Texas has removed 32 people from death row based on evidence
of intellectual disability since Atkins v. Virginia. Yet despite the rulings
making those executions unconstitutional, no case or federal law outlines the
standards states should use to determine which defendants qualify as
intellectually disabled, leaving that process to state courts and appeals, reported The Texas Tribune.
Several states already have codified the exemption from
death sentences for intellectually disabled inmates and created standards for
determining who is eligible. Texas, however, has not codified the exemption or
a process to discern who is exempt. The lack of guidance is not for a lack of
trying: Texas House Rep. Senfronia
Thompson, D-Houston, has been trying to push the state toward a framework
for years, especially as the new administration potentially eyes rollbacks.
In multiple sessions, Thompson has filed a bill that would
codify the exemption, as well as create a separate, pretrial jury hearing for
those charged in capital cases to discern whether they legally qualify as
intellectually disabled. After the Supreme Court ruled against Texas in 2019,
the bill briefly
picked up some Republican backing before failing in
the Senate.
“We're not plowing new ground, because other states have
done this, are doing this, and have been doing it for a while,” Thompson said.
“We're trying to eliminate a patchwork situation.”
Now called House Bill 688 in the 2025 legislative session,
Thompson said her team estimates the cost of the pretrial hearing would be
about $250,000. While the cost may seem expensive initially, Thompson stressed
it could circumvent the more expensive death penalty trials, which counties
would have to pay millions of dollars through the trial and appeal process.
Currently, a ruling determining a defendant is
intellectually disabled is done on an “ad-hoc basis,” said Burke Butler,
executive director of the Texas Defender Services. The nonprofit organization
provides legal representation for death penalty defendants, having won five
Supreme Court cases in its 30-year history and removing 44 defendants from
death row since 2018.
Butler said HB 688 provides a streamlined process to
determine a defendant's eligibility at a single point in the trial.
“This is an issue that really requires and deserves a
separate hearing to determine whether someone has intellectual disability,”
Butler said.
Thompson clarified HB 688 is not a statement on the ethical
or financial responsibility the state has for death sentences, but a guardrail
it needs to ensure it’s being constitutionally applied.
“We're not saying that because it costs X number of dollars
we shouldn't do this,” Thompson said. “We're saying that if we're going to do
this and that issue is raised, there should be a pre-trial hearing helped by a
jury utilizing the current medical data.”
Boosting the use of lethal injections
Donald Trump’s executive order directs the attorney
general to take “all necessary and lawful action” to ensure states that use
lethal injection for death sentences have a sufficient supply. Many states,
including Texas, that use lethal injection as a means of execution have laws in
place shielding public knowledge of who supplies the drugs to states.
In the past decade, Texas has struggled to acquire and
maintain adequate amounts of pentobarbital, the drug used for lethal
injections, as pharmaceutical companies have stopped providing it to
governments for use in executions. Officials from the Texas Department of
Criminal Justice declined requests for comment on the executive order or its
ability to secure lethal injection drugs.
For Texas to maintain its stock of the drug, officials
turned to a variety of means, including retesting
current supply for its potency to push back expiration dates. The
practice resulted in multiple lawsuits from Texas inmates because of the risk
of painful executions.
In 2023, an Austin judge went as far as to issue a temporary
injunction hours
before an execution, stating TDCJ’s use of its pentobarbital “is
probably illegal to possess or administer because it is more likely than not
expired.” That ruling was overturned by the Texas Criminal Court of Appeals.
Texas also has looked to local compounding pharmacies —
where drugs are created on-site using necessary ingredients — to make up for
the shortage. A 2024 NPR
investigation found one compounding facility in San Antonio provided
pentobarbital to the state from 2019 to 2023 while receiving several citations
from the Texas State Board of Pharmacy for failing to maintain sterile
compounding environments.
Yet even with enough of the unexpired drug available, using
it may also clash with recent federal findings. Days before Trump’s
inauguration, former U.S. Attorney General Merrick Garland issued a memorandum
suspending the federal single-drug lethal injections alongside a Department of
Justice report that concluded the method likely caused painful pulmonary edema
in executed individuals. Texas is one of seven states listed using the same
method described in the report, which likened the sensation of induced
pulmonary edema to waterboarding.
Because the memorandum affects only federal executions,
states that use the single-drug protocol can still execute inmates with that
method. On Feb. 5, Texas is scheduled to be the first state in the U.S. since
the DOJ’s advisory was issued to execute an inmate with a single-dose lethal
injection.
“Doubling down”
The only element of the executive order that directs the
attorney general toward specific charges for potential defendants outlines two
cases in which the death penalty should especially be sought: noncitizens
illegally present in the country who commit capital crimes and anyone who kills
law enforcement officials.
In Texas, capital murder is currently the only crime
eligible for the death penalty, which includes the killing of police officers
or firemen. Whether or not the death penalty is sought, however, is at the
discretion of district attorneys, and the executive order does not require
state attorneys to follow the new guidance.
A short section of the order also instructs the attorney
general to accept or deny pending requests for certifications for the State
Capital Counsel Mechanism Certification, for which Texas is currently the only
applicant.
The certification allows states to fast-track habeas corpus
petitions — which challenge the legality of an inmate’s incarceration — in
capital cases, but states can only be certified if they prove they have a
robust state-provided process for post-conviction representation. No state has
ever received the opt-in certification, and Butler said Texas simply lacks the
infrastructure to qualify.
“There are a couple of stages of proceedings in state habeas
where people aren't entitled to counsel at all in Texas, and that has dire
consequences for defendants in those proceedings,” Butler said.
With the state legislative session underway alongside the
start of the new federal administration, much is still uncertain as to how the
executive order will be received by Texas officials, but the current gaps in
the state’s provisions have some worried how the two will mix.
“All of these things really point to the fact that you need
a careful and comprehensive system for ensuring robust representation and
ensuring that people's legal claims are addressed,” Butler said. “It's just
very concerning that the administration is doubling down on the system that we
know is so unjust.”
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