Opinion: Clemency critics mask true objectives
by William Murchison
Lone Star Report
VOLUME 3, ISSUE 16 -- January 8, 1999
Quibbles and complaints about Texas clemency proceedings are more than
anything else a way of getting around Texas' capital punishment
The anti-capital punishment faction, badly outnumbered in modern life,
basically believes nobody should be executed for anything. A request
for clemency, under this worldview, resembles an
entitlement. Not to extend clemency is somehow an
affront - to the changed behavior of the condemned,
to the process of abstract justices. To something.
The mini-furor over clemency hearings, played out in U.S. Dist. Judge Sam
Sparks' courtroom, and more recently in state Dist. Judge Scott
McCown's, makes no sense otherwise.
That state procedures for reviewing clemency bids meet constitutional
standards seems obvious to Gov. Bush. "There has been no doubt in my
mind," said Bush, on Jan. 4, "that any person we
have put to death in the state of Texas has had full
due process and has been guilty of the crimes charged."
Bush's stipulations - due process and guilt - are central. Neither Texas nor
any other state is supposed to go around executing innocent people
following a kangaroo proceeding. Everyone in the
world agrees with this precept.
Disagreement breaks down where Bush asserts a right to execute
notwithstanding a plea for mercy. The quality of mercy may not be
strained, and always must be at the ready. But its
application is not automatic.
Into this vexed situation both the legislative and judicial branches
venture. Sparks already has found that current clemency procedures meet
"minimal" constitutional requirements. He calls those procedures
"extremely poor" all the same. "I do not understand
what the reason is, for God's sake, you can't have a
lawyer," an exasperated Sparks told state lawyers. "Why
Technically, the answer is that, under present constitutional standards, the
state doesn't have to call a hearing. Presently, pardons and parole
board members, who live all over the state,
privately study packets of evidence, then vote
without general consultation. They could convoke a public hearing
if they wanted, but nothing requires them to.
This brings into play several bills aimed at increase inmates' chances of
staying off, or getting off, death row.
Rep. Elliott Naishtat's (D-Austin) HB 397 and HB 398 would require public
hearings on clemency petitions. The pardons and parole board would not
only have to meet in public, it would have to
consider factors such as "the validity of any
unresolved legal issues," including guilt; "the inmate's
societal history;" whether the killer was
drunk or deranged at the time of the crime; and
whether he is "rehabilitated." There are 12 such provisions,
including "any submission by the inmate's counsel."
The plain intention here is to keep the death-row cell door propped partly
open. It is hard to imagine under such a regime a prisoner and counsel
not whomping up successions of appeals in which it
is argued (say) that, although the board considered
the petitioner's "societal history," it didn't
consider that whole history. Or consider it fairly.
Or that it refused to wait for relevant evidence.
Show a skillful lawyer a loophole and before long it
becomes a cathedral door.
Likewise Sen. Eddie Lucio (D-Brownsville) has a brace of bills - there are
companions in the House - meant to facilitate sentences of life without
An inherent difficulty with the death penalty inheres also in human
decisions of any kind; how to make everything
absolutely fair and square. Nothing human is ever
that fair, that square. Because human life is at
stake in clemency matters, Naishtat, Lucio, and
Sparks, in addition to lawyers and anti-capital
punishment groups, want to make extra sure that every relevant
detail gets covered.
That is hardly a contemptible desire, but the likelihood of its backfiring
looms large and should be kept in mind. Most death-row prisoners -
including Gary Graham, who threatens to go out
fighting on his present execution date
of Jan. 11 - acquire their claques of supporters. Karla Faye Tucker,
the noted axe murderer and born-again Christian,
inspired one of the more vociferous claques. (To her
credit, she accepted without murmur the denial of
What we don't need is more executions getting hung up longer in the great
procedural machine the legislature is being asked to construct. We
don't need it, that is, if we believe, as we seem
to, that capital punishment punishes and deters in a
manner that upholds civilized standards and
reinforces the social peace. Death row's inmates are
the worst of the worst to come through the criminal
justice system. That, notwithstanding, they command
reflexive sympathy is...scary.