Making Democracy Work

Capital Punishment

Updates from Susybelle Gosslee (Dallas) Capital Punishment Issue Chair (sgosslee@airmail.net)

Testimony

Coalitions and Resources

Resources

  • Texas Criminal Justice Coalition The Texas Criminal Justice Coalition (TCJC) advances solutions that transform the adult and youth justice systems to strengthen families and foster safer communities.

  • Innocence Project of TexasThe Innocence Project of Texas is a 501(c)(3) non-profit organization dedicated to securing the release of those wrongfully convicted of crimes in Texas and educating the public about the causes and effects of wrongful convictions

Acronyms: What does that mean?

Position LWV-TX

For as long as the death penalty is an applicable punishment in Texas, the LWV supports reform of the capital punishment system in Texas with the following measures:

  • establish a moratorium on all executions in Texas while an official study of the capital punishment system is conducted

  • prohibit the execution of persons with intellectual/developmental disability, the mentally ill, and juveniles under the age of 18 at the time the crime was committed, establishing clear, uniform and clinical standards consistent with accepted professional practice to determine intellectual/developmental disability and mental illness

  • observe the provisions of the Vienna Convention of 1848 by providing foreign nationals access to consular officials from their native country

  • provide the options of life imprisonment and life without parole to juries in capital cases

  • require the Board of Pardons and Paroles to adopt guidelines and substantive criteria upon which to base its clemency recommendations, to hold open meetings and to give explanations for its decisions

Position LWV-US

LWV-US position on Capital Punishment supports the abolition of the death penalty.

Issue Studies and Explanation

The issue of capital punishment has been in the foreground of debate in Texas for many years. The availability of DNA testing, the rising number of inmates found innocent and released from other states' death rows, as well as an increasing number of Texas executions, have made many in Texas question the death penalty and its effectiveness.

A study of Capital Punishment Reform was adopted at Convention 2001.

The study compared:

(1) outcomes for defendants with court-appointed lawyers to those who hire their own attorneys

(2) costs of execution to the costs of life imprisonment

(3) the potential of wrongful executions and the impact of new technology

(4) possible sentencing alternatives.

A study committee produced a Facts & Issues, CRIMINAL JUSTICE: Capital Punishment in 2002 that was distributed to League members, public officials, agencies, and other interested groups and individuals.

A limited consensus was reached in the fall of 2002 and the state board approved the new position in January 2003.

At the LWVUS Convention in 2006, delegates voted include support for the abolition of the death penalty in their positions. LWV-Texas Convention 2010 voted to remove references to capital punishment sentencing from our position in order to bring our position in line with LWVUS.

A program review committee formed in 2012 recommended that several changes be made to Capital Punishment Reform position. The committee produced a background paper supporting the changes that was distributed to local Leagues, and the changes were approved by concurrence at a statewide convention in 2013. The changes included wording changes and reordering of bullet items to clarify that the LWV-TX position to support reforms to the capital punishment system does not conflict with the LWVUS position to support abolition of the death penalty, to change the term "mental retardation" to "intellectual/developmental disability" and include a statutory of intellectual/developmental disability for purposes of screening accused murderers, to include both life imprisonment and life without parole as sentencing options, and to require the Board of Pardons and Paroles to adopt guidelines and criteria for its recommendations.

History of LWV-TX Action

2003: The beginning of the 78th Legislative session looked very promising as legislators introduced bills that would reform the capital punishment system. LWV-TX supported many of the bills, including those that called for an official study and moratorium, prohibited the execution of the mentally retarded and juveniles, and required foreign nationals to be informed of their consular rights. As the session progressed, it soon became evident that most of these bills would not make it out of committee and none made it to the floor for a vote. The promising beginning of the session proved to be disappointing, even leaving Texas law in noncompliance with the recent U.S. Supreme Court ruling that prohibits the execution of the mentally retarded.

2005: The 79th session of the Texas Legislature ended without achieving any real reform to the criminal justice-death penalty system. While bills were introduced that would have achieved reform most sat out the session in committee. The Life without Parole bill signed by the governor had changed so dramatically from the original bill that its whole intent changed. The substituted bill added the sentencing option of Life without Parole, but removed life imprisonment as another option for capital cases, leaving juries with still only two sentencing options. Bills that would have brought Texas into compliance with the Supreme Court ruling that prohibits the execution of the mentally retard were shelved. Another bill, which sought to protect the consular rights of foreign nationals, was also shelved. All in all the session was a disappointing one.

2007: HJR 23 (Naishat), supported by LWV-TX, calling for moratorium on the execution of persons convicted of capital offenses. The bill would grant the governor the power to issue an order to prohibit the Department of Criminal Justice from performing executions on or after the effective date until the order is revoked. The bill did not pass.

2011: Capital punishment has a mix of wins and losses. With the loss of a life, it is important for the criminal justice system to get it right. For the first time ever, the House Criminal Jurisprudence had a hearing on capital punishment issues. LWV gave testimony in support of a moratorium.

The Legislature did well in adopting safeguards against wrongful convictions. HB 215, (Ellis, Gallego) sets standards for police agencies in conducting eyewitness lineups. SB 122 (Ellis) allows defendants new post-conviction access to DNA evidence. HB 417, (Anchia, Ellis) extends compensation eligibility to Anthony Graves, a death-row inmate who was exonerated last year, but denied his compensation for wrongful conviction.

Lawmakers left important unfinished business, including reforms to record confessions of felony suspects and to ban the offer of leniency in exchange for accomplice testimony in a death penalty case. Lawmakers did not create a special commission to study wrongful convictions and capital punishment.

2015: The League of Women Voters of Texas called for a moratorium on all Texas executions while the United States Supreme Court considered Glossip v. Gross, a case involving Oklahoma's lethal injection procedure. In addition, the League called for an interim study committee comprised of members from the Texas House of Representatives and the Texas Senate to study the issues involving the death penalty, such as: state secrecy in lethal injections; execution of the innocent; the cost of executions; the different standards being applied from one county to another resulting in the death penalty in some cases and not others for the same offense; unfair application of the death penalty to minorities; guarantees to avoid racial prejudice and economically disadvantaged as compared to other people in the population; prosecutors' roll in representing society; victims' family members' assistance; qualified defense attorneys; systems to prevent murders by mentally ill persons and those with intellectual and developmental differences; other solutions to keep society safe; and that reflect the magnificence of the State of Texas. The proposed interim committee could have brought recommendations for potential reforms to fix the death penalty system before the 2017 legislative session and encourage all Texans to engage in a long overdue debate that the Texas death penalty deserves and to ensure that Texas has the best judicial system in the world. The study committee would move closer to ensuring that mistakes will not be made. There is no ability to correct a mistake when somebody has, in fact, been executed while being innocent, the ultimate injustice. In addition, U.S. Department of Justice's review of the death penalty, which was ordered after the botched Oklahoma execution of Clayton Lockett, was still underway. However, SB 1697 (Huffman) which relates to the confidentiality of certain information regarding procedures and substances used in executions passed into law and was signed by the Governor. The League opposed this bill.

No matter what one thinks of the death penalty, League members care about open and transparent government and accountability of government to the citizens of Texas. Legislation should not promote government actions to be hidden, but because of SB 1697 now Texas executions can be without the public being fully informed.

Removing death penalty information about chemicals used in the execution process and procedures from public view undermines open government and creates secrecy in executions. The public has a right to obtain public information and a responsibility to oversee government actions. Transactions affecting the death penalty involve the State paying a private entity for an item or service using taxpayer money to perform executions; yet, the Legislature approved withholding the procedure and substances names and provider from the taxpayers. This law allows confidentiality of any person who participates in an execution procedure, including a person who uses supplies or administers a substance during the execution and any person or entity that manufactures, compounds, prescribes, dispenses, or provides a substance or supplies used in an execution.

Transparency is a basic principle of democracy, but the law restricts transparency and access to public information. Since the State of Texas is going to continue to administer the death penalty, it is essential that the public have confidence that the State is performing state killing openly. The League's position is abolition of the death penalty. Cutting the public's access to information will only inhibit public confidence as state killings are carried out.

There is an ongoing lawsuit on "credible threats to the supplier," but several sources and one court have questioned the existence of these threats. In addition, the U.S. Supreme Court ruled on June 29 against three death row inmates who had sought to bar the use of an execution drug they said risked causing excruciating pain. The majority of U.S. justices, in a 5-4 vote, concluded that a disputed drug used to render condemned prisoners unconscious as the first stage in the lethal injection process works sufficiently well that it does not violate the Eighth Amendment prohibition on cruel and unusual punishment. The court challenge failed, because an alternative means of execution was not identified by the plaintiffs.

The U.S. has seen a number of botched executions lasting between 20 minutes to one hour and fifty-seven minutes with prisoners being seen gasping for air, grimacing and convulsing during executions. Justice Sonia Sotomayor argued that the lethal injection protocol cannot "be trusted to render and keep a condemned inmate unconscious, leaving him open to pain at the later stages." With the passage of SB 1697, the public may not be informed of the drug and the procedure used in Texas executions.

Public oversight is a part of the checks and balances to ensure good government. A 2012 study published by the British Journal of American Legal Studies examined 9,000 executions that had taken place in the United States from 1900 to 2010 and found that 270 executions had involved "departures from the protocol of killing someone sentenced to death" and were therefore botched. The researchers found that the lethal injection method of executing Clayton Lockett had a higher botched rate than any other method.

Numerous other bills were filed relating to the death penalty which included abolition, but they did not get out of committee. HB 1527 did have a hearing. The League supported HB 53 (McClendon) which relates to the age of criminal responsibility and to certain substantive and procedural matters related to that age. The U.S. Supreme Court has ruled that children under the age of 18 cannot be executed. This bill would have codified that ruling in Texas. The bill was left in Juvenile Justice and Family Issues Committee.

The League supported HB 267 (Miles) which relates to the joint or separate prosecution of a capital felony charged against two or more defendants for a capital felony for which the state seeks the death penalty, and the court shall order severance as to any two or more defendants who are jointly indicted or complained against for a capital felony if the state seeks the death penalty for any one of those defendants. HB 267 addresses the law of parties in criminal cases. The law of parties is a variation of the common law felony murder rule and states that a person can be criminally responsible for the actions of another if he or she aids and abets or conspires with the principal. The bill was left in Criminal Jurisprudence Committee. The "law of parties" is clearly about conspiracy and organized crime. Four states other than Texas have "law of parties" statutes, but Texas is the only state that applies it in capital cases, making it the only place in the country where people can face the death penalty even though they did not actually kill the victim. Other bills that were submitted were:

  • HB 341 (Dutton) The League supported this bill as it relates to the extent of a defendant's criminal responsibility for the conduct of a coconspirator in certain felony cases;
  • HB 564 (Dutton) This bill relates to the admissibility of certain evidence in capital cases in which the state seeks the death penalty. The bill states that testimony of an informant or of an alleged accomplice of the defendant is not admissible if the testimony is given in exchange for a grant or promise by the attorney representing the state or by another of immunity from prosecution, reduction of sentence or any other form of lenience or special treatment. This bill was left pending in Criminal Jurisprudence Committee.
  • HB 1240 (Walle) The League watched this bill after it was filed as it relates to the age of criminal responsibility and to certain substantive and procedural matters related to age. "Child" means a person who is 10 years of age or older and under 18 (not 17) years old. No person may, in any case, be punished by death for an offense committed while the person was younger than 19 years old. An individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole or by death. This bill was referred to Juvenile Justice and Family Issues Committee.
  • HJR 90 (Raymond) This Joint Resolution proposes a constitutional amendment to abolish the court of criminal appeals and establish one supreme court with civil and criminal appellate jurisdiction. This resolution was left in the Judiciary and Civil Jurisprudence Committee.
  • SB 226 (Ellis) The League supported this bill which relates to the applicability of the death penalty to a capital offense committed by a person with intellectual disability. The U.S. Supreme Court has ruled that a person with a disability cannot be executed.
  • SB 260 (Ellis) This bill relates to the caseload for attorneys who are appointed to defend the indigent defendants in criminal cases.