Legal News

Tatted Up Texas Judge Declares Death Penalty Unconstitutional

By Ashby Jones

It’s either one of the more brazen and courageous judicial rulings we’ve heard of in a long time, or one of the most ill-considered examples of judicial activism we’ve heard of in a long time. Your take on it will likely depend on your take on the death penalty.

The news is this, and it’s pretty striking: A state district judge in Houston granted a pretrial motion declaring the death penalty unconstitutional. Click here for the AP story.

The ruling, made by State District Judge Kevin Fine, came in response to a motion filed by lawyers for a man accused of fatally shooting a Houston woman and wounding her sister on June 16, 2008. The lawyers had argued the procedures surrounding death-penalty jury instructions in the Texas Code of Criminal Procedure violate the Eighth and 14th Amendments prohibiting cruel and unusual punishment and guaranteeing the right of due process.

In his ruling, according to the AP, Fine said that it is safe to assume innocent people have been executed. “Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don’t think society’s mindset is that way now.”

Click here for a 2008 Houston Chronicle story on Judge Fine, which includes one of the most, well, incongruous pictures you’d ever expect to see. Tats! Many many tats!

The response to the ruling was, well, swift and pointed. The Texas attorney general, Greg Abbott, called the ruling “an act of unabashed judicial activism.” Abbott offered to help the district attorney appeal Fine’s decision, which Abbott said ignored U.S. Supreme Court precedent.

Gov. Rick Perry joined Abbott and the local DA in slamming Fine’s ruling.

“Like the vast majority of Texans, I support the death penalty as a fitting and constitutional punishment for the most heinous crimes,” Perry said. “This is a clear violation of public trust and I fully support the Harris County District Attorney’s decision to pursue all remedies.”

The U.S. Supreme Court placed a moratorium on executions in its 1972 Furman v. Georgia opinion, but reaffirmed its uses in a 1976 opinion called Gregg v. Georgia.

Perhaps that’s why Sandra Guerra Thompson, professor at the University of Houston Law Center, told the AP that Fine’s decision was unlikely to withstand appellate review.

Full post as published by Law Blog - WSJ.com on March 05, 2010 (boomark / email).