Capital Forecast


Perhaps due to the unwelcome glare of the national spotlight, the Texas killing machine sputtered somewhat in 2001. Last year, for the first time in recent memory, Oklahoma executed more inmates than Texas. Now the machine is showing signs of cranking up again. As we go to press (May 1), nine executions are scheduled for the next 31 days. Napoleon Beazley, who was a juvenile when he committed murder, has just had a new execution date set for May 28. And yet another jury selection is beginning for John Paul Penry, a mentally retarded death-row inmate whose conviction has been thrown out twice.

Yet the moment seems ripe for reform. Nationwide, the 100th wrongfully convicted person was recently released from a death row, and Illinois Governor George Ryan made news last month by extending his state’s moratorium on the death penalty. The reform movement seems to be gaining momentum in Texas as well. A ban on the execution of the mentally retarded finally made it through the Legislature last year, only to be vetoed by Governor Perry. The governor’s race might make the difference next time around: Democratic candidate Tony Sanchez has indicated he would have supported that measure. It may be a moot point if the U.S. Supreme Court finds the execution of the mentally retarded unconstitutional in Atkins v. Virginia, which is currently before the court (See “The Dean of Death Row,” p. 8).

Steve Hall of StandDown Texas is cautiously optimistic about the prospects for another reform that almost passed last session: life without parole. Of the 38 states that have the death penalty, Texas is one of only three that do not offer juries the option of sentencing a defendant to life with no possibility of parole, instead of death. (Life is currently an option for juries, but Texas law makes lifers eligible for parole after 40 years.) Last year’s bill was defeated in the House by just seven votes.

Last session also saw a good DNA bill passed in Texas. The technology is promising–there have now been at least 100 convictions overturned nationwide on DNA evidence–but DNA is not a panacea. Hall estimates that only perhaps a quarter of all death penalty appeals involve DNA evidence, and the Texas Court of Criminal Appeals has already undermined the new law by restricting access to testing. Hall puts more stock in continuing to bolster indigent defense in the state court system. Texas’ first state-funded indigent defense system went into effect last January, and a task force is currently meeting to decide how to distribute the funds. “Because Texas tried to do the death penalty on the cheap for so long, with attorneys who were not qualified, you just end up with so many problems,” Hall said. “And it costs the state more in the end.” (See Open Forum, page 12.)

Hall believes the cumulative effect of 25 years of experience with the death penalty and the documentation of continued failings in the system are finally starting to bear some fruit. Key Democrats stand to lose committee chairmanships next year, which does not bode well for reform, yet even some unlikely Texans are jumping on board. Earlier this year, former Texas federal judge (and past FBI director) Bill Sessions and former Bexar County District Attorney Sam Millsap, Jr. lent their support to “Mandatory Justice,” a list of death penalty reforms proposed by the Death Penalty Initiative in Washington, D.C. “As people learn more about the system, the problems we have in its application, its cost, and as they continue to see innocent American men and women sent to death row,” Hall said, “people learn and they begin to take it seriously.” –N.B.