Texas Execution Primer

This document explains the basic operation of the capital punishment system in Texas. It begins with the crime, and then includes a trial, incarceration, an appeals process, some final appeals, and finishes with the execution itself.

The Crime
Only one category of crime is punishable by death in the United States -- capital murder. Each state defines which murders are classified as capital murders and are, therefore, eligible for the death penalty. In general, the states do not classify "crimes of passion" to be capital murder. That is, if two people get into an argument, and one ends up killing the other, that usually is not capital murder. The rationale is that this kind of murder occurs in the heat of the moment, when the subjects are irrational and unlikely to consider the penalties of their actions. Furthermore, in "acquaintance murders", it is assumed that there is some history between the murderer and the victim, and that the victim may have initiated or aggravated the situation that resulted in his or her death. This is not to say that the murder can be excused, but rather that the murderer might have felt provoked or justified and was not acting from the simple cold-bloodedness that characterizes a capital murder. Capital murder is usually defined so as to include murders that are premeditated, or murders where the victim was completely blameless and was killed mainly because he or she got in the way of planned criminal activity, or was a witness to a crime.

Texas law defines capital murder as follows:

1. murder of a peace officer or firefighter acting in the line of duty, when the person knows the victim is a peace officer or firefighter,
2. murder during the commission of kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation,
3. murder for remuneration,
4. murder during prison escape,
5. murder of a correctional employee,
6. murder by a state prison inmate who is serving a life sentence of any of five offenses (murder, capital murder, aggravated kidnapping, aggravated sexual assault, or aggravated robbery),
7. murder of more than one person in one event, or of multiple persons in a related series of events, or
8. murder of an individual under six years of age.

Trial
When a person is charged with capital murder, he or she is usually placed in county jail until the trial is over. Capital murder cases, like all other state felonies, are tried in district courts. In sparsely populated areas of the state, several counties may be served by a single district court which also hears civil, juvenile, and family cases. In urban areas, there may be many district courts, including some that specialize in criminal cases.

A capital murder trial proceeds according to the normal rules of criminal procedure and due process that we need not get into here. The main distinctive feature of the capital murder trial occurs after the jury has rendered the guilty verdict. If the state has not sought the death penalty in the case, the judge must sentence the defendant to life in prison. If the state has sought the death penalty, then a punishment hearing is held in the same court before the same trial jury. The state and the defense are allowed to present arguments for and against the sentence of death, including the entrance of evidence and any aggravating or mitigating circumstances they consider to be relevant to the death sentence. At the conclusion of this hearing, the judge instructs the jury to answer two questions:

• whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society, and
• if the jury charge permitted the defendant to be found guilty as a party to capital murder, whether he or she actually took the life of the deceased, intended to kill the deceased, or anticipated that a human life would be taken.

If the jury of twelve unanimously answers "yes" to both of these questions, then the judge asks a third question:

• whether, taking into consideration all of the evidence and circumstances, the defendant's character and background, and the personal moral culpability of the defendant, there are sufficient mitigating circumstances to warrant that a sentence of life in prison without parole be imposed, rather than a death sentence.

If the jury unanimously answers "yes" to the first two questions and "no" to the third question, then the defendant is sentenced to death by lethal injection. Otherwise, the defendant is sentenced to life in prison without parole.

The above procedure applies to offenses committed after September 1, 2005. Between September 1, 1991 and September 1, 2005, the procedure was exactly the same, except that offenders not sentenced to death could become eligible for parole. For offenses committed prior to September 1, 1991, the procedure was similar, but the jury questions were different.

Incarceration
After the defendant has been convicted of capital murder and the sentence has been passed, he is immediately transferred from county custody to state custody. By this time, it is usually around 12 to 15 months from the date of the prisoner's arrest.

All male Texas death row prisoners are sent to the Texas Department of Criminal Justice's Polunsky unit (formerly known as the Terrell unit) in Livingston. Female offenders are sent to the Mountain View unit in Gatesville. Death row offenders are housed separately from the rest of the prisoners in single-man cells measuring 60 square feet, with each cell having a window. They are also recreated individually. They are not allowed to watch television, but some are allowed to have a radio.

Wednesdays at the Polunsky unit are media visitation days. For two hours, reporters are allowed to visit with the condemned men whom prison officials have approved for interviews. Typically, each prisoner is interviewed a week before his execution by an Associated Press reporter and a reporter from a newspaper from the area where the crime was committed. Inmates from highly-publicized cases might receive more interviews. Mondays are media visitation days at the Mountain View unit, where the women's death row is located.

It costs $49.54 per day to house each death row inmate, compared to the system-wide average of $37.03.

Appeal
After the trial in district court, there are appeals. The first stage of appeals is the direct appeals stage, and the first appeal of that stage is always to the Texas Court of Criminal Appeals, the highest criminal court in the state. Every death penalty case is automatically sent to the Court of Criminal Appeals, even if the defendant wishes to waive his appeals.

The Court of Criminal Appeals is composed of nine judges, who hear each case. In most cases, they issue their verdict as a published opinion. Their verdicts can range from affirming the trial court's verdict to overturning it and ordering a new trial. In rare cases, the Court of Criminal Appeals enters a directed verdict, which means that the defendant is to receive a new trial and is to be found not guilty. The elapsed time from trial to CCA verdict is usually about one to two years.

The side that loses in the Texas Court of Criminal appeals, whether it be the defendant-appellant or the state, often asks for a rehearing, and that request is usually denied. If the CCA affirms the trial court's guilty verdict, the next step for the defendant is to petition the U.S. Supreme Court for a writ of certiorari. The Supreme Court almost always denies this writ, for it is beyond rare for the Supreme Court to take a capital murder case on direct appeal. When the writ of certiorari is denied, or if the defendant does not request the writ, the defendant's conviction is then considered final, and the direct appeals stage is over. This usually happens within a month of the Court of Criminal Appeal's verdict affirming the conviction.

The next stage of appeals is the habeas corpus stage. In this stage, the defendant raises issues that were not raised in his trial. Habeas corpus writs may be filed in both state and federal courts, and they may be heard by the trial court, the Court of Criminal Appeals, a federal district court, the U.S. Fifth Circuit Court of Appeals (New Orleans), and the U.S. Supreme Court. The habeas corpus stage may take many years, or it may go very quickly.

If any appeals court finds what it determines is a serious error, it can reverse the guilty verdict (trial phase) or the death sentence (punishment phase), or both. Often, the case is then retried before a new jury, and the prosecution attempts to arrive at another guilty verdict and death sentence. In such cases, the offender remains on death row. If the prosecution is successful in obtaining a new death sentence, the appeals process starts all over again. Of course, if the defendant is retried and is found not guily, or is convicted but sentenced to a lesser punishment, then he is either freed or removed from death row, as per the verdict. He can also be freed or removed from death row if the state does not retry or resentence him within the time specified by the appeals court.

Final Appeals
When the prosecution is ready, it asks a state district judge to set an execution date. Execution dates are generally set from one month to six months away, with two to three months being the most typical.

In theory, when an execution date is set, the state is not just authorized, but required to execute the prisoner on that date. In reality, the setting of an execution date usually starts another round of appeals and opportunities for judicial and/or executive intervention, so that even though most execution dates are met, the final authorization to carry out an execution on the specified date is usually not given until the actual day of the execution.

If the prisoner and his/her attorneys have any remaining appeal strategies, they will usually wait until a week or two before the scheduled date to commence them. If they are successful, they will get the execution date erased from the schedule. When the date is only two or three days away, the strategy usually shifts to one of trying to delay the execution, by arguing that new evidence or arguments exist that no trial or appeals judge has heard yet, and the execution must be temporarily delayed while this new evidence can be considered. Sometimes there will be numerous appeal petitions filed in the final days. The final appeal to the U.S. Supreme Court is usually seen as the prisoner's last judicial hope, and it is usually timed so that the Court's ruling is made no more than one day before the planned execution date.

At the same time that the defense is exhausting its legal appeals, it may file a petition with the Texas Board of Pardons and Paroles. The members of the parole board are appointed by the governor. The board has the power to grant everything from a 120-day reprieve, to a commuted sentence, to a full, unconditional pardon. The board does not meet as a body; rather, each member considers the case and faxes his or her vote to the governor. The governor may also request that the board members issue a certain ruling, but they do not have to comply. The parole board's vote is almost always taken the day of the execution. Decisions are rendered by majority vote.

Without a court ruling or parole board recommendation, there is only one person that can stop the execution, and that is the governor, who has the unilateral authority to grant a 30-day stay. This power may be used only once per prisoner. Even if the execution ends up being delayed for years, when it is ultimately reset, the governor (or his/her successor) may not issue another stay for that prisoner. Because of this, the governor always waits until every other last resort has failed, which means that if a stay is issued, it will be within hours or even minutes of the execution time.

If the governor is out of the state, the emergency appeal authority rests in the hands of the lieutenant governor. The lieutenant governor is independently elected and may be of a different political party and/or ideology than the governor. The absent governor may express his opinions or wishes, but the lieutenant governor is not legally required to defer to them.

Although the governor's power to intervene is called a 30-day stay, in reality it is usually longer -- months, years, even decades -- before the execution is carried out. But, it cannot be carried out for at least 30 days, and any further delays beyond 30 days are under the control of the courts and the parole board, not the governor.

The Execution
Executions are always scheduled to begin at 6:00 p.m. on a weekday. Texas used to schedule executions at midnight -- as many states still do -- because that gave the state the maximum amount of time to deal with last-minute delays. (If an execution is not carried out by the end of the scheduled day, it must be rescheduled.) However, in 1995 the state began allowing friends and relatives of the victims to witness executions, and the time change to 6:00 p.m. was made to make it more practical for them to attend, not to mention the added convenience to the prison staff, media, and prisoners' witnesses.

The final countown begins when the prisoner is transported to the Huntsville unit. This is usually done on the morning of the execution, but sometimes, the prisoner is transported the night before. In order to avoid surprises and problems from interfering with the execution, the state does its best to avoid all publicity that day. The time of the transport to Huntsville, 45 mintues away, is undisclosed, as is the route taken by the transport vehicle. By the warden's orders, the condemned inmate is never allowed to be interviewed on execution day.

In keeping with tradition, condemned prisoners are allowed to choose a last meal. Many select a fairly simple fare of cheesburgers, fries, and a soft drink. Other common selections are steak, fried chicken, eggs, and enchiladas. Although inmates sometimes request them, tobacco, alcohol, and gum are prohibited by TDCJ regulations. Some prisoners' last meal requests are long, imaginative, and detailed, while others simply ask for an apple. Some decline the last meal, either for symbolic reasons or because they have no appetite.

In the afternoon, witnesses for the condemned and witnesses for the victims arrive in separate waiting rooms near the death chamber. A state employee counsels victims' witnesses regarding what they are about to see. Meanwhile, prison officials and approved media witnesses gather in the TDCJ administration building to await confirmation that the execution is going to proceed as scheduled. The state allows five media witnesses at each execution, and three of the seats are permanently allocated to the Associated Press, United Press International, and the Huntsville Item. The other two seats are allocated by prison officials, who have a "Texas-first" policy. That is, media from Texas are given priority to out-of-state or foreign media. When the call is received that the execution is a go, the party walks across the street and splits up, with one prison official and some media going into the prisoner's witness waiting room, and another official and the other media going into the victim's witness waiting room. Reporters are instructed not to talk to the witnesses.

The prison chaplain attends to the prisoner during his final hours. He usually meets with the prisoner the day before the execution, to introduce himself. They see each other again the day of the execution. The chaplain performs a variety of roles, from listening to the prisoner's confession and offering spiritual guidance, to answering the prisoner's questions about the execution process, to helping with his last meal, phone calls, and other miscellaneous requests.

At 6:00 p.m. sharp, the prisoner is taken from the holding cell outside the execution chamber. He is strapped to the gurney, face up, and wheeled into the chamber. When the prisoner is in place, guards escort the two witness parties into their respective rooms. With the prisoner's arms extended outward on supports, IV's are inserted into both arms and a saline solution is started. After the saline has flowed for a few minutes, everyone leaves the chamber except the prisoner, the warden, and the chaplain. The warden usually stands behind the prisoner. The chaplain stands at his feet, with his hand on the prisoner's ankle. This is when the prisoner is allowed to make a last statement. He speaks into a microphone suspended just above his head. Occasionally, he will have the chaplain read a prepared written statement instead of or in addition to his oral statement.

The prisoner's final statement is perhaps the most variable part of the entire execution process. Some prisoners use the last statement to either accept their guilt or proclaim their innocence, while many do not address the crime at all. Some last statements are angry, defiant tirades against the justice system and the people engaged in it -- prosecutors and district attorneys are often mentioned by name. On the other hand, many prisoners take a resigned, forgiving tone. A few prisoners apologize to the victims' families, while others say things like, "I hope you're happy now." Quite a few prisoners say prayers, quote Scripture, or proclaim their beliefs in God, Jesus, or Heaven. If a study was done of prisoner last statements, it would probably find that the most oft-used word is "peace." Almost all prisoners include well-wishing and expressions of love to their own family and friends.

As soon as the last statement is finished, the warden signals for the lethal dose to begin. The anonymous executioner in another room releases the chemicals via remote control. The injection consists of three drugs: sodium thiopental, a sedative; pancuronium bromide, a muscle relaxant (to stop the diaphragm); and potassium chloride, to stop the heart. Some prisoners make additional remarks after the lethal dose has begun. These remarks are not included in the official last statement, but they are heard and recorded by media witnesses. Prisoners have mentioned a bad taste in their mouths and a cold sensation in their throats.

Although the prisoner loses consciousness in about ten seconds, it takes a few minutes for death to come. The official pronouncement of death is usually issued around 6:20 p.m., plus or minus five minutes.

Condemned prisoners may leave directions for the disposal of their bodies, and the state will turn a body over if someone claims it. Unclaimed bodies are buried in an inmate-maintained cemetery a mile and half away.

On the rare occasions that there are two or more executions scheduled for the same day, they are performed about an hour apart. New needles and tubing are used for each execution. Multiple executions sometimes occur because execution dates are set by district judges in the counties where the crimes occurred, not by the state.

Copyright © 2002-2008 by David Carson. Unauthorized publication, either printed or electronic, is prohibited. This includes posting to Usenet.