Texas, according to writer Molly Ivins, is the National Laboratory for Bad Government, where they pride themselves on trying bad ideas first. Right now the governor and presidential wannabe is on the road, working hard to market phantom tax cuts, church-school tax subsidies (a/k/a "vouchers"), and welfare deform. But as Floridians found out last week, George W. Bush's first breakout hit on the national charts is an uptempo number with a lethal-injection bullet. The state's death-penalty process was charmingly summarized by Jeb Bush advisor Brad Thomas: "What I hope is that we become more like Texas. Bring in the witnesses, put them on a gurney, and let's rock and roll."
Thanks to a couple of embarrassing recent episodes with the electric chair, Thomas will get at least part of his wish: After legislators OK'd lethal-injection executions, Florida will have a spanking new gurney. Although some state reps are said to remain partial to electrocution (still a "choice" for the condemned), they will find that poisoning has its advantages: It's quiet, it doesn't shock the witnesses nearly as much, and it's better P.R. That helps when you're trying to drive up your numbers, as in Texas, where (through Jan. 1) George Bush has presided over 112 executions, a new modern record, which he will extend this year. Lethal injection may not be as emotionally satisfying as electrocution, but it's definitely more reliable and audience-friendly.
Yet at Jeb Bush's urging, the Florida Legislature also borrowed another Texas innovation: the "streamlining" of the capital punishment appeals process. As practiced in Texas since 1995, the law imposes rigid time limits on defense appeals, and requires "direct appeals" (automatic in capital cases) and "post-conviction appeals" (covering additional or constitutional issues) to proceed simultaneously, even though problems that arise in the first may be exactly the problems that should be addressed in the second. Combined with additional restrictions under the Clinton administration -- for example, that federal courts can now only overturn state decisions which "unreasonably" violate constitutional protections -- the result has been to make it easier for states to kill people without too much troublesome legal interference.
State Rep. Pete Gallego, who co-sponsored the Texas law, points out that it also provided state funds for defense counsel in capital cases. That was true, although initially the payment process was so inadequate and cumbersome that capital trials were further delayed while the state looked for lawyers willing to work for little or no pay. Because inexperienced, appointed attorneys had failed to meet the new deadlines, some defendants were scheduled for execution with no post-conviction appeal at all.
Gallego says these "bumps and kinks" have been straightened out in subsequent legislation, and that he's "pretty comfortable" with the new law. But an adequate defense in capital cases requires much work, investigation, perhaps even expert witnesses (who must themselves be paid). Jim Harrington, of the Texas Civil Rights Project, says state support for defense counsel remains inadequate, "and the quality of counsel remains pathetic."
Harrington says the inevitable effect of the new laws in Texas and Florida is to diminish constitutional protections. Whatever the immediate legal outcome, he told The Texas Observer, "This is a clear signal to judges they do not have to take constitutional questions seriously." Florida defense attorneys have vowed to challenge the new law on constitutional grounds, but thus far that strategy has been futile in Texas. The current Court of Criminal Appeals is known to be so unfriendly to defense arguments that litigators await new elections of judges before they will bring any further constitutional challenges.
Florida observers believe the courts here will not be so intransigent, partly because in Florida, unlike Texas, judges are not voted into office. "In the short term at least," said Mike Radelet, who studied death-row cases as chairman of the sociology department at the University of Florida, "odds are that the new law will slow down executions, not speed them up. The Florida courts are more receptive to constitutional challenges."
Radelet said that if the true intent of the new law is to speed up the process, it's illogical on its face. "The Florida courts currently grant relief in about one-half of the capital cases that come before them on direct appeal. Now you're saying they have to hear post-conviction appeals simultaneously, before the direct appeal has been decided. It's like telling someone in your office they're not getting their work done, so you're going to give them more work. In effect, the Legislature is pouring sand in the executioner's gas tank."
Richard Greene, of the Office of Public Defenders for West Palm Beach, suspects that the new law is vulnerable on constitutional questions of both separation of powers and due process. "We've barely had time to read the law, let alone understand it, so we're flying blind here." (The law was proposed on three weeks' holiday notice and passed Jan. 7 at the end of a three-day special session.) "The governor made certain that the legislators had time to get back from the Sugar Bowl, but otherwise the process was designed to prevent public input." Greene says that over and above the question of whether defendants can receive a fair hearing with a parallel appeals process, Florida courts may balk at the Legislature's attempt to rewrite judicial procedures. Greene argues the legislation was partly a "political show" intended as an attack on the Florida judiciary, which the legislators believe reverses too many convictions. And like Radelet, he says that in the short term, the effort may backfire. "The constitutional challenges have a good chance of slowing the process down."
Raoul Schonemann, an Austin, Texas, lawyer who has represented many capital defendants, sees the move toward a parallel appeals process as a way for the state both to undermine defense counsel and prevent remedies in federal courts. "You can't raise an issue of incompetent counsel while that counsel is still presenting a direct appeal," he said. "It creates a potentially huge conflict between counsels, and it undermines the defendant's confidence. You can't get a fair direct appeal in the court where the problems occurred in the first place, and then, the state has no interest in having a post-conviction hearing that is truly fair. Finally, you're now prevented from arguing those issues in federal court, unless you can prove the state court was ‘unreasonable.' It's a superficially reasonable process that is actually intended to keep the federal court from addressing these issues and overturning state decisions."
Like similar legislation in Virginia, where executions on a per capita basis are running neck-and-neck with Texas, the new law reflects growing national enthusiasm for death sentences. But Richard Dieter, of the Death Penalty Information Center in Washington, D.C., says the trend is not uniform. "In four states [Massachusetts, Michigan, Iowa and Maine], attempts to restore the death penalty were defeated," Dieter said. "And there's some chance of a moratorium in Illinois, where several capital convictions were shown to be of innocent people." That last fact, however, has not slowed the legislative rush in Florida, which leads the nation in capital convictions overturned due to innocence, with 18.
Indeed, although capital punishment is presumed to enjoy popular support, Radelet believes Jeb Bush and the Legislature are not listening closely. "If you polled the public about emergency needs requiring a special session, you would hear education, health care, poverty ... not that the most important issue facing this state is the need to kill more people, more quickly." He adds that public support for the death penalty drops when a truly life-without-parole sentence is available. "The Legislature is way out of touch on this."
Support for the death penalty also rests on the popular assumption that the legal system is generally fair, efficient and just. Texas Gov. Bush, for example, insists that on his watch no innocent people have been executed, and that all have had full access to the courts. Anyone who looks closely at several Texas capital cases discovers a much more troubling pattern: arbitrary and often dishonest prosecution, inadequate or incompetent counsel, substantially mitigating circumstances, a vacuous clemency process. In December Texas executed a man, convicted on the basis of admittedly perjured testimony, whose original attorney simultaneously represented the prosecution's main witness, the actual murderer. This month the eight men scheduled for death include one who was 17 at the time of his crime, and another who was a paranoid schizophrenic, but who has since been judged sane enough to kill.
The new laws' response to these problems? Hurry it up.
Rep. Gallego says the Texas law is working as it should, and it protects the constitutional due-process rights of accused citizens. "People who oppose the death penalty are never going to be pleased by any capital punishment law," says Gallego, "but others will see that the law is fair, and has worked very well." Is he at all concerned that other states are so eager to follow the Texas example of accelerating executions? "I think it's fine that other states imitate Texas law. If Congress were more like the Texas Legislature, we'd have a better country."
Those who have seen Texas' law in action up close are less enthusiastic. "What's the great hurry to kill people?" asks Harrington. "It's seen as popular, but that response is cynical, because there's no downside for the politicians. The constituency that they're offending doesn't vote. ... The people of Florida are getting Bushwhacked, just like Texas."