With Texas Governor Rick Perry's entrance into the GOP field of Presidential candidates, there has been an initial look at his record in Texas on a number of issues, including capital punishment. Let me highlight two new items and link to several others.
First, at the New Republic, law professors Carol and Jordan Steiker have posted a must-read, "Don’t Blame Perry for Texas’s Execution Addiction. He Doesn’t Have Much to Do With It. She is at Harvard Law School; he is at the University of Texas School of Law.
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.
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.
Brandi Grissom writes "Scrutinizing Perry’s Extensive Execution Record," for the New York Times. It appears in a slightly expanded version as, "Under Perry, Executions Raise Questions," at the Texas Tribune.
As Gov. Rick Perry touts his tough-on-crime policies on the national political stage, the case of Cameron Todd Willingham will continue to be scrutinized. Scientists have raised questions about whether Mr. Willingham set the blaze that killed his three daughters and led to his 2004 execution.
But Mr. Willingham’s execution is not the only controversial one the governor has presided over. During nearly 11 years in office, Mr. Perry has overseen more than 230 executions — by far the most of any recent governor in the United States — and has rarely used his power to grant clemency. He has granted 31 death row commutations; most of those (28) were the result of a 2005 United States Supreme Court decision banning capital punishment for minors.
Lucy Nashed, a spokeswoman for the governor, said the governor could grant clemency only when the Texas Board of Pardons and Paroles — whose members Mr. Perry appoints — recommended that action. He has disagreed with the board only three times when it recommended clemency in death penalty cases, she said.
“The governor takes his clemency authority very seriously and considers the total facts of every case before making a decision,” she said. (Independent of the board, the governor may grant a one-time 30-day reprieve delaying an execution; Mr. Perry has issued one such reprieve.)
To his critics, his parsimonious use of clemency is notable because of continuing concerns about the ability of prisoners facing capital charges in Texas to retain quality legal representation, the execution of those who were minors when they committed their crimes, the ability of some prisoners to understand their punishment intellectually and the international ramifications of executing foreign nationals.
The Texas Tribune has compiled a database of all the executions in Texas under Mr. Perry’s leadership.
The articles examine cases involving mental incapacity (often referred to as mental retardation), juvenile offenders, accomplices, and cases involving quality of counsel.
Last week the Washington Post published, "Rick Perry holds the record on executions," by Robert Barnes.
He vetoed a bill that would have spared the mentally retarded, and sharply criticized a Supreme Court ruling that juveniles were not eligible for the death penalty. He has found during his tenure only one inmate on Texas’s crowded death row he thought should receive the lesser sentence of life in prison.
And Perry’s role in the 2004 execution of Cameron Todd Willingham — who supporters said should have been at least temporarily spared when experts warned that faulty forensic science led to his conviction — is still the subject of investigation in Texas.
Perry has been unapologetic.
It is a bipartisan tradition. The annual rate of executions was actually higher when George W. Bush was the state’s governor, and Democratic Gov. Ann Richards oversaw 50 executions during her four-year term without ever granting clemency.
“In the big picture, it is hard to see how Perry is much different from Bush or Richards,” said Jordan Steiker, co-director of the University of Texas Law School’s Capital Punishment Center.
That’s partly because Texans and their representatives give governors little room to slow down the process.
Decisions to seek the death penalty are made by local prosecutors. Unlike in some states, the governor does not sign death warrants or set execution dates. The state constitution prohibits the governor from calling a moratorium on executions and allows clemency only when the Board of Pardons and Paroles recommends it, which is rarely.
Texas’s relatively streamlined process for death penalty appeals is overseen by an elected court not known for reversals. Federal lawsuits go to the U.S. Court of Appeals for the 5th Circuit in New Orleans, which has the same reputation.
San Francisco Chronicle columnist Debra J. Saunders wrote, "Perry delivers on Texas death penalty," for the Sunday edition.
As Texas governor, GOP presidential hopeful Rick Perry has presided over 234 executions. It's a record number, which, the Washington Post reported last week, bestows on Perry "a law-and-order credential that none of his competitors can match - even if they wanted to."
Watch how pundits will try to turn that statistic into a political negative - and paint Perry as the governor with blood on his spurs - even though American voters overwhelmingly support the death penalty.
The temptation to tout Texas' status as the state with the most executions will prove too seductive. It won't matter that, as the Post story points out, Perry has overseen more executions than any other governor in modern history because his state is the second largest in the country, and he has served as governor of that state for nearly 11 years. Or that the late Democratic Gov. Ann Richards oversaw 50 executions during her one term - and unlike Perry, she never commuted a death sentence.
The irony here, points out Kent Scheidegger of the pro-death-penalty Criminal Justice Legal Foundation in Sacramento, is that Texas does not deserve its reputation as the most execution-prone state. Scheidegger crunched federal data from 1977 to 2009 and found that among the then-34 capital-punishment states, Texas falls below the mean of 16.5 death-penalty sentences per 1,000 murders. Delaware and Oklahoma have a higher rate when it comes to executions.
"Beyond Cameron Todd Willingham: Rick Perry’s Five Most Controversial Executions," by Kara Brandeisky is at the New Republic. "Killer in Chief," by Bill Boyarsky is at TruthDig.
As the GOP primary election season unfolds, I'm sure we'll see more.