This judge on Texas’ highest criminal court just made a powerful statement about the death penalty

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In a powerful opinion released Wednesday, a judge on the highest criminal court in Texas said state courts need to take a hard look at the constitutionality of the death penalty.

Elsa Alcala, a judge on the Texas Court of Criminal Appeals who was elected as a Republican, said that the appeal of death row inmate Julius Murphy raised serious concerns about whether executing him would be constitutional.

All of the other eight justices on the court—which is known for being conservative and pro-prosecution—agreed that Murphy should get an evidentiary hearing that could lead to a new trial, based on evidence that the prosecution in the case hid evidence and threatened witnesses.


But Alcala went further. She said she would have granted a hearing based on the broader issue of the constitutionality of capital punishment as it is enacted in the state.

While Alcala’s 18-page opinion is carefully worded and reasoned, it’s a blockbuster of a judicial dissent for Texas, which has executed more people since 1976 than the next top six states combined.

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“In my view, the Texas scheme has some serious deficiencies that have, in the past, caused me great concern about this form of punishment as it exists in Texas today,” Alcala wrote, adding, “the time has come for this Court to reconsider whether the death penalty remains a constitutionally acceptable form of punishment under the current Texas scheme.”


She says that “at this juncture” she would not yet declare the penalty unconstitutional, but wants the state’s courts to study the issue.

In a phone interview, Alcala told me that her stance was based squarely on the evidence in the case. "As judges, we don't really deal with things from a big policy perspective in general, we deal with things case by case," she said. "Based on what [Murphy's lawyers] argued, they should be allowed to provide more evidence about those arguments in court."


Alcala’s opinion won’t have any immediate effects on Texas’ executions. But defense attorneys who work on death penalty cases in the state see it as a highly significant moment, and advocates say it’s a sign of a broader movement coalescing against the death penalty across the country.

The judge outlined three arguments why the death penalty could be considered unconstitutional in Texas: a nationwide decline in its use which leads to questions about its “decency;” how it is arbitrarily imposed by race; and the years and years death row inmates spend in solitary confinement while they wait for their execution date.


Inmates like Murphy, who is black, she said, may have had race influence their conviction; seventy-two percent of the offenders on death row in Texas are non-white. “Given both state and federal case law and the history of racial discrimination in this country, I have no doubt that race has been an improper consideration in particular death-penalty cases,” she wrote.

She also focused on the solitary confinement that death row inmates are kept in at Polunsky prison, north of Houston. “I conclude that the decades-long confinement in a small individual cell with little human contact could rise to the level of cruel and unusual punishment,” she wrote. The fact that Murphy has been kept in isolation for nearly 20 years “cries out for closer examination,” she said.


Murphy, who was convicted of murdering Jason Erie when he was 18 years old in 1997, will now get a chance at a new trial. Cate Stetson, one of his lawyers, said she thought Alcala’s opinion will invite more attorneys to question the constitutionality of the death penalty.

“That dissent is incredibly significant because it is a very thoroughly researched and written, unmistakable call for a rigorous inquiry into Texas’ death penalty regime,” Stetson said. “I think Judge Alcala must have felt that the time was right and the case was appropriate.”


Alcala, who is Latina, is the only non-white justice on the nine-person Texas Court of Criminal Appeals. She grew up in Kingsville, a small town in south Texas, one of five siblings. Both of her parents died before she was 15, first her mother to blood clots, her father a few years later to a heart attack. In a speech she gave when she was sworn in, she talked about how an “impoverished, orphaned Mexican-American girl can, through public education and the grace of God, became a jurist on one of the state’s highest courts.”

"I always tell people, I’m stubborn and an independent thinker mostly because I had to be," she told me. "I’ve been on my own since I was 15, so I definitely have my own ideas about right and wrong.”


After graduating from the University of Texas law school in 1989, Alcala went on to work for nine years as a prosecutor in the Harris County D.A.’s office in Houston—the county that has accounted for more executions than any other county in the U.S. She was later appointed to a state district court judgeship by then-governor George W. Bush and to her appeals court seat by Gov. Rick Perry.

“I guess I would say that I’ve seen more death penalty cases than 99.999 percent of the population,” Alcala said. “I have a unique knowledge from the trial court, having prosecuted them, to the appellate court, handling the direct appeals and writs of habeas corpus where we’re reviewing them decades later, and then [as the Court of Appeals] we’re the court that decides whether to stay an execution literally in the hours before the execution takes place. I suspect that only a handful of people can say that they’ve had the same experience that I’ve had over the decades of dealing with the death penalty.


“The totality of it all, it informs my perspective that we really should be scrutinizing these cases to make sure that… they really are the worst of the worst of the worst and not just one of the many bad people that we have in this country,” she added.

In her five years on the high court, she has raised questions about other death penalty cases and clashed with more conservative judges. Earlier this month, the U.S. Supreme Court agreed to hear appeals of two Texas death row inmates who had been denied a new hearing by the Court of Criminal Appeals. In each case, Alcala had written a dissent, arguing that the inmates deserved a second chance. “This makes my day!” she wrote on Twitter.


Her Twitter presence is a little more spirited than the typical judge—she also heralded criminal justice reforms in the Texas legislature with a “Yee haw!”

TX Leg is getting praised for criminal justice reform for increasing required amts for establishing theft. Yee haw!

— Elsa Alcala Spjut (@TexasElsa) June 8, 2016

Robert Dunham, the executive director of the Death Penalty Information Center, said Alcala’s opinion was an example of a larger nationwide trend of governors, legislators, and judges raising serious questions about the death penalty. Within the last couple years, for example, the Nebraska legislature outlawed capital punishment, the Connecticut Supreme Court banned executions, and two U.S. Supreme Court justices said they believed it was “highly likely” the death penalty violated the Eighth Amendment.


“This is a continuation of what we’re seeing in a number of different places, which is the death penalty is facing unprecedented challenges from mainstream sources,” said Robert Dunham, the executive director of the Death Penalty Information Center. “These are not the types of things you see in an institution or a punishment that is resting on firm ground.”

Alcala explained that her role was very different from that of a governor or state legislator. "I think if I was a legislator and I could make the decision about the death penalty based on policy alone that I would not have it,” she said, noting that each death penalty case can cost the state $1 million when appeals and litigations are taken into account. “As a policy matter, the death penalty makes absolutely no sense. But if you ask me as a judge, I can only tell you that I have to follow the law as best as I can and the law in Texas provides for the death penalty."


She is not the first judge on the Texas court to question the death penalty. Tom Price, another Court of Criminal Appeals judge, came out as opposing the death penalty in 2014—but only about a month before he left his seat on the court.

“What we have seen historically is that as judges reach the end of their tenure, they begin to voice doubts about the death penalty that they did not voice when they’re in a position to do something about it,” Dunham said. “One way of looking at it is that people learn from experience and change their minds. That’s the optimistic view of humanity. The cynic might say that when there is no longer self-interest in supporting the death penalty, they were able to change their views.”


Judges on the Texas Court of Criminal Appeals are elected statewide. Alcala told me that “it’s unlikely that I run again" when her term ends in 2018, although "at this point I’ve changed my mind about that every day." If she does run, the opinion could be controversial in a state where a majority of voters believe the death penalty is fairly applied.

Alcala was modest about the significance of her opinion. “I am pleased when anyone reads anything that I write,” she said on Twitter.


Read Alcala's full opinion here:

Casey Tolan is a National News Reporter for Fusion based in New York City.

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