Texas, having a highly conservative criminal justice code, executed an African-American woman last week. This was its 500th execution since 1982. Studies show discrimination practised against minorities at every stage of trial.

Last Wednesday, when U.S. President Barack Obama was on the first leg of his Africa tour, preparing to extol the virtues of non-violence in South Africa,the Criminal Justice system of his country suffered a violent setback.

Texas, notorious for being extraordinarily supportive of capital punishment, carried out its 500th execution since it was reinstated by U.S. Supreme Court in 1976 and since Texas executed Charles Brooks Jr. using lethal injection in 1982.

Kimberly McCarthy (52), an African-American lady, was executed for robbing, beating and fatally stabbing retired college psychology professor Dorothy Booth in 1997. She became the 13th woman to be executed in the U.S. and the fourth in Texas.

United States is considered among the best and the most successful examples of a federal democracy. Separation of powers is phenomenal, not only between the different pillars of democracy --- executive, legislature and judiciary -- but also between the centre and the states. So, state judiciaries have considerable autonomy in deciding punitive action for criminal acts of capital nature.

In Texas, Court of Criminal Appeals has final jurisdiction over criminal matters. Though it ‘must’ hear cases of capital punishment brought for review by lower courts, its record has been less than satisfactory, as found out by a study carried out in 2000.

The study revealed that in 83 per cent of appeals, judges’ findings were identical to the original findings and these were upheld in nearly all subsequent appeals. In 79 per cent of the cases, the findings were upheld without any independent hearing, based on ‘whatever documents were submitted’.

It also found that in as many as 121 cases, prosecutors took ‘junk science’ as evidence to win convictions. This included doubtful reports from ‘killer shrinks’ -- mental health professionals used to convince jurors -- that the defendant needed to be put to death as his life was a threat to the society.

Constitutionality

The U.S. Supreme Court decision in Gregg v. Georgia (1976), which brought death penalty back into lawbook following a moratorium of four years, had a Texas case as its companion. The Texan counterpart ironically stated that restoration could potentially result in fewer death penalty cases in the state.

Capital punishment, as a whole, was never unconstitutional in the Land of the Free. Even in the Furman v. Georgia case (1972), following which death penalty was suspended, the court found unconstitutionality only in the method of administration of the punishment, the act in question being the Eighth Amendment

Shot of death

The state now has the burden of 40 per cent of all executions in the U.S. However, for the Texas prison officials, giving lethal injection to McCarthy last Wednesday was just about carrying out the court’s order, as told by Texas Department of Criminal Justice spokesman Jason Clark.

An analysis of demographic information gives more proof of discrimination practised in the state’s criminal justice system. Out of the 500 people executed, 225 were white; 187 black; and 86 Hispanics. So Blacks comprised 37.4 per cent of those executed, while forming just 11.8 per cent of the state's population.

A majority of crimes took place in urban areas: Houston, Dallas, Fort Worth and Austin, homes to a major part of the state’s African-American population. Both Houston and Dallas have nearly African-Americans forming one fourth of their population.

Apart from the fact that the 12-person jury that convicted and executed McCarthy had only one non-white, the place of conviction and sentencing -- Dallas County -- also needs to be documented and studied. A 1963 manual instructed the prosecutors against admitting “Jews, Negroes, Dagos, Mexicans, or any member of minority race on a jury, no matter how rich or how well educated”.

Dubya’s dubious distinction

In October 2000, when this report, also quoted above was published, George W. Bush was Texas Governor and Republican presidential candidate. The number of executions stood at 232, less than half the current figure. Out of these, Dubya had presided over 131 executions in the five years of his governorship.

Post 9/11, tolerance for capital punishment is likely to have increased -- the figures prove it. Nearly 40 per cent of the 500 Texas executions have been carried out in the last decade-and-a-half, 41 per cent of the executed being black (as compared to 34 per cent before this was published).

As I write this, both Bush and Obama are headed for Tanzania, six more executions are scheduled in Texas later this year. Out of them, four belong to either the Hispanic or the African-American community.

Final words

Texas is also the only state to have compiled and listed the prisoners' last statements. A blog has also been started which records those statements. McCarthy's last statement was:

"I just wanted to say thanks to all who have supported me over the years: Reverend Campbell, for my spiritual guidance; Aaron, the father of Darrian, my son; and Maurie, my attorney. Thank you everybody. This is not a loss, this is a win. You know where I am going. I am going home to be with Jesus. Keep the faith. I love ya'll. Thank you, Chaplain."

It is irresponsible for a living being to judge an executed based on what he said at the end. However, a reading of some of these heartfelt statements just confirms my hypothesis: when it comes to a crime involving capital punishment, the oppressor suffers -- though not in equal proportion to the victim -- and any punitive measure should involve an earnest appeal to his conscience.

One of the 500 executed, Thomas A. Barefoot, given the punishment on October 30, 1984,is quoted as telling:

“I hope that one day we can look back on the evil that we’re doing right now like the witches we burned at the stake,”

As the NYT reporter notes:

"...three decades of last statements by inmates reveal a glimmer of the humanity behind those anonymous numbers, as the indifferent bureaucracy of state-sanctioned death pauses for one sad, intimate and often angry moment".

Humanity is not the fortified and guarded preserve of the self-righteous moralists and 'children of god'. Though moments of crime diminish an individual's humanity, his conscience, they cannot destory it permanently. Those final statements bear witness to this and should be considered everytime the Texas judiciary rules in favour of capital punishment.