Capital punishment: The ultimate debate






HUNTSVILLE, Texas – At 6:22 p.m. Wednesday, 10 minutes after the deadly intravenous drip began, cop killer George Rivas became the 479th person executed in Texas since the state resumed executions three decades ago.

On the following day, California capital punishment opponents delivered nearly 800,000 signatures to election officials to place a new initiative on the November ballot to abolish state-sanctioned killing.

The death penalty in Texas and California couldn’t be more different. It has become part of the fabric of Texas. In California, it is a concept. The number of prisoners theoretically condemned to death stands at 724. But California has executed only 13 people, beginning with Robert Alton Harris, who died in the San Quentin gas chamber on April 21, 1992.

California’s system has become so ponderous that the past two state Supreme Court chief justices, both appointed by Republicans, have called it dysfunctional and suggested that if it can’t be fixed, it ought to be scrapped. Even in Texas, the death penalty is not all that simple, as Dallas County District Attorney Craig Watkins makes clear.

On the day of Rivas’ execution, Watkins arrived early at the red brick prison here known as The Walls. He had multiple reasons for taking the three-hour drive from Dallas to Huntsville. Watkins had never seen an execution and wanted to fully understand the system he must help to enforce.

In December 2000, Rivas led six inmates on a prison break. On Christmas Eve, Aubrey Hawkins, a 29-year-old police officer in Irving, Texas, dined at an Olive Garden with his wife, 9-year-old son, mother and grandmother, and left to answer a call about suspicious activity at a nearby sporting goods store.

There, Rivas and his gang shot Hawkins 11 times, dragged him from his patrol car and crushed him with their vehicle. Hawkins never had a chance to draw his weapon.

Although Watkins was intent on seeing Rivas take his final breath, he needed to stop first a few blocks east of the prison, at a graveyard long ago named Peckerwood Hill, the final resting place for the unclaimed bodies of Huntsville State Penitentiary inmates.

There, he found a tombstone for Inmate 101, Richard Johnson. An X on the stone indicated he died by execution. Johnson was 31 on Aug. 10, 1932, when he was walked to his death in the electric chair. He was Watkins’ great-grandfather.

“I didn’t know the man. But I was thinking of my grandmother,” Watkins told me.

Watkins said his grandmother, Myretha Clark, now 85, rarely talked about her father. He learned the man’s name only after he took office in 2006 and embarked on a personal research project.

“For her, it was a stigma that her father was executed,” he said. “She has been dealing with this her whole life.”

He doesn’t much want to talk about the details, other than to say times were very different 80 years ago. The crime involved the murder of an oilman and a sexual assault of the man’s fiancée, racially charged given that Johnson was black.

“It was a tragedy on both sides,” he said.

Executions halted in 1972

The old system of executions in the United States ended in 1972, when, briefly, some polls suggested that public support for capital punished had waned. On Feb. 18, 1972, California’s Supreme Court, by a 6-1 vote, ruled that the death penalty violated California’s constitution.

Four months later, the U.S. Supreme Court struck down death penalty statutes in other states. By 1976, however, the high court had revised its position and permitted states to rewrite their laws.

Since then, 1,283 people have been put to death nationwide. Increasingly, capital punishment is a Southern phenomenon. Southern states have executed 1,054 inmates. Texas’ 479 executions amount to 37 percent of the overall number. California’s 13 executions account for 1 percent of the total.

The California Supreme Court has been controlled by appointees of Republican governors since the 1986 election when voters ousted three justices appointed by Jerry Brown, including Chief Justice Rose Elizabeth Bird, who had voted to overturn more than 60 capital cases to come before her.

Since her departure, the California high court has affirmed more than 290 death sentences. But the logjam worsens.

Bird’s successors include Ronald George, an appointee of Republican Gov. Pete Wilson. In 1972, George was the deputy state attorney general responsible for overseeing capital appeals for California, and submitted briefs to the California high court and U.S. Supreme courts arguing for the constitutionality of the old death penalty statute.

As his retirement in 2010 neared, Chief Justice George concluded that the current death penalty system had become dysfunctional. He urged that it be significantly changed, though he stopped short of asking that it be scrapped. His successor, Chief Justice Tani Cantil-Sakauye, an appointee of Republican Gov. Arnold Schwarzenegger, has turned up the volume.

“If the death penalty remains the will of the people,” Cantil-Sakauye recently told The Bee editorial board, “we need to talk about priorities and costs … and if it still is the will of the people, then it is clear restructuring is needed and most likely revenue.”

There are many reasons why the state has not carried out the death penalty. But in California, lawyers for death row inmates confound prosecutors, and state and federal courts.

There has been a de facto moratorium on executions since 2006 as litigation continues over whether lethal injection, authorized by lawmakers in 1992 as less painful alternative to the gas chamber, amounts to cruel and unusual punishment. In Texas, courts quickly disposed of similar litigation.

Significantly, Texas judges run in partisan elections for the highest criminal appellate court in the state, the Court of Criminal Appeals, and don’t hide their biases. One judge, Sharon Keller, sent an election mailer showing a man’s hands sticking through the bars of a prison cell and included these words: “He won’t be voting for Sharon Keller on Tuesday.”

In 2007, Keller, the Texas court’s presiding judge, attracted attention by locking the courthouse doors at 5 p.m. sharp, denying attorneys for a death row inmate time to file a last-minute appeal. The man was executed later that night.

Although California’s Supreme Court regularly affirms death cases, its record doesn’t match that of the Texas court. In a five-year period ending in 2000, the Texas Court of Criminal Appeals upheld 268 of the 270 death sentences it reviewed on direct appeal, according the Texas Defenders Services, a nonprofit that represents death row inmates. That was the lowest reversal rate of any state.

There’s a matter of attitude. California’s governor and attorney general are moral opponents of capital punishment, though there is no evidence they’ve thwarted death sentences from being carried out.

In Texas, it’s a given that politicians support the death penalty. The high point of Texas Gov. Rick Perry’s failed presidential bid occurred in a debate when the audience cheered him for having presided over what then were 234 executions. If you kill a child or a cop or commit some other heinous murder, Perry said in the debate, “you will face the ultimate justice in the state of Texas.”

Despite such attitudes, the number of death sentences has declined since 2005, when Texas lawmakers gave jurors the option of imposing death or life in prison without parole. Texas juries handed out eight death sentences last year, down from an average of almost 22 in the three years before the change, and a high of 40 in 1996.

Since reinstating the death penalty in 1978, California has offered jurors that option. Juries returned nine death sentences last year, down from 29 in each of the preceding two years. The November initiative would end the death penalty, but leave in place sentences of life in prison without possibility of parole.

A pledge to uphold law

Lately, Watkins, the first and only African American in Texas to be elected county district attorney, has offered a voice of ambivalence in his state.

Watkins told me that when he was a kid, people in his neighborhood didn’t call police; they didn’t trust them. Elected in 2006 and re-elected in 2010, Watkins has sought to change that by, for example, reviewing cases of people who may have been wrongly convicted. In all, 27 inmates sent to prison from Dallas County have been exonerated since 2001, including 15 during his tenure.

At a hearing two weeks ago for one of the exonerated men, Watkins for the first time publicly mentioned his great-grandfather’s fate. The people his unit helped clear weren’t on death row. But given findings of innocence, “any honest district attorney would have to have issues about whether we have executed someone who was innocent,” Watkins said.

Watkins is morally opposed to capital punishment. But he follows the law as it is. He has pursued nine death penalty cases and helped prosecute one involving a defendant, since sent to death row, who stabbed his two young sons and their mother to death and raped his two stepdaughters.

“Morally, I believe capital punishment is wrong. But whatever the law is, I’ll enforce it,” Watkins said.

To prepare himself for Rivas’ execution, Watkins read final statements of other men who were executed at The Walls. Statements from the old days were not recorded, including whatever might have been said by his great-grandfather, the 85th person to die in the Texas electric chair.

“News accounts say he sang ‘Swing Low Sweet Chariot,’ ” Watkins said.

On the day of Rivas’ execution, Watkins arrived and left Huntsville quietly, not talking to the reporters who had gathered. He wanted to make sure the focus remained on Officer Hawkins. And it was.

Twenty-one uniformed officers made sure of that, standing shoulder to shoulder outside The Walls as Rivas was put to death.

As Rivas was hooked to the needles, Watkins made his way from the warden’s office toward the viewing area for the execution. Along the way, he walked past an area where family members come to visit inmates. He felt as if he had been there before. It wasn’t his imagination. As a boy, his family brought him to Huntsville to visit two uncles who were doing time.

Texas has two more executions scheduled this month. In California, there can be no execution until litigation over the legality of lethal injection ends. That won’t happen any time soon, certainly not before voters in November decide whether to end California’s version of capital punishment.


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