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Texas Execution

The vast majority of people on death row are men, even though men are a tad less than half the population.  Few people get exercised about that because with sex, unlike race, most of us recognize that the general population is an irrelevant denominator.  Female murderers are a much smaller group than male murderers, and even among murderers fewer women commit the especially heinous kinds of homicide that warrant the death penalty.  Few, but not zero. AP reports on last night's execution in Texas:

McCarthy, 52, was executed for the 1997 robbery, beating and fatal stabbing of retired college psychology professor Dorothy Booth. Booth had agreed to give McCarthy a cup of sugar before she was attacked with a butcher knife and candelabra at her home in Lancaster, about 15 miles south of Dallas. Authorities say McCarthy cut off Booth's finger to remove her wedding ring.

It was among three slayings linked to McCarthy, a former nursing home therapist who became addicted to crack cocaine.
Yes, three killings including an exceptionally treacherous and grisly one qualifies as deserving the maximum punishment.  Then there is this:

Texas has carried out nearly 40 percent of the more than 1,300 executions in the U.S. since the Supreme Court allowed capital punishment to resume in 1976. The state's standing stems from its size as the nation's second-most populous state as well as its tradition of tough justice for killers.
Not quite.
The size of the state is quite obviously a primary factor.  The four largest states in the country all have death penalty statutes on the books.  However, number one's is on hold for a combination of reasons, number three's has been completely negated by an appalling misuse of judicial authority, and number four's* is functional but hardly a model of efficiency.  So Texas is larger by far than any other state with a fully functioning death penalty.

What about that "tradition of tough justice"?  When I ran the numbers a few years back, I was surprised to find that Texas does not sentence a high proportion of its murderers to death.  Its ratio was actually about average for states with the death penalty.

Texas's large percentage of the total executions carried out is primarily a function of two factors:  the size of the state and the more frequent carrying out of the sentences imposed.  The number does not represent any problem with Texas.  It represents a serious problem in the other states.

*Three and four as of the Census Bureau's most recent estimate.  Florida is gaining on New York and may have already passed it.


Kent, please, no fair citing actual facts. You must be some kind of compassionless Neanderthal.

Bill -

(1) All of us white folk have about 4% Neanderthal DNA, so we are all part caveman - plus as my anthropologist wife always says, Neanderthals were a lot smarter than we give them credit for.

(2) I remember reading somewhere in one of David Dows books (yes, I like to be up to speed on both sides of the issue) that him and his cohorts figured out, the trick to avoiding the death penalty in Texas is at the penalty phase, as the rules for imposing the death penalty are pretty strict, but once it is imposed, it will be carried out at a much higher rate.

I have a few ideas (which personally I think are great) for speeding up the death penalty in California (assuming we ever "figure" out a lethal injection protocol) but I won't make this post too long (and self congratulatory)

Fire away with your ideas, Matthew.

Before I ramble, I am coming at this from a perspective that we (being us Californiana) need to have an effective death penalty (for a bunch of reasons I think most of us agree on), but I personally am not specifically wedded that one convict over the other should be executed (as to those on death row). So here we go:

1) The delay seems to be in the appeals process. It appears beyond the standard direct appeals, most of the collateral attacks are some variation on retardness, ineffective counsel, and some sort of racial bias. Perhaps "actual innocence" is a 4th.

Instead of having all the collateral claims adjudicated at some later date 15 years later, we can really address these right after trial - a) every person convicted of capital crime is immediately evaluated for retardness, however that is done - this should forever resolve this issue b) For ineffective counsel, create an impeccable record of the trial, videotapes, etc...make it a direct appeal issue, appeallate court doesn't have to read about it, they can watch it - picture worth a thousand words c) racial bias on jury - this is probably a controversial one, but sort of like in a court martial an enlisted guy gets 3 enlisted guys on the panel, let the defendat have 3 of his race on the jury -

Point of all this is to address the obvious issues right off the bat, in fact it should be mandatory - therefore no crying about procedural default

2) I do primarily bankruptcy law in my day job - we have a special court for this. We can move a complicated corporate bankruptcy in and out in about a year or so. While, some might argue bankruptcy court is too pro debtor (Zwyicki) or too pro creditor (Warren) the reality is we have judges who are very familar with law and the real life situations and there is very little complaints on both sides of the bar about the fairness.

So we need a special criminal appeals court - it makes things faster, has more competent judges (avoid having someone like me adjudicating unreasonable search) - FYI - the Ninth Circuit produces screwy bankruptcy opinions just like criminal law too.

3) I don't anyone is going to like this - we need a fresh death penalty start. The current system is too broken. I'd clear death row of basically anyone who has been on death row over 25 years (or some similar period) and focus on getting it right on a going forward basis. Some of the victims families might not like this, but I think it would serve the greater good, and focus our resources on making the system work in the future and not trying to deal with all the mistakes of the past.

That is it. I brace for the criticism.

1) I once proposed we have a motion for new trial, with a new attorney appointed to make it, in the trial court shortly after the trial. I wasn't able to sell it even to prosecutors. A close equivalent is to have the habeas proceeding in the trial court shortly after trial without waiting for the direct appeal. In California, bills to do that have been killed in committee repeatedly over the years, but an initiative is a possibility.

2) Like the Texas Court of Criminal Appeals? Justice Stanley Mosk proposed that years ago, although he was a bit sheepish about proposing that California imitate Texas. In retrospect, we probably should have supported the idea when we had a governor who would appoint good judges to that court. Creating it at present would be a disaster.

3) No way. Should we abandon justice in, for example, the 15 cases that have already completed all the appeals and state and federal habeas and are only waiting for the lethal injection to be straightened out? "Mistakes of the past" seems to assume that the problems are flawed trials. In fact, the vast majority the cases were tried correctly and are affirmed when decided correctly. The problems are in the review process, not the trial process, and abandoning the existing cases would not help.

Since we roughly agree on #1 - regarding #2, I think it could be created as part of larger initiative to improve court efficiency across the board - so the Cal Court of Crim Appeals (it would need a different name for marketing purposes) would be created along with some sort of court of last resort for family law (or probate or whatever). And that bill should force ECF style filing for all courts within 1-year of passage (off topic point).

3) I don't look at it as abandoning justice - we are already doing that by creating a backlog where offenders convicted now won't get executed for 25 + years. Abandoning the old cases would allow the resources to be applied to the new cases, at least that is my point - I don't think you want to do it the other way around.

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