Herman: A minor change in Texas' death penalty law. A major call for a major review.

Herman: A minor change in Texas’ death penalty law. A major call for a major review.

May 6, 2021
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There was a time in Texas — a long, long time — when it was political malpractice for candidates to declare anything other than unflinching fealty to the death penalty. I recalled that era this week as the Texas House took a significant, if less than sweeping, step in […]

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State Rep. Jeff Leach, R-Plano, center, won House approval for his HB 1340, which makes changes in Texas death penalty law concerning accomplices.

There was a time in Texas — a long, long time — when it was political malpractice for candidates to declare anything other than unflinching fealty to the death penalty.

I recalled that era this week as the Texas House took a significant, if less than sweeping, step in a direction that once might have been scorned by some as soft on crime because it would reduce the pool of miscreants eligible for execution.

Anyone else remember the 1990 Democratic gubernatorial primary when Ann Richards, Mark White and Jim Mattox each sought to be the staunchest supporter of capital punishment?

"As governor, I made sure they received the ultimate punishment, death. And Texas is a safer place for it," White, who later in life opposed the death penalty, said on a TV ad, standing in front of photos of men executed during his 1985 to 1989 gubernatorial stint. "Only a governor can make executions happen. I did, and I will.”

That ad came after Mattox aired a spot in which he took credit for 32 executions during his stint as attorney general. Richards, despite citing Biblical admonitions against killing, said the death penalty was the law of the land and she expressed no interest in doing anything about that.

And those were Democrats. You know the GOP mantra on the death penalty. The current state party platform says, “Properly applied capital punishment is legitimate and should be reasonably swift, while respecting all due process.” The Texas Democratic platform says, “Abolish the death penalty.”

But there on the House floor on Tuesday and Wednesday was Rep. Jeff Leach, a Republican from very Republican Plano, pushing a bill to eliminate some criminals who now can get the death penalty.

Let’s nod here to the truth that, on the GOP side, there’s been a long-standing dissonance, perceived and real, between opposition to abortion and support for the death penalty. If all life is sacred, why is it OK to snuff some out? You have your own thoughts on that.

Due to the serendipity of legislative agenda coincidence, abortion and the death penalty converged on the House floor this week.On Wednesday, the House gave final approval to the Leach bill on the death penalty a few hours prior to debating a Senate OK’d measure banning abortion after the sixth week of pregnancy.

Leach, a board member of the Texas Conservative Coalition Research Institute, won overwhelming bipartisan House support for his HB 1340 which, if backed by the Senate and signed by Gov. Greg Abbott, could be seen as the biggest change in Texas’ capital punishment law since the 2005 measure that added life without parole as a sentencing option.

The Leach bill narrows the state’s “law of parties,” as in the parties to a crime. Under that long-standing law, an accomplice — perhaps a getaway driver not at the immediate scene of a killing — can be sentenced to death even if he or she did not know or expect another party to the crime was going to kill somebody. It’s a law that always makes me think back to Doyle Skillern and Charles Sanne, both convicted in the 1974 slaying of Texas Department of Public Safety undercover narcotics officer Patrick Randel in Aransas County.

Sanne fired six shots that killed Randel, who was in a car with him. Skillern was in another vehicle nearby and was in on the planned robbery that turned into unplanned murder. Under the law of parties, non-gunman Skillern was executed in 1985. Gunman Sanne also was sentenced to death, but that was reduced by the Texas Court of Criminal Appeals to life in prison in 1980. And that’s where he died in April 2018.

You have your own thoughts on which man suffered the more severe punishment.

There have been more cases like this. Leach mentioned Jeff Wood, who had written to him about his situation. Wood was sentenced to die after Daniel Reneau killed a store clerk while Wood, an accomplice, waited outside in a planned 1996 robbery in Kerrville.

Leach: “Mr. Wood was expecting to be the getaway driver for what was going to be the robbery of a convenience store. Little did he know that his friend who sat in the passenger seat actually had a gun … in his pocket. The crime went wrong. The clerk fought back, and his friend Mr. Renaud, who has since been executed by the state, shot and killed the clerk.”

Reneau was executed in 2002. Wood is still on Death Row. Leach’s bill would make accomplices like Wood ineligible for the death penalty. And an amendment added by bill co-sponsor Rep. Senfronia Thompson, D-Houston and a longtime death penalty opponent, would require the Board of Pardons and Paroles to review the cases of current accomplices on Death Row.

Under the bill, a co-conspirator in a capital murder case could be sentenced to death only if, according to the bill analysis, “the conspirator is a major participant in the conspiracy; in attempting to carry out the conspiracy, the conspirator acts with reckless indifference to human life; and the capital murder was committed in furtherance of an unlawful purpose.”

More:Death row inmate Rodney Reed’s appeal hearing rescheduled for July in Bastrop County district court

And while Leach’s bill does a very specific thing about one very specific part of Texas’ capital punishment law, his most striking words were about the overall concept.

“Members,” he told colleagues Tuesday, “we will make sure that any Texan that receives the ultimate punishment imposed by the state of Texas, of course, sentenced by a jury of his or her peers, actually committed a crime deserving of the ultimate punishment.

“And members, no matter where you stand on the death penalty, this is an issue that, as I mentioned, we've got to take seriously. We should take seriously. And I'm hopeful that this bill will actually lead to a broader, deeper conversation about the very existence of the death penalty in Texas,” he said.

Repeating for emphasis here. A Texas GOP lawmaker with solid conservative cred is calling for “a broader, deeper conversation about the very existence of the death penalty.” At this point, however, I can’t recommend you hold your breath awaiting that.

“But as for the bill that's in front of you today,” Leach continued, “I am increasingly concerned that there are perhaps men on Death Row right now, as we sit here voting on the floor of the Texas House, who do not need to be there, who did not kill anybody. And who did not know anyone was going to be killed. For you lawyers, they didn't have the requisite mens rea.”

For you nonlawyer, non-Latin speakers, mens rea means guilty mind. In the justice system, it involves determining someone’s intention to commit a crime or harbor knowledge that actions taken or not taken would further the commission of a crime.

Leach on Tuesday told House colleagues about an Arkansas case (he mistakenly said Oklahoma) in which recently revealed new DNA evidence casts serious doubt on a conviction that led to a death sentence ordered for Ledell Lee in a 1993 murder.

Lee was executed in 2017.

"That should keep us up at night," Leach said.

He wrapped up on Tuesday with this reference to the abortion restriction bill, of which he is a co-sponsor, that was on the House agenda Wednesday:

“Members, in closing, I want to challenge you as your friend and your colleague. And I specifically want to talk to my Republican counterparts, especially those who are going to be voting on pro-life bills as early as tomorrow. It is our obligation, members, it is our obligation as legislators, as Texans — and for those of us who pride ourselves on doing everything we can to protect innocent life — I encourage you and implore you to think deeply about the death penalty in Texas.”

The bill won 140-5 preliminary approval Tuesday, and Wednesday’s 135-6 final vote sent it to the Senate.

"It's always right to fight and stand up for innocent life," Leach, a co-sponsor of the abortion restriction bill scheduled for Wednesday action in the House, said prior to the final vote.

As noted above, the Leach bill would make a very specific — though meaningful — change in the death penalty law. His heartfelt call for a broader discussion might be the most important thing here.

Many Texans favor the death penalty. Many oppose it on moral grounds. I can’t even get to the moral question. I stop at what all must acknowledge as a sad truth.

The death penalty, once carried out, is an irreversible action produced by fallible humans operating in an imperfect judicial system.

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