Tuesday, October 28, 2008
Eric Nenno and Texas Clemency
Even in Texas the death penalty is supposed to be reserved for the worst of the worst.
One of the unique aspects of Texas criminal law is a reliance on predictions of future behavior in determining whether or not a person is sentenced to death. In order for any person to receive a death sentence, all 12 jurors must agree that the individual will represent a continuing threat; a future danger. Some have likened it to a ticking time bomb, bound to explode.
That charge to the jury, “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” is written into the Texas Criminal Code.
Keep in mind that means being a continuing threat in a prison setting, one of the most secure, locked down environments on the planet. It means being a danger to cause harm not to the general public, but to other inmates, prison employees and guards.
Eric Nenno assaulted and killed a child in 1995. When he was convicted in Harris County in 1996, all 12 jurors voted that he would be a future danger, and Nenno was sentenced to death. He faces a scheduled execution tonight in Huntsville.
But what if that prediction was wrong?
During his pre-trial incarceration in the Harris County jail, Nenno was not deemed to be a danger, and was assigned to tasks assisting guards and others.
In the 160 months that Eric Nenno has been on Texas death row he has not received a single disciplinary infraction. He has not been a continuing threat to other inmates or guards. He has expressed deep remorse for the crime he committed and the void that it has left in the family of his victim. On death row, Eric Nenno has worked to help others and to resolve conflicts. He has been respectful to other inmates and his guards.
Eric Nenno has shown by his actions over the past 12 years that he has not been a continuing threat to those around him. How does our state’s criminal justice system take that fact into account?
The courts have no judicial remedy for a prediction that turned out to be wrong. Nor does the Texas Department of Criminal Justice have an administrative process to remove an inmate from death row by virtue of his conduct. Eric Nenno’s only option was executive clemency.
The Texas Board of Pardons and Paroles is the one body with the authority to recommend a commutation of a death sentence to life in prison. Governor Rick Perry must then approve such a recommendation.
Executive clemency in Texas has been criticized by many criminal justice watchers as failing to live up to its historic responsibility as a failsafe. The facts of Eric Nenno’s case called out for serious review by the Board. He has proven on a daily basis over the past 160 months that he has not been a continuing threat. He has demonstrated that he is not the worst of the worst. But the Board of Pardons and Paroles rejected Nenno's clemency petition, as noted in this earlier post.
The prediction answered in 1996 got it wrong. It seems that the Texas Board of Pardons and Paroles was not interested in revisiting the question or how to set it right.
This reliance on predictions of future behavior was the subject of Texas Defender Service's, "Deadly Speculation: Misleading Texas Capital Juries with False Predictions of Future Dangerousness." It was published in 2004.
In 2005, Texas Appleseed and the Texas Innocence Network published, "The Role of Mercy: Safegaurding Texas Justice Through Clemency Reform," which examined best practices in executive clemency.
Comments