Capital punishment practice in recent years has diverged from emphasis on guilt-innocence to dedicate virtually all resources to punishment issues. This Article attempts to avoid this myopic approach by taking stock of the current state of substantive capital law at its very foundation. After a brief history of modern death penalty jurisprudence and a restatement of the current rendition of Texas’s capital murder statute, this Article will focus first on two troubling themes in capital representation. First, how mens rea issues can address the lack of “diminished capacity” in Texas capital punishment law while suggesting a seldom used or understood legal strategy. A second reoccurring problem in the application of the Texas capital statutes and the cases interpreting those statutes is the use of “party responsibility” to qualify a defendant other than the “trigger man” for the death penalty. Following a detailed review of section 19.03 of the Texas Penal Code (the Code), with its history and current advancements in the law, I make the argument that the current statute is unconstitutional, that it has “unevoled” once again into a vehicle which drove previous capital statutes to be stricken as capricious, arbitrary, racist, and violative of the Eighth Amendment. Finally, I argue that rather than reintroduce the constitutional limits that once made the statute palatable the statute should be scrapped altogether. The current statute is incomprehensible to the ordinary person, subject to the capricious whims of prosecution and appellate review, and disproportionate in its application to minorities. As evidence continues to mount of the probability that innocent people are being executed, of the overbearing financial burden this remedy places upon society, and of the growing disfavor by which the death penalty is viewed, justice calls for the end to this transgression upon the human condition consistent with the evolving standards of decency in our maturing society.
Death and Texas: The Unevolved Model of Decency,
90 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol90/iss1/5