Capital Punishment in Texas: Fairness, Race, and Reform

Introduction: Capital Punishment in Texas

Few issues in American criminal justice provoke as much debate as capital punishment in Texas. The state has carried out more executions than any other in the nation, and it has attracted sustained scrutiny from legal scholars, criminologists, journalists, and human rights advocates. The sources reviewed here — spanning law review articles, criminological studies, journalistic accounts, and books — collectively examine whether the death penalty in Texas is applied fairly, whether it serves its intended social purposes, and what reforms, if any, might address its documented failures.

Legal Challenges and Appellate Review

Khalil, Samy. "Doing the Impossible: Appellate Reweighing of Harm and Mitigation in Capital Cases after Williams v. Taylor, with a Special Focus on Texas." Texas Law Review, 80(1), November 2001. ProQuest Database.

In this article, Khalil examines how state and federal courts have overturned death sentences during the period from the reinstitution of the death penalty in 1976 to 2001. The author focuses on sentences that have been overturned due to the failure of defense lawyers to both investigate and present mitigating evidence at trial. Khalil makes a strong argument by referring to Williams v. Taylor, which holds that appellate courts cannot be expected to reweigh harm and mitigation when attorneys have failed to provide adequate defense representation. In the case of Texas, the author rightly observes that appellate courts would have difficulty reviewing all capital cases arising from the state, since even fact-finders in Texas are not required by law to conduct such balancing inquiries. These factors combine to present a powerful legal argument against the death penalty as currently administered.

Hall, Michael. "Death Isn't Fair." Texas Monthly, 20(12), December 2002. EBSCO Database.

This article presents a strong case for reforming the system of capital punishment in the United States, with a particular focus on Texas. To bolster his argument, Hall presents examples showing how the state has executed people who were juveniles at the time of their offenses, people who were not adequately represented by counsel, and even people who were intellectually disabled. Other death penalty cases resulted from overzealous police officers and prosecutors. The appellate courts, meanwhile, are often unable to evaluate cases involving inadequate defense counsel. Because of these factors, Hall argues that Texas has been widely criticized by legal and human rights scholars around the world. While the author concludes that Texas will likely maintain the death penalty as long as the Supreme Court permits it, the article presents powerful individual stories that question the fairness of capital punishment's application in the state.

"Supreme Court OKs Review of Texas Death Row Case." Jet, 103(12), March 2002.

In another example that throws the fairness of the death penalty into question, this article examines the case of Thomas Miller-El, who was granted a new hearing after spending time on death row since 1985. The United States Supreme Court ruled that the defendant deserved an opportunity to investigate his claim that prosecutors had filled the jury with death penalty supporters and Caucasian members. In his original trial, Miller-El was found guilty of capital murder in the killing of a Holiday Inn employee by a jury of nine white jurors, one Filipino, one African American, and one Hispanic juror. The U.S. Supreme Court ruled that Miller-El was eligible for a hearing to determine whether Dallas County prosecutors had violated his right to a trial free from racial discrimination when they excluded 10 of 11 eligible African American jurors. While not focused on the death penalty per se, this article illustrates the importance of extra-legal factors — such as a jury's racial composition — in death penalty cases.

Racial Bias and Arbitrariness in Sentencing

Brock, Deon; Cohen, Nigel; and Sorensen, Jonathan. "Arbitrariness in the Imposition of Death Sentences in Texas: An Analysis of Four Counties by Offense Seriousness, Race of Victim, and Race of Offender." American Journal of Criminal Law, 28(1), Fall 2000.

In this article, arbitrariness is defined as "the absence of a legitimate justification for an action or pattern of actions." The authors challenge the notion that the death penalty is applied in a non-arbitrary manner, in which the level of an offender's culpability consistently determines the weight of the sentence. Through an analysis of murder arrest and death penalty conviction data obtained from the Texas Department of Public Safety, the authors find that the imposition of the death penalty is often made in an arbitrary manner. Some defendants convicted of lesser crimes received death sentences, while others responsible for more brutal crimes received life sentences instead.

The authors found that in Harris County, Dallas, Fort Worth, and San Antonio, the greatest predictor of a death sentence was the race of the victim. Interracial crimes involving a white victim were significantly more likely to result in a death sentence. These findings build on previous studies examining the relationship between victim race and capital sentencing, and they represent a strong analytical contribution to the body of research on race and capital punishment.

Holmes, John B. "Dealing Out Death." Texas Monthly, 30(7), July 2002. ProQuest Database.

In this opinion article, former Harris County District Attorney John Holmes defends his record of seeking the death penalty in a high percentage of the capital murder cases he handled. Holmes argues that, according to law, juries should have the option of imposing the death penalty. He cites the case of Andrea Yates, the mother who killed her five children during what was argued to be an episode of postpartum depression. Holmes also argues for victim rights, citing the example of the husband of a woman murdered by the repentant killer Karla Faye Tucker. Finally, Holmes contends that the laws of Texas must be applied within Texas, and that only Texans have the right to decide death penalty cases arising within their jurisdiction.

Many of the arguments in this article represent what might be called the "common sense" case for the death penalty. However, they fail to take into consideration the inherent unfairness of applying harsher sentencing standards in Texas than elsewhere, or the question of whether the law is equitably applied. Furthermore, Holmes himself states that "prosecutors shouldn't seek [the death penalty] unless they believe a reasonable jury would give it." This is a sobering statement, particularly in light of the documented role that race plays in death penalty sentencing decisions.

Conclusion: Democracy, Sovereignty, and the Killing State

Sarat, Austin. The Killing State: Capital Punishment in Law, Politics and Culture. New York: Oxford University Press, 1999.

In this book, Austin Sarat edits a collection of essays that ask fundamental questions about the death penalty. These include questions about the fairness of capital punishment and the validity of its deterrent effects. The book examines the historical quest for more "humane" methods of execution, from the rope and the electric chair to lethal injection. Sarat also analyzes portrayals of capital punishment in the media and popular culture, including in film. Drawing on these essays, he argues that state executions function as "symbolic displays of power" that Americans have adopted as an expression of sovereignty. The clandestine nature of executions, he further suggests, reveals a collective reluctance to take full responsibility for these state-sanctioned killings.

These sources collectively provide cogent arguments regarding the divisive nature of the death penalty in American culture — arguments that apply with particular force to Texas. Sarat demonstrates that rather than providing social protection, the death penalty may actually undermine democracy by failing to establish consistent and fair controls over the ultimate exercise of state power. Taken together, the sources reviewed in this paper make a compelling case that capital punishment in Texas warrants serious, sustained legal and moral scrutiny.