500th execution in Texas stirs emotions for exonerated death row prisoner
Anthony Graves's conviction for multiple murder was overturned after appeals court learned that case was riddled with problems
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| A protest against the execution of Kimberly McCarthy outside the Huntsville unit of the Texas department of criminal justice. Photograph: David J. Phillip/AP |
27 June, 2013: When Texas crossed the gruesome milestone on Wednesday night by executing its 500th prisoner the news carried a particular punch for Anthony Graves. He could so easily have been one of them.
Two years ago he was exonerated and set free after spending 18 years in Texas prisons, most of that time on death row. His conviction for multiple murder was overturned after an appeals court learned that his case was riddled with problems including a co-defendant who admitted to lying about his involvement, prosecutors who had extracted false confessions and crucial testimony withheld from the defence.
Graves was lucky to escape the fate of Kimberly McCarthy, put to death by lethal injection on Wednesday, but he still feels as though he was one of the 500. "Over 300 men were executed while I was on death row. I got to know many of them like brothers, guys who had faces rather than just numbers."
Among the 500 put to death by Texas since the state resumed the death penalty in 1982 were at least three people who were in all probability innocent. Carlos DeLuna was executed in 1989 having been mistaken for another Carlos; Ruben Cantu was sent to the death chamber in 1993 largely on eyewitness testimony from a co-defendant and a shooting survivor, both of whom later recanted; and Cameron Todd Willingham was put to death in 2004 for starting a fire that killed his three children based on forensic evidence that later turned out to be seriously unreliable.
"What does that say to you about a society?" Graves said. "It says to me that we have not evolved, that there's no justice, that we are still executing people as though our system has no flaws."
Despite the doubts that have been raised in these and other cases, Texas continues to show a degree of enthusiasm for the death penalty that strikingly exceeds that of any other state. Last year the state ended the lives of 15 prisoners – more than twice the number of the next most execution-happy states, Arizona, Mississippi and Oklahoma, which killed six each. The landmark of 500 executions in the modern era vastly overshadows the next state on the death penalty table, Virginia, which has put to death 110.
Such eagerness to judicially kill is reflected in the opinion polls which continue to show overwhelming support in Texas for capital punishment. A University of Texas/Texas Tribune poll last year showed that 73% support it and only 21% oppose.
"We are not in favour of using taxpayers money to support keeping people in jail when they say they would kill again and the jury wants to give them the death penalty," said Ray Hunt, president of the Houston police officers union. Hunt wants to speed up the legal process so that prisoners are executed more quickly, and he wants to extend the death penalty to a wider set of crimes.
"I would give juries the option to impose death sentences for crimes that are heinous such as cutting off your wife's arms with a machete as one Houston man did," he said.
But the stubborn opinion polls and the enduringly high frequency of executions obscure an important truth: even in Texas, the undisputed heartland of the death penalty in America, change is coming. As Kristin Houlé, director of the Texas Coalition to Abolish the Death Penalty, points out, the cases that are now reaching the death chamber have been 10 or 20 years in the waiting and in the interim period attitudes have shifted.
"The executions that are carried out now are a legacy of a Texas as it existed years ago - many of the prisoners scheduled to die would not be put on death row were they to commit their offences today," she said.
The statistics for the number of new death row inmates tell their own story. In 1999 the state reached a peak, adding 48 new inmates. By last year that number had declined to nine, and so far this year juries have handed down just four new death sentences.
There are many reasons for the withering of the death row population in Texas. In 2005 the state legislature introduced a new punishment that allows juries to sentence murderers to spend the rest of their natural lives in prison with no chance of parole – an alternative to the death penalty that is proving very popular.
Juries are also more reluctant to hand out the ultimate punishment – over the past five years they have rejected the death penalty in more than 20 capital cases.
Prosecutors too are becoming increasingly hesitant to press for the ultimate punishment. Part of the reason for their caution is the exorbitant cost of state killings: studies suggest that the average price for the taxpayer of a death penalty case in Texas is $2.3m, compared with $750,000 for keeping a convict in jail until they die by natural causes.
"In smaller counties in Texas, a death penalty case can literally break the budget – it can absolutely break the bank," said Sam Millsap, who was district attorney of Bexar County around San Antonio in the 1980s.
Millsap was chief prosecutor in five capital murder cases during his time as DA. He was by his own description imbued at that time with a "naive confidence in the system's ability to get things right".
But the system did not always get things right. One of those five cases was that of Ruben Cantu, and when many years later evidence emerged posthumously that cast serious doubt on Cantu's conviction, Millsap went through what he calls an awakening.
"My attitude to the death penalty went through a sea-change. I realised that the system I always had so much confidence in was making far too many mistakes."
Now firmly opposed to capital punishment, Millsap has no illusions that his sceptical views are shared by the current crop of Texan DAs who outwardly retain an unbending faith in the death penalty. "They say all the right things in public because they have to. If you don't support the death penalty in Texas you don't get elected."
But he believes that prosecutors are applying much more rigorous criteria today before they launch a capital case, which is bringing down the numbers of new sentences sharply.
A paradox arises from the winds of change blowing across the Lone Star state. As the number of capital convictions falls, the application of the death penalty is becoming even more arbitrary.
Racial disparities are becoming more pronounced. As the Texas Coalition to Abolish the Death Penalty has shown, seven out of the nine new incumbents of death row last year are black and one is Hispanic; only one is white. Over the past five years, almost 75% of all death sentences in Texas have been handed down to African Americans or Latinos.
Geographically, arbitrariness is also on the rise. Since 2008, more than half of all new death sentences have been issued by just five out of the state's 254 counties; Dallas County alone accounts for almost one in five of them.
That is the final paradox of Texas's dark statistic of 500 executions. The count begins in 1976 when the US supreme court allowed executions to start again after it had put a stop to the practice four years earlier.
In that original 1972 ruling, Furman versus Georgia, the supreme court found that the death penalty in America was so arbitrary in its application that it amounted to cruel and unusual punishment in violation of the US constitution. Those who were sent to the death chamber were, the court ruled, "a capriciously selected random handful upon whom the sentence of death has been imposed".
Forty years and 500 executions later, the experience of Texas suggests that the assessment is disturbingly contemporary and chillingly accurate.
Two years ago he was exonerated and set free after spending 18 years in Texas prisons, most of that time on death row. His conviction for multiple murder was overturned after an appeals court learned that his case was riddled with problems including a co-defendant who admitted to lying about his involvement, prosecutors who had extracted false confessions and crucial testimony withheld from the defence.
Graves was lucky to escape the fate of Kimberly McCarthy, put to death by lethal injection on Wednesday, but he still feels as though he was one of the 500. "Over 300 men were executed while I was on death row. I got to know many of them like brothers, guys who had faces rather than just numbers."
Among the 500 put to death by Texas since the state resumed the death penalty in 1982 were at least three people who were in all probability innocent. Carlos DeLuna was executed in 1989 having been mistaken for another Carlos; Ruben Cantu was sent to the death chamber in 1993 largely on eyewitness testimony from a co-defendant and a shooting survivor, both of whom later recanted; and Cameron Todd Willingham was put to death in 2004 for starting a fire that killed his three children based on forensic evidence that later turned out to be seriously unreliable.
"What does that say to you about a society?" Graves said. "It says to me that we have not evolved, that there's no justice, that we are still executing people as though our system has no flaws."
Despite the doubts that have been raised in these and other cases, Texas continues to show a degree of enthusiasm for the death penalty that strikingly exceeds that of any other state. Last year the state ended the lives of 15 prisoners – more than twice the number of the next most execution-happy states, Arizona, Mississippi and Oklahoma, which killed six each. The landmark of 500 executions in the modern era vastly overshadows the next state on the death penalty table, Virginia, which has put to death 110.
Such eagerness to judicially kill is reflected in the opinion polls which continue to show overwhelming support in Texas for capital punishment. A University of Texas/Texas Tribune poll last year showed that 73% support it and only 21% oppose.
"We are not in favour of using taxpayers money to support keeping people in jail when they say they would kill again and the jury wants to give them the death penalty," said Ray Hunt, president of the Houston police officers union. Hunt wants to speed up the legal process so that prisoners are executed more quickly, and he wants to extend the death penalty to a wider set of crimes.
"I would give juries the option to impose death sentences for crimes that are heinous such as cutting off your wife's arms with a machete as one Houston man did," he said.
But the stubborn opinion polls and the enduringly high frequency of executions obscure an important truth: even in Texas, the undisputed heartland of the death penalty in America, change is coming. As Kristin Houlé, director of the Texas Coalition to Abolish the Death Penalty, points out, the cases that are now reaching the death chamber have been 10 or 20 years in the waiting and in the interim period attitudes have shifted.
"The executions that are carried out now are a legacy of a Texas as it existed years ago - many of the prisoners scheduled to die would not be put on death row were they to commit their offences today," she said.
The statistics for the number of new death row inmates tell their own story. In 1999 the state reached a peak, adding 48 new inmates. By last year that number had declined to nine, and so far this year juries have handed down just four new death sentences.
There are many reasons for the withering of the death row population in Texas. In 2005 the state legislature introduced a new punishment that allows juries to sentence murderers to spend the rest of their natural lives in prison with no chance of parole – an alternative to the death penalty that is proving very popular.
Juries are also more reluctant to hand out the ultimate punishment – over the past five years they have rejected the death penalty in more than 20 capital cases.
Prosecutors too are becoming increasingly hesitant to press for the ultimate punishment. Part of the reason for their caution is the exorbitant cost of state killings: studies suggest that the average price for the taxpayer of a death penalty case in Texas is $2.3m, compared with $750,000 for keeping a convict in jail until they die by natural causes.
"In smaller counties in Texas, a death penalty case can literally break the budget – it can absolutely break the bank," said Sam Millsap, who was district attorney of Bexar County around San Antonio in the 1980s.
Millsap was chief prosecutor in five capital murder cases during his time as DA. He was by his own description imbued at that time with a "naive confidence in the system's ability to get things right".
But the system did not always get things right. One of those five cases was that of Ruben Cantu, and when many years later evidence emerged posthumously that cast serious doubt on Cantu's conviction, Millsap went through what he calls an awakening.
"My attitude to the death penalty went through a sea-change. I realised that the system I always had so much confidence in was making far too many mistakes."
Now firmly opposed to capital punishment, Millsap has no illusions that his sceptical views are shared by the current crop of Texan DAs who outwardly retain an unbending faith in the death penalty. "They say all the right things in public because they have to. If you don't support the death penalty in Texas you don't get elected."
But he believes that prosecutors are applying much more rigorous criteria today before they launch a capital case, which is bringing down the numbers of new sentences sharply.
A paradox arises from the winds of change blowing across the Lone Star state. As the number of capital convictions falls, the application of the death penalty is becoming even more arbitrary.
Racial disparities are becoming more pronounced. As the Texas Coalition to Abolish the Death Penalty has shown, seven out of the nine new incumbents of death row last year are black and one is Hispanic; only one is white. Over the past five years, almost 75% of all death sentences in Texas have been handed down to African Americans or Latinos.
Geographically, arbitrariness is also on the rise. Since 2008, more than half of all new death sentences have been issued by just five out of the state's 254 counties; Dallas County alone accounts for almost one in five of them.
That is the final paradox of Texas's dark statistic of 500 executions. The count begins in 1976 when the US supreme court allowed executions to start again after it had put a stop to the practice four years earlier.
In that original 1972 ruling, Furman versus Georgia, the supreme court found that the death penalty in America was so arbitrary in its application that it amounted to cruel and unusual punishment in violation of the US constitution. Those who were sent to the death chamber were, the court ruled, "a capriciously selected random handful upon whom the sentence of death has been imposed".
Forty years and 500 executions later, the experience of Texas suggests that the assessment is disturbingly contemporary and chillingly accurate.
Courtesy: The Guardian
