Wednesday, January 12, 2011

"A Very Strange As-Applied Challenge"

Every year, the Texas Court of Criminal Appeals sees challenges to the constitutionality of the Texas death penalty scheme from death row inmates…and every year, the CCA affirms the practice. John Edward Green, Jr. is trying a novel approach to the subject. He is charged with capital murder and rather than waiting to be convicted and sentenced to death, he is challenging the death penalty statute before trial. As the CCA states:

Mr. Green appears to seek a pretrial ruling from the trial court judge that the State is not entitled to proceed with its capital-murder indictment in this case because it is within the realm of possibility that Mr. Green could be wrongfully convicted and wrongfully sentenced to death if convicted. The question before us is whether Mr. Green is entitled, under Texas law, to a pretrial hearing and a pretrial ruling that would deprive the State of the opportunity to try its capital case and seek the death penalty against Mr. Green.
An intriguing challenge indeed, but not one that the CCA is likely to entertain. The Court goes on:

He is asking Texas trial and appellate courts to entertain a purely hypothetical claim and make an advisory ruling in a case that has not been litigated to any final resolution. Neither trial nor appellate courts may entertain hypothetical claims.
Just as I suspected. Without a conviction and a death sentence, it is rather difficult to challenge the constitutionality of the death penalty statute “as applied.” The simple risk of an innocent person being convicted – as evidenced by past innocent convictions – is not enough, says the CCA.
And we have explicitly held that the risk that some other possibly innocent person might be executed does not violate a third person’s–the defendant’s–due process rights, nor does it violate the Eighth Amendment.
Defendants certainly are getting more creative in confronting Texas death penalty statute, but for now, it stands firm. What form will the next attack take? I’ll be interested to find out.