September 13, 2012

Editorial: Death penalty Texas style? No, thank you

California never will emulate Texas' system of capital punishment. Nor should Californians want to.

California never will emulate Texas' system of capital punishment. Nor should Californians want to.

There have been 1,304 executions across the country since 1976, when the U.S. Supreme Court reinstated capital punishment. Texas has accounted for 484 state-sanctioned killings, 37 percent. California has executed 13, less than 1 percent. Both numbers raise fundamental questions about equity and equal protection nationally.

California's capital punishment system clearly is broken, one reason why The Bee reversed its long-held support for the ultimate punishment for the most heinous crimes.

Texas' system is troubled, too, but for very different reasons.

Texas has a record of taking shortcuts with the law. It has executed individuals who had poor legal representation and has disproportionately meted death sentences to African Americans and other people of color. As we noted in the first installment of this series, there is strong evidence that in 1989 Texas executed a man who may have been innocent, Carlos DeLuna.

In California, judges are nonpartisan and avoid partisan activities. Texas judges run in partisan elections for the highest criminal appellate court in the state, the Court of Criminal Appeals. Not surprisingly, they don't hide their tough-on-crime bias.

The Texas Court of Criminal Appeals shrugged off the appeal of another death row inmate who was tried by a judge who was having a romantic affair with the prosecutor. The U.S. Supreme Court refused to hear the case, effectively upholding the sentence.

In 2007, Sharon Keller, the Texas court's presiding judge, ordered the courthouse doors locked at 5 p.m. sharp, denying attorneys for a death row inmate time to file a last-minute appeal. The man was executed later that evening.

Until relatively recently, Texas, unlike California, did not automatically assign attorneys to represent death row inmates in habeas corpus appeals.

Although Texas is changing, Texans facing death for years were assigned lawyers who were notoriously inexperienced and overworked.

The Houston Chronicle has reported that at least six people were executed in Texas because their attorneys failed to meet deadlines. An attorney who represented one death row inmate accepted 360 cases in a single year, and was so harried that he missed a deadline for filing an appeal. The client ultimately was executed in March, professing his innocence.

The U.S. Supreme Court often has rebuked the California-based 9th U.S. Circuit Court of Appeals over its handling and mishandling of death cases.

But the high court also has overturned the Texas Court of Criminal Appeals and the 5th U.S. Circuit Court of Appeals, which oversees Texas state courts, for their cavalier attitude toward death cases. A review of some notable cases illustrates the larger point that California should not try to become more like Texas.

High court overturns rulings

In 2004, the U.S. Supreme Court overturned a Texas death sentence after a Dallas County training manual for prosecutors surfaced that cautioned against selecting African-American, Jewish, Latino or Italian-American jurors because they might be squishy on capital punishment.

In 2005, the U.S. Supreme Court held that people whose crimes occurred when they were juveniles could not be sentenced to death. In the 10 years leading to that decision, Texas was one of only three states that executed people for crimes committed when they were under age 18. California's death penalty statute precluded juveniles from facing the death penalty, rightly so.

Then there is the case of Scott L. Panetti.

He killed his in-laws in 1992. Of that there is no doubt. He committed the crimes in front of his wife and toddler. There's also no doubt that he is severely mentally ill. He had been hospitalized 14 times for mental illness before the crimes, according to his attorney, Keith Hampton of Austin.

Shockingly, the trial judge allowed Panetti to act as his own lawyer. In that role, Panetti sought to subpoena Jesus Christ, actress Anne Bancroft and John F. Kennedy to testify, and came to court dressed in a Tom Mix-like cowboy outfit.

By a 5-4 vote, the U.S. Supreme Court blocked his execution in 2007, and sent the case back to Texas courts. But Panetti remains on death row, convinced that the Lone Star State is conspiring with Satan to prevent him from preaching the Gospel.

In special circumstances cases – those that could result in death sentences – juries in California long have had the option of imposing either life in prison without parole or death. Texas only started giving jurors that option in 2005.

Since then, Texas' death sentences have declined significantly. Juries and judges sentenced eight people to death in 2011, down from an average of almost 22 in the three years before the change in the law and a high of 40 in 1996.

Race cannot be ignored. Texas has carried out seven executions this year; another nine are scheduled by year's end. Eight of the 16 are African Americans and five are Latinos. In a state where less than 12 percent of the population is black, African Americans make up more than 40 percent of the condemned population.

California backlog worsens

The California Supreme Court has been controlled by nominees of Republican governors since 1986. Since then, the California high court has affirmed nearly 300 death sentences.

But the logjam worsens, in large part because of the federal courts, but also because of the years it takes to assign appellate attorneys to handle the appeals, and certify trial court records as complete.

The U.S. Supreme Court's conclusion that capital punishment is constitutional will stand for the foreseeable future. But the death penalty has become a Southern phenomenon. Southern states have executed 82 percent, or 1,068, of the 1,304 inmates put to death since the U.S. Supreme Court reinstated capital punishment in 1976.

California voters have no say over the death penalty in other states. But they do control the death penalty in this state. Whether voters support the death penalty or not, they should face reality. California simply will never become Texas.

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