Opinion: Clemency critics mask true objectives

by William Murchison
Lone Star Report
VOLUME 3, ISSUE 16 -- January 8, 1999


Quibbles and complaints about Texas clemency proceedings are more than anything else a way of getting around Texas' capital punishment statute.

The anti-capital punishment faction, badly outnumbered in modern life, basically believes nobody should be executed for anything. A request for clemency, under this worldview, resembles an entitlement. Not to extend clemency is somehow an affront - to the changed behavior of the condemned, to the process of abstract justices. To something.

The mini-furor over clemency hearings, played out in U.S. Dist. Judge Sam Sparks' courtroom, and more recently in state Dist. Judge Scott McCown's, makes no sense otherwise.

That state procedures for reviewing clemency bids meet constitutional standards seems obvious to Gov. Bush. "There has been no doubt in my mind," said Bush, on Jan. 4, "that any person we have put to death in the state of Texas has had full due process and has been guilty of the crimes charged."

Bush's stipulations - due process and guilt - are central. Neither Texas nor any other state is supposed to go around executing innocent people following a kangaroo proceeding. Everyone in the world agrees with this precept.

Disagreement breaks down where Bush asserts a right to execute notwithstanding a plea for mercy. The quality of mercy may not be strained, and always must be at the ready. But its application is not automatic.

Into this vexed situation both the legislative and judicial branches venture. Sparks already has found that current clemency procedures meet "minimal" constitutional requirements. He calls those procedures "extremely poor" all the same. "I do not understand what the reason is, for God's sake, you can't have a lawyer," an exasperated Sparks told state lawyers. "Why not?"

Technically, the answer is that, under present constitutional standards, the state doesn't have to call a hearing. Presently, pardons and parole board members, who live all over the state, privately study packets of evidence, then vote without general consultation. They could convoke a public hearing if they wanted, but nothing requires them to.

This brings into play several bills aimed at increase inmates' chances of staying off, or getting off, death row.

Rep. Elliott Naishtat's (D-Austin) HB 397 and HB 398 would require public hearings on clemency petitions. The pardons and parole board would not only have to meet in public, it would have to consider factors such as "the validity of any unresolved legal issues," including guilt; "the inmate's societal history;" whether the killer was drunk or deranged at the time of the crime; and whether he is "rehabilitated." There are 12 such provisions, including "any submission by the inmate's counsel."

The plain intention here is to keep the death-row cell door propped partly open. It is hard to imagine under such a regime a prisoner and counsel not whomping up successions of appeals in which it is argued (say) that, although the board considered the petitioner's "societal history," it didn't consider that whole history. Or consider it fairly. Or that it refused to wait for relevant evidence. Show a skillful lawyer a loophole and before long it becomes a cathedral door.

Likewise Sen. Eddie Lucio (D-Brownsville) has a brace of bills - there are companions in the House - meant to facilitate sentences of life without parole.

An inherent difficulty with the death penalty inheres also in human decisions of any kind; how to make everything absolutely fair and square. Nothing human is ever that fair, that square. Because human life is at stake in clemency matters, Naishtat, Lucio, and Sparks, in addition to lawyers and anti-capital punishment groups, want to make extra sure that every relevant detail gets covered.

That is hardly a contemptible desire, but the likelihood of its backfiring looms large and should be kept in mind. Most death-row prisoners - including Gary Graham, who threatens to go out fighting on his present execution date of Jan. 11 - acquire their claques of supporters. Karla Faye Tucker, the noted axe murderer and born-again Christian, inspired one of the more vociferous claques. (To her credit, she accepted without murmur the denial of clemency.)

What we don't need is more executions getting hung up longer in the great procedural machine the legislature is being asked to construct. We don't need it, that is, if we believe, as we seem to, that capital punishment punishes and deters in a manner that upholds civilized standards and reinforces the social peace. Death row's inmates are the worst of the worst to come through the criminal justice system. That, notwithstanding, they command reflexive sympathy is...scary.