Texas appeals court judge calls for abolishing death penalty

Notable executions in Texas. Notable executions in Texas. Image 1 of / 39 Caption Close Texas appeals court judge calls for abolishing death penalty 1 / 39 Back to Gallery

Veteran Texas Court of Appeals Justice Tom Price on Wednesday denounced the death penalty, saying that Texas' 2005 life without parole law makes it unnecessary and that the possibility of executing a wrongfully convicted person is an "irrational risk" that should not be tolerated by the criminal justice system."

The Dallas Republican's comments, thought to be the first time such views have been voiced by a judge on the state's highest criminal appeals court, came in a strongly worded dissent to the court's Wednesday rejection of an appeal on behalf of Scott Panetti, a Fredericksburg double-killer said to suffer from schizophrenia. Panetti, 56, is scheduled to be executed next Wednesday.

"Based on my specialized knowledge of this process," Price wrote, "I now conclude that the death penalty as a form of punishment should be abolished because the execution of individuals does not appear to measurably advance the retribution and deterrence purpose served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty option; and the risk of executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel."

Price, 61, a former Dallas County state district judge, has served on the high appeals court since 1996. His term ends this year and he has said he will not seek re-election.

In his statement, Price asserted that "society is now less convinced of the absolute accuracy of the criminal justice system."

He cited a 2012 University of Michigan-Northwestern University law school study that ranked Texas third nationwide in wrongful convictions during the past 24 years. He also cited a National Registry of Exonerations report that determined 2013 was a record-breaking year for exonerations in the United States; Texas topped the list.

"In my time on this court I have voted to grant numerous applications for writs of habeas corpus that have resulted in the release of dozens of people who were wrongfully convicted," Price wrote. "I conclude that it is wishful thinking to believe that this state will never execute an innocent person for capital murder. ... I am convinced that, because the criminal justice system is run by humans, it is naturally subject to human error. There is no rational basis to believe that this same type of human error will not infect capital murder trials."

Greeted with surprise

Price's comments were greeted with surprise by law professors and appellate attorneys active in death penalty cases.

"I'm still absorbing it. It wasn't expected," said Maurie Levin, a former clinical law professor at the University of Texas who now is based in Philadelphia. "It's long overdue."

While the concerns raised by Price have been "discussed and decried around the country for a number of years now ... for a high court judge, a CCA judge, to articulate them so forthrightly is extraordinary."

Levin, who frequently has represented Texas death row inmates, said she was "deeply grateful" for the judge's statement. "He is somebody we would listen to," she said. "He has had a front row seat. ... He is part of a growing chorus of people who are intimately involved ... who are uncomfortable with the system that implements executions, and that is not nothing."

Rob Owen, a former professor at the University of Texas capital punishment clinic and now on the law faculty at Chicago's Northwestern University, also hailed Price's statement.

"I think it is important that he makes clear this is not a casual change of mind," Owen said. "He's not sentimental, feeling sorry for the guys waiting to be executed. He is concerned about public safety, and he says we have an alternative punishment that's clearly sufficient in the eyes of many jurors and prosecutors and is far quicker than the years of appeals that go with the death penalty."

While opinion polls reflect staunch support for capital punishment in Texas, Owen noted that "the death penalty is going away everywhere. The number of new cases in Texas is dropping steeply - they dropped about two-thirds in the 25 years I watched them. Every additional voice being raised that we should hasten it on its way is helpful and a spark for a lot of public discussion."

'Remarkably brave'

Jani Maselli Wood, an assistant Harris County public defender, an adjunct professor at the University of Houston law school and a former Texas Court of Criminal Appeals staff attorney, said she doubts Price's statement will influence legislators or incoming juries.

But, "it will impact his legacy for what he wants us to remember," Wood said. "He says we have life without parole, why do we need death convictions. He is remarkably brave. I think it is heroic."

Price's statement came in a dissent to the court's 6-3 vote not to consider a new appeal on behalf of Panetti that argues his mental condition "renders him categorically ineligible for the death penalty under the Eighth and 14th Amendments, because imposition of the death penalty on offenders with severe mental illness offends contemporary standards of decency." The court found the petition failed to meet requirements for applications of post-conviction writs of habeas corpus.

Judges Elsa Alcala and Cheryl Johnson issued a separate dissenting opinion, saying they would stay Panetti's execution to allow for an examination of his claim that the Eighth Amendment prohibits execution of seriously mentally ill individuals.

Panetti was condemned for the 1992 murders of his mother- and father-in-law. At age 20, he was diagnosed as schizophrenic. While representing himself at his first trial, he attempted to subpoena Jesus Christ and President John F. Kennedy. His lawyers contend that his mental condition has worsened on death row.

In a 2007 U.S. Supreme Court ruling involving Panetti, justices held that a condemned inmate must have a "rational understanding" of his punishment, not just an awareness that he is to be executed and why.