When a Supreme Court decision allowed Gary Gilmore to be killed by firing squad in 1977—the first execution in the United States in nearly 10 years —the modern era of the death penalty began. Since then, 1,379 people have been executed nationwide. More than one-third of that total—515 people—have died in a small, drab room dominated by a gurney, located at the Walls Unit prison in downtown Huntsville, Texas—by far the nation's busiest execution chamber.
Since Oklahoma brutally botched an execution last month, the country has turned its attention again to the debate over whether the death penalty constitutes "cruel and unusual" punishment. So all eyes were on Texas this week as it prepared for what was expected to be No. 516. Although the convicted, Robert Campbell, was granted a stay of execution two hours before he was scheduled to be injected with lethal poison, the proceedings leading up to the last-minute postponement were a reminder of how adept Texas has become at sending inmates through death row—holding up what the New York Times characterized as the "gold standard" of proficiency in capital punishment.
As a law professor in Texas who, along with my team, has represented well over 100 death row inmates over the past 20 years, I am often asked why Texas executes so many people. This is what I say: Texas executes so many people because it executes so many people. I'm not being flip. What I mean is simply that killing people is like most anything else; the more you do it, the better you get. If killing people were like playing the violin, Texas would have been selling out Carnegie Hall years ago.
To understand how the adage that practice makes perfect applies to the execution of a prisoner, it is helpful to understand the stages and legal intricacies of a death penalty case. The law surrounding the death penalty is complex and often must be dealt with swiftly, as court deadlines and execution dates loom. The more familiar lawyers, government administrators, prison wardens, executioners and the many other relevant actors are with the process, the better they are at seeing it all the way through until its lethal end.
Every death penalty case has what I call its four chapters. The first includes a murder, the arrest of a suspect and a trial at which the defendant is convicted and sentenced to death. The convicted then in most cases appeals to the state appellate court, and once the conviction and sentence are upheld, Chapter 1 is over.
But that's just the start of it, and from there, the process only gets more specialized and complex. Chapter 2 consists of what's called a habeas corpus appeal in the state courts, and Chapter 3 consists of a habeas appeal in the federal courts. Habeas proceedings deal with esoteric legal doctrines and constitutional issues that are often unique to death penalty cases. There are a variety of issues habeas lawyers contemplate, but the most critical role they play is to ensure that the trial lawyer in Chapter 1 has done his or her job well, especially at the phase of the proceeding where the jury has decided on the punishment. The bottom line is that whereas any trial lawyer would easily comprehend what happens in Chapter 1 of the death penalty process, Chapters 2 and 3 are a foreign language even to most practicing attorneys.
Chapter 4 is what in my office we call the crisis stage. Although the Supreme Court ruled five years ago that death row inmates have a right to federal counsel even in state-level, post-conviction clemency proceedings, many lawyers are still used to giving up a case once federal habeas proceedings are complete. As a result, it is common for new, volunteer lawyers to take on an inmate's case in its final stages. What those new lawyers do is look to see whether the lawyers in Chapter 2 or 3 missed anything. And that is easy indeed to do. For one thing, the habeas lawyers often do not have adequate resources to do their jobs, and they are sometimes rather desultory in their efforts. In fact, for many years, the lawyers representing inmates facing death in Texas during Chapter 2 did not have to clear a very high hurdle to be deemed competent to do this highly specialized work. In one notorious case decided in 2002, the state's highest court said that the lawyer merely had to have a bar card. This is tantamount to saying that a surgeon who amputates a patient's left leg instead of his right arm is competent so long as his license to practice medicine is valid.