6/23/00 2:35 p.m.
A Death in Texas
The execution comes as no surprise.

By Mark Mazzetti, correspondent for The Economist

he faxes have just come in: Gary Graham was executed at 6 P.M., Texas time.  After reviewing the facts of the case, the Texas Board of Pardons and Paroles had decided that the nation's most famous death-row inmate should be executed for the murder he was sent away for 19 years ago.

The decision came as no surprise.  In the 136 death-penalty cases since George W. Bush became governor, the Board has only once recommended that a death sentence be commuted. The 18-member panel, all appointed by the governor, does precious little deliberation. They review cases individually, never meet in person to discuss the facts, and then send a "yea" or "nay" by phone or fax to the state capital. Even Roman emperors deciding the fate of gladiators got more personally involved.

Yet the deliberative process that governs the Board's actions is only the tip of the iceberg in Texas — which is why the Gary Graham case is hardly unique in the state. From the moment a person is charged with murder in Texas, he faces a system concerned less with whether or not he might be innocent, more with ensuring he is strapped to a gurney in Huntsville.

Since Texas has no public-defender system, it is up to a county judge to assign counsel for the defense. With no financial help from the state, the judge usually looks to cut costs in a capital-murder trial, and thus seldom gives the assigned lawyers enough funding to mount an adequate defense. In Jasper County, site of the 1998 dragging death of James Byrd, the county had to hike property taxes by 8% just to pay for the trial.  By now, the examples of shoddy defense in capital cases are well known: drunk lawyers, sleeping lawyers, lawyers who were later disbarred.

Moreover, since both county and appellate judges are elected in Texas, they usually echo the staunch support for the death penalty to which Texans so famously adhere. County judges are elected on promises to swiftly clear their dockets and reduce the backlog of cases; candidates for the Court of Criminal Appeals know that electoral success comes with pledges to reduce death-row appeals. Last year, the appellate court rejected an inmate's petition for a DNA test, even after two tests of the crime scene revealed that the DNA was found not to be that of the defendant.

Judging from the clemency record of the Board of Pardons and Paroles, the panel obviously loses little sleep over the system of crime and punishment in Texas. And, judging from Bush's record of upholding the Board's decisions, neither does the governor. It is certainly true that, as with many other procedures, the governor of Texas has very little power over the state's death-penalty system. Yet, what Bush never talks about is the very powerful tool that he does have at his disposal: the bully pulpit. Bush has the power to lean on the Board, as he did in the case of Henry Lee Lucas, to push them in one particular direction. There is little doubt that had Bush stuck his neck out in the Gary Graham case, the Board would have swiftly fallen into line.

Gary Graham may certainly be a guilty man. But the issue is much larger than simply Gary Graham. Texas, which accounts for one-third of all U.S. executions since 1976, has a system that is utterly broken. There are dozens more death-row inmates who have been executed, or await execution, who have been convicted on similarly flimsy evidence.

When Governor Ryan announced a moratorium in Illinois in January, he did so after 13 death-row inmates had been exonerated — one more than was actually executed. Illinois has a slate of journalists, journalism students, and crusading defense lawyers who are working to prove innocence on death row. Texas has nothing of the sort.

If George W. Bush were to declare a moratorium in Texas, he would lose zero political capital. After 134 executions, only Genghis Khan would accuse him of being "soft on crime." Yet the 134 executions are the problem. Declaring a moratorium in Texas would only raise questions about those executed during Bush's tenure, and Bush would have to answer for his record. It is much easier to deny to the hilt that the Texas death-penalty system is completely dysfunctional. Unfortunately, the first step toward recovery is always admitting that there is a problem.