The Dissenter

Texas’ highest criminal court turned Elsa Alcala into one of the state’s most prominent death penalty critics.

elsa alcala, texas defender service, death penalty
Elsa Alcala at the Texas Capitol. Alcala is now a policy director with the Texas Defender Service and is lobbying state lawmakers for death penalty reform.  Julia Robinson

Elsa Alcala began her legal career in the Harris County DA’s office, joining a prosecutorial machine famous for cranking out death sentences. Three decades later, she’s a prominent critic of the death penalty.

Alcala, a Republican, says serving as an appellate court judge opened her eyes to systemic inequities in the criminal justice system. During her seven years on the Court of Criminal Appeals, Texas’ highest criminal court, she became known for lengthy dissents that challenged other judges, particularly in high-stakes appeals from death row. In one 2016 dissent, she questioned whether the death penalty in Texas is even constitutional. And in one of her final opinions last year, Alcala broke from a majority ruling that would have allowed for the execution of a mentally disabled man.

Alcala, who chose not to run for re-election last year, has spent this legislative session lobbying for death penalty reforms at the Capitol on behalf of Texas Defender Service, a nonprofit that represents capital defendants. She spoke with the Observer about her evolution from a prosecutor seeking death sentences to one of the most prominent voices questioning capital punishment in Texas.

Your career unfolded alongside some big changes in the criminal justice system. How did your thinking evolve over time?

I started out as a prosecutor under [former Harris County District Attorney] Johnny Holmes in ’89. It was basically pre-DNA, so back then the gold standard was an eyewitness. If you had an eyewitness, you thought, ‘Wow, we’ve got a rock-solid case.’ The hard cases were the circumstantial evidence cases. It sounds so simplistic today, but that’s where we started.

During the [job] interview they asked, ‘How do you feel about the death penalty?’ I said I was against it, they asked me why, and I didn’t really know, so I just answered what the law school professors had told me: that it didn’t make fiscal sense. That seemed to satisfy them that I wasn’t just some bleeding-heart liberal. I remember one of the senior lawyers said something like, ‘We’ll see what you think in five years.’

I started off handling misdemeanors, little bitty property crimes and speeding cases, but within five years I was trying murder cases. I tried three death penalty cases, and I got the death penalty on two of them. One was Eddie Capetillo, who was 17 years old at the time of the crime. I have kids now who are 19 and 16 years old. The thought of using the death penalty on somebody that young is just horrific to me now, but I wasn’t really thinking about it from that point of view then.

Back then I was looking at the cases really only from the point of view of the victims. One was a 9-year-old girl shot between the eyes. There was a 7-year-old boy killed in the same incident. Just horrible crimes. I really wasn’t thinking about the defendant beyond the technical analysis — did he intend to commit the crime, what are the mitigating factors, is he a future danger?

So you didn’t start thinking differently about the system until your time as a judge?

After nine years at the DA’s office I became a trial judge for three and a half years. Then I went on to the court of appeals for nine years. It was just general jurisdiction, which was probably the best thing that ever happened to me, because I was exposed to civil law and some of the brightest civil lawyers around. You’d see drug-addicted parents, kids removed to go live with grandparents, things like that. So I’m starting to get a bigger picture.

By the time I ended up on the Court of Criminal Appeals, I’d been away from the death penalty for almost a decade, so I feel like I was looking at the issue with fresh eyes. Over time, I started forming the opinion that, generically speaking, we have all these laws out there and they sort of give us this illusion of justice, but in many cases, justice wasn’t really happening.

Were you surprised to find yourself developing a reputation as a voice of dissent?

In some ways Texas has been very progressive on criminal justice matters, from a junk science commission to expanding the appointment of counsel. But those are things that have occurred outside of the courts. For whatever reason, I think there’s just a lot of entrenchment on the courts. Some people have been there for way too long. After enough time, I kept thinking, “If I stay, what am I going to become?”

You’ve called yourself a “Republican hanging on by a thread.” What does that mean?

I was Republican long before Trump was, but somehow he came along and changed everything. I don’t feel included in that. I can’t join that kind of negativity and hatred. I am not an us-versus-them kind of person. We’re all in this together, whether we’re talking about the person on death row or the immigrant at the border.

I’m still fiscally conservative, I still see some social issues on the left where I don’t agree. I feel like I’m somewhere in the middle, but people in the middle have frankly been tossed aside. So when I say “hanging on by a thread,” it’s because I’ve been part of the party for something like 30 years, but it’s just not the same party anymore.

Days after leaving the bench, you raised the idea of a moratorium on the death penalty in Texas. Should our state still have the death penalty?

The governor of California just called for a moratorium for almost the exact same reasons I’ve raised. He’s seen racism involved in the death penalty, he thinks it lacks reliability, and I think he even said something about the possibility of innocent people on death row. I have said many of the same things. Is there racism in the death penalty? Absolutely, yes, no doubt in my mind. Last year, all seven people who were sentenced to death in Texas were people of color. Statistics repeatedly show that if the victim is Anglo, the defendant is more likely to get the death penalty regardless of race. But if the victims are minority, then there’s less of a likelihood of the death penalty.

Is the death penalty reliable? Look at the case of Anthony Graves. We know 100 percent that he’s innocent, and yet he was called up for execution at least twice. Then we have Michael Morton [who spent nearly 25 years in prison for a murder he didn’t commit]. So is it realistic to think there are innocent people in prison? Yes. That is realistic, that’s not fanciful, we know it has happened. There is no reason to believe that it isn’t happening now or will not happen in the future.

Right now, in front of the Legislature, for my work with Texas Defender Service, we’re advocating for bills to make the death penalty fairer. We can’t cure all of the problems with it, but there are these baby-step measures that would perhaps make the system a tiny bit fairer.

Are you personally now against the death penalty?

You know, I’ve been a lawyer for 30 years, so I tend to think very pragmatically. I don’t feel like I have the luxury of declaring morally what’s right. I guess I’ll leave those moral questions to other people. If the Legislature turned around tomorrow and said they’re going to get rid of the death penalty, I certainly would not complain.

Michael Barajas is a staff writer covering civil rights for the Observer. You can reach him on Twitter or at [email protected].

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