Capital punishment in Texas

History

The first recorded execution in Texas occurred in 1819 with the execution of a white male, George Brown, for piracy. In 1840, a black male, Henry Forbes, was executed for jail-breaking. Prior to Texas statehood in 1846, eight executions—all by hanging—were carried out.

Upon statehood, hanging would be the method used for almost all executions until 1924. Hangings were administered by the county where the trial took place. The last hanging in the state was that of Nathan Lee, a man convicted of murder and executed in Angleton, Brazoria County, Texas on August 31, 1923. The only other method used at the time was execution by firing squad, which was used for three Confederate deserters during the American Civil War as well as a man convicted of attempted rape in 1863.

Texas changed its execution laws in 1923, requiring the executions be carried out on the electric chair and that they take place at the Texas State Penitentiary at Huntsville (also known as Huntsville Unit). From 1928 until 1965, this was also home to the state's male death row. The first executions on the electric chair were on February 8, 1924, when Charles Reynolds, Ewell Morris, George Washington, Mack Matthews, and Melvin Johnson had their death sentences carried out. The five executions were the most carried out on a single day in the state. The state would conduct multiple executions on a single day on several other occasions, the last being on September 5, 1951. Since then, the state has not executed more than one person on a single day, though there is no law prohibiting it. A total of 361 people were electrocuted in Texas, with the last being Joseph Johnson on July 30, 1964.

The United States Supreme Court decision in Furman v. Georgia (408 U.S. 238 (1972)), which declared Georgia's "unitary trial" procedure (in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment) to be unconstitutional on the grounds that it was a cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, essentially negated all death penalty sentences nationwide. At the time of the decision 52 inmates (45 on death row and seven in county jails awaiting transfer to TDCJ) had been given the death penalty; all were commuted to life in prison.

The Furman decision led to a 1973 revision of the laws, primarily by introducing the bifurcated trial process (where the guilt-innocence and punishment phases are separate) and narrowly limiting the legal definition of capital murder (and, thus, those offenses for which the death penalty could be imposed). The first person sentenced to death under a new Texas statute was John Devries on February 15, 1974; Devries hanged himself in his cell on July 1, 1974 (using bedsheets from his bunk) before he could be executed.

The Supreme Court decision in Gregg v. Georgia in 1976 once again allowed for the death penalty to be imposed. (A Texas case was a companion case in the Gregg decision and was upheld by the Court; the Court stated that Texas' death penalty scheme could potentially result in fewer death penalty cases, an irony given that post-Gregg Texas has by far executed more inmates than any other state.) However, the first execution in Texas after this decision would not take place until December 7, 1982 with that of Charles Brooks, Jr.. Brooks was also the first person to be judicially executed by lethal injection in the world, and the first African American to be executed in the United States since 1967.

In the post-Gregg era, Texas has executed 537 people. There are a variety of proposed legal and cultural explanations as to why Texas has more executions than any other state. One possible reason is due to the federal appellate structure – federal appeals from Texas are made to the United States Court of Appeals for the Fifth Circuit. Michael Sharlot, dean of the University of Texas at Austin Law School, found the Fifth Circuit to be a "much more conservative circuit" than the Ninth Circuit to which federal appeals from California are made. According to him, the Fifth is "more deferential to the popular will" that is strongly pro-death penalty and creates few legal obstacles to execution within its jurisdiction. As of 2004, however, Texas may have a lower rate of death sentencing than other states, according to a study by Cornell University.

Texas has executed nine women in its history, the most recent being Lisa Ann Coleman on September 17, 2014.

Capital offenses

Under Texas statutes, a murder is capital if the offender:

1. Murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman
2. Intentionally commits the murder in the course of committing or attempting to commit aggregated kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat
3. Commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration
4. Commits the murder while escaping or attempting to escape from a penal institution
5. Commits the murder, while incarcerated, of a person who is employed in the operation of the penal institution or with the intent to establish, maintain, or participate in a combination or in the profits of a combination
6. Commits the murder while incarcerated for murder; or while serving a sentence of life imprisonment or a term of 99 years for aggravated kidnapping, aggravated sexual assault or aggravated robbery
7. Murders more than one person during the same criminal transaction or during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct
8. Murders an individual under 10 years of age
9. Murders another person in retaliation for or on account of the service or status of the other person as a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court.

Texas statute books still provide the death penalty for aggravated sexual assault committed by an offender previously convicted of the same against a child under 14, but the death penalty for this crime is no longer constitutional since the 2008 U.S. Supreme Court case Kennedy v. Louisiana.

The victim's age under which child murder is punishable by death was raised from six to 10 in 2011 by the Texas legislature.

Legal procedure

The prosecution may choose not to seek the death penalty. This can be for various reasons, such as the prosecution believing that they could not show the defendant worthy of death, or the family of the victim has asked that the death penalty not be imposed.

Trial phase

When the prosecution seeks the death penalty, the sentence is decided by the jury. A death sentence must be unanimous, while a life sentence requires only 10 votes.

In case of a hung jury during the penalty phase of the trial, a life sentence is issued, even if a single juror opposed death (there is no retrial).

Jurors in the sentencing phase are first asked to determine whether the defendant represents a future danger to society; only after ruling that "there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" will the jury choose the sentence itself, by deciding whether there is "sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed" or not.

Appeals

The imposition of a death sentence in Texas results in an automatic direct appeal to the Texas Court of Criminal Appeals, the state's highest criminal tribunal (the intermediate Texas Court of Appeals is bypassed). A person convicted of capital murder may also attack their convictions or sentences via writs of habeas corpus at both the state and federal levels.

Texas's appeal process has been criticized as too lengthy compared to other states such as Virginia by death penalty supporters. In 2016, the legal director for the Criminal Justice Legal Foundation Kent Scheidegger said: "In Texas, part of the problem is some cases go back for a second review to the trial court and some trial courts just sit on them for years. That simply shouldn't be allowed."

Clemency

In addition to seeking judicial review of the sentence, a defendant may also appeal to the Texas Board of Pardons and Paroles, a separate agency from TDCJ, for commutation of the sentence to life in prison.

The Board, after hearing testimony, decides whether or not to recommend commutation to the Governor of Texas. If the Board recommends commutation, the Governor can accept or reject the recommendation. However, if the board does not recommend commutation, the Governor has no power to override the Board's non-recommendation (the law was changed in 1936 due to concerns that pardons were being sold for cash under the administrations of former Governor James E. Ferguson and later his wife and Texas's first female Governor Miriam A. Ferguson).

The only unilateral action which the Governor can take is to grant a one-time, 30-day reprieve to the defendant, and can do so regardless of what the Board recommends in a particular case.

Since Texas reinstated the death penalty in 1976, only two defendants sentenced to death have been granted clemency by the Governor after a recommendation from the Board:

Death row

Male death row inmates are housed at the Polunsky Unit in West Livingston; female death row inmates are housed at the Mountain View Unit in Gatesville. All death row inmates at both units are physically segregated from the general population, are housed in individual cells approximately 60 square feet (5.6 m²) in size, and engage in recreational activities individually apart from the general population and other death row inmates. They receive special death row ID numbers instead of regular Texas Department of Criminal Justice numbers.

Death row prisoners, along with prisoners in administrative segregation, are seated individually on prison transport vehicles. The TDCJ makes death row prisoners wear various restraints, including belly chains and leg irons, while being transported. Death row offenders and offenders with life imprisonment without parole enter the TDCJ system through two points; men enter through the Byrd Unit in Huntsville, and women enter through the Reception Center in Christina Crain Unit, Gatesville. From there, death row inmates go to their designated death row facilities.

Previously death row inmates were permitted to work. After an escape attempt occurred in 1998, the prison work program was suspended.

The state of Texas began housing death row inmates in the Huntsville Unit in 1928. In 1965 the male death row inmates moved to the Ellis Unit. In 1999 the male death row moved to Polunsky. In the 1923-1973 period Texas state authorities had three female death row inmates; the first, Emma "Straight Eight" Oliver, was held at Huntsville Unit after her 1949 sentencing, but had her sentence commuted to life imprisonment in 1951. Mary Anderson, sentenced to death in 1978, was held at Goree Unit. Her death sentence was reversed in 1982, and the sentence was changed to murder.

Execution procedure

The TDCJ website maintains a list of inmates with scheduled execution dates, which is generally updated within 1–2 days after an execution date is set, an execution takes place, or a stay of execution is granted and the date withdrawn.

Date of execution

The judge presiding over a capital case sets the execution date once it appears that all the offender's appeals have been exhausted. The initial date of execution cannot be prior to the 91st day after the day the order is entered and (if the original order is withdrawn) subsequent execution dates cannot be less than the 31st day after the order is entered, provided that no habeas corpus motion has been filed under Article 11.071; otherwise, the date cannot be set prior to the court either denying relief, or issuing its mandate. In the event an offender manages to escape confinement, and not be re-arrested until after the set execution date, the revised date of execution shall be not less than 30 days from the date the order is issued.

Execution day

The law does not prohibit multiple executions in a single day; however, Texas has not executed multiple offenders on a single day since August 9, 2000, on which two offenders were executed.

The law only specifies that "[t]he execution shall take place at a location designated by the Texas Department of Corrections in a room arranged for that purpose." However, since 1923, all executions have been carried out at the Huntsville Unit, the former location of death row.

On the afternoon of a prisoner's scheduled execution, he or she is transported directly from his or her death row unit to the Huntsville Unit. Men leave the Polunsky Unit in a three-vehicle convoy bound for the Huntsville Unit; women leave from the Mountain View Unit. The only individuals who are informed of the transportation arrangements are the wardens of the affected units. The TDCJ does not make an announcement regarding what routes are used.

Upon arrival at the Huntsville Unit, the condemned is led through a back gate, submits to a cavity search, then is placed in a holding cell.

Before 2011, the condemned was given an opportunity to have a last meal based on what the unit's cafeteria could prepare from its stock. Robert Perkinson, author of Texas Tough: The Rise of America's Prison Empire, said in 2010 that most condemned prisoners ordered "standard American fare in heaping portions, the sorts of meals that recall a childhood Sunday." Many female prisoners under the death sentence did not take a last meal. However, Lawrence Russel Brewer, a white supremacist gang member convicted for the high-profile hate crime dragging death of James Byrd Jr., ordered a large last meal and did not eat it before his execution. In response, John Whitmire, a member of the Texas legislature, asked the TDCJ to stop special meals. Whitmire stated to the press that Brewer's victim, Mr. Byrd, "didn't get to choose his last meal." The TDCJ complied. Brian Price, a former prison chef, offered to personally cook and pay for any subsequent special last meal since the TDCJ is not paying for them anymore. However, Whitmire warned in a letter that he would seek formal state legislation when lawmakers next convened if the "last meal" tradition wasn't stopped immediately. Afterwards, the TDCJ stopped serving special last meals, and will only allow execution chamber prisoners to have the same kind of meal served to regular prisoners. Many prisoners requested cigarettes (which were denied as TDCJ has banned smoking in its facilities).

Under Texas law, executions are carried out at or after 6 p.m. Huntsville (Central) time "by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead". The law does not specify the substance(s) to be used; previously, according to the Texas Department of Criminal Justice the chemicals used for the lethal injection were the commonly-used three-drug combination of (in order) sodium thiopental (a dose which sedates the offender, but not enough to kill outright), pancuronium bromide (a muscle relaxant which collapses the diaphragm and lungs), and potassium chloride (which stops the heartbeat). The offender is usually pronounced dead approximately seven minutes after start of the injection process; the cost for the three substances is $86.08 per offender. As a result of drug shortages, sodium thiopental was replaced by pentobarbital in 2011. Further shortages of this drug have pushed the cost of the drugs to approximately $1300 per offender. Still further shortages of pancuronium bromide (and the expiration of the existing stock) forced the state into switching to a single-drug protocol, using solely pentobarbital.

The only persons legally allowed to be present (none of whom can be convicts) at the execution are:

In response to victims rights groups, TDCJ adopted a board rule in January 1996 allowing five victim witnesses (six for multiple victims). Initially the witnesses were limited to immediate family and individuals with a close relationship to the victim, but the board rule was modified in 1998 to allow close friends of surviving witnesses, and further modified in May 2008 to allow the victim witnesses to be accompanied by a spiritual advisor who is a bona fide pastor or comparable official of the victim's religion.

Media coverage

Five members of the media are also allowed to witness the execution, divided equally as possible between the rooms containing the offender's and victim's witnesses.

Under current TDCJ guidelines, a representative of the Associated Press is guaranteed one of the five slots to witness an execution. The Associated Press regularly sends a representative to cover executions; Michael Graczyk (from the AP's Houston office) is usually the representative sent, having attended over 300 executions in his career.

Other media members must submit their requests at least three days prior to the execution date; priority will be given to media members representing the area in which the capital crime took place. The Huntsville Item (the local newspaper for Huntsville, Texas) generally covers all executions, regardless of county of conviction (Cody Stark is generally the representative). Generally, other newspapers will only cover executions where the crime was committed within their general circulation area (the Houston Chronicle is often one of them, with Harris County being the state's largest and having the most number of inmates on death row), and frequently even then will rely on the AP report. College and university media are not permitted to be witnesses.

Post-execution

Upon the offender's death the body shall be immediately embalmed, and shall be disposed of as follows:

The TDCJ keeps an online record of all of its executions, including race, age, county of origin, and last words. The TDCJ is the only corrections agency in the US to extensively catalog the last words of executed inmates, and the only one to post the last words other than the California Department of Corrections and Rehabilitation (CDCR).

The main TDCJ prison cemetery for prisoners not picked up by their families after death is the Captain Joe Byrd Cemetery in Huntsville. Headstones of death row prisoners have prison numbers with the beginning “999”, a state designation for a death row inmate, or they have the letters "EX" or "X".

Franklin T. "Frank" Wilson, an assistant professor of criminology at Indiana State University, and a former PhD student at Sam Houston State University, stated that about 2% of the people buried at the Byrd Cemetery had been executed, but the public believes that all executed prisoners are buried there because the Huntsville Unit, the site of execution in Texas, is in close proximity. Most executed prisoners are claimed by their families. While most prisoner funerals at Byrd Cemetery are held on Thursdays, in order to allow families of executed prisoners to make a single trip to Huntsville instead of two separate trips, the burial of an executed prisoner not claimed by the family is usually done the day after his or her execution.

Opposition

The Texas Coalition to Abolish the Death Penalty, a 501(c)(3) grassroots membership organization was founded in 1998. TCADP has members across the state of Texas working to educate their local communities on the problems of the Texas death penalty. TCADP hosts multiple education and training opportunities each year around the state including releasing an annual report on December 7 and a day-long annual conference which includes workshops, panel discussions, networking and awards. The conference is held in Austin during legislative years and in other Texas Cities in non-legislative years (2012: San Antonio). TCADP opened a state office in Austin in 2004 with a paid program coordinator and hired an executive director in 2008. TCADP is affiliated with the National Coalition to Abolish the Death Penalty.

The March to Abolish the Death Penalty is the current name of an event organized each October since 2000 by several Texas anti-death penalty organizations, including Texas Moratorium Network, the Austin chapter of the Campaign to End the Death Penalty, the Texas Death Penalty Abolition Movement and Texas Students Against the Death Penalty. Anti-Death Penalty Alternative Spring Break is an annual event started by Texas Moratorium Network in 2004 and now co-organized by Texas Students Against the Death Penalty. It serves as a training ground for students who oppose the death penalty.

The Death Row Inner-Communalist Vanguard Engagement (D.R.I.V.E.) consists of several male death row inmates from the Polunsky Unit. Through a variety of non-violent strategies, they have begun launching protests against the perceived bad conditions at Polunsky, in particular, and capital punishment, in general. They actively seek to consistently voice complaints to the administration, to organize grievance filing to address problems. They occupy day rooms, non-violently refuse to evacuate their cells or initiate sit-ins in visiting rooms, hallways, pod runs and recreation yards when there is the perception of an act of abuse of authority by guards (verbal abuse; physical abuse; meals/recreations or showers being wrongly denied; unsanitary day rooms and showers being allowed to persist; medical being denied; paper work being denied; refusing to contact higher rank to address the problems and complaints) and when alleged retaliation (thefts, denials, destruction of property; food restrictions; wrongful denials of visits; abuse of inmates) is carried out in response to their grievances.

In 2016, Pfizer and other drug manufacturers banned the use of their products for lethal injections. Texas and other states were reported to be finding it difficult to obtain supplies of drugs for executions.

Cameron Todd Willingham

One notable case involves Cameron Todd Willingham, who was executed by lethal injection on February 17, 2004 for murdering his three daughters in 1991 by arson, but where a 2009 article in The New Yorker, and subsequent findings, have cast doubt on the evidence used in his conviction.

In 2009, a report conducted by Dr. Craig Beyler, hired by the Texas Forensic Science Commission to review the case, found that "a finding of arson could not be sustained". Beyler said that key testimony from a fire marshal at Willingham's trial was "hardly consistent with a scientific mind-set and is more characteristic of mystics or psychics”.

Governor Rick Perry expressed skepticism of Beyler's findings. He stated that court records showed evidence of Willingham’s guilt in charges that he intentionally killed his daughters in the fire. Perry is quoted in the report as stating of Willingham, "I’m familiar with the latter-day supposed experts on the arson side of it," and Perry said that court records provide "clear and compelling, overwhelming evidence that he was in fact the murderer of his children." The Corsicana Fire Department also released a 19-page rebuttal of Beyler's report, stating that the report overlooked several key points that would show Willingham to be guilty.

On July 23, 2010, the Texas Forensic Science Commission released a report saying that the conviction was based on "flawed science" and that there is no indication that the arson authorities were negligent or committed willful misconduct. Willingham remains the only person in the United States executed since 1976 for murder by arson.

Carlos DeLuna

Carlos DeLuna was convicted of murder and executed in 1989 for the killing of a 24-year-old gas station attendant on the evening of February 4, 1983. Since DeLuna's execution by lethal injection, doubts have been raised about the conviction and the question of his guilt. An investigation published by the Columbia Human Rights Law Review in May 2012 has strengthened these claims of innocence by detailing a large amount of evidence suggesting the actual murderer was Carlos Hernandez, a similar-looking man who lived in a nearby neighborhood.

Frances Newton

Frances Newton was executed in 2005 despite much doubt about her guilt, and much confusion over the actual weapon used in the murder(s) for which she was sentenced to death.

Johnny Frank Garrett

Johnny Frank Garrett was executed in 1992 for killing 76-year-old nun Tadea Benz in Amarillo in 1981. In 2004, after DNA-analyses, Leonicio Perez Rueda was found to be the murderer of Narnie Box Bryson, who was killed four months before Sister Benz. After being confronted, the murderer confessed to killing Bryson. Rueda is also believed to have been the real murderer of Sister Benz.

Execution of Mexican nationals

Three Mexican nationals have been recently executed in Texas – José Medellín in 2008, Humberto Leal García in 2011, and Édgar Tamayo Arias in 2014. (Prior to Medellin v. Texas, four Mexican nationals were executed by Texas, who were Ramón Montoya, Irineo Montoya, Miguel Flores, and Javier Suárez Medina, in 1993, 1997, 2000 and 2001 respectively.) At the time of their arrests in the early 1990s, neither had been informed of their rights as Mexican nationals to have the Mexican consulate informed of the charges and provide legal assistance. A 2004 ruling by the International Court of Justice concluded that the U.S. had violated the rights of 51 Mexican nationals, including Medellín and García, under the terms of a treaty the U.S. had signed. In response to the ruling, the Bush administration issued an instruction that states comply, but the U.S. Supreme Court ruled that it had exceeded its authority. The Supreme Court also ruled in Medellin v. Texas that the treaty was not binding on states until Congress enacted statutes to implement it, and in Leal Garcia v. Texas declined to place a stay on the executions in order to allow Congress additional time to enact such a statute. A 2008 ruling by the International Court of Justice asked the United States to place a stay on the executions, but Texas officials stated that they were not bound by international law.

García supporters complained about the use of bite mark analysis and luminol in determining his guilt. However, García accepted responsibility for the crimes and apologized before his execution.

Regarding the García execution, Texas Governor Rick Perry stated that "If you commit the most heinous of crimes in Texas, you can expect to face the ultimate penalty under our laws."