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Tuesday, Nov 24, 2009
Bush insists that he regards his role in the execution process as "an awesome responsibility." He says the governor must provide a "fail-safe," what he calls "one last review to make sure there is no doubt the individual is guilty and that he or she has had the due process guaranteed under our Constitution and laws."
In practice, Bush has taken every opportunity to exempt himself from that responsibility. "I believe decisions about the death penalty are primarily the responsibility of the judicial branch of government," he says in his autobiography, "A Charge to Keep." "The executive branch role is much more limited." Bush doesn't like to second-guess juries. He also doesn't like to second-guess police, prosecutors, judges or anyone else in the criminal justice system. He wants credit for being an unflinching death penalty supporter. What he apparently doesn't want is any direct responsibility.
Indeed, what is most astonishing about Bush's record on the death penalty is not just that he has signed off on such a staggering number of executions, but the doggedness with which he has tried to take himself out of the decision-making loop. Bush effectively argues that he has "no controlling legal authority" over these deaths.
The classic formulation of this argument surfaced in connection with the 1998 execution of Karla Faye Tucker, the brutal pickax murderer who later became a born-again Christian and won the support of longtime death penalty champions Jerry Falwell and Pat Robertson. "Despite the call being sounded around the country and world, I could not convert Karla Faye Tucker's sentence from death to life in prison," Bush said. He made a similar statement in June shortly before the highly controversial execution of Gary Graham, who many people believe was innocent. "Most governors can literally stop an execution, I think," Bush told reporters. "But in Texas, that's not the case."
This is Bush's big lie and the key to his "deniability" in the execution process. It relies on the kind of legal hair-splitting that would do Clinton proud: an oft-cited Texas law allows the governor to commute a death sentence only when the Board of Pardons and Paroles recommends it. Absent a BPP recommendation, the governor is only allowed to grant a condemned inmate a 30-day reprieve. Since the board failed to recommend commutation in the cases of Tucker, Graham or 143 others, Bush insists his hands were tied.
No one who has seriously examined the Texas clemency process doubts for an instant that Bush could have stopped the Tucker execution or the Graham execution, or any other execution had he seen fit to do so. What Bush never mentions is that the governor also has authority to order the BPP to hold hearings or to conduct a serious investigation of a case where he may have doubts about guilt or due process -- or for any other reason. Bush has never done that. Even at the 11th hour, Bush could use his 30-day reprieve authority to let the board know he disagrees with their recommendation, or to say, "I'm sorry, but a person's life is at stake here; let's take another look at some of these questions."
Would Bush deign to disagree with the current board, all of whose members he hand-picked, there is no question that the BPP would turn on its heels. Bush's inaction is not a matter of law, as he claims, but a matter of choice.
The governor's near-absolute insistence on disengaging from the clemency process was brought home in the Graham case when he and his lawyers argued that he could not even grant a 30-day reprieve because his predecessor, Gov. Ann Richards, had already granted Graham one. There is no case law whatsoever to support that view. Had Bush granted Graham a reprieve it is almost inconceivable it would have been challenged. Bush could have established a precedent by standing up and saying, "The governor must be accountable" in such a situation. But Bush wanted the least possible authority for the office of governor and sought to establish that precedent with a cowardly interpretation of the law.
But the ultimate obscenity of Bush's calculated decision to hide behind the skirts of the BPP is that everyone knows the board is a fraud, a Potemkin village designed to create the illusion that there is genuine clemency review in Texas. Not only does the board conduct no investigations and hold no hearings, its members don't even meet to discuss clemency applications. "It is incredible testimony to me," U.S. District Judge Sam Sparks stated in a 1998 case concerning the board's procedures, "that no person has ever seen an application for clemency important enough to hold a hearing on or to talk with each other about."
Bush says he relies on the BPP's recommendations because "I know that I cannot possibly know all the information necessary to make good decisions." That might be a credible explanation if the board was actually providing Bush good, hard explanations for executing all these people. But as Sparks observed, it doesn't: "There is nothing, absolutely nothing that the Board of Pardons and Paroles does where any member of the public, including the governor, can find out why they did this. I find that appalling."
