The Texas Court of Criminal Appeals (the highest criminal court in Texas, as the Texas Supreme Court does not handle criminal cases) told State District Judge Kevin Fine, in essence, cut it out. One key factor in the ruling is that the named defendant, accused murderer John Edward Green, hasn’t even gone to trial yet, much less been convicted and given the death penalty.
Judge Fine (presumably no relation to Larry) was all set to hold hearings on the constitutionality of Texas application of the death penalty before the ruling told him not even to bother. This was after he had just gone ahead and declared the death penalty unconstitutional in March, only to reverse himself a week later.
Though a Democrat, Fine sounds like an interesting and sympathetic fellow: A heavily-tattooed recovering cocaine addict elected to Houston’s “drug court” in 2008. He seems like the sort of person you would want to wish well. But a compelling life-story doesn’t get you a pass on blatant judicial activism. The Constitution itself makes repeated reference to the fact that no United States citizen can be deprived of life “without due process of law,” which says that they can be deprived of life with due process of law; otherwise the Constitution would merely that that they could not be deprived of life, period. The death penalty was legal in every state after the Constitution was ratified, and the Supreme Court has reaffirmed the basic constitutionality of the death penalty in every related case it has heard since Gregg vs. Georgia in 1976.
Certainly the issue of the death penalty is troubling, as there are few fates worse than being unjustly executed by the state. However, trial by jury is probably the least corrupt of America’s democratic institutions, and the criminal appeals process is far more heavily weighted toward letting the guilty go free than executing the innocent. Moreover, application of the death penalty would rank pretty far down the list of innocent people killed by the federal government; indeed, I feel confident in stating that fewer innocent men and women have been executed by the death penalty than were killed by the ATF under the Clinton Administration. And when you examine the details of cases that anti-death penalty crusaders say prove that innocent people have been executed, you find out that those same people frequently lie, and in many cases the accused was as guilty as sin. I don’t think there’s any question that the number of murders committed by ex-cons foolishly released or paroled exceeds people executed who were not guilty of the crimes for which they were executed by several orders of magnitude.
If men were angels we would need no laws. The death penalty should only be applied judiciously, but it is constitutional, and should be applied.