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Texas v. Karla Faye Tucker (page 5)

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1. The Social Science Evidence

The Supreme Court, on occasion, has looked to social science data as evidence of evolving standards of human decency. E.g., Gregg v. Georgia, 428 U.S. 153 (1976). Sociological research and opinion polling since the "reinstatement" of the death penalty via Gregg clearly demonstrates that the public's high for rehabilitation of offenders has not been devalued by the popularity of punitive measures; that, in fact, a preferred alternative to the death penalty that requires rehabilitation of the offender has been universally found in every polled state. See William J. Bowers, Margaret Vandiver, & Patricia H. Duggan, A New Look at Public Opinion on Capital Punishment: What Citizens and Legislators Prefer, 22:1 Am. Jnl. Crim. Law 77 (1994); Richard C. McCorkle, Research Note: Punish and Rehabilitate? Public Attitudes Toward Six Common Crimes, 39:2 Crime and Delinquency 240 (April 1992); Francis T. Cullen, Sandra Evans Skovron, Joseph E. Scott, Velmer S. Burton, Jr., Public Support for Correctional Treatment, 17:1 Criminal Justice and Behavior 6 (March 1990); Mark Warr & Mark Stafford, Public Goals of Punishment and Support for the Death Penalty, 21:2 Journal of Research in Crime and Delinquency 95 (May 1984); see also Andrew Skotnicki, Religion and Rehabilitation, 15:2 Criminal Justice Ethics (Summer/Fall 1996) (noting the reemergence in recent years of the rehabilitative ideal, but lack of appreciation for religious conversion as "a key factor in solving the riddle of wilful human rejection of law and behavioral norms").

Warr and Stafford set out specifically to: (1) "identify the goals or justifications of punishment held by the public at large," and (2) "examine the relation between these goals and public support for capital punishment." Warr, supra, at 97. The relative strengths of public justifications for the death penalty are examined through justifications for imprisonment. Id. at 99. The authors point out that, since rehabilitation and retribution are logically incompatible, the only way to measure their relative strength in relation to capital punishment is to look at incarceration goals. Imprisonment is commensurate with all punishment goals, whereas it is nonsense to ask whether execution accomplishes rehabilitation. Id. The results from the authors' survey indicated:

[A] large majority of respondents see retribution as a legitimate (if not the primary) purpose of punishment. At the same time, however, rehabilitation looms much larger by this reckoning. While less than one-fifth of respondents choose rehabilitation as the most important goal of punishment, fully 59% choose it as one of the three most important goals of punishment, a figure second only to retribution itself. [Incapacitation was third.]

[I]t is interesting to note that those who choose retribution as the most important reason for punishment are most likely to choose rehabilitation as their second most important reason. This finding is similar to that reported by Cullen et al. (1983), who found that their Illinois respondents tended to favor rehabilitation and punishment simultaneously for juvenile offenders.

Id. at 102. Interestingly, a full 50 percent of those who held rehabilitation to be the most important punishment goal also supported capital punishment. Id. at 106. Warr and Stafford concluded:

None of the goals of punishment [among retribution, incapacitation, rehabilitation, specific deterrence, general deterrence, and normative validation] is endorsed by more than a minority of respondents, meaning that there is -- at least at present -- no single dominant ideology of punishment. Even if such an ideology did exist it must be interpreted cautiously. Our findings indicate that a preference for one goal of punishment does not necessarily imply utter rejection of others (recall the case of rehabilitation). Rather than viewing public goals of punishment as a binary (either/or) variable, or imputing monolithic consensus to public opinion, we suggest that such opinion can best be viewed as a set of ordered priorities, the order of which changes with time and circumstance.

Id. at 106. Similarly, McCorkle (1993) and Cullen et al. (1990, 1988, 1987, 1985, 1983, 1982, 1977) concur that the public continues to believe violent offenders should not only be punished but also rehabilitated. McCorkle studied public attitudes toward punishment goals for violent and nonviolent offenders (robbery, rape, molestation, burglary, drug sale, drug possession) in a 1992 survey of respondents in the Las Vegas, Nevada, area. McCorkle, supra, at 242. The respondents consistently showed "strong punishment orientations," support for "increased use of prisons to ensure offenders received their just deserts." Id. at 250. Public attitudes, however, were multifaceted:

[T]his punitiveness represented only one facet of their attitudes toward criminals. There was, in addition, broad support for addressing the underlying causes of their criminal behavior. Most believed that these offenders could still turn their lives around, and renewed efforts should be made to provide them with the treatment, education, and training inside the prison that would facilitate their repentance.

Id. (emphasis in original).

The following poll results taken from the Sourcebook of Criminal Justice Statistics show widespread corroboration of the findings of these scholars that the relationship among punishment goals is complex and that retribution and rehabilitation are both high on the public agenda:

1) Louis Harris Poll, 1970, 1978, 1981, 1982: Question A> "Do you think the main emphasis in most prisons is on punishing the individual convicted of a crime, trying to rehabilitate the individual so that he might return to society as a productive citizen, or protecting society from future crimes he might commit?" Question B> What should be the main emphasis?

A: For the four years, punishment ranged from 21 to 27 percent, rehabilitation from 25 to 35 percent, and protection from 8 to 13 percent.

B: For the four years, punishment ranged from 8 to 23 percent, rehabilitation from 44 to 73 percent, and protection from 12 to 32 percent. Support for rehabilitation went down from 73 percent in 1970 to 44 percent in 1982, while support for "punishment" went up and down from 8 percent in 1970 to 19 percent in 1982.

The Harris Survey (New York: The Chicago Tribune-New York News Syndicate, May 24, 1982), in Sourcebook of Criminal Justice Statistics 1982, at 252.

2) The Gallup Poll reported in 1982 results from a poll on the following question: "In dealing with men in prison, do you think it is more important to punish them for their crimes, or more important to get them started `on the right road'?" 30 percent responded to punish them and 59 percent opted for getting them started right.

George H. Gallup, The Gallup Report, Report No. 200 (Princeton, N.J.: May 1982), in Sourcebook of Criminal Justice Statistics 1982, at 254.

The same poll was run in 1989, with the results that 38 percent chose punishment and 48 percent rehabilitation.

George H. Gallup, The Gallup Report, Report No. 285 (Princeton, N.J.: June 1989), in Sourcebook of Criminal Justice Statistics 1990, at 198.

3) More recent polls seem to suggest a more punitive attitude on the part of the public relative to rehabilitation, but also a steadfast belief by the public that most violent offenders can be rehabilitated.

A Roper national poll in 1992 asked the following: "Most people are concerned about the increase in crime and lawlessness that has been taking place across the country today. On which would you like to see us rely more heavily?"

Stricter law enforcement/severer penalties 44 percent

Corrective programs 31 percent

The Roper Organization, Inc., in Sourcebook of Criminal Justice Statistics 1992, at 195.

A 1993 Los Angeles Times poll asked the following: "Where does government need to make a greater effort these days: in trying to rehabilitate criminals who commit violent crimes or in trying to punish and put away criminals who commit violent crimes?

Rehabilitate 25 percent

Punish 61 percent

Los Angeles Times Poll, in Sourcebook of Criminal Justice Statistics 1994, at 177.

The same poll was conducted in 1994 by the Los Angeles Times, and 1995 by researchers at Sam Houston University.

1994 results:

Rehabilitate 32 percent

Punish 49 percent

Sourcebook of Criminal Justice Statistics 1994, at 176.

1995 results:

Rehabilitate 26.1 percent

Punish 58.2 percent

Sourcebook of Criminal Justice Statistics 1995, at 177.

4) Finally, polls conducted in 1994 and 1995 demonstrate that, although there has been an apparent recent shift toward more punitive than rehabilitative attitudes, public belief in the effectiveness of rehabilitation as a punishment purpose continues to run high.

The Los Angeles Times and Sam Houston researchers asked, "Thinking of criminals who commit violent crimes, do you think most, some, only a few, or none of them can be rehabilitated given early intervention with the right program?"

1994 results:

Most 17 percent

Some 47 percent

Only a few 25 percent

None 6 percent

Sourcebook of Criminal Justice Statistics 1994, at 176.

1995 results:

Most 14.4 percent

Some 44.8 percent

Only a few 28.7 percent

None 9.1 percent

Sourcebook of Criminal Justice Statistics 1995, at 177.

Although the polls reported in the Sourcebook demonstrate continued public support for both retribution and rehabilitation in relation to violent offenders, they can be faulted for not being specifically applicable to the death penalty, due to the logical difficulty inherent in attempting to apply rehabilitation in the capital punishment context. Arguably, however, a set of polls that have been conducted since 1986 do succeed in measuring the public support for rehabilitation in the death penalty context with the remarkable consequence that a rehabilitative punishment alternative has been observed that is universally preferred over the death penalty for capital murder offenders.

This set of post-Furman surveys has shown undeviating preference on the part of the public for a kind of compensatory, rather than solely retributive, punishment that necessarily implies a concomitant public belief in rehabilitation of capital defendants. Public opinion polls invariably show that, where respondents are given the alternative punishment choice of a real life sentence, coupled with restitution to the family members of the offender's victim(s), support for the death penalty evaporates. Bowers, supra, at 144. Researchers have noted that the standard polling question -- Do you support the death penalty? -- reflects an acceptance of the death penalty but not a preference for that punishment over other alternatives:

When people are presented with an alternative to the death penalty that incorporates both lengthy imprisonment and restitution to murder victims' families, and are then asked whether they would prefer the death penalty to such an alternative, they consistently choose the non-death penalty alternative.

Id. at 79. In polls from 1986-1995, a majority of respondents in Arkansas, California, Florida, Georgia, Kansas, Massachusetts, New York, and Indiana have stated a preference for life without parole plus restitution over the death penalty as punishment for capital offenders. Id. at 91. The death penalty has not been preferred over life plus restitution in any state poll. Researchers conclude that:

[F]or most people [life imprisonment without parole plus restitution] is "harsh enough" while the death penalty lacks sufficient restorative or compensatory value. In most people's minds, the attractiveness of having convicted murderers work in prison for recompense, combined with personal misgivings about capital punishment, concern for the humane and restorative priorities it denies, and satisfaction with the harshness of the alternative, converts expressed death penalty support into preference for the [life imprisonment without parole plus restitution] alternative. The result is that most people, even most who profess strong death penalty support, would choose the alternative.

Id. at 145 (emphasis added). Whereas the U.S. public supports the strictness of the capital sanction as an expression of community outrage, the polls indicate that the public also embraces the idea that the punishment of capital offenders, like that of other prisoners, must be undertaken with a view to the comprehensive needs and rights within the community. The firm public support for life without parole plus restitution demonstrates an evolving standard of decency in punishment that transcends -- in its holistic, self-conscious attentiveness to the needs in every community sector -- the more ritualized, historical capital sanction. It recognizes, furthermore, the value of the life of the perpetrator, at least as dedicated to restoration of the community breach caused by her actions.

The behavior of the Furman commutees in Texas demonstrates empirically that the public's belief in rehabilitative options is not misplaced. Forty-seven inmates were physically present on death row when Furman v. Georgia was announced in 1972. James W. Marquart, Sheldon Ekland-Olson, & Jonathan R. Sorenson, The Rope, The Chair, and the Needle 123 (Univ. of Texas Press 1994). Governor Price Daniel commuted all forty-seven inmates to life imprisonment or ninety-nine years. Thirty-seven had been convicted of murder, seven of rape, and three of armed robbery. Id. Seventy-five percent committed no serious infractions during their confinement in the general population. Id. at 124. Sixty-six percent (31 prisoners) were eventually released to the community. Id. at 125. Eighty-six percent were not convicted of a new felony while in the free community, compared to 94 percent of a comparable research control group. Id. The recidivism rate in both Furman and control groups was low. Id.

2. Legislative Enactments

The public support for restorative justice reflected in widespread polling has been incorporated into our states' penal laws, including the law of Texas. Although the widespread support for strict, certain, and restorative penalties has not been expressed by way of the elimination of post-Furman capital murder statutes or the passage of laws that provide the jury more capital offense punishment options, Congress and a majority of state constitutions and legislatures have mandated that all procedures and punishments in their criminal codes, not excluding capital offenses, be governed by concern for rehabilitative and restorative values. Almost all states show fundamental respect for rehabilitative principles by way of the codification of their criminal laws or interpretation of statutory provisions for punishment by state high courts. Almost states make some provision for restitution as an adjunct to criminal sentencing. Most of these states do not restrict the obligation of restitution to persons sentenced to life or years. Many states explicitly tie restitution to rehabilitation of the defendant or make restitution a function of rehabilitation. See also Stephen Schafer, Compensation and Restitution to Victims of Crime 119-22 (2d ed. 1970).

There is no meaningful contrast between death penalty and non-death penalty states in relation to the emphasis given rehabilitation as a punishment goal. For every Wisconsin and Minnesota, there is a Wyoming, Oregon, or Indiana; the latter all having the death penalty and constitutional provisions mandating that rehabilitation be considered the preeminent goal in punishment. Retribution as vengeance is not advocated by any state; whereas, retribution as it is represented in the concern for proportionate sentencing is found in many of the states' statutory provisions. The coexistence of the death penalty, retribution, and rehabilitation, along with the omnipresent option of restitution is remarkable, and demonstrates by way of a pattern among the states' statutes not only the resilience of rehabilitation as a punishment goal, but the dual high punishment priorities found in public opinion polls and their mutual and productive interaction.

a. The Federal Government

Prior to Congress' sentencing reform in 1984, federal sentencing policy was based almost exclusively upon a rehabilitation model. Continuing Appropriations, 1985--Comprehensive Crime Control Act of 1984, S. Rep. No. 98-225, 98th Cong., 2d Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 3220, 3221 (1984)("[C]riminal sentencing is based largely on an outmoded rehabilitation model."). On the basis of concerns similar to those driving the Supreme Court's revamping of death penalty jurisprudence -- chiefly the complete discretion afforded sentencers and wide disparities in sentencing results -- and concern about the capacity of the prison setting to foster rehabilitation, the Senate Judiciary Committee pushed sentencing reform toward greater uniformity in sentencing and less emphasis on rehabilitation. Id. at 3220-23. The product of the Senate's finding that other concerns than rehabilitation should also guide sentencing was the Sentencing Reform Act, which outlined four purposes of punishment: retribution, deterrence, incapacitation, and rehabilitation. 18 U.S.C. § 3553 (a) (2) (1988). The Judiciary Committee maintained that all four should be considered in sentencing and that no one should be viewed abstractly as being more important than the others. 1984 U.S.C.C.A.N. 3220, 3250-51. The Senate recognized, however, that in any individual case one goal might take on more importance than others, and that not every purpose would be relevant in every case. Id. at 3250-51, 3260. The Senate Judiciary Committee expressed the intent of Congress:

The intent of subsection (2) is to recognize the four purposes that sentencing in general is designed to achieve and to require that the judge consider what impact, if any, each particular purpose should have on the sentence in each case.

Id. at 3260. Rehabilitation, thus, survived sentencing reform on equal par with retribution and deterrence (the two purposes maintained by the Supreme Court as the bases for the capital sanction) as a Congressionally mandated goal in punishment. Interestingly, the overarching policy statute also includes as a factor to consider in imposing sentence "the need to provide restitution to any victims of the offense." 18 U.S.C. § 3353 (a) (7) (1997). The new code embraces the death penalty for murder and, like many state codes, requires sentencing consideration of a number of mitigating factors that would include concerns about rehabilitation. 18 U.S.C. 1111 (murder); 18 U.S.C. 3592 (a) (1) (impaired capacity), (5) (no prior history), & (8) (catchall). Rehabilitation also plays a big role in the Sentencing Guidelines for non-capital offenses. E.g., 18 U.S.C. Appx @ 3E1.1.

b. The Model Penal Code

Rehabilitation is one of the chief purposes listed by the American Law Institute, and retribution is notably absent, except as it is involved in proportionality:

The general purposes of the provisions governing the sentencing and treatment of offenders are:

(a) to prevent the commission of offenses;

(b) to promote the correction and rehabilitation of offenders;

(c) to safeguard offenders against excessive, disproportionate or arbitrary punishment;

(d) to give fair warning of the nature of the sentences that may be imposed on conviction of an offense;

(e) to differentiate among offenders with a view to a just individualization in their treatment;

(f) to define, coordinate and harmonize the powers, duties and functions of the courts and of administrative officers and agencies responsible for dealing with offenders;

(g) to advance the use of generally accepted scientific methods and knowledge in the sentencing and treatment of offenders;

(h) to integrate responsibility for the administration of the correctional system in a State Department of Correction.

Model Penal Code § 1.02 (West 1997).

c. State Constitutions Establishing Rehabilitation

as One (or the Only) Punishment Priority

Alaska (no death penalty), Indiana (death penalty), Oregon (death penalty), and Wyoming (death penalty) all have state constitutional provisions requiring that punishment be based upon rehabilitation. See Appendix A (detailing these provisions) (attached as Tab 30 to Exhibit Volume).

d. Texas' and Other Death Penalty States' Statutes

that Explicitly Require Punishment of Offenders

to Hew to a Rehabilitative Goal

Numerous statutes from states imposing the death penalty reflect an equally strong legislative intent to prioritize rehabilitation as a goal in punishment.

Texas-- The Texas legislature, for example, has expressed its intent that all provisions in the Penal Code (including § 19.03 Capital Murder) be construed "to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders" and "to guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons suspected, accused, or convicted of offenses." Tex. Penal Code § 1.02 (3) & (5) (emphasis added). As alluded to above, the Texas Court of Criminal Appeals has explicitly applied § 1.02 in the capital sentencing context, holding that "rehabilitation is obviously a proper consideration under special issue number two." Jackson v. State, 822 S.W.2d 18 (Tex. Crim. App. 1990); Wilkerson v. State, 881 S.W.2d 321, 328, 344 (Tex. Crim. App. 1994) (Baird, J., dissenting).

Texas also has a strong restitution statute. Tex. Code Crim. Proc. art. 42.037 (1997). Additionally, it is the only state in the union with a (highly successful) death row work program. See Francis X. Clines, Self-Esteem and Friendship in a Factory on Death Row, New York Times, January 12, 1994, at A1, A8.

In addition to the federal government and Texas, and in addition to the states with constitutional provisions, at least twenty-one death penalty states have general purpose statutes asserting that their criminal codes are designed to facilitate rehabilitation through punishment, or statutory features that place at least equal importance on the role of rehabilitation in punishment. See Appendix B (detailing these provisions) (attached as Tab 31 to Exhibit Volume).

e. Death Penalty States' Statutes Requiring Less Explicit

Consideration of Rehabilitation in Punishment

Approximately eight death penalty states could be characterized as having statutes that require some less explicit consideration of rehabilitation. Every state has procedures, either civil or criminal, for the restitution of crime victims. See Appendix C (detailing these provisions) (attached as Tab 32 to Exhibit Volume).

f. Non-Death Penalty State Statutes Requiring Rehabilitation

as a Punishment Goal

The vast majority of the non-death penalty states have strong statutes requiring rehabilitation as a punishment goal. See Appendix D (detailing these provisions) (attached as Tab 33 to Exhibit Volume).

3. The Behavior of Juries

The Supreme Court has often regarded the behavior of juries as an index of evolving standards of human decency. The Capital Jury Project, a massive social-science undertaking in a number of states, including Texas, has unearthed some characteristics about capital juries that cast doubt about the reliability of their decisions as a gauge of public attitudes about punishment. See William J. Bowers, Symposium: The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 Indiana L. J. 1043 (Fall 1995); see also Craig Haney, Taking Capital Jurors Seriously, 70 Indiana L. J. 1223, 1227 (Fall 1995) (expressing skepticism that jurors understand the significance of mitigating evidence or its correct use in coming to a verdict); Peter Meijeres Tiersma, Dictionaries and Death: Do Capital Jurors Understand Mitigation?, 1995 Utah L. Rev. 1. The Capital Jury Project study has revealed that a majority of jurors enter the punishment stage of capital trials with their minds already made up about whether they will impose the death penalty. More than six out of ten jurors have responded that their guilt stage deliberations focussed a "great deal" or a "fair amount" on future dangerousness and the punishment to be imposed. Id. at 1087. Thirty-seven percent reported that there was open discussion at the guilt deliberations about whether the defendant should get the death penalty. Id. at 1088. After the guilt stage was over and the defendant had been found guilty, but before any punishment stage evidence had been presented, 30 percent had decided the defendant should get the death penalty and 20 percent had decided on life. Id. at 1089. By way of a follow-up question, it was determined that 64.6 percent of those who had decided on death or life were "absolutely convinced" while another 30.5 percent were "pretty sure." Id.

The Project has also found that jurors heavily displace responsibility for the punishment decision. Eight of ten responded that the defendant or the law was most responsible for the defendant's punishment. Id. at 1094. Three of twenty believed that the jury was the agent most responsible for the defendant's punishment. Id. at 1095.

The death bias entering the punishment stage along with the inscrutability of most juries' decisions in "directed" and "threshold" statute states make any conclusions about juror treatment of rehabilitation in sentencing speculative. This would be true even in Texas, where there were only two special issues in most cases under the old statute, and a "no" answer to one of them necessarily implies a finding of potential for rehabilitation. More research must be done among jurors participating on juries that ultimately voted for life before any reasonable arguments can be advanced on juror sentencing as an index of the moral consensus favoring life for rehabilitated capital defendants.

Anecdotal evidence suggests that, despite the obvious implications of rehabilitation for the second special issue, Texas jurors have difficulty recognizing the connection. Evidence of potential for rehabilitation was introduced by the defense, for example, at the punishment phase of the capital murder trial of Carl Johnson, a Texas inmate who was executed in 1995. During deliberations the jury sent the judge a note asking, "Can we consider rehabilitation in determining the answer to the second charge [i.e., the second special issue at that time on future dangerousness]?" Instead of affirming, as he should, that the second special issue was the proper vehicle for such consideration (because rehabilitation would require a negative answer), the trial judge responded, neutrally, "I can only refer you to the evidence you have heard and the charge of the court." David R. Dow, The State, the Death Penalty, and Carl Johnson, 37:4 Boston College L. Rev. 697-98 (1996).

There is every indication that Applicant's own candor on the stand and unflinching acceptance of responsibility for her crime misled her own jury into finding her death-eligible despite the fact that the very same conduct on her part demonstrated her capacity to be rehabilitated. When Applicant's counsel asked her if she would have been a threat to society the way she was living before the murders occurred, the State objected, presuming that she would render a self-serving answer. The trial court overruled objection, and Applicant answered, "The way I was going . . . I think I was." The State seized upon this as though it were an admission of future dangerousness and argued in closing at the punishment phase that, having answered the second special issue herself, Applicant had conceded that she deserved the death penalty.

Applicant's jurors' inability to consider her potential for rehabilitation was compounded by two errors related to the jury charge, for which Applicant's trial attorneys, the State, and the trial judge should be held accountable: 1) there was no general instruction regarding the role of mitigating evidence in the jury's sentencing decision; and 2) the trial court did permit the use of an instruction based upon former Tex. Penal Code § 8.04 (c) (West 1981), which was erroneously requested by defense counsel. The jury had both no guidance on how to consider the mitigating aspects the evidence they had heard regarding Applicant's rehabilitation in relation to the second special issue (future dangerousness) and fatally erroneous guidance on how to consider the mitigating aspect of evidence of intoxication at the time of the offense in relation to Applicant's level of culpability under the first special issue (deliberateness). See former Tex. Code Crim. Proc. art. 37.071 (West 1981).

After returning positive answers to both of the special issues, several of the jurors privately told the prosecutor, Joe Magliolo, that they had not wanted to give Applicant the death penalty, but did not see any way to avoid it. Beverly Lowry, Crossed Over: A Murder, A Memoir 180 (Knopf 1992).

Juror patterns cannot be of much help because: 1) the statistics indicate jurors will usually be predisposed to impose death, without being willing or able to consider evidence of rehabilitation; or 2) even if they desire to take the defendant's potential for rehabilitation into account, "it is not always evident to the jurors themselves" under the Texas scheme (and probably others) how they may accomplish that feat. Dow, supra, at 698.

4. Statements by American Religious Bodies

The policy positions taken by church bodies regarding the death penalty and rehabilitation are indicators of contemporary standards of decency that should inform consideration of the Eighth Amendment questions. Churches are in the business of religious transformation, and represent a large segment of American society. See e.g., Thompson, 487 U.S. at 830 (plurality opinion) (valuing the opinions of respected organizations with expertise in the relevant area). Religious bodies have played an integral role in the development of American penal policy and reform from the time of the founding. See, e.g., Gerald A. McHugh, Christian Faith and Criminal Justice: Toward a Christian Response to Crime and Punishment (1978) (illustrating the roots of American penology in contrasting ideologies toward crime and punishment held by Puritans and Quakers). In particular, churches have also been involved since before we became a nation state in the policy and practice of the death penalty. See, e.g., Daniel A. Cohen, Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture, 1674-1860 (1993); Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776-1865 (1989); J. Gordon Melton, The Churches Speak on: Capital Punishment: Official Statements from Religious Bodies and Ecumenical Organizations (Gale Research Inc. 1989) [hereinafter Melton]. It is only recently, in fact, that most American church bodies, other than traditional "peace" churches such as Quakers, have issued public pronouncements raising questions about the use and fairness of the death penalty. A large number of churches, however, now have issued such statements (some of which are represented infra). Churches are split on the issue of the acceptability of the punishment, primarily along liberal-moderate/conservative lines, with many conservative (or evangelical) churches not taking a public stand on the issue. Recent social science studies, however, reveal a significant correlation between retributivist attitudes toward punishment and conservative American Protestant religion. Harold G. Grasmick, et al., Protestant Fundamentalism and the Retributive Doctrine of Punishment, 30 Criminology 21, 25, 38 (1992) (noting mounting evidence that religious beliefs play a crucial role in public attitudes about criminal justice policy matters); Robert L. Young, Religious Orientation, Race and Support for the Death Penalty, 31 J. Sci. Stud. Religion 76, 85 (1992) (finding an association between religious fundamentalism and social support for the death penalty).

Churches that have issued statements on the death penalty -- whether for or against the penalty in general -- have registered special concern regarding the incompatibility of capital punishment with personal, spiritual reformation and rehabilitation. The concern is overwhelmingly present in statement after statement. The most recent and relevant statement known to counsel for Applicant was issued by the Texas Catholic Bishops on October 20, 1997, in which they "reiterate[d]" their opposition to the death penalty, calling for "more support for the families of victims and urg[ing] reconciliation as well as rehabilitation of the perpetrators of the sometimes heinous crimes." Statement by the Catholic Bishops of Texas on Capital Punishment, October 20, 1997 (cover letter). See attached Exhibit 24. This statement is consistent with the Pope's own recent declaration against the death penalty (except in the most extreme circumstances). A 1980 Statement on Capital Punishment by the National Conference of Bishops of the Roman Catholic Church does not per se reject the death penalty, but rather finds it incommensurate punishment in most cases, precisely because it denies rehabilitation of the offender:

We believe that the forms of punishment must be determined with a view to the protection of society and its members and to the reformation of the criminal and his reintegration into society (which may not be possible in certain cases).

Statement on Capital Punishment 1980, at I (8), under "Purposes of Punishment." Melton, at 18. Directly in line with the polling results, supra, the national bishops find a "difficult[y] inherent in capital punishment" that "infliction of the death penalty extinguishes possibilities for reform and rehabilitation for the person executed as well as the opportunity for the criminal to make some creative compensation for the evil that he or she has done." Id. at III (14); Melton at 19. In rejecting the death penalty in 1983, the Catholic Bishops of Oklahoma commented:

Putting human beings to death, even when done by lawful sanctions and after proven terrible crimes, seems to be a kind of rejection of hope regarding those persons. There are many instances of persons guilty of terrible crimes coming to a complete moral change. In our own lives, have we not seen this movement from sin to repentance take place?

Statement in Opposition to Capital Punishment (1983), Roman Catholic Bishops of Oklahoma; Melton, at 27.

As early as 1958, the American Baptist Churches in the U.S.A. issued a statement advocating the abolition of the death penalty, in part on the ground that the church held the "conviction that the emphasis in penology should be upon the process of creative, redemptive rehabilitation, rather than on punitive retribution." The American Baptist Churches were among the first churches to advocate abolition. American Baptist Churches in the U.S.A., Resolution on Capital Punishment (1958); Melton, at 53.

The Disciples of Christ issued a national statement in 1985 calling for abolition, in part on the ground that "the use of execution to punish criminal acts does not allow for repentance or restitution of the criminal." Christian Church (Disciples of Christ), Resolution Concerning Opposition to Use of the Death Penalty (1985); Melton, at 58.

A statement was issued by an ad hoc group of Protestant, Orthodox, and Roman Catholic leaders in Florida in 1984, in opposition to the reinstatement of the death penalty in that state, noting that execution "eclipses" possibilities for reconciliation, and stressing the duties of an offender to participate in rehabilitative activities and practice restitution "however inadequate or symbolic, as a serious attempt toward reconciliation with the person to whom he has caused a life of suffering." Christian Leaders of Florida, The Moral Consequences of Capital Punishment (1984); Melton, at 61.

The Episcopal Church issued statements in 1958 and 1969 opposing capital punishment. Melton, at 105.

The Friends United Meeting has issued an undated statement expressing its historic opposition to the death penalty, observing members' belief that "the Christian way to deal with crime is to seek the redemption o[r] rehabilitation of the offender." Friends United Meeting, Statement on Capital Punishment; Melton, at 111.

The National Council of Churches issued an abolition statement in 1968, announcing its "preference for rehabilitation rather than retribution in the treatment of offenders." National Council of Churches of Christ in the U.S.A., Abolition of the Death Penalty (1968); Melton, at 120.

The Reformed Church in America issued a statement in 1965 opposing capital punishment, noting in particular that, "Capital punishment ignores the entire concept of rehabilitation." Reformed Church in America, Statement on Capital Punishment (1965); Melton, at 124.

The Presbyterian Church (U.S.A.) issued a statement in 1965, since reaffirmed, against the death penalty, in part because of belief in "God's . . . power to redeem and restore the lost to meaningful and useful life." Presbyterian Church (U.S.A.), On Capital Punishment (1965); Melton, at 121.

Having produced a number of statements against the death penalty, the United Church of Christ issued a statement on Alternatives in Criminal Justice in 1981 advocating "legislation to establish programs including restitution, which require perpetrators of crimes to compensate their victims." Melton, at 134-35.

In 1984 the United Methodist Church issued a statement of policy on criminal sentencing: "[W]e urge the creation of a genuinely new system and programs for rehabilitation that will restore, preserve, and nurture the total humanity of the imprisoned. . . . Capital punishment should be eliminated since it . . . is contrary to our belief that sentences should hold within them the possibilities of reconciliation and restoration." United Methodist Church, Criminal Justice (1984); Melton, at 140-41.

The Union of American Hebrew Congregations (Reformed Judaism) issued a statement in 1959 opposing capital punishment, pledging to "foster modern methods of rehabilitation of the wrongdoer in the spirit of the Jewish tradition of tshuva (repentance)." Union of American Hebrew Congregations, Opposing Capital Punishment (1959); Melton, at 143.

As examples of conservative denominations, the Missouri Synod Lutheran Church and the Christian Reformed Church have issued lengthy and thoughtful statements on the question of capital punishment. Both churches conclude that, although the penalty may be biblically permissible, the State is not mandated by God to exercise it. Pointedly, the Christian Reformed Church concludes that executions should only rarely be utilized:

States are not called upon to convert sinners or even to reshape them, but they ought, insofar as possible, to leave room for repentance and amendment, and not unnecessarily shorten the time in which these wholesome things can occur. Death should therefore not be visited upon a person unless this extreme measure is necessitated by overriding social considerations. . . .

Justice alone does not require the death of the murderer. Justice requires only that he be punished and that his punishment be, not equivalent to, but in proportion to his crime. Justice can be served when the murderer is appropriately imprisoned.

Statement on Capital Punishment (1981); Melton, at 95. The Missouri Synod statement declares that "neither the Scriptures nor the Lutheran Confessions state that the government must impose the death penalty in order to serve as the "minister of God" by punishing flagrant wrongdoing, including murder," and advocates support of humane and progressive systems of reformation within the capital context. Report on Capital Punishment (1976); Melton, at 118-19.

The National Association of Evangelicals has issued a short statement on capital punishment that places the values of retribution and rehabilitation in tension:

The place of forgiveness and rehabilitation of the criminal must not be minimized by those who are concerned with the administration of justice. However, concern for the criminal should not be confused with proper consideration for justice. Nothing should be done that undermines the value of life itself, or the seriousness of a crime that results in the loss of life.

National Association of Evangelicals (1972); Melton, at 119.

To the best of Applicant's knowledge the religious bodies having issued the above representative number of statements of policy have not changed their positions, to date, on the death penalty or (for the most part) the primary emphasis on rehabilitation over retribution in punishment. These policy statements represent a sea-change in perspective on the issue of capital punishment, accomplished over the last two hundred years, accelerated during the middle part of this century, and accompanied by the rise of the rehabilitative ideal and evolving legal doctrine about individualized sentencing and proportionality. The breadth and depth of support for the rehabilitative ideal is notable. Most of these institutions also, for the most part, make the presumption noted above in regard to the Supreme Court that rehabilitation and retribution pose an either/or choice. Among the foregoing statements, the one that corresponds most to the societal consensus on punishment alternatives found in current polling was issued by the National Conference of Catholic Bishops in 1980, not eschewing the death penalty in theory, but finding the alternative of a life sentence plus restitution the most desirable option.

In the days of swift justice when our Puritan forefathers, Cotton and Increase Mather, had to rush to beat the hangman for a conversion, (almost-symbolic and coerced) salvation, not rehabilitation, was the religionists' and society's goal for the offender, and reestablishment of the public order was separately accomplished through the inherently oppressive scaffold spectacle rather than any real reconciliation:

On execution day, ministers expected the prisoner to enact the drama of penitence and redemption. Condemned to die by civil authorities who believed they acted in accordance with divine precepts, criminals were encouraged and manipulated to recant publicly their sins and plead for the mercy of God. Clergy offered the "true penitence" of the prisoner as proof of the saving grace of God; the execution spectacle dangled before the spectators['] eyes the journey "from the gallows to glory." In this way the ritual of execution served multiple purposes. The idea that the criminal "would this day be in heaven" made the hanging more palatable to some.

Masur, supra, at 41. Christian ministers routinely gave execution day sermons, distributed pamphlets, and produced the condemned for a public recantation of his sins for the purpose of imposing social order in the name of the "God of Order." Id. at 41, 45. Minister Perez Fobes, for example, instructed the crowd assembled to witness the hanging of a burglar that the condemned believed he deserved to die, that the "pardoning mercy" of God would save him, and that the spectators had better get on with the business of their own repentance. Masur, supra, at 41. Fobes "clarified the relationship of the criminal to the populace-at-large" by asserting that "the difference [between the criminal and the crowd] may consist only in this, that he is detected and condemned, but they as yet are concealed from human eye." Id. at 43.

Even the most conservative modern church statements reveal an entirely different sensibility -- rejection of a religiously-sanctioned mandatory death penalty and a desire for the life of the offender in this world, not only in the next. This sensibility was most eloquently expressed by the Rev. Pat Robertson on the CBS News show "60 Minutes," in a specific plea for Applicant's life:

[In Applicant's case] compassion should overrule the "so-called" sense of justice. There is a certain right that society has against killers. I support that. I'm not opposed to the death penalty. I think [Governor Bush] should commute [Applicant's] sentence.

Robertson affirmed that he believed in a "pro-life policy for people who have committed heinous crimes if they have completely changed." He added that inmates' lives should be spared, also, when they no longer posed any risk of danger to others. This policy, representative of the "religious right" and also akin to the views on rehabilitation held by the broader church spectrum, springs not only from gracious concern for the individual offender, but also from a sense that reestablishment of the social order following a criminal breach is better accomplished by concrete acts of penitence and restitution than a public punishment ritual. This attitude supports the argument that our evolving standards of decency have brought us to a new place, where even among the most conservative churchmen, execution of Applicant would be a wanton and arbitrary waste of life.

5. Commutation Actions by Governors and State Boards

Rehabilitation has played a large role in decisions by Governors and State Boards to grant commutation of death sentences. Michael Radelet and Barbara Zsembik, Executive Clemency in Post-Furman Capital Cases, 27 U. Richmond L. Rev. 289, 303 (1993) (noting that rehabilitation plays a "secondary role" in many cases); see supra Claim for Relief Number 1 (detailed analysis of Texas commutations and commutation on the basis of rehabilitation in other states). Post-Furman Governors in nine states have granted humanitarian commutations. In three of the nine states (Montana, Virginia, and Georgia), post-Furman Governors commuted death sentences based primarily on the grounds that the inmate had undergone Christian rehabilitation. See supra. These commutations were granted after enormous outpourings of public support for the inmates. The post-Furman practice of commutation based on rehabilitation merely continues a long established practice in the states. See supra discussion of the Illinois Governor's commutation of the death sentence of Paul Crump in 1963 based upon his religious rehabilitation alone.

Post-Furman Texas Governors have not granted commutation of any death sentence based on any kind of humanitarian reason (including rehabilitation). For that reason, Texas is an exception to the rule represented in the other states. Consistent with the other states, Pre-Furman Texas governors did commute death sentences on the basis of rehabilitation.

All post-Furman commutations on the basis of rehabilitation have been of the death sentences of men. The one woman executed this century, Velma Barfield, urged religious rehabilitation as a ground for clemency relief.

The actions of the governors in death-penalty states in relation to rehabilitation as a clemency ground are a clear measure of the evolving standards of decency of our society, because executives are politically loathe to take such actions without a sense of strong support from the people.

6. International Opinion and Law

A number of times, the Supreme Court has considered international law as a moral index of evolving standards of decency. Stanford, 492 U.S. at 369-71; McCleskey v. Kemp, 481 U.S. 269, 300 (1987). Of course, evidence of international opinion against the death penalty, and the growing number of non-death penalty states, must be read as consistent with rehabilitation as a punishment goal. At least one hundred and nine foreign states have abolished the death penalty in law or practice. Report of the Secretary General, Capital Punishment and Implementation of the Safeguards Guaranteeing the Protection of the Rights of Those Facing the Death Penalty, U.N. Doc. E/1995/78 (1995).

More importantly, however, the United States and the State of Texas are bound by international treaty to at least provide meaningful commutation review to rehabilitated capital inmates. The United States is a party to, and has ratified, the International Covenant on Civil and Political Rights, which announces two non-derogative rights that pertain to Applicant:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

International Covenant on Civil and Political Rights (entered into force March 23, 1976; ratified by the United States on September 8, 1992), at Article 6, §§ 1 & 4. Under the Supremacy Clause of Article VI, Section 2, United States Constitution, all treaties made by the federal government are binding on the states. Texas is currently in violation of Article 6 of the Covenant, because it has de facto eliminated clemency and commutation as a relief option for capital prisoners. As applied to Applicant in particular, the State might be in further violation of the treaty if it provided Applicant with no meaningful clemency or commutation review, because Article 6, Section 4 necessarily implies that the State must respect rehabilitation of an offender as a ground for meaningful commutation review. See, e.g., Shigemitsu Dando, Toward the Abolition of the Death Penalty, 72:7 Indiana Law Journal 16 (1996) (observing that the "right to seek pardon or commutation of anyone sentenced to death" presupposes respect for rehabilitative potential).

The State's conclusion, manifest in the setting of the execution date and the absence of real clemency review, that it is "entitled to look the other way when late-arriving evidence upsets its determination that [Applicant] can lawfully be executed" violates international law. See Muncy, supra. The Clemency provisions of the International Covenant bind the authorities -- the Court of Criminal Appeals if the Governor will not act, or the Governor -- to grant Applicant relief, because her execution would otherwise violate the constitution. Clemency, absent court action, would not be only an act of discretion, but a requirement.

7. Conclusion

Applicant's execution would violate the Eighth and Fourteenth Amendments, because of her status as a totally rehabilitated offender. For that reason her sentence must be vacated and reformed to reflect life or a term of years.

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