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Claim for Relief Number Four
The Cruel and Unusual Punishment Clause of the Eighth Amendment prohibits the execution of Applicant, because the factual basis for one of the statutory aggravating circumstances necessary to render her eligible for the ultimate sanction does not exist. Her execution would be cruelly disproportionate punishment, because she does not and will not (ever again) pose any risk of danger to others. "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)). Infliction of the death penalty on Applicant now would violate the Eighth Amendment, because Applicant no longer falls within the category of the worst offenders for whom the death penalty is reserved. Upon reinstating constitutional permissibility of the death penalty, the U.S. Supreme Court recognized three different kinds of state statutory schemes that it found to comply with the concerns of the Furman justices about the arbitrariness of juries' capital sentencing decisions. Greg v. Georgia, 428 U.S. 153 (1976) (recognizing Georgia's "threshold" guided discretion statute); Proffitt v. Florida, 428 U.S. 242 (1976) (recognizing Florida's "balancing" guided discretion statute); and Jurek v. Texas, 428 U.S. 262 (1976) (recognizing Texas' "directed" guided discretion statute). A "threshold" statute requires the jury to find beyond a reasonable doubt, after determining the guilt of the defendant, at least one aggravating factor from a specified list in the statute. When it has done so, it may exercise unguided discretion in considering additional aggravating and mitigating factors. See Ga. Code Ann. § 17-10-30 (1997). In the current Georgia scheme, with the exception of aircraft hijacking and treason, the death penalty may not be imposed, if the jury does not find at least one aggravating factor. Id. at 17-10-30 (c). Having been instructed by the trial judge to consider any mitigating evidence, the jury can, at its discretion, remove the offender from death-eligibility even if it has found an aggravating factor. Id. at 17-10-30 (b). A "balancing" statute is similar to a threshold statute, except that, in addition to a list of aggravating factors, the jury is also directed to consider a list of statutory mitigating factors, and to "weigh" the aggravators and mitigators that it finds in determining whether to recommend death as punishment. See Fla. Stat. Ann. § 921.141 (West 1996); see also N.M. Uniform Jury Instructions -- Criminal 14-7028; 14-7029 (Michie 1997); N.M. Stat. Ann. 31-20A-6 (G) (1997). New Mexico, also a "balancing" state, requires the trial jury to consider as a statutory mitigating circumstance whether "the defendant is likely to be rehabilitated." Id. Texas provides the premier example of a "directed" statute, with a two step process for determining the defendant's death-eligibility. First, the statute restricts application of the death penalty to specific crimes that correspond to the aggravating factors found in "threshold" and "balancing" state statutes. Tex. Penal Code § 19.03 (West 1997). Second, if the defendant is found guilty at the guilt stage of the aggravated offense, the statute requires the punishment stage jury (the same jury) to make favorable findings, beyond a reasonable doubt, concerning specific special issues, before the defendant may be death-eligible. Tex. Code Crim. Proc. art. 37.071 (West 1997). At the time of Applicant's trial the punishment stage statute required the jury to make affirmative findings on the following, before the defendant could be sentenced to death:
Tex. Code Crim. Proc. art. 37.071 (a) (1) and (2) (West 1981). An additional special issue at that time would, if raised by the evidence, remove the defendant from death eligibility if her offense was not unreasonable in response to provocation by the victim. Id. at (3). Although the Texas statutes did not require it, out of concern for the constitutional requirement that jurors be able to consider any mitigating circumstance in deciding on punishment, Texas district judges usually gave capital juries an additional, non-statutory, instruction to that effect. It was, in fact, the already established practice of Judge Lykos, who presided over Applicant's trial, to give such instruction in her charge, but she was not requested to do so by Applicant's trial attorneys and failed to so instruct Applicant's jury. The United States Supreme Court has found that such a situation is not constitutionally intolerable, on the questionable basis that the Texas special issues alone "allo[w] the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator, and therefore sufficiently provid[e] for jury discretion." Franklin v. Lynaugh, 487 U.S. 164, 182 (1988) (rejecting petitioner's claim that refusal by trial court to give a general mitigating evidence instruction was impermissible under Lockett v. Ohio, 438 U.S. 586 (1978)) (mitigating evidence was defendant's good prison disciplinary record). The Court later modified its unqualified support for Article 37.071 as a vehicle enabling the jury to fully consider and give effect to mitigating evidence. Penry v. Lynaugh, 492 U.S. 302 (1989). This led to the addition of the express mitigating instruction in the current statute. Rehabilitation may be a mitigating factor in a "threshold" or "balancing" state. See, e.g., New Mexico, supra. Under the Texas scheme, however, complete rehabilitation negates the existence of a necessary condition for infliction of the death penalty: future dangerousness. This view is commensurate with the Court of Criminal Appeals position on the effect of rehabilitation on future dangerousness. See Jackson, 822 S.W.2d at 26 (holding that in "light of the absence of any evidence or any suggestion of rehabilitation . . . the error by the prosecutor during voir dire in limiting the veniremembers' consideration of rehabilitation to his view of what constituted a continuing threat to society in the context of special issue number two is harmless"); see Wilkerson, 881 S.W.2d at 328, 344 (Baird, J., dissenting) (finding weight of "evidence suggests that appellant has a reasonable chance of rehabilitation and is probably not a continuing threat to society"). In Wilkerson, Judge Baird found that, because the evidence showed the appellant was capable of rehabilitation, his "sentence would be to `wantonly' and `freakishly' impose a death sentence, in violation of the United States Constitution." 881 S.W.2d at 344 (Baird, J., dissenting) (citing Jurek v. Texas, 428 U.S. 262, 276 (1976)). In order that the kind of impermissible arbitrariness in infliction of the death penalty described by Judge Baird in his allusion to Jurek, and more fundamentally Furman, be avoided, the Eighth Amendment requires that a capital sentencing scheme "genuinely narrow the class of persons eligible for the death penalty and [] reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877 (1983); see Gregg v. Georgia, 428 U.S. 153 (1976). The Supreme Court has repeatedly held that the Texas sentencing scheme does successfully narrow the class of the death-eligible. See e.g., Lowenfeld v. Phelps, 484 U.S. 231, 244-46 (1988). At the punishment stage, the Texas jury is required to find, beyond a reasonable doubt, both deliberateness and future dangerousness. If it cannot, the defendant is not eligible for death, and a life sentence automatically results. Jurek v. Texas, 428 U.S. 262, 269 (1976) (upholding and explaining the former Art. 37.071 under which Applicant was sentenced). If a defendant is not found to be a future danger, the death penalty is simply not an option under the statute. Finding Applicant death-eligible now -- under the statute -- after her total moral and spiritual reformation, would be an arbitrarily over-inclusive exercise of discretion. Where rehabilitation is no longer prospective, but has occurred, a prisoner sentenced under the Texas scheme cannot be executed, commensurate with the Eighth Amendment, because she is no longer death-eligible in the absence of the existence of the mandatory statutory narrowing factor. Her execution would be "wanton" and "freakish." Although mercy is a legitimate basis for relief and Applicant will seek mercy from the Executive, Applicant does not rest any of her Eighth Amendment claims for relief on mercy or the Supreme Court's line of cases requiring the jury to be able to consider all mitigating circumstances. Lockett, Penry, supra. Applicant's argument is that infliction of the capital penalty on her would be disproportionate because she no longer qualifies as a death-eligible offender under the Texas statute. As a completely rehabilitated errant, she no longer poses a risk of future dangerousness. See Tex. Code Crim. Proc. art. 37.071. Because of her status, the Eighth Amendment forbids the authorities in Texas from executing Applicant. So that such an eventuality may surely be avoided, the courts or the governor must commute her sentence to life. Claim for Relief Number Five
Applicant's execution would be equivalent to execution following conviction under a mandatory death penalty statute. Due to Applicant's total rehabilitation, her execution would constitute punishment on the basis of the nature of the offense alone with no consideration of the character of the offender, a state of affairs forbidden by the constitution. Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion of Stewart, Powell, and Stevens, JJ.) (requiring consideration of character before infliction of the penalty of death); Ford v. Wainwright, 477 U.S. 399, 407-410 (1986). The Supreme Court held in Woodson:
Woodson, 428 U.S. at 301. The Court based its opinion, in large part, on the fact that public opinion polls over the preceding decade had indicated a strong concern that the death penalty not be inflicted without consideration of the offender's character. Id. at 298 n. 34. The Court observed that our society requires its penal systems to "accord . . . significance to the relevant facets of the character and record of the individual offender" along with the circumstances of the offense. Id. at 304. Such systems, therefore, may not "treat all persons convicted of a designated offense as "members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Id. As has been shown, supra, public opinion polls (as well as legislative actions and statements by relevant American institutions) have also consistently shown widespread and deep support for rehabilitation as a punishment goal. Failure by this Court and/or the Governor to consider the unique facts of Applicant's character as disqualifying her from the death penalty would subject her to the abstract "justice" no longer condoned by American society: contrary to profound general public respect for restorative means to reestablish public order, and contrary to the express will of the people of Texas who have required that execution may not be imposed absent future dangerousness (an obvious aspect of character). Claim for Relief Number Six
The Eighth Amendment and the Due Process and the Equal Protection Clauses of the Fourteenth Amendment forbid the execution of Applicant, if her punishment is allowed on the basis of her gender. Furman v. Georgia, 408 U.S. 238, 240-57 (1972) (Douglas, J., concurring); J.E.B. v. Alabama, 114 S. Ct. 1419, 1430 (1994); Woodard v. Ohio Adult Parole Authority, 107 F.3d 1178, 1186 (1997), cert. granted, ___U.S. ___ (1997) (quoting Evitts v. Lucey, 469 U.S. 387 (1985), and Griffin v. Illinois, 351 U.S. 12, 18 (1956)) (generally holding that procedures which form an integral part of the overall adjudicative system must comport with due process and equal protection). Equal protection is implicit in "cruel and unusual" punishments. "A penalty . . . should be considered `unusually' imposed if it is administered arbitrarily or discriminatorily." Furman, 408 U.S. at 250 (Douglas, J., concurring); id. at 257 (explaining that any law nondiscriminatory on its face may be applied in an unconstitutional, discriminatory fashion). Execution of Applicant because she is a woman would constitute the kind of invidious discrimination forbidden by the Eighth and Fourteenth Amendments. Applicant has presented meritorious Eighth Amendment claims based upon her current lack of eligibility for the death penalty. If lack of future dangerousness (even if only in an institutionalized setting) is not reasonably contested, relief should be granted due to the nature of the penalty and seriousness of the constitutional rights. In view of the incontrovertible proof of Applicant's rehabilitated status, and the nature of the circumstances, an inference of unfair discrimination may arise if Applicant is not given the relief she seeks, for the following reasons:
In addition to the protection of the courts, Applicant also believes that she merits some degree of fair process in her impending executive clemency proceedings (see supra Claim for Relief Number 1) (substantive and procedural due process right to meaningful review). If she is to be afforded fair process, the Governor and Board may not deny her commutation solely on the basis of her gender. The "core guarantee of equal protection, ensuring citizens that their state will not discriminate" must extend to the clemency/commutation process in order to prevent that process from being a "meaningless ritual." J.E.B., 114 U.S. at 1430; Woodard v. Ohio Adult Parole Authority, 107 F.3d 1178, 1187-88 (6th Cir. 1997), cert. granted, ____U.S. ____ (1997) (citing Evitts v. Lucey, 469 U.S. at 394) (holding that the due process touchtone for the first appeal as of right is whether the appeal would be a "meaningless ritual")). Applicant's clemency/commutation procedure, indeed, will be meaningless if the outcome is determined on the irrelevant basis of her gender: no different than "a procedure in which a governor or parole board merely pull[s] names out of a lottery bin or flip[s] coins to make clemency decisions." Woodard, 107 F.3d at 1188. The media frenzy about Applicant's gender threatens to create conditions that will thwart nondiscriminatory adjudication of these remaining claims by the courts and unbiased consideration of Applicant's clemency/commutation petition by the Board of Pardons and Paroles and the Governor. Without proper consideration of the facts, television analysts and newspaper editorialists have broadly disseminated the idea that a disproportionate number of women have their death sentences reversed or commuted, and that male death row prisoners are complaining. See, e.g., CBS 60-Minutes, October 1997; Editorial, Austin American-Statesman, December 10, 1997, at A22. These assertions are unfounded. Leslie Stahl, for example, of CBS News' show, 60-Minutes, presented gender as the "glass ceiling that is now very obvious in the death penalty process." She called upon law professor Victor Streib to elaborate, based upon the facts of Applicant's case:
CBS 60-Minutes, October 1997. In another example, the Austin American-Statesman editorial staff found significance in the fact that 143 men and no women have been executed in Texas since the reinstatement of the death penalty in 1976, and leapt to the conclusion that the paucity of female executions was due to gender bias:
American-Statesman, supra. Law professor Streib's comment about the impossibly high percentage of women's sentences being "reversed" has absolutely no basis in fact, and amounts to very damaging, inflammatory misinformation, coming as it does from someone who portrays himself as an expert on gender and the death penalty. The comment about reversals may have originated in Streib's own prediction that executions of women will remain roughly one-percent of the total over time. He has calculated that the percentage of women on death row since the reinstatement of the death penalty after Furman (1972) has fluctuated between 1 and 3 percent. See Victor Streib, Death Penalty for Battered Women, 20 Fla. St. U. L. Rev. 163, 165 (1992); Victor Streib, Death Penalty for Female Offenders, 58 U. Cincinnati L. Rev. 845, 871 (1990). His observation (true or not) that ninety-nine percent of executions will be of men has no bearing, however, on what percentage of death-sentenced women will actually be executed. It is reasonable to believe that, absent some system-wide change, a large percentage of the women on death row will be executed. As of February 23, 1997, there were 48 women on death row in 16 states, according to Amnesty International, most for offenses that occurred in or after 1984, the year of Applicant's conviction. See attached Exhibit 26 (showing 35 of 48 occurring in or after 1984 and only 6 occurring prior to 1984). In reality, the population of women, slower to arrive on death row, is only now coming to the end of the appeals process, along with the generation of men who were tried at the same time. Therefore, it purely remains to be seen whether the women's sentences will be reversed or commuted. Even though the process has not culminated in almost all women's cases, Applicant can presently demonstrate that there is no significant gender bias in the system allocating the death penalty. There is a proportional correspondence between the percentage of women that commit violent crime compared to men, the percentage of women given the death penalty compared to men, and the percentage of women whose death sentences have been commuted compared to men. When these statistics are compared, it becomes clear that men are not discriminated against by the system and that the widely-hyped fears that Applicant's gender could warp the decisionmaking processes are unfounded. The total historical number of executions, including executions of women, is elusive. Professor Streib reports a total of 398 women (from 1630 to 1989) in 1990 and 501 women (out of 18,309 in all) in 1992, based upon the same source (updated): Watt Espy. Battered Women, at 165; Female Offenders, at 858 (Table 7). Following the 1992 statistics, 2.74 percent of all executions have been executions of women. Historically, Texas has executed fewer women than most other states. However, Texas is a leader in sentencing women to death in the post-Furman era, so Texas has the potential to become a national leader in the execution of women in addition to the title it already holds for men. Streib, Female Offenders, supra, at 863, 867. So far, no woman on death row in Texas has had her sentence commuted for any reason, although there have been thirty-six commutations of men for the sole reason of judicial expediency. Radelet and Zsembik, supra, at 293. Applicant is the first woman in Texas to have reached the end of her court appeals process, presenting the only opportunity any modern Texas Governor and Board have had to commute a woman's sentence. The percentage of women sentenced to death is proportionate to the percentage of women as violent offenders compared to men. "It is an `empirical fact that the vast majority of criminal offenders, especially violent criminal offenders, have been male." Lorraine Schmall, Forgiving Guin Garcia: Women, The Death Penalty, and Commutation, 11 Wis. Womens L. J. 283, 298-99 (1996) (citations omitted). Of roughly 5,580 death sentences imposed in the United States between 1973 and 1995, 113 were given women (roughly two percent). U.S. Dept. of Justice, Capital Punishment 1995 13, Appendix Table 1 (1996). Social research studies consistently show that men commit far more violent crimes, and more offenses, during juvenile and adult years than women. See, e.g., Deborah Denno, Gender Issues and the Criminal Law: Gender, Crime, and the Criminal Law Defenses, 85 J. Crim. Law 80, 108, 153 (1994); Candace Kruttschnitt, Gender and Interpersonal Violence, in Albert J. Reiss, Jr., and Jeffrey A. Roth, eds., Understanding and Preventing Violence (Vol. 3): Social Influences 293, 305 (1994); Ilene H. Nagel and John Hagan, Gender and Crime: Offense Patterns and Criminal Court Sanctions, in Michael Tonry and Norval Morris, eds., Crime and Justice, An Annual Review of Research (Vol. 4) 91, 94 (1983). The F.B.I. Uniform Crime Reports indicate that the male arrest rate for "index violent crimes" (murder, non-negligent manslaughter, forcible rape, robbery, and aggravated assault) is about seven times higher than the female rate. Kruttschnitt, supra, at 298. In 1988, for example, 88.5 percent of arrests for murder were of men, 11.5 percent, of women. Id. (Table 1). Although differential leniency toward women has been observed at the sentencing stage of the criminal justice process, a consensus exists that women charged with the most serious violent offenses are not treated any differently by the system than comparable men. See, Kruttshnitt, supra, at 357; Nagel, supra, at 134-37. Many observers have concluded that there is a reverse bias against violent women offenders that is based upon social conditioning and stereotypes. Denno, supra, at 92; Schmall, supra, at 288. Violent female offenders often may be treated more harshly then men in sentencing, because they are viewed to have "deviat[ed] more significantly from the norm -- biologically, psychologically, or sociologically -- than their male counterparts." Id.; see also Darrell Steffensmeier and Emilie Allan, Gender, Age, and Crime, in Criminology: A Contemporary Handbook 67, 71 (1991); James Q. Wilson and Richard J. Herrnstein, Crime and Human Nature 104-05 (1985). This bias has deep historical roots in a patronizing attitude toward women:
Cesare Lambroso and William Ferrero, The Female Offender 151 (1895) (quoted in Denno, supra, at 92 n.79). As a result of this view of female criminality as especially deviant, prison terms for women convicted of violent offenses tend to be long. Schmall, supra, at 311 & n.148 (citing Victoria M. Mather, The Skeleton in the Closet: The Battered Woman Syndrome, Self-Defense, and Expert Testimony, 39 Mercer L. Rev. 545, 561 (1988) (noting that women who commit crimes are given longer prison sentences than men out of a perception that they are more deviant and need more time for rehabilitation)). Contrary to the stereotype, female violent offenders are empirically less dangerous than male violent offenders. "Research indicates that most observers do not see female offenders generally as being `as dangerous to society as they see male offenders.'" Victor Streib, Death Penalty for Female Offenders, 58 U. Cinn. L. Rev. 845, 877 (1990) (citing R. Simon, The Contemporary Woman and Crime 88 (1975)). Professor Streib has pointed out that:
Id. at 874-75. In addition, research indicates that comparably few homicides committed by women are premeditated:
Id. at 876. In offenses involving more than one perpetrator, it is more likely that the man will have been the principal actor and the woman an accomplice. Id. at 877. Most significantly, women have been found to pose a "much lower risk than males of recidivating violently, and [women] desist from violence at a much greater rate than do [men]." Kruttschnitt, supra, at 317 (citing N.A. Weiner, Violent Criminal Careers and "Violent Career Criminals", in N.A. Weiner and M.E. Wolfgang, eds., Violent Crime, Violent Criminals 35, 108-09 (1989); see also Denno, supra, at 104-05 (finding that, in one study, "considerably more females than males were one-time offenders [covering all crime categories]: nearly two-thirds of the female offenders, but less than one-half (45%) of the male offenders"). Even within the category of chronic offenders, female offenders have been found to "commit[] fewer and less severe crimes than their male counterparts." Denno, supra, at 105. Out of a total of seventy-six post-Furman, nation-wide, death sentence commutations, six cases have been of women. See Michael L. Radelet and Barbara A. Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 U. Richmond L. Rev. 289 (1993) and Michael L. Radelet, Commutations of Death Sentences Since 1992, January 9, 1998 (unpublished document updating the 1993 article, in possession of Applicant); attached Exhibit . The 7.9 percent of commutations for women hardly suggests a gender bias toward them in the death sentence commutation process. Furthermore, the grounds for their commutation have been equivalent to those for their male counterparts. Four women had their sentences commuted by Governor Richard F. Celeste of Ohio in 1991: Debra Denise Brown, Rosalie Grant, Elizabeth Green, and Beatrice Lampkin. Radelet (1993), supra, at 306-11. Green and Brown both have mental retardation (I.Q. of 70 or below). Id. Numerous states and the federal government have now enacted statutes banning the execution of persons with mental retardation. Governor Celeste called the evidence against Grant "scanty at best" and commuted Lampkin on the basis of equity: the gunman she was found guilty of hiring had received a life sentence. Governor Harry Hughes of Maryland commuted the death sentence of Doris Ann Foster in 1987 because her husband had confessed to the crime, there were doubts about her guilt, and there were a large number of mitigating circumstances in her case. Id. at 308. Governor Jim Edgar of Illinois commuted the death sentence of Guinevere Garcia in 1996 on proportionality grounds, noting that there were 200 other inmates in Illinois prisons convicted of multiple murders who were not sentenced to death. Radelet (1998), supra. Despite the fact that women are statistically more likely to be rehabilitated, only men in three different states (Virginia, Georgia, and Montana) have had post-Furman death sentences commuted on the basis of rehabilitation. See supra Claim for Relief Number 1 (detailing each of the men's cases). Conversely, the only woman executed in the post-Furman years, Velma Barfield, raised her (religiously-based) rehabilitation as a possible ground for commutation and was widely loved by her prison guards and others. See Joseph B. Ingle, Final Hours: The Execution of Velma Barfield, 23 Loyola L.A. L. Rev. 221 (1989). Barfield had proven herself not to be a danger, at least within the institutional setting. There is the suggestion, however, that she may have been burdened by her record of having committed premeditated murders on four victims over the course of seven years. Id. at 222. Governor Hunt led Barfield's lawyers to believe that he did not see the "focus" of their argument for Barfield as relevant to clemency: "that she (now) was a decent human being who deserved to live because her life had meaning for a number of people." The attorneys also presented evidence of bipolar disorder in an attempt to explain how Barfield could have committed the offenses. Id. at 229. The facts of Applicant's offense, heinous as they are, are no more morally repugnant than the facts of the offenses of the men who have been granted commutation for rehabilitation in other states. See supra Claim for Relief Number 1. Evidence of Applicant's rehabilitation and lack of dangerousness is overwhelming. Applicant has a constitutional right not to be executed. Applicant does not have a right to commutation of sentence in the clemency process. Even within the clemency process, however, she does have a right to minimal due process and equal protection under the law. See supra Claim for Relief 1. The prevalent misinformation about systemic leniency for female violent offenders cannot be allowed to play any role in judicial or executive decisionmaking regarding Applicant without violating her rights under the Eighth and Fourteenth Amendments. If she is executed, the present climate suggests it will have been because of her gender. Claim for Relief Number Seven
The Court of Criminal Appeals recently expanded the due process protection recognized in Holmes v. Third Court of Appeals, 885 S.W.2d 389 (Tex. Crim. App. 1994), to recognize claims of actual innocence based upon newly discovered evidence in cases in which the defendant received a life sentence or a term of years. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). The Court cited the reasoning expressed by Justice Blackmun in dissent in Herrera as its basis, in part, for extending Holmes: "Whether petitioner is viewed as challenging simply his death sentence or also his continued detention, he still is challenging the State's right to punish him." 947 S.W.2d at 205 (quoting Herrera, 122 L.Ed.2 at 238) (Blackmun, J., dissenting). The Court noted that the Herrera dissenters (at least five justices) "recogniz[ed] no significant difference between cases in which the death penalty has been assessed and cases in which an actually innocent person has been merely incarcerated." Id. at 205. The "state's right to punish" does not hinge only on the defendant's actual innocence of the offense. As has been shown, supra, the right is restricted by the character of the defendant, whether innocent of the offense or not. The substantive due process protection afforded by Holmes and Elizondo should be extended to protect from punishment those who are constitutionally ineligible for the death penalty. Applicant's evidence of rehabilitation was largely latent at the time of her trial and sentencing stage. The State's mental health expert (Dr. Nottingham) recognized Applicant's lost adolescence and her potential for complete rehabilitation if she were able to continue to overcome her drug addiction. That rehabilitation, now in full flower, clearly demonstrates that, if Applicant were retried today for the same offense and the evidence of her life on death row over the past 14 years were introduced at the punishment stage, she would be acquitted of the death penalty. The Court of Criminal Appeals should recognize a defendant's substantive due process right to avoid punishment if she is "actually innocent of the death penalty" so as to eliminate for Texas jurisprudence the vexing problem addressed in Evans v. Muncy, supra, that results in petitioners in Applicant's position being punished even though they are constitutionally ineligible. A high burden of proof on the petitioner for proving her innocence of the penalty would meet the State's finality concerns while, at the same time, facilitating justice. The petitioner would have to produce evidence of such value that:
Elizondo, 947 S.W.2d at 206 (quoting Holmes, 885 S.W.2d at 398). The exculpatory evidence would be weighed against the evidence produced in the penalty phase at trial. Id. The petitioner would have to show "by clear and convincing evidence that no reasonable juror would have [sentenced him to death] in light of the new evidence." Id. at 209. Applicant respectfully would incorporate by reference her Eighth Amendment claims, supra, and the facts presented of her rehabilitation, including her lack of dangerousness. Following Elizondo and Holmes, the Court of Criminal Appeals should vacate Applicant's sentence because she no longer is eligible for the death penalty. Claim for Relief Number Eight
As reflected in Claim For Relief Number One (adopted herein by reference), the right of death row prisoners in Texas to apply for commutation of sentence does not exist. The literal absence of meaningful clemency/commutation review in Texas directly violates Sections 1 and 4 of Article 6 of the International Covenant on Civil and Political Rights, which has been signed and ratified by the United States and is binding on the states through Article VI, Section 2, of the United States Constitution. See supra Claim for Relief Number Three. Specifically, the death penalty clemency/commutation process in Texas violates, by its total absence of process, these two non-derogative (against which the United States has made no reservation):
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. The United Nations General Assembly has made clear, by way of a resolution adopted on December 15, 1980, that the purpose of Article 6, Section 4, is to guarantee that signatory countries provide meaningful commutation review:
United Nations General Assembly Resolution 35/172 (adopted on December 15, 1980). As applied to Applicant in particular, Texas further violates the provisions of the Covenant, because Article 6, Section 4 necessarily implies that the states 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); see also Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty (enjoining parties to the protocol to abolish the death penalty in their jurisdictions, in part because "[t]he application of the death penalty has irrevocable consequences, forecloses the correction of judicial error, and precludes the possibility of changing or rehabilitating those convicted") (emphasis added). In addition, execution of Applicant without meaningful clemency/commutation review would violate customary international law, as reflected in numerous important conventions and documents. An ever-growing number of countries are rejecting the death penalty as contrary to civilized norms and the fundamental right to life. See, e.g., Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty (in force as of July 11, 1991) (outlawing the death penalty in all parties to the Optional Protocol); Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty (Convention signed on November 4, 1950) (abolishing the death penalty in European member states); Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty (in force October 6, 1993) (abolishing the death penalty in member states, in part specifically because it does not allow for rehabilitation of the offender). International instruments repeatedly stress that those countries which retain the death penalty must provide procedures for meaningful commutation review. 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; Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (adopted by the United Nations Economic and Social Council in resolution 1984/50 at its Spring session on May 25, 1984, and endorsed by the United Nations General Assembly in resolution 39/118, adopted without a vote on December 14, 1984) (Article 7: "Anyone sentenced to death shall have the right to seek pardon, or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment"); American Convention on Human Rights (entered into force on July 18, 1978) (Article 4, Section 1: "Every person has the right to have his life respected. This right shall be protected by law, and, in general, from the moment of conception.") (Article 4, Section 6: "Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority."). This Court must stay Applicant's execution and "review [the Texas clemency/commutation] rules and practices so as to guarantee the most careful legal procedures and the greatest possible safeguards for the accused in capital cases" (including Applicant's case), so as to prevent the execution of Applicant under circumstances that would clearly violate the International Covenant on Civil and Political Liberties and the Supremacy Clause of the United States Constitution, as well as customary international law. See supra U.N. Resolution 35/172. Claim for Relief Number Nine
This Court must give effect to Applicant's claims because it must assume that no other forum will grant her relief. Applicant demonstrates the absence of a constitutionally required element in her case, which absence renders her execution unjust and constitutionally impermissible. Applicant also demonstrates a reasonably complete lack of prospect for clemency, despite the essential legal and factual identity between her case and those of men whose sentences were commuted in other states. Although Applicant readily states that she will seek relief from the Governor and Board of Pardons and Paroles should this last round of litigation fail, for reasons outlined supra, this Court should deem aid from the Governor to be de facto unavailable, and recognize its own legal responsibility to act now to correct the constitutional error. If this Court does not entertain the merits of Applicant's claims, she will be executed in violation of the Eighth and Fourteenth Amendments. The denial to her of access to the courts and clemency/commutation relief will violate fundamental fairness, because given the meritorious facts underlying Applicant's claims and the unassailable legal conclusion that, if her facts are true, she is ineligible for the death penalty, the procedural nightmare she faces "shocks the conscience." Justice Douglas wrote:
Douglas v. People of the State of California, 372 U.S. 353, 357 n.2 (1963). It is clear that it is a principle of fundamental fairness "rooted in the traditions and conscience of our people" that an inmate be given some forum, whether it be in the judicial process or clemency, for the presentation of evidence that she is no longer eligible for the punishment society has allotted her, so that miscarriage of justice may be avoided. Herrera, 506 U.S. at 411-12. Noting the severity of every country's criminal code, Andrew Hamilton commented in the Federalist Papers that if there were no "easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." Herrera, 506 U.S. at 413-14 (quoting Federalist No. 74). Incorporating all of the evidence from Claims for Relief One through Seven, supra, we can be assured that our society has not deviated from that standard, and if a petitioner can show that she is "innocent" of the punishment to be inflicted, she must be given the opportunity to make her case. Applicant's case presents the same dilemmas as Wilbert Evans' case in Virginia. Since the time of Evans v. Muncy, however, the Court of Criminal Appeals' constitutional jurisprudence has evolved toward ways to accommodate Evans-type constitutional claims, the Supreme Court's jurisprudence has advanced in recognition of the constitutional dimensions of clemency in death penalty cases and, lastly, the executives of various states have advanced in their ability to address claims of rehabilitation through the "fail-safe" process of clemency. The courts' and executive's denial of relief to Wilbert Evans "shocked the conscience." Execution of Applicant because of the failure of the system to accommodate her appeals for relief would do no less. Summation and Prayer for Relief The United States Supreme Court in the 1958 case, Trop v. Dulles, considered the constitutionality of expatriation as punishment. Justice Goldberg, writing in dissent in Trop, commented on the recently ascendant sentencing reforms that reflected growth of the rehabilitative punishment ideal: indeterminate sentences and parole. 356 U.S. 86, 111 (Goldberg, J., dissenting). He noted that expatriation "constitute[d] the exact antithesis of rehabilitation, for instead of guiding the offender back into the useful paths of society it excommunicates him and makes him, literally, an outcast." Id. From her cell on death row, Applicant, for years, has been trodding the "useful paths of society." Her reconciliation to that extent has led to a very positive gain for society. Cutting her off now would create an unacceptable loss for the community at large, to which she has been restored. It would violate the deeply held current public conviction that restoration of public order must be achieved not as it formerly was through symbolic action (public execution), but through certain, proportionate punishment accompanied by concrete effort to reform the offender so that she can herself make steps toward mending the damage caused by her actions to society and her victims. This view is consistent with the Governor's policy. See Mike Ward, Inmates See Light in Prison Program, Austin American-Statesman, October 16, 1997, at A1 (describing Governor Bush's religion based prison rehabilitation program). Execution of Applicant would breach our shared moral consensus about restorative punishment as profoundly as her offense rended our moral and legal codes, and would also be fundamentally unfair to her as cruelly disproportionate punishment. Karla Faye Tucker's execution sentence violates the Eighth Amendment. It violates our nation's evolving standards of decency; it serves neither acknowledged goal for capital punishment; it is cruelly and arbitrarily disproportionate through the Texas statute; it results in a constitutionally impermissible mandatory penalty; it violates equal protection under the law by discriminating on the basis of gender; it violates Applicant's substantive due process right to life; it violates Applicant's limited right to due process in clemency; and finally, it simply "shocks the conscience." If Applicant, Karla Faye Tucker, is "expunged" from our community after she has made such gains toward mending the breach she caused, the social fabric that our courts and the executive are pledged to protect will be torn once again. The harm caused by the latter breach, like the former, will be profound. WHEREFORE, PREMISES CONSIDERED, it is respectfully requested that this Honorable Court grant Applicant's request for a hearing so that she might demonstrate beyond any reasonable doubt her good character and the evidentiary basis for her legal claims and, then, that this Honorable Court find Applicant's sentence should be vacated so that she may be given a life sentence proportionate to her rehabilitated status, the community's need for restoration of the moral order, and the probable needs on the part of those victimized by Applicant's offense for reconciliation and/or court-ordered restitution, and for such other relief to which she may be entitled. Respectfully submitted,
____________________________________ DAVID L. BOTSFORD State Bar No. 02687950 WALTER C. LONG State Bar No. 24002491 1307 West Avenue Austin, Texas 78701 (512) 480-9764 (512) 476-9768 (Fax) GEORGE McCALL SECREST, JR. State Bar No. 17973900 BENNETT & SECREST, L.L.P. 333 Clay Street, Suite 3830 Houston, Texas 77002-4177 (713) 757-0679 (713) 650-1602 (Fax) ATTORNEYS FOR APPLICANT AFFIDAVIT STATE OF TEXAS COUNTY OF TRAVIS BEFORE ME, the undersigned authority, personally appeared David L. Botsford, a person known unto me and who, upon his oath, did state and depose the following: My name is David L. Botsford and I am over the age of 18 years of age and competent to make this affidavit. I have never before been convicted of a felony offense. I an the petitioner in the above and foregoing application/petition for writ of habeas corpus and I swear that the allegations of the application/petition are true and correct, according to my belief.
____________________________________ David L. Botsford SUBSCRIBED AND SWORN to before me, the undersigned authority, on this the 17th day of January 1998.
____________________________________ Notary Public, Travis County, Texas |
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