Arguing against the death penalty in Texas is such a bootless enterprise that over the years, I have worn down to merely advocating that we not kill (a) the innocent; (b) the mentally retarded; and (c) people who are so mentally ill that they think they’re black dogs in the seventh circle of hell and run around on all fours barking. As you know, these arguments have not prevailed, and we continue to bump off people in all three categories.
So imagine my surprise when we finally got a Death Row stay out of the U.S. Supreme Court (which has refused to hear the most egregious cases) on account of an international treaty. Last month, the court ruled that Canadian Joseph Stanley Faulder could not (yet) be executed by the State of Texas. I was especially surprised, because the very same treaty was ruled inapplicable to the Mexican citizen we offed in June of ’97. Not to say that the courts favor white Canadians over brown Mexicans or anything like that, but you will recall that the Mexican government did protest strenuously at the time, for all the good it did. The Canadians have been equally upset. I hate to break this to you, but in many places of the world, the death penalty is considered a savage, barbaric remnant of ancient and medieval times.
Our Governor replied to concerned Canadians with something of a swagger, “If you’re a Canadian and you come to our state, don’t murder anybody.” Sound advice. But our own U.S. government, you may recall, raised Cain with the government of Singapore for caning a delinquent American teenager, and we also raised some when Turkey decided to amputate the feet of two Americans held in prison there. As a percipient letter to the editor recently noted, “I guess it all depends on how you define cruel and unusual punishment.”
Under the treaty called the Vienna Convention, a foreign citizen arrested here is entitled to contact diplomats from the home country; the Canadians’ argument is that they could have gotten their man a decent lawyer (Faulder’s public defender later admitted in court testimony that he had done a poor job) and could have provided character witnesses for the sentencing phase. (The guy’s guilt is not in question.)
But in the case of Gary Graham, guilt is the issue, and the Fifth U.S. Circuit Court of Appeals – not exactly a local chapter of Prisoners’ Friends – has granted a stay in that case. It is often argued that Graham’s case has been litigated out the wazoo – thirty-five judicial reviews, ten boxes of documents – but “judicial review” in death penalty cases, as you may know, is pro forma. Among other handicaps, if you’re trying to prove your innocence, you have thirty days from sentencing to find new evidence, and good luck to you.
Meanwhile, the Texas Board of Pardons and Paroles, which has granted clemency in exactly one case over four years and fifty-seven applications, is under heavy fire. (The one case, by the way, was the pathetic matter of the accused serial killer Henry Lee Lucas. If you want to know how easily Texas justice can go astray in murder cases, study the Lucas affair; since Lucas could prove he was in Jacksonville, Florida, at the time the Texas murder took place, and two attorneys general admitted it, the board didn’t have much choice about clemency.)
At issue is the board’s secrecy and lack of accountability. U.S. District Judge Sam Sparks of Austin, who was put on the bench by President Bush, called the board’s methods “appalling.” An American Bar Association official called the panel’s activities “a farce,” and two state judges in the past year have found the board in violation of both the Open Meetings Act and the Texas Constitution.
Sparks granted a stay to two Death Row inmates who were seeking information about the board’s procedures. It took an order from the judge before the board produced the documents that had been subpoenaed. However, Sparks finally concluded that the board does meet the minimum level of due process required under the vague guidelines set by the Supremes.
“Minimum” didn’t sound good enough to state Representative Elliott Naishtat, who has filed a bill to open up the process. My bet is that if and when we do open up the process, we’re going to find that board members are seriously overworked, and so overloaded that they don’t have time to give real consideration to any request.
Texas has executed 117 inmates since 1992, far more than any other state; the next closest is Virginia, with forty-five executions. And we have 456 people waiting on Death Row, so you can see how we have become an international symbol for promiscuous use of the death penalty. Because we are known to put innocent people on Death Row (Randall Dale Adams, for example) and because our review procedures are so limited and because our clemency procedure takes no notice of mental illness or retardation – well, that’s how come we look like week-old roadkill to the rest of the world.
Molly Ivins is a former Observer editor and a columnist for the Fort Worth Star-Telegram. Her latest book is You Got to Dance With Them What Brung You. You may write to her via e-mail at [email protected].