No Pain, No Gain

Our solution for saving Texas's claim to capital punishment fame

“Things go in cycles in the history of the death penalty, and all this is just a natural course of action,” says Andy Kahan, Mayor Bill White’s victims’ rights advocate.

Things like moratoriums, or eliminating some categories of people eligible for death, are, he says, “always driven by a case or a glitch in the system, and there have certainly been those when it comes to the death penalty.”

There are still some head-in-the-sand optimists like Dudley Sharp, the former head of Houston’s Justice For All and now a freelance death-penalty advocate and expert.

To be sure, Sharp admits, “there’s definitely a more organized anti-death-penalty movement these days.” He allows that some fellow advocates see the Supreme Court’s ruling barring juveniles from being tried for capital murder as “a major change, a parting of the seas, where you have the majority of the court relying on or calling to European opinion” (with “European opinion” being pronounced as if it were “Michael Moore”).

Even with all that, Sharp resolutely stands determined to look at the bright side of life. “There hasn’t been an execution in New England in 45 years, and they’ve got one scheduled for May,” he chirps.

He blames the media for highlighting so many stories of death row prisoners being exonerated, saying many of those cases are just being sent back to the courts. No more than “30 or 40 are innocent,” he says, “and I think that’s probably a high figure.”

(In case you’re wondering, 30 or 40 innocent people put to death would come under the category of You Can’t Make an Omelette Without Breaking Some Eggs. “No one,” Sharp says, “wants to see an innocent person sentenced…but if you’re going to have no death sentences because there may be some innocent people sentenced, would there be any sentences at all for any crimes?”)

At any rate, Sharp is not too worried about the status of the death penalty. “The overwhelming reason for the drop in death penalty cases is due to the overwhelming reduction in murders,” he says.

Not everyone is so sanguine. Harris County District Attorney Chuck Rosenthal complained earlier this year that a bill allowing juries to sentence capital murder defendants to life without parole would reduce the number of death penalties. That bill has passed the state Senate and is pending in the House; Governor Rick Perry has said he’d sign it, another indication of the death penalty apocalypse.

It’s not surprising that Rosenthal doesn’t want anything cutting into his office’s death penalty convictions; in recent years Harris County juries have actually thrown away the rubber stamp they previously used to dole out death.

“The days of the D.A.’s office getting the death penalty in every case where the D.A. seeks it are as dead as Miles Davis,” says Houston lawyer Brian Wice, a specialist in criminal appellate law.

That’s partly due to better representation, he says. The state that became famous for having a defense lawyer sleep through the capital murder conviction of his client has, through mandatory legal education courses, improved itself. (Yet another death-penalty-apocalypse sign, for those keeping score.) Pay for court-appointed lawyers has even improved slightly. and the attorneys are focusing more resources on the punishment phase of trials rather than the guilt/innocence portion, says death penalty expert and University of Houston professor David Dow.

“That’s the reason you’re seeing more life sentences” instead of death verdicts, Dow says.

(For what it’s worth, the Harris County D.A.’s office says that — despite some recent high-profile death rejections like that of Andrea Yates — their killing average is as good as ever. The office seeks anywhere from 12 to 18 death penalties each year, First Assistant D.A. Bert Graham says, “and it seems like it’s always been that in about 80 percent of them we do get a death penalty verdict…Maybe it’s a little lower now, but I’m not so sure.”)

What this all means is that you can forget the assembly-line years like 2000. Texas has managed to kill more than 30 inmates a year only once since then, and so far this year only six inmates have been killed. It’s like a death row version of major-league home-run statistics after they cracked down on steroids.

Even Californians are taunting us. “You’re not even in first place in the world — China kills 3,000 people a year,” says anti-death-penalty advocate Jeff Gillenkirk of San Francisco.

Gillenkirk’s group, Death Penalty Focus, is where Stefanie Faucher guides a statewide coalition of organizations pushing for a moratorium on capital punishment.

She, too, sees Texas’s premier position as “the Killing State” to be in jeopardy. “California is certainly in a position of gearing up for a Texas-style run of executions, sadly,” she says, sadly. “A lot of cases that have been held up in the courts for 15 to 20 years are starting to come through this fall.”

An increasingly conservative Ninth U.S. Circuit Court of Appeals is to blame, she says. If California decides to get all death-penalty happy, Texas could truly be looking at sucking hind teat.

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