No Pain, No Gain

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

Texas death row inmates have gone out in style before — some have used their last words to thank the Dallas Cowboys for years of pleasure — but on April 20 Douglas Roberts joined the Kings of Style pantheon.

“Yes sir, warden,” he said when asked if he had any final thoughts before heading to the great beyond. “Okay — I’ve been hanging around this Popsicle stand way too long. Before I leave, I want to tell you all: When I die, bury me deep, lay two speakers at my feet, put some headphones on my head, and rock-and-roll me when I’m dead.”

“Freebird,” dude!

An inmate, a cattle prod and Rice University alum 
Alberto Gonzales -- perfect together.
John Ueland
An inmate, a cattle prod and Rice University alum Alberto Gonzales -- perfect together.
No more time wasted on elaborate last meals. A can 
of Slim-Fast should hold 'em long enough.
John Ueland
No more time wasted on elaborate last meals. A can of Slim-Fast should hold 'em long enough.
You want torture? Force them to watch Mack Brown 
coach against Oklahoma.
John Ueland
You want torture? Force them to watch Mack Brown coach against Oklahoma.

Beyond being inspiring, rockin’ Roberts was a model of efficiency, getting his exit from this Popsicle stand less than nine years after he killed a San Antonio man in a carjacking. In nationwide death penalty terms, that’s an express trip.

And what was the result of all this — a warp-speed execution and a good sound bite?

Not much. The San Antonio media gave it a brief mention, papers across the state ran a few paragraphs, the national media yawned. Only the usual desultory handful of forlorn protesters showed up to be heard the evening of the execution. It was just another night in Huntsville. And if you want to describe “uneventful,” the phrase “just another night in Huntsville” works pretty darn well.

The death penalty in Texas, it seems, clearly is not what it used to be.

What happened to the halcyon days of the 1980s, when hundreds of protesters would flock to the Walls Unit on execution night? Or even the energy of 2000, when George W. Bush, known among death penalty foes as “the Texecutioner,” was signing off on 40 lethal injections in a single year? When Texas — and especially Harris County — was famous worldwide as the bloodthirsty center of state-sponsored killing?

For decades now, Texas has partly defined itself by that busy needle in Huntsville. And now the cachet is slowly wearing off, because of: a) overfamiliarity (hey, even serial killings get boring without the whodunit angle); b) competition from other states trying to out-macho us; and 3) namby-pamby politically correct politicians wailing about complicated stuff like “exonerating DNA evidence,” whatever the hell that means.

Not to mention that there are potential disasters lying in wait. California has a death row population almost 50 percent larger than Texas’s 444. Florida is catching up to us. And — most ominous of all — the federal government is eagerly looking to get into the game. Give those guys a Patriot Act and conservative control of the judiciary, and pretty soon Texas is a downtown mom-and-pop store and the feds are Wal-Mart.

Let’s face it — after 23 years, executions in Texas have lost their buzz. We need to dedicate ourselves once again to the job of appalling the conscience of the world. Fortunately, we have the solution: torture.

Don’t get your liberal panties in a twist — this would all be federally approved stuff. And we’d go to a Texan for the final word: Rice University’s own Alberto Gonzales, the current U.S. attorney general and probable future Supreme Court nominee.

Still, it’s a big step, so first let’s convince you it’s needed.

Don’t think Texas’s killing ways are under attack? Your sad naïveté would be charming if it weren’t so harmful to the statewide self-esteem that comes from offing people.

Texas — and especially our dear old Harris County — has long led the way in the death-row assembly line. Since 1976, there have been 964 executions in the United States, according to the Death Penalty Information Center. Even though Texas didn’t get in the business until 1982, it leads the way, with 342 killings. The next-best state, Virginia, doesn’t even break 100, coming up with a measly 94.

We largely have Harris County to thank for the state’s prominent position. Of the 342 inmates Texas has killed, 77 were convicted by Harris County juries. Of the people currently on death row in Texas, 145 — about one-third — came from Harris County. (If Harris County were a state, it would rank third in executions since 1976.)

So in Texas, and in Houston, we’ve clearly been doing our best to fulfill the killing-machine cliché.

Slowly but surely, however, judicial activists have been chiseling away at the best weapons Texas has at its disposal. Killing the mentally retarded? Forget about that now. Killing juveniles? Also gone, thank you very much, liberal-socialist U.S. Supreme Court.

Even W himself has signed off on reviewing the death row sentences of some Mexican nationals just because there might have been a paperwork foul-up. Is that the Texecutioner we knew and loved? Reviewing cases? This from the man who gave us hilarious imitations of Karla Faye Tucker pleading for mercy? From the man who specialized in the ten-minute speed-reading of death row appeals? Ah, Texecutioner — you’ve changed, man.

Even death penalty advocates feel the ominous chill in the air. The number of capital-murder sentences given out across the nation is at an all-time low in the modern era, according to the DPIC. Only 125 people were sentenced to death in 2004, down from a high of 320 in 1996. (Sure, Texas led the way last year with 23 sentences, but that was just barely twice as much as the next-biggest sentencer, California.)

“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.

Sure, there’s a big moratorium movement on the West Coast. The moratorium movement here in Texas, on the other hand, has a Web site but, perhaps in a tacit acknowledgement that it wields all the political clout of the Flat Earth Society, it also has a spokesperson who doesn’t return media calls.

California remains the Big Threat. States like Ohio and Virginia are killing their inmates as fast as they can, but neither reached double figures in 2004. If they unblock the pipeline in California, media center of the non-New York world, watch out.

Which is why we, as a state, need to call on our native son Alberto Gonzales.

Sure, the world knows Gonzales as Mr. Torture, but that’s just because of the liberal media. There’s another side to Alberto, a sensitive side. Sensitive, that is, to the needs of making sure the courts aren’t tied up forever hearing boring death penalty appeals.

Capital murder cases are expensive. Harris County criminal district courts cost about $12,000 a day to run, says court administrator Jack Thompson, and death penalty cases go on at great length, what with all the extra time spent extensively quizzing potential jurors individually instead of in groups. The state also is required to pay for the defense’s expert witnesses in most cases, for crying out loud.

(It’s not all negative, though. Death penalty advocate Sharp notes that the prospect of death can convince a defendant to plead guilty without trial in exchange for a life sentence. Not to mention that killing folks means you don’t have to pay when they get sick — “Geriatric care in prison can cost up to $69,000 a year for just one person,” he says.

As chief legal counsel to Bush when he was governor, Gonzales did his best to make sure no time was wasted on death penalty stuff. Think of it as triage for society — a chief legal counsel, not to mention a governor, has a whole slew of issues to deal with, so why devote time to the doomed?

The Atlantic Monthly magazine probably thought it was eviscerating Gonzales when it ran an exhaustive study in 2003 of his style of briefing Bush on pending executions. “Gonzales repeatedly failed to apprise the governor of crucial issues in the case at hand,” the article said, such as “ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.” Sounds like a whole bunch of lawyer talk to us, though. If Texas wanted effective counsel on death penalty cases, why would it say it’s okay that a lawyer slept through a trial?

The magazine trotted out the case of Terry Washington, executed in 1997. Gonzales wrote three entire pages for Bush to review, an avalanche of paper that somehow failed to impress The Atlantic Monthly. One of the pages was devoted to details of Washington’s grisly murder of a restaurant manager; this unfortunately did not leave room for Gonzales to mention such things as Washington’s undisputed “limited mental condition” or that as youths he and his nine siblings “were regularly beaten with whips, water hoses, extension cords, wire hangers and fan belts.” Space also precluded Gonzales from telling Bush that the jury that condemned Washington to death never heard about his mental deficiencies or history of beatings even though prosecutors — and Washington’s attorney — knew about them.

But it’s details like that, Gonzales knows, that gum up the works. And if Texas is ever to keep hold of its cherished place on top of the death-penalty hierarchy, we need to un-gum those works.

You may think it doesn’t get much less un-gummed than a content-free, three-page pre-execution memo, but you’re just not thinking Gonzales-style. There are tons of ways to move things along:

1) Pass state House Bill 268, which allows former prosecutors with no experience as defense attorneys to represent capital murder clients. (The bill does not specifically address whether the inexperienced defense attorneys need to be awake during trial.) HB 268 has passed the House and is pending in the Senate. We eagerly await the legislature’s upcoming moves to waive experience as a qualification for other specialized life-and-death jobs. Who says a chiropractor can’t perform open-heart surgery?

2) Post-conviction writs should be filed by instant messaging. “B4 U decide, RU going to C my evidence? No? OK. CUL8R!!”

3) Offer prosecutors the option of next-day service on all opinions. Why take months to decide after an appeal is argued? Did Roger Ebert take months to give Gigli a thumbs-down?

4) No more elaborate last meals. Why should the state spend tax dollars and employee time trying to run down every last example of redneck cooking? Slap a Slim-Fast can on the IV before you put in the lethal injection. That oughta hold the guy long enough. (If you’re going to get in a dither about being inhumane, also offer Campbell’s Soup To Go!)

Still, it’s obvious that speeding up the process is going to take things only so far. And that’s where the real talent of Alberto Gonzales comes in.

As White House counsel, Gonzales submitted memos outlining just how far the Constitution allows an administration to go when it comes to torturing people. You might be surprised that the answer is…pretty damn far.

It’s gonna take some balls to put Texas back on the world’s outrage map, and balls Gonzales has. Any White House lawyer who argues that the Geneva Convention is “quaint” obviously has what it takes.

In an August 2002 memo, Gonzales outlined the pros and cons of dropping the Geneva Convention. Among the pros: Doing it “preserves flexibility.” Among the cons: “Concluding the Geneva Convention does not apply may encourage other countries to look for technical ‘loopholes’ in future conflicts to conclude that they are not bound by [the Convention] either.”

Now that is the Rice-bred thinking we need — when we do it, it’s to preserve flexibility. When they do it, they’re looking for loopholes.

Not to mention Gonzales’s definition of torture. Unless there’s “death, organ failure or serious impairment of bodily functions,” you’re just having some good, clean fun.

So we say it’s time for Alberto Gonzales to come home. Texas needs him. In fact, the world needs him, because a world that cannot look down in horror at Texas prisons is not a world worth living in.

Just think of all the things the Texas Department of Criminal Justice can do that don’t involve death or organ failure:

A Clockwork (Burnt) Orange
In Stanley Kubrick’s classic movie A Clockwork Orange, the character of sociopath Alex de Large is forced to rehabilitate by being strapped to a chair with his eyes pried open so he has no choice but to watch whatever his captors want him to see.

In Texas there are many, many awful things that would have the most hardened criminal screaming for mercy and set solidly on the road to recovery. You could put on KPRC news during a sweeps month — sure, the shouts of “Cynthia Hunt putting on a fat suit to shop with a hidden camera? And they say I’m guilty of crimes!” might get tiresome, but no one said ignoring the Geneva Convention was easy.

You could put on Time Warner’s public access channel, to determine just how long it takes for someone to go nuts by watching slightly out-of-focus, stationary-camera coverage of an incompetent speaker talking about the Trilateral Commission or Jesus. Or sometimes both.

But if revenge is what you seek on a person who has committed a heinous crime, there is no better choice for a Texan than to put on video of every Texas-OU game coached by Mack Brown. For really despicable offenders, you can splice in press-conference coverage of every national signing day when Brown has once again been declared the nation’s best recruiter.

Sure, there may be some “serious impairment of bodily functions” — your fingers will never again be able to form the “Hook ’em Horns” sign — but we’re not sure the Geneva Convention folks will notice. Besides, they think “football” is soccer. (As does Brown, at least in terms of points scored against OU.)

For at least some Texans, this procedure will have them begging for the lethal-injection needle. Aggies, of course, would enjoy the show. Then again, Aggies don’t commit capital crimes. Except of taste.

Don’t Mess with Texas
The entire Alberto Project is designed, of course, to bring Texas back to its proper place of world scorn. Therefore it will require using all the deep, rich history of the Lone Star State to drive the point home.

What says “Texas” more than cattle prods? Nothing, that’s what. But why keep ’em down on the farm?

All right, all right, we already hear you naysayers out there. Yeah, yeah, we know: Applying electrical shocks is so Abu Ghraib. And we also realize that the Houston Police Department is ahead of the curve on this with its energetic use of Tasers on anyone without a “100 Club” sticker on their car.

But it’s not just a matter of cattle prods. It’s how you use them.

We realize this is where the Alberto Project may run into some political trouble in Austin. Implementing the proper use of cattle prods would require state legislators to sign off on some changes to the sodomy law, and you know how tough that might be.

And man, all the wrinkles to be considered. Say you’ve got a TDCJ guard doing the implementing. Is he thus labeled a sodomite and forever banned from marrying? (It’s gotta say that in the Bible somewhere.) Is it possible he might find himself enjoying the procedure, and therefore the lege would have been instrumental in creating even one more sodomite? (Not counting their support of the arts, meager as it is.)

The mind boggles, to be sure. But that’s why we have lawyers. And since these lawyers won’t be busy tying up courts with capital appeals, why not put them to work?

If there’s anything that says “Texas” more than cattle prods, it’s fire ants. Strap the inmate down, pour on the honey, and let these six-legged homeboys do their bit to reduce recidivism. If you want to push the envelope, put on a Clint Black album.

Texas offers many more gloried pieces of history that can be used to great effect — especially for Hispanic inmates. It’s time we put a real Lone Star stamp on our efforts.

Y’all Ready for This?
It’s possible, in this emasculated age of weepy liberals, that there will be some objections to portions of the project. If the Ball-Lacking League decides to raise a fuss, we’re willing to bend on some aspects.

If, for instance, introducing the healthy alternative of Slim-Fast for a last meal somehow draws howls, we are willing to go another way. You want a last meal? You got one.

Good-bye, chicken-fried steak and Tater Tots. Hello, Joe’s Crab Shack.

What began on Richmond Avenue 14 years ago has turned into a nationwide phenomenon, yet another test-marketed, micromanaged “dining experience” produced by Tilman Fertitta.

The Geneva Convention couldn’t even imagine the horror involved: the long wait, spending money on drinks while you stare at empty tables; aggressively bland, overpriced seafood; screaming kids at the next booth.

And always, always, the looming dread of what is to come when the waiters put down their trays, grudgingly work up a “We’re so wacky!” smile, and launch yet again into “The Macarena” or “YMCA” at the scheduled spontaneous time.

With all the sheer enjoyment of someone attending an office birthday party for an asshole boss, these game guys and gals plod their zany way through yet another ear-splitting forced-march performance of “Staying Alive” as you try to eat. Or get some more beer for your table.

If anything could increase the joy of pseudo-Cajun étouffée, it’s watching waiters dutifully pull some eight-year-olds from the crowd to join in on “The Cotton-Eyed Joe.”

“Kill me now!” your inmates will scream, thereby helping to speed up the death row process.

True, even the White House balked when Fertitta patriotically offered to open a branch at the detention center in Guantánamo Bay (“Good Lord,” Dick Cheney reportedly said, “we are a civilized nation, are we not?”).

But desperate times call for desperate measures.

“Disco Inferno,” anyone?

Driven Insane
Houston leads the state in sending people to death row, so it should play a big part in the Alberto Project. Luckily, the infrastructure is in place.

Joseph Stalin would have shied away from it, to be sure. Idi Amin would have accused it of lacking compassion. But sometimes you have to engage in some ToughLove (pat. pending).

The method is simple. Get the kind of car a working-class Houstonian can afford, with an a/c system that same working-class Houstonian can afford to keep up. From the downtown jail, have the inmate drive the Southwest Freeway to the West Loop to I-10 back downtown. Be sure to have the radio on. To any local station.

We can hear some of you grumbling already — this is where you draw the line. Not even the brilliant legal mind of Alberto Gonzales would be able to get this past the torture judges, you say. We might agree, if the trip involved rain, but even the most enthusiastic advocates of the Alberto Project would not be so cruel as to include that.

We admit it comes close, damn close, to anyone’s definition of torture. The orange cones that protect workers who are never there, the endless waiting to move up even one foot, the sheer terror that someone might just pull over to the shoulder with a flat and then compound the agony tenfold, as drivers take time to intently study the crippled car.

But dammit, no one said this would be as painless as lethal injection. (Which, according to recent studies, turns out to be not so painless anyway.)

There are many other methods that can be devised to exact society’s price. The heart may shudder at the mere mention of such phrases as “Astros season tickets” or “living in Dallas” or “forced to watch a primary between Rick Perry and Kay Bailey Hutchison.” But these are serious times; they call for serious steps.

And they call for a serious man. Texas has given us this man, tutored by the Texecutioner himself, and it would be sheer folly to ignore this resource.

Alberto, come home. The world is waiting.

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