Death Penalty Reform Bill Gets Watered Down to ‘Nothing’ Before Passing Senate

After passing the House, HB 1139, meant to reform how Texas decides whether a defendant is too intellectually disabled to execute, was significantly softened in Senate committee.


Above: Bobby Moore, Attorney General Ken Paxton

A House bill meant to reform Texas’ death penalty procedures for intellectually disabled defendants was amended in the Senate to the point that criminal justice reformers are now calling it “worthless.” With the end of the legislative session quickly approaching, the changes will likely derail one of the biggest priorities for capital punishment reformers this year.

The U.S. Supreme Court ruled in 2002 that it’s unconstitutional to sentence intellectually disabled people to death, but it left states to create their own criteria for determining whether a defendant is intellectually disabled. The Texas Court of Criminal Appeals in 2004 adopted the “Briseno factors” to determine intellectual disability, though they are based on outdated medical standards and stereotypes, including a reference to the character Lennie from John Steinbeck’s Of Mice and Men.

In a 2017 ruling on the case of death row inmate Bobby Moore, the U.S. Supreme Court declared the Briseno factors invalid for determining a defendant’s eligibility to face capital punishment. The state’s highest criminal court and Attorney General Ken Paxton have claimed Moore is not intellectually disabled and fought to uphold his death sentence; the state court has twice been overruled by the Supreme Court, which determined in February that Moore is indeed intellectually disabled.

senfronia thompson
State Representative Senfronia Thompson, D-Houston  Kolten Parker

Moore’s case laid the foundation for House Bill 1139, by Houston Democrat Senfronia Thompson. The version that passed the House — on a vote of 102-37 on April 30 — would have allowed a pretrial hearing to determine whether a defendant has an intellectual disability and therefore is ineligible for the death penalty. But all language related to a pretrial hearing was stripped from the proposal in the Senate Committee on Criminal Justice. The change came after Houston Republican Senator Joan Huffman, the committee’s vice chair and a former Harris County prosecutor, voiced her opposition.

The version substituted in committee preserved only the parts of the bill that codify the Supreme Court’s decisions that intellectually disabled people are exempt from the death penalty and that courts must use prevailing medical standards. That essentially means the bill “does nothing,” said Elsa Alcala, a Republican and former Court of Criminal Appeals judge. Alcala gained notoriety after issuing opinions questioning the constitutionality of the Texas death penalty. She now lobbies for death penalty reforms on behalf of Texas Defender Services, a nonprofit that represents death row inmates.

“The whole point of the bill has now been taken out,” Alcala told Senate committee members on Friday. “It’s worthless. It’s not worth the paper it’s written on.”

elsa alcala, texas defender service, death penalty
Elsa Alcala at the Texas Capitol.  Julia Robinson

The measure would have saved the state time and money, Thompson, the bill’s author, told the House Criminal Jurisprudence Committee in March. Capital murder cases cost the state about $2.5 million each, she said, and they’re more expensive than noncapital trials because of longer jail stays for defendants before and during trials, pretrial preparations and higher attorney fees.

Defendants found to be intellectually disabled would not walk free; they can be sentenced to life without parole if convicted. The bill had support from criminal justice reformers and many prosecutors who said it would resolve the patchwork practices of courts across the state. In some cases, juries don’t consider a defendant’s intellectual disability until the punishment phase of a trial.

“It’s worthless. It’s not worth the paper it’s written on.”

Prevailing medical standards for establishing intellectual disability take into account a person’s everyday behavior, academic performance and age of diagnosis — all factors that are irrelevant to the offense the defendant is accused of, Alcala told Senate committee members on May 8. But it would be nearly impossible to convince a jury to divorce the offense from a defendant’s everyday behavior, Alcala said, and that is why she favors a pretrial hearing conducted by a judge, as prescribed by the original HB 1139.

State Senator Joan Huffman
State Senator Joan Huffman  Texas Senate

But Huffman chafed at the suggestion, saying the bill would allow an “activist judge” to decide that a defendant has an intellectual disability solely to avoid leveling a death sentence. After a brief argument between Huffman and Alcala, Houston Senator John Whitmire, the Democratic chair of the committee, moved to close public testimony, though several witnesses — all registered in favor of the bill — were waiting to testify. “I’m done, I’ve made my point, and everybody knows where I stand,” Huffman said.

Huffman was a prosecutor in the 1997 trial of Duane Buck, a black man who was sentenced to death for killing his ex-girlfriend and her friend in front of the ex-girlfriend’s children. In cross-examination of psychologist Walter Quijano, Huffman asked whether “the race factor, black, increases the future dangerousness for various complicated reasons.” Quijano said yes.

Huffman wasn’t present when Whitmire brought HB 1139 back up in committee on Friday, but Houston Democrat Borris Miles, the bill’s Senate sponsor, thanked her for helping draft the new language of the committee substitute. Then he revealed that the updated bill does not address a pretrial procedure for determining intellectual disability.

State Senator John Whitmire, D-Houston  Kolten Parker

A stunned Alcala then testified, changing her position on the bill from “for” to “against.” After Alcala told the committee members that the new version of the legislation was worthless, Whitmire scolded her for being “halfway rude.”

“You’re not going to get your way, and [Miles is] going to run with what he thinks is the best that he can clear the Senate floor with,” Whitmire said.

Alcala apologized, then said: “I may just join you on the bench next time to make sure that I prevail. In other words, maybe I’ll just run and make sure I can have my voice heard more clearly.”

The gutted version of HB 1139 passed the Senate Wednesday night. It now heads back to the House, where lawmakers who passed the original version will need to accept the changes before Friday for it to advance to the governor’s desk. Thompson, the bill author, did not respond to a request for comment about whether she will approve the amended version.

Another death penalty reform bill appears to have died on arrival at the Senate. House Bill 1936, by Dallas Democrat Toni Rose, would have exempted people with severe mental illnesses from the death penalty if they showed psychotic symptoms at the time of the offense. The original version, like Thompson’s bill, would have allowed a pretrial hearing to determine mental illness, but that provision was removed in committee. The bill passed the House in early May by a thin margin, 77-66, and has not been referred to a Senate committee, rendering it dead.

“Maybe I’ll just run and make sure I can have my voice heard more clearly.”

There’s a “centralization of power” in the Senate that has allowed a handful of people to control criminal justice legislation, said Amanda Marzullo, executive director of Texas Defender Services. And those few people “just happen to be more conservative than the Capitol and Texas in general.”

She said some senators, unlike most representatives, have failed to understand the purpose of the bills. “We’ve been very clear that both bills are not about the morality of the death penalty and whether we should have it,” Marzullo said. “It’s about ensuring that we implement it in a way that complies with the Constitution.”