­e­teer­ing case in Los Angeles in which an appel­late court described the gov­ern­men­t’s con­duct as ​“intol­er­a­ble,” [30] have shown that some fed­er­al pros­e­cu­tors also engage in mis­con­duct to obtain convictions.

Attorney General Janet Reno has promised much swifter inves­ti­ga­tions into alle­ga­tions of abuse by fed­er­al pros­e­cu­tors. But expe­ri­ence has shown that evi­dence of pros­e­cu­to­r­i­al abuse, if dis­cov­ered at all, may come only long after the defen­dan­t’s con­vic­tion. In cap­i­tal cas­es that may be too late. This prob­lem rais­es the almost cer­tain specter that inno­cent peo­ple will be exe­cut­ed, espe­cial­ly if cap­i­tal pun­ish­ment is expand­ed. [31]

Judge (Roy) Bean opened the ses­sion by spend­ing two hours read­ing the Texas statutes aloud to the court­room spec­ta­tors. He then closed the law book, and, drop­ping it on the bench, declared: 

“That’s … the com­plete statutes of this here state from the Alamo on ahead, and there ain’t a damned line in it nowheres that makes it ille­gal to kill a Chinaman. The defen­dant is discharged.”

–Judge Roy Bean, pre­sid­ing at the tri­al of his son for mur­der­ing a Chinese laun­dry­man who over­charged him [32]

The cop paused and stared at the two of them, the black man in his white T‑shirt and shab­by jeans, the lit­tle white man with the thick glass­es and the ballooning belly.

“One of you two is gonna hang for this,” said the cop. Then he turned to Brandley. ​“Since you’re the nig­ger, you’re elected.”

–Nick Davies in White Lies, quot­ing tes­ti­mo­ny lead­ing to Clarence Brandley’s release [33]

In 1993, nation­al atten­tion was drawn to two mur­der cas­es in Texas. In one case, the defen­dant was giv­en the death sen­tence; in the oth­er, he was placed on pro­ba­tion. Although, the cas­es dif­fer in some respects, the most glar­ing inequity is that a young white man was giv­en lenien­cy for the mur­der of a black man, while a young black man was con­demned to death for the mur­der of a white man. This dis­par­i­ty is symp­to­matic of broad­er inequities in Texas depend­ing on the race of the defen­dant and the race of the victim.

Both of those con­vict­ed of the crimes were 17 years old at the time of the mur­ders. In the first case, a white suprema­cist skin­head, Christopher Brosky, was giv­en 10 years pro­ba­tion for the mur­der of Donald Thomas, a black man. One of the jurors respon­si­ble for the sen­tence com­ment­ed: ​“We just felt like this might be a man who might be able to turn his life around .… If we had sent him to Huntsville, he might have come back in worse shape.” [34]

In the sec­ond case, a young black man, Gary Graham, was giv­en the death penal­ty for the mur­der of Bobby Lambert in Houston back in 1981. Graham has been on death row in Huntsville ever since. Both cas­es have split the com­mu­ni­ty and result­ed in demon­stra­tions rais­ing issues of race and the admin­is­tra­tion of jus­tice. Graham’s case gained par­tic­u­lar atten­tion in 1993 because of new evi­dence point­ing to his inno­cence. [35] His exe­cu­tion has been stayed three times, but he remains on death row. 

Racism in Texas’ Earlier Use of the Death Penalty

Outcomes based on race in death penal­ty cas­es have a long his­to­ry in Texas. From the time of the first state exe­cu­tions, the race of the defen­dant played a large role in who was giv­en the death penal­ty. For exam­ple, between 1924, when cen­tral­ized state exe­cu­tions were begun, and 1972, 361 peo­ple were put to death in Texas. About 70% of them were either African- or Mexican-American, with blacks con­sti­tut­ing 63% of those exe­cut­ed.[36] Of the whites sen­tenced to death dur­ing this peri­od, 34% had their sen­tences com­mut­ed. Only 20% of the blacks received clemen­cy. [37]

The race of the vic­tim was an even more cer­tain pre­dic­tor of which cas­es would receive the death penal­ty. Prior to 1972, 80% of the vic­tims in Texas death penal­ty cas­es were white. [38] In rape cas­es where the death penal­ty was applied, 95% of the vic­tims were white. When a black man was con­vict­ed of rap­ing a white woman, the sen­tence was vir­tu­al­ly always death. No white man, how­ev­er, was exe­cut­ed for rap­ing a black woman. [39]

Before 1924, cen­tral state records on exe­cu­tions were not com­piled, since the death penal­ty was car­ried out local­ly. However, Texas’ part in the his­to­ry of lynch­ings in the U.S. reveals an even more severe prac­tice of racial bias. In post-Civil War Texas, lynch­ings were often used as a form of pun­ish­ment and intim­i­da­tion. Not sur­pris­ing­ly, almost all of those who suf­fered this ille­gal form of vig­i­lante jus­tice were black. From 1889 to 1899, over 95% of the record­ed lynch­ings in Texas were of blacks. [40] The geo­graph­i­cal pat­tern of lynch­ings in Texas close­ly fol­lowed those areas where slav­ery had been most preva­lent. [41]

As part of a response to the embar­rass­ment of racial lynch­ings, state leg­is­la­tors vot­ed to move exe­cu­tions to a cen­tral state loca­tion in Huntsville and to change the method of exe­cu­tion from hang­ing to the elec­tric chair.[42]Interestingly, the war­den of the Huntsville prison, Captain R.F. Coleman, resigned over this unwant­ed duty, say­ing: ​“A war­den can’t be a war­den and a killer too. The pen­i­ten­tiary is a place to reform a man, not to kill him.” [43] Coleman was replaced by a more accom­mo­dat­ing war­den, and four days lat­er on Feb. 8, 1924, the State of Texas elec­tro­cut­ed its first five pris­on­ers, all black.[44]

“Coleman was replaced by a more accom­mo­dat­ing war­den, and four days lat­er on Feb. 8, 1924, the State of Texas elec­tro­cut­ed its first five pris­on­ers, all black.” 

Racism in the Current Use of the Death Penalty

Racial dis­crim­i­na­tion in the appli­ca­tion of cap­i­tal pun­ish­ment was one of the fac­tors that led the U. S. Supreme Court in 1972 to throw out vir­tu­al­ly all exist­ing death penal­ty statutes and sen­tences. Their rul­ing required states to more care­ful­ly craft new statutes that nar­row the class of defen­dants who can receive the death penal­ty. Texas was one of the first leg­is­la­tures to approve new death penal­ty laws, less than one year after the High Court’s deci­sion. In 1976, when the Court allowed the death penal­ty to resume, the Texas statute was one of three such laws that the Court approved.

The racial com­po­si­tion of Texas’ death row has improved only slight­ly since the death penal­ty resumed. The per­cent­age of minori­ties on Texas’ death row has decreased from 70% to 55%, still a large dis­pro­por­tion. However, the racial dis­par­i­ties with respect to vic­tims has changed lit­tle. In cap­i­tal cas­es, if you mur­der a white per­son in Texas, you are over five times more like­ly to receive the death penal­ty than if you mur­der a black per­son.[45] In none of the 74 Texas exe­cu­tions was the vic­tim black and the defen­dant white. In fact, a recent Texas study of homi­cide cas­es between 1980 and 1988 found that no white offend­er who killed a black vic­tim has even been charged and con­vict­ed with cap­i­tal mur­der. [46]

Racism in the death penal­ty does not ful­ly explain the pace of exe­cu­tions or the size of death row in Texas. However, it is a recur­rent and large­ly untreat­ed sore which skews the use of the death penal­ty in Texas and eats away at the hope for bet­ter rela­tions among the races. A Texas gov­ern­men­tal report showed that racial dis­par­i­ties are evi­dent in oth­er areas of crim­i­nal jus­tice, as well. For exam­ple, the incar­cer­a­tion rate for blacks in Texas is over eight times the rate for whites. [47] Almost half of black offend­ers are sen­tenced to prison, but less than one-third of white offend­ers are so sen­tenced. [48]

But in many respects, the racial prob­lems in oth­er states are as severe as they are in Texas.

National Implications: Race and the Death Penalty 

Racism is also appar­ent in nation­al death penal­ty sta­tis­tics. Half of those on death row are from minor­i­ty pop­u­la­tions that make up only 20% of the coun­try’s pop­u­la­tion. Blacks are rep­re­sent­ed on death row at three and a half times their pro­por­tion in the pop­u­la­tion as a whole. As is the case in Texas, how­ev­er, the form of racial dis­crim­i­na­tion which is most direct­ly attrib­ut­able to cap­i­tal pun­ish­ment con­cerns the race of victims.

Blacks con­sti­tute about 50% of the vic­tims of homi­cide in this coun­try.[49] One might expect, there­fore, that the per­cent­age of death penal­ty cas­es involv­ing black vic­tims would approx­i­mate 50%. That has nev­er been the case, and all the reforms insti­tut­ed at the insis­tence of the Supreme Court in 1976 have done noth­ing to alle­vi­ate the problem.

Since 1976, 84% of the vic­tims in the cas­es result­ing in an exe­cu­tion were white. In 1993, the num­bers were even worse: 89% of the cas­es result­ing in an exe­cu­tion involved white vic­tims. Only one out of the 226 exe­cu­tions between 1976 and 1993 involved a white defen­dant who had killed a black vic­tim. This rep­re­sents a con­sis­tent pat­tern since the found­ing of this country.

In all, only 31 of the over 18,000 exe­cu­tions in this coun­try’s his­to­ry involved a white per­son being pun­ished for killing a black per­son.[50] In 1990, the U.S. General Accounting Office reviewed the exist­ing stud­ies on racism and the death penal­ty in the United States and concluded:

Our syn­the­sis of the 28 stud­ies shows a pat­tern of evi­dence indi­cat­ing racial dis­par­i­ties in the charg­ing, sen­tenc­ing, and impo­si­tion of the death penal­ty after the Furman decision.

In 82% of the stud­ies, race of the vic­tim was found to influ­ence the like­li­hood of being charged with cap­i­tal mur­der or receiv­ing the death penal­ty, i.e., those who mur­dered whites were found more like­ly to be sen­tenced to death than those who mur­dered blacks.[51]

The fed­er­al gov­ern­men­t’s use of the death penal­ty has been even more racial­ly dis­pro­por­tion­ate than the states. Under a new 1988 statute aimed at mur­ders by drug ​“king-pins,” almost 90% of those approved by the Attorney General for cap­i­tal pros­e­cu­tions have been either black or Hispanic defen­dants. [52]

“[T]hose who mur­dered whites were found more like­ly to be sen­tenced to death than those who mur­dered blacks.”

–U.S. General Accounting Office

The con­tin­u­a­tion of racial dis­par­i­ties in the use of cap­i­tal pun­ish­ment is an embar­rass­ment for the entire coun­try. The riots fol­low­ing the ver­dict in the first Rodney King beat­ing case in California indi­cate the seri­ous reper­cus­sions pos­si­ble when a jury appears to ignore the facts and decide a case based on the sta­tus of who com­mit­ted the crime and who was the vic­tim. There have been some Congressional attempts to rec­ti­fy the prob­lem in cap­i­tal cas­es, but these were defeat­ed when pros­e­cu­tors argued that any law that pro­hib­it­ed racial­ly dis­pro­por­tion­ate death sen­tenc­ing would mark the end of the death penal­ty in the entire country.

This ongo­ing prob­lem of racial dis­par­i­ties was addressed by Supreme Court Justice Harry Blackmun in his dra­mat­ic dis­sent to a death penal­ty rul­ing: ​“Even under the most sophis­ti­cat­ed death penal­ty statutes,” said Blackmun, ​“race con­tin­ues to play a major role in deter­min­ing who shall live and who shall die.” He announced that he would no longer ​“tin­ker with the machin­ery of death” because he had con­clud­ed that ​“the death penal­ty exper­i­ment had failed.” [53]

As the num­ber of peo­ple on death row and the num­ber of peo­ple exe­cut­ed in this coun­try con­tin­ue to grow, the pat­terns of racial dis­par­i­ty will become clear­er and more dis­grace­ful. What has been a peren­ni­al prob­lem in Texas’ admin­is­tra­tion of the death penal­ty will become appar­ent as a nation­al prob­lem as well. 

“Even under the most sophis­ti­cat­ed death penal­ty statutes, race con­tin­ues to play a major role in deter­min­ing who shall live and who shall die.”

–Justice Harry A. Blackmun 

“You are an extreme­ly intel­li­gent jury. You’ve got that man’s life in your hands. You can take it or not. That’s all I have to say.”

–entire defense offered by a Texas attor­ney for his client, Jesus Romero, at a cap­i­tal sen­tenc­ing [54]

The state [of Texas] paid defense coun­sel $11.84 per hour. Unfortunately, the jus­tice sys­tem got only what it paid for.”

–U.S. Court of Appeals over­turn­ing Federico Macias’ death penal­ty con­vic­tion [55]

The enor­mi­ty of the death penal­ty in Texas has over­tak­en the state’s will­ing­ness to mete this pun­ish­ment out with even a mod­icum of fair­ness and due process. Of all the fac­tors which deter­mine whether or not a par­tic­u­lar defen­dant will ulti­mate­ly receive the death penal­ty, prob­a­bly the most impor­tant is the qual­i­ty of rep­re­sen­ta­tion he or she receives. In Texas, death penal­ty defen­dants are fre­quent­ly giv­en inex­pe­ri­enced and under­paid attor­neys at tri­al. For some crit­i­cal stages of their appeal, the defen­dants are giv­en no attor­ney at all.

As in oth­er states, almost every­one who is charged with a cap­i­tal crime in Texas can­not afford his own attor­ney. The state is there­fore required to pro­vide him with one. Texas del­e­gates that respon­si­bil­i­ty to the local coun­ty which is try­ing the case. The State of Texas itself pro­vides no funds for the rep­re­sen­ta­tion of those charged with a cap­i­tal crime. The selec­tion and qual­i­fi­ca­tions of the attor­ney, the fee he or she will be paid, and the amount of resources which will be made avail­able for inves­ti­ga­tion and expert wit­ness­es are total­ly in the hands of the 375 local judges, who have wide­ly vary­ing economic resources.

In the larg­er coun­ties, such as those encom­pass­ing Houston or Dallas, the judge might select from more expe­ri­enced defense coun­sel and pay them a high­er rate. In poor­er coun­ties, a gen­er­al prac­ti­tion­er might be cho­sen and paid as lit­tle as $800 for an entire case. [56] In Randall County, for exam­ple, defense coun­sel Mallory Holloway was told that he had bet­ter not ask for inves­ti­ga­tion funds since he had already drained the coun­ty’s bud­get by insist­ing on co-coun­sel. [57]

Recently, the State Bar of Texas com­mis­sioned a study of the sys­tem of rep­re­sen­ta­tion in death penal­ty cas­es. A com­pre­hen­sive report pre­pared by the Spangenberg Group of Massachusetts was released in March, 1993. The report found that cap­i­tal rep­re­sen­ta­tion in Texas was plagued with tremen­dous prob­lems at both the tri­al and appel­late lev­el. It described the lack of coun­sel and the inad­e­qua­cy of fund­ing as ​“des­per­ate” and ​“urgent” and concluded:

We believe, in the strongest terms pos­si­ble, that Texas has already reached the cri­sis stage in cap­i­tal rep­re­sen­ta­tion and that the prob­lem is sub­stan­tial­ly worse than that faced by any oth­er state with the death penal­ty.[58]

Representation At Trial The prob­lem of rep­re­sen­ta­tion in cap­i­tal cas­es in Texas is mul­ti-lay­ered, begin­ning at the tri­al stage. Texas is the only death penal­ty state which makes prac­ti­cal­ly no use of a pub­lic defend­er sys­tem to pro­vide attor­neys. Instead, Texas allows each coun­ty to secure coun­sel through the pri­vate bar, often on a con­tract basis. The coun­ty judges can indi­vid­u­al­ly deter­mine what they believe to be a ​“rea­son­able attor­ney fee” and com­pen­sa­tion for ​“rea­son­able expens­es.” Until 1987, the statute regard­ing pay­ment of attor­neys for such work made no men­tion of com­pen­sa­tion for the inves­ti­ga­tion, research and con­sul­ta­tion with experts before tri­al. The statute did pro­vide min­i­mum pay­ments for in-court appear­ances and these often became the de fac­to max­i­mum paid to attor­neys for the entire case. Although the statute was changed in 1987, the rates paid in many coun­ties did not change, and Texas’ com­pen­sa­tion for court-appoint­ed attor­neys remains near the low­est in the coun­try. [59] The pros­e­cu­tors, on the oth­er hand, rep­re­sent a team of salaried state employ­ees with ample resources and ready access to oth­er law enforce­ment agen­cies for inves­ti­gat­ing and pur­su­ing their cas­es. [60]

The rate of com­pen­sa­tion often deter­mines the qual­i­ty of rep­re­sen­ta­tion. The Spangenberg Report con­clud­ed that defend­ing death penal­ty cas­es in Texas is fre­quent­ly a los­ing finan­cial ven­ture for attor­neys: ​“The rate of com­pen­sa­tion pro­vid­ed to court-appoint­ed attor­neys is absurd­ly low and does not cov­er the cost of pro­vid­ing rep­re­sen­ta­tion.” [61] Without ade­quate com­pen­sa­tion, it would be unre­al­is­tic to expect the con­sis­tent pro­vi­sion of a thor­ough defense. The con­se­quences of poor rep­re­sen­ta­tion can be dis­as­trous. Federico Macias, for exam­ple, came with­in two days of exe­cu­tion in Texas because his tri­al attor­ney did almost noth­ing to pre­pare for tri­al. Today he is a free man, thanks to vol­un­teer coun­sel from a large Washington law office that inter­vened just before Macias’ exe­cu­tion. With qual­i­fied coun­sel and ample resources, Macias was not only grant­ed a stay of exe­cu­tion but was even­tu­al­ly cleared of all charges in 1993. The fed­er­al court’s order over­turn­ing the con­vic­tion not­ed that the first attor­ney had missed evi­dence of Macias’ innocence:

We are left with the firm con­vic­tion that Macias was denied his con­sti­tu­tion­al right to ade­quate coun­sel in a cap­i­tal case in which actu­al inno­cence was a close ques­tion. The state paid defense coun­sel $11.84 per hour. Unfortunately, the jus­tice sys­tem got only what it paid for.[62]

Another man who was freed from death row this past year in Texas was Muneer Deeb. Deeb said he was poor­ly rep­re­sent­ed at his first tri­al. At his re-tri­al, how­ev­er, he was rep­re­sent­ed by one of Texas’ best known crim­i­nal attor­neys, Dick DeGuerin, and was acquit­ted of all charges. [63] Other death row inmates who may also be inno­cent are not so fortunate. 

Post-Trial Representation: A Desperate Situation

Access to the appeals process is crit­i­cal to spar­ing the lives of those who are mis­tak­en­ly sen­tenced to death. Former Texas death row inmates like Randall Dale Adams, Clarence Brandley, Federico Macias, and Muneer Deeb were extreme­ly for­tu­nate that oth­ers became inter­est­ed in their cas­es and helped them attain free­dom. But Texas has severe­ly lim­it­ed that access by not pro­vid­ing attor­neys dur­ing crit­i­cal appeal stages. And most recent­ly, the state has even pushed for exe­cu­tions pri­or to the com­ple­tion of a defendant’s appeals.

Death row inmates are enti­tled to rep­re­sen­ta­tion for only one direct state appeal of their con­vic­tion or sen­tence. After that appeal, Texas gen­er­al­ly pro­vides no attor­ney for sub­se­quent appeals. Unless some court grants a stay, exe­cu­tion war­rants can be signed and car­ried out despite the fact that an inmate might have sig­nif­i­cant issues requir­ing state and federal review.

With respect to this peri­od of post-con­vic­tion rep­re­sen­ta­tion, the Spangenberg Report found that:

[T]he sit­u­a­tion in Texas can only be described as des­per­ate. The vol­ume of cas­es is over­whelm­ing. Presently no funds are allo­cat­ed for pay­ment of coun­sel or lit­i­ga­tion expens­es at the state habeas lev­el.[64]

Whereas most oth­er states have a sys­tem for appoint­ing and com­pen­sat­ing attor­neys after the direct appeal is over, [65] Texas leaves this impor­tant step to the dis­cre­tion of the local judge. In almost every case, no attor­ney is appoint­ed for state post-con­vic­tion relief, and those who do the legal work do it with­out pay. Similarly, funds for expert wit­ness­es and expens­es are almost nev­er approved. [66]

With the defen­dant unrep­re­sent­ed, local pros­e­cu­tors have recent­ly begun to push for exe­cu­tions, and some local judges are no longer grant­i­ng stays until an attor­ney can be found. The dan­ger­ous con­se­quences of this pro­ce­dure were seen in the recent case of Lesley Lee Gosch, who was sched­uled to die just after mid­night on September 16, 1993 and who had no attor­ney. Despite the fact that the Texas Attorney General’s office acknowl­edged that Gosch still had legit­i­mate appeals to pur­sue, the pros­e­cu­tion per­suad­ed fed­er­al District Judge Hippo Garcia to refuse a stay of exe­cu­tion, which was just hours away.

As time was run­ning out, the Texas Resource Center told Judge Garcia that an attor­ney had been found to rep­re­sent Gosch. The Judge still refused to stay the exe­cu­tion and instead appoint­ed the Resource Center to rep­re­sent Gosch. Finally, just 25 min­utes before the exe­cu­tion, with the inmate already being pre­pared for the lethal injec­tion, Judge Garcia relent­ed and grant­ed a stay because, he said, new unre­solved legal ques­tions deserved review.[67] Jay Jacobson, Executive Director of the ACLU of Texas, sharply crit­i­cized this unnec­es­sar­i­ly close call: ​“Texas jus­tice is in mor­tal dan­ger of revert­ing back to the speedy vig­i­lan­tism of Roy Bean; a rush to judg­ment in place of jus­tice.” [68]

In response to this cri­sis, the Texas Resource Center recent­ly brought a case before the U.S. Supreme Court to clar­i­fy the fed­er­al courts’ author­i­ty to stay exe­cu­tions while attor­neys are being found to prop­er­ly pre­pare death row appeals. [69] In an ami­cus curi­ae brief filed sup­port­ing the Resource Center’s posi­tion, the American Bar Association called Texas’ attempt­ed denial of an oppor­tu­ni­ty to appeal a ​“per­verse process” which ​“effec­tive­ly nul­li­fies the Great Writ” of habeas cor­pus. [70]

Thus, the death penal­ty in Texas is caught in a spiraling crisis:

• The vol­ume of cas­es in Texas which has reached the post-con­vic­tion stage sur­pass­es that of any oth­er state and is exhaust­ing the sup­ply of vol­un­teer attor­neys from Texas and around the country.
• No state funds are avail­able for car­ry­ing on the appeals nec­es­sary to pre­vent an inmate’s exe­cu­tion, thus dis­cour­ag­ing attor­neys who might rep­re­sent death row inmates. [71]
• With the defen­dant unrep­re­sent­ed, the state push­es ahead for exe­cu­tions. Death war­rants are signed, putting prospec­tive vol­un­teer attor­neys under more pres­sure and cre­at­ing even more reluc­tance to take these cases.

The Texas Resource Center

In response to the inad­e­quate sys­tem of rep­re­sen­ta­tion for death row inmates in Texas, rep­re­sen­ta­tives from the University of Texas School of Law and a com­mit­tee of attor­neys con­cerned about the cri­sis pro­posed a resource cen­ter to recruit and train vol­un­teer attor­neys to han­dle death penal­ty cas­es after the direct appeal. The Texas Resource Center was cre­at­ed in 1988 and receives the bulk of its fund­ing from the fed­er­al gov­ern­men­t’s Administrative Office of the U.S. Courts.

With over 360 peo­ple on death row and with new cas­es being con­stant­ly added to the list, there is no way that the 16 attor­neys of the Resource Center can rep­re­sent even a sig­nif­i­cant pro­por­tion of the appeals. The Resource Center recent­ly esti­mat­ed that more than 75 death row inmates in Texas had no rep­re­sen­ta­tion, many of whom were sched­uled for exe­cu­tion with­in 5 weeks.[72] Much of the Center’s efforts go into recruit­ing and assist­ing coun­sel from other

states who agree to rep­re­sent Texas’ death row inmates. Despite Texas’ rel­a­tive­ly high rate of exe­cu­tions, the sit­u­a­tion would be much graver with­out the Resource Center. The Spangenberg Report con­clud­ed that the Resource Center’s staff pro­vides ​“an invalu­able array of ser­vices under tru­ly unique pres­sures and cir­cum­stances.” [73] They are not staffed, how­ev­er, to fill all the gaps cre­at­ed by Texas’ fail­ure to appoint and pay coun­sel in capital cases.

Not sur­pris­ing­ly, the Resource Center’s pur­suit of legal rep­re­sen­ta­tion and their suc­cess in stop­ping many exe­cu­tions has drawn reac­tions from pros­e­cu­tors and politi­cians intent on an expe­di­tious­ly func­tion­ing death penal­ty. There have been attempts to dis­cred­it the Resource Center in the media and to have Congress with­draw its fund­ing. [74] These chal­lenges have, in turn, been met by promi­nent mem­bers of the Texas Bar, some of whom serve on the Board of Directors of the Resource Center.[75] The dis­pute illus­trates the high­ly polit­i­cal nature of the death penal­ty in Texas.

The Pressure to Execute: A Chronology 

• February 17 Federal District Court judge grants a stay to hear con­sti­tu­tion­al claims regard­ing the exe­cu­tion of an innocent person.
• February 18 Texas Attorney General’s office obtains a Circuit Court order vacat­ing the stay on the grounds that a claim of inno­cence is irrel­e­vant in federal court.
• 9:30 PM Defense attempts to obtain anoth­er stay of exe­cu­tion from the state or federal courts.
• 10:00 PM Request for stay filed with U.S. Supreme Court.
• 12:05 AM Defense checks with local weath­er sta­tion regard­ing the exact time of sun­rise: Texas law requires that the exe­cu­tion take place before sun­rise on the appointed day.
• 1:00 AM Supreme Court rejects stay by vote of 5 – 4.
• 4:30 AM Supreme Court again refus­es to stay exe­cu­tion but indi­cates it will enter­tain a request to review the issue of exe­cut­ing the innocent.
• 4:35 AM State of Texas informs attor­neys that it will begin the lethal injec­tion of Herrera in 30 min­utes if a stay is not in place.
• 4:35 – 6:20 AM Frantic efforts to obtain a stay from state and fed­er­al courts; two mem­bers of the Texas Court of Criminal Appeals and a fed­er­al District Court judge agree to stay exe­cu­tion so the Supreme Court can hear the case; Texas Attorney General attempts to have stays vacat­ed; State court stay upheld.
• 6:20 – 6:55 AM Silence regard­ing Herrera’s status.
• 7:00 AM Clerk of Supreme Court announces that state court stay is valid.
• 7:08 AM Texas sun­rise: no exe­cu­tion. [76]

Leonel Herrera’s case was even­tu­al­ly argued before the Supreme Court eight months lat­er, in October 1992. He argued that he should be giv­en a hear­ing to review new evi­dence of his inno­cence and that it would be uncon­sti­tu­tion­al to exe­cute some­one who was inno­cent. Witnesses, includ­ing a for­mer Texas judge, revealed that Herrera’s broth­er had actu­al­ly con­fessed to the crime. A deci­sion was reached on January 25, 1993, with Herrera los­ing on a vote of 6 – 3. Herrera was exe­cut­ed on May 12, 1993.

National Implications: The Crisis in Representation 

The cri­sis in death penal­ty rep­re­sen­ta­tion is start­ing to spread to oth­er death penal­ty states as well. Because of the num­ber of peo­ple on Texas’ death row and the rate at which those peo­ple are now being processed for exe­cu­tion, the prob­lem in Texas is more acute than in oth­er places. But the size of the nation­al death row is also increas­ing rapid­ly: at

least 250 peo­ple are sen­tenced to death each year and oth­er states are expe­ri­enc­ing both a short­age of attor­neys and a short­age of funds to pay for the death penalty.

A six month study by The National Law Journal of death penal­ty rep­re­sen­ta­tion in the south concluded:

Southern jus­tice in cap­i­tal mur­der tri­als is more like a ran­dom flip of the coin than a del­i­cate bal­anc­ing of the scales. Who will live and who will die is decid­ed not just by the nature of the crime com­mit­ted but equal­ly by the skills of the defense lawyer appoint­ed by the court. And in the nation’s Death Belt, that lawyer too often is ill-trained, unpre­pared and gross­ly under­paid.[77]

The study found high dis­bar­ment rates for attor­neys who rep­re­sent­ed death row inmates, wide­spread inex­pe­ri­ence among those appoint­ed to cap­i­tal cas­es, and whol­ly unre­al­is­tic caps on the funds avail­able for defense. With lim­its on attor­neys’ fees of $1,000 in states like Alabama, Louisiana, and Mississippi, lawyers offer­ing even min­i­mal rep­re­sen­ta­tion were work­ing for $5 an hour.[78] Such mea­ger pay obvi­ous­ly can affect performance.

In Tennessee, a state not includ­ed in the Law Journal study, it is not uncom­mon for tri­al attor­neys to spend less than 100 hours prepar­ing a cap­i­tal case, while it typ­i­cal­ly takes over 1,000 hours in oth­er states. In two death row cas­es, the attor­neys spent 10 and 16 hours respec­tive­ly prepar­ing for tri­al. [79]In 17 Tennessee cas­es, no mit­i­ga­tion evi­dence what­so­ev­er was offered dur­ing the penal­ty phase of the tri­al. Under Tennessee law, if no mit­i­ga­tion evi­dence is pre­sent­ed, the court is com­pelled to direct a sen­tence of death, assum­ing the pros­e­cu­tor has pre­sent­ed aggra­vat­ing cir­cum­stances.[80]Tennessee has one of the low­est com­pen­sa­tion rates for indi­gent defense in the coun­try: $20/​hr. for out-of-court time and $30/​hr in-court. [81]

In con­trast, the state of Ohio allowed $40,000 for two attor­neys in cap­i­tal cas­es. [82] In California, attor­neys are paid about $75 an hour and total fees often exceed $100,000 just for the appel­late work. [83] But even in California, which recent­ly sur­passed Texas as the state with the largest death row, near­ly a third of those on death row lack lawyers for their appeals. [84]

In Georgia 60 of the 80 peo­ple on death row who have gone beyond their direct appeals are being rep­re­sent­ed by lawyers from out­side the state. ​“Many [Georgia] firms view defend­ing a per­son on death row as polit­i­cal­ly unpop­u­lar, bad pub­lic rela­tions and bad busi­ness,” said Robert Remar, who heads a state bar com­mit­tee to cor­rect the prob­lem. [85]

Ronald Tabak, chair of the ABA’s Individual Rights and Responsibilities death penal­ty com­mit­tee, said that the sit­u­a­tion is ​“get­ting mate­ri­al­ly worse because demand for lawyers is grow­ing sub­stan­tial­ly as the num­ber of inmates mov­ing into state post-con­vic­tion and fed­er­al habeas pro­ceed­ings is increas­ing.”[86] States like California, Ohio, Pennsylvania and Illinois, with bulging death rows but few exe­cu­tions so far, are a warn­ing that the cri­sis in death penal­ty rep­re­sen­ta­tion will soon be spreading. 

The U.S. Supreme Court recent­ly ruled in the Herrera case that a defen­dant with a claim of inno­cence still has the oppor­tu­ni­ty to apply for exec­u­tive clemen­cy. [87] Even though Texas has by far the most death row inmates who have reached the end of their appeals and whose last chance for relief lies with the gov­er­nor, there have been no com­mu­ta­tions grant­ed at a defen­dan­t’s request since the death penal­ty was rein­stat­ed. [88] Texas has refused clemen­cy in one case where it was request­ed by the pros­e­cu­tor and by the father of the vic­tim, [89] and in anoth­er case where it was even request­ed by the Pope. [90] Clemencies have been rare in oth­er states as well, but most of those states have had few inmates who had exhaust­ed all their appeals and sought clemency.

The case of Gary Graham, dis­cussed above, is test­ing the seri­ous­ness of Texas’ clemen­cy pro­ce­dure. Graham was con­vict­ed and sen­tenced to death on the basis of one eye­wit­ness who viewed him only from a dis­tance at night. New evi­dence indi­cat­ing that Graham may be inno­cent has emerged, but it has been barred by Texas pro­ce­dur­al rules which for­bid intro­duc­ing new evi­dence more than 30 days after a con­vic­tion. [91]

Graham was denied clemen­cy and the Pardon Board did not even meet to hear his evi­dence. He has filed a suit claim­ing that his due process rights have been vio­lat­ed because he was not giv­en a hear­ing by the Pardon Board. The Graham case tests whether there is any sub­stance to Texas’ clemen­cy process. Texas courts are still con­sid­er­ing whether the Board will be required to hold the hear­ing and pos­si­bly spare Graham’s life. But regard­less of the out­come in Graham’s case, clemen­cy in Texas has not been the safe­ty-valve rec­om­mend­ed by the High Court.

National Implications: Clemency

With respect to clemen­cy, the extreme hes­i­tan­cy of gov­er­nors to uti­lize this process in death penal­ty cas­es is also a nation­al prob­lem. Clemency used to be grant­ed more lib­er­al­ly by gov­er­nors in cap­i­tal cas­es. Prior to the Furman deci­sion in 1972, com­mu­ta­tions were grant­ed in approx­i­mate­ly one in five death sen­tenced cas­es. The cur­rent rate is rough­ly one out of forty. [92] The increased politi­ciza­tion of the death penal­ty has meant that a gov­er­nor could suf­fer a sharp decline in pop­u­lar­i­ty for grant­i­ng a com­mu­ta­tion.[93] Indeed, of the 31 clemen­cies grant­ed since 1972, more than half were by gov­er­nors as they were leav­ing office. [94]

Thus, despite the Supreme Court’s assur­ances that clemen­cy exists as a pro­tec­tion against exe­cut­ing an inno­cent per­son, it has nev­er been used in Texas, or most oth­er death penal­ty states, since 1972. As long as the issue of cap­i­tal pun­ish­ment is thought of as a lit­mus test for politi­cians to attain and retain office, the prospect of clemen­cy for any death row inmate will remain dim. 

The word ​‘cri­sis’ is used far too often in pol­i­tics and gov­ern­ment — but a cri­sis is pre­cise­ly what Texas faces today.

The Texas crim­i­nal jus­tice sys­tem is fail­ing.

–Report from the Texas Office of the Comptroller [95]

Closely inter­twined with the death penal­ty is the broad­er response which a state makes to the prob­lem of crime. Not sur­pris­ing­ly, the tur­moil exhib­it­ed in Texas’ admin­is­tra­tion of the death penal­ty is reflect­ed in an even larg­er cri­sis with crime. In the same peri­od in which Texas moved from its first exe­cu­tion in 1982 to become the undis­put­ed leader in the use of the death penal­ty, the state also expe­ri­enced a tremen­dous growth in its vio­lent crime rate. From 1982 to 1991, the nation­al crime rate rose by 5%. In the same peri­od, the Texas crime rate rose by 24%, and the vio­lent crime rate in Texas rose by near­ly 46%. In 1990, Texas earned the dubi­ous dis­tinc­tion of being the first state in which more peo­ple died from gun­shot wounds than from traf­fic acci­dents. [96] In 1991, Texas’ over­all crime rate was third in the nation, and its mur­der rate was the second highest.

But the prob­lems in Texas go far beyond mere crime sta­tis­tics. A recent report from the Texas Office of the Comptroller point­ed to a larg­er cri­sis in the state’s response to crime:

[D]espite the need for real solu­tions, pub­lic debate over crime in Texas revolves around hol­low calls for the state to become ​“tougher.” In fact, this is a call for the sta­tus quo — for more of the same, only more so. It is a call for a con­tin­u­ing cycle of cyn­i­cal quick fix­es and stop-gap mea­sures, for cost­ly prison con­struc­tion that can­not keep pace with the demand for new prison space — for a con­stant drain on state and local trea­suries that make Texas tax­pay­ers poor­er, not safer.[97]

The death penal­ty is pre­cise­ly one of those ​“quick fix­es” that drain the tax­pay­ers’ mon­ey. A 1992 study by the Dallas Morning News report­ed that each death penal­ty case, fol­lowed through to the fed­er­al appeal, is cost­ing tax­pay­ers $2.3 mil­lion. That is in line with the costs that oth­er states have pro­ject­ed. New York esti­mat­ed that each cap­i­tal case would cost $1.8 mil­lion, with­out includ­ing costs past the direct appeal. Florida cal­cu­lat­ed the cost of each exe­cu­tion to be about $3.2 mil­lion. [98]

With over 70 exe­cu­tions since 1976 and close to 400 oth­er peo­ple wait­ing on death row, Texas has like­ly spent sev­er­al hun­dred mil­lion dol­lars on the death penal­ty, far more than it would have if there were no death penal­ty and peo­ple were sen­tenced to life imprisonment.

As a response to crime, then, the death penal­ty is exceed­ing­ly expen­sive and focus­es on only a tiny frac­tion of the prob­lem. Nevertheless, politi­cians through­out Texas have con­sis­tent­ly seized on the death penal­ty as an answer to vio­lence. They have pushed the death penal­ty at every pos­si­ble turn and have lashed out at any­one oppos­ing them. But when the caus­es of crime are root­ed in guns, gangs, drugs, and the dete­ri­o­ra­tion of the social fab­ric, cap­i­tal pun­ish­ment offers noth­ing in the way of a solution. 

The Winds of Change

Crime was rec­og­nized as a para­mount prob­lem in Texas well before nation­al media atten­tion began to focus on crime. In the 1990 guber­na­to­r­i­al race, the can­di­dates tripped over each oth­er in an effort to look tougher in their respons­es to vio­lence. The death penal­ty became the lead­ing sym­bol of tough­ness. In fact, pop­ulist Democrat Jim Hightower described the cam­paign as ​“a race to see who could kill the most Texans.” [99] The rapid rise in the pace of exe­cu­tions in Texas also began in 1990, but now dis­sat­is­fac­tion with both the process and the results is start­ing to emerge.

Jim Mattox, the for­mer Attorney General of Texas who over­saw 36 exe­cu­tions in the state, was one of the can­di­dates for gov­er­nor who cam­paigned on his sup­port for the death penal­ty. But cas­es like Gary Graham’s and Clarence Brandley’s, which raised the prospect of inno­cent peo­ple being exe­cut­ed, have giv­en him second thoughts.

For one thing, Mattox does­n’t believe the death penal­ty is a deter­rent to crime: ​“It is my own expe­ri­ence that those exe­cut­ed in Texas were not deterred by the exis­tence of the death penal­ty law,” he said.[100] ​“I think in most cas­es you’ll find that the mur­der was com­mit­ted under severe drug and alco­hol abuse.” [101]

As an alter­na­tive to the death penal­ty, he sug­gests a sen­tence of life with­out parole, which oth­er Texas pros­e­cu­tors have resist­ed so far: ​“Life with­out parole could save mil­lions of dol­lars,” said Mattox. ​“It cur­rent­ly costs three times as much — more than $2 mil­lion per inmate — to car­ry out the death sen­tence than to keep an inmate in prison for 40 years.”

“In oth­er words,” he wrote, ​“it’s cheap­er to lock ​‘em up and throw away the key .… As vio­lent crime con­tin­ues to esca­late, it’s some­thing to con­sid­er.” [102]

Others in law enforce­ment agree. Norman Kinne, First Assistant District Attorney of Dallas County, praised a new Texas law which allowed sen­tences for life with no pos­si­bil­i­ty of parole for 35 years (now 40) [103]: ​“I think we can take more vio­lent offend­ers out of soci­ety for longer peri­ods of time with less expense to the tax­pay­ers.”[104]

He point­ed out that the new law can also bring a sense of final­i­ty to the vic­tim’s fam­i­ly: ​“On a death penal­ty case, I can’t ever tell them they won’t have to come back and live it all over again. This can go on ad nau­se­am.” But under the new life sen­tence law, ​“there’s a final­i­ty to all this.” [105]

On anoth­er occa­sion he said:

“Even though I’m a firm believ­er in the death penal­ty, I also under­stand what the cost is. If you can be sat­is­fied with putting a per­son in the pen­i­ten­tiary for the rest of his life … I think maybe we have to be sat­is­fied with that as opposed to spend­ing $1 mil­lion to try and get them exe­cut­ed.”[106]

Dr. George Beto, who head­ed the Texas prison sys­tem for ten years, also favors the death penal­ty in the­o­ry but oppos­es it in prac­tice. He has clear­ly rec­og­nized some of the prob­lems with the appli­ca­tion of cap­i­tal pun­ish­ment: “[I]n a demo­c­ra­t­ic soci­ety like ours, the death penal­ty is capri­cious­ly and inequitably admin­is­tered. Whether a per­son is con­vict­ed depends on the qual­i­ty of his defense, the hys­te­ria of the moment in the com­mu­ni­ty and the cul­ture.”[107]

And in Washington, some of Texas’ Congressional del­e­ga­tion have been lead­ing the way towards alter­na­tives to the death penal­ty. Rep. Craig Washington (D‑TX) has spear­head­ed the effort to present an alter­na­tive fed­er­al crime bill which excludes the death penal­ty and empha­sizes a range of pos­i­tive respons­es to crime, and Rep. Henry Gonzalez (D‑TX) is the peren­ni­al spon­sor of a con­sti­tu­tion­al amend­ment to end the death penalty altogether.

Meanwhile, juries in Texas are also begin­ning to see things dif­fer­ent­ly, espe­cial­ly with the avail­abil­i­ty of longer guar­an­teed sen­tences. Formerly, crim­i­nals in Texas were serv­ing only 20% of their sen­tence and some of those with life sen­tences were released after only five years. [108] Now that life can mean no parole for 35 – 40 years, juries have real alter­na­tives to a death sen­tence. Dallas County District Attorneys, for exam­ple, used to have a per­fect record when seek­ing the death penal­ty. But three of the past six cap­i­tal cas­es have end­ed in life sen­tences. ​“Sometimes it makes you think the pub­lic isn’t 100 per­cent with you,” said Assistant District Attorney Hugh Lucas, who recent­ly ​“lost” a cap­i­tal case when it end­ed in a life sen­tence for Anthony Hampton. [109]

National Implications: The Crime Problem

The issue of vio­lent crime has now reached nation­al promi­nence as well. Politicians all over the coun­try have been using the head­lines of crime to pro­mote the death penal­ty as a quick fix solu­tion. If the peo­ple buy this pro­mo­tion as they did in Texas, then it is like­ly that oth­er states will match Texas’ high rate of exe­cu­tions. The fed­er­al gov­ern­ment, for exam­ple, has increased death penal­ty pros­e­cu­tions and is seek­ing ways to great­ly expand their role as a response to the nation­al prob­lem of vio­lence. States like New York, Kansas, and Alaska have all been con­sid­er­ing rein­stat­ing capital punishment.

On the oth­er hand, states that have used cap­i­tal pun­ish­ment exten­sive­ly, like Texas, have been beset with its prob­lems. The death penal­ty has failed to reduce the num­ber of mur­ders, it has proved enor­mous­ly expen­sive, and there con­tin­ues to be the uncom­fort­ably present dan­ger of exe­cut­ing an inno­cent indi­vid­ual. As a result of these prob­lems, some states are rely­ing more on the alter­na­tive of life sen­tences with severe restric­tions on parole.[110] The polit­i­cal tug of war between more and faster exe­cu­tions on the one hand, and more effi­cient and effec­tive ways of reduc­ing crime on the oth­er, is a bat­tle rag­ing in the entire nation, as well as in Texas. 

The death penal­ty in Texas is in a state of cri­sis. Even more alarm­ing, how­ev­er, is the prospect that what is hap­pen­ing in Texas will be hap­pen­ing across the coun­try if the U.S. expands its use of the death penal­ty. The size of the nation­al death row, the will­ing­ness of the courts to accept the prac­tices uti­lized in Texas, the increas­ing pace of exe­cu­tions, the pub­lic’s con­cern about crime — all indi­cate that the use of the death penal­ty could become as com­mon nation­wide as it is in Texas.

On the oth­er hand, the prob­lems in imple­ment­ing the death penal­ty in Texas are a warn­ing to the rest of the coun­try that it is wad­ing into a swamp that it should avoid. The death penal­ty skews the process of pros­e­cu­tion and leads to offi­cial abuse. The death penal­ty has also been a sym­bol of racial divi­sion. As the num­bers of exe­cu­tions begins to rise, the impact of these injus­tices will force itself more clear­ly into our consciousness.

Similarly, the costs of the death penal­ty are not a prob­lem only in Texas. As thou­sands of cas­es move into the lat­er stages of appeal and as more and more peo­ple are added to death row every year, the costs will become greater and the strain on oth­er crime fight­ing pro­grams will become more severe. It is clear even to pro­po­nents of cap­i­tal pun­ish­ment that this expan­sion of the death penal­ty will mean that hard choic­es must be made between pre­ven­tive meth­ods of law enforce­ment and more cost­ly and ineffectual executions.

Furthermore, the cri­sis in death penal­ty rep­re­sen­ta­tion, which is close­ly relat­ed to the prob­lem of costs, augurs poor­ly for the coun­try as a whole. What is a cri­sis in Texas because of the num­bers involved and the scarci­ty of qual­i­fied coun­sel will­ing to take these cas­es, will become a nation­al prob­lem as the num­ber of inmates approach­ing exe­cu­tion con­tin­ues to grow.

Such a death penal­ty may not be accept­able to the American pub­lic. Moreover, such a death penal­ty may not meet the stan­dards of the High Court, which set this exper­i­ment in motion 18 years ago. That exper­i­ment, as Justices Marshall and Blackmun have point­ed out, has so far estab­lished that the death penal­ty remains arbi­trary and capri­cious. Texas has been the nation’s cru­cible for this exper­i­ment with the death penal­ty, and the results of this exper­i­ment should speak vol­umes to those who choose to listen.