David Oshinsky: The TT Interview

It's not the fact Texas has executed more people than any other state or even the recent DNA-provoked questions about whether innocent men here have been put to death that make the state's use of the ultimate punishment scandalous, says Pulitzer Prize-winning author and University of Texas history professor David Oshinsky. It's the fact that the condemned in Texas have so few resources to defend themselves against prosecutors who have become experts at sending criminals to their death.

Texas has executed more than 450 men and women accused of capital crimes since 1976 — but from the early 1960s until 1976, there were few executions here and throughout the nation. In his latest book, Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America, Oshinsky explores the case that nearly led to the demise of the death penalty in the United States and then to its eventual resurgence. He talked with the Tribune last week about his research and about what makes the death penalty in Texas so peculiar.

In the 1950s and 1960s, executions in the United States began to fall off significantly. The dropoff followed a string of bizarre cases in which the convicted failed to die. Oshinsky recounts the case of a Utah man set to die by firing squad in 1879. Wallace Wilkerson, convicted of killing a man during a card game in a saloon, convinced the sheriff not to tie him to the execution chair or blindfold him. "I intend to die like a man, looking my executioners in the eye," Wilkerson said, according to Oshinsky. But when the time came, Wilkerson flinched. The bullets missed his heart, and newspaper reporters wrote in gory detail about how the man lay bleeding to death for nearly 30 minutes. There was another mishap when New York used the electric chair for the first time in 1888. Reporters who witnessed the death wrote that it took two jolts of electricity to kill confessed murderer William Kemmler, and they described his flesh and hair lighting ablaze and the horrible stench. Then in Louisiana, where they called their portable electrocution machine "Gruesome Gertie," Oshinsky tells the story of Willie Francis, a 16-year-old black boy convicted of murdering the town druggist in St. Martinville. Through two courses of electricity, the audience could hear Francis from under his hood crying out, "I am n-n-not dying."

Following those ugly incidents and still cognizant of the awful death chambers in Nazi Germany of World War II, Oshinsky said, the American public was wary of continuing the death penalty. Many thought the U.S. should be setting a higher standard.

But in the late 1960s and the 1970s, crime began to rise. Violent crime in the U.S. rose 60 percent in the first half of the 1960s, according to Oshinsky. From 1966 to 1971, it grew another 80 percent. The civil rights movement came to a head, poverty plagued urban streets and drug abuse became a serious problem in many cities. Politicians began talking about cracking down on crime, and a crime-weary population was listening.

With more clamoring for executions and an increase in death sentences in the 1970s, the U.S. Supreme Court decided to take on the issue. The outcome would be a surprise to the judicial world and politicians across the country. The case of William Henry Furman v. Georgia was one of four that came before the court. Furman's lawyers set out to prove that the death penalty was so arbitrarily applied that it was cruel and unusual. They told the court that the penalty had been imposed so rarely that it no longer served as a deterrant. And the punishment was unfairly applied more often to those who were poor and of color. Everyone expected the justices would uphold the death penalty with perhaps some minor tweaks, Oshinsky said. The opinion the court issued in 1972 — the longest in Supreme Court history — was a shock.

Yet another surprise was in store, and this time the court would be on the receiving end. None of the justices expected states to change their death penalty laws in response to the Furman opinion, Oshinsky said. They figured that the death penalty was effectively abolished. But the crime and violence that had triggered the call for executions remained, and politicians were still determined to be hard-nosed with criminals.

Within just a few years, dozens of states rewrote their death penalty laws. Most adopted two-step capital trials that involved separate conviction and penalty phases, allowing juries to consider mitigating and aggravating circumstances when deciding whether to use the death sentence. Many states also enacted automatic appellate reviews in capital cases so that higher courts would review all death cases.

Just four years after the Furman decision, in 1976, the revised death penalty laws were back before the Supreme Court.

The unusual thing about Texas' new death penalty law, Oshinsky said, was that it required juries to act as sort of fortune tellers and decide whether the defendant was likely to commit future crimes. That was how Texas got its own "Dr. Death" in psychiatrist Dr. James Grigson.

Aside from its frequent use of "Dr. Death," Oshinsky said, there were a number of factors that combined to keep Texas' death chamber the busiest in the nation. Elected judges are more likely to take the popular position in favor of using the death penalty to keep law and order, he said. And the 5th U.S. Circuit Court of Appeals in New Orleans, which oversees Texas, is among the most conservative and toughest courts in the nation. Given those judicial conditions, it's highly unlikely, Oshinsky said, that death row inmates could have much success on appeal. Plus, Texas has a tradition steeped in slavery and religious conservatism that calls for death as rightful punishment for some crimes. The top factor in Texas that bolsters the execution numbers, he said, is the lack of a state public defender system to assign qualified lawyers to indigent suspects.

And there's one more reason: Kenneth McDuff.

After McDuff, executions in Texas — and in the nation — were on the rise, eventually peaking and then plateauing in the 1990s. In 1994, there were some 328 death sentences issued nationwide, according to the Death Penalty Information Center. Starting in 1999, though, use of the death penalty began to drop off dramatically, and by 2009 there were just 109 death sentences. Innocence commissions like David Protess's Medill Innocence Project at Northwestern University began using DNA evidence to prove some on death rows across the country were wrongfully convicted. And many states adopted laws that allowed juries to sentence murderers to life without parole instead of death. The innocence findings have made jurors more skittish about the death penalty, Oshinsky said, and life without parole gives them the option to issue a permanent sentence that doesn't end in execution.

The U.S. Supreme Court since the resumption of the death penalty has also narrowed the categories of cases in which it can be used. It ruled out executions for juveniles, for the mentally ill and for rape. The court, Oshinsky said, has worked to weed out controversial categories while leaving the death penalty intact.

The two biggest death penalty questions now facing the Supreme Court, Oshinsky said, are whether lethal injection is a cruel and unusual punishment and how states determine whether a defendant is mentally fit to face execution. Currently, states with the death penalty use different standards to judge whether a person is smart enough or sane enough to understand the punishment.

In Texas, Oshinsky said, the single largest question about the death penalty is not one of science. Media coverage in Texas death penalty cases has swirled around Cameron Todd Willingham and the methods used to prove he started the fire that killed his daughters and around Hank Skinner, who claims DNA testing could exonerate him from the three murders for which he was sentenced to die. The larger question, Oshinsky said, is one of fairness in hundreds of death penalty cases that involve poor defendants who have no means to put up a fight in court.

When it comes to his own position on the death penalty, Oshinsky said he doesn't oppose it. But he does take issue with the way it is implemented, particularly in Texas.

Nevertheless, he said, a moratorium on executions in Texas — or in the United States as a whole — is highly unlikely.