Perry and the Politics of Capital Punishment

by publius

Rick Perry has apparently decided to double down on Willingham.  After multiple articles came out documenting inappropriate political pressure on the investigation, Perry came out firing yesterday.  Here's the Houston Chronicle:

Gov. Rick Perry on Wednesday defended his actions in the execution of Cameron Todd Willingham, calling him a “monster” and a “bad man” who murdered his children.

Fortunately, though, the story seems to be getting national legs -- which probably explains why Perry felt the need to further shame himself today.

Here's a question, though, that I've been thinking about lately:   Why exactly is Texas so terrible on capital punishment?  It's an urban, diverse state -- conservative to be sure, but not more so than many other states.  Why exactly, then, does Texas execute so enthusiastically?  Are there structural explanations?

I don't know what the actual origins of Texas's lust for execution are.  But I have an idea of why it continues -- basically, I think it's a function of intra-GOP politics. 

Interestingly, Texas has two "Supreme Courts."  The Texas Supreme Court is the highest appellate court for civil matters, while the Texas Court of Criminal Appeals is the highest court for criminal cases.  Both courts are 100% Republican.  Also, the judges are all elected -- and each one of them runs state-wide.  Thus, even though Texas is only majority Republican, the election structure produces courts that are 100% Republican.

My own pet theory, then, is that capital punishment has become an ideological issue on which aspiring GOP politicians must show party loyalty to get elected and to ascend the intra-party hierarchy.  If, however, they show the slightest hesitancy on executing the inadequately represented, their future in politics is over.

In short, ostentatious support for capital punishment-on-demand is all benefit and no cost for ambitious GOP judges and officials.

What's interesting about the Perry controversy, then, is that it has the potential to change this calculus.  For the first time, an elected official may actually pay a political price for knee-jerk support for capital punishment.  If he does, that would obviously be good in and of itself because Perry is an immoral man.  But it would also open political space for skeptical GOP officials, including judges.

I refuse to believe that every single Texas GOP judge and elected official feels just fine about the Texas criminal justice system.  But, neither can I realistically expect them to ignore political incentives.  If, however, Perry took a big political hit, then maybe that calculus would suddenly change.

That's why I wish Hutchison would go all in on this issue.  Texas has open primaries, meaning I could go vote for her if I wanted to.  And if she got serious about this issue, I think I might.  The Republican primary is going to decide the election anyway.  So it would be nice to have a Republican who got there because of Democratic cross-over votes. 

Certainly better than the alternative.

Comments

[someotherdude]

Why exactly is Texas so terrible on capital punishment?

Well, Texas was built and animated by genocidal gentlemen, silly.

The">http://www.amazon.com/Conquest-Texas-Cleansing-Promised-1820-1875/dp/0806136987">The Conquest Of Texas: Ethnic Cleansing In The Promised Land, 1820-1875

The Making of a Lynching Culture: Violence and Vigilantism in Central Texas, 1836-1916

Lynching by State and Race 1882-1962

[publius]

So is the argument here that it was built by exceptionally violent people, and then that "norm" carried through institutions, tradition, etc.?

I think this is a fascinating subject so thx for the book recs

[someotherdude]

Not only was Texas a “traditional/typical” Southern State, drenched in racial hierarchy between Black & White, it was a border state, with Mexico, which had the added blessing/curse of Mestizos and Indians. This wild border land position made it especially, aggressive. I think there were many white folks who were killed, for being race traitors. A race traitor received special attention from the community.

Anyway, yes, "it was built by exceptionally violent people" however, the Scandinavians were a pretty violent culture, but they seemed to survive that madness, peacefully.

Building and constructing an empire is not a peaceful affair.

[Hartmut]

A similar argument about long traditions is often made about Australia. It is said* that one could still see, that it's (non-Aboriginal) population is made up mainly of people descended from British lower class criminal convicts.
That does not mean that Australians are all criminals** of course ;-) but it gives credence to the 'like father like son' (and grand-grand-grand-son) meme.

*never been there, so I can't make a judgement from personal experience.
**and many of their ancestors were convicted for petty theft (the threshold for execution being ridiculously low at the time)

[Jesurgislac]

My own pet theory, then, is that capital punishment has become an ideological issue on which aspiring GOP politicians must show party loyalty to get elected and to ascend the intra-party hierarchy. If, however, they show the slightest hesitancy on executing the inadequately represented, their future in politics is over.

That seems enough to explain it. Bill Clinton famously had Rickey Ray Rector killed even though he was too brain-damaged to understand that he was being taken for execution. But Clinton had an election to win, and having a man killed is a good way to do that in the US.

In effect, having someone put to death has turned into a vote-getter. Texas has a high rate of executions because it has a high number of Republican politicians using it as a springboard for federal office.

Respect for life? Yeah right. What respect for life is involved when people are killed to support an election campaign?

[edmund dantes]

Did you see KBH's statement publius? You're going to be holding your breath for a long time waiting for her to come out on the other side. She's doubling down too.

The problem is that Perry is giving liberal's a way to attack the death penalty. Not that fact that an innocent man might have been killed.

[jimjbollocks]

Publius, Publius, Publius. Don't go overboard here. Rick Perry isn't immoral. He's amoral. You know, like a shark.

[Hartmut]

I think there was a case some years ago where the excecutee made his last words about him being just a political prop for the governor's election campaign. And I think I read in that context something about censorship of last words (i.e. the version given to the public being different from what was actually said or there being a statement that there were no intelligible last words).
Ascension over dead bodies, it's the American way. And then there is that famous quote from an anonymous prosecutor from Dallas that "any prosecutor can convict a guilty man. It takes a great prosecutor to convict an innocent man.".
One can hope for the religious ones among those that they are dead wrong or their afterlife could be less than pleasant.

[Free Lunch]

Rick Perry isn't immoral. He's amoral. You know, like a shark.

Sure, he'll do something honest if it's in his best interest, but he'll consider the alternatives first.

It takes a great prosecutor to convict an innocent man.

Sadly, no. The innocent who get railroaded are generally not particularly bright, have had a long history of run-ins with the law, don't have too many friends and family who are strong advocates for them, and particularly in states where the public defense system is a complete farce won't stand a chance.

If Marcia Clark only cared about her career, she would have picked up some random loser from Compton and won a conviction in a three day trial rather than actually trying the man who did it.

[mckinneytexas]

You are conflating, on the one hand, Perry's unwillingness to admit even the possibility of error coupled with his fundamental corruption with the issue of capital punishment. Convicted murderers will, more often than in other states, receive the death penalty and the penalty, again more often than in other states, be carried out.

Texans do not see themselves as enthusiastic about killing other people; rather, it is viewed as a matter of justice. Publius' take, and that of most progressive left death penalty opponents, is that people who support capital punishment have a character flaw that prevents them from seeing the inherent wrongness of taking another's life, regardless of context. Death penalty proponents, in a reverse mirror image, believe that capital murder merits the death penalty and, in most such instances, anything short of executing the criminal is unjust.

But this is really no different than the progressive left's general sense that anyone who disagrees with them is fundamentally wrong and morally/ethically challenged. Opponents' motives are questioned and frequently vilified. The hard right is no different.

I've previously stated my views on the procedural and substantive flaws in our capital punishment system while indicating that the concept itself remains sound for capital crimes. The chances of me changing any minds on this issue are nonexistent.

Another point, overlooked by Publius, is that Texas has had its share of Democratic governors and state houses. The consensus in favor of the death penalty is bipartisan. Ann Richards sent her share of convicted felons to death row.

The difference, if there is one, is not so much one of substance as it is one of evolved indifference to the concept of substantively fair trials and real, not apparent, guilt beyond a reasonable doubt. Where Perry in particular, and the Court of Criminal Appeals as well, just don't get it is that there is nothing wrong with reversing or vacating a death penalty conviction if the facts warrant it. Rather than pretending that our system is flawless, we should presume flaws and scrutinize each conviction for true, beyond a reasonable doubt guilt with competent and adequately funded defense counsel.

We don't do that. Our structural failure to address these deficiencies does not reach the efficacy of imposing a death sentence on someone who abducts, tortures, sexually abuses in the worst way and then dismembers a young child. If Texas is excessively fond of the death penalty, the progressive left often strikes others not so inclined as being excessively indifferent to the heinous nature of some of the crimes visited upon society.

Both sides, of course, routinely deny the other's charges and reiterate their own.

[Free Lunch]

mckinneytexas -

The character flaw, as far as I am concerned is that people think they can mete out justice in our system without actually making sure that there is a real defense available to the defendant. This matters more in capital cases, but it's a huge problem in all cases. Gideon has been gutted of all substance.

[someotherdude]

mckinneytexas,

According to the books, I linked up thread; “justice” has always been used as the rational kill…systematically, indiscriminately, procedurally, randomly in Texas.

I haven’t read any mass killing of Indians or lynching done in the name of “bein’ mean!”

Texas has a long history of committing lethal injustices, in the name of justice.

Even if one were to avoid an execution, the prisons of Texas are medieval in their construction.

[someotherdude]

However, there seems to be a tradition, in Texas, of letting most wealthy murderers and killers go. (I recall a wealthy man who butchered his "friend", and another who severed a man's head will attempt to find links later.)

So California resembles Texas, in that way.

[McKinneyTexas]

FL--that was the point I was making. We don't adequately scrutinize the close cases. In most cases, guilt is firmly if not conclusively established. It's the cases on the bubble where the system fails. And it is precisely in these cases where the greatest scrutiny is required.

There is also the inherent unfairness of the quality of counsel a wealthy man gets vs. that of someone of little or no means. SOD is correctly recalling a trial in Galveston not long ago. The verdict was appalling. His otherwise harsh view of Texas is so extreme that it is pointless to try to change his mind.

[Ben Alpers]

One potential way to test publius's theory is to ask whether Texas Democrats tend to be pro- or anti-capital punishment. If they're the former, then structural explanation having to do with partisanship need to be at least supplemented by some sort of transpartisan explanation (like someotherdude's political cultural traditions argument).

But this is really no different than the progressive left's general sense that anyone who disagrees with them is fundamentally wrong and morally/ethically challenged. Opponents' motives are questioned and frequently vilified. The hard right is no different.

Much as I hate to do this....tu quoque. And, no, references to a straw "hard right" (in which, I assume, mckinneytexas doesn't include himself) doesn't get him out of this. Why are death penalty opponents all on the "progressive left"? Why is their reasoning utterly universalized? Why assume that the only position with nuance is his own?

And, to address mckinneytexas's argument about the death penalty vs. the (presumably contingent) system of carrying it out: is it simply chance (bad luck?) that people like mckinneytexas who are deeply committed both to capital punishment and to determining actual guilt or innocence, whatever the cost, are vanishingly rare in American political life? That those who fight hardest for capital punishment tend to also underfund public defenders, argue against "loopholes" in criminal procedure, and generally make it easier, not more difficult, to convict? That the view of Scalia and many other conservative legal intellectuals on this issue is that there is no such thing as factual innocence?

And even if all these things really are just political (and moral) bad luck, they are what they are. Perhaps if people were angels, capital punishment would be more defensible ;-). But we aren't. Unlike mckinneytexas, I don't think we can hope to have a flawless legal system. And since we cannot, it makes much more sense to be 100% certain that the cost of our mistakes is not the lives of innocent men and women judicially murdered.

[Jesurgislac]

Texans do not see themselves as enthusiastic about killing other people; rather, it is viewed as a matter of justice.

Regardless of whether the person killed is innocent or guilty? If justice matters, you're claiming, to Texans, why are Texans so indifferent to a court system that denies so many people accused of a crime a fair hearing, that can ensure someone condemned to death never gets a fair trial? It doesn't look like justice: it looks like a funnel via which people can be poured to the deaths.

?Where Perry in particular, and the Court of Criminal Appeals as well, just don't get it is that there is nothing wrong with reversing or vacating a death penalty conviction if the facts warrant it.

But once you decide that a person is worthless enough to be killed by the state, there's no reason to pay attention to their appeals. The death penalty is itself a fundamental distortion of any justice system, and a death penalty applied for electoral reasons still more so.

But this is really no different than the progressive left's general sense that anyone who disagrees with them is fundamentally wrong and morally/ethically challenged.

Only when it comes to deciding that human lives are worthless and can be thrown away. The progressive left has a general sense of the value of each individual human life, and that people who are willing to condemn some human beings as worthless are, yes, fundamentally wrong. People who are willing to have the state kill those "worthless" human beings are morally/ethically challenged.

Bush's mockery of a woman condemned to death was just one perfect example of how having life and death power over others corrupts human feeling.

I agree it's not purely a Republican issue - though it does appear that Republican judges are running for election on how many people they can legally kill. The popularity of the state getting to kill people is such that all politicians are tainted by it once it becomes essential to show that you are not "soft on crime" by having people killed - innocent, guilty, or brain-damaged.

[Jesurgislac]

You are conflating, on the one hand, Perry's unwillingness to admit even the possibility of error coupled with his fundamental corruption with the issue of capital punishment.

I don't think you can take the one without the other.

In a perfect criminal justice system, where there was no possibility of error, you could argue that the penalty of killing people who themselves have killed is a just punishment.

Either you are willing for there to be a perpetual stay on executions until a perfect criminal justice system is achieved, or you are willing to have some innocent people killed by the state for crimes they did not commit. I do not believe this is a party line thing: I think it's as dreadful and simple as the death penalty being electorally very popular. Killing people to get votes may not be corrupt in a straightforward financial sense, but it is utterly corrupt to anyone who values human life and values justice.

If a judge who is up for election knows that sparing a criminal the death penalty may cost them votes, are they handing down a death penalty because it is just or because they want to win the next election?

[ThirdGorchBro]

I love my home state deeply and wouldn't want to live anywhere else, but there is considerable truth to someotherdude's argument. Texas does have an extremely violent history. For example, there is only one small Indian reservation in Texas, the Alabama-Coushatta. The other tribes were all driven out or exterminated. I believe the casual attitude toward violence against "the other" has carried over to the modern day, though it's certainly not as bad as it used to be. And mckinneytexas is also right, support for the death penalty is bipartisan in Texas.

[Noise Machine]

Gideon has been gutted of all substance.

Free Lunch: I've brought this up before, but why do you keep citing Gideon. Gideon has nothing to do with the death penalty. Gideon broke into a pool hall and stole coins from a soda machine. His case did establish the right to appointed counsel in capital cases. You want Powell v. Alabama for that. Apparently, you think your post have more gravitas if you cite a case. But you're citing the wrong case.

[publius]

@mckinney -- On the whole "Dems did it too," I'm not sure the numbers on that hold up very well. Check out this site. I don't have the fancy software that people at Think Progress have to make cool charts (does anyone want to tutor me?). But there's a sharp uptick in the mid-90s after the GOP (and Bush) started taking power.

[Noise Machine]

Bush's mockery of a woman condemned to death was just one perfect example of how having life and death power over others corrupts human feeling.

Oh come on, that was funny. "Please," Bush whimpered, his lips pursed in mock desperation, "please, don't kill me." Karla Faye Tucker was scum, and the only argument against killing her was that she was used to be a prostitute but conveniently found Jesus on death row. Have a sense of humor.

The innocent who get railroaded are generally not particularly bright, have had a long history of run-ins with the law, don't have too many friends and family who are strong advocates for them, and particularly in states where the public defense system is a complete farce won't stand a chance.

The "innocent" who get sentenced to death are people like Henry Lee Lucas, who was already serving six life sentences for unrelated murders. If that guy had gotten the needle for a murder he didn't commit, is that really such a big deal?

[McKinneyTexas]

Publius--the uptick began in Anne Richards' administration. She was preceded by a Republican. I think the uptick was a matter of US Supreme Court decisions, not a Republican/Democrat bias.

[someotherdude]

I don’t think the United States in general, and Texas specifically has honestly dealt with its genocidal past. Let’s compare the US to Germany. Germany’s past looms large over the way it has constructed its present day legal system and its self-reflection concerning its development as a nation-state. The US, and Texas, on the other hand, has never had to account for its own genocidal past. South Africa is another example of a nation honestly dealing with its past to deal with the present. Even Great Britain, seems to be more honest about its Imperial past, than the US.

Giving Martin Luther King a holiday seemed painful enough for our own “patriots.”

Is there something to having a strong sectarian Left that forces these other societies to constantly reevaluate their past to deal with their present?

And please, let’s not confuse the moderate liberals of the Democratic Party with Leftist.

[Marty]

"Killing people to get votes may not be corrupt in a straightforward financial sense, but it is utterly corrupt to anyone who values human life and values justice."

I have my own reservations about the implementation of capital punishment in this country.

Having said that, valuing innocent human life is a rational argument for the death penalty. How convincing it is as a deterrent is sunject to study and debate, but how many innocent people are you willing to have die because we are not willing to use capital punishment as a deterrent to capital crime?

It is easy to take the exceptions and make them the point of discussion, it is a harder moral argument when you add the other innocents, the ones murdered and raped due to our unwillingness to use capital punishment, on the other side of the scale.

It is a difficult issue for me, not a simple one. I am sure Hilzoy would add depth to this discussion, if someone knows where she has discussed it in the past I would love to read it.

[Free Lunch]

Noise, I specifically chose Gideon because it is the more general case. It applies to all criminal trials, not just capital ones. Capital trials are more serious, but the evidence is clear that defendants are not reliably getting effective counsel when they are unable to afford their own attorney, whether or not they can possibly be executed.

[JustMe]

If one posits that the death penalty is a deterrent to crime (debatable, but work with me), then it is logical to assume that it is the existence of a death penalty as a possible sentence and the reality of people actually being executed which deters others. In that case, I am not saying that proponents are going to want innocent people to be executed, but rather that this issue will be a secondary concern to ensuring that the public continues its support and approval for the death penalty system. It's not just politicians but voters who are going to think this way.

[Free Lunch]

... how many innocent people are you willing to have die because we are not willing to use capital punishment as a deterrent to capital crime?

Fair question. Of course I need to know if there is any deterrent effect before I can consider it. The murder rate in states with the death penalty doesn't appear to be lower than that in states without. The rates don't seem to correlate to anything in the criminal code.

Still, we do have a history, starting from before the Constitution, of arguing that protecting the accused is critical, that innocent people should not be jailed or executed even if that means that the guilty are sometimes allowed to go free.

[someotherdude]

If it’s deterrence, why do so many people die in Texas, anyway?

Iran and Saudi Arabia have brutal capital punishments for various crimes (rape, murder, torture, kidnapping) as well, and yet those crimes persist.

What is it about the assumptions concerning human character, Texas and Iran are missing?

[Jesurgislac]

Marty: but how many innocent people are you willing to have die because we are not willing to use capital punishment as a deterrent to capital crime?

There is no evidence that capital punishment is, or ever has been, a deterrent to capital crime.

Killing someone because they killed has, I will admit, a certain symmetrical justice of punishment. But is the justice of punishment, not of deterrence or prevention.

There is no statistical evidence, for states inside or outside the US, that the state's killing people has any deterrent effect on homicide rates.

(I will also agree that a country which cannot afford to keep people locked up for decades, or that is not able to run a prison in which people can be detained for long periods of time, is a country that will have to employ the death penalty as a safeguard against people who clearly have no conscience about killing and present a continuing danger: in the UK, when the death penalty was abolished, it was replaced by sentencing people to life that meant life. But crying poormouth doesn't work for the US, no matter how bad the US prison system is: it could be better, if the US valued justice enough to invest in it.)

[Noise Machine]

Noise, I specifically chose Gideon because it is the more general case. It applies to all criminal trials, not just capital ones. Capital trials are more serious, but the evidence is clear that defendants are not reliably getting effective counsel when they are unable to afford their own attorney, whether or not they can possibly be executed.

I don't think you know what you're talking about. A right to appointed counsel in capital cases was established in Powell v. Alabama in 1932. After that case, it was an open question whether this right extended to non-capital cases. Betts v. Brady held that a robbery defendant had no right to appointed counsel in 1942. All Gideon did was overrule Betts. The issue in Gideon was whether his crime was serious enough to require appointed counsel. It is completely irrelevant to capital cases. There are literally hundreds of death penalty cases dealing with adequacy of legal representation. But instead of citing even one of these to support your argument, you keep returning to Gideon. Did you study Gideon in some undegrad class or something? Because it's not what a lawyer would cite.

[Free Lunch]

Noise,

Why do you insist on attacking a point I am not making. Texas and most other states do not provide adequate counsel to anyone charged with a felony.

Sadly, the courts seldom bother to look at this travesty of justice unless the person who is so abused by the justice system is at the point of being killed by the state.

[wonkie]

"The difference, if there is one, is not so much one of substance as it is one of evolved indifference to the concept of substantively fair trials and real, not apparent, guilt beyond a reasonable doubt. Where Perry in particular, and the Court of Criminal Appeals as well, just don't get it is that there is nothing wrong with reversing or vacating a death penalty conviction if the facts warrant it. Rather than pretending that our system is flawless, we should presume flaws..."

I think that the point you are making here is an excellent one,although I take issue with the paragraphs preceding it.

Publious wrote that he wodered what structural flaws were at work in Texas, not what chgaracgter flaws. And he pointed out that Republican judges there are in a sort of pro-execution arms race with each other to stay viable in Texas politics. The problem is that the arms race makes them "not get" the idea that the system has flaws and the innocent get convicgted. I'm sure they know very well that the system is highly flawed. Texas is the stae of "The Thin Blue Line" and the nototrious cocaine convictions (which were, in fact, overturned by a Texas governor). So they know it's flawed.

So I tend to accept publious's thesis.

[CaseyL]

Marty: [H]ow many innocent people are you willing to have die because we are not willing to use capital punishment as a deterrent to capital crime?

I'll put another question to Marty, and to all DP defenders:

How many highly successful murderers are you willing to not go after, in order to support the DP?

Because executing the innocent isn't the only grotesque atrocity you have to live with if you support the DP.

Letting the guilty get away with it because you were willing to execute the wrong person is another grotesque atrocity that comes with supporting the DP.

Since DP supporters seem as apathetic about letting the truly guilty go free as they are about executing the innocent, I sincerely doubt DP advocacy has anything to do with "justice."

It seems to me, based on the evidence and simple logic, that DP advocates are about the display of vengeance - a Passion Play, if you will, which any poor fool can be used for - and not about justice at all.

[JustMe]

Since many DP proponents are also against things like transparency laws and "Freedom of Information Act" laws, I wonder if we could carve out a special exception for the death penalty. What the government would do would be to simply fabricate crimes, trials, and executions to continue the public display of the death penalty, retaining any deterrent effects that may exist and giving the proponents the satisfaction they desire. Meanwhile, actual capital crimes could "just so happen" to avoid the death penalty on a technicality. The most important thing here seems to be maintaining the "culture of capital punishment" rather than any deterrent related or justice related concerns. This would allow the best of both worlds.

[someotherdude]

CaseyL,

Donald G. Mathews makes a similiar point in ">http://jsr.fsu.edu/mathews.htm"> The Southern Rite of Human Sacrifice

Human sacrifice to a vengeful deity conjures savage and exotic images that distance us from the practices they represent as being strangely inhuman. Just as savage but sadly less exotic are images of lynched African Americans in the Southern United States. The word, "lynched," rips from reluctant memories shame, guilt and anger at white atrocities. The stark reality behind the word is an historical presence that haunts heedless patriotic celebration and belies professions of national innocence; its condensation of white peoples' fury and black peoples' anguish is as intensely malevolent as human sacrifice. ….Since the early eighties, scores of scholars have turned their attention to specific, dramatic incidents of violence or to patterns within geographical areas or in relation to associated issues such as gender. The achievements have been impressive; but few have noticed what a few African Americans such as Gwendolyn Brooks understood when she observed that "the loveliest lynchee was our Lord." Few have wondered why it made sense to imagine a lynched black man as Christ upon the Cross, that is, to imagine lynching as a human sacrifice. Yet it is just this compound of sacrifice, crucifixion, and death and its association with the predominate religion of the lynching-South that begs discussion.

Although this article focuses on the lynching of Blacks, I think he has said this applies to the many whites who were lynched, as well. After the Civil War, black bodies were easier to access, than when they were property.

[Marty]

"How many highly successful murderers are you willing to not go after, in order to support the DP?

Because executing the innocent isn't the only grotesque atrocity you have to live with if you support the DP."

Catsy,

I can't generalize, I know that I support the work of the Innocence project and am not satisfied with the appropriate checks and balances being in place. So the answer is that the target should be zero. Reality is hard, the question is certainly valid.

[Sebastian]

Your theory doesn't hold much water publius.

Whatever is going on in Texas it isn't just Republicans. Or even primarily Republicans. If you had researched back just a little bit you would have seen Democratic Governor Ann Richards and for example Johnny Frank Garrett being executed without gubernatorial action. Also throughout the 70s, 80s and half of the 90s, both Texas legislative Houses were completely dominated by Democrats--especially during the key times after the Supreme Court authorized a resumption of the death penalty.

Democrats can do bad things too. Really.

[Marty]

"Catsy,"

Sorry casey (and catsy) fast typing mistake.

[someotherdude]

I totally agree with Sebastian!

However, are there anti-DP folks in the Republican Party?

[Noise Machine]

Letting the guilty get away with it because you were willing to execute the wrong person is another grotesque atrocity that comes with supporting the DP.

Huh? This makes no sense. Just because you execute the wrong person doesn't mean you can't prosecute someone else for the same crime later. Double jeopardy applies to the defendant, not the crime. It's no different than if you sentence someone to prison, but later discover someone else committed the crime. It sucks for the innocent guy who got executed, but doesn't prevent the guilty murderer from being held accountable.

[MockTurtle]

If you had researched back just a little bit you would have seen Democratic Governor Ann Richards and for example Johnny Frank Garrett being executed without gubernatorial action

You might want to rephrase this a little, Sebastian. It leaves one with the impression that Ann Richards was executed, whereas she died of cancer in 2006.

[Jesurgislac]

Noise Machine: Just because you execute the wrong person doesn't mean you can't prosecute someone else for the same crime later.

I think you are missing the point. Given the extreme reluctance of the pro-death penalty tribe to admit they executed someone innocent, it follows that once a person has been executed for the crime they did not commit, the chances are that even if there is evidence showing another person committed the crime, that evidence won't be looked at and the person who actually committed the crime won't stand trial - because doing so would entail acknowledging that the state executed an innocent person.

Executing the innocent is not only an outrage, it very effectively prevents the real murderer from being charged, tried, or convicted.

[someotherdude]

Noise Machine,

Do you have any examples of the persistence of Texas "justice" working out, that way?

It seems the case goes away, once the execution happens.

[Morat20]

Elected judges, elected prosecutors, nasty primaries, and the general feeling that being "tough on crime" means harsher and harsher sentences.

Don't support the death penalty? You're "soft on crime". Want to be a judge? Your best bet is to have been a prosecutor. Want to be a prosecutor? Better be "tough on crime".

Texas is a prime example of why an elected judiciary is a bad idea. Every step of the way from lawyer to judge in Texas is built on nasty primaries where you have to demonstrate how much you want to stamp out crime and mete out the harshest possible penalties, while decrying the 'weak legislature' that prevents you from handing out the penalties such scum TRULY deserve.

[Slartibartfast]

I'm anti-DP for reasons partly related to the general difficulty with there being 100% certainty that the prisoner was in fact guilty, and partly related to that it costs more to kill a prisoner than to keep him imprisoned for life. Or so I've heard, anyway.

I think there may be rare cases where guilt is well-substantiated, even admitted, where the death penalty might be appropriate. But those are occurring far less often than the death penalty is applied, I think.

I again plug The Innocent Man, which is relevant to the thread, a true story and Grisham's best work by a fair piece, IMO.

[Jesurgislac]

someotherdude: It seems the case goes away, once the execution happens.

This is a problem with all justice systems with a death penalty, not just Texas. It's extraordinarily difficult for a person wrongfully convicted to challenge their sentence: there are instances in the UK of people jailed for 20 years after a false conviction.

But at least while a prisoner is alive, they, their lawyers, their friends, can keep their case alive. There is just a possibility that the real guilty person may be found.

Once a prisoner has been executed, to all intents and purposes, that's over.

[Spiny Norman]

"If that guy had gotten the needle for a murder he didn't commit, is that really such a big deal?"

No more so than if *you* got the needle for a murder you didn't commit.

[Noise Machine]

I think you are missing the point. Given the extreme reluctance of the pro-death penalty tribe to admit they executed someone innocent, it follows that once a person has been executed for the crime they did not commit, the chances are that even if there is evidence showing another person committed the crime, that evidence won't be looked at and the person who actually committed the crime won't stand trial - because doing so would entail acknowledging that the state executed an innocent person.

Executing the innocent is not only an outrage, it very effectively prevents the real murderer from being charged, tried, or convicted.

OK, that's a good point. I think that if you commit a crime, and someone else get falsely convicted of a crime and executed because of you, that's even more of a reason to execute you. But, politically speaking, what you say is more realistic.

No more so than if *you* got the needle for a murder you didn't commit.

But I didn't commit six other murders, Norman. People who have murdered are in a different moral category relative to non-murders in terms of meriting execution, so it's not the same.

If I aim my gun to shoot Alex but miss and fatally hit Bill, I can be charged with 1st degree, deliberate, intention murder, even though I did not intend to kill Bill. The intent to is transfered from Alex to Bill. All that matters is that I intended to kill someone and did kill someone. So if I murder Alex, but then am wrongfully convicted for murdering Bill, it seems like the guilt should transfer and we should just be glad everything evened out.

[Ugh]

America's thirst for vengeance outstripped its willingness to pay for justice long ago, the result is our current criminal justice system, especially at the state level.

[Jay Jerome]

"Struck dead by an angel of God! Yet the angel must hang!"

(Captain Vere's exclamation after Billy Budd has killed Claggart)

[Sebastian]

I'm not really sure where the confusion in wording comes in but to reiterate, my points were:

A) Governor Ann Richards was a recently elected Democrat with a bad record on the death penalty;

B) Democrats controlled both legislative houses for decades ending only very recently (1995);

C) The death penalty issues (and general over-zealous prosecutorial regime in Texas) long predate the recent Republican control and in most cases were started by and continued for a very long time by Democrats in Texas.

This should cast serious doubt on the hypothesis suggested by publius insofar as the variable "X Party control" does not seem to have a large impact on the issue he is discussing.

This will seem like a harsher criticism than I mean. This feels like one of a long line of posts where things are blamed on Republicans that on pretty much trivial inspection appear to be based on factors which have very little to do with a Republican/Democrat difference. The Republicans are responsible for lots of political ills in this country. But that isn't the same as attributing all or nearly all political ills to Republicans. The party has plenty to answer for, why not focus on its actual sins.

Or alternatively, if the big issue for you is inappropriate uses of the justice system in Texas, be willing to look beyond Republican/Democratic partisanship to other things that might have much more explanatory power.

I'm not sure what those things are specifically, but they don't appear to be grounded in Republican/Democratic labels.

[someotherdude]

Jesurgislac: Once a prisoner has been executed, to all intents and purposes, that's over.

Trust me when I say, I am not thread jacking, but wars based on false foundations, have similar consequences...

[Marty]

"Or alternatively, if the big issue for you is inappropriate uses of the justice system in Texas, be willing to look beyond Republican/Democratic partisanship to other things that might have much more explanatory power"

Sebastian,

While I agree with your assessment, the explanation is simple, while uncomfortable to many Texas Democrats.

Most Texas Democrats would really have to be Republicans almost anywhere else. The line that the Democrats have moved to the left almost everywhere else is just not past center in Texas. It is a state, in general, of Republican/Republicans and Democratic/Republicans.

Thus the complaints about Republicans, while greatly exaggerated in their evil intent, can probably be appropriately applied to the political spectrum in Texas.

All IMHO as a native, and Republican.

[hairshirthedonist]

I'm not really sure where the confusion in wording comes in but to reiterate, my points were:

A) Governor Ann Richards was a recently elected Democrat with a bad record on the death penalty;

B) Democrats controlled both legislative houses for decades ending only very recently (1995);

C) The death penalty issues (and general over-zealous prosecutorial regime in Texas) long predate the recent Republican control and in most cases were started by and continued for a very long time by Democrats in Texas.

So the Southern Strategy worked.

[BFR]

@McKinney

You made a point earlier in the thread that "We don't adequately scrutinize the close cases. In most cases, guilt is firmly if not conclusively established."

From the New Yorker article, it's pretty clear that the jury at the very least did not consider this a close case. You had someone presented as a 'fire expert' and no one in the court made any effort to discredit him. No jury is going to be competent to recognize when an expert doesn't know what they are talking about, even more so as we get into deeper science.

In the case of Willingham, the evidence that the experts were fools came out during his lifetime, so that's why we're talking about it but it's possible there are others who have or will be executed on similar flaky grounds.

As forensic science improves, the notion of the "close case" is going to get fuzzier.

[Carleton Wu]

No more so than if *you* got the needle for a murder you didn't commit.

dnftt

[McKinneyTexas]

"As forensic science improves, the notion of the "close case" is going to get fuzzier."

(Someday, could someone post easy-to-follow steps to italicize? I can't do that, bold or anything else)

Well, maybe, but probably not, at least in most cases. DNA testing can and often does establish guilt conclusively. Conclusively established guilt is kind of the antithesis to the possibly innocent suspect. If you scrutinize the latter, why worry so much about the former? To answer my own question, even if conviction is a foregone certainty, the substance of a fair and impartial trial, full appellate review, etc. must be accorded in every DP case. Both deserve an equally fair trial. Only the latter, assuming no significant procedural errors in the former, merits ongoing examination and at least one full blown and fair second look.

[Free Lunch]

McKinneyTexas -

Just look at the cheatsheet right below the comment box you are writing in. For italics, you can use <i> or <em>

[Free Lunch]

but don't forget to close the html.

[Hogan]

To italicize:

At the beginning of the text you want to italicize, type < i > without the spaces.

At the end of the text, and I really can't emphasize this enough, type < /i > without the spaces.

Substitute b for i to get boldface. And do remember the second instruction.

[McKinneyTexas]

Thanks to the three of you--now, how do I get into HTML? Cleary, i am not the sharpest knife in the drawer.

[Marty]

< i >In the comments box< /i >

without spaces inside the carats becomes

in the comments box

I try to always preview when adding markup

[McKinneyTexas]

Got it and many thanks.

[Hogan]

how do I get into HTML?

You're soaking in it!

Seriously, all you need to do is add the angle-bracketed tags in your comment. The interweb does the rest. And don't be embarrassed about asking questions and learning new things. It's good.

[Slartibartfast]

You don't get into HTML; you're using it directly with the angle-brackets.

Comments allows HTML and other funny codes, which effectively do the same thing. Be sure and close tags, though, as others have noted.

[McKinneyTexas]

Thanks again for the help. I really appreciate it.

[McKinneyTexas]

Or, better yet: thanks again for the help. I really appreciate it.

[Jeff]

And you even closed the tag! Cupcakes / cake / pie for everyone!

[Hartmut]

McKinneyTexas, I have lost the trust in DNA testing in establishing guilt (as opposed to establishing innocence) a bit, especially after the wild goose chase we had over here for years because a worker in a Q-tip factory accidentally contaminated the Q-tips used for DNA sampling with her own DNA. As a result a huge number of crimes all over the country seemed to have been committed by the same unknown person. Only after the same female DNA showed up in rape cases it became clear that something was wrong.
Over here the 'genetic fingerprint' is allowed in court but is not allowed to be the only proof for a conviction. And it is much easier (today*) to plant false DNA evidence than fingerprints that stand up to scrutiny.
---
It's the old philosophical/judicial schism: Is it better to let a hundred guilty escape to avoid a single false conviction or to convict a hundred innocent to avoid a single guilty to escape (aka: "kill 'em all, the Lord knows his own").
Another famous literary case is Fahrenheit 451 where an innocent is killed by the mechanical dog on live TV because the state can't be seen as having let Montag escape.

*the use of the good old rubber thumb with a fake fingerprint can now be easily detected as such because it lacks the necessary chemical ingredients.

[evilrooster]

Hartmut:

Is it better to let a hundred guilty escape to avoid a single false conviction or to convict a hundred innocent to avoid a single guilty to escape

cf Genesis 18:20-33, a passage which is strangely neglected in these contexts.

[McKinneyTexas]

Jeff, yeah, I am on a major roll. I will now dominate all comments henceforth by my clever use of bold, italics and, under just the right circumstances, bolded italics.

[evilrooster]

Yay McKinneyTexas!

If you want to be cute cool, the <strike> and </strike> tags can also be amusing.

[Jim Simons]

It is not just a Republican thing. I recall recoiling when I heard Ann Richards endorse the death penalty. I knew her and I don't believe she really supported the death penalty. Mark White and others bragged about executions under their tenure.

Is Hutchison against Capital Punishment? If so, we might cross over and vote for her but I doubt she is. Granted Perry is as bad as it gets. A decent Democrat should run.

[McKinneyTexas]

Evil, watch me strut my new stuff!.

Jim, if I were a Democrat in Texas, I would start supporting decent Republicans in the statewide primaries.

[evilrooster]

Applause!

You now speak the first dialect of the Secret Language of the Internet. Use your powers wisely, grasshopper.

[Hartmut]

Oh, lovely I just read http://www.alternet.org/blogs/peek/143324/playing_god_texas_jury_consulted_bible_before_sentencing_man_to_death/>this at alternet.
Texas jury consults Bible(s) (4 of them actually) before sentencing man to death.
Clarification: there's no claim that the man was innocent but it still speaks (literal) volumes.

[John Spragge]

To answer Publius: I appreciate all the other issues in Texas society that lead to the use of capital punishment. However, IMHO, the structure plays a large part in the administration of capital punishment in Texas. Texas has a system in which no one person has the ultimate responsibility of authorizing an execution. In Canada, when we had capital punishment the Prime Minister had to sign the death warrant, and could commute the sentence simply by not signing it. In Texas, the governor has no such power. The jury can pass the responsibility to the appellate courts, who can and do pass the onus onto the board of pardons-- and they vote by fax. Nowhere in the system does one person have to say that it comes down to their signature, their individual choice.

I believe that also makes it easier for someone like Perry to defend the system of capital punishment in Texas, because he can tell himself and anyone else that doing so does not serve him personally, because he doesn't make these choices. He has merely defended the honour of the great state of Texas.

On other matters: it does indeed cost substantially more to execute an offender than to incarcerate them for life; innocent people, in the sense of people innocent of any crime remotely serious enough to justify a death sentence, have indeed come close to execution in the US; in Canada, we have no shortage of cases where innocent people might have gone to the gallows if we had not abolished capital punishment in 1976. And those who argue for capital punishment as a protector of the innocent should take a look at what happened to the Canadian murder rate after abolition: it peaked the year before we repealed our capital statutes, and dropped by roughly a third immediately following abolition.

[Hartmut]

The perverse thing is that pro-death-penalty activists tended to claim that execution is cheaper (and therefore preferable*). When this could not be pretended anymore with a straight face, the conclusion of these people was to make it cheaper by curtailing the possibility of appeals in cases where the death penalty was on the table. To sharpen it: If we execute on the day of the sentence, costs are as low as they can be, so to hell with the appeals process.
Why not adopt the current Chinese model to fine the family of the executee for the costs? I hear that some states actually propose to charge prison inmates rent for their stay, so it would be just one small step further.

*That's the type of people I do wish would catch (non-lethal) necrotizing fasciitis in the face, so their outside would reflect their inside. Pox are too good for them.

[gravyrug]

Those commenting on Ann Richards's record on capital punishment, that was a perfect example of politics, especially campaign politics, driving her policy. It got so bad there was a comedy skit about the campaign that ended with both candidates hunting down and shooting suspected criminals. The actual campaign ads were almost as bad.

My personal opinion is that there are people who are too dangerous to leave free, and these people probably should die. However, I don't have enough faith in any law enforcement system to support capital punishment by a government. The number of innocent people who've been exonerated just here in Dallas over the past couple of years is enough to make me uncomfortable about the whole system, not to mention the Tim Cole case, where the man died in prison before he was exonerated.

[Jesurgislac]

not to mention the Tim Cole case, where the man died in prison before he was exonerated.

*nods* The Scottish justice system has the rule that if someone is about to die and presents no current danger for the rest of their life, they should be released to die outside prison. In effect, released to hospice care. The Syrian who was framed for the Lockerbie bombing got released on this basis - I was on holiday from the Internet at the time, but I gather to much nastiness from Americans who felt he should have been left to die in jail regardless of how much doubt there was about his conviction.

[Harry]

The death penalty is such an emotional issue. I enjoyed this review of a good book on the topic: http://www.lastingliberty.com/ll-blog/