Rick Perry holds the record on executions
By Robert Barnes,
Texas Gov. Rick Perry brings to the presidential race a law-and-order credential that none of his competitors can match — even if they wanted to.
In his nearly 11 years as the state’s chief executive, Perry, now running for the Republican presidential nomination, has overseen more executions than any governor in modern history: 234 and counting. That’s more than the combined total in the next two states — Oklahoma and Virginia — since the death penalty was restored 35 years ago.
The number is partly explained by sheer longevity at the helm of a huge state that has mastered the complicated legal maze of carrying out capital punishment.
But Perry has hardly shrunk from the task.
As the 2012 presidential race unfolds, Perry’s record will inevitably become part of the debate in a country where the number of death sentences handed down continues to fall and some states are renouncing executions. Polls show that capital punishment remains both popular and controversial. And although all of Perry’s main competitors, including President Obama, support the death penalty, Perry’s role stands out.
He vetoed a bill that would have spared the mentally retarded, and sharply criticized a Supreme Court ruling that juveniles were not eligible for the death penalty. He has found during his tenure only one inmate on Texas’s crowded death row he thought should receive the lesser sentence of life in prison.
And Perry’s role in the 2004 execution of Cameron Todd Willingham — who supporters said should have been at least temporarily spared when experts warned that faulty forensic science led to his conviction — is still the subject of investigation in Texas.
Perry has been unapologetic.
It is a bipartisan tradition. The annual rate of executions was actually higher when George W. Bush was the state’s governor, and Democratic Gov. Ann Richards oversaw 50 executions during her four-year term without ever granting clemency.
“In the big picture, it is hard to see how Perry is much different from Bush or Richards,” said Jordan Steiker, co-director of the University of Texas Law School’s Capital Punishment Center.
That’s partly because Texans and their representatives give governors little room to slow down the process.
Decisions to seek the death penalty are made by local prosecutors. Unlike in some states, the governor does not sign death warrants or set execution dates. The state constitution prohibits the governor from calling a moratorium on executions and allows clemency only when the Board of Pardons and Paroles recommends it, which is rarely.
Texas’s relatively streamlined process for death penalty appeals is overseen by an elected court not known for reversals. Federal lawsuits go to the U.S. Court of Appeals for the 5th Circuit in New Orleans, which has the same reputation.
“In many states, executions are blocked because the state courts, the federal courts or both are intensely hostile to capital punishment and look for any excuse to overturn convictions,” said Kent Scheidegger, legal director of the pro-death-penalty Criminal Justice Legal Foundation in California. “So the short answer to why Texas has the most executions is (1) size, and (2) not being obstructed by hostile courts.”
Still, Perry has been an aggressive advocate. He battled the Bush administration in the Supreme Court when the president tried to force state courts to review the death sentences of 51 Mexican nationals who had not been allowed to consult Mexican authorities.
The court ruled in Perry’s favor, 6 to 3.
Last month, the Obama administration and governments around the world asked Perry to delay the execution of Humberto Leal Jr., a Mexican national who faced execution for raping and killing a 16-year-old in San Antonio.
Perry declined and Leal was executed July 7.
Although Leal’s innocence was not at issue, death penalty opponents say 12 men on Texas’s death row have been exonerated. Anthony Graves is the latest, spending 18 years in prison before a Texas Monthly investigation showed his innocence.
Perry signed a bill awarding Graves $1.45 million in compensation but denied his imprisonment was an indictment of the Texas system.
“He’s a good example of, you continue to find errors that were made and clear them up,” Perry told the Lubbock Avalanche-Journal. “So I think our system works well, it goes through many layers of observation and appeal, et cetera.”
Such statements do not endear him to opponents of capital punishment. “We’d like to get rid of him,” said Scott Cobb of the Texas Moratorium Network, “but not by giving him to the rest of the country.”
Despite the limits on power, law professor Steiker said that “it is fair to say a Texas governor is responsible for every execution.”
If he is particularly concerned about a case, the governor may halt the process for 30 days and use the “bully pulpit” to express those doubts, Steiker said. Although a majority of the pardon board must recommend clemency, its members are appointed by Perry and beholden to him.
Perry’s lone clemency decision — aside from halting executions of the mentally retarded and juveniles dictated by the Supreme Court — came in the case of a man who drove the getaway car and was not the triggerman in a murder. Perry called for the legislature to reexamine the law, but it has not been changed.
After Perry signed a law offering life without the possibility of parole as an alternative to the death penalty, the total number of death sentences in Texas dropped, as it has in other states, from 23 in 2004 to eight in 2010, according to the anti-capital-punishment Death Penalty Information Center.
But what is likely to draw the most attention as Perry campaigns is the case of Willingham, who was convicted in 1991 of setting fire to his home and killing his three young daughters. Shortly before his 2004 execution, defense attorneys gave Perry and the pardon board a report from an arson expert saying the forensic evidence used to convict Willingham was severely flawed.
Perry went ahead with the execution, and has refused to release information from his advisers about the evidence.
The state forensic science commission began to review the case and the state’s arson unit after investigative journalists cast increasing doubt on Willingham’s guilt. But just before the commission was to hear from an investigator it had hired, Perry dismissed the chairman and replaced three members of the commission.
Perry’s newly installed chairman, a prosecutor who had called Willingham a “guilty monster,” delayed the commission’s hearings and asked the attorney general for an opinion about whether the commission could actively investigate the Willingham case. Attorney General Greg Abbott (R) said last month that it could not.
Sen. Kay Bailey Hutchison, who unsuccessfully challenged Perry in the 2010 Republican primary, tried to make an issue of the Willingham case, accusing Perry of “trying to ramrod a covering-up.”
Perry fired back through a spokeswoman that critics “should just say so” if they oppose the death penalty for a man who killed his children and beat his wife and whose conviction had been upheld by numerous courts.
On the campaign trail last week, Perry was asked how he defended the cost and inefficiency of the death penalty.
He said it was a decision to be made by states, and “in the state of Texas, our citizens have clearly said that they support by overwhelming majority capital punishment.”
If others disagree, he said, they should try to pass a constitutional amendment to halt the death penalty.
“I just lay it out there as an issue for Americans,” he said. “I will suggest to you that I’m going to work a whole lot harder on a balanced budget amendment to the United States constitution than I am for an amendment that will ban capital punishment.”
Staff writer Krissah Thompson contributed to this report.