Steiker in New Republic: Don’t Blame Perry for Texas’s Execution Addiction

Professor Carol Steiker '86

Professor Carol Steiker ’86

An essay,  “Don’t Blame Perry for Texas’s Execution Addiction. He Doesn’t Have Much To Do With It,” by HLS Professor Carol Steiker ’86 and her brother, Professor Jordan Steiker ’88 of the University of Texas School of Law appeared in the Sept. 2 edition of The New Republic. The essay focuses on the relationship between Republican presidential candidate and Texas Governor Rick Perry and Texas’s standing as the execution capital of the United States.

The Steikers, both well-known for their criminal law scholarship, published a study in 2009 which led the American Law Institute (ALI) to vote to withdraw the capital punishment section of its Model Penal Code. The study, which was requested by the ALI, examined the effectiveness of the Model Penal Code’s death penalty provisions, which were enacted in 1962 and were designed to make the administration of the death penalty less arbitrary. The Model Penal Code provisions were cited by the U.S. Supreme Court in 1976 when it determined that the death penalty could be administered in a constitutional way.

When Rick Perry assumed the governorship in December, 2000, Texas was already the execution capital of the United States, responsible for more than a third of the nation’s executions since 1976. Now, almost eleven years later, the state has even further out-paced the rest of the country, with its share of executions growing to over 40 percent during Perry’s watch. Though it may be tempting—for either Perry’s supporters or his critics—to credit (or discredit) the governor with this super-sized slice of the pie chart of American executions, such an attribution would be in error. The sheer number of executions in Texas over the past decade reveals little about Perry the Governor, because the governor plays only a limited role in the state’s death penalty machinery. That said, Perry has injected himself into the issue of capital punishment in Texas on a number of key occasions—with regard to the appropriateness of capital punishment for offenders with mental retardation, as well as the procedures for investigating a possible wrongful conviction and execution—interventions that cast doubt on the transparency and judiciousness of his political leadership.

Though governors are often depicted as “presiding” over state executions, as a matter of both law and recent tradition, the Texas governor’s office plays a quite limited role in the administration of the death penalty. The decision to seek a death sentence is an entirely local prerogative—made by the district attorneys in Texas’s 254 counties (a majority of which have not sent anyone to death row since 1976). Thus, just as Governor Perry bears no responsibility for the size of the substantial death row he inherited, he cannot be credited or blamed for the significant decrease in capital sentencing over the past decade, a decrease mirrored in the rest of the country. The governor also plays no role in defending capital convictions in state and federal court (a job shared by the local district attorneys and the state attorney general—an independently-elected official). As convicted death-sentenced inmates exhaust their appeals, the decision to set execution dates remains entirely with the trial judge who presided over the conviction and sentence. Again, unlike in some other states, the governor has no role—formal or informal—in deciding whether to move a case (and a defendant) to the precipice of an execution.

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