Cultural or Criminal?

How to explain Texas’s hunger for executions

The lethal injection room at San Quentin State Prison, completed in 2010 (California Department of Corrections and Rehabilitation)
The lethal injection room at San Quentin State Prison, completed in 2010 (California Department of Corrections and Rehabilitation)

Let the Lord Sort Them: The Rise and Fall of the Death Penalty by Maurice Chammah; Crown, 354 pp., $28


For the past half century, Texas has executed almost two out of every five people put to death in this country for violent crimes. Harris County, with Houston making up about half its population, has been the epicenter. By the end of 2001, when Harris County had about one percent of America’s population, people convicted there made up almost 10 percent of those executed in the United States in the previous generation.

John B. “Johnny” Holmes Jr., the county’s district attorney for 21 years until 2001, was proudly responsible for that record. As Maurice Chammah writes in his deeply reported, insightful, yet subtly and significantly misleading new book, Holmes practiced what many in Texas regard as the modern version of frontier justice: “[H]is power was as fortified as his Old West image: the long handlebar mustache, the rich drawl, the tobacco pipe, the deer rack and animal hides that lined his office walls.”

Chammah quotes, as the source of the title Let the Lord Sort Them, an unnamed “prominent defense lawyer” about Holmes’s philosophy as a prosecutor about defendants convicted of a capital crime: “Let’s kill ’em all, and let God sort ’em out.” The brutality of that approach—vengeance without mercy—defined the death penalty in Texas and in many parts of America.

The book’s first section focuses on the return and rise of the death penalty in Texas and elsewhere in the United States after 1972, when the Supreme Court struck down state death-penalty statutes throughout the country because the lack of guidelines for juries led to random, inconsistent, and unfair outcomes. The guidelines that Texas adopted in reaction to that Supreme Court ruling put the judgment about a convicted defendant’s “future dangerousness” at the center of a jury’s decision about whether to impose a death sentence. That fuzzy, ominous standard justified the penalty in almost every capital murder case. It also shifted the presumption to favoring execution, instead of reserving it for “the worst of the worst,” as the Supreme Court has repeatedly claimed American law should do.

The second section is about how, in the past two decades, the high cost of prosecuting death-penalty cases, widespread discrimination against Blacks and Hispanics in many of those cases, and a preference for sentences of life without parole rather than death have led to a major decline in the death penalty. That includes prosecutors seeking it, juries imposing it, and states executing inmates. From a high of 98 executions in the United States in 1999, the number fell to 17 in 2020. From a high of 40 in Texas in 2000, the number fell to three in 2020. A generation ago, Harris County annually sentenced about 15 people to death. In the past five years, the county has sentenced only three people to death, just one last year. The death penalty is disappearing, Chammah recounts, and “the trend has been powerful enough to bring Texas along.”

The heart of the story he tells is that, while Texas thinks of itself as a western state, which developed eye-for-an-eye justice when it was America’s frontier and aggressively carried that forward, the reality is that the state’s extreme embrace of the death penalty was “far more Deep South than Old West,” an outgrowth of white supremacy far more than the frontier.

As district attorney, Johnny Holmes said, “We’ve got to scratch the retribution itch. Otherwise people will do it themselves.” The promise of lawful vengeance in the form of execution helped protect alleged criminals from a lynch mob, including “black men who appeared to challenge the racial hierarchy.” But “legal lynchings”—“sanctioned executions that were virtually indistinguishable from the mob killings”— against Hispanics as well as Blacks made clear that “racial injustice still saturated American life” and the administration of the death penalty.

In 2017, in the case of Duane Buck, a Black man sentenced to death in Harris County in 1995, the Supreme Court held that Texas had violated the Constitution by relying on “a powerful racial stereotype—that of black men as ‘violence prone,’ ” in predicting Buck’s future dangerousness. He was resentenced to life in prison. The case put a spotlight on the heavy persistence of racial prejudice in the workings of the death penalty. It framed the connection between “harsh punishments in the present” and “the historical roots of those punishments” and why, in Chammah’s view, “it would take an entirely new chapter in the country’s political and cultural life to bring the punishment back to prominence.”

Let the Lord Sort Them is often powerful, penetrating, and persuasive and a valuable contribution to the literature on the American death penalty, but Chammah gives limited attention to two critical parts of the story and, as a result, distorts it.

He includes a short account of the Anti-Terrorism and Effective Death Penalty Act of 1996, or AEDPA, which gutted the federal writ of habeas corpus. The federal statute greatly restricted the ability of inmates to appeal their death sentences, no matter how incompetent their lawyers at trial or unfair the legal process in convicting and sentencing them. It also severely limited the power of federal judges to reject state death sentences, even if a judge has strong reasons to believe a sentence is wrong.

Chammah notes how the restrictions “helped produce a surge in executions” in the United States, more than doubling the number in just three years. But in fitting AEDPA into the Texas story, he treats the statute as a product of politics and not as a perversion of the legal system with fundamental consequences. In focusing on the importance of culture in shaping this aspect of the death penalty, Chammah minimizes and, as a result, distorts the importance of a corruption of American justice.

The statute passed by the U.S. Congress resulted in part from a long campaign by the conservative Chief Justice William H. Rehnquist, who believed states should be allowed to administer criminal justice without federal interference. AEDPA and the interpretation of it by the conservative Supreme Court transformed the writ of habeas corpus, as Judge Stephen R. Reinhardt wrote, “from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution.”

In Texas and other states, some of the cruelest effects of AEDPA have been executions of intellectually disabled people—despite a 2002 Supreme Court ruling that it is unconstitutional to execute them because their ability to control their impulses, exercise good judgment, and understand the effects of their crimes is too limited to hold them as morally accountable. For 15 years after that ruling, until the Supreme Court ordered Texas to use a definition of intellectual disabilities “informed by the medical community’s diagnostic framework,” the state applied a set of slipshod standards that meant only those who fit crude stereotypes of people with disabilities were exempted from execution.

Five years ago, when the Supreme Court was considering the case in which it finally ordered Texas to fall in line with the rest of the country, Jordan Steiker, a professor at the University of Texas Law School, and Richard Burr, a Texas lawyer who has represented clients with intellectual disabilities in death-penalty cases, estimated that Texas had executed 30 to 40 people with strong claims of intellectual disability and that between 30 to 40 of the 242 people then on the state’s death row, some executed since, had similarly strong claims to exemption.

Chammah writes that the issue of intellectual disabilities came “to dominate much litigation about the death penalty” after 2002. But he treats the issue largely as a matter of culture and judicial politics, instead of what Texas made it for decades—another perversion of law with fundamental consequences, another corruption of the system of American justice leading to the unconscionable executions of scores of people.

“Stories fly like arrows toward their morals,” Chammah quotes the novelist William H. Gass as writing, and the moral of his rise-and-fall story is that, in the past two decades, the injustices of the death penalty have caused its use to fall throughout the United States. But the human cost of the tenacious lag in Texas has been much greater than Chammah accounts for, and despite the decline in executions, in many places, including at the U.S. Supreme Court, the law continues to maintain the death penalty and the spirit of vengeance it reinforces.

Permission required for reprinting, reproducing, or other uses.

Lincoln Caplan, a senior research scholar at Yale Law School, teaches writing there and in Yale’s English Department. He is the author of six books about legal affairs and is a member of the Scholar's editorial board.


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