Wednesday, September 21, 2011

Even Rick Perry's record on capital punishment doesn't really stand up

As I write this, people of conscience around the United States await the likely wrongful execution of Troy Davis for a crime that there is most certainly reasonable doubt that he committed. It got me thinking back to the Tea Partiers openly cheering for the death penalty, when the moderator questioned Rick Perry during that recent Republican Presidential primary debate:
WILLIAMS: Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. Have you…

There's a lot wrong with this, even aside from the supposed "pro-life" crowd cheering for death, it turns out that Perry has very little to do with Texas' rate of executions, and it's even quite arguable that Texas does not lead the nation in the pace of executions; Oklahoma has a strong claim to that title.

Now I am a straight up, unapologetic opponent of all capital punishment for any reason and under any circumstances. This diary is not for that debate, but if you want my reasoning, here you go. You may also want to read this which discusses a real case in Virginia that highlights how the mere existence of the death penalty perverts the normal function of justice and coerces false confessions.

What I really want to do here is note that the progressive line on Texas as being governed by sociopaths like Bush and Perry as an explanation for its high rate of executions is flawed. Bush and Perry are of course very likely sociopaths (or "high social dominators" if you like Bob Altemeyer's work), but it turns out that Texas Governors have surprisingly little power in this process. You may have heard sometimes that Texas is a "weak Governor" state, and that is a fair description of the Governor's powers vis-a-vis executions (for a general primer on Texas' weak Chief Executives, try here).

My own facile vision of the typical US execution involves the Governor signing a "death warrant" or some other legal document that sends a condemned prisoner to the death chamber. In the movies, there's always a moment where everyone wonders if that special phone in the chamber is going to ring, indicating a reprieve of some sort by the Governor. The implication is that the Governor really has the power over life and death, both directing the specific executions of those so-sentenced by the Judicial system, and being the last line of defence in halting an execution.

Well, if you read the details on Texas, very little of that applies. Let's recap some key features on how someone goes from arrest to lethal injection:

  • Texas criminal trials are conducted in district courts under Judges who face local partisan elections (so the Governor doesn't appoint them)
  • Prosecutors are similarly locally elected (so neither the Governor nor Attorney General has control of what cases they pursue and whether they seek the death penalty, and for that matter the Attorney General is a seperately elected office anyway)
  • Juries have the final say on whether a convicted murderer gets the death penalty, if the prosecutor has requested it
  • Judges, not the Governor actually schedule executions (after requisite review and appeals have taken place)
Now a person has gone from arrest to the very doors of the death chamber, and the Governor has had no formal influence over the process. But the Governor does have a role at this point, however, it is fairly limited even there (from the above link):
At the same time that the defense is exhausting its legal appeals, it may file a petition with the Texas Board of Pardons and Paroles. The members of the parole board are appointed by the governor. The board has the power to recommend everything from a 120-day reprieve, to a commuted sentence, to a full, unconditional pardon. The board does not meet as a body; rather, each member considers the case and faxes his or her vote to the governor. The governor may also request that the board members issue a certain ruling, but they do not have to comply. The parole board's vote is almost always taken the day of the execution. Decisions are rendered by majority vote. A favorable recommendation must then receive the governor's approval in order to take effect. If the governor rejects the board's recommendation to grant clemency, it is not granted.

Without a court ruling or parole board recommendation, there is only one person that can stop the execution, and that is the governor, who has the unilateral authority to grant a 30-day stay. This power may be used only once per prisoner. Even if the execution ends up being delayed for years, when it is ultimately reset, the governor (or his/her successor) may not issue another stay for that prisoner. Because of this, the governor always waits until every other last resort has failed, which means that if a stay is issued, it will be within hours or even minutes of the execution time.
The Governor cannot commute a death sentence without a majority vote recommendation of the Texas Board of Pardons and Paroles. He does appoint members to that board (subject to State Senate approval) but cannot fire them so (s)he really has very little ability to direct their votes. At most, on their own Texas governors can grant a 30-day stay. While that's not nothing, and may be enough to save a life in the event that some convict really has some shot of persuading a court to act, in practice most convicts face some very steep legal barriers to do more than delay their executions and even if you elected a Governor who promised to stop every execution he or she could, I doubt they could stop more than a small percentage of the executions. If you remember Illinois Governor Ryan's famous 2003 mass commutation of all death row inmates, it's useful to know that the Governor of Texas could not do such a thing.

Perry knows this of course. If we go back to that Republican debate, after the cheers here's the exchange between Williams and Perry:
[Williams:] Have you struggled to sleep at night with the idea that any one of those might have been innocent?

PERRY: No, sir. I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which — when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required.

But in the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is, you will be executed.
Notice Perry takes no personal credit for the executions. He describes it in terms of an automated process. If you do X, Y will result. Nothing really to do with him.

When I read through the Texas system, instead what I see is a system that is set up to widely distribute responsibility for death sentences so each actor in the play only has a moderate part: The prosecutor only decides whether or not to "seek" it, each member of the Jury is only 1 of 12 and has the psychological cover of group dynamics, the sentencing Judge actually has no discretion, and everyone up to this point knows there will be an automatic review by another court. Yet another Judge actually does the scheduling of the sentence. As for the Governor, (s)he really needs a positive recommendation from another group in order to actually prevent the sentence happening, otherwise it is automatic, and the governor never has to sign off on anything for the sentence to be carried out. When Perry says he doesn't lose any sleep over the number of Executions in Texas, it's fairly easy to see why even someone ambivalent about capital punishment in his job might feel the same: It's not really their doing. Like so many great travesties, it is the collective actions of many that lead to this result, so no individual really needs to feel particularly responsible for the outcome. It's a neat trick (and sheer collective cowardice in my view), and I think this, much more than the personal characteristics of the more recent Texas Governors explains why Texas kills so many people. For a state so inured in the ideology of conservativism, which demands "personal responsibility," ironically Texas' judicial system kills people without any.

But Does Texas really fry the most?

This one is a little more debatable, but for my money, the real metric that matters most is the per-capita rate of executions, rather than the raw numbers (it is somewhat similar to people who use the raw numbers of America's finances to make it sound scarier, rather than discussing things like debt as percentage of GDP). Texas is a very big state, and so it is easy for such a place to execute relatively few convicts and still beat out in absolute terms much smaller states that execute even 100% of the people they convict of capital crimes. Fortunately, no state actually executes 100% of its death row inmates, but Oklahoma actually comes closest.

It turns out that Oklahoma has more people on death row per capita, and executes more people per capita than Texas. Texas 12.73 inmates on death row per million residents, and has executed 18.8 people per million since 1976. Oklahoma has 20.67 per million on death row, and has executed 25.78 per million in the same period, which is by far the leader among US states. Texas is still pretty high on the relative rankings, but if Oklahoma was the same population as Texas, by my quick calculation it would have executed over 640 people since 1976, versus Texas' 474.

So by my reckoning, this is another hollow Texas governor whose record even on one of the right's most cherished subjects is as phony as George Bush's brush ranch. More importantly, we who oppose capital punishment have been letting Oklahoma off the hook while distracted to some extent by the sheer raw numbers in Texas. Progressives in these states, or others with capital punishment who want to at least reduce the number of executions should consider the various points in the system that lead to such vast differences from state to state at every step in the process, from the number of times the prosecution seeks death, the number of times the sentence is granted, through to how often the state actually goes through with executions. While banning capital punishment is of course preferable, there are plenty of significant legal reforms that can take place to vastly reduce the actual number of executions that take place while leaving the death sentence legally in place. It would be interesting to see what would happen if Democrats in some red state merely demanded that the law be changed so that the State's governor accept personal final responsibility for whether each death sentence took place, and had to sign his name on a document authorizing the execution the very day of the act. I think most people who support the death penalty support it being done by other people. Anyway, something to think about.

1 comment:

  1. wow, what a devilishly designed system.

    terrific post daniel! thanks!