Civil Liberties

200 Executions and Counting: Texas Gov. Rick Perry's Cruel Death Tally

Today marks the 200th execution under Perry, a record even deadlier than George W. Bush's tenure. What's the matter with Texas?

At roughly 6 p.m. tonight, Texas Gov. Rick Perry will make history when he presides over the 200th execution of his tenure. It's a chilling achievement, one that dwarfs that of his predecessor, George W. Bush, who famously signed off on 152 (with a little help from his friend, then-legal counsel Alberto Gonzales).

Barring a most unlikely twist of fate, there's little doubt that Terry Lee Hankins will be dead by sunset. For death-penalty enthusiasts, this is cause for celebration; Hawkins -- a self-described "non-caring monster" who shot his wife and children in their sleep -- is held up as a poster child for state killing. One appellate prosecutor for the Texas Attorney General's office, Georgette Oden -- who recently joked on her blog that when asked at cocktail parties "So, what do you do?" she likes to boast "I kill people" -- wrote: "He's my best example of the kind of person who deserves the death penalty."

People like Oden would love to claim that all the people on death row are so cartoonishly deserving of death. But the past 25 years have painted a far more complicated picture, one that has shown the death penalty to be fraught with error, corruption, racism and prosecutorial misconduct.

Perry should know. His years in office have been marked by last-minute commutations, controversial executions and some 35 DNA exonerations of wrongfully convicted prisoners. In Harris County, which sends more prisoners to the death chamber than any other jurisdiction in the country, an ever-evolving scandal over its dilapidated and mismanaged forensics crime lab has provided an alarming backdrop to innocence claims by Texas prisoners, leaving little question that countless prisoners have been sent to prison -- and death row -- on tainted evidence.

One recent example is the tragic case of Timothy Cole, who spent 13 years in prison for a rape he did not commit. Cole, who suffered from severe asthma, died behind bars in 1999 only to be posthumously exonerated 10 years later when the real criminal came forward. Cole always insisted upon his innocence, refusing an offer of early parole on the condition that he admit his guilt.

"His greatest wish was to be exonerated and completely vindicated," his mother, Ruby Session, told Austin news station KXAN in February 2009.

A Cruel Legacy

Examining Perry’s long execution record, a number of cases stand out.

There was Napoleon Beazely, one of the last juvenile offenders executed in the United States, who was put to death in 2002. Beazely was 17 years old, an honor student, football star and senior class president with no prior criminal record when he fatally shot 63-year-old John Luttig, the father of a federal judge, in what was described as an attempted hijacking. By all accounts a model prisoner during his eight years on death row, Beazley admitted his guilt and repeatedly expressed his remorse for the crime:

"I knew it was wrong," he told a packed courtroom at his sentencing hearing. "I know it is wrong now. I've been trying to make up for it ever since that moment. I've apologized ever since that moment, not just through words, but through my acts. … It's my fault. I violated the law. I violated this city, and I violated a family -- all to satisfy my own misguided emotions. I'm sorry. I wish I had a second chance to make up for it, but I don't."

A number of unlikely advocates tried to save Beazely's life. According to the American Bar Association, "even Cindy Garner, the district attorney from Napoleon's home county (Houston County), testified at the sentencing hearing on Napoleon's behalf. While she has been a strong proponent of the death penalty, she continues to maintain that the death penalty is inappropriate in Napoleon's case." Another unlikely ally was his trial judge, Cynthia Kent, who wrote to Perry asking him to commute his sentence to life in prison, a request that fell on deaf ears.

In August 2001, the Supreme Court denied Beazely a stay of execution. In an unusual move, three of the justices -- Justices Antonin Scalia, Clarence Thomas and David Souter -- recused themselves because they had personal relationships with the victim's son.

Beazely was executed on May 28, 2002. "Tonight we tell the world that there are no second chances in the eyes of justice," he said before being injected with lethal chemicals. "Tonight, we tell our children that in some instances, in some cases, killing is right."

Three years later, in the landmark case Roper v. Simmons, the U.S. Supreme Court ruled it unconstitutional to execute prisoners who committed their crimes before the age of 18, commuting all such death sentences to life.

'Maybe this man was innocent': The Case of Cameron Todd Willingham

Beazely may have been guilty of the crime for which he was executed. But others have almost certainly not been.

Cameron Todd Willingham was executed on February 17, 2004, for setting fire to his own one-story home, a blaze that killed his three young daughters (1-year-old twins and their 2-year-old sister). Willingham was convicted and sent to death row on a hastily executed arson investigation and jurors’ suspicion over the fact that he managed to escape the fire himself. But he maintained his innocence for years, right until he was strapped to the gurney.

"I am an innocent man, convicted of a crime I did not commit,” he said in his final statement. "I have been persecuted for 12 years for something I did not do."

Ten months later, on Dec. 9, 2004, the Chicago Tribune published an investigative article that cast serious doubt on Willingham's guilt.

"While Texas authorities dismissed his protests, a Tribune investigation of his case shows that Willingham was prosecuted and convicted based primarily on arson theories that have since been repudiated by scientific advances," wrote staff reporters Steve Mills and Maurice Possley. "According to four fire experts consulted by the Tribune, the original investigation was flawed, and it is even possible the fire was accidental."

Among the experts was Louisiana Fire Chief Kendall Ryland, who said it "made me sick to think this guy was executed based on this investigation. … They executed this guy, and they've just got no idea -- at least not scientifically -- if he set the fire, or if the fire was even intentionally set."

"Did anybody know about this prior to his execution?" asked Dorinda Brokofsky, one of the jurors who sent him to die. "Now I will have to live with this for the rest of my life. Maybe this man was innocent."

The Willingham case "should shake the confidence of any Texan," says Scott Cobb of the Texas Moratorium Network. " ... The risk of executing an innocent person is very real in Texas because of the pace of executions, exemplified by Perry's record of 200. When you are executing that many people, the possibility of making a mistake is increased, and that is likely what happened in the Willingham case."

Frances Newton

Less than a year after the Tribune's investigation, 40-year-old Frances Newton became the third woman to be executed by the state of Texas since 1982 (and the first African American woman in the modern era) despite the strong possibility that she was innocent. Her trial attorney, Ronald Mock, was a notoriously incompetent defense lawyer (who was later suspended for said incompetence).

"For so many of the people whom Ron was appointed to represent, their death warrant was signed when the ink was dry on the appointment form,'' one defense lawyer told the Houston Chronicle.

The case against Newton (who was charged with killing her husband and children) was based almost entirely on circumstantial evidence, including the fact that she had recently taken out life insurance policies on her husband and daughter. David Dow, head of the Texas Innocence Network, acknowledged at a clemency hearing for Newton that the evidence against her was "superficially compelling” -- but, he said, "appearances can be misleading.”

"From the beginning, Frances Newton has maintained her innocence,” reported Jordan Smith in the Austin Chronicle on Sept. 9, 2005, days before Newton’s execution. "She has also offered a plausible alternative theory of the crime -- a theory that neither police, prosecutors nor Newton's own trial attorney, the infamous and now-suspended Ronald Mock, have ever investigated.” According to Newton, her family members had been murdered at the behest of a drug dealer to whom her husband owed money.

Newton’s insistence on her innocence -- and the lack of physical evidence linking her to the crime was compelling enough to at least catch Perry’s attention.

"Lingering questions about the physical evidence against Newton prompted the Texas Board of Pardons and Paroles to recommend, and Gov. Rick Perry to grant, a 120-day reprieve for Newton on Dec. 1, 2004 -- the day she was last scheduled for execution," Smith reported. But a mishandling of the evidence by the Harris County crime lab made it impossible to reconsider new evidence of her innocence; despite the fact that there was "even more doubt about Newton's guilt than there was when she was granted the stay."

On Sept. 1, 2005 Newton’s execution went forward, with her mother and sisters watching, as well as her parents-in-law, who on Aug. 25 wrote to the Texas Board of Pardons and Parole: "We never wanted to see Frances get executed. ... When the trial occurred, nobody from the [DA's] office ever asked ... our opinion. We were willing to testify on Frances' behalf, but Frances' defense lawyer never approached us. ... We do not wish to suffer the loss of another family member."

The Lone Star State versus International Law

More recently, last summer Perry declined to grant a stay of execution in the case of José Medellin, a Mexican national who was sent to death row when he was 18 on rape and murder charges. Medellin, who was jailed in 1993, was kept ignorant of his right to talk to a consular official at the time of his arrest -- a right bestowed on him by the Vienna Convention on Consular Relations.

According to Amnesty International, "because of this treaty violation, José Medellín was deprived of the extensive assistance that Mexico provides for the defense of its citizens facing capital charges in the USA. The Mexican Consulate did not learn about the case until nearly four years after José Medellín’s arrest, by which time his trial and the initial appeal affirming his conviction and death sentence had already concluded."

Aside from becoming a major diplomatic flap between the U.S. and Mexico, the Medellin case eventually reached the U.S. Supreme Court, which ruled in March 2008 that the United States was obligated by international law to comply with an International Court of Justice decision that the U.S. provide judicial "review and reconsideration” of the convictions of some 50 Mexican nationals on death row in the United States. This did little to help Medellin however.

"Even President Bush, who signed scores of death warrants as Texas governor, concurred some time ago that the United States must honor its international obligations in this case," Amnesty International’s Larry Cox said in the run-up to Medellin’s execution. "There will be no clearer sign that Texas will have gone beyond the pale than if José Medellin's execution goes forward." Not surprisingly, Texas did just that, killing Medellin on Aug. 5, 2008.

"Texans are doing just fine governing Texas," Perry once said in response to pressure from the European Union to stop the execution of a man who did not commit the murder for which he was sentenced to death. (That man, Kenneth Foster, Jr., was later spared, in a historic move due entirely to an activist campaign to save his life.) That Perry would not hesitate to execute a foreign national in violation of international law should come as no surprise.

What’s the Matter With Texas?

As with George W. Bush's tenure, whole volumes could be written on Perry and the death sentences carried out in Texas under his watch; but perhaps the most salient question at the end of the day is why. Why -- especially at a time when much of the rest of the country (indeed, the world) is turning its back on the death penalty -- does Texas continue to carry out executions at such a disturbingly frantic pace?

What is it about Texas that it breeds such figures as Judge Sharon Keller, who, on the day the Supreme Court decided to hear a landmark case on the constitutionality of lethal injection, refused to allow a last-minute appeal filed by attorneys trying to save the life of a client scheduled to die that night because, in her words, "We close at 5"?

"Executions in the U.S. have become largely a Southern practice," says Scott Cobb. "Last year, 95 percent of all executions were in the South. It is the legacy of the Old South and its history of slavery, lynchings and segregation that is the reason why the South executes so many people compared to other parts of the U.S.

"In Texas, the situation is compounded by the political system of electing judges, such as Sharon Keller, who are allowed to make egregious pro-death-penalty statements when they run for office and to present themselves as 'pro-prosecution' when they should be impartial arbiters of justice. Politicians are several steps behind public opinion on the death-penalty issue."

Cobb argues that, when presented with the damning evidence that there are innocent people on death row, Texans would certainly reconsider the death penalty.

"If we had a referendum in Texas on a moratorium on executions, that is a vote we could win," he says. "When people are informed about the problems in the system, then they are supportive of a moratorium on executions. I am absolutely sure that Texas will abolish the death penalty in my lifetime, and Rick Perry's record of 200-plus executions will never again be matched."

A Day of Action Against Executions

In December 2005, Texas executed its 1,000th prisoner since the return of capital punishment in 1976. "This 1,000th execution is a milestone," Thomas Maher, the defense attorney who represented Kenneth Boyd, the 1,000th prisoner, said after watching his client be put to death. "It's a milestone we should all be ashamed of."

Perry has overseen more executions than any other governor in U.S. history. As he approaches his own morbid professional milestone, a network of activists throughout Texas -- and in cities across the globe -- will hold protests calling for an end to the barbaric practice of state-sanctioned murder.

"The Texas anti-death-penalty community asks people around the world to focus attention on Texas and join us in protesting the 200th execution carried out under Rick Perry," announced Cobb of the Texas Moratorium Network. "Altogether, Texas has executed 438 people since 1982, including 152 under former Texas Gov. George W. Bush."

Cobb urges people to call Perry at 512-463-1782 and/or to e-mail him using the form on his Web site. ("We suggest you both call him and e-mail him.")

"I hope to tell the world outside Texas that we need their help to pressure Texas to stop executions," says Cobb. " ... Many people around the world have business and other relationships with Texas, such as Leipzig, Germany, which is holding a protest on June 2, and which has a sister city relationship with Houston.

"For the people of Texas, I want to use the occasion of this appalling milestone to educate them about the unjust system that is carrying out executions in their names. Not only has Texas likely executed innocent people, like Todd Willingham, it has also sent people to death row who did not even kill anyone but who were sentenced to death under the Law of Parties because someone else killed someone, people like Jeff Wood, who may soon receive another execution date if the courts decide he is mentally fit for execution. Jeff Wood did not kill anyone. He was in a car outside when another person killed someone." (Read more about Wood, here.)

Bryan McCann, of the Austin chapter of the Campaign to End the Death Penalty said: "For the 200th time in his career as governor, Rick Perry -- with the complicity of the Texas Legislature and courts -- has made it clear that he is uninterested in acknowledging the mounting and irrefutable evidence that the death penalty is incompatible with the aims of a just society.

"This grim milestone is an important opportunity to put Perry and his allies on notice that they are fighting a losing battle."