Capitol Offenses

It was an argument that might have been advanced by Glen Maxey or Elliott Naishtat – or any of a half-dozen House liberals. For more than a decade (the witness at the Senate Criminal Justice Committee argued), mental health advocates have worked to ensure that mentally retarded people are not treated differently than others, that they are not singled out as second-class citizens.

“The mentally retarded want to be treated equally,” he concluded. “They want to be treated as individuals who have the same rights and responsibilities as everyone else.” The witness was Williamson County Assistant District Attorney John Bradley – making the argument for the execution of mentally retarded defendants convicted of capital murder. Bradley was deadly earnest, even going so far as to suggest that if people who are mentally retarded get a free ride on the death penalty, the door will be left wide open for others to line up before legislative committees in years to come.

If you ever need to be reminded of what a mean-spirited society this is, drop in on any one of two dozen daily committee hearings in the Capitol complex. If it is not opposition to Senator Rodney Ellis’ bill exempting the mentally retarded from execution, or opposition to Senator Eddie Lucio’s bill that would provide life without parole as an alternative to execution, it’s the corporate proposal to muscle the state out of radioactive waste disposal licensing and make it a completely private for-profit operation that would turn commercial and Department of Energy rad waste into shareholder dividends. And there are the leaks from the ongoing meetings on welfare reform, where the Governor’s negotiators are proposing Draconian sanctions for the families of anyone who ever cheats on welfare. Legislative politics in the Second Gilded Age are best described by a line from Stephen Sondheim’s Grand Guignol musical Sweeney Todd – a darkly humorous struggle between “who gets eaten and who gets to eat.”

If you can’t get a seat at a hearing, go to the Legislature on line, and click on House Bill 1. The House passed an appropriations bill in mid-April, in a day-long session so quiet and infused with consensus that it might have passed for a Quaker meeting. Granted, all of the fighting was over and legislators only had to sit at their desks and vote – while those familiar with the bill’s contents watched to ensure that no interest group would use an amendment, or an amendment to an amendment, to achieve something that hadn’t been agreed to in the Appropriations Committee.

Chapter XI of the bill is the catch-all for every item “considered to be desirable and necessary, but not budgeted elsewhere in this act.” The grand total, for the two years covered by the budget, is $6.8 billion. And while the estimate of the “surplus” Governor Bush intends to raid to lower property taxes is $5.6 billion, a look at Chapter XI suggests that there is no surplus – rather a calculated failure to provide funding for the most basic services of government.

The largest “desirable and necessary but not budgeted” category in the budget passed by the House is education. What is budgeted is $2.97 billion short of what is needed. The second largest underfunded budget category is health and human services, which comes up $2.72 billion short. The third largest specific budget category on the Chapter XI “wish list” is protection of natural resources, which came up $212.5 million short. Texas is dead last among the fifty states in per capita government spending – there is no fifty-first place. It is thirty-eighth in teacher salaries, forty-seventh in spending on social services, and forty-ninth in spending on environmental protection.

But there is no narrative in numbers, and the real tragicomedy at the Lege has thus far been playing in committees. The House is just beginning to pass bills, and in the Senate the two-thirds vote required to bring up a bill almost guarantees that a decision has been made before a bill gets to the floor.

When Houston Senator Rodney Ellis proposed to end the execution of mentally retarded people who might not fully comprehend the nature of their crime and might therefore be unable to participate in their own defense, he knew it was going to be difficult to get his bill out the committee. “He’s hoping to appeal to what Lincoln once described as the better angels within us,” said an Ellis aide. Lincoln may never have known anyone quite like the Williamson County district attorney, who made an impassioned plea for continued execution of the mentally retarded, warning that if the bill is passed, those on Death Row who are mentally retarded will be in court citing the equal protection clause and demanding retrials.

In an attempt to get one more committee member to sign on with the bill, Keith Hampton of the Texas Association of Criminal Defense Attorneys described one mentally retarded client he had represented, who was convicted and is currently serving time. “He calls me every week,” Hampton said. “Collect. It’s the same thing: ‘Hey, this is Jesse. Want me to draw you a cat?’ Then he mails me a drawing of a cat.”

Asked by committee chair Ken Armbrister if he wanted a vote on the bill, Ellis responded: “Now? Before this committee? If I asked for a vote I could be covered by the provisions of this legislation.” When Plano Senator Florence Shapiro raised a question about the scheduling of the vote, Ellis said, “Now I know you’re over seventy.” Shapiro, who supports execution of the mentally retarded and admittedly looks much older than her forty-nine years, seemed offended, until Ellis continued. “Seventy on the I.Q. test,” he said. Ellis left his bill pending. “He doesn’t have the votes to get the bill out of committee,” a Senate aide said. “And they don’t have the votes to kill it.”

At the same hearing, Brownsville Senator Eddie Lucio laid out a bill that would provide life without parole as an alternative to execution. Unlike Austin Representative Elliott Naishtat, who introduced the same bill in the House and is opposed to state executions, Lucio is “very much in favor of the death penalty.” The Brownsville Senator described his bill as “truth in sentencing” legislation. Under current law, he said, “a jury does not have the right to know that there is no such thing as a true life sentence in Texas.” (Criminals given life sentences are not eligible for parole for forty years, but defense attorneys are not allowed to tell this to juries – which often leads jurors who believe parole is available in less than ten years to hand down death sentences.)

Lucio even tried to reassure death penalty advocates that it is unlikely that life without parole will erode public support for executions. He cited a Scripps-Howard poll which found that 84 percent of Texans favor life without parole – and that 73 percent of the same group polled “would continue to support the death penalty if life without parole was a law in Texas.” Lucio even brought in a witness from the faculty of Sam Houston State University in Huntsville, considered by many to be an extension of the Texas Department of Criminal Justice. The combination of the death penalty and life without parole as an alternative, said Dr. Dennis Longmeyer, “would not result in a disaffection for the death penalty.”

The debate over life without parole illustrates another facet of the Governor’s use of the Legislature as an extension of his political campaign. Beyond austerity budgets and an ongoing attempt to purge the welfare rolls is the Governor’s need to be “tough on criminals.” That requires more than a yellow rose garden embrace of Rudy Giuliani. Both Republican women on the Senate Criminal Justice Committee – Senators Shapiro and Jane Nelson – have proposed life without parole legislation. But not while George W. is running for president. “They are instructed to vote against it,” one source said, “because the Governor doesn’t want to have to sign it or veto it.” Many death penalty opponents see life without parole as an opportunity to move the state from execution to incarceration, and thus lower the rate of executions. Signing such a law might make the Governor seem soft on crime.

The most peculiar argument against Lucio’s bill had to do with compassion –for the Texas taxpayer. Walker County D.A. David Weeks not only argued that such a law would render rehabilitation meaningless (as if execution encouraged rehabilitation), he insisted the state must to be able to parole convicted murderers when they grow old and occupy space in prison geriatric wards. “We need to be able to put them in private institutions where Medicaid will pay for them … we’ve got to parole out the aged and infirm,” Weeks said. Lucio’s bill was also left pending before the committee.

Out of committee and on its way to a vote in the House is Warren Chisum’s bill that would begin again the process of licensing a low-level radioactive waste disposal site. There is huge profit potential in rad waste, and if their lobbyists were billing by the hour, Waste Control Specialists and Envirocare ran up a big tab April 8, when Chisum’s House Environmental Regulation Committee heard testimony on the radioactive waste bill. Watching the process were two former speakers, Gib Lewis and Billy Clayton; one former Speaker Pro Tem, Hugo Berlanga; former Lieutenant Governor Bob Bullock’s lifetime aide, Tony Proffitt; and Hilary Doran, a former legislator who has also served on the state racing commission. All are waste contractor lobbyists.

Only “Speaker” Clayton spoke, arguing the committee should open the loophole it closed by setting strict limits on the amount of waste that can come from states other than Texas, Maine, and Vermont – which are participating in the disposal Compact that designates Texas the compact’s waste dump state. These dumps thrive on volume, Clayton argued, suggesting that more waste means lower disposal costs.

Fort Worth Democrat Lon Burnam added two amendments. One would require the state to consider the geology and hydrology of any proposed nuclear waste disposal site – a provision not in the draft of the bill under consideration. His second amendment would require that “assured and isolated retrievable waste” would not be buried and thereby made unretrievable. Burnam also proposed requiring that the Texas Natural Resource Conservation Commission, rather than the Department of Health (which has a worse track record than the T.N.R.C.C.), hold the license for any Texas radioactive waste dump. When that amendment was rejected by committee chair Chisum, Burnam said he “reserves the right to come back and bring it up on the floor.”

“I guarantee it a cold, cold reception there,” Chisum said.

The bill is a mixed bag. It includes “above ground and retrievable” storage (which most environmentalists argue is safer than burial in trenches) as an option. And as one House aide said, “At least it doesn’t let private companies hold the licenses.” Not yet. Waste Control Systems owns a dump in the Panhandle and wants a private license to accept U.S. Department of Energy radioactive waste. The D.O.E. is rewriting its rules and moving toward private dumps, rather than state facilities operated by private contractors. W.C.S. is said to be considering offering a “private license” amendment on the House floor, where it will probably get a warmer reception than the environmental protections Burnam said he would offer.

Sondheim’s Mrs. Lovett killed Londoners – then ground them up and served them in the “best pies in London.” In the Governor’s Grand Guignol farce in Austin, Bush’s Arlene Wohlgemuth is cast in a more pernicious role. Wohlgemuth, a Burleson Republican, objected to a resolution that Houston Democrat Garnett Coleman had placed on the local and consent calendar. The resolution simply noted that there are 1.5 million children without health insurance in Texas and urged that funding be made available to help them get insurance. Wohlgemuth, never as funny nor charming as Mrs. Lovett, went ballistic. “Those numbers are based on a survey,” she said. “I do however, disagree with the numbers and their claims to know how many children do not have health insurance.” Wohlgemuth added that we cannot assume that children are poor just because they do not have health insurance. “Their parents might be making $10,000 a year. Or they might be making $1 million a year. It is still our right in this country not to have health insurance.” Wohlgemuth’s comments are a preview of debate over the federal/state Children’s Health Insurance Program (CHIP). And again she won the heart of the Governor, who kicked off the session with a proposal that would deny 200,000 children access to the health insurance program.