Tuesday, March 23, 2010

Spiderman v. Rick Perry

Texas has what's known as a "weak" governor.  That's not a shot at Rick Perry.  (I've taken some before, and will be taking some more in the paragraphs to follow.)  It's a description of the power of the Guv under the state's constitution.  Oddly, as a matter purely of constitutional law, the Lieutenant Governor is probably the most powerful figure in Texas.  (It used to be that being on the Railroad Commission was the second most powerful; I'm not sure whether that's still so.)
Still, being Guv is no small thing, and the practical power (including that bully pulpit) can be immense (not to mention a springboard to the White House).
One of the things the Guv apparently cannot do unilaterally is commute a death sentence.  That requires (or so governors claim)  a recommendation from the Board of Pardons and Paroles.
In all criminal cases, except treason and impeachment, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons; and under such rules as the Legislature may prescribe, and upon the written recommendation and advice of a majority of the Board of Pardons and Paroles, he shall have the power to remit fines and forfeitures. The Governor shall have the power to grant one reprieve in any capital case for a period not to exceed thirty (30) days; and he shall have power to revoke conditional pardons. With the advice and consent of the Legislature, he may grant reprieves, commutations of punishment and pardons in cases of treason. 
There looks to be some wiggle room in that.  If a governor ever wanted to commute a sentence without a recommendation from the Board, it might be possible.  But this is Texas and the 21st Century and the Guv's a politician and appoints the Board members and, well, don't hold your breath waiting for that to happen.
Anyway, this is a post about Hank Skinner and about the Board of Pardons and Paroles and about Governor Perry and about just what constitutes political courage and about Spiderman.  And by the time I've finished typing the thing, it may be obsolete, but I fear it won't be.

Let's start with Hank.  I've talked about him before.  On New Year's Eve, in 1993, in Pampa, Texas did  or (perhaps more likely) did not kill Twila Busby and her two sons.  Right now, he's on death row.  Texas plans to kill him tomorrow in revenge for the killings he did or did not commit.
He says, has always said, that he's innocent, and there's a wealth of evidence suggesting that it's true.  Some of that evidence includes the results of DNA tests that Texas promised would prove guilt.  There's more DNA testing that can be done.  It could, and likely would, conclusively answer the question.  Texas has steadfastly fought every effort to allow the testing to go forward.
Kill Skinner without doing the testing, and Texas has another Todd Willingham to deal with.  You know, a dead guy where the science may well say innocent but Texas can't be bothered with that.  It doesn't make for good press.
Good enough for the Board of Pardons and Paroles, though, it seems.  Yesterday, they voted unanimously against both commutation and a 60 day reprieve.  There's no explanation, which probably makes sense.  I mean, what would they say?
  • We believe he's guilty and don't care to test our belief against actual evidence?
  • The truth doesn't matter to us?
  • What's a little murder among friends?
So we move to the Guv.  Perry either can or can't commute the sentence to life (or just free Skinner, for that matter).  Clearly, he isn't going to test the limits of his constitutional powers to do that, though.   What he can do, without question, is grant a 30 day reprieve and allow the DNA testing.  A lab in Arizona has offered to do it for free and within a 30-day window.  Human decency says that he should.
Which bring us to political courage.  Yeah, I know.  It too often seems an oxymoron, like Jumbo Shrimp or civil law.  But it's out there.  We honor it.  And we know that almost no governor has any.  But see, here's the beauty.  Perry doesn't need any to do the right thing.
Here's what Michael Landauer, editor of the Dallas Morning News said yesterday (I've stripped most of the links).
The Texas Board of Pardons and Paroles has decided against Hank Skinner in the high-profile case where a long list of evidence remains untested even though DNA might point to a plausible defense theory about another suspect. That means Gov. Rick Perry is Texas' last chance for a reprieve (the Supreme Court is also looking at issues in the case).
We have just posted our editorial set for tomorrow's paper urging Gov. Rick Perry to do the right thing and delay Wednesday's planned execution of Hank Skinner. Is he guilty? Honestly, I don't know. I tend to think jruies get things right most of the time, but in this case, there is a lot of evidence that needs to be DNA tested to be sure. I am hopeful Gov. Perry will do the right thing. There is no downside to ordering a 30-day reprieve. The upseide is that he looks like someone interested in the truth and interested in the kind of certainty that the proper dispensation of the death penalty requires.
Shortly after he became governor, I got a call from one of Governor Ted's people telling me that he was granting a reprieve for a couple of months to one of my clients who was nearing execution.  I said he ought to call a moratorium.  (That was after I got laughed at when I said he ought to just commute the sentence to life.)  I even dictated the press release, which went something like this.
I believe in the death penalty, and I believe Ohio's death penalty - in both theory and practice - is the best and fairest and surest in the nation.  Still, I know there are people of good will who disagree.  And so, in the interest of certainty, I'm going to impose a moratorium while we investigate to make sure that our death penalty law, in theory and practice, is as good as I believe it to be.  When we know it is, the naysayers will be done.  And we can and will resume executions.
It would take, I said, no political courage if it was done right.  He'd look courageous, but it would be a sham, since he'd be taking a high road with which nobody could much disagree.  Again, Governor Ted's aide laughed.
But you know, it's true.  Perry really could do that here.  And he's got the credentials of a killer, after all.  Ain't nobody gonna call him soft on the death penalty.  But they could start calling him careful.  They could say, "He recognizes that mistakes are important to prevent when lives are at stake."  They could say, with him, "I trust the system, but join with Ronald Reagan in saying, 'Trust but verify.'"

No political courage needed.  Just a dose of willingness.  And maybe interest.
So, at last, we come to Spiderman.  You remember.*
With great power comes great responsibility.
Even in a system with a weak governor, Perry has great power.  Now he can use it to create a legacy as a decent man, one who cares about not killing the innocent, one who thinks it's worth being sure.
Or, of course, he can say the hell with it.  Close enough for government work. 

*Actually, you remember that from the movies.  The comic book original is by the narrator, "[W]ith great power there must also come - great responsibility."  Of course, Stan Lee took the idea and modified the words only slightly from elsewhere.

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