For Perry, Support of Death Penalty May Be Mixed Bag Nationally

In tough-on-crime Texas, supporting the death penalty is practically a political prerequisite, and Gov. Rick Perry has nailed that qualification, overseeing the executions of 230 prisoners, more than any other modern governor of any state.

“He certainly would stand out among other governors,” said Richard Dieter, executive director of the Death Penalty Information Center. “But that’s just sort of a given in Texas.”

As Perry considers a bid for the White House, experts say his willingness to implement the death penalty and his adamant denial of the possibility Texas may have executed an innocent man could have mixed campaign consequences.

During his 10-year tenure, Perry has overseen nearly half of the 470 executions in Texas since the death penalty was reinstated in 1974. In that time, public opinion about the death penalty has evolved as DNA evidence and other modern forensic science developments have cleared many wrongfully convicted inmates across the country. More than 130 death row inmates nationwide have been exonerated since 1973 — including 12 in Texas — according to the Death Penalty Information Center. A 2010 Gallup News poll found that public approval of the death penalty had dropped from an all-time high of 80 percent in 1994 to 65 percent in 2009.

A number of states, including Illinois, New Mexico, New York and New Jersey, have in recent years stopped using the death penalty.

Despite the uncovering of wrongful convictions in Texas and other states, though, Perry has granted few requests for clemency in death penalty cases. “Clemencies are rare everywhere, but they’re particularly rare in Texas,” Dieter said.

Perry can only grant clemency to an inmate if the Texas Board of Pardons and Paroles recommends it. The board reviews hundreds of requests each year from former prisoners and from inmates who want their sentences reduced or their criminal records cleared. From 2001 to 2009, the board considered more than 2,000 applications. It recommended clemency in more than 530 cases related to all kinds of crimes, and Perry granted about 30 percent of them.

Perry has commuted the death sentences of 31 inmates. The great majority of those commutations — 28 — involved cases in which the defendant was a juvenile at the time of the crime. Perry begrudgingly commuted those sentences in 2005, after the U.S. Supreme Court ruled that states could not execute those who were younger than 18 at the time of their crime. “While these individuals were convicted by juries of brutal murders and sentenced to die for their heinous crimes, I have no choice but to commute these sentences to life in prison,” Perry said at the time.

In two other cases, Perry commuted to life in prison the death sentences of inmates who were proven mentally retarded, another group of individuals the nation’s highest court has excluded from the death penalty.

And in the only other case, Perry commuted the death sentence of Kenneth Foster to life in prison after his attorneys argued he was not the shooter in the May 1996 murder for which he was convicted but only drove the getaway car. Foster was sentenced under Texas’ “law of parties,” which allows capital punishment for individuals who may not have been the killer but who were parties to the crime. Perry said, as he granted the commutation just hours before Foster was to be executed in August 2007, that he hoped lawmakers would re-examine the law of parties. Despite efforts to repeal the law in the two legislative sessions since then, it remains on the books.

Two of Texas' highest-profile death penalty recent cases continue to shadow Perry. The case of Cameron Todd Willingham, who was executed in 2004 for an arson that killed his three daughters, has roiled the criminal justice community in Texas and nationwide. Since Willingham's execution, public reports have revealed that Perry’s office was aware that serious scientific questions had been raised about evidence used to convict Willingham. Perry has dismissed the reports of scientists who concluded Willingham was not responsible for the blaze and has called him a guilty “monster.” The Texas Forensic Science Commission continues to investigate the science used in the Willingham case, and the Innocence Project continues its fight to prove that Texas killed an innocent man.

Anthony Graves is the most recent Texan to be freed from death row after proving his innocence. He spent 14 years on death row and four years in isolation at the Burleson County Jail before prosecutors dropped the charges against him. He had initially been convicted based on the testimony of the actual killer, Robert Carter, despite the lack of any physical evidence tying Graves to the brutal murders or any clear motive for the crime. Twice, Graves was nearly executed.

Still, Perry, during a campaign stop days after Graves’ release in October, said the case showed that the state’s criminal justice system is working. “I think we have a justice system that is working, and he’s a good example of — you continue to find errors that were made and clear them up,” Perry said, according to a report in the Lubbock Avalanche-Journal. “That’s the good news for us, is that we are a place that continues to allow that to occur. So I think our system works well; it goes through many layers of observation and appeal, et cetera.”

This week, the Texas comptroller paid Graves $1.45 million for the time he spent behind bars after Perry signed a bill that enabled him to be compensated. But Graves’ lawyers said much work remains to ensure that Texas doesn’t make the same mistake again.

Perry’s gubernatorial challengers — both his GOP rival U.S. Sen. Kay Bailey Hutchison and Democratic former Houston Mayor Bill White — last year tried to make hay of his handling of the death penalty. Neither candidate made much headway, and the topic was hardly a matter of debate during the campaign.

But how the controversies over wrongful convictions and the death penalty play out on a national scale could be different, experts said.

In the GOP presidential primary campaigns, Perry’s tough-on-crime credentials likely only stand to help him among conservative voters. “There’s not a lot of concern among his target audience with these kinds of questions,” said Jim Henson, director of the  Texas Politics Project at the University of Texas. In the primaries, other candidates would have to work hard to make the death penalty an issue damaging to Perry, he said, and as the governor has shown in his home state, there’s a slim chance such an attack would meet with success.

But if he becomes the party’s presidential nominee, Perry’s stance on the death penalty could present a bigger challenge, said Larry Sabato, director of the Center for Politics at the University of Virginia. In Democratic-leaning states, Sabato said, Perry’s commitment to capital punishment is likely to hurt him. But, he added, it’s not as though Perry would carry those states anyway.

The bigger question, Sabato said, is how the issue affects swing states where many voters are not strictly aligned with either party. For many independent voters, Perry could be seen as an even more conservative version of President George W. Bush, an impression only deepened by his ardent support of the death penalty.

“To the average American, he’s going to be another Texan, but an even tougher, harder-edge Texan,” Sabato said. “For swing states, that’s going to be a tough sell.”