Being a horse farmer and horse raiser, I know what it's like to try to eliminate an injured horse by shooting him. Now you call the veterinarian and the vet gives it a shot [injection] and the horse goes to sleep—that's it. I myself have wondered if maybe this isn't part of our problem [with capital punishment], and maybe we should review and see if there aren't even more humane methods now—the simple shot or tranquilizer.
Ronald Reagan, governor of California, quoted in "They Shoot Horses, Don't They," Time, October 8, 1973
On July 30, 1964, Joseph Johnson, a black man convicted of murdering a Chinese grocer during a robbery in Houston while on parole, walked the infamous "last mile" at the Walls Unit of the Texas State Penitentiary at Huntsville, from death row to the death chamber. An eyewitness to the execution reported his final minutes:
He entered the Death House at 12:02 a.m. He was carrying a white bible. He asked for and was granted permission to kneel and pray. "Oh God, have mercy on these people," he intoned. "Have mercy on me, and bless these people." He died with the bible in his lap. When the electricity shocked him, the bible spun from his lap with such speed that it landed in the witness area. The doctor pronounced him dead at 12:08 a.m., July 30, 1964.
Unbeknown to those present, Joseph Johnson's death signaled the close of an era: he was the last inmate to be electrocuted in Texas's electric chair. Johnson was the 361st Texas inmate to take part in a macabre tradition: the ritualized walking of the last mile to the execution chamber for an appointment with "Old Sparky." With the passage of Senate Bill 63 in 1923, executions had been removed from local authorities and centralized in Huntsville, the site of the new electric chair. This technological innovation was heralded as a major advance over its predecessor, the hangman's noose, and ushered in a new era of capital punishment in Texas. The ritual that had begun with the electrocution of five black murderers from East Texas counties on February 8, 1924, had effectively come to a close with the electrocution of Joseph Johnson in 1964.
Overcrowding caused by increased delays in federal courts prompted officials to move death row inmates from the Walls Unit in Huntsville to the rural Ellis Unit shortly after the last electrocution. These court delays were the result of a concerted strategy by the NAACP Legal Defense Fund to halt executions by raising every possible constitutional claim in every death row inmate's case in an effort to clog up the court system. The strategy resulted in a de facto moratorium on executions from the late 1960s (the last U.S. execution of this era taking place in June 1967) until the late 1970s (the first execution of the modern era taking place in January 1977). This de facto moratorium resulted in a pile-up on death rows across the United States as civil-rights attorneys battled the death penalty in federal courts.
This movement culminated in Furman v. Georgia (1972), in which the U.S. Supreme Court announced, in its lengthiest decision, that the death penalty, as imposed, constituted cruel and unusual punishment. In this per curiam decision (one written as if by the entire court rather than a particular justice), each justice offered a separate opinion. One issue on which the five majority justices did agree was that a lack of juror guidance in sentencing deliberations had resulted in the arbitrary, and sometimes discriminatory, imposition of the death penalty.
The Texas case of Elmer Branch, joined with two Georgia cases in Furman, illuminated the worst aspects of the death penalty. All three death-sentenced inmates were black, and each had had a white victim. Worse still, two of the appellants, Branch and Jackson, had raped but not killed their victims. It was fairly clear that the historical practice of lynching black offenders for raping white victims in the South had been merely transformed and legitimized by subsequent "legal" executions by the state. This evidence provided the strongest argument against the death penalty, on the grounds that it was an antiquated, racist vestige of slavery.
Across the United States, more than six hundred inmates were released from death row as a result of the Furman decision. In Texas, forty-seven death-sentenced inmates had their sentences commuted to life imprisonment. The moratorium imposed by court delays and the subsequent decision in Furman effectively brought to a close the second major era of capital punishment in Texas.
At the dawning of the modern era, a great deal of uncertainty existed surrounding the future of capital punishment. Public-opinion polls showed that support for the death penalty, although rising, had been at its lowest recorded level just a few years earlier. The ambivalence of the public was reflected in the nine opinions by the justices in Furman. Many observers believed that Furman signaled the end of the death penalty in the United States. Indeed, from the timing of the decision it appeared that the United States was simply following an international trend in abolishing the death penalty. However, by declaring the death penalty unconstitutional as then imposed, but not cruel and unusual punishment per se, the Supreme Court left the door open for states hoping to devise constitutional death-penalty statutes.
The separate opinions in Furman were subjected to intense scrutiny by state legislatures in an effort to determine exactly where a majority of the Court stood on the issue of capital punishment. Careful reading of the opinions revealed that only two justices opposed the death penalty as cruel and unusual in all situations. Capital punishment, at least in theory, was acceptable to the majority of the justices as long as it advanced a "legitimate penological purpose." The more pragmatic concern then became one of properly constructing a death-penalty statute that would pass constitutional muster when reviewed by the Court. It is within this ambiguous context that state lawmakers in Texas and elsewhere debated the future of capital punishment during their 1973 legislative sessions.
Reinstatement of the Death Penalty
One certainty derived from Furman was that any death-penalty legislation would have to include safeguards against the arbitrary or discriminatory imposition of death sentences. The discretion of juries would have to be either severely curtailed or completely eliminated to ensure a degree of regularity in the process. States could take one of two paths to accomplish this goal. First, they could pass statutes to make capital punishment automatic upon conviction for certain narrow categories of murder, such as killing a police officer or killing during the course of a robbery. This was the tack taken by members of the House of Representatives in Texas. They proposed that death be mandatory for those convicted of murders committed within a limited range of situations.
Second, states could establish criteria to guide jurors' sentencing deliberations. States taking this approach typically borrowed from the American Law Institute's Model Penal Code to compile a list of aggravating and mitigating circumstances that would serve to guide jury deliberations. This was the approach taken by the Texas Senate, following closely in the footsteps of Florida, the first state to reenact the death penalty after Furman.
The debates in the Texas House and Senate over the potential infirmities of each other's proposed versions of a new death-penalty bill highlighted the problems with these approaches and the uncertainty legislatures across the country faced. Members of the House did not believe that the Senate's version would meet the dictates of Furman, because it left too much discretion to the jury in making a sentencing recommendation and because it left the judge, who was to be the final arbiter, completely unguided in that role. Representatives thus believed that the only way to make sentencing consistent was to force its imposition in every capital-murder case resulting in conviction, which would purge any potential arbitrariness or discrimination from its application. Critics in the Senate noted that even under the House's version of a "mandatory death penalty," discretion still existed in prosecutors' charging decisions and in juries' ability to convict defendants of lesser degrees of murder, which would not carry the possibility of death sentences. Further, senators who had carefully analyzed the dicta of the separate justices' opinions determined that a mandatory death penalty did not enjoy support among a numerical majority of the justices.
As the sixty-third legislative session neared its end, neither side was willing to accept the core portion of the other's bill. However, members of the "Reform Legislature," so called because nearly half of the senators and a large number of representatives had been replaced because of the Sharpstown scandal, were particularly anxious to fulfill their obligations to the public and to Lieutenant Governor William Hobby, and both Hobby and the public fervently supported the reenactment of capital punishment. During the final week of the legislative session, a conference committee feverishly sought a compromise between the House and Senate versions of the bill, one that would pass muster with both sides. The compromise resulted in a uniquely hybrid capital-sentencing scheme.
First, the conference committee adopted a circumscribed list of criteria for defining capital murder, as suggested by the House and expanded by the Senate. The categories of capital murder passed into law in 1973, as well as those added since, include the following:
- the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;
- the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation;
- the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration;
- the person commits the murder while escaping or attempting to escape from a penal institution;
- the person, while incarcerated in a penal institution, murders another:
- (A) who is employed in the operation of the penal institution; or
- (B) with the intent to establish, maintain, or participate in a combination or in the profits of a combination;
- (6) the person:
- (A) while incarcerated for an offense under this section or [for murder], murders another; or
- (B) while serving a sentence of life imprisonment or a term of 99 years for [aggravated kidnapping, aggravated sexual assault, or aggravated robbery], murders another;
- (7) the person murders more than one person:
- (A) during the same criminal transaction; or
- (B) during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct; or
- (8) the person murders an individual under six years of age.
By utilizing the House's narrowed definition of capital murder as a starting point, the Texas statute resembled those of other states enacting mandatory death-penalty schemes. However, senators' demands that death not be automatic upon conviction meant that some mechanism for allowing discretion in sentencing deliberations had to be devised. Representatives were adamant that such discretion be extremely limited, which ruled out the Senate's scheme of allowing jurors to weigh a long list of aggravating and mitigating factors during their deliberations. Instead, sentencing considerations were to be structured so that jurors' discretion would be almost completely constrained. The result was a series of questions, or "special issues," to be answered by jurors during deliberations:
- Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
- Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
- If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
Depending on the answers given by the jurors to these special issues, the defendant automatically received a sentence of either life in prison, or death. The jury was not directed to vote specifically for a death sentence or a life sentence, but rather just to answer the special issues to the best of its ability. Affirmative responses by all twelve jurors to each of these three questions would result in a sentence of death. A negative response by at least ten jurors to one or more of these questions, or a failure of the jury to answer any special issue, resulted in a life sentence.
Along with other states, Texas began sentencing inmates to death using its newly enacted death-penalty statute, and waited for a determination of its constitutionality by the U.S. Supreme Court. The Court's decision concerning the constitutionality of Texas's death-penalty statute, along with those of four other states, was handed down in 1976. This series of decisions confirmed the view held in the Texas Senate: guided discretion was a necessary component in building a constitutional death-penalty statute. In two of these decisions, the Supreme Court struck down mandatory death-penalty statutes, holding that capital-punishment statutes must allow for individualized consideration of the defendant's culpability and the circumstances surrounding the crime. In the three other cases, the Supreme Court upheld the "guided discretion" statutes of Georgia, Florida, and Texas.
The Texas statute stood apart from those of Georgia and Florida, as well as any others then in existence. Commentators noted that the Texas death-penalty scheme was the closest to a mandatory death penalty imaginable in its original incarnation, with virtually no room for individualized consideration. Although the special sentencing issues appeared quite restrictive, the Court held that the second special issue, concerning the defendant's potential for future violence, was broad enough to allow jurors the discretion necessary to consider aspects of a case that might be viewed as mitigating in regard to the sentence:
[T]he constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors. . . . In the present case, however, [the Court of Criminal Appeals] indicated that it will interpret this second question so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show. . . . Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital-sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.
Although it initially affirmed that the Texas statute allowed jurors individualized consideration, the Supreme Court was later faced with an unforeseen circumstance. In Penry v. Lynaugh, a defendant with a low IQ who had also suffered abuse as a child charged that the second special issue actually worked as an aggravator in his case: jurors were likely to view Penry as a greater future threat because of his low IQ and history of abuse, and would thus fail to give proper weight to these as mitigating factors. The Supreme Court agreed, and the Texas special sentencing issues were amended for the first and only time since the legislative reimplementation of capital punishment.
To meet the Court's concerns in Penry, the Texas legislature added a sentencing issue that explicitly called for the jury to consider the defendant's mitigating circumstances. Simultaneously, the legislature rescinded the first and third special sentencing issues, relating to deliberateness and lack of provocation. In their place, the legislature added another special issue that is asked only in cases involving accomplices who did not actually commit the murder. Under the revised sentencing scheme, jurors are first directed to consider "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society," formerly the second special issue and the only original sentencing inquiry remaining. In applicable cases, jurors are then asked "whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken." A negative response to either inquiry results in a life sentence. If the jury answers these questions in the affirmative, it is then directed to consider
[w]hether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than the death sentence be imposed.
An affirmative response to this inquiry results in a life sentence, whereas a negative response results in a death sentence.
The Development of a New Technology
A murder committed in Utah only two weeks after the Supreme Court upheld the constitutionality of death-penalty schemes in guided-discretion jurisdictions resulted in the first death sentence actually carried out during the modern era. On July 19, 1976, Gary Gilmore murdered a gas station attendant during a robbery. The following day he murdered a motel manager, the crime for which he received the death penalty. Upon conviction, Gilmore waived his appeals in what has become one of the most celebrated cases in American jurisprudence. After two reprieves granted against his wishes and two unsuccessful suicide attempts, Gilmore was executed on January 17, 1977, ending a nearly decade-long moratorium in the United States.
Gilmore's case attracted widespread media attention. In addition to being the first person set to be executed in nearly a decade, Gilmore actively sought his own execution and sold the rights of his story to a publisher for $50,000. Perhaps the most intriguing part of the story was the method of execution. Gary Gilmore was to be executed by firing squad. Since the last execution by firing squad had been seventeen years earlier, when Utah executed James Rodgers, it took some time for those charged with performing the execution to come up with a suitable protocol. Utah was not unique in this regard. Although trial procedures had been updated as a result of Furman, jurisdictions had simply carried over their methods of execution from the previous era of capital punishment, including hanging, the gas chamber, and, most commonly, the electric chair.
When the sixty-fifth session of the Texas Legislature convened in January 1977, the death penalty was an issue again ripe for consideration. After the U.S. Supreme Court's stamp of approval in Jurek (the case that legitimized Texas's revamped death-penalty law), and as several death-sentenced cases neared the end of their scheduled round of appeals, Texas's first execution of the modern era was imminent. A federal district judge in Dallas had recently ruled that the state's first execution could be televised, promising a media event comparable to Gilmore's execution. Like other states, Texas had maintained its mode of execution, electrocution, from the previous era of capital punishment. Although more common than death by firing squad, electrocution was certainly no less grisly.
Given this confluence of events, it is not surprising that the idea of using lethal injection as a method of execution resurfaced. At the close of the nineteenth century, concern over botched hangings led to the appointment of a committee in New York to recommend a new method of execution. Although finally settling on electrocution, the committee reported favorably on the "injection of a lethal dose of prussic acid [cyanide]." Facing enormous publicity at the outset of the modern era, legislators sought a form of execution that would be more palatable than electrocution and more likely to withstand public scrutiny.
Legislation was introduced simultaneously in the Texas House and Senate to change the mode of execution from electrocution to lethal injection. Statements by the sponsors of the bills showed that electrocution had come to be viewed as an inhumane relic of a previous era. Of electrocution, Representative Close stated, "It's a very scary thing to see. Blood squirts out of the nose. The eyeballs pop out. The body almost virtually catches fire. I voted for a more humane treatment because death is pretty final. That's enough of a penalty." Senate sponsor Bill Braecklein introduced the bill in response to the federal judge's ruling that executions could be televised, stating that he "was repulsed by the idea of an electrocution taking place in someone's living room."
Advocates of lethal injection feared that the sensationalism surrounding an electrocution would send the wrong message, possibly making a hero or martyr out of the condemned, as had happened with Gilmore's death by firing squad. This would not vindicate the murdered victim, nor could an execution carried out under such circumstances be expected to prevent others from committing murder. By introducing the lethal-injection bill, Representative Ben Z. Grant hoped to avoid the negative aspects associated with Gilmore's execution. He stated that "the death penalty should be swift and sure punishment, not something that takes away from the dignity of the state. The way we do it now creates a circus atmosphere that makes heroes out of criminals."
Grant credited a previous discussion in the legislature over the humane disposal of animals for the idea that lethal injection could be used for executions:
When we reinstated the death penalty a few years back, I was taking testimony before the Judiciary Committee, and we had some folks [from the Humane Society] testifying about humaneness to animals. I asked them, "If we had a dangerous animal and we decided that it had to be put to death because it was dangerous, what if we burn it to death with electricity?" And the man said, "Oh, we'd bring a lawsuit and enjoin that. That would be cruel and inhumane." And I said, "That's ironical. That's what we just voted to do to people."
Those intimately involved with the task of executing condemned inmates viewed lethal injection as a more humane alternative to electrocution. W. J. (James) Estelle, Jr., director of the Texas Department of Corrections and the man charged with carrying out the task, stated, "[I]f we're going to retain the death penalty, the lethal injection method suits our state of civilization more than electrocution." Reverend Clyde Johnston, a prison chaplain who had provided solace to fourteen men executed in the electric chair, presented an idyllic vision of how the alternative method could be conducted:
I would like to see this carried out in a nice clean room, something that doesn't look like a prison. Certainly not the death cell. I can conceive of how this could be handled in such a way that it could be considered gentle, humane, if done with care. I hesitate to use the word pleasant, but it would be just like someone going in, laying down, and going to sleep.
The apparent ease of performing lethal injections, which would lack the horrific trauma to the body associated with electrocution, led most to willingly accept this proposed alternative. Psychologist Verne Cox noted that it was likely that "people are responding to [death by injection] favorably because of the way we were reared. As children, we were often told that [death] was like sleep. And here we have a method of killing people that is like sleep."
Most of those questioning the use of lethal injection stated their opposition to the death penalty generally, using broad moral terms. However, they also cautioned that this new method, in particular, would make it too easy for the public to accept the taking of life, opening the execution floodgate. The insidious nature of lethal injection led one opponent, John Duncan of the Texas Civil Liberties Union, to comment that "[n]eedle injections by executioners in white coats in a hospital are the Orwellian equivalent of the 19th and early 20th Century phenomena of people gathering for miles around in a picnic atmosphere to watch a public hanging." Tom Flowers, of the Texas Coalition to Abolish the Death Penalty, warned:
I have heard it said that there is [sic] some people in society that we just don't know what to do with, and these people have to be eliminated. And, that's the word that has been used several times in the past few weeks. There is a certain class of people that have to be eliminated. And, it seems to me that this is a very tragic word. We can look back thirty and thirty-five years in history and see what happened when a certain class of people were considered worthy of elimination, a criminal class of people according to a certain country, whether they were gypsies, Jews, homosexuals, communists, socialists, whatever type of undesirable.
Another outspoken opponent, former representative Maury Maverick, Jr., questioned supporters' "humaneness" as a motivation for switching to lethal injection, stating that "death by painless injection is not for the benefit of the deceased, but for the benefit of the affluent white majority which kills blacks, browns and poor 'white niggers' in the name of Texas." Speaking further about the racially biased implementation of the death penalty, he posed the question, "Why don't we extend this base cruelty all the way and give blacks poisoned watermelon in the hope that they will come out of the death chamber grinning from ear to ear?"
One supporter of capital punishment, Kenneth Wayne Roberts, also criticized the use of lethal injections, but for different reasons, stating:
The testimony that's been presented thus far has said that we should treat human beings like the way, as humanely as we do animals. But, I would like to say this, that animals do not go out and slaughter innocent people like Gary Gilmore, Charles Manson, and some of the other vicious murderers. I personally feel it is an easy escape hatch for some of these murderers because many of them have been on drugs before or been alcoholics. They won't mind taking another drug injection. What I'd like to know is how this drug injection is going to deter a would-be murderer from doing it.
Notwithstanding such jaundiced criticisms, the bill passed, and was signed into Texas law on May 12, 1977, only one day after Oklahoma became the first state to officially switch to lethal injection. The law provided for execution "by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such a convict is dead, such execution procedure to be determined and supervised by the Director of the Department of Corrections." In the week before Texas's first scheduled execution, that of Howard Lincoln, Director James Estelle decided, in consultation with medical experts, that the anesthetic sodium thiopental would be the substance administered in a dosage sufficient to cause death. The muscle relaxant pancuronium bromide, which collapses the diaphragm and the lungs, and potassium chloride, which stops the heartbeat, were subsequently added to the lethal potion before the first execution took place.
Lincoln's execution was not carried out as scheduled, because of a legal challenge that temporarily stayed all death sentences. Kenneth Granviel, another condemned inmate scheduled to die in September of 1977, filed a lawsuit with the Texas Court of Criminal Appeals, challenging the use of lethal injection as a cruel and unusual punishment and attacking the new law for vagueness, in that it failed to specify which substances would be used. The court held that lethal injection did not violate "evolving standards of decency that mark the progress of a maturing society" and as such did not violate the Constitution's prohibition against cruel and unusual punishments. The court further rejected Granviel's vagueness argument after reviewing state statutes authorizing hangings, firing squads, and electrocutions, none of which specified in detail the manner of execution (i.e., height of fall, type of bullets, or amperage). Granviel survived another nineteen years before being executed by lethal injection; Lincoln's sentence was commuted.
Legal challenges to other general procedures in the implementation of capital punishment continued to prevent any lethal injections from taking place in the 1970s. Two procedural challenges that affected many of Texas's death row cases were finally decided by the U.S. Supreme Court in the early 1980s. In Adams v. Texas, the Court held that potential jurors could be removed from the jury pool during voir dire "for cause" only if their opposition to the death penalty would interfere with their ability to apply the law. In Estelle v. Smith, the Court ruled that state psychiatric examinations of defendants were subject to the Fifth Amendment protection against self-incrimination and the Sixth Amendment right to counsel. Not only did these and similar legal claims prevent executions from going forward in the state, but they also resulted in a number of overturned cases.
Lethal Injection Moves to the Fore
Executions got off to a slow start in the modern era while condemned prisoners pursued a variety of legal challenges. Inevitably, however, the time came when one of the condemned murderer's appeals had run their course and the state was cleared to perform its first lethal injection. This occurred on December 7, 1982, when Charlie Brooks became the first criminal ever executed by lethal injection.
Rather than walking the fabled "last mile" as so many condemned inmates had done during the electrocution era, Brooks left his fellow death-row inmates behind at the Ellis Unit on his final journey. He was housed alone on the old death row at the Walls Unit, down the hall from the death cell. While Chaplain Johnston had hoped that a more serene atmosphere would be chosen, the death cell had simply been converted to serve more practical needs. A gurney now occupied the place of the electric chair. Just before the appointed time of the execution, witnesses entered the chamber and found Brooks strapped to the gurney with the intravenous (IV) lines already inserted and the saline solution flowing. The lines ran to an IV stand and a drip bag concealed in a booth behind a one-way mirror, next to the decommissioned electric box, where Director Estelle and other unnamed participants stood ready. When asked if he had any final words, Brooks prayed to Allah in Arabic and told his girlfriend, "I love you" and "Be strong." At 12:09 a.m., Warden Pursley said, "We are ready." The executioners inserted the fatal combination of drugs into the drip line.
A journalist present at the execution noted that tiny air bubbles were clearly visible to witnesses and to the condemned as the lethal drugs snaked through the lengthy intravenous line. According to this account, Brooks's obvious "agony of anticipation" before succumbing to the effects of the drugs seemed to cause him more discomfort than the remainder of the process:
It was perhaps a minute, perhaps two minutes, before he felt death creeping in. Then he slowly moved his head toward the left shoulder, and back toward the right, then upward, leftward again, as if silently saying no. . . . Charlie's head stopped midway on its second turn to the left. His mouth opened and a sound came from between his parted lips. . . . The groan that started out as "Ahlllll" ended up as a long, protracted "Uhmmmmm," and his eyes had closed by the time his lips went shut. . . . His head pointed up, his body lay flat and still for seconds. Then a harsh rasping began. His fingers trembled up and down, and the witnesses standing near his midsection say that his stomach heaved. Quiet returned, and his head turned to the right, toward the black dividing rail. A second spasm of wheezing began. It was brief. Charlie's body moved no more.
Doctors pronounced Charlie Brooks dead at 12:16 a.m., seven minutes after the process of execution had begun. Other witnesses agreed that the process was "peaceful and humane." The tranquility of the execution was in sharp contrast to the crime that landed Brooks on the gurney. After stealing a car from a used-car lot during a test drive, Brooks murdered an accompanying mechanic with one shot to the head after binding and gagging him with duct tape and a wire clothes hanger. Witnesses to the lethal injection reported that Brooks appeared to go to sleep and that any suffering was brief. The first lethal injection of a condemned prisoner had gone off without a hitch.
Fifteen months passed before the next lethal injection was carried out in Texas, on March 14, 1984. In 1980 James Autry shot a forty-three-year-old female convenience-store clerk between the eyes with a .38 caliber pistol after arguing over the price of a six-pack of beer, and was sentenced to die for her murder. Autry also shot two witnesses in the head, including a forty-three-year-old former Roman Catholic priest, who died instantly, and a Greek seaman who survived the gunshot but was seriously injured.
The next execution, that of Ronald O'Bryan, followed closely, on March 31, 1984. On Halloween night in 1974, O'Bryan returned from a neighbor's house with some Pixy Stix candy for his son, his daughter, and some of their friends who were trick-or-treating. After ingesting the candy, which had been poisoned with cyanide, his eight-year-old son died a slow, painful death. (None of the other children ate the Pixy Stix.) The motive for the killing was money: O'Bryan had recently increased to $20,000 the amount of life insurance he carried on his son. He made the poisoned Pixy Stix and handed them out to the children after pretending to get them from a neighbor's house. This crime earned O'Bryan, who ironically was a dentist, the nickname "Candyman."
The next execution was that of Thomas Barefoot on October 30, 1984. Barefoot was convicted of capital murder for the August 7, 1978, shooting death of police officer Carl Levin, age thirty-one, of Harker Heights, Texas, outside Killeen. Barefoot, an oilfield roughneck from Louisiana, was wanted in New Mexico for the rape of a three-year-old girl, and killed Levin to avoid arrest. He had previously been arrested for molestation, aggravated assault, attempted rape, armed robbery, assault and battery, burglary, hit and run, possession of a sawed-off shotgun, possession of amphetamines, possession of marijuana, possession of an unregistered firearm, escape, theft, and driving while intoxicated.
Executions increased during the mid-1980s, with six in 1985 and ten in 1986, but then declined to six in 1987 and averaged only four a year through 1991. Compared to the rest of the country, however, Texas experienced an unparalleled wave of executions during the 1980s. Yet by the close of the decade, the total number of removals from death row by commutation or reversal outpaced executions by ratio of 3:1 (99 versus 33). By the early 1990s, most of the roadblocks to lethal injection had been removed, and executions began in earnest. The relationship between executions and removals from death row for other reasons was reversed, as executions outpaced removals by a ratio of 3:1 (166 versus 54) in the 1990s. From 2000-2003, the difference between executions and other removals broadened to nearly 13:1 (114 versus 9). Currently, the number of executions has nearly managed to keep pace with the relatively stable influx of inmates to death row, resulting in a consistent death row population of about 450 inmates at any given time.
Since 1984, the performance of lethal injections has been constantly refined. For those charged with carrying out lethal injections, none of whom were licensed medical personnel, but rather a group of handpicked correctional officers, a great deal of uncertainty surrounded the procedure. Although the initial execution of Charlie Brooks appeared to have gone off without a hitch according to witnesses, behind the curtain the execution team had actually run into a problem. Their first attempt at the injection was foiled when the three lethal substances, mixed together in the same syringe, coagulated to form a jelly-like substance. Introducing the drugs consecutively solved this problem. During one of the early injections, excessive pressure applied to one of the plungers caused the lethal injection line to dislodge from the condemned's arm and spray witnesses who had come to view the execution. On another occasion, when the lethal drugs had been purchased from another vendor, the executioners, unaware that the concentrations of the drugs were different, were surprised when the usual dosage failed to accomplish the objective. After considering whether to inject air bubbles through the line or to use the cyanide kept nearby as a fail-safe, either of which would likely have caused an unsettling response in the condemned, the executioners decided to simply inject all of the remaining drugs from the vials, which proved a timely solution. Nonetheless, the closely knit execution team, members of which typically alternated between performing suicide watches, handling "tie downs", and manning the phone behind the curtain, where a detailed account of the procedure was forwarded to, and transcribed by, the governor's office, experienced little turnover. As such, they were able to refine and carry out the process of lethal injection with dignity and efficiency and without the dramatic or grisly side effects of its predecessors.
The new technology of lethal injection quickly spread to other jurisdictions, becoming the predominant mode of execution during the modern era. Some states initially employed methods of executions left over from the previous eras, but the older methods quickly fell out of favor. Each of the three executions carried out during the 1970s involved a different method of execution: firing squad, electrocution, and lethal gas. Of the 117 executions carried out nationwide during the 1980s, only 36 percent were performed by lethal injection, most of them in Texas; most of the others were performed by electrocution. In the 1990s, 83 percent of the nation's 478 executions were performed by lethal injection. In 2003, all 65 executions carried out across the United States were performed by lethal injection.
Even so, Texas remains the most prolific user of lethal injection, as well as the most prolific executioner during the modern era. Of the 885 executions performed in the United States during 1977-2003, over one-third (313) were carried out in Texas. The jurisdiction with the next highest number of executions was Virginia, with 89. Why is it that Texas accounts for so many of the executions carried out in the United States? Although many attribute this to an almost mythical "frontier justice" mentality on the part of Texans, a number of pragmatic reasons actually account for the disproportion.
The first and most obvious reason is that Texas is one of the largest states, with many highly populated urban centers. Although by the end of 2002 Texas had sentenced more offenders to death than any other state, California and Florida, two other large states with similar demographics, had each sentenced nearly as many offenders to death. The high number of death sentences handed down in these jurisdictions is a direct result of the sheer volume of capital murders. As shown with regard to the deterrence hypothesis, tested in Chapter 2, the use of capital punishment tends to increase in direct proportion to the increased need for the sanction, which is based on the number of murders occurring in a jurisdiction.
The peculiarity of the state's capital-murder statute is often implicated in Texas's large number of executions. Some point to the near mandatory nature of the special-issues framework, which directs jurors to answer questions rather than to debate the type of sentence the defendant is to receive. The data used to test the incapacitation hypothesis in Chapter 3 partially support this contention. During the penalty phase of capital-murder trials, Texas juries sentence over 80 percent of defendants to death, whereas juries in other jurisdictions routinely sentence less than 50 percent of defendants to death. If the near mandatory nature of the special-issues framework were the entire explanation for this difference, however, the percentage of defendants sentenced to death by juries should have decreased after the framework was changed to include explicit consideration of whether the presence of mitigating evidence warrants a sentence of life imprisonment. Yet the percentage of penalty trials resulting in death sentences has remained as high since the addition of this mitigating question.
Others have suggested that the cause of these high death-sentencing rates rests with the special issue requiring juries to consider the likelihood that defendants will "commit criminal acts of violence that would constitute a continuing threat to society." This provision invites the jury to speculate about the "future dangerousness" of the defendant. The evidence presented in Chapter 3 suggests that juries are influenced by considerations of future dangerousness, but this cannot be the entire explanation. The death-sentencing rate in Oregon, the only state with a statute modeled after Texas's, is closer to that of states that ask jurors to weigh mitigating and aggravating factors than to the rate in Texas.
The data presented in the analysis of retribution in Chapter 4, however, illuminate how another aspect of the statute may lead to high death-sentencing rates among capital juries in Texas. First, the types of cases that may be considered death-eligible are somewhat restricted by the statutory definition of capital murder in Texas; most other jurisdictions include a broad array of aggravating factors that allow almost any murder to be eligible for the death penalty. A death sentence is more likely to be viewed as an appropriate sentence for murders committed in this limited range of situations. Second, prosecutors appear to utilize informal yet routine criteria that further narrow their selection of cases to those for which they are most confident the defendant will receive the sanction.
Finally, Texas has simply been more successful in executing those sentenced to death than most other states. Texas has executed more than one-third of those sentenced to death in the state during the modern era (313 of 925). Compare this to California, where only a little more than 1 percent of those sentenced to death have been executed so far (10 of 795). Some states have been even more successful than Texas in clearing obstacles to execution. Virginia, for example, has successfully executed 65 percent of its death-sentenced population (89 of 137).43
The data and discussion in Chapter 5 illuminate some additional reasons for Texas's level of success in administering capital punishment. First and foremost, all three branches of government in Texas have upheld the will of its citizens, who have been shown to support capital punishment; many other U.S. jurisdictions are currently battling a lack of comparable unanimity. Several other states are also faced with continued setbacks. In Illinois, Governor Ryan commuted the sentences of all death row inmates because of problems discovered in the processing of capital cases and, to a lesser extent, questions raised concerning the innocence of a few of the death-sentenced. In the day-to-day processing of appeals, Texas courts and the federal courts directly overseeing Texas capital cases have been less willing to intervene and halt executions than those in other states. Although Texas experienced some setbacks in its legal procedures early on, the attorney general's office, the governor's office, and the legislature have all worked together to address any problems discovered in the statute or its implementation.
Texas's experience with capital punishment should be instructive as other states continue to process capital cases and to push toward the final resolution of death-sentence appeals. Exactly what can the Texas experience tell us about capital punishment? In arguments over the death penalty, the perennial questions are the following: Does the death penalty prevent others from committing murder? To what extent does the death penalty prevent future murders by those who are executed? Are those sentenced to death among the murderers most deserving of the ultimate sanction? Beyond shedding light on these questions, this study addresses more pragmatic issues concerning the administration of capital punishment. Can the death penalty be imposed in a manner that is unbiased, reliable, and cost-efficient?
Many of these questions could be addressed from historical, moral, philosophical, or legal points of view, but the analysis that follows relies mainly on the social-scientific method in a search for answers. As such, it is best equipped to answer certain questions, but leaves others to the discretion of the reader.