As a legislator, I often struggle to decide what I should do, what I can do, and most of all, why I should do it. The answers are frequently difficult, both to find and to accept. In the days leading up to Easter this year, a holiday in the shadow of a state-sponsored execution, I led the Texas House Committee on Criminal Jurisprudence as it wrestled with these considerations at a hearing about the death penalty.
Texas has long had the dubious distinction of being a leader in capital punishment, which has also made it a leader in litigation which has exposed many constitutional and practical problems in our system. It’s a shameful fact that we’ve occasionally executed the innocent and frequently applied the death penalty unevenly to the guilty, including to people suffering from serious mental illnesses and significant intellectual and developmental disabilities, an explicit focus of our recent hearing.
Judge Elsa Alcala, who sits on the Texas Court of Criminal Appeals (CCA) — our highest criminal court — is an expert in these issues and was gracious enough to share her knowledge and experience with us. She didn’t paint an encouraging picture.
She wasn’t surprised by the U.S. Supreme Court’s recent ruling in Moore v. Texas that our courts weren’t using medically accurate standards for evaluating intellectual disability: Our current laws provide no guidance at all for when, how and to whom the death penalty applies when mental health issues are a factor. Intellectual and developmental disability isn’t even defined in our statutes, while other important definitions and instructions are incomplete and confusing.
We apply the death penalty too broadly and very inconsistently. Procedures vary wildly between the state’s 254 different counties, and many people face death who constitutionally shouldn’t — like those who were seriously mentally ill at the time of their offenses and those who had only minor roles in a crime. We’ve even let what we’ve later found to be junk science sway juries into handing down death sentences and then provided few ways to challenge those verdicts afterwards.
The striking thing about Judge Alcala’s testimony was that it wasn’t political. She carefully avoided any opinion about whether we should practice capital punishment and focused purely on the technical defects in the system we have today. There were so many to cover that, even striving for brevity and reading from detailed notes, it took her nearly an hour to give us the most basic overview.
Those many procedural problems (which are foundationally disturbing in their own right) are separate and apart from the fundamental reality that the death penalty is a terrible investment. Execution costs much more than life imprisonment, and no capital murderer has ever been deterred for fear of the death penalty. Ultimately, we spend a great deal solely for the grim satisfaction of retribution. And when we get it wrong, capital punishment is the only penalty which leaves us no way to fix our mistake and make the injured innocent person whole.
Yet the Moore case highlights our rabid institutional eagerness to kill. Bobby Moore is an intellectually disabled man with poor adaptive functioning who has sat on death row for nearly 40 years over a killing during a supermarket stickup. Texas courts besides the CCA and even the prosecutor in charge of the case have all agreed his disability is too severe to legally and conscionably execute him. But last month, after and despite the scolding it got from the U.S. Supreme Court, the Texas CCA again contorted relevant standards to find that Bobby should be killed. Judge Alcala and two of her colleagues dissented.
I can’t fathom why Texas is so hungry to execute a man with obvious intellectual disability that it continues to pour millions of dollars and thousands of man-hours into this quest for bloody revenge.
Most of all, though, I regret the cost that can’t be measured in money. We lose a piece of ourselves with every unnecessary killing; we lower ourselves morally. Something that resonated at our hearing was the testimony of Shane Claiborne, pastor and author of the fantastic book Executing Grace. “The death penalty isn’t about whether a person deserves to die,” he said, “but whether we deserve to kill.”
From any moral standpoint, we all know that mercy is a show of strength, not weakness. Executions by the state put us on a short list with the likes of North Korea, Iran, and China, far out of step with the bastions of democracy and freedom we call allies. Texas is better than capital punishment.
That’s why I’ve moved from longtime support of capital punishment to the moral certainty that it’s time for Texas to abolish the death penalty.
We must set aside anger and fear and embrace grace. I encourage Texans to keep open minds and open hearts, give some serious thought to this issue, and join me in the growing bipartisan effort to end capital punishment in this state.