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March 1, 2005, 11:02PM High court's death ruling 'a footnote'
When I called anti-death penalty lawyer David Dow yesterday to talk about the U.S. Supreme Court decision barring execution as a punishment for crimes committed by minors, I expected two reactions from him.
The first was exhilaration at the decision. The second was long-term pessimism about the prospects of doing away with the death penalty altogether. Dow is a law professor at the University of Houston and head of its Innocence Project. You'd think an anti-death penalty activist living in the Death Penalty Capital of the World (a.k.a. Harris County) would celebrate victories exuberantly and then fade back into the slough of despond. I was wrong on both counts. His reaction to the decision was that it was expected, and even a bit disappointing. "Four of the justices have been saying that they want to do away with the death penalty for some time," he said. "I think there was a sense that if they didn't think they could get a fifth vote on juvenile executions, they wouldn't have taken the case." In fact, Dow said, he had hoped the vote would be 6-3 rather than the 5-4 that came down.
Death penalty's death?"I think it's a little surprising that Justice (Sandra Day) O'Connor voted with the minority," he said.Dow welcomed the decision, but not with exuberance. "I welcome it as someone who has three clients who will benefit from it," he said. "I also view it as a decision that, when the history of the rise and fall of the death penalty is written in another decade or so, I think this case will be a footnote." Did we hear that right? Does Dow think the death penalty will have fallen in another decade or so? "Let me put it this way," he said. "I have a 4-year-old boy. By the time he's ready to go to law school, I don't think we'll have the death penalty any more." (I wonder if the Supreme Court would consider it cruel and unusual for him to sentence a 4-year-old to law school.) Dow noted that the Supreme Court was already nibbling away at the death penalty. It earlier outlawed executing the mentally retarded (with Justice O'Connor in the majority). Now it's removed convicts who committed their crimes before their 18th birthday.
Curing to kill"There's one more peripheral issue," he said. "In the near term the court will have to address mental illness. It's a bigger problem than mental retardation."An example is Andrea Yates. Nobody says the woman who drowned her children after conversations with Satan is not mentally ill. But with the help of a highly paid expert witness, Harris County prosecutors were able to convince jurors that she was sane under Texas law at the moment she committed the crime. The DA's office sought the death penalty, but the jury gave her life in prison. Actually, the Supreme Court ruled in 1986 that insane people could not be executed. But in a footnote, one member of the five-justice majority wrote that if the convict could be "cured" he could be executed. So some psychotic inmates have been medicated so that they could be killed. Dow thinks that after the Supreme Court deals with this bizarre side issue, it will go to the issue of whether the death penalty itself is "cruel and unusual." But it will only do so, as it has in the retardation and juvenile issues, because society has led the way. The basis of the court's decision on those issues was that most states had quit executing retarded persons and juveniles, rendering it "cruel and unusual." Dow says support for the death penalty itself is a mile wide and a half-inch deep. "That's hard to see in Harris County, but even in Texas many district attorneys now seek the death penalty much less often than they could," he said. And two years ago, a poll of Texans found that 41 percent thought executions should be halted while a number of issues were studied. Sixty-nine percent said they believed innocent people had been executed. Still, 76 percent said they supported the death penalty. Dow says, however, that the expressions of concern show a dwindling depth of conviction for the death penalty. If that's true in Texas, it's more true in other states. The likely scenario, says Dow, is that most of the other states will quit executing criminals. Then the Supreme Court will stop Texas from doing it. And his kid will have to go into a different area of the law. You can write to Rick Casey at P.O. Box 4260, Houston, TX 77210, or e-mail him at rick.casey@chron.com.
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