To the growing legions of death penalty abolitionists Judge Tom Price of Dallas, a Republican member of the Texas Court of Criminal Appeals, last week joined the litany of latter-day saints. In a six-page dissent authored in the case of Scott Panetti, the floridly insane man Texas intends to execute later this week, Judge Price declared his opposition to capital punishment as it is applied in the Lone Star State. He wrote:
I am among a very few number of people who have had a front row seat to this process for the past four decades… Based on my specialized knowledge of this process, I now conclude that the death penalty as a form of punishment should be abolished because the execution of individuals does not appear to measurably advance the retribution and deterrence purposes served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty punishment option; and the risk of executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel.
Judge Price’s last-minute epiphany — he leaves the bench next month after decades on it — puts him in the company of many judges with far more impact upon the American scene, each of whom decided to come out against capital punishment at the end of long careers when they could do essentially nothing about it. United States Supreme Court Justice Harry Blackmun famously recanted his support for the death penalty in 1994 in a case styled Callins v. Collins. “From this day forward, I no longer shall tinker with the machinery of death,” he wrote, and then four months later retired from the Court.
Justice John Paul Stevens also came around to the futility of the death penalty as it is administered in America. In 2008, thirty three years after he was nominated by President Gerald Ford and two years before he retired from the Court, Justice Stevens announced in Baze v. Rees that:
I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment .” (citation omitted by me).
So, too, did Supreme Court Justice Lewis Powell, another one of the architects of modern capital punishment in America, come around to the view that what he had created in theory was unworkable in practice. He told his biographer, late in life, after he had left the Court, that “capital punishment should be abolished.” These men obviously have one big thing in common with Judge Price. But there is one big thing that distinguishes them from him as well. He had to be elected to get his spot on the Texas Court of Criminal Appeals. And he had to go back to the electorate each time his term was up to seek another term. Would Judge Price have issued the dissent he did in Panetti if he were planning to return to the bench next year, if he had to answer for that view in the court of public opinion in Texas?
You can come to your own conclusions about that. I have come to mine. By my unofficial count, the Court of Criminal Appeals, the highest appellate court for criminal cases in Texas, has endorsed or overseen the execution of approximately 400 capital defendants since Judge Price came to it in 1997. Many of those men were guilty, competent to be executed, and sane enough to understand what was to befall them. But some, manifestly, were not. Judge Price has to answer for them, too.
To declare now, one month before he leaves, that he wants to impart some “specialized knowledge” upon the rest of us about the failings of the system may clear Judge Price’s conscience. But it is no act of courage. Why didn’t Judge Price write these words in 2004 when his court permitted the execution of Kelsey Patterson, a man who was so mentally ill even the Texas Board of Pardons and Paroles recommended clemency? Why didn’t he write these words in 2009 when the case of Bobby Woods came up?
Why not stand up against the process, stand up against retribution, when his court in 2012 countenanced the execution of Marvin Wilson, a man so severely mentally disabled that he sucked his thumb and could not always tell the difference between right and wrong? Why didn’t he speak up a year earlier when Texas executed Mexican national Humberto Leal Garcia despite the protests of the Justice Department, the United Nations, and Mexico herself? When exactly did this epiphany come to the judge that the death penalty as implemented in Texas is unconstitutionally flawed?
It’s not as if there are no recent examples around of judges having the courage to declare the death penalty unconstitutional well before their time on the bench is up. U.S. District Judge Jed Rakoff, an appointee of Bill Clinton, did it in 2002 in New York. U.S. District Judge Cormac J. Carney, an appointee of George W. Bush, did it this past July in California. What distinguishes these men from Judge Price? Life-tenure, for one thing; they are not subject to the whims and caprices of majority rule that govern the professional life of a state judge in Texas.
People always seem to wonder how a system of judicial elections alters the fragile constitutional balance in capital cases. They don’t have to wonder any more. The most courageous thing about Judge Price’s declaration may not be the substance of what he said. It may be that it reminds the rest of us how different things might be in Texas (and elsewhere) if judges didn’t have to worry about what voters might think about the way they, the judges, implement their “specialized knowledge of the process” that determines who lives and who dies. It’s not just what you say about capital punishment. It’s when you say it.
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.