San Antonio Express-News, Dec. 1, 2002
By Karisa King
The first time the Rev. Carroll Pickett helped execute a man, his gravest fear was that the inmate would fight.
None of the prison staff knew what might happen, whether condemned murderer Charlie Brooks would have to be dragged to the death chamber, whether his body would shut down peacefully or violently, or whether they would be called on to do this again.
Brooks was executed Dec. 7, 1982, the first time an inmate was put to death in Texas after the U.S. Supreme Court reinstated the death penalty in 1976.
It also was the nation’s first such killing by lethal injection.
“We didn’t know what we were getting into,” said Pickett, who later stood at the feet of 94 other men as they died on the gurney. “We didn’t know if he would have convulsions, bleed and all the other things. We just didn’t want Charlie to fight. We didn’t know if it was something we were going to do once or twice before it was stopped again.”
Then-incoming Attorney General Jim Mattox made a prediction: “I don’t believe it’s going to be an opening of the floodgates,” he told reporters.
History proved him wrong. In the two decades since, Texas has executed 287 inmates, by far outpacing any other state and accounting for about one third of all the nation’s executions.
The mass of executions and Texas’ famously unapologetic stance on the death penalty has focused national attention on the state’s handling of capital punishment.
As Texas marks the 20th anniversary of Brooks’ execution, the state’s death penalty remains unfaltering, defying international criticism, an organized opposition and a national reconsideration of the issue.
“We don’t have the problems that other states do,” said David Weeks, the district attorney in Walker County and chairman of the board for the Texas District and County Attorneys Association. “When you look at how many murderers are tried for capital punishment and get the death penalty, the numbers are very small.”
But opposition groups contend that the number of executions provide the first warning sign of a flawed criminal justice system.
“Traditionally, we’ve had between 30 and 40 percent of all executions, but this year we’re going to have about 50 percent of all executions,” said Dave Atwood, founder of the Texas Coalition to Abolish the Death Penalty. “It seems like that would make some people ask: What’s happening? But Texas continues. We have some very strongly entrenched forces that want the death penalty to continue to be very strong.”
Rising to the lead
When the U.S. Supreme Court issued the landmark Furman vs. Georgia decision in 1972, it found that the death penalty was meted out arbitrarily and brought a four-year halt to executions. But it allowed states to rework their laws, and Texas was among the first to resume executions.
The execution of Brooks, who killed a Fort Worth auto mechanic, went as planned, so efficiently that the protocol developed by the prison staff became a model for other states. Beginning in 1985, Texas emerged as the leader in executions, and the state has since claimed or shared the top ranking except for three years.
In 1992, the number of executions here hit the double digits; since then, the gap between Texas and other states has increasingly widened.
A host of legal and political factors insulates Texas’ death chamber as the busiest in the nation, experts say.
Of the 38 states with death-penalty laws, Texas is among three that do not provide the option of life without parole. Under current law, a life sentence in Texas allows the possibility of parole after 40 years, a prospect that some jurors have said tipped their decision in favor of execution.
A 1995 Texas law streamlined state appeals, trimming the number of years inmates linger on death row. The state’s Court of Criminal Appeals and the federal Fifth Circuit Court of Appeals are among the most reluctant of higher courts to overturn convictions. Add to that a high murder rate in the 1980s and early 1990s, and the state’s large population, and the number of executions appears to equal simple math.
Yet another factor weighs heavily.
“Texas also clearly has the political will to do this,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington. “They clearly wouldn’t be able to do this without some sort of affirmation.”
Question of innocence
Amid the growing number of executions 10 years ago, death penalty foes organized. They have mounted challenges to the death penalty: that it was immoral, expensive, ineffective in deterring violence and unfair to minorities and the poor.
But with the advent of DNA testing, and nationwide reports of innocent prisoners freed, opponents locked onto an issue that even some death penalty supporters find difficult to ignore.
According to opposition groups, 102 death-row prisoners nationwide in the past 25 years have been released or had their convictions overturned because their guilt was questionable. Seven of those were in Texas.
The rising number of such cases focused attention on other aspects of the criminal justice system — inadequate defense of indigent suspects, problems with eyewitness testimony and confessions that at times were coerced.
But Dudley Sharp, a victims’ rights advocate in Houston with Justice for All, has studied the cases, and says those 102 defendants won their freedom on legal technicalities and flaws with their trials, not proof of innocence. He estimated that 15 to 34 defendants across the country might have been innocent.
“There are tons of cases overturned on appeal that can’t be prosecuted again,” he said. “They don’t differentiate between legal innocence and actual innocence.”
He conceded that it is possible for an innocent person to be executed. But he knows of no such case. The number of prisoners released shows that the system works, he said.
And he believes the benefits of the death penalty outweigh the risks. He compared capital punishment to public swimming pools.
“Probably hundreds of children have died in public swimming pools since 1900,” Sharp said. “Have we closed them? Why? Because we think the risk balances with the value of recreation in public life.”
Polls indicate that his position is popular. Though 65 percent of Texans believe the state has executed an innocent person, popular support here and nationally remains strong, according to a Scripps-Howard poll in Texas last year and national Gallup polls.
But some support has eroded amid reports of wrongful convictions in recent years. Those who said they favor the death penalty dropped from a high of 80 percent in 1994 to about 72 percent last year, according to national Gallup polls.
Sharp said the issue of innocence will fade like the earlier challenges because public support for the death penalty boils down to morals.
“People support the death penalty because they believe it’s a just and appropriate punishment for a certain type of crime,” he said.
The most prominent signs of a more skeptical national climate surrounding capital punishment have come in the past two years, when pro-death penalty governors imposed moratoriums on executions in Illinois and Maryland. In Texas, opposition groups acknowledge that they face one of their toughest fights. Skepticism about the death penalty has not gained political currency here, where candidates espouse hard-boiled law-and-order policies.
“The people who run campaigns are telling Democratic candidates that if they mention capital punishment, they’ll lose 20 points in the polls,” said Scott Cobb, political director of the Austin-based Texas Moratorium Network.
Texas legislators answered the debate last year by passing laws that provided access to post-conviction DNA testing and established minimum standards for indigent defense. The Legislature also passed a ban on executing the mentally retarded, but Gov. Rick Perry vetoed it. (The U.S. Supreme Court in June banned execution of the mentally retarded nationwide.)
“Texas legislators have never been afraid to go their own way,” said Diane Beckham, senior staff counsel for the Texas District and County Attorneys Association. “What’s going on in the rest of the nation is not always a good predictor of what Texas will do.”
A bill that would have given the governor the power to impose a moratorium died with two similar bills in the Legislature last year. Democrats rejected moratorium proposals for their party platform next year.
During George W. Bush’s run for the White House, he asserted that Texas has never executed an innocent prisoner. His statement put the cases of Texas death-row inmates under a microscope, with reporters casting about for a compelling example of injustice. The search turned up the case of Gary Graham, whose conviction was based on one eyewitness. But some said his case failed to provide convincing evidence of his innocence, and he was executed.
Some death penalty watchers said Texas has not had a recent poster-child case to galvanize calls for a moratorium.
The next major battle over the death penalty in Texas will not likely relate to a moratorium, but how to implement the Supreme Court’s ban on executing the mentally retarded. The question of who qualifies as mentally retarded and how that determination is made will be at the heart of the debate.
Prosecutors say juries should make the decision at the sentencing phase of the trial and that the defendant’s IQ level should not be the only measure of mental retardation. Though an IQ of less than 70 is widely accepted as mentally retarded, prosecutors say the way a defendant functioned in everyday life — including how he or she planned and carried out the crime — should also be considered.
Death penalty opponents say the choice should be made before the trial, before grisly details of the crime bias jurors. They also argue that a defendant’s IQ is a valid measure.
In the near future, the pace of executions shows no signs of slowing. Barring last-minute stays in the last two executions set for this month, Texas will finish 2002 with 33 executions, out of an estimated 73 nationwide. A dozen inmates are scheduled for execution in the first two months of 2003.Twenty years of executions have created a history Texas is not shy about remembering. At the new Texas Prison Museum in Huntsville, a display case shows off the plastic tubes used in the lethal injection of Charlie Brooks.
Not far away, “Old Sparky,” the oak electric chair used to execute 361 prisoners between 1924 and 1964, rests in an exhibit called “Riding the Thunderbolt.”
Museum staff said it is the most controversial and popular exhibit.
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