COVID-19 execution intellectual disabilities Texas Court of Criminal Appeals U.S. Supreme Court

TCADP May 2020 Newsletter: COVID-19 continues to impact use of death penalty in Texas

This edition of our monthly newsletter addresses the continued impact of COVID-19 on use of the death penalty and prison conditions in Texas. It also includes updates on cases involving intellectual disability claims, federal executions, and use of the death penalty worldwide.

In this edition:

Scheduled executions: Four executions stayed and two others postponed because of the pandemic; five executions remain on the schedule, including one in May

Case updates: James Henderson will be removed from death row after 25 years due to intellectual disability; U.S. Supreme Court Justice Sonia Sotomayor calls facts in case of Randy Halprin “deeply disturbing”

COVID-19 and Texas prisons: Pandemic endangers prisoners, corrections officers, and surrounding communities; Texas death row inmates seek to join lawsuit related to prison health conditions, citing particular vulnerabilities to the virus; online actions address conditions for incarcerated individuals in light of COVID-19

In case you missed it: Appeals court lifts injunction on federal executions; public health experts urge states with execution drug stockpiles to release them for medical use; COVID-19 claims lives of former warden turned abolitionist and a prison chaplain; death penalty featured in “issues Issue” of Dallas high school news magazine

New resources: Amnesty International documents use of the death penalty worldwide in 2019; two new books share the stories of individuals impacted by violence and the death penalty

Support TCADP: May 5 is #GivingTuesdayNow, a worldwide day of giving and unity 

Quote of the month

“Maybe when we emerge from this time in our cocoons, society will be transformed. Maybe we will understand that the law of nature is far more powerful than the law of people, and that the safety the death penalty promises is an illusion. Maybe we will finally see that humans don’t need to do the work of killing.”

– Kristin Collins, Associate Director of Public Information, Center for Death Penalty Litigation, North Carolina, “In the wake of the Coronavirus pandemic, let’s deem the death penalty nonessential work

Scheduled executions

The COVID-19 pandemic continues to impact use of the death penalty in Texas.  Since mid-March, the Texas Court of Criminal Appeals (CCA) has stayed four executions based on motions filed by attorneys noting the havoc the public health crisis has wreaked on the criminal justice system.  On April 27, 2020, the CCA granted a 60-day stay of execution to Edward Busby, which was scheduled for this Wednesday, May 6, 2020.  Busby was sentenced to death for abducting and killing 77-year-old Laura Lee Crane in Fort Worth in 2004.  He is the second person convicted in Tarrant County to receive a stay of execution due to the pandemic.

As of today, May 4, the State of Texas is still scheduled to execute Randall Mays on May 13, 2020.  He was convicted of the fatal shootings of Sheriff Deputies Paul Habelt and Tony Ogburn on his property in Henderson County in May 2007 in an incident that arose after a neighbor called the police about a disturbance.  He previously faced execution on March 18, 2015 but received a stay from the CCA after the court agreed with Mays’s lawyers that mental-health assessments were needed to determine if Mays was competent to be executed. He had been previously committed to state mental hospitals and diagnosed pre-trial with an organic brain disorder. Under U.S. Supreme Court law, in order to be found “competent to be executed,” a person must have a rational understanding of why he is to be executed, not simply know that he is to be executed because he was convicted of a crime.  Mays also had an execution date of October 16, 2019, which was halted after a trial court judge granted a motion to withdraw the date so that he had “time to properly review all medical records submitted.”

Mays’s attorneys are doing everything they can to stop his execution from moving forward. Check the TCADP website for updates. 

In addition to the four stays granted by the CCA, execution dates for two other men – Carlos Trevino and Billy Joe Wardlow – have been postponed in recent weeks.  Wardlow’s execution was rescheduled from April 29 to July 8.  He was 18 years old when he killed 82-year-old Carl Cole at his home in rural Morris County during a botched attempt to steal Cole’s truck.  Sentenced to death in 1995 after his attorney failed to present significant mitigating evidence at his trial, Wardlow has spent more than 25 years on death row.

In November 2019, Wardlow filed a habeas writ (appeal) with the CCA that raises the question of whether a jury can make a reliable determination about the future dangerousness of someone who is 18 years old at the time of the crime – a requirement for imposing the death penalty in Texas.  In 2005, the U.S. Supreme Court ruled in Roper v. Simmons that it is unconstitutional to impose a death sentence on individuals under the age of 18 at the time of the offense.  Since that time, scientific research has continued to show that brains do not fully mature until our early-to-mid-twenties.   

The Lone Star Justice Alliance filed an amicus brief in support of Wardlow on behalf of Texas-based researchers and professors with expertise in juvenile brain development and juvenile justice.  A powerful opinion piece by victim survivor Linda L. White, which was published in the Austin American-Statesman (“Opinion: Youth deserve second chances, not the death penalty”, April 2, 2020), also urged the CCA to review Wardlow’s case and overturn his death sentence based on his age at the time of the offense.  On April 29, the CCA dismissed the writ without reviewing the merits of the claims it raised and denied Wardlow’s motion for a stay of execution.

The State of Texas has scheduled four more executions after May.  TCADP is monitoring all of these cases closely and will provide updates on our websiteFacebook, and Twitter

Case updates

New developments in death penalty cases with intellectual disability claims 
Last month, the Texas Court of Criminal Appeals granted relief to James Henderson and changed his death sentence to life in prison based on evidence he is intellectual disabled. Henderson has spent more than 25 years on death row in Texas; he was convicted of killing 85-year-old Martha Lennox after breaking into her home in Clarksville (Red River County) in 1993. One of his co-defendants, Willie Pondexter, was executed in 2009. Henderson is the fourth person to receive a new sentence since 2017, when the U.S. Supreme Court ruled that Texas courts were using outdated, non-medical criteria to assess intellectual disability claims in capital cases.

Other cases involving intellectual disability claims are winding their way through the judicial process.  On April 13, 2020, Harris County District Attorney Kim Oggannounced that prosecutors agree that Gilmar Guevara is intellectually disabled.  Both parties have asked that the habeas court recommend his death sentence be vacated and reformed to life in prison. Guevara has spent 19 years on death row in a law-of-parties case involving the shooting deaths of two store clerks, Tae Youk and Gerardo Yaxon, during a botched robbery in 2000 in Houston.  A state district judge will issue findings of fact and conclusions of law and make a recommendation; the case then will go to the CCA for a final decision.

U.S. Supreme Court Justice Sonia Sotomayor calls facts in case of Randy Halprin “deeply disturbing”
On April 6, 2020, the U.S. Supreme Court declined to consider a cert petition from Randy Halprin, deferring to the Texas state courts that are now reviewing his claim of judicial bias.  Halprin is a Jewish death row prisoner whose trial and sentencing were presided over by a Dallas judge who made anti-Semitic comments about him.  He faced execution on October 10, 2019 before receiving a stay from the CCA.  Supreme Court Justice Sonia Sotomayor issued a strong statement on the case, in which she noted that the facts presented by Halprin are “deeply disturbing.”

COVID-19 and Texas prisons

According to the Texas Department of Criminal Justice (TDCJ), 439 employees, staff, or contractors have tested positive for COVID-19 while 1,229 inmates have tested positive at prisons throughout the state.  At least 25 prisoners and staff members have died and dozens of units are on lockdown. Yet as Jolie McCollough with the Texas Tribune observes, “like in the rest of the state, the scope of the virus’ spread behind bars is still largely unknown because testing has been limited.”  Read her coverage of how the pandemic is impacting prisons and jails in Texas.

On Friday, May 1, 2020, attorneys with the Texas Innocence Network filed a class-action motion on behalf of the men on death row at the Polunsky Unit.  They seek to join an existing lawsuit from older inmates at the Wallace Pack Unit against TDCJ, claiming health and safety concerns put them at risk of contracting COVID-19. Three employees at the Polunsky Unit have tested positive for the virus and the unit is on lockdown; no inmates have tested positive.

At the Mountain View Unit, which houses the six women on death row, no inmates have tested positive though one test is pending.  The Huntsville Unit (aka the Walls Unit), where executions in Texas take place, is on lockdown; 30 inmates there have tested positive.

In light of these developments, we wanted to share two online actions from other organizations that address conditions for incarcerated individuals in light of COVID-19.  The first petition relates to access to free phone services in prison or jail; the second petition, which was launched by the Texas Criminal Justice Coalition, aims to protect incarcerated individuals and staff within correctional institutions.

Help families stay connected with loved ones behind bars during COVID-19, and beyond

Urgent and Just Responses to COVID-19 in the Texas Justice System 

In case you missed it

Appeals court lifts injunction that blocked first federal executions since 2003
On April 7, 2020, a divided panel of the D.C. Circuit Court of Appeals lifted a preliminary injunction blocking federal executions that had been scheduled for December 2019. The injunction related to a lawsuit challenging the legality and constitutionality of the government’s lethal injection protocol. According to an attorney for one of the federal prisoners, “… serious questions remain unanswered about the legality of the government’s execution procedures under federal law.”  A diverse array of voices of experience on the death penalty, including former state and federal judges, former corrections officials, former and current prosecutors and law enforcement officials, and 175 family members of homicide victims, have called on the Trump administration not to resume federal executions. 

Public health experts urge states to release execution drug stockpiles 
A group of physicians and public health experts have written an open letter to death penalty states asking them to give up the drugs they have stockpiled for lethal injections, as these drugs “are in short supply and desperately needed to treat patients suffering from COVID-19.” The letter urges state correctional facility directors to “prioritize the needs and lives of patients above ending the lives of prisoners.” (Note: The list of drugs cited by the experts does not include pentobarbital, which is used in executions in Texas.)

COVID-19 claims lives of former warden turned abolitionist and a TDCJ chaplain 
Among the tens of thousands of people who have died from COVID-19 in the United States, we would like to lift up two men who worked in the criminal justice system: Jerry Givens and Akbar Nurid-Di Shabazz. Our thoughts are with their families, friends, and colleagues.

Jerry Givens, who served as Virginia’s chief executioner for 17 years, later became a prominent voice against capital punishment.  According to a profile by The Intercept, “What he once saw as a job he did as professionally and humanely as possible became a practice that he could no longer defend.” He passed away on April 13, 2020.

Akbar Nurid-Din Shabazz, a longtime Muslim chaplain with TDCJ, died on April 23, 2020 after battling COVID-19.  According to the Houston Chronicle, Shabazz served as the prayer leader for Charlie Brooks, who was executed on December 7, 1982.  On that day, the State of Texas resumed executions after a nearly 20-year hiatus, putting Brooks to death for the 1976 murder of David Gregory in Fort Worth.  It was the nation’s first execution by lethal injection, a new method concocted by a legislator and former chief medical examiner in Oklahoma.

Student journalist in Dallas high school focuses on death penalty 
The “Issues Issue” of the Bagpipe, the news magazine of Highland Park High School in Dallas, features an insightful article about the death penalty by sophomore Jeneta Nwosu (see page 22). Let us know if you have any feedback you would like us to pass along to this impressive student journalist!

New resources

Global use of death penalty declined last year
Amnesty International has released its annual report on use of the death penalty worldwide in 2019. Most executions in 2019 took place in China, Iran, Saudi Arabia, Iraq, and Egypt.  (Editor’s note: If Texas was its own country, it would rank among the top executioners last year, when the state put 9 people to death.)  According to Amnesty, 142 countries have abolished the death penalty in law or practice. 

Two new books share the stories of individuals impacted by violence and the death penalty
April 19, 2020 marked the 25th anniversary of the Oklahoma City Bombing, which took 168 lives. A new book explores the relationship between two fathers forever changed by that terrible day: Timothy McVeigh’s father, Bill, and Bud Welch, the father of Julie, who was killed in the bombing. Author Jeanne Bishop, who is also a victim survivor, says: “I wanted to tell this story as a way of showing how you can respond to evil—not with hatred and vengeance, but with redemption.”  Grace from the Rubble – Two Fathers’ Road to Reconciliation After the Oklahoma City Bombing is available through various booksellers.

Until Death Do Us Part by Caroline Planque examines the realities of capital punishment through the testimonies of dozens of people impacted by the death penalty in Texas, including attorneys, victim survivors, and family members of individuals on death row.  It includes a foreword by Sister Helen Prejean and is available online.