Capital punishment in Texas

Capital punishment in the U.S. state of Texas is a form of punishment in which a person is put to death as a punishment for a crime. Since the death penalty was re-instituted in the United States with the 1976 Gregg v. Georgia decision, Texas has executed more inmates than any other state, beginning in 1982 with the execution of Charles Brooks, Jr.. Since 1982, 531 people have been executed in Texas.

Since 1923, the Texas Department of Criminal Justice (TDCJ) has been in charge of executions in the state. TDCJ houses death row prisoners after they are transported from their counties of conviction, and administers the death penalty on a condemned person's court-scheduled date of execution. Male death row inmates are held at the Allan B. Polunsky Unit and female death row inmates are held at the Mountain View Unit, while all executions occur at the Huntsville Unit.

Texas has used a variety of execution methods: until 1924, the state used hanging; from 1924 - 1964, Texas used electrocution; and lethal injection has been since the Gregg ruling. Most executions were for murder, but other crimes such as piracy, cattle rustling, treason, desertion, and rape were subject to death sentences historically.

Under current state law, the crime of capital murder is eligible for the death penalty. In order for a murder to be a "capital murder," it must meet one of the aggravating circumstances. A capital murder trial is divided into a guilt and punishment stages. At the punishment stage, a jury is required to consider mitigating circumstances before imposing a death sentence. Death row inmates in Texas often have a lengthy appellate process involving their conviction.

History

Gallows in Brownsville, Texas prior to the hanging of two men in 1916

See also: Capital punishment in the United States, History of Texas, and Lists of people executed in Texas

The first recorded execution in Texas occurred in 1819 with the execution of a white male, George Brown, for piracy. In 1840, a black male, Henry Forbes, was executed for jail-breaking. Prior to Texas statehood in 1846, eight executions—all by hanging—were carried out.

Upon statehood, hanging would be the method used for almost all executions until 1924. Hangings were administered by the county where the trial took place. The last hanging in the state was that of Nathan Lee, a man convicted of murder and executed in Angleton, Brazoria County, Texas on August 31, 1923. The only other method used at the time was execution by firing squad, which was used for three Confederate deserters during the American Civil War as well as a man convicted of attempted rape in 1863.

Ellis Unit, which at one time housed the State of Texas male death row

Texas changed its execution laws in 1923, requiring the executions be carried out on the electric chair and that they take place at the Texas State Penitentiary at Huntsville (also known as Huntsville Unit). From 1928 until 1965, this was also home to the state's male death row. The first executions on the electric chair were on February 8, 1924, when Charles Reynolds, Ewell Morris, George Washington, Mack Matthews, and Melvin Johnson had their death sentences carried out. The five executions were the most carried out on a single day in the state. The state would conduct multiple executions on a single day on several other occasions, the last being on September 5, 1951. Since then, the state has not executed more than one person on a single day, though there is no law prohibiting it. A total of 361 people were electrocuted in Texas, with the last being Joseph Johnson on July 30, 1964.

The United States Supreme Court decision in Furman v. Georgia (408 U.S. 238 (1972)), which declared Georgia's "unitary trial" procedure (in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment) to be unconstitutional on the grounds that it was a cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, essentially negated all death penalty sentences nationwide. At the time of the decision 52 inmates (45 on death row and seven in county jails awaiting transfer to TDCJ) had been given the death penalty; all were commuted to life in prison.

The Furman decision led to a 1973 revision of the laws, primarily by introducing the bifurcated trial process (where the guilt-innocence and punishment phases are separate) and narrowly limiting the legal definition of capital murder (and, thus, those offenses for which the death penalty could be imposed). The first person sentenced to death under a new Texas statute was John Devries on February 15, 1974; Devries hanged himself in his cell on July 1, 1974 (using bedsheets from his bunk) before he could be executed.

The Supreme Court decision in Gregg v. Georgia in 1976 once again allowed for the death penalty to be imposed. (A Texas case was a companion case in the Gregg decision and was upheld by the Court; the Court stated that Texas' death penalty scheme could potentially result in fewer death penalty cases, an irony given that post-Gregg Texas has by far executed more inmates than any other state.) However, the first execution in Texas after this decision would not take place until December 7, 1982 with that of Charles Brooks, Jr.. Brooks was also the first person to be judicially executed by lethal injection in the world, and the first African American to be executed in the United States since 1967.

In the post-Gregg era, Texas has executed 531 people. There are a variety of proposed legal and cultural explanations as to why Texas has more executions than any other state. One possible reason is due to the federal appellate structure – federal appeals from Texas are made to the United States Court of Appeals for the Fifth Circuit. Michael Sharlot, dean of the University of Texas at Austin Law School, found the Fifth Circuit to be a "much more conservative circuit" than the Ninth Circuit to which federal appeals from California are made. According to him, the Fifth is "more deferential to the popular will" that is strongly pro-death penalty and creates few legal obstacles to execution within its jurisdiction. As of 2004, however, Texas may have a lower rate of death sentencing than other states, according to a study by Cornell University.

Texas has executed nine women in its history, the most recent being Lisa Ann Coleman on September 17, 2014.

Capital offenses

Allan B. Polunsky Unit, the location of the men's death row

The only crime for which the death penalty can be assessed is capital murder. The Texas Penal Code specifically defines capital murder as murder which involves one or more of the following aggravating factors: murder of an on-duty officer or firefighter, in the course of committing or attempting to commit a certain felony offense, Murder for remuneration, while escaping or attempting to escape a penal institution, while incarcerated with a qualifying factor, Murder of an individual under ten years of age, or murder of a person in retaliation for, or on account of, the service or status of the other person as a judge or justice of any court. The right to plead insanity was not granted until 1991, meaning beforehand, mentally unstable peoples accused of murder were put to death.

Legal procedure

The prosecution may choose not to seek the death penalty. This can be for various reasons, such as the prosecution believing that they could not show the defendant worthy of death, or the family of the victim has asked that the death penalty not be imposed.

Trial phase & appeals

See also: Habeas corpus in the United States

A capital trial in Texas is a bifurcated trial, consisting of the "guilt-innocence phase" followed by the "punishment phase." The guilt-innocence phase in a capital case in Texas proceeds identically to a non-capital case with the exception of jury selection. In a capital case, voir dire is conducted on each potential juror individually rather than as a group, and voir dire must result in a death-qualified jury. In Texas, jurors in the sentencing phase are first asked to determine whether the defendant represents a future danger to society; only after deciding unanimously that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” will the jury consider whether any evidence in mitigation supports a sentence less than death.

The imposition of a death sentence in Texas results in an automatic direct appeal to the Texas Court of Criminal Appeals, the state's highest criminal tribunal (the intermediate Texas Court of Appeals is bypassed), which examines the record for trial error. A person convicted of capital murder may also attack their convictions or sentences via writs of habeas corpus at both the state and federal levels.

Commutation

In addition to seeking judicial review of the sentence, a defendant may also appeal to the Texas Board of Pardons and Paroles, a separate agency from TDCJ, for commutation of the sentence to life in prison. Since Texas reinstated the death penalty in 1976, only two defendants sentenced to death have been granted clemency by the Governor after a recommendation from the Board: Henry Lee Lucas in 1998 (on grounds of possible innocence) and Kenneth Foster in 2007.

The Board, after hearing testimony, decides whether or not to recommend commutation to the Governor of Texas.

• If the Board recommends commutation, the Governor can accept or reject the recommendation.
• However, if the board does not recommend commutation, the Governor has no power to override the Board's non-recommendation (the law was changed in 1936 due to concerns that pardons were being sold for cash under the administrations of former Governor James E. Ferguson and later his wife and Texas' first female Governor Miriam A. Ferguson).
• The only unilateral action which the Governor can take is to grant a one-time, 30-day reprieve to the defendant, and can do so regardless of what the Board recommends in a particular case.

Death row

See also: List of United States death row inmates § Texas

Male death row inmates are housed at the Polunsky Unit in West Livingston; female death row inmates are housed at the Mountain View Unit in Gatesville. All death row inmates at both units are physically segregated from the general population, are housed in individual cells approximately 60 square feet (5.6 m²) in size, and engage in recreational activities individually apart from the general population and other death row inmates. They receive special death row ID numbers instead of regular Texas Department of Criminal Justice numbers.

Death row prisoners, along with prisoners in administrative segregation, are seated individually on prison transport vehicles. The TDCJ makes death row prisoners wear various restraints, including belly chains and leg irons, while being transported. Death row offenders and offenders with life imprisonment without parole enter the TDCJ system through two points; men enter through the Byrd Unit in Huntsville, and women enter through the Reception Center in Christina Crain Unit, Gatesville. From there, death row inmates go to their designated death row facilities.

Previously death row inmates were permitted to work. After an escape attempt occurred in 1998, the prison work program was suspended.

Execution procedure

The TDCJ website maintains a list of inmates with scheduled execution dates, which is generally updated within 1–2 days after an execution date is set, an execution takes place, or a stay of execution is granted and the date withdrawn.

Date of execution

The judge presiding over a capital case sets the execution date once it appears that all the offender's appeals have been exhausted. The initial date of execution cannot be prior to the 91st day after the day the order is entered and (if the original order is withdrawn) subsequent execution dates cannot be less than the 31st day after the order is entered, provided that no habeas corpus motion has been filed under Article 11.071; otherwise, the date cannot be set prior to the court either denying relief, or issuing its mandate. In the event an offender manages to escape confinement, and not be re-arrested until after the set execution date, the revised date of execution shall be not less than 30 days from the date the order is issued.

Execution day

See also: lethal injection

The law does not prohibit multiple executions in a single day; however, Texas has not executed multiple offenders on a single day since August 9, 2000, on which two offenders were executed.

The law only specifies that "[t]he execution shall take place at a location designated by the Texas Department of Corrections in a room arranged for that purpose." However, since 1923, all executions have been carried out at the Huntsville Unit, the former location of death row.

On the afternoon of a prisoner's scheduled execution, he or she is transported directly from his or her death row unit to the Huntsville Unit. Men leave the Polunsky Unit in a three-vehicle convoy bound for the Huntsville Unit; women leave from the Mountain View Unit. The only individuals who are informed of the transportation arrangements are the wardens of the affected units. The TDCJ does not make an announcement regarding what routes are used.

Upon arrival at the Huntsville Unit, the condemned is led through a back gate, submits to a cavity search, then is placed in a holding cell.

Before 2011, the condemned was given an opportunity to have a last meal based on what the unit's cafeteria could prepare from its stock. Robert Perkinson, author of Texas Tough: The Rise of America's Prison Empire, said in 2010 that most condemned prisoners ordered "standard American fare in heaping portions, the sorts of meals that recall a childhood Sunday." Many female prisoners under the death sentence did not take a last meal. However, Lawrence Russel Brewer, a white supremacist gang member convicted for the high-profile hate crime dragging death of James Byrd, Jr., ordered a large last meal and did not eat it before his execution. In response, John Whitmire, a member of the Texas legislature, asked the TDCJ to stop special meals. Whitmire stated to the press that Brewer's victim, Mr. Byrd, "didn't get to choose his last meal." The TDCJ complied. Brian Price, a former prison chef, offered to personally cook and pay for any subsequent special last meal since the TDCJ is not paying for them anymore. However, Whitmire warned in a letter that he would seek formal state legislation when lawmakers next convened if the "last meal" tradition wasn't stopped immediately. Afterwards, the TDCJ stopped serving special last meals, and will only allow execution chamber prisoners to have the same kind of meal served to regular prisoners. Many prisoners requested cigarettes (which were denied as TDCJ has banned smoking in its facilities).

Under Texas law, executions are carried out at or after 6 p.m. Huntsville (Central) time "by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead". The law does not specify the substance(s) to be used; previously, according to the Texas Department of Criminal Justice the chemicals used for the lethal injection were the commonly-used three-drug combination of (in order) sodium thiopental (a dose which sedates the offender, but not enough to kill outright), pancuronium bromide (a muscle relaxant which collapses the diaphragm and lungs), and potassium chloride (which stops the heartbeat). The offender is usually pronounced dead approximately seven minutes after start of the injection process; the cost for the three substances is $86.08 per offender. As a result of drug shortages, sodium thiopental was replaced by pentobarbital in 2011. Further shortages of this drug have pushed the cost of the drugs to approximately $1300 per offender. Still further shortages of pancuronium bromide (and the expiration of the existing stock) forced the state into switching to a single-drug protocol, using solely pentobarbital.

The only persons legally allowed to be present (none of whom can be convicts) at the execution are:

• the executioner "and such persons as may be necessary to assist him in conducting the execution"
• the Board of Directors of the Department of Corrections
• two physicians including the prison physician
• the spiritual advisor of the condemned
• the chaplains of the Department of Corrections
• the county judge and sheriff of the county in which the crime was committed
• no more than five relatives or friends of the condemned person

In response to victims rights groups, TDCJ adopted a board rule in January 1996 allowing five victim witnesses (six for multiple victims). Initially the witnesses were limited to immediate family and individuals with a close relationship to the victim, but the board rule was modified in 1998 to allow close friends of surviving witnesses, and further modified in May 2008 to allow the victim witnesses to be accompanied by a spiritual advisor who is a bona fide pastor or comparable official of the victim's religion.

Media coverage

Five members of the media are also allowed to witness the execution, divided equally as possible between the rooms containing the offender's and victim witnesses. Under current TDCJ guidelines, a representative of the Associated Press and a representative of The Huntsville Item (the local newspaper) are both guaranteed slots to witness an execution. Other media members must submit their requests at least three days prior to the execution date; priority will be given to media members representing the area in which the capital crime took place. College and university media are not permitted to be witnesses.

The Associated Press regularly sends a representative to cover executions; Michael Graczyk (from the AP's Houston office) is usually the representative sent, having attended over 300 executions in his career. The Huntsville Item generally covers all executions, regardless of county of conviction (Cody Stark is generally the representative). Other newspapers will only cover executions where the crime was committed within their general circulation area (the Houston Chronicle being one of them), and frequently even then will rely on the AP report.

Post-execution

Captain Joe Byrd Cemetery in Huntsville, the Texas Department of Criminal Justice prison cemetery for deceased prisoners, including executed prisoners, who are not reclaimed by their families

Upon the offender's death the body shall be immediately embalmed, and shall be disposed of as follows:

• A relative or bona fide friend of the offender may demand or request the body within 48 hours after death, upon payment of a fee not to exceed US$25 for the mortician's services in embalming the deceased; once TDCJ receives the receipt the body shall be released to the requestor or his/her authorized agent.
• If no relative or bona fide friend requests the body, the Anatomical Board of the State of Texas may request the body, but must also pay the US$25 fee for embalming services and TDCJ must receive the receipt prior to delivery.
• If no relative, bona fide friend, or the Anatomical Board requests the body, TDCJ shall cause the body to be "decently buried" with the embalming fee to be paid by the county in which the indictment resulting in the conviction occurred.

The TDCJ keeps an online record of all of its executions, including race, age, county of origin, and last words.

The main TDCJ prison cemetery for prisoners not picked up by their families after death is the Captain Joe Byrd Cemetery in Huntsville. Headstones of death row prisoners have prison numbers with the beginning “999”, a state designation for a death row inmate, or they have the letters "EX" or "X".

Franklin T. "Frank" Wilson, an assistant professor of criminology at Indiana State University, and a former PhD student at Sam Houston State University, stated that about 2% of the people buried at the Byrd Cemetery had been executed, but the public believes that all executed prisoners are buried there because the Huntsville Unit, the site of execution in Texas, is in close proximity. Most executed prisoners are claimed by their families. While most prisoner funerals at Byrd Cemetery are held on Thursdays, in order to allow families of executed prisoners to make a single trip to Huntsville instead of two separate trips, the burial of an executed prisoner not claimed by the family is usually done the day after his or her execution.

Opposition

See also: Capital punishment debate in the United States

The Texas Coalition to Abolish the Death Penalty, a 501(c)(3) grassroots membership organization was founded in 1998. TCADP has members across the state of Texas working to educate their local communities on the problems of the Texas death penalty. TCADP hosts multiple education and training opportunities each year around the state including releasing an annual report on December 7 and a day-long annual conference which includes workshops, panel discussions, networking and awards. The conference is held in Austin during legislative years and in other Texas Cities in non-legislative years (2012: San Antonio). TCADP opened a state office in Austin in 2004 with a paid program coordinator and hired an executive director in 2008. TCADP is affiliated with the National Coalition to Abolish the Death Penalty.

File:6thmarch.jpg

Protesters gather at the front gate of the Texas Governor's Mansion during the "6th Annual March to Stop Executions

The March to Abolish the Death Penalty is the current name of an event organized each October since 2000 by several Texas anti-death penalty organizations, including Texas Moratorium Network, the Austin chapter of the Campaign to End the Death Penalty, the Texas Death Penalty Abolition Movement and Texas Students Against the Death Penalty. Anti-Death Penalty Alternative Spring Break is an annual event started by Texas Moratorium Network in 2004 and now co-organized by Texas Students Against the Death Penalty. It serves as a training ground for students who oppose the death penalty.

The Death Row Inner-Communalist Vanguard Engagement (D.R.I.V.E.) consists of several male death row inmates from the Polunsky Unit. Through a variety of non-violent strategies, they have begun launching protests against the perceived bad conditions at Polunsky, in particular, and capital punishment, in general. They actively seek to consistently voice complaints to the administration, to organize grievance filing to address problems. They occupy day rooms, non-violently refuse to evacuate their cells or initiate sit-ins in visiting rooms, hallways, pod runs and recreation yards when there is the perception of an act of abuse of authority by guards (verbal abuse; physical abuse; meals/recreations or showers being wrongly denied; unsanitary day rooms and showers being allowed to persist; medical being denied; paper work being denied; refusing to contact higher rank to address the problems and complaints) and when alleged retaliation (thefts, denials, destruction of property; food restrictions; wrongful denials of visits; abuse of inmates) is carried out in response to their grievances.

Alleged execution of innocent persons

See also: Wrongful execution

Cameron Todd Willingham

One notable case involves Cameron Todd Willingham, who was executed by lethal injection on February 17, 2004 for murdering his three daughters in 1991 by arson, but where a 2009 article in The New Yorker, and subsequent findings, have cast doubt on the evidence used in his conviction.

In 2009, a report conducted by Dr. Craig Beyler, hired by the Texas Forensic Science Commission to review the case, found that "a finding of arson could not be sustained". Beyler said that key testimony from a fire marshal at Willingham's trial was "hardly consistent with a scientific mind-set and is more characteristic of mystics or psychics”.

Governor Rick Perry expressed skepticism of Beyler's findings. He stated that court records showed evidence of Willingham’s guilt in charges that he intentionally killed his daughters in the fire. Perry is quoted in the report as stating of Willingham, "I’m familiar with the latter-day supposed experts on the arson side of it," and Perry said that court records provide "clear and compelling, overwhelming evidence that he was in fact the murderer of his children." The Corsicana Fire Department also released a 19-page rebuttal of Beyler's report, stating that the report overlooked several key points that would show Willingham to be guilty.

On July 23, 2010, the Texas Forensic Science Commission released a report saying that the conviction was based on "flawed science" and that there is no indication that the arson authorities were negligent or committed willful misconduct. Willingham remains the only person in the United States executed since 1976 for murder by arson.

Carlos DeLuna

Carlos DeLuna was convicted of murder and executed in 1989 for the killing of a 24-year-old gas station attendant on the evening of February 4, 1983. Since DeLuna's execution by lethal injection, doubts have been raised about the conviction and the question of his guilt. An investigation published by the Columbia Human Rights Law Review in May 2012 has strengthened these claims of innocence by detailing a large amount of evidence suggesting the actual murderer was Carlos Hernandez, a similar-looking man who lived in a nearby neighborhood.

Frances Newton

Frances Newton was executed in 2005 despite much doubt about her guilt, and much confusion over the actual weapon used in the murder(s) for which she was sentenced to death.

Johnny Frank Garrett

Johnny Frank Garrett was executed in 1992 for killing 76-year-old nun Tadea Benz in Amarillo in 1981. In 2004, after DNA-analyses, Leonicio Perez Rueda was found to be the murderer of Narnie Box Bryson, who was killed four months before Sister Benz. After being confronted, the murderer confessed to killing Bryson. Rueda is also believed to have been the real murderer of Sister Benz.

Execution of Mexican nationals

Further information: José Medellín, Humberto Leal Garcia, and Édgar Tamayo Arias

Three Mexican nationals have been recently executed in Texas – José Medellín in 2008, Humberto Leal García in 2011, and Édgar Tamayo Arias in 2014. (Prior to Medellin v. Texas, four Mexican nationals were executed by Texas, who were Ramón Montoya, Irineo Montoya, Miguel Flores, and Javier Suárez Medina, in 1993, 1997, 2000 and 2001 respectively.) At the time of their arrests in the early 1990s, neither had been informed of their rights as Mexican nationals to have the Mexican consulate informed of the charges and provide legal assistance. A 2004 ruling by the International Court of Justice concluded that the U.S. had violated the rights of 51 Mexican nationals, including Medellín and García, under the terms of a treaty the U.S. had signed. In response to the ruling, the Bush administration issued an instruction that states comply, but the U.S. Supreme Court ruled that he had exceeded his authority. The Supreme Court also ruled in Medellin v. Texas that the treaty was not binding on states until Congress enacted statutes to implement it, and in Leal Garcia v. Texas declined to place a stay on the executions in order to allow Congress additional time to enact such a statute. A 2008 ruling by the International Court of Justice asked the United States to place a stay on the executions, but Texas officials stated that they were not bound by international law.

García supporters complained about the use of bite mark analysis and luminol in determining his guilt. However, García accepted responsibility for the crimes and apologized before his execution.

Regarding the García execution, Texas Governor Rick Perry stated that "If you commit the most heinous of crimes in Texas, you can expect to face the ultimate penalty under our laws."

See also

• List of death row inmates in Texas
• Lists of people executed in Texas
• Michael Graczyk, Houston-based reporter for the Associated Press, who has witnessed over 300 executions in Texas as the AP's designated representative
• The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990
• Crime in Texas
• Law of Texas
• List of wrongful convictions in the United States
• List of exonerated death row inmates

Further reading

• Harnsberger, R. Scott. A Guide to Sources of Texas Criminal Justice Statistics [North Texas Crime and Criminal Justice Series, no.6]. Denton: University of North Texas Press, 2011. ISBN 978-1-57441-308-3
• Stolzenberg, Lisa and Stewart J. D'Alessio (criminal justice professors from Florida International University School of Policy and Management). "Capital punishment, execution publicity and murder in Houston, Texas." (Archive). Journal of Criminal Law and Criminology. Northwestern University School of Law, January 1, 2004. Volume 94, Issue 2 (Winter), Article 4. Retrieved on May 15, 2015. Posted by Gale Group/Cengage Learning. p. 351-380. Available at JSTOR. Available at Thefreelibrary.

External links

• Death Penalty in Texas - University of Texas School of Law Tarlton Law Library, Jamail Center for Legal Research
• Death Row Information, by the Texas Department of Criminal Justice
• Texas Assessment on the Death Penalty American Bar Association
• Texas Death Penalty Blog, by The Dallas Morning News
• "Inside the Texas Death Chamber", photo gallery accompanied by audio track, The Associated Press
• Texas execution chamber today Texas in 1982
• "'Once every three weeks, I watch someone die'": first-person narrative by Associated Press reporter Michael Graczyk
• Narratives of family members and friends of people who have died in acts of violence, ex-cons, lawyers, educators and activists from the Texas After Violence Project