Well-meaning people of good conscience can muster a defensible argument for the death penalty. It goes like this: From time to time, we’ll be confronted with folks who are so dangerous, or commit crimes so heinous, that even a civilized society is best rid of them. Ted Bundy, Timothy McVeigh, or John Wayne Gacy are exemplars for this line of thinking.
Several assumptions underpin the argument—that executions would be rare, reserved for the most extreme cases. The condemned would clearly be guilty, and would receive a fair trial. Agree with it or not, but as pro-death penalty arguments go, this one at least carries a tinge of principle, unlike arguments based on deterrence (a myth) or retribution (rationalized bloodlust).
But the death penalty in Texas has long since broken free of even this tenuous tether to morality. We ship “killers” to death row by the hundreds. Some are so crazy they hold regular conversations with inanimate objects. Several are actually innocent. We’d still be executing the mentally retarded and teenage offenders if the U.S. Supreme Court hadn’t made us stop.
We provide capital murder defendants incompetent or underfunded lawyers to square off against the might of the state. Elected prosecutors and elected judges have little incentive to safeguard the rights of the accused. And after they’re convicted, the Texas Court of Criminal Appeals reviews their cases caring only that the convictions are technically legal, not actually just.
By becoming the country’s most prolific executioner, Texas has also become the best cause for hope that the death penalty might again be halted in the United States. Not for moral reasons. The death penalty argument isn’t really about principles anymore. It’s about how badly we’ve screwed up the administration of capital punishment.
Privately, almost guiltily, many abolitionists will admit that they nurture a bittersweet dream. Texas, by its excesses, will compel the nation’s highest court to simply step up and say enough is enough, you’ve bungled the whole thing, and you have to stop.
Until recently, there were grounds for that perverse optimism. Time and again over the past decade, the court made known its displeasure with Texas—and other states at times—for failing to make sure capital murder defendants have competent lawyers and get a fair shake. And the court did stop executions of the mentally retarded and condemned inmates who committed their crimes as teenagers. Death penalty opponents watched hopefully as the justices seemed to inch closer and closer to euthanizing the practice.
But the margins were almost always narrow, often 5-4 votes. And often one of the five was Justice Sandra Day O’Connor, whose discomfort with the administration of the death penalty became increasingly clear over time. Now she is gone. So is late Chief Justice William Rehnquist. In their places sit two young, ideological Bush appointees—Chief Justice John Roberts and Justice Samuel Alito. That sound you hear is the long-held dreams of abolitionists crashing to the ground.
Texas has several more death penalty cases up before the high court this term (writer Anthony Zurcher explores them in this week’s issue), and no one knows for sure where Roberts and Alito will come down. Death penalty opponents are not optimistic. The newly configured court could very well decide to back off and let states mete out capital punishment pretty much as they see fit. We know what that means in Texas. Which is why it is time for well-meaning people of good conscience who support the death penalty to join the abolitionist side. Capital punishment might be justifiable in theory. But as practiced in Texas it is not, and as history has shown, it never will be.