Texas has become ground zero for capital punishment. Between 1976 (when the Supreme Court lifted its prohibition on the death penalty) and 1998 Texas executed 167 people. Next in rank was Virginia which executed 60 during the same period.

Why do capital murder cases proceed through the Texas state court system with a speed unimaginable in other parts of the country? Brent Newton, in an article entitled "Capital Punishment: Texas Could Learn a Lot from Florida,"[1] argues that there are three procedures unique to the state's judicial system that enable it to execute convicted murderers with astonishing frequency:

1. Texas' appellate judges are elected to office and hence serve according to the pleasure of the public. Not surprisingly, they require a record of toughness on criminals in order to win re-election. Also, there are many indications that elected appellate judges generally are of a lesser quality than their appointed counterparts in other states. Newton even claims that these elected judges do not carefully consider the complexities of each specific death penalty case. As evidence, Newton argues that "[e]specially during the past few years...the Texas Court of Criminal Appeals has refused to publish most of its decisions in death penalty cases, including many cases that discuss important issues of first impression. Often these opinions take positions entirely inconsistent with prior decisions by the court and fail to mention the conflict. Generally speaking, there is a hit-and-mostly-miss quality in the Court of Criminal Appeals' death penalty decisions. Only a few judges during the past decade have been capable of or willing to write thoughtful, scholarly decisions, whether granting or denying relief." Additionally, Newton notes that these judges tend to dismiss habeas corpus appeals even in cases where there appears to be glaring unanswered questions about the defendant's guilt.

2. Texas does not have a public defender system for indigent defendants, and instead relies upon court-appointed lawyers who likely do not have experience in capital murder defenses or appeals. Newton notes that incompetent defenses in capital murder cases are legion in Texas, and that, even in a death penalty appeal, bad lawyering is hard to prove. One decision, which turned down a defendant's habeas appeal due to bad lawyering, concluded that "[t]he Constitution does not say that the lawyer has to be awake" during trial proceedings. Furthermore, Texas was not obliged to provide lawyers free of charge to post-conviction habeas appeals until September 1, 1995, and the amount the state is willing to pay lawyers for these appeals is sufficiently low that most defendants still do not receive counsel for their appeals.

3. Until the early 1990s, Texas did not permit jurors to adequately consider mitigating evidence in the sentencing phase of a trial. Thus, there are a number of people currently on death row that may well not be there had information about their mental illness or youth been weighed.

In addition, some other features of the Texas judicial system streamline the process between conviction and execution for death row inmates.

Texas gives the bulk of clemency power to its Board of Pardons and Paroles and not to the governor. Indeed, the Board must vote to recommend commutation in order for the governor to grant clemency. Stephen E. Silverman examined the impact of this procedure on the frequency of executions. In a law review note, entitled "There is Nothing Certain Like Death in Texas: State Executive Clemency Boards Turn a Deaf Ear to Death Inmates' Last Appeals,"[2] Silverman argues that the Supreme Court appears to affirm the constitutionality of curtailing repeated habeas appeals in part because of the existence of executive clemency. However, the Governor of Texas' inability to grant clemency himself is an unconsidered loophole in the procedural safeguards that the Court cited in its argument. In other words, Texas--as well as eleven other states--can execute inmates who might have been granted executive clemency had the governor had the power to do so. Silverman thus concludes that "[t]he assertion by three Justices of the United States Supreme Court that state clemency procedures adequately protect against executing those later able to make convincing claims of innocence may not be accurate. Even though only twelve states that provide for the death penalty require some sort of panel decision to grant clemency, these tend to be states with the most aggressively enforced capital murder laws. The dilution of responsibility that operates as a consequence of giving no single person the power to commute a death sentence could tend to reduce the chances for the condemned to have an opportunity to have his clemency appeal receive meaningful consideration."

Moreover, Jordan Steiker, of the University of Texas Law School, notes that execution dates in Texas are set by the trial judge, not by the governor, thus removing an informal power of clemency. The governor is unable simply to not assign an execution date. Many governors in other states have that power.

More generally, Steiker points out that Texas, unlike many other states, has worked out the statutory and procedural "kinks" in death penalty cases and appeals. In particular, Texas' 1995 law expediting state appeals has successfully cut down the time between conviction and execution.[3] He argues that Texas doesn't sentence more people to death than a number of other states, but it executes a higher percentage because many other states' procedures have not been fully tested and affirmed. Steiker believes that other states will soon catch up with Texas' execution rate. Indeed, Virginia came relatively close to matching Texas' rate in 1998: Texas executed 20 individuals, and Virginia executed 13.

Finally, it bears noting that the 5th Circuit of the Federal Court of Appeals is strongly pro-death penalty, and hence places extremely few roadblocks to executions in the states over which it has jurisdiction. In comparing the Fifth Circuit with the neighboring Ninth Circuit (which has jurisdiction over California and other Western states), Michael Sharlot, dean of the University of Texas Law School, states that "The Fifth Circuit is a much more conservative circuit. It is more deferential to the popular will."[4]

Some have speculated that the Texas execution rate also reflects a heritage of frontier justice coupled with modern urban crime.

However, James W. Marquart, Sheldon Ekland-Olson, and Jonathan R. Sorensen offer a more complex thesis. In their book, The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990,[5] they argue that Texas' execution rate reflects the Southern "cultural tradition of exclusion," and that "[s]uch exclusion was a basic element of the legacy of slavery."

In other words, the South has a cultural tradition of dehumanizing certain groups of people, which has made it easier for Southerners to separate themselves from those who do not adhere to the normal social (and in this case, legal) code. The authors argue that this cultural tendency accounts for the fact that, in 1992, "the states in the former Confederacy accounted for approximately 90 percent of the total executions in the first two decades following Furman [v. Georgia]."[6] The authors argue that Texas provides the clearest case study to help explain this larger Southern phenomenon.

One way they show how Texas' current execution rate continues certain social norms of the former Confederacy is by exploring the historical relationship between state-sanctioned executions and illegal lynchings. Lynching, in their interpretation, did not represent justice but rather the clearest way to exclude someone (or, implicitly, a whole group) from society. A member of a society who breaks the law experiences the force of justice; the representative individual who is forcibly rejected by, or excluded from, society is lynched. Based on this understanding of lynching, their findings are compelling: there is a direct, inverse relationship between executions and lynchings over the course of the twentieth century. Executions simply replaced lynchings as the accepted way to sate the popular (white) need to "dehumanize" or "exclude" certain groups from normal society. If lynchings reminded white folk and black folk alike who was an "insider" and who was an "outsider"--who was "us" and who was "them"--then executions were implemented to serve the exact same purpose.

How could the coldly bureaucratic and legalistic execution serve the same socio-cultural purpose as the heated, violent and carnival-like lynching? The authors' argument is quite complex. The end of the Civil War undermined the disenfranchisement of blacks that had characterized the ante-bellum South. Lynchings had been a tool white Southerners used to combat their insecurity about the status of blacks. However, white insecurity diminished as the Southern states enforced segregation and so it was only natural that "local mobs gave way to centralized state-sanctioned executions." The authors thus claim that lynchings in Texas (and across the South) declined in the early twentieth century because "the enactment of Jim Crow and related disenfranchising legislation, buttressed by the Supreme Court's Plessy v. Ferguson decision in 1896," codified and enforced the social and cultural demands that had often culminated in lynchings.

Of course, Texas now executes a far wider racial and ethnic mix of individuals than African-Americans. How, then, could it be that Texans and Southerners in general continue to approach society in such a provincial and exclusivist way? Indeed, the authors recognize that we can no longer simply regard the Southern predisposition toward the death penalty as a continuation of the ideals of the Confederacy. The authors claim that the shift to state-sanctioned executions and away from lynchings now also reflect the success of the civil rights movement to "redefine the boundaries of 'place' in a more inclusive fashion." Thus, the authors conclude, Texas' support for state-sanctioned executions both reflects the continuing legacy of slavery on cultural beliefs, as well as the transformation of Southern cultural beliefs due to the civil rights movement. They portray this paradoxical development in the following way: Texas (and Southern states generally) still executes a lot of people, but there now is a greater regard for the defendant's rights. They argue that "this broader attention to the protection of rights, along with the associated hesitancy to exclude individuals from the life-protecting boundaries of the community, are specifically evidenced in the three trends [of] in the post-Furman years: decreased sentencing disparities, narrowed locus of discrimination, and lengthened time from conviction to execution."

Texas' current execution policy, then, reflects the continued struggle between the Old and New South. And, needless to say, that cultural struggle will continue for the foreseeable future.

Ned Walpin is research associate for FRONTLINE ONLINE.

[1]Texas Lawyer, February 26, 1996.

[2]37 Ariz. L. Rev. 375

[3]This law sets significant time constraints on applications of habeas appeals, and it limits the number of appeals a defendant can make.

[4]As quoted in Robert Bryce, "Why Texas is Execution Capital," The Christian Science Monitor, December 14, 1998.

[5]Austin: University of Texas Press, 1998. The percentage declines slightly when one tallies all executions from 1976-Jan 1999.

[6]Emphasis added.