There are many legal and cultural explanations for why Texas
executes far more people than any other state and is doing so at a pace that
has no parallel in the modern era of the death penalty in the U.S. What
follows is a summary of the analyses.|
Texas has become ground zero for capital punishment. Between 1976 (when the
Supreme Court lifted its prohibition on the death penalty) and 1998 Texas
executed 167 people. Next in rank was Virginia which executed 60 during the
Why do capital murder cases proceed through the Texas state court system with a
speed unimaginable in other parts of the country? Brent Newton, in an article
entitled "Capital Punishment: Texas Could Learn a Lot from Florida," argues that there are three procedures unique
to the state's judicial system that enable it to execute convicted murderers
with astonishing frequency:
1. Texas' appellate judges are elected to office and hence serve
according to the pleasure of the public. Not surprisingly, they require a
record of toughness on criminals in order to win re-election. Also, there are
many indications that elected appellate judges generally are of a lesser
quality than their appointed counterparts in other states. Newton even claims
that these elected judges do not carefully consider the complexities of each
specific death penalty case. As evidence, Newton argues that "[e]specially
during the past few years...the Texas Court of Criminal Appeals has refused to
publish most of its decisions in death penalty cases, including many cases that
discuss important issues of first impression. Often these opinions take
positions entirely inconsistent with prior decisions by the court and fail to
mention the conflict. Generally speaking, there is a hit-and-mostly-miss
quality in the Court of Criminal Appeals' death penalty decisions. Only a few
judges during the past decade have been capable of or willing to write
thoughtful, scholarly decisions, whether granting or denying relief."
Additionally, Newton notes that these judges tend to dismiss habeas corpus
appeals even in cases where there appears to be glaring unanswered questions
about the defendant's guilt.
2. Texas does not have a public defender system for indigent defendants,
and instead relies upon court-appointed lawyers who likely do not have
experience in capital murder defenses or appeals. Newton notes that
incompetent defenses in capital murder cases are legion in Texas, and that,
even in a death penalty appeal, bad lawyering is hard to prove. One decision,
which turned down a defendant's habeas appeal due to bad lawyering, concluded
that "[t]he Constitution does not say that the lawyer has to be awake" during
trial proceedings. Furthermore, Texas was not obliged to provide lawyers free
of charge to post-conviction habeas appeals until September 1, 1995, and the
amount the state is willing to pay lawyers for these appeals is sufficiently
low that most defendants still do not receive counsel for their appeals.
3. Until the early 1990s, Texas did not permit jurors to adequately consider
mitigating evidence in the sentencing phase of a trial. Thus, there are a
number of people currently on death row that may well not be there had
information about their mental illness or youth been weighed.
In addition, some other features of the Texas judicial system streamline the
process between conviction and execution for death row inmates.
Texas gives the bulk of clemency power to its Board of Pardons and Paroles
and not to the governor. Indeed, the Board must vote to recommend
commutation in order for the governor to grant clemency. Stephen E. Silverman
examined the impact of this procedure on the frequency of executions. In a law
review note, entitled "There is Nothing Certain Like Death in Texas: State
Executive Clemency Boards Turn a Deaf Ear to Death Inmates' Last Appeals," Silverman argues that the Supreme Court appears
to affirm the constitutionality of curtailing repeated habeas appeals in part
because of the existence of executive clemency. However, the Governor of
Texas' inability to grant clemency himself is an unconsidered loophole in the
procedural safeguards that the Court cited in its argument. In other words,
Texas--as well as eleven other states--can execute inmates who might have been
granted executive clemency had the governor had the power to do so. Silverman
thus concludes that "[t]he assertion by three Justices of the United States
Supreme Court that state clemency procedures adequately protect against
executing those later able to make convincing claims of innocence may not be
accurate. Even though only twelve states that provide for the death penalty
require some sort of panel decision to grant clemency, these tend to be states
with the most aggressively enforced capital murder laws. The dilution of
responsibility that operates as a consequence of giving no single person the
power to commute a death sentence could tend to reduce the chances for the
condemned to have an opportunity to have his clemency appeal receive meaningful
Moreover, Jordan Steiker, of the University of Texas Law School, notes that
execution dates in Texas are set by the trial judge, not by the governor, thus
removing an informal power of clemency. The governor is unable simply to not
assign an execution date. Many governors in other states have that power.
More generally, Steiker points out that Texas, unlike many other
states, has worked out the statutory and procedural "kinks" in death penalty
cases and appeals. In particular, Texas' 1995 law expediting state appeals
has successfully cut down the time between conviction and execution. He argues that Texas doesn't sentence more
people to death than a number of other states, but it executes a higher
percentage because many other states' procedures have not been fully tested and
affirmed. Steiker believes that other states will soon catch up with Texas'
execution rate. Indeed, Virginia came relatively close to matching Texas' rate
in 1998: Texas executed 20 individuals, and Virginia executed 13.
Finally, it bears noting that the 5th Circuit of the Federal Court of Appeals
is strongly pro-death penalty, and hence places extremely few roadblocks to
executions in the states over which it has jurisdiction. In comparing the
Fifth Circuit with the neighboring Ninth Circuit (which has jurisdiction over
California and other Western states), Michael Sharlot, dean of the University
of Texas Law School, states that "The Fifth Circuit is a much more conservative
circuit. It is more deferential to the popular will."
Some have speculated that the Texas execution rate also reflects a heritage of
frontier justice coupled with modern urban crime.
However, James W. Marquart, Sheldon Ekland-Olson, and Jonathan R. Sorensen
offer a more complex thesis. In their book, The Rope, the Chair, and the
Needle: Capital Punishment in Texas, 1923-1990, they argue that Texas' execution rate reflects the Southern
"cultural tradition of exclusion," and that "[s]uch exclusion was a basic
element of the legacy of slavery."
In other words, the South has a cultural tradition of dehumanizing certain
groups of people, which has made it easier for Southerners to separate
themselves from those who do not adhere to the normal social (and in this case,
legal) code. The authors argue that this cultural tendency accounts for the
fact that, in 1992, "the states in the former Confederacy accounted for
approximately 90 percent of the total executions in the first two decades
following Furman [v. Georgia]." The authors argue that Texas provides the clearest case
study to help explain this larger Southern phenomenon.
One way they show how Texas' current execution rate continues certain social
norms of the former Confederacy is by exploring the historical relationship
between state-sanctioned executions and illegal lynchings. Lynching, in their
interpretation, did not represent justice but rather the clearest way to
exclude someone (or, implicitly, a whole group) from society. A member of a
society who breaks the law experiences the force of justice; the representative
individual who is forcibly rejected by, or excluded from, society is lynched.
Based on this understanding of lynching, their findings are compelling: there
is a direct, inverse relationship between executions and lynchings over the
course of the twentieth century. Executions simply replaced lynchings as the
accepted way to sate the popular (white) need to "dehumanize" or "exclude"
certain groups from normal society. If lynchings reminded white folk and black
folk alike who was an "insider" and who was an "outsider"--who was "us" and who
was "them"--then executions were implemented to serve the exact same purpose.
How could the coldly bureaucratic and legalistic execution serve the same
socio-cultural purpose as the heated, violent and carnival-like lynching? The
authors' argument is quite complex. The end of the Civil War undermined the
disenfranchisement of blacks that had characterized the ante-bellum South.
Lynchings had been a tool white Southerners used to combat their insecurity
about the status of blacks. However, white insecurity diminished as the
Southern states enforced segregation and so it was only natural that "local
mobs gave way to centralized state-sanctioned executions." The authors thus
claim that lynchings in Texas (and across the South) declined in the early
twentieth century because "the enactment of Jim Crow and related
disenfranchising legislation, buttressed by the Supreme Court's Plessy v.
Ferguson decision in 1896," codified and enforced the social and cultural
demands that had often culminated in lynchings.
Of course, Texas now executes a far wider racial and ethnic mix of individuals
than African-Americans. How, then, could it be that Texans and Southerners in
general continue to approach society in such a provincial and exclusivist way?
Indeed, the authors recognize that we can no longer simply regard the Southern
predisposition toward the death penalty as a continuation of the ideals of the
Confederacy. The authors claim that the shift to state-sanctioned executions
and away from lynchings now also reflect the success of the civil rights
movement to "redefine the boundaries of 'place' in a more inclusive fashion."
Thus, the authors conclude, Texas' support for state-sanctioned executions both
reflects the continuing legacy of slavery on cultural beliefs, as well
as the transformation of Southern cultural beliefs due to the civil rights
movement. They portray this paradoxical development in the following way:
Texas (and Southern states generally) still executes a lot of people, but there
now is a greater regard for the defendant's rights. They argue that "this
broader attention to the protection of rights, along with the associated
hesitancy to exclude individuals from the life-protecting boundaries of the
community, are specifically evidenced in the three trends [of] in the
post-Furman years: decreased sentencing disparities, narrowed locus of
discrimination, and lengthened time from conviction to execution."
Texas' current execution policy, then, reflects the continued struggle between
the Old and New South. And, needless to say, that cultural struggle will
continue for the foreseeable future.
Ned Walpin is research associate for FRONTLINE ONLINE.
Texas Lawyer, February 26,
37 Ariz. L. Rev. 375
This law sets significant time
constraints on applications of habeas appeals, and it limits the number of
appeals a defendant can make.
As quoted in Robert Bryce, "Why Texas is
Execution Capital," The Christian Science Monitor, December 14,
Austin: University of Texas Press, 1998.
The percentage declines slightly when one tallies all executions from 1976-Jan