David Dow, who represents death-row inmates, is the Cullen professor at the University of Houston Law Center and the Rorschach visiting professor of history at Rice University. His most recent book is Things I’ve Learned from Dying.

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.

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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.

In addition to the possibility of a bad lawyer in a previous chapter, the new eyes can often find many other reasons to challenge the results of the habeas proceedings, and there are dozens if not scores of cases where this has happened. For instance, the law might change between the end of Chapter 3 and the beginning of Chapter 4 in a way beneficial to the inmate; government lawyers might have failed to turn over documents they should have handed over; or the police might have hidden or refused to reveal evidence. Lawyers litigating at the crisis stage of a death penalty case are like doctors in the ER, frenetically scrambling and willing to try nearly anything that has a nontrivial chance of extending the inmate’s life.

There are also lawyers on the other side, some in the district attorney’s office and other who work for the state attorney general, who are every bit as dogged. The government lawyers either deny that mistakes were made or concede mistakes but trivialize their impact. And obviously, if there are lawyers in the picture, there must also be judges—sometimes state court judges, sometimes federal judges, sometimes both. Then there are members of the parole board who will be asked to spare the inmate’s life, and both lawyers and elected officials in the governor’s office who will also be asked to show mercy. Lastly, there are the people at the prison, guards who will escort or carry the inmate to the gurney and strap him down, and others who will administer the lethal drug or drugs. If you were to assemble the entire cast that plays a role in the carrying out of an execution, it would be a symphony, not a mere chamber orchestra.

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So how does last-minute litigation like this unfold in Texas? All things considered, quite smoothly. Take the example of Robert Campbell. Less than two weeks before the scheduled execution date, his new Chapter 4 lawyers (all volunteers) found documents that had not been provided to his previous legal team and that contained evidence suggesting he has an intellectual disability that makes him ineligible for execution under federal law. At the same time, Campbell’s lawyers were also challenging the state’s insistence on keeping secret information having to do with the source of the chemicals it uses to carry out executions. Challenges to the method of execution have been percolating in the legal system for more than a decade now, but the optics changed dramatically in April with Oklahoma’s botched execution of Clayton Lockett, who was essentially tortured to death. That gruesome scene helped puncture the myth that the lethal injection process is painless and foolproof. As a result, the Chapter 4 activity in the Campbell case was especially intense.

Here’s where Texas stands apart from other states. In law, as in most areas of life, when you drop a bombshell on someone two weeks before a major event is to occur, chaos ensues. But there was no chaos in Texas. The first issue Campbell’s lawyers raised, relating to the lethal injection protocol, took place entirely in federal court, with lawyers from the attorney general’s office on the other side. The second issue took place first in state court and then in federal court, involving lawyers from the district attorney’s as well as attorney general’s office. In addition, there were at least nine state court judges involved, and 13 federal judges, including the justices on the state Supreme Court. There were also five members of the Texas Board of Pardons and Parole, and the governor’s office.

The issues raised in both these pieces of litigation were highly complex. The federal court pleading relating to the claim of intellectual disability was nearly 200 pages long, not including the exhibits. A death penalty lawyer who had not handled crisis litigation before simply could not have gotten the pleadings finished. A district attorney or assistant attorney general who had not been through this process many times would have required weeks to respond. A panel of judges unaccustomed to addressing complex issues as the grains fell to the bottom of the hourglass would not have been able to write a 20-page opinion while the inmate sat in a holding cell eight steps from the execution chamber.

What is unusual about the Campbell case is that he was not executed; the judges that oversee the system in Texas are typically hostile to claims raised by death row inmates, and that hostility increases dramatically as the scheduled execution date approaches. (Five years ago, a judge upbraided me for engaging in Chapter 4 litigation, suggesting that just because I had identified a good argument did not mean I was compelled to raise it.) But what is important about the Campbell case is that the way it unfolded is mundane. Everybody—the lawyers, the judges, the governor’s staff, the Board of Pardons and Paroles—had been through this many times before. In fact, since executions resumed in Texas in 1982, the state has averaged 16 executions a year. That means that in a typical year Texas carries out more than one execution per month. In some years, it’s been closer to three a month. The lawyers who represent the condemned in Texas are skilled at identifying issues, and the lawyers who represent the government are skilled at swatting them away. The judges who decide these matters, too, have done this many times before. What would cause the legal systems in many states to shut down because of the novelty and complexity of the case barely causes a ripple in Texas. That’s why I say the reason that Texas executed so many people in 2013 is that it executed so many in 2012, and it executed so many in 2012 because it killed so many in 2011, and so on and so on, all the way back to 1982.

I have answered one question but left another entirely unaddressed. How did this all start? Is the Lone Star State particularly bloodthirsty? How did Texas go from a single execution in 1982 to 10 in 1986, and then keep creeping up from there?

That’s a question nobody has a perfect answer for. It owes something to the decentralization of the process of setting execution dates. Unlike other states Texas allows local prosecutors to set execution dates for cases that come out of their counties; this means that the flurry of Chapter 4 activity that follows once a date is set ends up happening all at once—which over time has given Chapter 4 lawyers extra practice streamlining their work. Of course, it is also worth mentioning that district attorneys, the state attorney general and the state court judges are all elected officials, meaning that Texas’ execution record is also the result of callow politicians chasing cheap votes by beating the death penalty drum rather than endorsing more economically and morally responsible methods of punishment.

Still, I would argue that the question of just how executions in Texas have mushroomed doesn’t really matter much. After all, at the same time that Texas continues to execute far more people than any other state, Texas juries are not sending many new people to death row—there were just nine last year, compared to 23 a decade ago. The politicians keep killing people, but the average citizens who sit in jury boxes are not sending them new people to kill. Perversely, what that might well mean is that the death penalty will die in Texas before it dies everywhere else, because in Texas there will be no one left to kill.