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Cruel And Unusual Punishment

Under the Speaker's announced policy of January 18, 2007, the gentleman from Texas (Mr. Poe) is recognized for 60 minutes.

Rep. Ted Poe

legislator photo

Mr. Speaker, I will address this house tonight on a very special issue. It is good to hear that the speakers prior to me used as the basis of their dialogue the Constitution.

Far too often it seems to me that in this House we talk and pontificate about all kinds of things, but sometimes we forget the basis for all legislation, the basis for what we do, the basis for the oath that we took as Members of Congress, was to support the Constitution of the United States.

Like many Members of Congress, I carry a pocket Constitution with me to refer to from time to time. I want to read just one portion of the U.S. Constitution. It is the eighth amendment to the Constitution. We call the first 10 amendments to our Constitution the Bill of Rights.

It says in the eighth amendment that excessive bail should not be required, nor excessive fines imposed. It also says nor cruel and unusual punishments inflicted. You notice the phrase is ``cruel and unusual punishment.'' Far too often some quote this phrase in the Constitution as cruel or unusual. That is not the law and it has never been the law. The law is punishment should not be cruel and unusual.

A little history is in order. Our forefathers that wrote this Constitution did not come up with that phrase. It goes all of the way back to the English Bill of Rights from 1689. Most of the colonists had English heritage, and when they formed their federations and the States and colonies, they enacted certain laws. In those laws and later their State constitutions, they included the phrase that punishment should not be cruel and unusual.

Then when our forefathers wrote this Constitution and made it the law, this eighth amendment was added to make sure that punishment was not cruel and unusual. So that is a little basis for where we came up with this phrase. There have been many debates over the years as to what does that mean, cruel and unusual punishment. Not many Supreme Court cases are involved in what the definition is. But there is one. In 1878, the Supreme Court of the United States in a case called Wilkerson v. Utah tried to define what the phrase ``cruel and unusual'' meant. Here is what they said: It is safe to affirm that punishments of torture, such as drawing and quartering, emboweling alive, such as took place in the movie Braveheart with William Wallace, beheading, public dissecting, and burning alive, and all others in the same line of unnecessary cruelty, are forbidden by the eighth amendment to the Constitution. I doubt there are many Americans who would disagree with that interpretation of what ``cruel and unusual'' means.

But we have a new issue before us today, and this issue is coming before the United States Supreme Court which meets right down the street from us. Those nine members of the Supreme Court have decided to take two cases from Kentucky that deal with the issue of cruel and unusual punishment.

Two men in Kentucky received the death penalty for crimes against the citizens of Kentucky. And they argue now, years later, that the means by which they are executed is cruel and unusual. That means, Mr. Speaker, is by lethal injection. Kentucky's lethal injection procedures are the same as many States, including my home State of Texas. Just to be clear, three chemicals are used for lethal injection. The first is sodium thiopentothal which renders a person unconscious, and pavulon which paralyzes the muscles, including those which control breathing, and then potassium chloride which causes cardiac arrest. Those are the three chemicals that most States use and are administered to the person who has received the death penalty and is to be executed for their crimes.

The Supreme Court will consider one of these cases, it is called Baze v. Rees, the way that lethal injection is actually administered by the administrating process, whether it causes severe pain such that it is a violation of the cruel and unusual punishment provision of the eighth amendment. Baze was scheduled to die on September 25, 2007, for the 1992, that's right, 15 years ago he murdered a sheriff and deputy sheriff who were trying to serve him with a warrant. The Kentucky Supreme Court stayed his execution pending the outcome of the Supreme Court decision.

The second case involves the execution of a Thomas Bowling, also from Kentucky. In 1990, that is 17 years ago, he killed Tina and Edward Early outside their Lexington dry cleaning business. He also shot the Early's then 2-year-old son, but the son did not die. He was able to survive. Bowling was supposed to be executed 3 years ago, in 2004, but his execution was halted in part because of a challenge on how the State of Kentucky executes prisoners.

Both of these offenders, Baze and Bowling, sued the Commonwealth of Kentucky in 2004 claiming lethal injection amounts to cruel and unusual punishment and violates the eighth amendment to the Constitution. The State Supreme Court of Kentucky ruled against both of these men, but the U.S. Supreme Court now will hear their case. This marks the first time that the United States Supreme Court will address the merits of lethal injection without also a request for a stay of execution.

The Supreme Court's precedent is that the death penalty and the method of execution must not be ``contrary to evolving standards of decency'' and may not inflict ``unnecessary pain.'' Let me say that again. The Supreme Court says that the method of execution must not be contrary to evolving standards of decency and may not inflict unnecessary pain.

Our Supreme Court really has only ruled on a direct method of execution once, and that was in 1878 when it upheld the use of a firing squad for execution. But since that time, the Supreme Court in 1972 stopped all death penalty cases because of a different legal issue. The issue was that juries that decided whether a person should get the death penalty or not had too much discretion in making that decision. So the Supreme Court struck down death cases in the United States until State law conformed with the Supreme Court ruling, and then jurors were given a more exact way of determining whether the person should live or die. I am not going to go into those issues at this time, but basically the jury is asked a series of questions, and based upon the way they answer the questions, the person would receive the death penalty or a life sentence. In 1976, juries once again started hearing death penalty cases and making that decision.

Mr. Speaker, as you know, prior to coming to this House, I served in Texas first as a prosecutor in the district attorney's office in Houston for 8 years, and I also served on the bench trying felony cases after that for 22 years. During those 8 years when I served as a prosecutor, I tried death penalty cases. And those people that I tried when I was a prosecutor have all been executed.

When I served on the bench, most of those individuals who were tried and juries heard those cases, those people who received the death penalty have also been executed. But there are still some even now who are on death row.

I want to make it clear that judges do not determine the death penalty in this country. We do not give that power to one person. We want and make juries determine whether a person should live or die for the crimes they have committed. It is a mistaken belief among a lot of Americans that judges assess the death penalty. We just sentence the person to the death penalty if the jury has ordered the death penalty in that particular case.

So it is 12 people from the community who set the community standard on the conduct on the individual who appears in court. I am a great believer in that. I believe juries should be the ones and it should be a unanimous decision before we take a person's life for the crimes they have committed.

And guilt should never be an issue. What I mean by that, juries must be absolutely convinced beyond all doubt that a person committed this crime before they assess the death penalty. I was very careful as a trial judge over those 22 years on the numerous death penalty cases I tried to make sure that the rule of law was enforced in every situation because of the fact that the person that is on trial receives the ultimate punishment.

I am actually one who believes in numerous appeals on death penalty cases, to have it reviewed by other courts. I just wish courts, including our Supreme Court, would not take so long to make those decisions, that they should review those questions of guilt and the constitutional rights of the offender, make sure that those are reviewed quickly and not take years and years. That does not promote any form of justice either for the offender or for the victim in the case.

The State of Texas, as many know, has executed more folks than any other State. Let me just mention a little history here. Before it was even a part of the United States and before it was even a country, Texas was a country for 9 years from 1836 to 1845. But even before that time, Texas assessed the death penalty and death penalty cases were assessed by hanging. That was done until 1923, and then the State of Texas moved to the electric chair until the Supreme Court stayed all executions. And then lethal injection has been used ever since 1976. Texas was the first State to use lethal injection in 1982 as the means of punishing a person who received the death penalty.

There are 38 States now that assess the death penalty or have death penalty statutes on their books; 37 of those use lethal injection. Nebraska still uses electrocution. So 38 States, most of the States make that decision that some cases are so bad that the death penalty should be a form of punishment in those cases.

Now, I say all of that to address just one case. There are many cases that I could mention here. It would fill more than my allotted 60 minutes, but I want to talk of one case that occurred in my district back in Texas in Port Arthur. It involves a person by the name of Elroy Chester. He was born in Port Arthur in 1969. His criminal record begins in 1987 when he turned 18 years of age. I have before me here, Mr. Speaker, the 4-page resume of Elroy Chester. I don't have time to read all of the life and times of Elroy Chester, but I would like to put his rap sheet, as we call it in the vernacular, into the Record.

6/14/69--Elroy Chester born in Port Arthur, TX. 2/20/87--Burglary of a habitation, docket #48529. 2/25/87--Chester arrested for above burglary. 4/08/87--Chester released from jail via pretrial bond. 5/87--Chester graduated from Abraham Lincoln H.S. in Port Arthur. 5/09/87--Burglary of a habitation, docket #48794. 5/17/87--Chester arrested for above burglary. 8/03/87--Chester convicted on both cases, 10 years probation on both #48529 & #48794. 8/07/87--Chester transferred to TDC (shock probation). 11/04/87--Chester returned to Jefferson County Jail from

Mr. Speaker, Chester's crime spree started when he was young with burglaries, and it ends up with capital murder in 2004. I want to tell you something about this case as to just tell you the type of people that live among the rest of us and what they do and how eventually they are caught.

In September of 1997, John Henry Sepeda, and the people I mention tonight are or were real people. He was an elderly man in southeast Texas and he was bedridden and he was shot to death in his home in his bed. Four local gang members were first arrested and later released. And Chester, when he was finally released, confessed to this murder.

Three months later in November of 1997, Etta Stallings, 86 years of age, was gunned down in her home where she happened to be caring for her invalid husband. A 22-caliber revolver was stolen from her home, and nearby during the same evening, two women were shot with a 22-caliber handgun as they lay in their bed. Shots came through an open window. Both women suffered multiple gunshot wounds, but miraculously they lived. The dog that was shot did not live.

Chester later when he was arrested confessed to all of these crimes.

Five days later Cheryl Deleon, an employee at a cafeteria in Port Arthur, Texas, was found shot to death outside her front door. Robbery was the apparent motive, and there weren't any witnesses.

The next month, in December 1997, Lorenzo Coronado was shot in the head as he lay in his bed after someone broke in. He miraculously also survived even though he was shot in the head.

Two weeks later, Albert Bolden, another real person, was found dead in his residence in Port Arthur. He had been shot in the head, but he had been dead for some time before his body was found.

Then finally, just a few months later in February of 1998, Port Arthur's reign of terror ended with the murder of Willie Ryman, III.

Mr. Speaker, Willie Ryman was a firefighter at Port Arthur Fire Department. He was twice named Firefighter of the Year, and in February of 1998 he decided he would stop by his sister's home to check on his two teenage nieces who were there alone. His sister was also a firefighter, and he wanted to make sure that they were okay because his sister was working as well.

Ryman was concerned about the nieces' welfare. It's interesting he was very concerned because he had heard of this crime spree that was going on in Port Arthur. Unbeknownst to him, it was all Chester's doing, this crime spree.

Be that as it may, he comes into the house, and he found that it was dark. He turned on the light, and he confronted a masked intruder who pointed a .380 revolver pistol at him and shot him in the chest. He fell right there in this room, and he died in his own blood.

Ryman never knew that the intruder had already been in the house and sexually assaulted both of the teenage girls. Not only had they been sexually assaulted, they'd been tied up and duct-taped, as well as one of their friends.

Chester left the house and saw Ryman's fiancee in his truck parked in the driveway. In other words, the fiancee had come to the house looking for Ryman, wanting to know why he hadn't returned. Chester tried to gain entry into this truck, but she locked the doors. Chester fired several shots into the vehicle but missed Ryman's fiancee, and then he takes off in the darkness of the night running.

He was later arrested for a minor city ordinance violation in Port Arthur, and while he was in custody, he was charged with several offenses, including burglary of the home where Ryman was killed.

The next day, Chester agreed to speak with the investigators, and they obtained a search warrant ordering a sample of Chester's blood and hair to be taken for comparison with evidence from the sexual assault victims.

He was taken to the district attorney's office to execute the warrant and obtain the samples, but before the blood samples could be taken and the hair samples could be taken, he blurted out that he killed ``the fireman.''

During the course of the search, the police found the jewelry that belonged to Kim DeLeon, that was Willie Ryman's sister and mother of the two girls that Chester sexually assaulted. This was the same property that had been taken at the time of the murder and the sexual assault.

Chester was in recent, unexplained possession of stolen property, which had been missing for only 30 hours. Police informed Chester that they'd found and recovered the stolen jewelry, found the masks that were used in the rapes in his residence, and so Chester volunteered to show the police where his gun was.

He had hidden the pistol over at his father's house, and here's what happened when they go to Chester's father's house. As Elroy Chester informed the police where he hid the gun, he also tried to reach for a gun he had hidden in that residence and pull it on the police, but the police forcefully and adequately and successfully took that gun away from him as well.

He later confessed to stealing Etta Stallings' jewelry. That's the 88-year-old woman that I mentioned some minutes ago that took care of her invalid husband and murdering her. He confessed to killing her. He confessed to killing John Sepeda, and he later confessed to the murders of DeLeon and Albert Bolden. Then he also confessed to other attempted capital murders of three other victims.

Now, his case has already worked its way to the Supreme Court once on a different issue, but yet, as he was tried in 1998, he has still not received his appropriate sentence.

And what was his sentence from the jury in 1998 after they heard about the death, murder, and pillaging that he committed in Port Arthur, the five murders, the numerous burglaries, the numerous sexual assaults, the attempted murders? The jury, Mr. Speaker, in 12 minutes, 12 minutes, assessed the death penalty for Elroy Chester.

Now, as I mentioned, both as a prosecutor and as a judge, I have heard several, many death penalty cases, but I've never heard a case where a jury only took 12 minutes to all agree on what should happen to this person who did these dastardly acts against other people in his community. It's a remarkable time frame. DWI cases take longer than 12 minutes for a jury normally to reach a verdict. That's how overwhelming his guilt was in this case, Mr. Speaker. So guilt is not an issue in this case. The 12-minute verdict is certainly remarkable, but guilt is not an issue.

But he also faces execution by lethal injection. So one issue is now before the Supreme Court, throughout the fruited plain in all States, whether or not lethal injection violates the eighth amendment prohibition against cruel and unusual punishment. That is one of the issues in his case, and he is avoiding his day with his Maker because of this issue.

But I think it goes further than that, Mr. Speaker. I don't think it's just an issue that the Supreme Court is going to decide whether or not lethal injection violates the eighth amendment provision, but whether the death penalty itself is a violation of the eighth amendment prohibition against cruel and unusual punishment.

Based upon prior rulings of the Supreme Court, it seems to me that there are at least three members of the Supreme Court that are always opposed to the death penalty as a form of punishment. Sometimes there's a fourth member opposed to the death penalty, and they find ways to prevent the death penalty. No matter what the circumstances are, even though State law, written by State legislators and the will of the people and the will of a jury of the community says otherwise, some of those members of the Supreme Court continue to look for ways to avoid assessing or allowing the death penalty, even though we had in this country the death penalty that goes all the way back to colonial days.

Going to the first issue, whether or not lethal injection is a violation of the eighth amendment, cruel and unusual punishment provision, my question is, if we don't use lethal injection, what do we use? All of these other forms of execution are basically no longer used, whether it's hanging, the firing squad, the gas chamber. So I ask the question, what would those who oppose lethal injection have the system, society, justice, the juries, the courts use as an alternative to lethal injection? I don't know the answer to that question.

Is the Supreme Court going to rule that the pain inflicted by the administration of lethal injection in itself is cruel or unusual? It will be interesting to see if they draw that fine line to say that since it is painful or could be painful, that violates the prohibition.

The real issue, though, is whether or not the death penalty will remain on the statutes of 38 States. Most countries don't have the death penalty. Our European friends don't use the death penalty. They criticize us a lot for the death penalty. Even Third World countries like Mexico, where crime is rampant, don't use the death penalty, and they do everything they can to prevent execution in this country of their nationals.

Some say that the death penalty is immoral, but let me ask you, what is moral about taking people like Elroy Chester and taking care of them for the rest of their natural life? What is moral about that? I don't think that that is very moral. Incarcerating a person for the rest of their lives where they have no responsibility, that the society takes care of them for the rest of their life and gives them, really, a place to live out forever, I do not think that that is a moral thing, in my opinion.

But be that as it may, we use the term ``justice'' quite frequently in courts of law. We use it in this Chamber, ``justice.'' What is justice? Well, justice to me seems to be the right decision for the right reason, but sometimes we compare justice to the scales of justice, where Lady Justice is holding the scales, and justice occurs when the scales are balanced, that they are not overweighted for one side or the other.

And what do we put on those scales? Well, maybe we put the concerns and the rights of the offender. But also, on the other side, what do we put? Maybe the rights of the community, of the public and of victims.

But be that as it may, justice only occurs when the scales of justice are balanced, and when either side is out of sync, we have injustice in our courts of law.

The defendants that are on death row, who hope that the death penalty may be thrown out, hope that the lethal injection system is thrown out have their concerns, but those people who have been murdered also have their day and rights in court.

You know, Mr. Speaker, the silent graves of the murdered cry out for justice in these types of cases for several reasons; not just the fact that the delays and the delays for execution of these sentences take so long, but by the method or, rather, by the total result of whether or not a person should receive the death penalty or not. If justice is delayed, it's denied.

So I would hope that the Supreme Court would review this law based upon American law, and I say that because our Supreme Court, Mr. Speaker, from time to time goes and uses international law and international court decisions to make determinations and interpret our United States Constitution. They've done that in the phrase ``cruel and unusual punishment'' in the past. They did that when they have said that 17-year-olds can't be executed. They made that decision even though it was the State law in several States, including the State of Texas. So my question is, why do we go to Europe to make our decisions about our Constitution? After all, didn't we leave Europe and England because we didn't like the way they were doing things?

Some say that the death penalty doesn't deter, and we've heard all those arguments. Of course, it does deter one person from ever committing those crimes again. But my own concern is that justice demands that in some cases, like Elroy Chester, that the ultimate price for the crimes that they have committed should be given, and that is a person's forfeiture of their right to live.

Some people actually earn the death penalty on their own by their conduct, and I am one of those that believes that that is just in appropriate cases. An injustice would occur if he were allowed to have some other sentence other than what the jury verdict so imposed in his particular case.

So, Mr. Speaker, this whole issue of cruel and unusual punishment, the eighth amendment, the history of the eighth amendment, what the Supreme Court now interprets that to mean, the method of execution, execution in any form, all of those issues now once again will be before the nine black-robed Justices down the street, and it would seem to me that they should follow the Constitution to the letter, the historical content of the eighth amendment and where it came from and the history of it and uphold the right of States and, in some cases, appropriate cases, to let juries make a determination that a person should pay the ultimate price for the crimes they have committed against society.

They should make it very clear what method should be used in all cases for the execution of those like Elroy Chester who have earned the right to be executed for the crimes that they have committed, because you see, Mr. Speaker, justice is the one thing that we should always find in every case. Although the death penalty is a very serious punishment for crime, in cases of overwhelming guilt and overwhelming evidence and overwhelming cruelty and criminal conduct and a slew of murders, a person has earned the punishment that juries impose.

And that's just the way it is.