Wardlow should not be put to death
Mitigating factors mean sentence ought to be reduced to life
Texas is known for its heavy use of the death penalty, but even in the Lone Star State not every convicted murderer is sentenced to die. In some cases, juries choose not to impose the ultimate punishment. In many others, prosecutors decline to make their cases a capital one in the first place. In still others, it’s the law itself that prevents a death sentence.
Under Texas law, anytime there’s enough mitigating evidence to warrant a life sentence without parole, that’s the sentence imposed.
Next spring, the state is scheduled to execute one killer whose chance to show he met the standard for a life sentence — that is, his chance to win mercy — was cut short by false testimony, mistaken assumptions and a kind of miscarriage of justice that happens far too often and gets too little attention.
A Texas jury convicted Billy Joe Wardlow in 1995 of killing a man while stealing his pick-up truck. When the jury had to decide whether to sentence Wardlow to death, the first factor to weigh was whether, if allowed to live, he “would constitute a continuing threat to society.” Royce Smithey was an investigator for a group that prosecutes crimes in Texas prisons. He testified that, if Wardlow was not sentenced to death and “severely restricted” until executed, he would present a serious risk of danger in prison — to guards and other prisoners.
That testimony helped convince the jury to sentence Wardlow to death. Texas is scheduled to execute him in April 2020. But what if that testimony was misleading or just plain false? Should Texas still execute Wardlow?
Frank G. Aubuchon, a former administrator with the Texas corrections department flatly contradicted Smithey’s testimony in an affidavit filed recently with the Texas Court of Criminal Appeals. “Mr. Smithey’s multiple falsehoods served to mislead the jury into believing that TDCJ would be completely unprepared to imprison Mr. Wardlow in a secure environment unless he received a death sentence,” Mr. Aubuchon said in the affidavit. “Based on my decades of experience as a TDCJ corrections officer, administrator, and prison classifications expert, I can say that this is categorically false.”
Wardlow should not have been sentenced to death. He claimed at trial that he never meant to shoot the man he did, that he had only meant to scare him. More importantly, there was a mountain of evidence Wardlow had been abused as a child, suffered from a mental illness, lacked any prior conviction and had shown deep remorse — all evidence that should have added up under Texas law to be “enough mitigating evidence to warrant a life sentence without parole.” But the jury never heard this evidence because Wardlow’s then-lawyers conducted no meaningful investigation of mitigation.
He was 18 years old when he committed the crime — just over the age that the U.S. Supreme Court has
said is the limit for imposing a death sentence because someone that young “cannot with reliability be classified among the worst offenders.” Many have argued, as professor John Blume of Cornell Law School and colleagues did in an article written this year for the Texas Law Review, that the ban on sentencing anyone to death for crimes committed before they were 18 should be extended to anyone who was under 21.
In October, his lawyer, Richard Burr, told the Texas Court of Criminal Appeals that “the prediction of future dangerousness called for by the Texas capital sentencing statute cannot reliably be made for a capital defendant under 21 years old.” That’s especially so when Smithey’s testimony, the most powerful evidence the jury relied on in making that prediction, was “categorically false.”
Wardlow has been on death row for almost 25 years. He apologized from there to the son of his victim, expressing his “deepest condolences for being responsible for the death.” He has basically rehabilitated himself. At 45, he is a trusted, peacemaking and exemplary inmate — generous to others on death row, attentive to fellow prisoners and to others he exchanges letters with, unusually polite to guards, and as engaged in the world as an inmate can be who has spent most of his time in solitary confinement.
Tony Egbuna Ford, another death-row inmate, wrote me, “Billy IS one of the good guys. Billy DOES NOT belong here. And it is my deepest hope and prayer, that he is able to live his life, and not be another statistic for the Texas death penalty.”
In a state other than Texas, a different state where the governor more regularly uses use his clemency power to commute unjust sentences, Wardlow would be an outstanding candidate for having his death sentence reduced to life in prison. Since 1982, however, when Texas resumed executions after the Supreme Court reinstated capital punishment, the state has shown mercy to only three death-row inmates by commuting their sentences, while executing 568.
The Texas Court of Criminal Appeals has the power to order a new sentencing hearing for Wardlow, to ask a jury to assess his future dangerousness — without Smithey’s false testimony and in light of almost 25 years of evidence that Wardlow is not (and never was) a continuing threat to society.
He should be sentenced to life in prison, not death. A fair hearing would lead to that just result. The Texas court should call for that hearing.
Lincoln Caplan is a senior research scholar at Yale Law School. He is a former staff writer of the New Yorker and a former member of the editorial board of the New York Times. He wrote “This Man Should Not Be Executed,” the cover story in the winter 2020 issue of the American Scholar, from which this piece is adapted.