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Texas v. Karla Faye Tucker (page 4)

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VII.

CLAIMS FOR RELIEF

Claim for Relief Number One

EXECUTION OF APPLICANT AFTER REVIEW UNDER CURRENT TEXAS CLEMENCY PROCEDURES WOULD VIOLATE HER RIGHTS TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 19 OF THE TEXAS CONSTITUTION, AND HENCE VIOLATE THE EIGHTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE I, SECTION 13 AND ARTICLE IV, SECTION 11 OF THE TEXAS CONSTITUTION.

The Court of Criminal Appeals has the "power, duty and responsibility to assure that due process and due course [of law] requirements are met" by the Executive Department in the area of death penalty clemency and commutation. Ex parte Gary Graham, 853 S.W.2d 565, 567 (Tex. Crim. App. 1993) (Clinton, J., statement concurring in order) (referring to Herrera).

"Due Process requires an especially high level of reliability in the mechanisms leading to a death sentence." Ex parte Elizondo, 947 S.W.2d 202, 204 (Tex. Crim. App. 1996) (quoting Beck v. Alabama, 447 U.S. 625, 637-38 (1980)). A death row inmate has strong liberty and life interests in not being executed by the State, interests which can only be deprived with due process of law. Evitts v. Lucey, 469 U.S. 387, 393 (1985) (relied upon by the Sixth Circuit Court of Appeals in Woodard v. Ohio Adult Parole Authority, 107 F.3d 1178, 1185 (6th Cir. 1997), cert. granted, ___U.S. ___). The Constitution of the United States does not require a state to provide a death penalty clemency/commutation process. However, if a State chooses to make such provision, its clemency/commutation process must comply with the basic requirements of due process. Woodard, 107 F.3d at 1185-86 (citing Evitts, supra). This conclusion is "only rational," given the Supreme Court's recognition of the "integral part played by clemency in every state's death-penalty scheme." Id. at 1187. The requirements of due process at the clemency stage may be minimal, because of clemency's distance from the trial. Id. However, the clemency process in Texas, in theory and action, fails to comport with any reasonable concept of fair procedure.

If this court does not grant Applicant the relief she seeks, she will have essentially no hope of commutation of her sentence (no matter how strong her claim for mercy), because the Texas clemency/commutation procedure for capital inmates, as it is designed and in practice, cannot approach a reasonable level of reliability under any minimal standard of due process. At present, clemency for death row inmates does not exist in Texas. The Governor's stated policy regarding his commutation criteria, the death penalty clemency/commutation policies and procedures employed by the Board of Pardons and Paroles, and the Governors' and Board of Pardons and Paroles' death penalty clemency/commutation practice since the reinstatement of capital punishment in Texas violate substantive and procedural due process, as mandated by the Fourteenth Amendment to the Constitution of the United States and by Article I, Section 19 of the Texas Constitution.

Article IV, Section 11 of the Texas Constitution clearly contemplates a death penalty clemency/commutation process, as does Article 48.01 of the Code of Criminal Procedure. Under these provisions, the Board of Pardons and Paroles considers recommending to the Governor commutation of a death sentence to a sentence of life imprisonment upon receipt of a request from a majority of the trial officials of the court of conviction, or a written request from the convicted person setting forth all grounds upon which the application is based. Tex. Admin. Code Title 37 §§ 143.57 (1998). Upon recommendation from the Board, the Governor is allowed to grant a commutation of sentence. Tex. Const. art. IV, § 11; Tex. Code Crim. Proc. arts. 48.01 & 48.03 (1998); Tex. Admin. Code tit. 37 § 143.41 (b) (1998). The Texas Constitution requires the Board to keep and provide records of its actions and the reasons for its actions. Tex. Const. art. IV § 11. The Administrative Code requires that "no decision, vote, or final action by the board . . . be made during a closed meeting." Tex. Admin. Code tit. 37 § 143.43 (d) (1998). The Texas Government Code provides, generally, for rights to a hearing, assistance of counsel, transcription of the hearing, and cross-examination in contested cases before state agencies. Tex. Government Code §§ 2001.051; 2001.053(a); 2001.059(a); 2001.087 (1998). Since Furman, the Board of Pardons and Paroles has held one live clemency hearing, in the case of Johnny Frank Garrett (1992).

1. The Governor's policy is not in accord with substantive or procedural due process because it provides no procedure at all for a large category of cases involving fundamental miscarriage of justice, including Applicant's case.

Governor George Bush has publicly announced an extra-statutory clemency policy focussing on two exclusive issues: whether the inmate's case has cleared the court system and whether there is any question regarding guilt for the offense. Referring to Applicant's case in particular, Bush's spokesperson Karen Hughes announced:

The case will be reviewed to determine whether there is any doubt about the defendant's guilt and whether the defendant has had "fair access to the courts on all outstanding legal issues."

Stephanie Asin and Kathy Walt, Execution of Tucker Scheduled for Feb. 3, Houston Chronicle, December 19, 1997, at A1. Hughes made clear that Governor Bush looks at no other issues in any death commutation/clemency case. Id. This stated policy is consistent with the practice of Texas Governors since the reinstatement of the death penalty in Texas following the Furman and Jurek decisions. See infra.

This policy violates substantive due process because it amounts to a refusal to provide any access to clemency, at all, as a "fail-safe" protection against miscarriage of justice. Herrera v. Collins, 506 U.S. 390, 407-08 (1993). The total lack of clemency in Texas, not only as represented in the Governor's explicit policy but in practice, abrogates the Fourteenth Amendment's guarantee of substantive due process of law because it "offends [a] principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Herrera, 506 U.S. at 407-08 (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)).

There can be no question that clemency has been and is a fundamental principle of justice in our society. "Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Id. at 411-12 (emphasis added). The clemency power can be traced back to the Eighth Century in England. Id. at 412. All thirty-eight states that currently authorize capital punishment make some provisions for clemency. Woodard, 107 F.3d at 1187. The Supreme Court regards clemency as the "`fail-safe' in our criminal justice system." Herrera, 506 U.S. at 415.

The Supreme Court's capital punishment jurisprudence depends, in fact, on Governors exercising their mercy prerogative. See Paul Whitlock Cobb, Jr., Reviving Mercy in the Structure of Capital Punishment, 99 Yale L. J. 389, 400 (1989). Clemency, like pardon, is "not a private act of grace from an individual happening to possess power[, but] . . . a part of the constitutional scheme." Biddle v. Perovich, 274 U.S. 480, 486 (1927) (Oliver Wendell Holmes) (emphasis added). The Gregg v. Georgia plurality maintained that clemency would have to be available to persons under sentence of death. Gregg, 428 U.S. at 199 n.50. Responding to the petitioner's argument that a death penalty system which allowed prosecutors, jurors, and governors discretion to exempt prisoners from punishment was capricious, the Court described clemency "as one of the discretionary practices the absence of which would create a system `totally alien to our notions of criminal justice.'" Id. (as cited in Cobb, supra, at 400). The Court noted that it would be unconstitutional to prohibit a President from exercising clemency. Id. In Herrera, the Supreme Court "explicitly relied upon [the Texas system] of executive clemency in denying habeas relief to a petitioner claiming `actual innocence.'" Woodard, 107 F.3d at 1187.

Applicant has interests in life and liberty attached to her prospective clemency review which will be deprived without procedural due process of law by the Governor's stated policy. Woodard, 107 F.3d at 1186 (citing Evitts v. Lucey, 469 U.S. 387 (1985)). The Constitution does not require that states provide clemency provisions any more than avenues for direct appeal, but once such provisions are made, they "must comply with the basic requirements of due process." Id. Such provisions offend the Due Process Clause, at the very least, if they amount to no more than a "meaningless ritual." Woodard, 107 F.3d at 1187-88 (citing Evitts, 469 U.S. at 394, and Douglas v. California, 372 U.S. at 358). The pursuit of clemency and commutation according to Governor Bush's stated policy amounts to no more than a meaningless ritual because, on its face, the policy expresses an unwillingness to correct miscarriages of justice (as well as trial errors) that have survived court review. This post-Furman policy of Governors and the Board to avoid questioning the judiciary is vastly at odds with pre-Furman Texas practice:

In some eighteen cases the governor cited his or her opinion that although the court had found otherwise, there appeared to have been a lack of premeditation on the part of the offender. . . . In another six, the governor made reference to a simple "miscarriage of justice" . . . . The largest single category of commutation rationales over these five decades (some thirty cases) had to do with trial-related issues -- questions about the evidence, confessions, and accomplices.

Marquart, supra, at 102-03. There is, therefore, every indication that Governor Bush's policy will prevent him and the Board from addressing the fairness of Applicant's trial in relation to the competence of her counsel and her sentencing jury instructions. It will also prevent the Governor from addressing any substantive issues if the Court of Criminal Appeals finds that Applicant has not met the requirements of Section 5 (a), Texas Code of Criminal Procedure Article 11.071. Most importantly, it would appear that, since her Eighth Amendment claims do not comprise an issue of "actual innocence" of the offense itself, the Governor's policy would not allow him or the Board to recognize the clear fact that her execution would constitute a "miscarriage of justice" due to her present lack of death-eligibility under the constitution. See Evans v. Muncy, 498 U.S. 927 (1990) (Marshall, J., dissenting) and Sawyer v. Whitley, 505 U.S. 333 (1992) (defining execution of one who is ineligible for the death penalty as a "miscarriage of justice").

2. The policy and practice of the Board of Pardons and Paroles is not in accord with procedural due process because it provides no protection against wholly arbitrary decisionmaking.

The Chairman of the Board of Pardons and Paroles, Victor Rodriguez, has declared that the Board of Pardons and Paroles members have no guidelines stipulating factors that must be used in reviewing clemency requests. "Each board member decides individually on what basis to recommend or deny action." Stephanie Asin and Kathy Walt, Execution of Tucker Scheduled for Feb. 3, Houston Chronicle, December 19, 1997, at A1. This is also clear in that Tex. Admin. Code tit. 37 § 143.57 (1998) contains no list of objective factors from which to gauge whether the Board should recommend a commutation to the Governor. In this respect, then, the Board's failure to delineate objective factors and establish guidelines violates Article IV, Section 11 of the Texas Constitution.

It would appear, also, that the Board members usually do not meet the person upon whose life they are voting, that the Board members usually do not meet as a group before making their decisions, and that they vote, not upon meeting as a group, but by faxing, calling or mailing in their votes to the Austin office of the Board. These facts are not only common knowledge, but also confirmed by a representative of the Board of Pardons and Paroles. The impenetrability of the Board members' reasons for their clemency decisions probably violates the Texas Constitution. Tex. Const. art. IV §11. In fact, as reflected by attached Exhibit 27, it appears that at least one board member does not even review the clemency/commutation requests in capital cases and that reasons for rejection are not proffered. This apparently anarchic, standardless manner of clemency review violates due process under the federal and Texas constitutions, resembling as it does a game of chance.

Last year (1997), the Board received sixteen (16) applications for clemency/commutation in capital cases. Given the voting structure, as stated, the uniformity of voting results in these cases is surprising. Not one Board member voted for commutation in any of the sixteen cases in 1997. See attached Exhibit 28 (statistics showing the vote of each Board member in each of the sixteen commutations). In six out of the sixteen cases, some of the members of the eighteen Board members did not even vote. One of the members regularly abstains from voting. No open meetings or hearings were held in any case. The unanimous voting suggests an all-or-nothing policy, perhaps allowing commutation only on a consensus, which would also be unconscionably arbitrary.

The unanimous, negative results (no votes) are shocking in view of the character of some of the cases that were before the Board.

Robert Madden presented an affidavit by his court-appointed trial attorney explaining that he (the attorney) had been burdened by circumstances amounting to an actual conflict of interest while representing Madden at trial. The attorney admitted that he had failed to disclose to Madden or the trial court that he had previously represented the State's key witness in another matter. He additionally stated that the conflict of interest prevented him from investigating the witness and from conducting effective cross-examination which, in light of the evidence, might have created a reasonable doubt about Madden's guilt by raising concern about the witness as an alternative suspect. The Governor refused a reprieve for a hearing on these issues and execution competency, even though three Judges of the Court of Criminal Appeals dissented from denial of review of Madden's successor writ.

Terry Washington sought relief on the ground that his court-appointed lawyer had failed to investigate or present to his sentencing jury any information about his mental disabilities. All courts and experts agreed that Washington had mental retardation (with IQ scores between 58 and 69) and that he suffered from organic brain damage.

David Spence presented evidence of actual innocence. His codefendant, Muneer Deeb, had been acquitted on retrial. Material was produced calling into question inherently untrustworthy inmate testimony and suspect forensic odontology procedures that led to Spence's conviction, along with newly discovered evidence that identified another person as a more likely suspect in the offense. Spence's execution prompted strong critical comment in the national press.

These examples, all unanimously voted against, illustrate that the Board's lack of guidelines and secretiveness may have created the conditions for unconstitutional denial of "fail-safe" relief against errors involving fundamental constitutional rights or serious matters of national moral consensus. The anarchic voting policy reveals the presence of one strain of arbitrariness in the process. The actual voting record suggests another: that the members of the Board simply do not exercise their discretion and treat all applicants alike as deserving of a mandatory penalty. This is constitutionally unacceptable.

3. The undeviating post-Furman practice of commutation based upon judicial expediency alone violates Applicant's and others' rights to due process by hinging the only possibility of clemency on the whim of local officials.

Every post-Furman death commutation granted in Texas was sought by the State trial officers (judge, prosecutor, and/or sheriff) based on a policy of judicial expediency: a decision to commute in order to avoid the costs of retrial. Michael Radelet and Barbara Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 U. Richmond L. Rev. 289, 299 (Table 2) (1993) (attached Exhibit 17) (demonstrating that all 36 post-Furman Texas commutations have been for reason of "judicial expediency"); see id. at 294-95 (list of all Texas death commutations); see also Exhibit 18 (Letter of Bret Hornsby, Supervisor IV, Executive Clemency Section, Texas Board of Pardons and Paroles, to Walter Long, dated October 29, 1997); Exhibit 19 (Chart of Circumstances and Reasons Tied to Disposition of All Post-Furman Commutations); and Exhibit 20 (commutation orders). In their commutations granted out of "judicial expediency," the Texas Board and Governors have remitted the death penalty because "courts [have] vacated, or [are] likely to vacate, the death sentence" and they have acceded to the prosecution's request to avoid retrial. Radelet and Zsembik, supra, at 293; see Whan v. State, 485 S.W.2d 275, 277 (Tex. Crim. App. 1972) (explaining how commutation allows the judgment of guilt to stand).

The Board and Governors have reacted quickly to prosecutors' requests, enabling convictions to stand following reversal and preventing the courts from ordering retrial of the defendants. When federal courts reversed sentences and remanded, prosecutors were courteous enough, at times, to directly entreat the Court of Criminal Appeals to cease activity until they were able to secure commutation. For example, Arthur C. (Cappy) Eads, District Attorney of Bell and Lampasas Counties, made written request that the Court desist in the reversed cases of John Charles Shippy and Bernard Ferguson. In each case, he stated:

Please be advised that I am recommending to the Board of Pardons and Paroles that the sentence of death . . . be commuted to Life Imprisonment. The United States District Court . . . reversed the death sentence. . . . I would appreciate your giving the Board of Pardons and Paroles an opportunity to act upon my request for commutation of sentence before this case is reconsidered by the Court of Criminal Appeals.

Letters, Arthur C. (Cappy) Eads to Roy Rawls, Court Administrator, Texas Court of Criminal Appeals, dated November 2, 1983 (Shippy), and October 15, 1982 (Ferguson). This policy has taken advantage of the fact that, under Texas law, commutation may be granted against the defendant's wishes. It prevented a factually innocent man, Randall Dale Adams, from leaving death row for years after his sentence was vacated by the United States Supreme Court on Witherspoon grounds. See Adams v. State, 624 S.W.2d 568 (Tex. Crim. App. 1981) (withdrawing "prior opinions on remand from the Supreme Court, recognizing the Governor's executive order of commutation, and announcing "there is now no error in the case," affirming the conviction).

In contrast, even though Texas has executed far more persons than any other state and Texas law allows clemency on any ground (given the absence of objective factors or guidelines), no post-Furman Texas commutations have been granted for "humanitarian reasons": the traditional grounds for commutation (mercy, doubts about guilt, mental illness or capacity issues, equity, rehabilitation, and other issues). See Radelet and Zsembik, supra, at 300 (defining humanitarian grounds and giving examples from other states). Nine other states have granted post-Furman commutations on humanitarian grounds. Id. at 299-300 & Table 2 (attached Exhibit 17). Texas Governors, on the other hand, have allowed executions to occur in situations that, more likely than not, would have prompted action on the part of Governors or Boards in other states in order to prevent miscarriage of justice and to protect the fundamental fairness of the system. In addition to cases mentioned above, there are the following:

Jesse Jacobs (Clemency based on Equity and Innocence Denied). The case of Jesse Jacobs forcefully evokes the issue of miscarriage of justice in relation to the issues of doubt about guilt and equity. Jacobs was executed in January 1995 after Governor Ann Richards refused to intervene. See, e.g., Editorial, A Deadly Blow to Justice, St. Petersburg Times, January 6, 1995, at 20A. Prosecutors obtained the death sentence against Jacobs on the theory that he kidnapped and shot a woman at the behest of his sister. Id. The same prosecutors came to believe Jacobs' claim that his sister, Bobbie Jean Hogan, committed the shooting. "The same [prosecutorial] team that convicted Jacobs tried Hogan and convicted her, telling the second jury that Jacobs hadn't committed the act that sent him to death row." Id. Hogan was found guilty of involuntary manslaughter and sentenced to ten years in prison. Id. Governor Richards refused Jacobs' commutation request, even though the State publicly acknowledged he was innocent of the offense for which he was convicted and his co-defendant sister had received such a comparably small punishment. Id. By 1993, a total of nine commutations had been granted in other states for doubts about guilt and another five for reasons of equity (when an equally or more culpable codefendant was not sentenced to death). Radelet and Zsembik, supra, at 299-302.

Mario Marquez (Clemency based upon Mental Retardation Denied). Mario Marquez was executed early in 1995, despite having demonstrated mental retardation and other mental disabilities, which his jury was not able to consider in mitigation, in his clemency/reprieve petition. The State district attorney, in fact, conceded in his recommended findings of fact in state habeas proceedings that Marquez was mentally retarded, severely brain damaged, and severely abused as a child. These conditions (and additional facts calling for mercy) would have exempted Marquez, who had I.Q. testing results of 62 (at nine years old) and 66 (testing by State doctors prior to trial), from the death penalty in a sizeable number of death penalty states (under statutes forbidding execution for persons with an I.Q. of 70 or less) and would have likely ensued in commutation. See Radelet and Zsembik, supra, at 301, 306-14 (documenting seven cases from Florida and Ohio in which I.Q. played a dominant role in clemency relief). Commutation would have been supported by a majority of Texans.

Billy White (Clemency based upon Mental Retardation Denied). White was denied a reprieve and commutation and was executed in 1992, despite having presented the Governor with evidence of his mental retardation (IQ tests of 66 [result in 1992] and 69 [result in 1966]).

Leonel Herrera (Clemency based upon Actual Innocence Denied). Herrera was executed in 1993 after being denied a reprieve and commutation of sentence. The inmate for whom the Supreme Court maintained clemency was a "fail-safe," died without a hearing.

Johnny Frank Garrett (Clemency based upon Mental Illness Denied). Governor Ann Richards granted Garrett a reprieve, and the Board of Pardons and Paroles held the only public clemency/commutation hearing it has given a capital inmate. Texas Executes Killer of a Nun, New York Times, February 12, 1992, at A22. After the hearing, the Board voted 17-0, with one abstention, not to commute the sentence, despite the fact that Garrett may not have qualified as death-eligible under Ford. See Ex parte Garrett, 831 S.W.2d 304, 304, 307 (Clinton, J., dissenting) (pointing out that Garrett had alleged facts that supported the finding that he was ineligible for the death penalty under the standard announced in Ford by Justice Powell, and urging that the Court of Criminal Appeals should have addressed his death-eligibility in order to clarify for its own jurisprudence what the constitutional standard should be).

David Spence (Clemency based upon Actual Innocence and Equity Denied). David Spence was executed in 1997 after being denied any hearing in the courts or before the Board of Pardons and Paroles on his claim of "actual innocence." Spence raised troubling issues: his codefendant, Muneer Deeb, was acquitted in a retrial in 1993. Evidence was presented calling into question inherently untrustworthy inmate testimony and suspect forensic odontology procedures that led to Spence's conviction, along with newly discovered evidence that identified another person as a more likely suspect in the offense.

Robert Drew (Clemency based upon Actual Innocence and Equity Denied). Robert Drew was executed in 1994 after being denied any hearing in the courts or before the Board of Pardons and Paroles on his claim of "actual innocence," after years of attempting to have his newly available evidence of innocence heard. The only other person who could have known who killed the victim in the case, Drew's codefendant Mike Puralewski, pleaded the Fifth Amendment at Drew's trial and subsequently pleaded guilty in exchange for a sixty-year sentence. After Drew's trial, it came to light that Puralewski had confided in two cellmates that he alone had committed the offense and that, although Drew was present, Drew did not participate in the offense nor have any chance to anticipate its occurrence. Puralewski signed an affidavit affirming these points. Subsequent to trial, the pretrial police statement made by the only "eye-witness" to the offense, Bee Landrum, was revealed, showing that Landrum first told the police that he could not see the events involving the offense.

Drew's motion for new trial based upon this evidence was filed 71 days late. Drew v. State, 743 S.W.2d 207, 222 (Tex. Crim. App. 1987). He attempted in all subsequent litigation to obtain a hearing, and was denied all the way through his final successor state writ, in which four Judge's dissented to denial of the stay of execution and hearing (Judges Clinton, Baird, Overstreet, and Maloney).

4. The undeviating post-Furman practice of commutation based upon judicial expediency alone violates Applicant's and others' rights to due process because it prevents any review of cases involving miscarriage of justice, including cases involving rehabilitation, which are afforded review and relief in other death penalty states.

The Supreme Court in Herrera v. Collins described the clemency process as a fail-safe for capital inmates. Governor James Wilder, however, failed to commute Wilbert Evans' sentence. See Stuart Taylor, Jr., We Will Kill You Anyway, The American Lawyer, December 1990, at 55. The only constitutional protection Wilbert Evans received was the opportunity to read Justice Marshall's scathing dissent, after which he requested that it be buried with him. Id. at 55-56.

Evans' execution apparently caused some public reaction. Subsequently, two Virginia Governors have commuted at least two death sentences based, at least in part, upon the inmate's rehabilitation. Governor Wilder himself commuted the sentence of John Giarratano a year after Evans was executed. See David A. Kaplan and Bob Cohn, Pardon Me, Governor Wilder, Newsweek, March 4, 1991, at 56 (characterizing Giarratano's story as one of "rehabilitation, salvation, and the kindness of strangers" and describing Giarratano's development into a jailhouse lawyer); but see Michael Radelet and Barbara Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 U. Richmond L. Rev. 289, 308 (1993) (demonstrating that doubts about guilt also played a role). A few months ago, Governor George Allen commuted the death sentence of William Ira Saunders purely on the basis of Saunders' rehabilitation.

William Ira Saunders --- Commuted because of Rehabilitation (Virginia)

William Saunders' trial judge (who had sentenced him at a bench trial) sought commutation, specifically and only because Saunders' behavior over the seven years of his imprisonment on death row showed he no longer posed a continuing threat. Death Sentence Commuted, Washington Post, September 16, 1997, at B03. See Attached Exhibit 21. Danville Circuit Judge James F. Ingram wrote Governor Allen that it would be in "the best interest of justice" for Saunder's death sentence to be commuted, because "Saunders [was] not the same violent man sentenced to death seven years ago." Id (emphasis added); Justin M. Norton, Virginia Governor Commutes Death Sentence; Colorado Governor Denies Clemency, Associated Press Release, September 15, 1997. The facts of Saunders' robbery/murder offense are no less heinous than Applicant's facts. After the Evans debacle, it appears that the Virginia commutation process has swung into gear to protect the constitutional rights of persons in Applicant's circumstances.

William Neal Moore --- Commuted because of Rehabilitation (Georgia)

Rehabilitation also was the key if not sole factor in the Georgia Board of Pardons and Paroles' decision to commute the sentence of William Neal Moore in 1990. Radelet and Zsembik, supra, at 303 (describing Moore's case as the "only [post-Furman] case in which [rehabilitation] was given as the sole or most important reason" in a commutation decision); Editorial, When Mercy Becomes Mandatory, Atlanta Constitution, August 16, 1990, at A10; attached Exhibit 22. The circumstances of Moore's offense are very similar to Applicant's offense in that both crimes were committed by intoxicated defendants robbing and murdering the victims following illegal nocturnal entry into the victims' homes. Testifying coconspirators are present in both cases. The words of Moore himself reveal a comparably depraved offense cooked up in a similarly inebriated state:

[George Curtis, nephew of victim Fredger Singleton, and I] planned this, he wanted to burn his uncle up, he would get [Singleton's] money and burn him up in the house, and we went over there and Curtis got scared after he went into the house, that was the first time, we was drinking, we had been drunk . . . we went over to the house, we went to the back door, and we got in between one of the bedrooms and the front room, there was a locked door, we left and went back over to Curtis' house. Curtis, he left and I went back over there . . . .

Moore v. State, 213 S.E.2d 829, 830-31 (Ga. 1975). Moore reentered Stapleton's home through a bedroom window. Id. Stapleton surprised him, firing a shotgun at him. Whereupon Moore unloaded his .38 caliber pistol at Stapleton, killing him. Id. Moore removed two billfolds from Stapleton's pocket, took Stapleton's shotgun, and left. Id. He removed $5,700.00 from Stapleton's wallets, burned the wallets, and disposed of the shotgun. Id. Moore claimed that, when Stapleton shot at him, hitting him in the leg, it scared him and made him fire in return, and he asked for mercy from the court. Id.

The Georgia Board of Pardons and Paroles noted that it was "very much impressed" that family members of the victim also asked for clemency. Morris, supra. Undoubtedly, the Board considered as dispositive of its clemency decision the following facts and opinions, conveyed in an Atlanta Constitution editorial:

To say that Billy Moore has been a model prisoner during his 16 years on death row is to be guilty of extreme understatement. He was baptized soon after incarceration and has since helped convert others. He is thus not merely an example of the ability of the Georgia prison system to rehabilitate criminals but an agent of the rehabilitation of others. He has corresponded with his victim's family and won their forgiveness and love. He has managed, at long distance, to be a good father to his son. In the eyes of many, he is a saintly figure.

Letters asking that he not be executed have come from ministers, former officers and enlisted men who knew him from the Army, elected officials in Jefferson County and relatives of the man he killed. These are not people opposed to the death penalty, but people who believe that Billy Moore is a man who has paid his debt to society and does not deserve to die.

It is precisely because the legal system can fail to take account of personal situations that American jurisprudence has always allowed for clemency.

The execution of Billy Moore would make this world a poorer place. It would be a mark of shame for the people of Georgia. The Board of Pardons and Paroles must not let it happen.

Editorial, When Mercy Becomes Mandatory, supra.

David Cameron Keith --- Commuted because of Rehabilitation (Montana)

On December 29, 1988, Montana Governor Ted Schwinden commuted the death sentence of David Cameron Keith following a recommendation from the Montana Pardons Board. Radelet and Zsembik, supra, at 311; U.P.I. Regional News Release, December 23, 1988 (attached Exhibit 23). The Board weighed evidence of religious rehabilitation into its 2-1 decision to advise the Governor to spare Keith's life. The Board also heard a statement from the son of the victim, who declared that he had always been opposed to Keith's execution. U.P.I. Release, supra. Additionally, police officers criticized their own behavior during the offense. Id. Keith killed one of two hostages he took after robbing a Missoula, Montana, drug store "in hopes of satisfying his drug-by-injection habit." Id. The facts of the offense were the following:

[Three hours after Keith robbed the pharmacy on January 11, 1984, his] vehicle was spotted by a police officer in the area of St. Ignatius [Montana]. . . . [L]aw enforcement personnel followed the vehicle as it traveled north on Highway 93 toward Polson.

Approximately four miles north of St. Ignatius the vehicle stopped at the Post Creek Store and defendant Keith exited the vehicle. Keith entered the store with a drawn gun and took William Crose, Jr., age 13, as his hostage by pointing a pistol at his head. While still inside the store, Keith was startled when a store clerk, Delores Coffman, moved for cover. Keith fired a shot in her direction but she was not struck. The bullet narrowly missed her head and was estimated to have missed by as little as four inches. Keith later indicated he did not wish to harm Coffman and testified the shot was merely a scare tactic.

Forcing [Crose] to accompany him, Keith left the Post Creek Store in a vehicle belonging to the boy's father. Keith again drove north on Highway 93 toward Polson. Somewhere south of Polson, law enforcement officials stopped Keith with a roadblock. Keith exited the vehicle and exchanged conversation with the law enforcement officials. Still holding his gun to the hostage's head, Keith indicated he would shoot his hostage if his demands were not met. Keith demanded that the officials supply him with an airplane, pilot and parachute. . . .

[Keith was allowed to proceed to the Polson airport, where a small craft was supplied to him and a] local pilot, Harry Lee Shryock, Jr. age 64, agreed to board the plane in exchange for the release of the young hostage. . . .

During the time that Shryock was attempting to start the plane, the law officers were able to view Keith on several occasions through the doorway of the plane. During these time periods, Keith was pointing his gun at Shryock. A deputy armed with a rifle was positioned some distance away and was observing Keith's movements through his rifle scope. The final time Keith was visible through the doorway it appeared that Keith was not pointing his gun at the pilot. Seizing this apparent opportunity, the deputy shot Keith. . . . Keith then fired a shot into Shryock's head resulting in his death.

Keith's initial pleadings indicated he alleged the shot which killed Shryock was fired as a reflex action and would not have occurred if he had not been shot himself. However, he has since changed that position and has entered a plea of guilty to deliberate homicide. . . . The District Court found that the killing was in execution style and that Keith thought he was dying and took Shryock's life "because he didn't want to go alone."

State v. Keith, 754 P.2d 474, 475-76 (Mt. 1988). Keith admitted in a written statement that "immediately after [being shot] I came to the conclusion that I was going to die, I didn't want to go alone so I fired my pistol into the back of the head of Mr. Harry Shryock." Id. at 476.

At the time of his clemency review, Keith's attorneys asked the Board to vote to spare his life, because he had become a Christian since his arrest and his life "might be put to good use if he's allowed to live and help counsel others with alcohol and drug abuse problems." U.P.I. Release, supra. One of the attorneys, George Best, argued, "If he only reached one [person with drug problems], wouldn't that be a value to society?" Id. Keith, himself, was reported by the press to have said that he did not want to die, but also believed the Scriptures required him to submit to the authorities and to pay his debt to society. Id.

5. The undeviating post-Furman practice of commutation based upon judicial expediency alone deviates significantly from pre-Furman practice of commutation in Texas which respected rehabilitation as a legitimate basis.

In the pre-Furman years Texas Governors commuted death sentences, many times, on the basis of rehabilitation. See James W. Marquart, Sheldon Ekland-Olson, & Jonathan R. Sorenson, The Rope, The Chair, and the Needle 100, 102, 107 (Univ. of Texas Press 1994). "In at least 10 cases sentences were commuted with the simple rationale that the offender had an otherwise good record or that he came from a family with a good reputation." Id. at 102. As in other states at the time, "posttrial testimonials about the offender's character" played a clear role in the death commutation decision. Id. at 107. Other states, as well, commuted death sentences on the basis of rehabilitation alone, one of the more notable cases being the 1963 commutation of Paul Crump by the Governor of Illinois. Pre-Furman Texas Governors also granted at least four clemency petitions based upon the defendant being intoxicated at the time of the offense and not in complete control of his faculties. Marquart, supra, at 102.

6. The combination of the Governor's stated policy, the Board's stated policy and practice, and the undeviating practice of commutation based upon judicial expediency alone reveal a system that affords no actual clemency process because there is no authority who will exercise the discretion required to make commutation decisions that will prevent miscarriage of justice.

Texas policy and practice perfectly incarnates the displaced responsibility noted by numerous commentators who have written about the disappearance of the exercise of executive discretion in the capital regimes of the past twenty years. See, e.g., Victoria J. Palacios, Faith in Fantasy: The Supreme Court's Reliance on Commutation to Ensure Justice in Death Penalty Cases, 49 Vand. L. Rev. 311 (1996); Carol S. Steiker and Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harvard L. Rev. 357, 411, 435 (1995); Hugo A. Bedau, The Decline of Executive Clemency in Capital Cases, 18 N.Y.U. Rev. L. & Soc. Change 255 (1990-91); Paul Whitlock Cobb, Jr., Reviving Mercy in the Structure of Capital Punishment, 99 Yale L. J. 389 (1989). Chief among the reasons proffered for clemency's disappearance is the perception that Governors have shifted the moral responsibility for executions onto Supreme Court justices. Steiker, supra, at 435. There is the apparent, concomitant executive misperception that "death sentences are now meted out by the trial courts with all the fairness that is humanly possible, even if in the dark pre-Furman past they were not." Id. (citing Bedau, supra, at 268). The Texas Board and Governors (not merely Governor George Bush) have adopted the tendency to defer all decisions to the courts as policy, except when court relief to a defendant (and concomitant retrial) is preventible. Displaced responsibility occurs systemically from the moment prosecutors exercise their discretion to try the case as a capital offense -- in part being bolstered by the fact that they can rely on the impersonal system -- to the point that executive decisionmakers refuse to touch a sentence that has made its way through both state and federal review. Id.

7. Conclusion: The Texas death penalty clemency/commutation process is a game of chance with loaded dice.

In the world of Texas death penalty clemency/commutation procedure, clemency is unavailable at the defendant's request and is otherwise used by prosecutors as a tool to prevent defendants from achieving more profound relief. The Court of Criminal Appeals should find the Texas death penalty clemency/commutation process unconstitutional and in violation of Texas, federal and international law, because clemency does not exist in Texas. Applicant would beseech the Court of Criminal Appeals to stay her execution so that the Court may determine how much process she is eligible to receive under due process and due course of law provisions. The Court of Criminal Appeals is the best forum for the resolution of this matter. See Woodard, 107 F.3d at 1188 (suggesting that the state courts are the better forum because of federalism concerns). In the alternative, or at the same time, Applicant requests that the Court of Criminal Appeals issue an order of mandamus directing the executive authorities to afford her a real opportunity for clemency, a hearing, and an otherwise fair process.

Claim for Relief Number Two

THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION FORBID THAT THE COURTS OR THE EXECUTIVE ALLOW THE EXECUTION OF APPLICANT BECAUSE HER COMPLETE REHABILITATION AS AN OFFENDER DEMONSTRATES THAT HER EXECUTION WOULD FAIL TO SERVE THE UNDERLYING GOALS OF THE CAPITAL SANCTION.

The United States Supreme Court has repeatedly held that "the protection of the Eighth Amendment does not end once a defendant has been validly convicted and sentenced." Herrera v. Collins, 506 U.S. 390, 430, 432 (1993) (Blackmun, J., dissenting, joined by Stevens, J., and Souter, J.) (citing Johnson v. Mississippi, 486 U.S. 578 (1988); Ford v. Wainwright, 477 U.S. 399 (1986)). The State of Texas may not constitutionally inflict the punishment of death upon Applicant. Such punishment would only be cruelly arbitrary, because it would serve neither of the recognized goals of the capital sanction.

Applicant's execution would violate the Eighth Amendment because no reasonable person could conclude that, in light of Applicant's total reformation of character, society's interest in deterrence and retribution outweigh any concomitant consideration of her rehabilitation. When a "sentence does not even purport to serve a rehabilitative function, the sentence must rest on a rational determination that the punished `criminal conduct is so atrocious that society's interest in deterrence and retribution wholly outweighs any considerations of reform or rehabilitation of the perpetrator.'" Harmelin v. Michigan, 501 U.S. 957, 1028 (1991) (Stevens, J., joined by Blackmun, J., dissenting) (emphasis added). The examination infra of public polling, statutes, declarations by religious organizations, executive commutations, and treaty law reveals that, despite the reinstatement of the death penalty in the states and widespread retributive sentiment, rehabilitation remains as prominent a punishment goal as retribution, and as deeply held public value as swift and certain punishment. Deterrence has faded as a punishment goal. Due to the fact that the standards of decency in American society, not excepting in the State of Texas, have evolved to the point, at present, where retribution and rehabilitation are valued equally, the execution of an authentically and completely reformed perpetrator would violate public morality and shock the conscience.

The U.S. Supreme Court has held that when the execution of an offender makes no "measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless infliction of pain and suffering," it must be barred as excessive under the Eighth Amendment. Coker v. Georgia, 433 U.S. 584, 592 (1977) (explaining the Court's holding in Gregg v. Georgia, supra). The Supreme Court has recognized retribution and deterrence as the principal goals to be achieved by the capital sanction, while also noting the role of incapacitation of the individual offender. Gregg v. Georgia, 428 U.S. at 183 & n.28; see also Tison v. Arizona, 481 U.S. 137, 148-49 (1987) ("The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender."); Enmund v. Florida, 458 U.S. 782, 798-99 (1982); Ford v. Wainwright, 477 U.S. 399, 407-410 (1986) (finding that neither deterrence nor retribution are served in the execution of the insane).

Although incapacitation clearly would be served as well by a life sentence, or parole, in Applicant's case, retribution might be conceded to have some residual value in relation to her execution, in view of the heinousness of the offense. The Eighth Amendment, however, requires infliction of punishment not only with a view to the offense but to the character of the offender. See e.g., Woodson v. North Carolina, 428 U.S. 280, 304 (1976). Applicant's status as a completely reformed offender does not serve society's interest in retribution. The retributive principle that organized society must be willing to inflict punishment on criminal offenders that they deserve is well challenged by the status of a completely reformed offender. See Gregg, 428 U.S. at 183 (quoting Furman, 408 U.S. at 308 (Stewart, J., concurring) in defining "retribution"). The consensus on the part of former prosecutors who worked with Applicant, jail and prison personnel, Applicant's family, mental health professionals, Applicant's attorneys and, indeed, everyone who knows or has had contact with her since her trial that she is no longer the same person who committed the offense radically challenges her present "desert." She could only be executed with an abstract view toward the unquestionable outrageousness of the crime, without consideration of her present moral status. The fact that someone, in society's view, may have "deserved" to die for the offense does not support the execution of Applicant if she truly is no longer the same moral entity alleged to have committed the offense. The public's continued strong support for the rehabilitative purpose of punishment demands, along with the retributive concern for proportionate punishment, "consideration" of Applicant's rehabilitation.

Over the course of this century, the United States Supreme Court's jurisprudence regarding rehabilitation and retribution as punishment goals has developed in tandem with the Court's perception of the status of the goals in the mind of the public. At the time of the zenith of corrections reform popularity, the Court held that rehabilitation and reformation had unseated retribution as the "dominant objective in the criminal law." Williams v. New York, 337 U.S. 241, 248 (1949). Consistent with all current scientific polling (see infra), the Court has always viewed retribution and rehabilitation as adversarial public punishment goals. See, e.g., Morrisette v. United States, 342 U.S. 246, 251 (1952) (speaking of the "tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution"). The Court has always refrained from announcing that either of the goals had replaced the other. See, e.g., Powell v. Texas, 392 U.S. 514, 530 (1968) (Justice Marshall commenting that the Court "has never held that anything in the Constitution requires that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects"); see also Massiah v. United States, 377 U.S. 201, 207 (1964) (White, J., dissenting) (noting the existence of a "profound dispute about whether we should punish, deter, rehabilitate or cure"); Furman v. Georgia, 408 U.S. 238, 414, 452 n.43 (1972) (Powell, J., dissenting, joined by Rehnquist, Burger, and Blackmun, JJ.) (listing these and additional cases). By merely viewing the punishment goals as vying for prominence, however, and giving retribution an almost preemptive role in its capital jurisprudence the Court has seriously underestimated and miscalculated public support for rehabilitation as a punishment alternative, even in the context of capital punishment. The reality demonstrated by all public polling, state statutory schemes, and the behavior of courts is that rehabilitation and retribution are appreciated by the public not only as vying contestants for prominence as punishment criteria but, more importantly, as equally high ideals in punishment with some vacillation in strength between them over time.

Members of the Court announced in Furman that retribution and rehabilitation were incompatible, suggesting that rehabilitation had little role to play in capital litigation. For some, this factored into their conclusion that the death penalty was unconstitutional. For the four dissenting Justices, the fact that retribution had never been eliminated by the Court as a proper punishment goal in cases evoking strong community outrage enabled them to accept it over rehabilitation as a dominant basis for preserving the death penalty. All the Justices on both sides of the death penalty issue assumed that, because death terminates the life of the offender, it makes rehabilitation theoretically irrelevant once the punishment is imposed. This perception, which forms the basis of the Court's later "death is different" analysis, leads the Court to direct its concern about rehabilitation within the death penalty context into the capital sentencing procedure, i.e., making sure that capital juries can meaningfully use information about a defendant's "prospects for rehabilitation" in their sentencing decisions. Lockett v. Ohio, 438 U.S. 586, 594 (1978) (holding statute unconstitutionally limited sentencer's ability to consider evidence that Sandra Lockett had a good "prognosis for rehabilitation" if returned to society); Franklin v. Lynaugh, 487 U.S. 164, 177-78, 179-80 (1988) (holding that the Texas statute allowed jurors to consider the mitigating evidence of Donald Franklin's good prison record).

The Court has generated a line of cases responsive to its concern that jurors not be arbitrarily prevented from considering any evidence, including such evidence as rehabilitation, that could lead to a penalty less than death. Applicant bases her instant claim for relief, however, on the other chief line of Supreme Court precedent arising from the Court's concern, expressed in Furman, that sentencers be meaningfully directed in "distinguishing the few cases in which [the death penalty] is imposed from the many in which it is not." Furman v. Georgia, 408 U.S. 238, 313 (1972) (Stewart, J., concurring); see Callins v. Collins, 510 U.S. 1141 (Blackmun, J., dissenting). Applicant's execution would be cruel and arbitrary, because she is not death-eligible. Retribution is only abstractly served in her case, and deterrence is not served at all. The national moral consensus, suitably expressed by Justice Stevens, supra, requires consideration of her present rehabilitation, and the commutation of the sentence of such an offender who is fully rehabilitated.

In short, Applicant may not presently, nor in the future, be executed because such infliction of punishment would be constitutionally disproportionate due to her status as a completely reformed errant. Delo v. Lashley, 507 U.S. 272, 279, 288 (1993) (Stevens, J., joined by Blackmun, J., dissenting) (recognizing that youth has been considered as an exempt status from execution because of potential for rehabilitation); Stanford v. Kentucky, 492 U.S. 361 (1989) (considering youths as a class of offenders ineligible for the death penalty); Penry v. Lynaugh, 492 U.S. 302 (1989) (considering persons with mental retardation as a class of offenders ineligible for the death penalty); Ford v. Wainwright, 477 U.S. 399 (1986) (holding that persons who are currently insane are, as a class, ineligible for the death penalty).

The Supreme Court has been reluctant to establish classes that are ineligible for the death penalty, relying instead, as noted above, on "sentencer discretion guided by statutory criteria rather than court mandate" to delimit the death-eligible with minimum arbitrariness. Steiker, supra, at 378. This same tendency to focus on guided sentencer discretion, rather than classes of offenders, may account for the paucity of recent comment by the courts, state or federal, on the relative strengths of retribution and rehabilitation as guiding principles in the infliction of the death penalty. This tendency accounts for the general lack of alternative punishment statutes in death penalty states or other kinds of statutes, such as clemency directives, that address rehabilitation of capital offenders. As will be shown below, the polls are way ahead of the legislatures and the courts in revealing the deep-set respect for rehabilitation as a punishment goal, the relatively equal strength of rehabilitation and retribution, and ways rehabilitation can be applied in capital sentencing. As will also be shown, however, legislatures have continued to encode the public's strong support for rehabilitation and, thus, essentially all capital punishment states still make provision for rehabilitation as a dominant goal in punishment. Legislatures adequately portray the public's desire that rehabilitation be given a prominent place. Due to political pressure and misperception about the public's value of rehabilitation vis a vis retribution, legislators have been slow to generate any laws that would mandate, for instance, the commutation of the sentence of a defendant like Applicant, even though such legislation may be required because some procedural mechanism must be made available to prevent the kind of constitutional error present here. The paucity of procedural solutions cannot be held to demonstrate the absence of such error.

Since Applicant's execution would not serve the punishment goals of deterrence and retribution, it is banned by the Eighth Amendment. In the words of an Illinois prison warden, infra, to execute Applicant would be to "commit capital vengeance, not punishment." In view of Applicant's rehabilitation, there is utterly no reason to believe that the execution of Applicant would serve any penal purpose more effectively than the less severe punishment of imprisonment. Furman, 408 U.S. at 305 (Brennan, J., concurring). "The purpose of punishment is fulfilled, crime is repressed by penalties of just, not tormenting, severity, its repetition is prevented, and hope is given for the reformation of the criminal." Id. at 305, 343 (citing Weems v. United States, 217 U.S. at 381)).

Claim for Relief Number Three

THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION FORBID THAT THE COURTS OR THE EXECUTIVE ALLOW THE EXECUTION OF APPLICANT BECAUSE HER EXECUTION WOULD BE WANTON, ARBITRARY INFLICTION OF PAIN, UNACCEPTABLE UNDER CURRENT AMERICAN STANDARDS OF HUMAN DECENCY.

Infliction of the death penalty upon Applicant would be cruel and arbitrary, because it would be unacceptable in light of current American standards of human decency. "The protection of the Eighth Amendment does not end once a defendant has been validly convicted and sentenced." Herrera, 506 U.S. at 430, 432 (1993) (Blackmun, J., dissenting, joined by Stevens, J., and Souter, J.); Johnson v. Mississippi, 486 U.S. 578 (1988); Ford v. Wainwright, 477 U.S. 399 (1986)). Applicant cannot be constitutionally executed, because contemporary American society would find the execution of an offender who has been totally rehabilitated morally offensive and at odds with current standards of human decency.

The "respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion of Stewart, Powell, and Stevens, JJ.) (emphasis added); Ford v. Wainwright, 477 U.S. 399, 407-410 (1986). The State of Texas may not constitutionally inflict the death penalty on Applicant, because of her character and record as a completely rehabilitated offender. Such sanction would deeply offend contemporary standards of human decency, reflected in the American public's constant high valuation of rehabilitation as a punishment goal. The American public, in fact, rejects punitive justice in favor of a community-based, restorative model of justice.

All evidence shows that the American public holds retribution and rehabilitation to be competing and commensurate avenues to the restoration of public order following a capital offense. Such a statement may initially seem surprising, given the apparent widespread support for the capital sanction. Public opinion polls and social science findings demonstrate, however, that since the reinstatement of the death penalty in the majority of states, public support for rehabilitation in those states has not waned dramatically in inverse proportion to the popularity of strict and certain punishment. Real-life sentences that embrace rehabilitative goals of community safety as well as reparation for crime are actually universally more popular than the death penalty itself as punishment options for capital offenders, even in states long considered bastions of capital punishment. For that reason, clear and convincing demonstration by a capital offender of authentic and complete rehabilitation must disable the State from carrying out her execution, because execution would not only be contrary to the public's punishment-type preference but would also offend contemporary moral concern for the rehabilitation of errants. There is every indication that the public recoils at the death penalty when rehabilitation can actually be achieved, because rehabilitation defeats sentiment toward vengeance, restores the moral order, meets the community's need for specific incapacitation and, when coupled with proportionately strict sentencing, meets the community's need for general deterrence. Recent public opinion polling shows that the public is aware that there remains no need nor justification for the death penalty when such goals can be achieved.

Social science evidence, legislative enactments, public pronouncements by religious bodies, executive commutation actions, and international law and opinion all support this conclusion. As a result, execution of Applicant, who has shown herself not only to be rehabilitated but to be a very positive social influence, would not be acceptable as justice, would be merely arbitrary, wanton infliction of pain on an individual and would be, in itself, a severe disruption of the moral social order.

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