Legal News

The Death Penalty is Illegal! Oh, Wait, Lemme Double Check That

By Ashby Jones

We wrote last week about the tatted-up Houston judge who recently boldly — rashly? — went where few judges have gone in the last quarter century: declaring the death penalty unconstitutional.

Turns out, the judge — State District Judge Kevin Fine — has rescinded his ruling, deciding on Tuesday to schedule a hearing on the issue. Click here for the Houston Chron story.

On Tuesday, according to the Chron, Fine stated that his ruling was “limited to whether the Texas Code of Criminal Procedure allows for the execution of innocent people.” From the bench, Fine said: "There’s nothing in my research that says it is OK to execute innocent people so that we may have a death penalty.”

Fine ruled last week that the Texas capital murder statute, Article 37.071 of the Code of Criminal Procedure, violates due process provisions of the U.S. Constitution. The defendant in a case before Judge Fine — John Green — is facing the death penalty after being accused killing a woman in 2008.

And what prompted Fine’s reversal? Well, a fusillade of criticism might have had something to do with it. According to the Chron, Pat Lykos, Harris County’s district attorney, Texas Attorney General Greg Abbott and Gov. Rick Perry all ripped Fine for what they called "judicial activism."

"It’s great to shoot first and ask questions later, isn’t it?" Adam Gershowitz, an associate professor at the University of Houston Law Center, told the Chron. "It’s not as if there’s not three or four decades of death penalty litigation that you might want to consult before ruling the entire death penalty unconstitutional in the state of Texas."

The U.S. Supreme Court placed a moratorium on executions in its 1972 Furman v. Georgia opinion, but reaffirmed its uses in a 1976 opinion called Gregg v. Georgia.

Full post as published by Law Blog - WSJ.com on March 10, 2010 (boomark / email).