The U.S. Supreme Court ruled in 1972 that capital punishment as practiced was unconstitutional: arbitrary, capricious, and disproportionately impacting racial minorities and the poor. The decision cleared out death rows across the country and sent state lawmakers scrambling to rewrite their statutes in a way that might pass constitutional muster. Some states, like North Carolina and Louisiana, made the death penalty mandatory for specific crimes. Others, like Florida and Georgia, adopted a bifurcated approach: Jurors would decide on guilt first and then enter a penalty phase, where they would consider aggravating and mitigating circumstances before rendering final judgment. Texas went a third way, which ultimately turned on a single question put before the jury.
Four years later, the Supreme Court struck down the laws that made the death penalty mandatory but said the statutes that included a bifurcated process could stand: Those “carefully drafted” statutes would ward off the problems that had so plagued the earlier system, the court concluded. It included Texas’s law among this group.
In his new book “Let the Lord Sort Them: The Rise and Fall of the Death Penalty,” journalist Maurice Chammah brings the state’s capital punishment system into vivid focus, from the rush to revive it with a flawed statute to the myriad problems it has created while sending hundreds to the execution chamber. Chammah homes in on the stories of individuals who have played key roles in the system’s evolution. There’s the former judge who sat on the state’s notoriously conservative top criminal court who now works for abolition, the attorney determined to get jurors to see the person behind the crime, and the members of the state’s execution team rattled by the killing of Karla Faye Tucker. In an interview with The Intercept, Chammah discussed the defining features of Texas’s death system and the future of the ultimate punishment. The interview has been edited for length and clarity.
In reading your account of Texas lawmakers trying to come up with a new death penalty law, what struck me was how rushed it was. Could you describe what they came up with and what that’s meant for the system?
Texas was unique in writing this very strange law in which there would be a second trial, but instead of deciding, does this person deserve execution, they just had to answer three questions. Two of those questions were throwaways because they were implied in the guilty verdict: Was the murder deliberate? Was it unprovoked? The third question thus became the most important: Is this person likely to constitute a continuing threat to society?
I was stunned to find out that the question that is asked of Texas juries was hashed over a weekend in May 1973 by legislators, many of whom had little to no experience in criminal law. One defense lawyer involved in the conversation admitted to me that he essentially threw his hands in the air and gave up and left the prosecutors and legislators to it. And everyone, to this day, basically expressed, if not regret, at least a sense that they wished they’d taken more time with it. They thought they’d done their best, but they didn’t think they did a very good job. But they were convinced that if they didn’t bring the death penalty back, their constituents would vote them out.
The law was very harsh. It was more in line with these laws that other states had passed that made the death penalty mandatory. The Texas death penalty was almost mandatory, that is to say, the jury would get to decide, but they would just have to answer these questions, like: Is the person going to be dangerous in the future? And it was very easy for prosecutors, turns out, to convince juries of this. There wasn’t really a robust way for the jury to assess the individual person.
The question of “future dangerousness” really animates the death penalty in Texas even though it’s a bullshit question. In the punishment phase, it allows prosecutors to throw at the wall any bad act you’re alleged to have done to see if it will stick. If you were alleged to have knocked over an old lady in a crosswalk, they’re bringing that in; if someone said you stole gum when you were 10, it’s coming in.
Other times they would bring in a psychiatrist to present terrible pseudoscience about the likelihood that somebody is a psychopath and certainly going to kill again.
In Dallas and a few small counties, they were using these forensic psychiatrists, one named James Grigson, who would come in and say, “This person facing the death penalty, sure, he’s never been in trouble with the law before, but I met him, or I read about his crime, and there is 100 percent likelihood that he is a psychopath who is going to kill again.” There’s no science to that. Grigson himself seems to have been the psychopath, frankly.
And then in Harris County, Houston, and some other cities, they didn’t use psychologists. Instead, they would mine your records for any accusation ever made against you, whether or not you were found guilty or it was adjudicated at all.
That’s the surface level. And then you go one notch below the surface, and you start to see race very, very strongly. There are the explicit cases. Walter Quijano was an expert witness who in seven cases explicitly said the defendant was going to be dangerous in the future because being Black or Latino tracks with committing more crimes.
There are dozens and dozens of other cases where it’s not explicit. You look at the trial transcript and read the closing argument given by the prosecutor. They say things like, “We’re all in fear of them, and we all lock our doors at night because they’re out there on the streets.” This language doesn’t invoke race explicitly, but knowing what we know about the history of lynching and the history of how politicians use crime as a coded way of talking about race, you can see how race infects these trials.
Texas changed the law in 1991. But by then, there were hundreds of people on death row, and the future dangerousness question never went away. To this day, it’s a question asked of juries. They also get to consider more mitigating factors, but scholars still think that the future dangerousness question gives the prosecution an advantage.
You’ve brought up some of Texas’s most notorious characters, like Grigson, known as Dr. Death. I want to talk about another one of these folks, Johnny Holmes, who was the longtime district attorney in Harris County, which includes Houston — the killingest county in the killingest state when you look at capital punishment’s death toll nationally.
More than many whole states.
You have a lot in this book about the culture around the death penalty that was created in Holmes’s office. Why don’t you describe a little bit of what that looked like.
Houston had a huge population boom in the ’70s and ’80s, where people were moving for oil jobs and other kinds of jobs. City infrastructure was overtaxed, and the crime rate went up pretty dramatically. What developed under Holmes was a culture of crime fighting, this idea that prosecutors are society’s front line against mayhem. I think that at one time Holmes even had “crime fighter” as part of his email address. He just came off as a no-nonsense cowboy type, just a good guy who’s going to keep us all safe. He believed very strongly in a code of personal responsibility, which meant that if you committed a crime, it was not about rehabilitation or addiction or any of these things. It was about punishment.
There was this culture of treating the death penalty in a very lighthearted way.
He was very against plea deals and just thought, take it all to trial, let a jury decide. As a result, he sought the death penalty much more often than his counterparts in other cities. Often there were racial dynamics that were troubling, like the number of people who were sentenced to death who were Black or who had white victims was higher than just the baseline. But Holmes would offload responsibility to juries. It was an example of something we see in lots of areas of public policy, where there are these case-by-case decisions made, and they might seem just to the people making them, but when you look at them in the aggregate, you see troubling racial inequality.
Holmes ruled the justice system in Houston for many years, and a pro-death penalty culture congealed in his office to the point where he once gave a prosecutor a syringe-shaped pen as a gift, basically congratulating her for getting a death sentence. There was something called the Silver Needle Society of prosecutors who’d gotten death sentences. There was a rock band of prosecutors that I think still exists to this day called Death by Injection. There was this culture of treating the death penalty in a very lighthearted way.
And it wasn’t just Houston. Dallas seems to have also developed a pretty unsavory culture.
I was going to ask you about Henry Wade, the Dallas district attorney.
Where Holmes had his handlebar mustache, Henry Wade had his cigars. Wade elevated prosecutors who were known for being able to win.
There was a memo from the 1960s that came out that was basically a playbook for prosecutors not just to strike minority jurors, but to strike women and people who were a fuller figure, essentially. I mean, there were jokes about how overweight jurors would be too sympathetic to the defendant. Just these horrible stereotypes that would also rob defendants of a fair trial. It can be very hard to unstick a culture like that.
There was a joke statement that was made in Wade’s office that people denied but also many people have said they’ve heard, which was that it’s easy to convict someone who’s guilty, and convicting someone who is innocent is the real hard trick. That joke came out when Dallas was responsible for a big run of innocent people getting off death row because it was found that prosecutors withheld evidence or DNA wasn’t tested or various other things that tainted those convictions.
So we’ve talked about prosecutors, and there are some really unethical practices there. But on the other side you have a lot of problems too. Texas has had some notoriously bad defense lawyering in capital cases.
In the ’60s and ’70s, there were full-time professional criminal defense lawyers, but there was also no impetus to make sure that everybody facing a death sentence was getting them. And then as we moved into the ’80s, and ’90s, Texas was uniquely bad in underfunding the defense.
First of all, judges were primarily elected. So they had an incentive to do what the public wanted, and the public wanted more death sentences and also didn’t want to spend a lot of money.
Judges were primarily elected. So they had an incentive to do what the public wanted, and the public wanted more death sentences.
And then these judges have an incentive to appoint defense lawyers who they know are not going to do as good of a job, are not going to fight for thousands of dollars to mount a new investigation of whether this person is innocent or kill six weeks picking a jury because they are fighting to make sure every juror is going to be totally fair. One defense lawyer from that era famously said that he tried cases “like greased lightning.”
This is how you end up having people who are potentially innocent, people with serious mental illnesses and intellectual disabilities not represented well. Then it ends up costing taxpayers and the system a ton of money because eventually these people would get a better lawyer on appeal who would go back and do all the work that should have been done at the outset.
You write a lot about the Texas Resource Center, where there were lawyers who would be picking up these cases and then trying to fix things on the back end. And they get blamed by the courts for that. Everybody seems to come at them like this is a problem they created, which is just willfully blind to the way the system works.
I became obsessed with the history of the Texas Resource Center, because it was this culture that developed in the early ’90s of these really hardcore defense lawyers, many of them very young and right out of college, who felt called to do the least popular work you could possibly do. In this day and age, Bryan Stevenson is considered a hero by many Americans, but the world of people that he was a part of in the ’90s were considered villains. They were considered these unscrupulous lawyers who defend the worst of the worst and try to throw a wrench in the wheels of justice by mounting these last-minute efforts to stop executions. Judges were annoyed that they were getting woken up in the middle of the night. Prosecutors were claiming that these defense lawyers were making up evidence.
When the system has so many problems, it ends up falling on the most zealous lawyers, the ones willing to work 24 hours a day to try to stop the execution, to raise the problems that have been sitting in these cases for years. It seems like somebody on death row has gotten all these different layers of appeal, and yet all of these judges can just sort of rubber-stamp what came before and not look closely at the problems.
Your book is about the rise and fall of the death penalty. We had a dramatic increase in death sentences after 1976, and now we’ve had a tremendous long-term decline in support for the death penalty. We’re at a record low with new death sentences. What do you see as the future of capital punishment for Texas and the rest of the country?
At the height of the ’90s and early 2000s, the death penalty seemed like a way to combat what we perceived to be an out-of-control crime rate. It’s hard to lower the crime rate if the causes are super complex. They’re actually related to all these different public policy areas, to problems of racial inequality and education and mental health services. Instead of working on those problems inch by inch, we embraced the death penalty, which is a very easy way for elected officials to promise that they’re doing something about crime.
It’s also the pinnacle of a system of punitiveness in the way we treat people who commit crimes in our society. We have slowly turned away from it. Now we’re at this point where the death penalty is much less common, and we have to decide whether we’re going to keep it around.
I think now is the time to assess the history and say, what have we learned? Was there any benefit from doing this? Did anybody get anything out of this? One thing I really hope readers get out of this book is that it’s not just about the death penalty. It’s about the whole criminal justice system insofar as we can look at somebody who commits a crime and think, I’m afraid of them; we must punish them. Or we can think, what went wrong in this person’s life? Let’s try to figure out how to fix those problems so this doesn’t happen as often. We’ve chosen the former, but we’re increasingly turning toward considering the latter. But we’re not there yet.