Don’t Mess With Texas

Recently, I travelled to Houston for a criminal law seminar on the topic of clemency, specifically clemency in death row cases. One of my friends and colleagues from law school was speaking about his role in the clemency application of Robert Lee Thompson of Houston. Thompson was convicted for his role in the 1996 shooting of a clerk in a convenience store. The details of the case, as in many criminal cases, are highly interesting. In fact, interesting may not be the proper word for this case, rather words like provocative and sobering come to mind. Thompson, the getaway driver was actually convicted under the theory of accomplice liability. It was not Thompson who pulled the trigger, but Thompson’s partner who fired the fatal shot. Thompson was tried and sentenced before his partner. He received the death penalty. His partner received life in prison, and will eventually be eligible for parole.

In Texas, the governor has the authority to grant clemency once a majority of the Board of Pardons and Paroles recommends it. This is extremely rare. Clemency includes pardons, commutations (reductions) in sentence, and reprieves (delays). In a death penalty case, commutation means that instead of death the individual may get life in prison. Or, in those cases where the individual is less lucky, the governor may merely grant a one-time thirty day reprieve of execution. Although the seven-member Board holds the power over the life or death of an inmate, there is frighteningly little transparency about how it operates. Texas is the only death penalty state that does not mandate that the Board meet publicly. It does not report its conclusions or findings for denial. Votes to recommend or deny a clemency application can be phoned or even faxed in. Under Texas law, the documents reviewed by the Board are kept secret. There is no public record of the proceedings. The Texas Board of Cosmetology meets more frequently, holds its licensure proceedings in a public forum, and reports its findings and conclusions.

Due in part to Thompson’s significant mental disabilities, ineffective assistance of trial counsel, and the fact that he didn’t pull the trigger, he actually received a favorable recommendation from the Board. However, Governor Perry refused to grant clemency and Thompson was put to death by lethal injection. My friend was standing beside Mr. Thompson when the sentence was read in court - a harrowing experience he assured me. It takes a strong stomach to work on a clemency case. The odds are very poor. It can be depressing and grim. Since 1982, 457 death row inmates have been executed in Texas. The next highest death penalty state executed only 107. Let’s not forget Harris County, which alone is responsible for 113 of Texas’ executions. By contrast, Angelina County only lists one execution.

Many legislators and critics have called for another moratorium on the death penalty, or at least sweeping reform. As this paper was to relate some of the interesting facts of which I learned at my seminar, I have not touched upon issues such as the incredible racial disparity of death row inmates or execution of the mentally disabled. Whether for or against the death penalty, there are many circumstances which should be taken into consideration.