-Caveat Lector-
Cases to highlight Bush's death penalty role
By John Aloysius Farrell
c.1999 The Boston Globe
AUSTIN, Texas -- George W. Bush is proud to call himself
"the
law-and-order governor." And rightly so. In five years in
office, he
has overseen the executions of 113 death row inmates,
more than
any other governor in any state since the death penalty
was
reinstated in 1976.
But the relentless efficiency of his state's death row
machinery is
about to intersect, vividly, with Bush's pursuit of his
party's
presidential nomination. In the five weeks before the
Iowa and New
Hampshire presidential contests, Texas is scheduled to
execute
eight more people, among them convicts whose cases put the
debate about the death penalty into high relief.
Two of the eight committed their crimes as juveniles. One
claims to
have been convicted on the basis of a faulty DNA test.
One is a
paranoid schizophrenic whose condition went untreated --
until he
killed.
And then there's Johnny Paul Penry.
Even supporters of capital punishment have been troubled
by the
Penry case. There is no excusing his heinous crime: In
1979, while
on parole for a previous rape conviction, he broke into
the home of
Pamela Carpenter, raped her, and then stabbed her to
death with
the scissors she was using to make a Halloween costume
for her
niece.
But Penry has the intellectual capacity of a 7-year-old.
He never
got past the first grade and spent his childhood years in
and out of
mental institutions. Court records describe how his
mother beat him
as a baby and dipped him in scalding water. She forced
him to eat
his bodily wastes, according to those records.
Penry's execution is sure to gain national attention, for
it was in his
case in 1989 that the US Supreme Court issued a
controversial
ruling that the death penalty for retarded individuals is
not a
constitutionally prohibited "cruel and unusual
punishment." He is
scheduled to die by lethal injection on Jan. 13.
Bush has not spoken publicly about the Penry case and, in
keeping
with his normal practice, he would not examine the facts
of the
case until the date set for execution. Bush has never
granted such
a reprieve. And it was the governor's opposition last
spring that led
to the scuttling of a bill that passed one house of the
Texas
Legislature. It would have banned executions of the
mentally
retarded.
The case of another Texas convict, Larry Robison, who has
been
diagnosed with paranoid schizophrenia, poses another
issue:
whether the mentally ill should be executed. In a bloody
rampage,
Robison slaughtered two men, two women, and an
11-year-old boy
near Fort Worth in 1982.
Before he launched his murderous spree by decapitating and
sexually mutilating his male housemate, Robison had no
history of
violence. His illness had been diagnosed when he was 21,
but he
was turned away from treatment because he lacked health
insurance. He has requested Jan. 21 as an execution date,
because
he wants to die on a night of a full moon.
The scheduled executions of Glen McGinnis (Jan. 25) and
Anzel
Jones (Jan. 26) and David Hicks (Jan. 20) offer other
windows onto
the death penalty and how determinedly Texas and Bush
enforce it.
McGinnis and Jones were both juveniles, 17 years old,
when they
committed their brutal crimes. Hicks, meanwhile, claims
that faulty
DNA analysis helped convict him of a crime he did not
commit -- the
rape and murder of his grandmother.
The death penalty has not yet emerged as a campaign issue
in a
nation where roughly two of three voters, and three of
four
Republicans, endorse the practice. Here in Texas, the most
prominent victims' rights organization speaks for many
when giving
Bush its whole-hearted support.
"Governor Bush has been a very receptive and reasonable
governor
when it comes to issues of crime and criminal justice,"
said Dianne
Clements, president of Justice for All, the Houston-based
victims
group. "There is poll after poll that proves the citizens
of Texas
support the death penalty, the ultimate punishment."
Clements defends the use of the death penalty, even in
those
cases where the offender was 17 at the time of the crime,
or
mentally disabled. "If they are competent to be
convicted, then so
be it," she said.
But death penalty opponents contend that Bush's
record-setting
embrace of capital punishment may yet be a negative
factor for him
in the 2000 election. He shows a callousness, they say,
toward the
solemn issues that arise from government's ultimate
power: taking
the life of its citizens.
Beyond the overall support given to capital punishment in
the polls,
"the realization is growing that the death penalty, like
a lot of other
things that government does, has serious problems," said
Stephen
Bright, director of the Southern Center for Human Rights
in Atlanta.
"People reasonably expect that the governor of Texas
ought to be
concerned about executing the mentally retarded, or those
who had
poor legal representation," said Bright. "If you are
going to be
executing those who were children when they committed the
crime,
or people who are mentally ill, the governor ought to at
least be
engaged. You don't get the sense that Bush is engaged at
all."
Bush reinforced such doubts when, in a magazine interview
last
summer, he mocked the eleventh-hour plea for mercy by a
convicted double murderer, Karla Faye Tucker, imitating
her by
whimpering "Please, don't kill me" with pursed lips.
Tucker, whose born-again faith and repentance for her
crimes was
cited in requests for mercy made to Bush by such figures
as Pope
John Paul II and televangelist Pat Robertson, was the
first woman
to be executed by the state of Texas since the Civil War.
And in a recent case that spurred headlines across the
country,
Texas authorities used an airplane and a team of medical
attendants to fly David Long from the intensive care ward
of a
Galveston hospital to the death chamber in Huntsville on
Dec. 8 so
he could be executed on his appointed date. He had tried
to commit
suicide by taking an overdose of anti-psychotic drugs.
"Putting him on life support and flying him out of the
hospital so
they can kill him? People are asking, `What the hell are
they doing
down there?' " said George Kendall, who heads the NAACP's
death
penalty project in New York. "There is a growing volume
of cases in
Texas that make it sound like however the system is
supposed to
work, this is not it."
At a time when the well-publicized releases of dozens of
death row
inmates found innocent by DNA testing has sparked a
national
movement for a moratorium on capital punishment, and led
to a
slight downtick in support for the practice in public
opinion polls,
foes of the death penalty hope to use the upcoming
primary season
to publicize their cause and pressure Bush to intervene
on behalf of
those scheduled to die.
Bush's legislative record raises further issues. Despite
repeated
judicial criticism of the way that Texas provides legal
services to
indigent defendants in capital punishment and other
criminal cases
-- via a court-appointed patronage system -- Bush vetoed
a bill
that would have reformed the system and established an
independent public defender's office this year.
In a chapter on the death penalty in his campaign
autobiography,
Bush says that he treats his "profound" responsibility in
capital
punishment cases "thoughtfully and carefully," but that
he limits his
decisions on whether to intervene to two matters: "Is
there any
doubt about this individual's guilt or innocence? And,
have the
courts had ample opportunity to review all the legal
issues in this
case?"
As a matter of political philosophy, Bush says, he does
not believe
he has the right to "replace the verdict of a jury with
my own" in
order to show mercy, or for potentially mitigating
factors like age,
mental illness, or mental retardation.
"I support the death penalty because I believe, if
administered
swiftly and justly, capital punishment is a deterrent
against future
violence and will save other innocent lives," Bush said.
Bush, as governor, is the only candidate who has to
concern himself
with particular death penalty cases, but he is far from
alone in his
general views. All five of his Republican adversaries
support the
death penalty, as do Vice President Al Gore and former
Senator Bill
Bradley, the two men squaring off in the Democratic
primaries.
Bush's Democratic opponents in the last two gubernatorial
elections
each sought to show that they were tough on crime by
enthusiastically endorsing the death penalty.
"There is strong support for capital punishment in
Texas," said Tony
Fabelo, who as director of the Texas Criminal Justice
Policy Council
serves as the Texas governor's top adviser on criminal
justice
issues. And Fabelo said Bush is no one-trick pony, and
should be
credited for the way that his reform of the juvenile
justice system
and his ambitious prison construction program have helped
cut the
Texas crime rate and modernize its institutions.
A GOP pollster, William McInturff, who conducts public
opinion
surveys for the campaign of Senator John McCain of
Arizona, said
the governor risks little damage in approving the
executions in
January. The electorate's general position on capital
punishment,
said McInturff, is akin to that of one voter who told the
pollster, "I'll
tell you where I stand on the death penalty: right next
to the
switch."
Noting how President Clinton showed he was tough on crime
during
the 1992 campaign by approving the execution of Rickey Ray
Rector, a mentally retarded Arkansas man, McInturff said
that the
only political risk when applying the death penalty is
"that you don't
want to appear you are being glib with that
responsibility." And
after the fallout over his comments about the Tucker case,
McInturff said, "I'm sure governor Bush is most attuned
to that."
Because Texas has a system of government that curbs the
governor's power, Bush can technically give a death row
inmate just
a 30-day reprieve from execution. But he appoints the
Texas Board
of Pardons and Paroles, which has the authority to grant
clemency
requests and commute sentences and has never varied from
Bush's
position on the 113 executions and one act of clemency
during his
tenure.
Bush has the authority, though he has never had to use
it, to
overrule an act of clemency by the board. "My appointees
. . .
reflect my no-nonsense approach to crime and punishment,"
Bush
said. In the single case of clemency, Bush and the board
agreed
with the Texas attorney general that crazed serial killer
Henry Lee
Lucas had made a phony confession to the 1979 rape and
strangling
of an unidentified woman for which he was sentence to
death.
The probation and parole board holds no public hearings,
votes by
phone or fax, and does not explain its reasoning. The
secretive and
casual nature with which the board makes decisions
spurred one
federal judge last year to call it "appalling" and
"incredible" and an
"extremely poor" process.
Similarly, the Texas system of having elected judges
appoint their
favorite lawyers for impoverished defendants was called a
"farce"
and a "travesty" by another federal judge after a series
of abuses
-- including defense lawyers who slept in court or abused
cocaine
-- came to light last year. The problem was exacerbated
when the
federal government cut off all funds to resource centers
that
provided help to death row inmates.
Bush publicly defended the state's clemency and indigent
defense
systems. He vetoed the bill to create a new public
defender's office,
and without his support the proposed legislation to
reform the
clemency process died in this year's legislature, along
with the bill
to ban executions of the mentally retarded.
"These are the tangential ways Bush helps create an
atmosphere,"
said Maurie A. Levin, an Austin lawyer who represents
death row
inmates. "To me, killing a retarded guy and a juvenile in
the same
month when you are running for national election says a
lot about
you."
Distributed by The Associated Press (AP)
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