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CURRENT LOCATION: TJCLCR | Archives | VOLUME 1, ISSUE 2 (Spring, 1994)


Volume 1, Number 2, Spring 1994



A Case Study in Systemic Unfairness: The Texas Death Penalty, 1973-1994, 1
Brent E. Newton

This highly persuasive and captivating article presents a short history of the Texas death penalty after Furman v. Georgia was decided by the Supreme Court in 1972. The author enumerates several shortcomings of the current system and describes the unfairness in the application of the penalty. He cites instances of racism, gay-bashing, hanging judges, hanging juries, and prosecutorial, judicial and pathologist-based mis-conduct. Also discussed are the lack of adequate representation for indigent defendants and the many mentally incompetent and young defendants sentenced to death.

Texas was the leading practitioner of the death penalty until 1993, yet the Texas procedure has been generally condemned as the barest minimum required post-Furman.


Does Real Innocence Count in Review of Capital Convictions?, 38
James C. Harrington

In this article, Harrington points out the dangerous limitations in the Texas clemency process. The process does not protect convicted persons who come forward after trial with substantial new evidence that they are in fact not guilty.

Harrington begins with a short examination of federal law, as handed down by the Supreme Court in Herrera, which put the resolution of all “miscarriages of justice” in capital crime convictions in the hands of State clemency procedures. Harrington then exposes the limitations in the Texas clemency procedures, which give almost exclusive control to the Texas Board of Pardons and Paroles and are highly effected by a politically charged environment which favors capital punishment. Finally, Harrington discusses the Gary Graham criminal case and the positive effect that it has had on the Texas clemency process.

In the aftermath of Graham, convicts can bring claims of actual innocence based on newly discovered evidence under State habeas corpus proceedings.


A Personal Perspective on the Failure of the Death Penalty Experiment, 46
Gary T Graham

The article is based on two related arguments. The first is that the death penalty racially discriminates against people of color. Graham cites statistics that Blacks who kill Whites are executed at a far greater rate than Blacks who kill other Blacks or Whites who kill Blacks. The fact that these statistics are largely ignored today indicate pervasive racist attitudes that value white lives more than black. Graham argues that abolishing the death penalty is a step toward protecting those who are still oppressed in this country.

Graham's second argument is based on his personal experience as a death row inmate in Texas. Graham maintains that, despite considerable new evidence of his innocence, racist attitudes have prevented him from obtaining a new trial.

Graham concludes by arguing that his case is proof that institutionalized racism is alive and rampant in America and the judiciary is unwilling or unable to do anything to prevent it.


Homosexuality and Texas Law: An Analysis of Texas v. Morales and its Implications, 50
Michael H. Garbarino

The article deals with the dismissal, in the Texas Supreme Court, of Texas v. Morales, a challenge to section 21.06 of the Texas Criminal Code, the state's sodomy law. The Court, sitting in equity, dismissed because plaintiffs proved neither sufficient harm nor the actual or imminent deprivation of a vested property right. The Court refused to extend the scope of its equity jurisdiction to include protection of personal rights.

The article raises two questions. First, does Texas' sodomy statute violate the state constitution? Second, does the Morales opinion foreclose judicial review of any criminal statute that the State chooses not to enforce? The constitutionality of the law is unclear.

In City of Dallas v. England, the Third District Court of Appeals held that the sodomy law was an invasion of privacy in violation of the state Constitution. The status of that ruling is in doubt because it was not challenged in the Texas Supreme Court and because England relied on the Third District's Morales ruling.

Whether unenforced criminal statutes are subject to judicial revue is, perhaps, an unintended question raised by the Morales decision. Nevertheless, the question may remain unanswered because Texas civil courts have reviewed the constitutionality of unenforced criminal statutes only three times in the last century. Future challenges to Texas' sodomy law will require a plaintiff who has been deprived of a vested property interest to fit squarely within the requirements for equity review outlined in Morales.