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[ next section ] VII. CLAIMS FOR RELIEF Claim for Relief Number One
The Court of Criminal Appeals has the "power, duty and responsibility to assure that due process and due course [of law] requirements are met" by the Executive Department in the area of death penalty clemency and commutation. Ex parte Gary Graham, 853 S.W.2d 565, 567 (Tex. Crim. App. 1993) (Clinton, J., statement concurring in order) (referring to Herrera). "Due Process requires an especially high level of reliability in the mechanisms leading to a death sentence." Ex parte Elizondo, 947 S.W.2d 202, 204 (Tex. Crim. App. 1996) (quoting Beck v. Alabama, 447 U.S. 625, 637-38 (1980)). A death row inmate has strong liberty and life interests in not being executed by the State, interests which can only be deprived with due process of law. Evitts v. Lucey, 469 U.S. 387, 393 (1985) (relied upon by the Sixth Circuit Court of Appeals in Woodard v. Ohio Adult Parole Authority, 107 F.3d 1178, 1185 (6th Cir. 1997), cert. granted, ___U.S. ___). The Constitution of the United States does not require a state to provide a death penalty clemency/commutation process. However, if a State chooses to make such provision, its clemency/commutation process must comply with the basic requirements of due process. Woodard, 107 F.3d at 1185-86 (citing Evitts, supra). This conclusion is "only rational," given the Supreme Court's recognition of the "integral part played by clemency in every state's death-penalty scheme." Id. at 1187. The requirements of due process at the clemency stage may be minimal, because of clemency's distance from the trial. Id. However, the clemency process in Texas, in theory and action, fails to comport with any reasonable concept of fair procedure. If this court does not grant Applicant the relief she seeks, she will have essentially no hope of commutation of her sentence (no matter how strong her claim for mercy), because the Texas clemency/commutation procedure for capital inmates, as it is designed and in practice, cannot approach a reasonable level of reliability under any minimal standard of due process. At present, clemency for death row inmates does not exist in Texas. The Governor's stated policy regarding his commutation criteria, the death penalty clemency/commutation policies and procedures employed by the Board of Pardons and Paroles, and the Governors' and Board of Pardons and Paroles' death penalty clemency/commutation practice since the reinstatement of capital punishment in Texas violate substantive and procedural due process, as mandated by the Fourteenth Amendment to the Constitution of the United States and by Article I, Section 19 of the Texas Constitution. Article IV, Section 11 of the Texas Constitution clearly contemplates a death penalty clemency/commutation process, as does Article 48.01 of the Code of Criminal Procedure. Under these provisions, the Board of Pardons and Paroles considers recommending to the Governor commutation of a death sentence to a sentence of life imprisonment upon receipt of a request from a majority of the trial officials of the court of conviction, or a written request from the convicted person setting forth all grounds upon which the application is based. Tex. Admin. Code Title 37 §§ 143.57 (1998). Upon recommendation from the Board, the Governor is allowed to grant a commutation of sentence. Tex. Const. art. IV, § 11; Tex. Code Crim. Proc. arts. 48.01 & 48.03 (1998); Tex. Admin. Code tit. 37 § 143.41 (b) (1998). The Texas Constitution requires the Board to keep and provide records of its actions and the reasons for its actions. Tex. Const. art. IV § 11. The Administrative Code requires that "no decision, vote, or final action by the board . . . be made during a closed meeting." Tex. Admin. Code tit. 37 § 143.43 (d) (1998). The Texas Government Code provides, generally, for rights to a hearing, assistance of counsel, transcription of the hearing, and cross-examination in contested cases before state agencies. Tex. Government Code §§ 2001.051; 2001.053(a); 2001.059(a); 2001.087 (1998). Since Furman, the Board of Pardons and Paroles has held one live clemency hearing, in the case of Johnny Frank Garrett (1992).
Governor George Bush has publicly announced an extra-statutory clemency policy focussing on two exclusive issues: whether the inmate's case has cleared the court system and whether there is any question regarding guilt for the offense. Referring to Applicant's case in particular, Bush's spokesperson Karen Hughes announced:
Stephanie Asin and Kathy Walt, Execution of Tucker Scheduled for Feb. 3, Houston Chronicle, December 19, 1997, at A1. Hughes made clear that Governor Bush looks at no other issues in any death commutation/clemency case. Id. This stated policy is consistent with the practice of Texas Governors since the reinstatement of the death penalty in Texas following the Furman and Jurek decisions. See infra. This policy violates substantive due process because it amounts to a refusal to provide any access to clemency, at all, as a "fail-safe" protection against miscarriage of justice. Herrera v. Collins, 506 U.S. 390, 407-08 (1993). The total lack of clemency in Texas, not only as represented in the Governor's explicit policy but in practice, abrogates the Fourteenth Amendment's guarantee of substantive due process of law because it "offends [a] principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Herrera, 506 U.S. at 407-08 (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)). There can be no question that clemency has been and is a fundamental principle of justice in our society. "Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Id. at 411-12 (emphasis added). The clemency power can be traced back to the Eighth Century in England. Id. at 412. All thirty-eight states that currently authorize capital punishment make some provisions for clemency. Woodard, 107 F.3d at 1187. The Supreme Court regards clemency as the "`fail-safe' in our criminal justice system." Herrera, 506 U.S. at 415. The Supreme Court's capital punishment jurisprudence depends, in fact, on Governors exercising their mercy prerogative. See Paul Whitlock Cobb, Jr., Reviving Mercy in the Structure of Capital Punishment, 99 Yale L. J. 389, 400 (1989). Clemency, like pardon, is "not a private act of grace from an individual happening to possess power[, but] . . . a part of the constitutional scheme." Biddle v. Perovich, 274 U.S. 480, 486 (1927) (Oliver Wendell Holmes) (emphasis added). The Gregg v. Georgia plurality maintained that clemency would have to be available to persons under sentence of death. Gregg, 428 U.S. at 199 n.50. Responding to the petitioner's argument that a death penalty system which allowed prosecutors, jurors, and governors discretion to exempt prisoners from punishment was capricious, the Court described clemency "as one of the discretionary practices the absence of which would create a system `totally alien to our notions of criminal justice.'" Id. (as cited in Cobb, supra, at 400). The Court noted that it would be unconstitutional to prohibit a President from exercising clemency. Id. In Herrera, the Supreme Court "explicitly relied upon [the Texas system] of executive clemency in denying habeas relief to a petitioner claiming `actual innocence.'" Woodard, 107 F.3d at 1187. Applicant has interests in life and liberty attached to her prospective clemency review which will be deprived without procedural due process of law by the Governor's stated policy. Woodard, 107 F.3d at 1186 (citing Evitts v. Lucey, 469 U.S. 387 (1985)). The Constitution does not require that states provide clemency provisions any more than avenues for direct appeal, but once such provisions are made, they "must comply with the basic requirements of due process." Id. Such provisions offend the Due Process Clause, at the very least, if they amount to no more than a "meaningless ritual." Woodard, 107 F.3d at 1187-88 (citing Evitts, 469 U.S. at 394, and Douglas v. California, 372 U.S. at 358). The pursuit of clemency and commutation according to Governor Bush's stated policy amounts to no more than a meaningless ritual because, on its face, the policy expresses an unwillingness to correct miscarriages of justice (as well as trial errors) that have survived court review. This post-Furman policy of Governors and the Board to avoid questioning the judiciary is vastly at odds with pre-Furman Texas practice:
Marquart, supra, at 102-03. There is, therefore, every indication that Governor Bush's policy will prevent him and the Board from addressing the fairness of Applicant's trial in relation to the competence of her counsel and her sentencing jury instructions. It will also prevent the Governor from addressing any substantive issues if the Court of Criminal Appeals finds that Applicant has not met the requirements of Section 5 (a), Texas Code of Criminal Procedure Article 11.071. Most importantly, it would appear that, since her Eighth Amendment claims do not comprise an issue of "actual innocence" of the offense itself, the Governor's policy would not allow him or the Board to recognize the clear fact that her execution would constitute a "miscarriage of justice" due to her present lack of death-eligibility under the constitution. See Evans v. Muncy, 498 U.S. 927 (1990) (Marshall, J., dissenting) and Sawyer v. Whitley, 505 U.S. 333 (1992) (defining execution of one who is ineligible for the death penalty as a "miscarriage of justice").
The Chairman of the Board of Pardons and Paroles, Victor Rodriguez, has declared that the Board of Pardons and Paroles members have no guidelines stipulating factors that must be used in reviewing clemency requests. "Each board member decides individually on what basis to recommend or deny action." Stephanie Asin and Kathy Walt, Execution of Tucker Scheduled for Feb. 3, Houston Chronicle, December 19, 1997, at A1. This is also clear in that Tex. Admin. Code tit. 37 § 143.57 (1998) contains no list of objective factors from which to gauge whether the Board should recommend a commutation to the Governor. In this respect, then, the Board's failure to delineate objective factors and establish guidelines violates Article IV, Section 11 of the Texas Constitution. It would appear, also, that the Board members usually do not meet the person upon whose life they are voting, that the Board members usually do not meet as a group before making their decisions, and that they vote, not upon meeting as a group, but by faxing, calling or mailing in their votes to the Austin office of the Board. These facts are not only common knowledge, but also confirmed by a representative of the Board of Pardons and Paroles. The impenetrability of the Board members' reasons for their clemency decisions probably violates the Texas Constitution. Tex. Const. art. IV §11. In fact, as reflected by attached Exhibit 27, it appears that at least one board member does not even review the clemency/commutation requests in capital cases and that reasons for rejection are not proffered. This apparently anarchic, standardless manner of clemency review violates due process under the federal and Texas constitutions, resembling as it does a game of chance. Last year (1997), the Board received sixteen (16) applications for clemency/commutation in capital cases. Given the voting structure, as stated, the uniformity of voting results in these cases is surprising. Not one Board member voted for commutation in any of the sixteen cases in 1997. See attached Exhibit 28 (statistics showing the vote of each Board member in each of the sixteen commutations). In six out of the sixteen cases, some of the members of the eighteen Board members did not even vote. One of the members regularly abstains from voting. No open meetings or hearings were held in any case. The unanimous voting suggests an all-or-nothing policy, perhaps allowing commutation only on a consensus, which would also be unconscionably arbitrary. The unanimous, negative results (no votes) are shocking in view of the character of some of the cases that were before the Board.
These examples, all unanimously voted against, illustrate that the Board's lack of guidelines and secretiveness may have created the conditions for unconstitutional denial of "fail-safe" relief against errors involving fundamental constitutional rights or serious matters of national moral consensus. The anarchic voting policy reveals the presence of one strain of arbitrariness in the process. The actual voting record suggests another: that the members of the Board simply do not exercise their discretion and treat all applicants alike as deserving of a mandatory penalty. This is constitutionally unacceptable.
Every post-Furman death commutation granted in Texas was sought by the State trial officers (judge, prosecutor, and/or sheriff) based on a policy of judicial expediency: a decision to commute in order to avoid the costs of retrial. Michael Radelet and Barbara Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 U. Richmond L. Rev. 289, 299 (Table 2) (1993) (attached Exhibit 17) (demonstrating that all 36 post-Furman Texas commutations have been for reason of "judicial expediency"); see id. at 294-95 (list of all Texas death commutations); see also Exhibit 18 (Letter of Bret Hornsby, Supervisor IV, Executive Clemency Section, Texas Board of Pardons and Paroles, to Walter Long, dated October 29, 1997); Exhibit 19 (Chart of Circumstances and Reasons Tied to Disposition of All Post-Furman Commutations); and Exhibit 20 (commutation orders). In their commutations granted out of "judicial expediency," the Texas Board and Governors have remitted the death penalty because "courts [have] vacated, or [are] likely to vacate, the death sentence" and they have acceded to the prosecution's request to avoid retrial. Radelet and Zsembik, supra, at 293; see Whan v. State, 485 S.W.2d 275, 277 (Tex. Crim. App. 1972) (explaining how commutation allows the judgment of guilt to stand). The Board and Governors have reacted quickly to prosecutors' requests, enabling convictions to stand following reversal and preventing the courts from ordering retrial of the defendants. When federal courts reversed sentences and remanded, prosecutors were courteous enough, at times, to directly entreat the Court of Criminal Appeals to cease activity until they were able to secure commutation. For example, Arthur C. (Cappy) Eads, District Attorney of Bell and Lampasas Counties, made written request that the Court desist in the reversed cases of John Charles Shippy and Bernard Ferguson. In each case, he stated:
Letters, Arthur C. (Cappy) Eads to Roy Rawls, Court Administrator, Texas Court of Criminal Appeals, dated November 2, 1983 (Shippy), and October 15, 1982 (Ferguson). This policy has taken advantage of the fact that, under Texas law, commutation may be granted against the defendant's wishes. It prevented a factually innocent man, Randall Dale Adams, from leaving death row for years after his sentence was vacated by the United States Supreme Court on Witherspoon grounds. See Adams v. State, 624 S.W.2d 568 (Tex. Crim. App. 1981) (withdrawing "prior opinions on remand from the Supreme Court, recognizing the Governor's executive order of commutation, and announcing "there is now no error in the case," affirming the conviction). In contrast, even though Texas has executed far more persons than any other state and Texas law allows clemency on any ground (given the absence of objective factors or guidelines), no post-Furman Texas commutations have been granted for "humanitarian reasons": the traditional grounds for commutation (mercy, doubts about guilt, mental illness or capacity issues, equity, rehabilitation, and other issues). See Radelet and Zsembik, supra, at 300 (defining humanitarian grounds and giving examples from other states). Nine other states have granted post-Furman commutations on humanitarian grounds. Id. at 299-300 & Table 2 (attached Exhibit 17). Texas Governors, on the other hand, have allowed executions to occur in situations that, more likely than not, would have prompted action on the part of Governors or Boards in other states in order to prevent miscarriage of justice and to protect the fundamental fairness of the system. In addition to cases mentioned above, there are the following:
The Supreme Court in Herrera v. Collins described the clemency process as a fail-safe for capital inmates. Governor James Wilder, however, failed to commute Wilbert Evans' sentence. See Stuart Taylor, Jr., We Will Kill You Anyway, The American Lawyer, December 1990, at 55. The only constitutional protection Wilbert Evans received was the opportunity to read Justice Marshall's scathing dissent, after which he requested that it be buried with him. Id. at 55-56. Evans' execution apparently caused some public reaction. Subsequently, two Virginia Governors have commuted at least two death sentences based, at least in part, upon the inmate's rehabilitation. Governor Wilder himself commuted the sentence of John Giarratano a year after Evans was executed. See David A. Kaplan and Bob Cohn, Pardon Me, Governor Wilder, Newsweek, March 4, 1991, at 56 (characterizing Giarratano's story as one of "rehabilitation, salvation, and the kindness of strangers" and describing Giarratano's development into a jailhouse lawyer); but see Michael Radelet and Barbara Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 U. Richmond L. Rev. 289, 308 (1993) (demonstrating that doubts about guilt also played a role). A few months ago, Governor George Allen commuted the death sentence of William Ira Saunders purely on the basis of Saunders' rehabilitation. William Ira Saunders --- Commuted because of Rehabilitation (Virginia) William Saunders' trial judge (who had sentenced him at a bench trial) sought commutation, specifically and only because Saunders' behavior over the seven years of his imprisonment on death row showed he no longer posed a continuing threat. Death Sentence Commuted, Washington Post, September 16, 1997, at B03. See Attached Exhibit 21. Danville Circuit Judge James F. Ingram wrote Governor Allen that it would be in "the best interest of justice" for Saunder's death sentence to be commuted, because "Saunders [was] not the same violent man sentenced to death seven years ago." Id (emphasis added); Justin M. Norton, Virginia Governor Commutes Death Sentence; Colorado Governor Denies Clemency, Associated Press Release, September 15, 1997. The facts of Saunders' robbery/murder offense are no less heinous than Applicant's facts. After the Evans debacle, it appears that the Virginia commutation process has swung into gear to protect the constitutional rights of persons in Applicant's circumstances. William Neal Moore --- Commuted because of Rehabilitation (Georgia) Rehabilitation also was the key if not sole factor in the Georgia Board of Pardons and Paroles' decision to commute the sentence of William Neal Moore in 1990. Radelet and Zsembik, supra, at 303 (describing Moore's case as the "only [post-Furman] case in which [rehabilitation] was given as the sole or most important reason" in a commutation decision); Editorial, When Mercy Becomes Mandatory, Atlanta Constitution, August 16, 1990, at A10; attached Exhibit 22. The circumstances of Moore's offense are very similar to Applicant's offense in that both crimes were committed by intoxicated defendants robbing and murdering the victims following illegal nocturnal entry into the victims' homes. Testifying coconspirators are present in both cases. The words of Moore himself reveal a comparably depraved offense cooked up in a similarly inebriated state:
Moore v. State, 213 S.E.2d 829, 830-31 (Ga. 1975). Moore reentered Stapleton's home through a bedroom window. Id. Stapleton surprised him, firing a shotgun at him. Whereupon Moore unloaded his .38 caliber pistol at Stapleton, killing him. Id. Moore removed two billfolds from Stapleton's pocket, took Stapleton's shotgun, and left. Id. He removed $5,700.00 from Stapleton's wallets, burned the wallets, and disposed of the shotgun. Id. Moore claimed that, when Stapleton shot at him, hitting him in the leg, it scared him and made him fire in return, and he asked for mercy from the court. Id. The Georgia Board of Pardons and Paroles noted that it was "very much impressed" that family members of the victim also asked for clemency. Morris, supra. Undoubtedly, the Board considered as dispositive of its clemency decision the following facts and opinions, conveyed in an Atlanta Constitution editorial:
Editorial, When Mercy Becomes Mandatory, supra. David Cameron Keith --- Commuted because of Rehabilitation (Montana) On December 29, 1988, Montana Governor Ted Schwinden commuted the death sentence of David Cameron Keith following a recommendation from the Montana Pardons Board. Radelet and Zsembik, supra, at 311; U.P.I. Regional News Release, December 23, 1988 (attached Exhibit 23). The Board weighed evidence of religious rehabilitation into its 2-1 decision to advise the Governor to spare Keith's life. The Board also heard a statement from the son of the victim, who declared that he had always been opposed to Keith's execution. U.P.I. Release, supra. Additionally, police officers criticized their own behavior during the offense. Id. Keith killed one of two hostages he took after robbing a Missoula, Montana, drug store "in hopes of satisfying his drug-by-injection habit." Id. The facts of the offense were the following:
State v. Keith, 754 P.2d 474, 475-76 (Mt. 1988). Keith admitted in a written statement that "immediately after [being shot] I came to the conclusion that I was going to die, I didn't want to go alone so I fired my pistol into the back of the head of Mr. Harry Shryock." Id. at 476. At the time of his clemency review, Keith's attorneys asked the Board to vote to spare his life, because he had become a Christian since his arrest and his life "might be put to good use if he's allowed to live and help counsel others with alcohol and drug abuse problems." U.P.I. Release, supra. One of the attorneys, George Best, argued, "If he only reached one [person with drug problems], wouldn't that be a value to society?" Id. Keith, himself, was reported by the press to have said that he did not want to die, but also believed the Scriptures required him to submit to the authorities and to pay his debt to society. Id.
In the pre-Furman years Texas Governors commuted death sentences, many times, on the basis of rehabilitation. See James W. Marquart, Sheldon Ekland-Olson, & Jonathan R. Sorenson, The Rope, The Chair, and the Needle 100, 102, 107 (Univ. of Texas Press 1994). "In at least 10 cases sentences were commuted with the simple rationale that the offender had an otherwise good record or that he came from a family with a good reputation." Id. at 102. As in other states at the time, "posttrial testimonials about the offender's character" played a clear role in the death commutation decision. Id. at 107. Other states, as well, commuted death sentences on the basis of rehabilitation alone, one of the more notable cases being the 1963 commutation of Paul Crump by the Governor of Illinois. Pre-Furman Texas Governors also granted at least four clemency petitions based upon the defendant being intoxicated at the time of the offense and not in complete control of his faculties. Marquart, supra, at 102.
Texas policy and practice perfectly incarnates the displaced responsibility noted by numerous commentators who have written about the disappearance of the exercise of executive discretion in the capital regimes of the past twenty years. See, e.g., Victoria J. Palacios, Faith in Fantasy: The Supreme Court's Reliance on Commutation to Ensure Justice in Death Penalty Cases, 49 Vand. L. Rev. 311 (1996); Carol S. Steiker and Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harvard L. Rev. 357, 411, 435 (1995); Hugo A. Bedau, The Decline of Executive Clemency in Capital Cases, 18 N.Y.U. Rev. L. & Soc. Change 255 (1990-91); Paul Whitlock Cobb, Jr., Reviving Mercy in the Structure of Capital Punishment, 99 Yale L. J. 389 (1989). Chief among the reasons proffered for clemency's disappearance is the perception that Governors have shifted the moral responsibility for executions onto Supreme Court justices. Steiker, supra, at 435. There is the apparent, concomitant executive misperception that "death sentences are now meted out by the trial courts with all the fairness that is humanly possible, even if in the dark pre-Furman past they were not." Id. (citing Bedau, supra, at 268). The Texas Board and Governors (not merely Governor George Bush) have adopted the tendency to defer all decisions to the courts as policy, except when court relief to a defendant (and concomitant retrial) is preventible. Displaced responsibility occurs systemically from the moment prosecutors exercise their discretion to try the case as a capital offense -- in part being bolstered by the fact that they can rely on the impersonal system -- to the point that executive decisionmakers refuse to touch a sentence that has made its way through both state and federal review. Id.
In the world of Texas death penalty clemency/commutation procedure, clemency is unavailable at the defendant's request and is otherwise used by prosecutors as a tool to prevent defendants from achieving more profound relief. The Court of Criminal Appeals should find the Texas death penalty clemency/commutation process unconstitutional and in violation of Texas, federal and international law, because clemency does not exist in Texas. Applicant would beseech the Court of Criminal Appeals to stay her execution so that the Court may determine how much process she is eligible to receive under due process and due course of law provisions. The Court of Criminal Appeals is the best forum for the resolution of this matter. See Woodard, 107 F.3d at 1188 (suggesting that the state courts are the better forum because of federalism concerns). In the alternative, or at the same time, Applicant requests that the Court of Criminal Appeals issue an order of mandamus directing the executive authorities to afford her a real opportunity for clemency, a hearing, and an otherwise fair process. Claim for Relief Number Two
The United States Supreme Court has repeatedly held that "the protection of the Eighth Amendment does not end once a defendant has been validly convicted and sentenced." Herrera v. Collins, 506 U.S. 390, 430, 432 (1993) (Blackmun, J., dissenting, joined by Stevens, J., and Souter, J.) (citing Johnson v. Mississippi, 486 U.S. 578 (1988); Ford v. Wainwright, 477 U.S. 399 (1986)). The State of Texas may not constitutionally inflict the punishment of death upon Applicant. Such punishment would only be cruelly arbitrary, because it would serve neither of the recognized goals of the capital sanction. Applicant's execution would violate the Eighth Amendment because no reasonable person could conclude that, in light of Applicant's total reformation of character, society's interest in deterrence and retribution outweigh any concomitant consideration of her rehabilitation. When a "sentence does not even purport to serve a rehabilitative function, the sentence must rest on a rational determination that the punished `criminal conduct is so atrocious that society's interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator.'" Harmelin v. Michigan, 501 U.S. 957, 1028 (1991) (Stevens, J., joined by Blackmun, J., dissenting) (emphasis added). The examination infra of public polling, statutes, declarations by religious organizations, executive commutations, and treaty law reveals that, despite the reinstatement of the death penalty in the states and widespread retributive sentiment, rehabilitation remains as prominent a punishment goal as retribution, and as deeply held public value as swift and certain punishment. Deterrence has faded as a punishment goal. Due to the fact that the standards of decency in American society, not excepting in the State of Texas, have evolved to the point, at present, where retribution and rehabilitation are valued equally, the execution of an authentically and completely reformed perpetrator would violate public morality and shock the conscience. The U.S. Supreme Court has held that when the execution of an offender makes no "measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless infliction of pain and suffering," it must be barred as excessive under the Eighth Amendment. Coker v. Georgia, 433 U.S. 584, 592 (1977) (explaining the Court's holding in Gregg v. Georgia, supra). The Supreme Court has recognized retribution and deterrence as the principal goals to be achieved by the capital sanction, while also noting the role of incapacitation of the individual offender. Gregg v. Georgia, 428 U.S. at 183 & n.28; see also Tison v. Arizona, 481 U.S. 137, 148-49 (1987) ("The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender."); Enmund v. Florida, 458 U.S. 782, 798-99 (1982); Ford v. Wainwright, 477 U.S. 399, 407-410 (1986) (finding that neither deterrence nor retribution are served in the execution of the insane). Although incapacitation clearly would be served as well by a life sentence, or parole, in Applicant's case, retribution might be conceded to have some residual value in relation to her execution, in view of the heinousness of the offense. The Eighth Amendment, however, requires infliction of punishment not only with a view to the offense but to the character of the offender. See e.g., Woodson v. North Carolina, 428 U.S. 280, 304 (1976). Applicant's status as a completely reformed offender does not serve society's interest in retribution. The retributive principle that organized society must be willing to inflict punishment on criminal offenders that they deserve is well challenged by the status of a completely reformed offender. See Gregg, 428 U.S. at 183 (quoting Furman, 408 U.S. at 308 (Stewart, J., concurring) in defining "retribution"). The consensus on the part of former prosecutors who worked with Applicant, jail and prison personnel, Applicant's family, mental health professionals, Applicant's attorneys and, indeed, everyone who knows or has had contact with her since her trial that she is no longer the same person who committed the offense radically challenges her present "desert." She could only be executed with an abstract view toward the unquestionable outrageousness of the crime, without consideration of her present moral status. The fact that someone, in society's view, may have "deserved" to die for the offense does not support the execution of Applicant if she truly is no longer the same moral entity alleged to have committed the offense. The public's continued strong support for the rehabilitative purpose of punishment demands, along with the retributive concern for proportionate punishment, "consideration" of Applicant's rehabilitation. Over the course of this century, the United States Supreme Court's jurisprudence regarding rehabilitation and retribution as punishment goals has developed in tandem with the Court's perception of the status of the goals in the mind of the public. At the time of the zenith of corrections reform popularity, the Court held that rehabilitation and reformation had unseated retribution as the "dominant objective in the criminal law." Williams v. New York, 337 U.S. 241, 248 (1949). Consistent with all current scientific polling (see infra), the Court has always viewed retribution and rehabilitation as adversarial public punishment goals. See, e.g., Morrisette v. United States, 342 U.S. 246, 251 (1952) (speaking of the "tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution"). The Court has always refrained from announcing that either of the goals had replaced the other. See, e.g., Powell v. Texas, 392 U.S. 514, 530 (1968) (Justice Marshall commenting that the Court "has never held that anything in the Constitution requires that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects"); see also Massiah v. United States, 377 U.S. 201, 207 (1964) (White, J., dissenting) (noting the existence of a "profound dispute about whether we should punish, deter, rehabilitate or cure"); Furman v. Georgia, 408 U.S. 238, 414, 452 n.43 (1972) (Powell, J., dissenting, joined by Rehnquist, Burger, and Blackmun, JJ.) (listing these and additional cases). By merely viewing the punishment goals as vying for prominence, however, and giving retribution an almost preemptive role in its capital jurisprudence the Court has seriously underestimated and miscalculated public support for rehabilitation as a punishment alternative, even in the context of capital punishment. The reality demonstrated by all public polling, state statutory schemes, and the behavior of courts is that rehabilitation and retribution are appreciated by the public not only as vying contestants for prominence as punishment criteria but, more importantly, as equally high ideals in punishment with some vacillation in strength between them over time. Members of the Court announced in Furman that retribution and rehabilitation were incompatible, suggesting that rehabilitation had little role to play in capital litigation. For some, this factored into their conclusion that the death penalty was unconstitutional. For the four dissenting Justices, the fact that retribution had never been eliminated by the Court as a proper punishment goal in cases evoking strong community outrage enabled them to accept it over rehabilitation as a dominant basis for preserving the death penalty. All the Justices on both sides of the death penalty issue assumed that, because death terminates the life of the offender, it makes rehabilitation theoretically irrelevant once the punishment is imposed. This perception, which forms the basis of the Court's later "death is different" analysis, leads the Court to direct its concern about rehabilitation within the death penalty context into the capital sentencing procedure, i.e., making sure that capital juries can meaningfully use information about a defendant's "prospects for rehabilitation" in their sentencing decisions. Lockett v. Ohio, 438 U.S. 586, 594 (1978) (holding statute unconstitutionally limited sentencer's ability to consider evidence that Sandra Lockett had a good "prognosis for rehabilitation" if returned to society); Franklin v. Lynaugh, 487 U.S. 164, 177-78, 179-80 (1988) (holding that the Texas statute allowed jurors to consider the mitigating evidence of Donald Franklin's good prison record). The Court has generated a line of cases responsive to its concern that jurors not be arbitrarily prevented from considering any evidence, including such evidence as rehabilitation, that could lead to a penalty less than death. Applicant bases her instant claim for relief, however, on the other chief line of Supreme Court precedent arising from the Court's concern, expressed in Furman, that sentencers be meaningfully directed in "distinguishing the few cases in which [the death penalty] is imposed from the many in which it is not." Furman v. Georgia, 408 U.S. 238, 313 (1972) (Stewart, J., concurring); see Callins v. Collins, 510 U.S. 1141 (Blackmun, J., dissenting). Applicant's execution would be cruel and arbitrary, because she is not death-eligible. Retribution is only abstractly served in her case, and deterrence is not served at all. The national moral consensus, suitably expressed by Justice Stevens, supra, requires consideration of her present rehabilitation, and the commutation of the sentence of such an offender who is fully rehabilitated. In short, Applicant may not presently, nor in the future, be executed because such infliction of punishment would be constitutionally disproportionate due to her status as a completely reformed errant. Delo v. Lashley, 507 U.S. 272, 279, 288 (1993) (Stevens, J., joined by Blackmun, J., dissenting) (recognizing that youth has been considered as an exempt status from execution because of potential for rehabilitation); Stanford v. Kentucky, 492 U.S. 361 (1989) (considering youths as a class of offenders ineligible for the death penalty); Penry v. Lynaugh, 492 U.S. 302 (1989) (considering persons with mental retardation as a class of offenders ineligible for the death penalty); Ford v. Wainwright, 477 U.S. 399 (1986) (holding that persons who are currently insane are, as a class, ineligible for the death penalty). The Supreme Court has been reluctant to establish classes that are ineligible for the death penalty, relying instead, as noted above, on "sentencer discretion guided by statutory criteria rather than court mandate" to delimit the death-eligible with minimum arbitrariness. Steiker, supra, at 378. This same tendency to focus on guided sentencer discretion, rather than classes of offenders, may account for the paucity of recent comment by the courts, state or federal, on the relative strengths of retribution and rehabilitation as guiding principles in the infliction of the death penalty. This tendency accounts for the general lack of alternative punishment statutes in death penalty states or other kinds of statutes, such as clemency directives, that address rehabilitation of capital offenders. As will be shown below, the polls are way ahead of the legislatures and the courts in revealing the deep-set respect for rehabilitation as a punishment goal, the relatively equal strength of rehabilitation and retribution, and ways rehabilitation can be applied in capital sentencing. As will also be shown, however, legislatures have continued to encode the public's strong support for rehabilitation and, thus, essentially all capital punishment states still make provision for rehabilitation as a dominant goal in punishment. Legislatures adequately portray the public's desire that rehabilitation be given a prominent place. Due to political pressure and misperception about the public's value of rehabilitation vis a vis retribution, legislators have been slow to generate any laws that would mandate, for instance, the commutation of the sentence of a defendant like Applicant, even though such legislation may be required because some procedural mechanism must be made available to prevent the kind of constitutional error present here. The paucity of procedural solutions cannot be held to demonstrate the absence of such error. Since Applicant's execution would not serve the punishment goals of deterrence and retribution, it is banned by the Eighth Amendment. In the words of an Illinois prison warden, infra, to execute Applicant would be to "commit capital vengeance, not punishment." In view of Applicant's rehabilitation, there is utterly no reason to believe that the execution of Applicant would serve any penal purpose more effectively than the less severe punishment of imprisonment. Furman, 408 U.S. at 305 (Brennan, J., concurring). "The purpose of punishment is fulfilled, crime is repressed by penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal." Id. at 305, 343 (citing Weems v. United States, 217 U.S. at 381)). Claim for Relief Number Three
Infliction of the death penalty upon Applicant would be cruel and arbitrary, because it would be unacceptable in light of current American standards of human decency. "The protection of the Eighth Amendment does not end once a defendant has been validly convicted and sentenced." Herrera, 506 U.S. at 430, 432 (1993) (Blackmun, J., dissenting, joined by Stevens, J., and Souter, J.); Johnson v. Mississippi, 486 U.S. 578 (1988); Ford v. Wainwright, 477 U.S. 399 (1986)). Applicant cannot be constitutionally executed, because contemporary American society would find the execution of an offender who has been totally rehabilitated morally offensive and at odds with current standards of human decency. The "respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion of Stewart, Powell, and Stevens, JJ.) (emphasis added); Ford v. Wainwright, 477 U.S. 399, 407-410 (1986). The State of Texas may not constitutionally inflict the death penalty on Applicant, because of her character and record as a completely rehabilitated offender. Such sanction would deeply offend contemporary standards of human decency, reflected in the American public's constant high valuation of rehabilitation as a punishment goal. The American public, in fact, rejects punitive justice in favor of a community-based, restorative model of justice. All evidence shows that the American public holds retribution and rehabilitation to be competing and commensurate avenues to the restoration of public order following a capital offense. Such a statement may initially seem surprising, given the apparent widespread support for the capital sanction. Public opinion polls and social science findings demonstrate, however, that since the reinstatement of the death penalty in the majority of states, public support for rehabilitation in those states has not waned dramatically in inverse proportion to the popularity of strict and certain punishment. Real-life sentences that embrace rehabilitative goals of community safety as well as reparation for crime are actually universally more popular than the death penalty itself as punishment options for capital offenders, even in states long considered bastions of capital punishment. For that reason, clear and convincing demonstration by a capital offender of authentic and complete rehabilitation must disable the State from carrying out her execution, because execution would not only be contrary to the public's punishment-type preference but would also offend contemporary moral concern for the rehabilitation of errants. There is every indication that the public recoils at the death penalty when rehabilitation can actually be achieved, because rehabilitation defeats sentiment toward vengeance, restores the moral order, meets the community's need for specific incapacitation and, when coupled with proportionately strict sentencing, meets the community's need for general deterrence. Recent public opinion polling shows that the public is aware that there remains no need nor justification for the death penalty when such goals can be achieved. Social science evidence, legislative enactments, public pronouncements by religious bodies, executive commutation actions, and international law and opinion all support this conclusion. As a result, execution of Applicant, who has shown herself not only to be rehabilitated but to be a very positive social influence, would not be acceptable as justice, would be merely arbitrary, wanton infliction of pain on an individual and would be, in itself, a severe disruption of the moral social order. 1. The Social Science Evidence The Supreme Court, on occasion, has looked to social science data as evidence of evolving standards of human decency. E.g., Gregg v. Georgia, 428 U.S. 153 (1976). Sociological research and opinion polling since the "reinstatement" of the death penalty via Gregg clearly demonstrates that the public's high for rehabilitation of offenders has not been devalued by the popularity of punitive measures; that, in fact, a preferred alternative to the death penalty that requires rehabilitation of the offender has been universally found in every polled state. See William J. Bowers, Margaret Vandiver, & Patricia H. Duggan, A New Look at Public Opinion on Capital Punishment: What Citizens and Legislators Prefer, 22:1 Am. Jnl. Crim. Law 77 (1994); Richard C. McCorkle, Research Note: Punish and Rehabilitate? Public Attitudes Toward Six Common Crimes, 39:2 Crime and Delinquency 240 (April 1992); Francis T. Cullen, Sandra Evans Skovron, Joseph E. Scott, Velmer S. Burton, Jr., Public Support for Correctional Treatment, 17:1 Criminal Justice and Behavior 6 (March 1990); Mark Warr & Mark Stafford, Public Goals of Punishment and Support for the Death Penalty, 21:2 Journal of Research in Crime and Delinquency 95 (May 1984); see also Andrew Skotnicki, Religion and Rehabilitation, 15:2 Criminal Justice Ethics (Summer/Fall 1996) (noting the reemergence in recent years of the rehabilitative ideal, but lack of appreciation for religious conversion as "a key factor in solving the riddle of wilful human rejection of law and behavioral norms"). Warr and Stafford set out specifically to: (1) "identify the goals or justifications of punishment held by the public at large," and (2) "examine the relation between these goals and public support for capital punishment." Warr, supra, at 97. The relative strengths of public justifications for the death penalty are examined through justifications for imprisonment. Id. at 99. The authors point out that, since rehabilitation and retribution are logically incompatible, the only way to measure their relative strength in relation to capital punishment is to look at incarceration goals. Imprisonment is commensurate with all punishment goals, whereas it is nonsense to ask whether execution accomplishes rehabilitation. Id. The results from the authors' survey indicated:
Id. at 102. Interestingly, a full 50 percent of those who held rehabilitation to be the most important punishment goal also supported capital punishment. Id. at 106. Warr and Stafford concluded:
Id. at 106. Similarly, McCorkle (1993) and Cullen et al. (1990, 1988, 1987, 1985, 1983, 1982, 1977) concur that the public continues to believe violent offenders should not only be punished but also rehabilitated. McCorkle studied public attitudes toward punishment goals for violent and nonviolent offenders (robbery, rape, molestation, burglary, drug sale, drug possession) in a 1992 survey of respondents in the Las Vegas, Nevada, area. McCorkle, supra, at 242. The respondents consistently showed "strong punishment orientations," support for "increased use of prisons to ensure offenders received their just deserts." Id. at 250. Public attitudes, however, were multifaceted:
Id. (emphasis in original). The following poll results taken from the Sourcebook of Criminal Justice Statistics show widespread corroboration of the findings of these scholars that the relationship among punishment goals is complex and that retribution and rehabilitation are both high on the public agenda:
Although the polls reported in the Sourcebook demonstrate continued public support for both retribution and rehabilitation in relation to violent offenders, they can be faulted for not being specifically applicable to the death penalty, due to the logical difficulty inherent in attempting to apply rehabilitation in the capital punishment context. Arguably, however, a set of polls that have been conducted since 1986 do succeed in measuring the public support for rehabilitation in the death penalty context with the remarkable consequence that a rehabilitative punishment alternative has been observed that is universally preferred over the death penalty for capital murder offenders. This set of post-Furman surveys has shown undeviating preference on the part of the public for a kind of compensatory, rather than solely retributive, punishment that necessarily implies a concomitant public belief in rehabilitation of capital defendants. Public opinion polls invariably show that, where respondents are given the alternative punishment choice of a real life sentence, coupled with restitution to the family members of the offender's victim(s), support for the death penalty evaporates. Bowers, supra, at 144. Researchers have noted that the standard polling question -- Do you support the death penalty? -- reflects an acceptance of the death penalty but not a preference for that punishment over other alternatives:
Id. at 79. In polls from 1986-1995, a majority of respondents in Arkansas, California, Florida, Georgia, Kansas, Massachusetts, New York, and Indiana have stated a preference for life without parole plus restitution over the death penalty as punishment for capital offenders. Id. at 91. The death penalty has not been preferred over life plus restitution in any state poll. Researchers conclude that:
Id. at 145 (emphasis added). Whereas the U.S. public supports the strictness of the capital sanction as an expression of community outrage, the polls indicate that the public also embraces the idea that the punishment of capital offenders, like that of other prisoners, must be undertaken with a view to the comprehensive needs and rights within the community. The firm public support for life without parole plus restitution demonstrates an evolving standard of decency in punishment that transcends -- in its holistic, self-conscious attentiveness to the needs in every community sector -- the more ritualized, historical capital sanction. It recognizes, furthermore, the value of the life of the perpetrator, at least as dedicated to restoration of the community breach caused by her actions. The behavior of the Furman commutees in Texas demonstrates empirically that the public's belief in rehabilitative options is not misplaced. Forty-seven inmates were physically present on death row when Furman v. Georgia was announced in 1972. James W. Marquart, Sheldon Ekland-Olson, & Jonathan R. Sorenson, The Rope, The Chair, and the Needle 123 (Univ. of Texas Press 1994). Governor Price Daniel commuted all forty-seven inmates to life imprisonment or ninety-nine years. Thirty-seven had been convicted of murder, seven of rape, and three of armed robbery. Id. Seventy-five percent committed no serious infractions during their confinement in the general population. Id. at 124. Sixty-six percent (31 prisoners) were eventually released to the community. Id. at 125. Eighty-six percent were not convicted of a new felony while in the free community, compared to 94 percent of a comparable research control group. Id. The recidivism rate in both Furman and control groups was low. Id. 2. Legislative Enactments The public support for restorative justice reflected in widespread polling has been incorporated into our states' penal laws, including the law of Texas. Although the widespread support for strict, certain, and restorative penalties has not been expressed by way of the elimination of post-Furman capital murder statutes or the passage of laws that provide the jury more capital offense punishment options, Congress and a majority of state constitutions and legislatures have mandated that all procedures and punishments in their criminal codes, not excluding capital offenses, be governed by concern for rehabilitative and restorative values. Almost all states show fundamental respect for rehabilitative principles by way of the codification of their criminal laws or interpretation of statutory provisions for punishment by state high courts. Almost states make some provision for restitution as an adjunct to criminal sentencing. Most of these states do not restrict the obligation of restitution to persons sentenced to life or years. Many states explicitly tie restitution to rehabilitation of the defendant or make restitution a function of rehabilitation. See also Stephen Schafer, Compensation and Restitution to Victims of Crime 119-22 (2d ed. 1970). There is no meaningful contrast between death penalty and non-death penalty states in relation to the emphasis given rehabilitation as a punishment goal. For every Wisconsin and Minnesota, there is a Wyoming, Oregon, or Indiana; the latter all having the death penalty and constitutional provisions mandating that rehabilitation be considered the preeminent goal in punishment. Retribution as vengeance is not advocated by any state; whereas, retribution as it is represented in the concern for proportionate sentencing is found in many of the states' statutory provisions. The coexistence of the death penalty, retribution, and rehabilitation, along with the omnipresent option of restitution is remarkable, and demonstrates by way of a pattern among the states' statutes not only the resilience of rehabilitation as a punishment goal, but the dual high punishment priorities found in public opinion polls and their mutual and productive interaction. a. The Federal Government Prior to Congress' sentencing reform in 1984, federal sentencing policy was based almost exclusively upon a rehabilitation model. Continuing Appropriations, 1985--Comprehensive Crime Control Act of 1984, S. Rep. No. 98-225, 98th Cong., 2d Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 3220, 3221 (1984)("[C]riminal sentencing is based largely on an outmoded rehabilitation model."). On the basis of concerns similar to those driving the Supreme Court's revamping of death penalty jurisprudence -- chiefly the complete discretion afforded sentencers and wide disparities in sentencing results -- and concern about the capacity of the prison setting to foster rehabilitation, the Senate Judiciary Committee pushed sentencing reform toward greater uniformity in sentencing and less emphasis on rehabilitation. Id. at 3220-23. The product of the Senate's finding that other concerns than rehabilitation should also guide sentencing was the Sentencing Reform Act, which outlined four purposes of punishment: retribution, deterrence, incapacitation, and rehabilitation. 18 U.S.C. § 3553 (a) (2) (1988). The Judiciary Committee maintained that all four should be considered in sentencing and that no one should be viewed abstractly as being more important than the others. 1984 U.S.C.C.A.N. 3220, 3250-51. The Senate recognized, however, that in any individual case one goal might take on more importance than others, and that not every purpose would be relevant in every case. Id. at 3250-51, 3260. The Senate Judiciary Committee expressed the intent of Congress:
Id. at 3260. Rehabilitation, thus, survived sentencing reform on equal par with retribution and deterrence (the two purposes maintained by the Supreme Court as the bases for the capital sanction) as a Congressionally mandated goal in punishment. Interestingly, the overarching policy statute also includes as a factor to consider in imposing sentence "the need to provide restitution to any victims of the offense." 18 U.S.C. § 3353 (a) (7) (1997). The new code embraces the death penalty for murder and, like many state codes, requires sentencing consideration of a number of mitigating factors that would include concerns about rehabilitation. 18 U.S.C. 1111 (murder); 18 U.S.C. 3592 (a) (1) (impaired capacity), (5) (no prior history), & (8) (catchall). Rehabilitation also plays a big role in the Sentencing Guidelines for non-capital offenses. E.g., 18 U.S.C. Appx @ 3E1.1. b. The Model Penal Code Rehabilitation is one of the chief purposes listed by the American Law Institute, and retribution is notably absent, except as it is involved in proportionality:
Model Penal Code § 1.02 (West 1997). c. State Constitutions Establishing Rehabilitation as One (or the Only) Punishment Priority Alaska (no death penalty), Indiana (death penalty), Oregon (death penalty), and Wyoming (death penalty) all have state constitutional provisions requiring that punishment be based upon rehabilitation. See Appendix A (detailing these provisions) (attached as Tab 30 to Exhibit Volume). d. Texas' and Other Death Penalty States' Statutes that Explicitly Require Punishment of Offenders to Hew to a Rehabilitative Goal Numerous statutes from states imposing the death penalty reflect an equally strong legislative intent to prioritize rehabilitation as a goal in punishment. Texas-- The Texas legislature, for example, has expressed its intent that all provisions in the Penal Code (including § 19.03 Capital Murder) be construed "to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders" and "to guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons suspected, accused, or convicted of offenses." Tex. Penal Code § 1.02 (3) & (5) (emphasis added). As alluded to above, the Texas Court of Criminal Appeals has explicitly applied § 1.02 in the capital sentencing context, holding that "rehabilitation is obviously a proper consideration under special issue number two." Jackson v. State, 822 S.W.2d 18 (Tex. Crim. App. 1990); Wilkerson v. State, 881 S.W.2d 321, 328, 344 (Tex. Crim. App. 1994) (Baird, J., dissenting). Texas also has a strong restitution statute. Tex. Code Crim. Proc. art. 42.037 (1997). Additionally, it is the only state in the union with a (highly successful) death row work program. See Francis X. Clines, Self-Esteem and Friendship in a Factory on Death Row, New York Times, January 12, 1994, at A1, A8. In addition to the federal government and Texas, and in addition to the states with constitutional provisions, at least twenty-one death penalty states have general purpose statutes asserting that their criminal codes are designed to facilitate rehabilitation through punishment, or statutory features that place at least equal importance on the role of rehabilitation in punishment. See Appendix B (detailing these provisions) (attached as Tab 31 to Exhibit Volume). e. Death Penalty States' Statutes Requiring Less Explicit Consideration of Rehabilitation in Punishment Approximately eight death penalty states could be characterized as having statutes that require some less explicit consideration of rehabilitation. Every state has procedures, either civil or criminal, for the restitution of crime victims. See Appendix C (detailing these provisions) (attached as Tab 32 to Exhibit Volume). f. Non-Death Penalty State Statutes Requiring Rehabilitation as a Punishment Goal The vast majority of the non-death penalty states have strong statutes requiring rehabilitation as a punishment goal. See Appendix D (detailing these provisions) (attached as Tab 33 to Exhibit Volume). 3. The Behavior of Juries The Supreme Court has often regarded the behavior of juries as an index of evolving standards of human decency. The Capital Jury Project, a massive social-science undertaking in a number of states, including Texas, has unearthed some characteristics about capital juries that cast doubt about the reliability of their decisions as a gauge of public attitudes about punishment. See William J. Bowers, Symposium: The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 Indiana L. J. 1043 (Fall 1995); see also Craig Haney, Taking Capital Jurors Seriously, 70 Indiana L. J. 1223, 1227 (Fall 1995) (expressing skepticism that jurors understand the significance of mitigating evidence or its correct use in coming to a verdict); Peter Meijeres Tiersma, Dictionaries and Death: Do Capital Jurors Understand Mitigation?, 1995 Utah L. Rev. 1. The Capital Jury Project study has revealed that a majority of jurors enter the punishment stage of capital trials with their minds already made up about whether they will impose the death penalty. More than six out of ten jurors have responded that their guilt stage deliberations focussed a "great deal" or a "fair amount" on future dangerousness and the punishment to be imposed. Id. at 1087. Thirty-seven percent reported that there was open discussion at the guilt deliberations about whether the defendant should get the death penalty. Id. at 1088. After the guilt stage was over and the defendant had been found guilty, but before any punishment stage evidence had been presented, 30 percent had decided the defendant should get the death penalty and 20 percent had decided on life. Id. at 1089. By way of a follow-up question, it was determined that 64.6 percent of those who had decided on death or life were "absolutely convinced" while another 30.5 percent were "pretty sure." Id. The Project has also found that jurors heavily displace responsibility for the punishment decision. Eight of ten responded that the defendant or the law was most responsible for the defendant's punishment. Id. at 1094. Three of twenty believed that the jury was the agent most responsible for the defendant's punishment. Id. at 1095. The death bias entering the punishment stage along with the inscrutability of most juries' decisions in "directed" and "threshold" statute states make any conclusions about juror treatment of rehabilitation in sentencing speculative. This would be true even in Texas, where there were only two special issues in most cases under the old statute, and a "no" answer to one of them necessarily implies a finding of potential for rehabilitation. More research must be done among jurors participating on juries that ultimately voted for life before any reasonable arguments can be advanced on juror sentencing as an index of the moral consensus favoring life for rehabilitated capital defendants. Anecdotal evidence suggests that, despite the obvious implications of rehabilitation for the second special issue, Texas jurors have difficulty recognizing the connection. Evidence of potential for rehabilitation was introduced by the defense, for example, at the punishment phase of the capital murder trial of Carl Johnson, a Texas inmate who was executed in 1995. During deliberations the jury sent the judge a note asking, "Can we consider rehabilitation in determining the answer to the second charge [i.e., the second special issue at that time on future dangerousness]?" Instead of affirming, as he should, that the second special issue was the proper vehicle for such consideration (because rehabilitation would require a negative answer), the trial judge responded, neutrally, "I can only refer you to the evidence you have heard and the charge of the court." David R. Dow, The State, the Death Penalty, and Carl Johnson, 37:4 Boston College L. Rev. 697-98 (1996). There is every indication that Applicant's own candor on the stand and unflinching acceptance of responsibility for her crime misled her own jury into finding her death-eligible despite the fact that the very same conduct on her part demonstrated her capacity to be rehabilitated. When Applicant's counsel asked her if she would have been a threat to society the way she was living before the murders occurred, the State objected, presuming that she would render a self-serving answer. The trial court overruled objection, and Applicant answered, "The way I was going . . . I think I was." The State seized upon this as though it were an admission of future dangerousness and argued in closing at the punishment phase that, having answered the second special issue herself, Applicant had conceded that she deserved the death penalty. Applicant's jurors' inability to consider her potential for rehabilitation was compounded by two errors related to the jury charge, for which Applicant's trial attorneys, the State, and the trial judge should be held accountable: 1) there was no general instruction regarding the role of mitigating evidence in the jury's sentencing decision; and 2) the trial court did permit the use of an instruction based upon former Tex. Penal Code § 8.04 (c) (West 1981), which was erroneously requested by defense counsel. The jury had both no guidance on how to consider the mitigating aspects the evidence they had heard regarding Applicant's rehabilitation in relation to the second special issue (future dangerousness) and fatally erroneous guidance on how to consider the mitigating aspect of evidence of intoxication at the time of the offense in relation to Applicant's level of culpability under the first special issue (deliberateness). See former Tex. Code Crim. Proc. art. 37.071 (West 1981). After returning positive answers to both of the special issues, several of the jurors privately told the prosecutor, Joe Magliolo, that they had not wanted to give Applicant the death penalty, but did not see any way to avoid it. Beverly Lowry, Crossed Over: A Murder, A Memoir 180 (Knopf 1992). Juror patterns cannot be of much help because: 1) the statistics indicate jurors will usually be predisposed to impose death, without being willing or able to consider evidence of rehabilitation; or 2) even if they desire to take the defendant's potential for rehabilitation into account, "it is not always evident to the jurors themselves" under the Texas scheme (and probably others) how they may accomplish that feat. Dow, supra, at 698. 4. Statements by American Religious Bodies The policy positions taken by church bodies regarding the death penalty and rehabilitation are indicators of contemporary standards of decency that should inform consideration of the Eighth Amendment questions. Churches are in the business of religious transformation, and represent a large segment of American society. See e.g., Thompson, 487 U.S. at 830 (plurality opinion) (valuing the opinions of respected organizations with expertise in the relevant area). Religious bodies have played an integral role in the development of American penal policy and reform from the time of the founding. See, e.g., Gerald A. McHugh, Christian Faith and Criminal Justice: Toward a Christian Response to Crime and Punishment (1978) (illustrating the roots of American penology in contrasting ideologies toward crime and punishment held by Puritans and Quakers). In particular, churches have also been involved since before we became a nation state in the policy and practice of the death penalty. See, e.g., Daniel A. Cohen, Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture, 1674-1860 (1993); Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776-1865 (1989); J. Gordon Melton, The Churches Speak on: Capital Punishment: Official Statements from Religious Bodies and Ecumenical Organizations (Gale Research Inc. 1989) [hereinafter Melton]. It is only recently, in fact, that most American church bodies, other than traditional "peace" churches such as Quakers, have issued public pronouncements raising questions about the use and fairness of the death penalty. A large number of churches, however, now have issued such statements (some of which are represented infra). Churches are split on the issue of the acceptability of the punishment, primarily along liberal-moderate/conservative lines, with many conservative (or evangelical) churches not taking a public stand on the issue. Recent social science studies, however, reveal a significant correlation between retributivist attitudes toward punishment and conservative American Protestant religion. Harold G. Grasmick, et al., Protestant Fundamentalism and the Retributive Doctrine of Punishment, 30 Criminology 21, 25, 38 (1992) (noting mounting evidence that religious beliefs play a crucial role in public attitudes about criminal justice policy matters); Robert L. Young, Religious Orientation, Race and Support for the Death Penalty, 31 J. Sci. Stud. Religion 76, 85 (1992) (finding an association between religious fundamentalism and social support for the death penalty). Churches that have issued statements on the death penalty -- whether for or against the penalty in general -- have registered special concern regarding the incompatibility of capital punishment with personal, spiritual reformation and rehabilitation. The concern is overwhelmingly present in statement after statement. The most recent and relevant statement known to counsel for Applicant was issued by the Texas Catholic Bishops on October 20, 1997, in which they "reiterate[d]" their opposition to the death penalty, calling for "more support for the families of victims and urg[ing] reconciliation as well as rehabilitation of the perpetrators of the sometimes heinous crimes." Statement by the Catholic Bishops of Texas on Capital Punishment, October 20, 1997 (cover letter). See attached Exhibit 24. This statement is consistent with the Pope's own recent declaration against the death penalty (except in the most extreme circumstances). A 1980 Statement on Capital Punishment by the National Conference of Bishops of the Roman Catholic Church does not per se reject the death penalty, but rather finds it incommensurate punishment in most cases, precisely because it denies rehabilitation of the offender:
Statement on Capital Punishment 1980, at I (8), under "Purposes of Punishment." Melton, at 18. Directly in line with the polling results, supra, the national bishops find a "difficult[y] inherent in capital punishment" that "infliction of the death penalty extinguishes possibilities for reform and rehabilitation for the person executed as well as the opportunity for the criminal to make some creative compensation for the evil that he or she has done." Id. at III (14); Melton at 19. In rejecting the death penalty in 1983, the Catholic Bishops of Oklahoma commented:
Statement in Opposition to Capital Punishment (1983), Roman Catholic Bishops of Oklahoma; Melton, at 27. As early as 1958, the American Baptist Churches in the U.S.A. issued a statement advocating the abolition of the death penalty, in part on the ground that the church held the "conviction that the emphasis in penology should be upon the process of creative, redemptive rehabilitation, rather than on punitive retribution." The American Baptist Churches were among the first churches to advocate abolition. American Baptist Churches in the U.S.A., Resolution on Capital Punishment (1958); Melton, at 53. The Disciples of Christ issued a national statement in 1985 calling for abolition, in part on the ground that "the use of execution to punish criminal acts does not allow for repentance or restitution of the criminal." Christian Church (Disciples of Christ), Resolution Concerning Opposition to Use of the Death Penalty (1985); Melton, at 58. A statement was issued by an ad hoc group of Protestant, Orthodox, and Roman Catholic leaders in Florida in 1984, in opposition to the reinstatement of the death penalty in that state, noting that execution "eclipses" possibilities for reconciliation, and stressing the duties of an offender to participate in rehabilitative activities and practice restitution "however inadequate or symbolic, as a serious attempt toward reconciliation with the person to whom he has caused a life of suffering." Christian Leaders of Florida, The Moral Consequences of Capital Punishment (1984); Melton, at 61. The Episcopal Church issued statements in 1958 and 1969 opposing capital punishment. Melton, at 105. The Friends United Meeting has issued an undated statement expressing its historic opposition to the death penalty, observing members' belief that "the Christian way to deal with crime is to seek the redemption o[r] rehabilitation of the offender." Friends United Meeting, Statement on Capital Punishment; Melton, at 111. The National Council of Churches issued an abolition statement in 1968, announcing its "preference for rehabilitation rather than retribution in the treatment of offenders." National Council of Churches of Christ in the U.S.A., Abolition of the Death Penalty (1968); Melton, at 120. The Reformed Church in America issued a statement in 1965 opposing capital punishment, noting in particular that, "Capital punishment ignores the entire concept of rehabilitation." Reformed Church in America, Statement on Capital Punishment (1965); Melton, at 124. The Presbyterian Church (U.S.A.) issued a statement in 1965, since reaffirmed, against the death penalty, in part because of belief in "God's . . . power to redeem and restore the lost to meaningful and useful life." Presbyterian Church (U.S.A.), On Capital Punishment (1965); Melton, at 121. Having produced a number of statements against the death penalty, the United Church of Christ issued a statement on Alternatives in Criminal Justice in 1981 advocating "legislation to establish programs including restitution, which require perpetrators of crimes to compensate their victims." Melton, at 134-35. In 1984 the United Methodist Church issued a statement of policy on criminal sentencing: "[W]e urge the creation of a genuinely new system and programs for rehabilitation that will restore, preserve, and nurture the total humanity of the imprisoned. . . . Capital punishment should be eliminated since it . . . is contrary to our belief that sentences should hold within them the possibilities of reconciliation and restoration." United Methodist Church, Criminal Justice (1984); Melton, at 140-41. The Union of American Hebrew Congregations (Reformed Judaism) issued a statement in 1959 opposing capital punishment, pledging to "foster modern methods of rehabilitation of the wrongdoer in the spirit of the Jewish tradition of tshuva (repentance)." Union of American Hebrew Congregations, Opposing Capital Punishment (1959); Melton, at 143. As examples of conservative denominations, the Missouri Synod Lutheran Church and the Christian Reformed Church have issued lengthy and thoughtful statements on the question of capital punishment. Both churches conclude that, although the penalty may be biblically permissible, the State is not mandated by God to exercise it. Pointedly, the Christian Reformed Church concludes that executions should only rarely be utilized:
Statement on Capital Punishment (1981); Melton, at 95. The Missouri Synod statement declares that "neither the Scriptures nor the Lutheran Confessions state that the government must impose the death penalty in order to serve as the "minister of God" by punishing flagrant wrongdoing, including murder," and advocates support of humane and progressive systems of reformation within the capital context. Report on Capital Punishment (1976); Melton, at 118-19. The National Association of Evangelicals has issued a short statement on capital punishment that places the values of retribution and rehabilitation in tension:
National Association of Evangelicals (1972); Melton, at 119. To the best of Applicant's knowledge the religious bodies having issued the above representative number of statements of policy have not changed their positions, to date, on the death penalty or (for the most part) the primary emphasis on rehabilitation over retribution in punishment. These policy statements represent a sea-change in perspective on the issue of capital punishment, accomplished over the last two hundred years, accelerated during the middle part of this century, and accompanied by the rise of the rehabilitative ideal and evolving legal doctrine about individualized sentencing and proportionality. The breadth and depth of support for the rehabilitative ideal is notable. Most of these institutions also, for the most part, make the presumption noted above in regard to the Supreme Court that rehabilitation and retribution pose an either/or choice. Among the foregoing statements, the one that corresponds most to the societal consensus on punishment alternatives found in current polling was issued by the National Conference of Catholic Bishops in 1980, not eschewing the death penalty in theory, but finding the alternative of a life sentence plus restitution the most desirable option. In the days of swift justice when our Puritan forefathers, Cotton and Increase Mather, had to rush to beat the hangman for a conversion, (almost-symbolic and coerced) salvation, not rehabilitation, was the religionists' and society's goal for the offender, and reestablishment of the public order was separately accomplished through the inherently oppressive scaffold spectacle rather than any real reconciliation:
Masur, supra, at 41. Christian ministers routinely gave execution day sermons, distributed pamphlets, and produced the condemned for a public recantation of his sins for the purpose of imposing social order in the name of the "God of Order." Id. at 41, 45. Minister Perez Fobes, for example, instructed the crowd assembled to witness the hanging of a burglar that the condemned believed he deserved to die, that the "pardoning mercy" of God would save him, and that the spectators had better get on with the business of their own repentance. Masur, supra, at 41. Fobes "clarified the relationship of the criminal to the populace-at-large" by asserting that "the difference [between the criminal and the crowd] may consist only in this, that he is detected and condemned, but they as yet are concealed from human eye." Id. at 43. Even the most conservative modern church statements reveal an entirely different sensibility -- rejection of a religiously-sanctioned mandatory death penalty and a desire for the life of the offender in this world, not only in the next. This sensibility was most eloquently expressed by the Rev. Pat Robertson on the CBS News show "60 Minutes," in a specific plea for Applicant's life:
Robertson affirmed that he believed in a "pro-life policy for people who have committed heinous crimes if they have completely changed." He added that inmates' lives should be spared, also, when they no longer posed any risk of danger to others. This policy, representative of the "religious right" and also akin to the views on rehabilitation held by the broader church spectrum, springs not only from gracious concern for the individual offender, but also from a sense that reestablishment of the social order following a criminal breach is better accomplished by concrete acts of penitence and restitution than a public punishment ritual. This attitude supports the argument that our evolving standards of decency have brought us to a new place, where even among the most conservative churchmen, execution of Applicant would be a wanton and arbitrary waste of life. 5. Commutation Actions by Governors and State Boards Rehabilitation has played a large role in decisions by Governors and State Boards to grant commutation of death sentences. Michael Radelet and Barbara Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 U. Richmond L. Rev. 289, 303 (1993) (noting that rehabilitation plays a "secondary role" in many cases); see supra Claim for Relief Number 1 (detailed analysis of Texas commutations and commutation on the basis of rehabilitation in other states). Post-Furman Governors in nine states have granted humanitarian commutations. In three of the nine states (Montana, Virginia, and Georgia), post-Furman Governors commuted death sentences based primarily on the grounds that the inmate had undergone Christian rehabilitation. See supra. These commutations were granted after enormous outpourings of public support for the inmates. The post-Furman practice of commutation based on rehabilitation merely continues a long established practice in the states. See supra discussion of the Illinois Governor's commutation of the death sentence of Paul Crump in 1963 based upon his religious rehabilitation alone. Post-Furman Texas Governors have not granted commutation of any death sentence based on any kind of humanitarian reason (including rehabilitation). For that reason, Texas is an exception to the rule represented in the other states. Consistent with the other states, Pre-Furman Texas governors did commute death sentences on the basis of rehabilitation. All post-Furman commutations on the basis of rehabilitation have been of the death sentences of men. The one woman executed this century, Velma Barfield, urged religious rehabilitation as a ground for clemency relief. The actions of the governors in death-penalty states in relation to rehabilitation as a clemency ground are a clear measure of the evolving standards of decency of our society, because executives are politically loathe to take such actions without a sense of strong support from the people. 6. International Opinion and Law A number of times, the Supreme Court has considered international law as a moral index of evolving standards of decency. Stanford, 492 U.S. at 369-71; McCleskey v. Kemp, 481 U.S. 269, 300 (1987). Of course, evidence of international opinion against the death penalty, and the growing number of non-death penalty states, must be read as consistent with rehabilitation as a punishment goal. At least one hundred and nine foreign states have abolished the death penalty in law or practice. Report of the Secretary General, Capital Punishment and Implementation of the Safeguards Guaranteeing the Protection of the Rights of Those Facing the Death Penalty, U.N. Doc. E/1995/78 (1995). More importantly, however, the United States and the State of Texas are bound by international treaty to at least provide meaningful commutation review to rehabilitated capital inmates. The United States is a party to, and has ratified, the International Covenant on Civil and Political Rights, which announces two non-derogative rights that pertain to Applicant:
International Covenant on Civil and Political Rights (entered into force March 23, 1976; ratified by the United States on September 8, 1992), at Article 6, §§ 1 & 4. Under the Supremacy Clause of Article VI, Section 2, United States Constitution, all treaties made by the federal government are binding on the states. Texas is currently in violation of Article 6 of the Covenant, because it has de facto eliminated clemency and commutation as a relief option for capital prisoners. As applied to Applicant in particular, the State might be in further violation of the treaty if it provided Applicant with no meaningful clemency or commutation review, because Article 6, Section 4 necessarily implies that the State must respect rehabilitation of an offender as a ground for meaningful commutation review. See, e.g., Shigemitsu Dando, Toward the Abolition of the Death Penalty, 72:7 Indiana Law Journal 16 (1996) (observing that the "right to seek pardon or commutation of anyone sentenced to death" presupposes respect for rehabilitative potential). The State's conclusion, manifest in the setting of the execution date and the absence of real clemency review, that it is "entitled to look the other way when late-arriving evidence upsets its determination that [Applicant] can lawfully be executed" violates international law. See Muncy< |