POLITICS SEPTEMBER 2, 2011
When Rick Perry assumed the governorship in December, 2000, Texas was already the execution capital of the United States, responsible for more than a third of the nation’s executions since 1976. Now, almost eleven years later, the state has even further out-paced the rest of the country, with its share of executions growing to over 40 percent during Perry’s watch. Though it may be tempting—for either Perry’s supporters or his critics—to credit (or discredit) the governor with this super-sized slice of the pie chart of American executions, such an attribution would be in error. The sheer number of executions in Texas over the past decade reveals little about Perry the Governor, because the governor plays only a limited role in the state’s death penalty machinery. That said, Perry has injected himself into the issue of capital punishment in Texas on a number of key occasions—with regard to the appropriateness of capital punishment for offenders with mental retardation, as well as the procedures for investigating a possible wrongful conviction and execution—interventions that cast doubt on the transparency and judiciousness of his political leadership.
Though governors are often depicted as “presiding” over state executions, as a matter of both law and recent tradition, the Texas governor’s office plays a quite limited role in the administration of the death penalty. The decision to seek a death sentence is an entirely local prerogative—made by the district attorneys in Texas’s 254 counties (a majority of which have not sent anyone to death row since 1976). Thus, just as Governor Perry bears no responsibility for the size of the substantial death row he inherited, he cannot be credited or blamed for the significant decrease in capital sentencing over the past decade, a decrease mirrored in the rest of the country. The governor also plays no role in defending capital convictions in state and federal court (a job shared by the local district attorneys and the state attorney general—an independently-elected official). As convicted death-sentenced inmates exhaust their appeals, the decision to set execution dates remains entirely with the trial judge who presided over the conviction and sentence. Again, unlike in some other states, the governor has no role—formal or informal—in deciding whether to move a case (and a defendant) to the precipice of an execution.
The final area in which a governor can exercise influence over state executions is in the gubernatorial power of clemency, but here, too, Perry’s role is greatly circumscribed. In Texas, the governor’s chief moment of responsibility for the death penalty occurs only after an execution date has been set and the execution is imminent. At that point, condemned inmates often seek a stay of execution and the exercise of clemency (usually in the form of a commutation to a sentence of life imprisonment). But Texas withholds from the governor any unilateral power to grant clemency; rather, inmates must first seek (and receive) a recommendation from the Texas Board of Pardons and Paroles. Without such a recommendation, the governor is limited to staying an execution for thirty days—and can do so only one time for any given inmate. It should be no surprise that such a system does not result in many grants of mercy.
Neither of Perry’s immediate predecessors (Democrat Ann Richards and Republican George W. Bush) made much use of the clemency power, and Governor Perry has continued that tradition, using it to protect an inmate from excessive punishment on just one occasion (apart from commutations required by law—such as when juveniles became exempt via a decision of the U.S. Supreme Court). In that case, the inmate had been jointly tried and sentenced to death with the main perpetrator of a drive-by shooting, even though the inmate had not been the one to pull the trigger. But the governor rejected two other recommendations for clemency by the Board, including a case in which another non-triggerman had received the death penalty. In the other two hundred or so cases, however, no recommendations for clemency were forthcoming from the Board, and Perry remained essentially outside the loop of the death penalty process.
ALTHOUGH THE TEXAS death penalty train runs largely without a conductor, Governor Perry’s few public moments involving capital punishment provide a revealing record of his executive role respecting the death penalty. At the beginning of his tenure, he vetoed a bill that would have exempted offenders with mental retardation from the ultimate punishment. That veto was part of the massive “Father’s Day Massacre” in June, 2001, when Governor Perry vetoed about 80 bills after the adjournment of the legislature. Perry’s veto of the mental retardation bill was lamentable in itself (the U.S. Supreme Court would declare the practice unconstitutional a year later). Even more strange, however, was his mystifying declaration that “we do not execute mentally retarded murderers today.” In fact, at the time of Perry’s declaration, Texas was among the few jurisdictions that continued to execute offenders with mental retardation, and his Orwellian veto message was not only inaccurate but incomprehensible.
The dissonance between Perry’s deed and declaration allowed the U.S. Supreme Court to count Texas as opposed to the execution of offenders with mental retardation, as the Court took the unusual step of quoting Perry in its subsequent decision finding the practice contrary to evolving standards of decency. Perry’s veto nonetheless has had lasting consequences. The bill would have provided a framework for identifying and protecting offenders with mental retardation from execution. Without it, the exemption process is administered now in an ad hoc manner by the Texas courts, and those courts are not notably committed to enforcing the exemption. As a result, some inmates with mental retardation are likely falling through the cracks (and facing execution), as in the case of one inmate who, despite IQ scores squarely in the mental retardation range, was found eligible for execution based on the testimony of his former girlfriend and a used-car salesman that he didn’t seem to them to be impaired.
In addition, while Perry’s failure to use the clemency power may not distinguish him from his immediate predecessors, the decline of executive clemency in Texas (and elsewhere) represents a radical and regrettable departure from an earlier era: Between 1924 and 1972, Texas governors intervened in about 20 percent of capital cases. Although the decline in executive clemency is often attributed to increased judicial oversight of capital convictions and sentences, such oversight does not justify the wholesale abdication of executive review. Perry’s decision to continue what is essentially a “no clemency” policy in Texas represents a choice for which he should be held accountable: Members of the Board of Pardons and Paroles are gubernatorial appointees subject to gubernatorial influence—influence that Perry has chosen not to exert despite a number of compelling cases.
Perhaps the most compelling of such cases was the controversial execution of Cameron Todd Willingham, who was convicted and sentenced to death based on the fire that destroyed his home and killed his three children. Perry refused to intervene at the time of the execution despite a powerful case that the fire might not have been arson at all. Willingham sought clemency based on a renowned expert’s repudiation of the “junk science” that was crucial to the state’s claim of arson. When the media later sought access to the clemency memos prepared for the governor by his counsel (to determine whether Perry had been told at the time of Willingham’s execution that Texas risked executing an innocent person), his office refused to release the documents, claiming legal privilege. Perry’s failure to document the basis for his decision has left observers with two disquieting possibilities: that the governor allowed the execution to proceed notwithstanding doubts about the accuracy of Willingham’s conviction, or his office failed to present him with a complete picture of the case prior to his decision not to intervene. Neither scenario reflects an appropriate circumspection about the risks of wrongful execution. Worse still, during his contested reelection campaign, Perry successfully stalled an official investigation into the Willingham matter. He replaced the head of the forensic science commission just as a report critical of the junk science was about to be released, and the newly appointed head of the commission—a political ally of Perry—obstructed any efforts to reach a final conclusion about the accuracy of Willingham’s conviction or to assign blame for the potentially wrongful execution.
So what do Perry’s death penalty positions mean? His veto of a ban on executing the mentally retarded has had little effect, given the Supreme Court’s conclusion that “evolving standards of decency” require such a ban as a matter of constitutional law. But it does show Perry’s willingness to take an extreme position—and his unwillingness or inability to offer a thoughtful defense of that position. In addition, Perry’s abdication of executive review of executions in the nation’s death penalty epicenter is regrettable and frightening, given the very real possibility of the wrongful execution of the innocent. Cameron Todd Willingham’s case is emblematic of that possibility—and here, Perry’s lack of transparency, coupled with his willingness to use his political muscle to deep-six a reasonable investigation, speak the most loudly about what his death penalty politics say about his political leadership.
Carol S. Steiker is the Henry J. Friendly Professor of Law at Harvard Law School. Jordan M. Steiker is the Judge Robert M Parker Endowed Chair in Law at the University of Texas School of Law.