Texas Death Penalty Ruled Unconstitutional; Appeal Likely
No one seems to think it will hold up on appeal, but yesterday a recently elected judge in Houston, Texas ruled that the Lone Star State’s death penalty is unconstitutional. According to the Houston Chronicle, the Judge, Kevin Fine, stated that:
“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed. It’s safe to assume we execute innocent people.”
And:
“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty? I don’t think society’s mindset is that way now.”
The ruling came in response to a pre-trial motion filed by attorneys for John Edward Green, who is charged with a June 2008 murder. Green has pleaded not guilty.
Reaction from the Texas pro-death penalty establishment was swift. Harris County District Attorney Patricia Lykos issued a statement proclaiming that: “Words are inadequate to describe the Office’s disappointment and dismay with this ruling.”
Texas Attorney General Greg Abbott responded with familiar talking points. He condemned the ruling as “judicial activism,” and he lamented that the judge’s decision “delays justice and closure for the victim’s family,” as if an execution were right around the corner rather than at least 10 years away (assuming, of course, that Green is convicted).
Like other elected officials in the state, elected judges in Texas have traditionally been enthusiastic and active promoters of executions. Perhaps judge Fine’s ruling will encourage his fellow judges to take a more critical and independent look at the death penalty in Texas.
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On March 4th, District Court Judge Fine (Houston, Harris County, Texas) found the death penalty unconstitutional based upon innocents executed. It appears that he blindly accepted defense attorney claims without fact checking them.
Judge Fine states with " . . . more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed." (1) The 200 number is all but irrelevant to death row, but does represent an inaccurate counting of DNA freed cases, as per the Innocence Project, for the entire prison population, not just death row. I suspect the judge received that inaccurate number from defense counsel.
The 200 number is nearly irrelevant to death row. 9 inmates have been released from death row because of DNA exclusion.
It appears neither Judge Fine nor defense counsel fact checked.
There is no proof of an innocent executed in the US, at least since 1900.
In the modern death penalty era, possibly, 25 inmates have been released from death row based upon actual innocence. (2)
25 not 200. Analysis below.
That is about 0.3% of those sentenced to death since 1973. All were freed.
Likely, there is not a more accurate sanction when it comes to convicting the actually guilty and freeing the actually innocent.
Judge Fine's decision appears similar to the one made by New York Federal District Court Judge Jed Rakoff in the Quinones case, whereby Rakoff found the federal death penalty statute unconstitutional. I stated, then, that it was an idiotic decision which would quickly be overturned. It was. At least Rakoff fact checked.
I am sure Judge Fine is aware that the death penalty is included in both the 5th and 14th Amendments of the US Constitution and that both Texas State courts as well as the US Supreme Court have always upheld the death penalty as constitutional (2), regardless of challenge. In other words, this is simply a story of a judge going ego wild, wanting to put a personal stamp on a decision, without any care for the law or the constitution .
Judge Fine can speculate all he wants about the innocents that may have been executed. He should, however, look at the facts and the law, before rendering a decision.
Judge Fine also failed to notice that innocents are more protected with the death penalty than with the lesser sanction of life without parole. Judge Fine failed to notice a great deal. Or did he?
"The Death Penalty: More Protection for Innocents"
http://homicidesurvivors.com
The 130 (now 139) death row "innocents" scam
http://homicidesurvivors.com
"The Innocent Executed: Deception & Death Penalty Opponents"
http://homicidesurvivors.com
Sincerely, Dudley Sharp
e-mail sharpjfa@aol.com , 713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment , he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
(1) "Judge declares death penalty unconstitutional: Maverick jurist grants pretrial motion in Houston murder case", HOUSTON CHRONICLE, March 5, 2010
(2) Some wrongly describe Furman v Georgia as finding the death penalty unconstitutional. It did not.
"Judge's Clarification Puts Him in More Hot Water: Texas Death Penalty Ruled Unconstitutional" (1)
Dudley Sharp, contact info below
3/7/10
The judge clarifies that his decision is " . . . limited only to the due process claim that 37071 has resulted in the execution of innocent people and/or has the potential to result in the execution of innocent persons". (1)
As such potential has existed since the beginning of executions, it is curious that the judge has made this ruling when (1) the probability of such an event occurring is now lower than at any other time in history , (2) the judge cannot point to a case whereby an innocent has been executed in the modern US death penalty era, post Gregg v Georgia, and (3) the judge can cite no precedent wherein perfection is required in the implementation of due process.
Judge Fine claims that this case is one of first impression, whereby he can find no precedent to rely upon. I agree with the judge, that judges should be gatekeepers. However, the "first impression" comment makes him the gatekeeper to Alice in Wonderland's rabbit hole, wherein he is welcoming us all. Some of us will refuse.
The judge states: "We execute innocent people. This is supported by the exoneration of individuals off of America's death rows. I repeat, again, that the vast majority of those cases involve DNA evidence."
After, again, not fact checking, the judge has repeated his earlier error, by again using the wrong 200 released number from the Innocence Project, which is in reference to cases IN THE ENTIRE PRISON SYSTEM - NOT JUST DEATH ROW - whereby prisoners were released because of DNA exclusion.
The real number is 251 (2), of which 9-10 represent inmates released from death row (3) , or 4% - hardly a vast majority.
In reality, the number of actual innocents released from death row is closer to 25 (4), of which the 9-10 make up 40% of those so identified and released, also not a vast majority.
Furthermore, evidence of releasing innocents from death row is only evidence of releasing innocents from death row. It is not evidence of executing innocents, for which Judge Fine offers not one case.
Well, predictably, he offers one.
Judge Fine "cites" a case from Travis County, with Judge Charley Baird presiding, whereby " . . . the deceased was in fact innocent and, thereafter, executed by the state of Texas."
This is the case of Tim Cole, who died in prison , innocent of the rape he was found guilt of and imprisoned for. This was not a death penalty case. Besides getting all of the facts wrong, Judge Fine appears to have made the case (for himself) that we can no longer incarcerate people because it denies their due process rights, because of the probability that actual innocents die in prior to due process causing their release.
Is Judge Fine this bad? Well, yes, he is.
I agree with Judge Fine that innocents have been executed, It doesn't seem likely it has occurred in the modern era in the US.
In fact, the death penalty offers greater protection for innocents than does its alternative, life without parole (5).
Given such a reality, possibly Judge Fine's next ruling will be that all incarcerations violate due process, as well. There is, after all, always the potential that an actual innocent incarcerated will die, prior to them being discovered and released by due process.
There may even be the potential for Judge Fine to recognize the importance of both the facts and the law .
Footnotes below.
(1) Raw Video "Judge Fine's clarification on Ruling", ABCNews, Channel 13 TV , Houston,
http://abclocal.go.com/ktrk/video?id=7314442
(2) "Innocence Project Case Profiles", The Innocence Project,
http://www.innocenceproject.org/know /
(3) "The Innocent and the Death Penalty", Innocence Project,
http://www.innocenceproject.org/Content/1857.php
NOTE for fact checking. It appears that there are 9-10 inmates removed from death row because of DNA exclusion. An additional 7-8 were released from prison because of DNA exclusion, in cases where those inmates were once on death row. It appears 17 is a solid number for inmates released because of DNA exclusion, cases which were, at sometime, all on death row. NOTE ALSO that there may be some challenge to actual innocence in some of these cases.
(4) The 130 (now 139) death row "innocents" scam
http://homicidesurvivors.com/2009/03/04/fact-checking-issues-on-innocence-and-the-death-penalty.aspx
(5) "The Death Penalty: More Protection for Innocents"
http://homicidesurvivors.com/2009/07/05/the-death-penalty-more-protection-for-innocents.aspx
Some additional references
"The Innocent Executed: Deception & Death Penalty Opponents"
http://homicidesurvivors.com/2009/10/08/the-innocent-executed-deception--death-penalty-opponents--draft.aspx
"A Death Penalty Red Herring: The Inanity and Hypocrisy of Perfection", Lester Jackson Ph.D.,
http://www.tcsdaily.com/article.aspx?id=102909A
"Cameron Todd Willingham: Another Media Meltdown", A Collection of Articles
http://homicidesurvivors.com/categories/Cameron %20Todd%20Willingham.aspx
RE: "In the modern death penalty era, possibly, 25 inmates have been released from death row based upon actual innocence."
IMO, that's 25 too many. I largely agree with your points except to the extent there appears to be an implication a certain amount of collateral damage is acceptable. There is at least one case I know of where I believe there is a near certainty an innocent was put to death. One is too many. In fact, one person wrongly imprisoned is too many. One person wrongly deprived of property is one too many.
I don't believe there's any question a sentence of death is constitutional. At the most simple level, the Constitution says no person should be deprived of life, liberty or property without due process. It also specifically references "capital or otherwise infamous" crimes. The plain language clearly recognizes death as just punishment when due.
Anyone who claims capital punishment is unconstitutional is either illiterate, a fool, or both (both most likely). The real question is whether or not capital punishment is moral. Personally, I believe it is.
With that said, however, I don't believe it's practical. It's not uncommon for a person convicted of a capital crime to spend decades on death row before sentence is carried out, at a typical cost to taxpayers of around $5 million. That's absolutely ludicrous. If the practical application winds up effectively being natural life in prison , without possibility of parole, it seems to me we should call it that and be done with it.
Why waste such unholy amounts of money and resources for the nominal satisfaction of killing a scumbag? You could put a hundred young adults through college for what it costs to kill one scumbag.
If Amnesty has a beef, they need to take it up at the constitutional level. Capital punishment IS constitutional and the only way to change that is through an amendment. Maybe public sentiment is ripe for such an amendment. I don't know. I do know a show of support for an unconstitutional judge is a disgrace.
Your view there is something seriously wrong with judges who refuse to obey the Constitution is spot on, and frankly, doesn't go nearly far enough in illuminating the point. The ONLY qualification one must have to be a judge is that one must first be an attorney.
Now, perhaps I'm unique in finding that to be cause for alarm, but I can't help but feel it makes for an unacceptably low bar to entry. You take a person who has spent their entire adult life trying to find ways to circumvent the law , then one day hand them the power to enforce the law, in what is virtually an accountability vacuum. They bear no personal responsibility for wrong decisions whatsoever, and the worst that could happen is they might be reversed in an environment where reversals are extraordinarily rare. According to theory, they're "elected" officials, but take a gander at your next voter's pamphlet. In most instances, judges run for office unopposed. How do you go about removing a bad judge from office when that judge is the only one on the ballot?
The system is broken and has been for a very long time. Our founders sought to avoid the tyranny of monarchs, then handed judges the power of kings. That's about as scary as it gets. For all the wisdom that went into our Constitution, in the entire history of the world, it's one of the most foolish mistakes ever made.
Don:
No one is happy that 25 actual innocents were sentneced to death . But all of us have always knowns that innocents will be found guilty. Those 25 have all been released .
In addtion, as reviewed in my lnk, above, innocents are more protected with the death penalty .
In addition, I am not sure Amnesty Intl has facted checked any anti death penalty material. They just seem to blondly accept anything, just like the judge .