Texas Justice Is Blind -- to Fairness

If Texas maintains its current pace of executions throughout 2003, the state could easily exceed its record of 40, set in 1999. Of the 12 executions nationwide so far this year, Texas conducted eight, and it has nine more scheduled through April.

Last year, of the 71 people executed nationwide, 33 were in Texas. No other state comes close to executing as many people.

The situation in the Lone Star State is all the more striking in light of the recent decision by former Illinois Gov. George Ryan to pardon four death row inmates outright and commute the sentences of 167 to life in prison. Ryan, a Republican who left office in January, described the Illinois capital punishment system as “arbitrary and capricious and therefore immoral.”

Texas Gov. Rick Perry, also a Republican, denounced Ryan’s decision as “inappropriate” and lacking in leadership. “If he has a problem in his state -- which obviously he does -- you do it case by case,” Perry said. “You don’t just walk in, because there are some victims of crime that you spit in the eye of.”

In fact, Ryan did not “just walk in.” An independent commission did do a review, case by case. It discovered arbitrary or biased prosecutions; inadequate or incompetent defense; mentally ill or retarded defendants; reckless use of jailhouse or accomplice informants; coerced confessions; and four confirmed innocents.

And despite Perry’s protestations, the Texas situation is much the same as Illinois’. There has never been any attempt at a systematic review of the cases of the more than 450 inmates currently on Texas’ death row, but pro bono defense teams -- which have been able to review only a handful of capital cases -- have demonstrated that the system is riddled with problems.

John “Jackie” Elliott, executed Feb. 4, is the most recent case in point. Elliott was convicted in 1987 of the rape and murder of an Austin woman. In December, a team of volunteers reviewed his case and discovered, among other things: exculpatory evidence, including 40 witness statements, never provided to the original defense; blood evidence, potentially implicating the prosecution’s primary witness, that had never been DNA-tested; and representation by a series of inadequate or incompetent court- appointed attorneys. The team even polled the 12 original jurors, who joined in requesting that the execution be stayed and DNA evidence be provided for testing.

We would be aware of none of this if outside attorneys had not volunteered to review the case.

Elliot’s case is all too representative of the quality of justice in Texas, where the Legislature finally agreed in 2001 to fund a state system for indigent defense for the first time. This month, however, to help balance the state budget, the presiding judge of the Court of Criminal Appeals recommended returning those funds unspent.

In 2001, a bill that would have outlawed the execution of the mentally retarded was vetoed by Perry. Another that would have enabled juries to impose life without parole was derailed by prosecutors who feared, reasonably enough, that juries so empowered would impose fewer death sentences. Those bills and several others, including calls for a moratorium and review, have been proposed again this year, but there is little reason for optimism.

Why is Texas so far ahead in executions? Are Texans bloodthirsty or devoted to “frontier justice”? Not really; a majority of Texans support capital punishment, but not in a percentage radically greater than those in other states.

When it comes to the death penalty, Texas is in fact more Southern than Western: The Southern states (primarily the old Confederacy) have accounted for about 80% of the 832 executions nationwide since 1976. Because a greatly disproportionate number of the condemned are black or brown and poor, it doesn’t take a great leap of imagination to comprehend the historical circumstances that have led the Deep South states down this path. The current national rush to vengeance cannot be blamed on Judge Roy Bean.

When Texans are offered the certain alternative of life without parole, or asked whether they support the execution of juveniles or the mentally incapacitated, like other Americans their support for the death penalty diminishes to a minority. That is why they are not offered such choices, either on juries or in the voting booth.

Judges as well as prosecutors are elected in Texas, and they devote much of their campaigns to declaring their willingness to impose the death penalty in order to not appear “soft on crime.”

In the end, capital punishment is not about justice. It’s about politics. The Texas capital punishment system still performs its primary function quite well: It helps elect prosecutors, judges and state politicians.