This Man Should Not Be Executed
WHEN HE WAS 18, in 1993, Billy Joe Wardlow shot and killed an 82-year-old man named Carl Cole during a robbery in Cason, Texas, a rundown town of fewer than 200 people in the state’s rural northeast corner. Two years later, he was convicted of capital murder, making him eligible for the death penalty. The jurors who convicted him, in deciding whether to sentence him to death or to life without parole, had to determine first whether he “would constitute a continuing threat to society,” including inside the prison. When the answer to that question was yes, they had to decide whether, “taking into consideration all of the evidence, including the circumstances of the offense, the Defendant’s character and background, and the personal moral culpability of the Defendant,” there was still enough mitigating evidence to warrant a life sentence without parole. The jury said no, and sentenced him to death.
Last June, I interviewed Wardlow at a maximum-security prison called the Polunsky Unit, located 80 miles northeast of Houston, where he is waiting for his execution on death row. He has been incarcerated for a quarter of a century, but the state has now set a date for his death: April 29, 2020. His lawyers, Richard Burr and Mandy Welch, having gotten to know him well in the 23 years that they have represented him, told me they are convinced that time has shown the jury to have been wrong in determining Wardlow posed a future danger. The more I have read about his case and his life, the more I think they are right. Wardlow stands out as someone the legal system has wronged repeatedly, especially in deciding his punishment.
In 1972, the Supreme Court struck down the death penalty as states then applied it because juries were imposing it arbitrarily and unpredictably, for crimes such as robbery as well as for murder. In 1976, when the Court reinstated the penalty, it upheld new state laws said to address those defects. These laws gave juries guidance about whether an “aggravating factor,” such as an “especially heinous, atrocious, or cruel” murder, justified the penalty, or “mitigating circumstances,” for instance if the defendant had “no significant history of prior criminal activity,” made the penalty excessive.
The reinstatement began an experiment, as the moderate justice Harry A. Blackmun called it, in devising rules “that would lend more than the mere appearance of fairness to the death penalty endeavor.” In 1994, in a dissent, Blackmun concluded that the experiment had failed: “No combination of procedural rules or substantive regulations,” he wrote, could “accurately and consistently determine which defendants ‘deserve’ to die.”
Blackmun’s declaration—“From this day forward, I no longer shall tinker with the machinery of death”—followed the conclusions of three former justices, Lewis F. Powell Jr., a moderate conservative, and the liberals William J. Brennan Jr. and Thurgood Marshall, that the death penalty should be abolished. In 2008, Justice John Paul Stevens, a moderate conservative who became a moderate liberal as the court moved to the right, joined the group. He called the penalty “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” In 2015, in a dissent, moderate liberal justices Stephen G. Breyer and Ruth Bader Ginsburg indicated that they were the sixth and seventh recent justices who were ready to outlaw the penalty. Breyer wrote that “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t].’ ” He called for the Court to consider whether the penalty violates the Constitution.
Breyer noted that between 1994, when American support for the death penalty was at its all-time peak of around 80 percent, and 2014, when support had fallen to 55 percent, the share of Americans living in a state that had executed an inmate in the previous three years dropped from about one-half to a third. Since 2007, nine states have abolished the death penalty. Four states have established a moratorium on executions. In 2016, support for the death penalty fell to 49 percent, its lowest level in the four decades since the Court reinstated the punishment. The number ticked up to 54 percent in 2018, but fewer than half of Americans polled said they believed that the penalty was administered fairly.
The day before the presidential election in 2016, Carol S. Steiker of Harvard Law School and her brother Jordan M. Steiker of the University of Texas School of Law, the leading death-penalty scholars in the country, published a definitive account of the court’s experiment. In Courting Death: The Supreme Court and Capital Punishment, they wrote that the “extraordinary phenomenon” of “justices of varying political commitments” embracing “constitutional abolition of the death penalty” suggested that the punishment would “not last much longer in the United States.”
But with the change in
