Eight years on Texas' highest criminal court turned Elsa Alcala into a death penalty skeptic. How will the court change without her?" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Three weeks before Julius Murphy was set to die in 2015, the nine Republican judges of the Texas Court of Criminal Appeals stepped in.
The court stopped Murphy's execution and later ordered a lower court to take another look at his case, pointing to allegations of prosecutorial misconduct. But one judge went even further. In a long separate written opinion, she urged her colleagues to look beyond the specifics of Murphy's case, and to evaluate something broader: She pointed to the arguments of a national decline in the punishment, racial disparities on death row and inmates' lengthy stays in solitary confinement.
In short, Judge Elsa Alcala wanted Texas' highest criminal court to consider whether the Texas death penalty was even constitutional.
“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,” she wrote.
It was a stark split from her court, which handles all Texas death penalty cases and whose members regularly make life-or-death decisions, sometimes hours or minutes before a scheduled execution. The opinion, which drew the attention of the media and reform advocates, wasn't an isolated case of Alcala straying from her colleagues. In the last few years, she became known for writing the most opinions of any judge on the court. And her writings often slammed a system she came to see as deeply flawed.
At the end of 2018, Alcala left her seat on the court, opting not to run for reelection. Her departure leaves the court without its most outspoken judge and biggest critic of the current criminal justice system. Advocates wonder whether the court will now be without a voice pushing for change. But Alcala said she's not so sure her exit will leave a lasting void. With a relatively young court (six of the nine members have been there less than five years), she said it’s too early to tell if someone will follow in her footsteps.
“The ones that have come in, it’s unpredictable what they’re going to do, and that’s a fair thing to say because they’ve never seen this before,” she said in an interview with The Texas Tribune last week. “It took seeing the same kind of things several times before I finally had done enough of the research and enough of the background to realize I wanted to step out and actually say something.”
Former Judge Elsa Alcala
Miguel Gutierrez Jr./The Texas Tribune
When Alcala first got to the court in 2011, she was an unknown. The first new judge on the bench in a decade, she was appointed by then-Gov. Rick Perry to fill an empty seat. She had previously served as an appellate judge, a district judge and a Harris County prosecutor who had tried death penalty cases, but when she got to what has been called the busiest court in the country, she said it took her at least a year to fully understand the complexities of the caseload in front of her.
The court rules in thousands of cases a year, and Alcala said on a given week there could be a hundred cases that needed decisions. In the state with the busiest execution chamber in the country, those decisions regularly involve deciding whether
a person will live or die.
After a year or two, Alcala said she began noticing what she believed were flaws in the system, and gaining the confidence to speak out about them, like how appointed attorneys aren't required late in an appellate process, which she felt enabled more bad lawyers at the trial level. She wrote more over time — with her dissents sometimes reaching around 100 pages — and she believed it led to her colleagues writing more as well, making the court more transparent.
“When I got there, all of a sudden you started seeing all these opinions coming out, and I thought, ‘Well, they’re coming out because I wrote on it, and at least the other side is coming out,’” she laughed, adding that she was happy to have the debate. “I liked the good fights.”
Her fights were applauded by criminal justice reform advocates who rallied behind her opinions. Aside from her 2016 ruling casting doubt on the death penalty, she has also publicly opposed the court’s decisions on issues like how the courts should decide whether a death row inmate is intellectually disabled.
“Judge Alcala’s judicial career was one of thoughtfulness and courage,” said state Rep. Joe Moody, an El Paso Democrat who has sought reforms to capital punishment. “On death penalty issues in particular, she let ethics and science guide her jurisprudence on a topic few understand and fewer still are willing to take a stand on when it isn’t politically expedient."
Alcala’s evolution on the death penalty wasn’t necessarily unique to the court. In recent years, two other former judges denounced the punishment at the end of their decades on the court: Republican Tom Price
said in 2014 that the punishment should be abolished, and Larry Meyers, a Republican turned Democrat, said two years later that a life sentence without parole should be the state’s harshest punishment.
Meyers' lost his seat in 2016. His challenger, Judge Mary Lou Keel, criticized him for advocating for policy changes from the bench. Alcala, who also did not shy away from that, often pleaded with the Legislature in her filings to take action on things she said the court couldn’t or wouldn’t take up.
In the case of Bobby Moore, where the U.S. Supreme Court has already knocked down the Court of Criminal Appeals’ old method of determining if an inmate is intellectually disabled and therefore ineligible for execution, she has repeatedly asked state lawmakers to set the method of determination and take it out of the courts’ hands.
And Murphy, the man
whose case prompted Alcala's attention-grabbing opinion questioning the death penalty, recently had his case come back to the Court of Criminal Appeals. Despite his local prosecutor agreeing to change his sentence to life in prison, the court still ruled against him, reinstating his death sentence in November. Alcala addressed state lawmakers directly in her dissenting opinion, saying they could consider passing a law that would allow prosecutors and inmates to lower an inmate's sentence if the victim's family agreed.
Now a former judge, Alcala has officially moved to advocacy, working this legislative session as a policy director for the Texas Defender Service, a nonprofit that represents capital defendants and seeks death penalty reforms. She laughed when explaining her switch to a lobbying position, saying she wasn’t persuading her colleagues on the court.
“Maybe I can have more success at the legislative level to get somebody to understand that there are some real true problems,” she said.
As for what will happen to the court, Alcala noted that she has seen Keel and Judge Scott Walker, both elected in 2016, begin to "step out" away from the court majority more often. Does that mean someone else will take over as a voice for reform? She said it's too soon to tell.
“If you ask me what’s going to happen to the court in the future, I don’t know,” she shrugged. “Maybe someone else is going through that same kind of evolution, and one day will look in the mirror and he or she will say, ‘I’m not doing it anymore.’”
Judge Michelle Slaughter at her swearing-in ceremony at the state Capitol on Jan. 11, 2019.
Miguel Gutierrez Jr./The Texas Tribune
On Friday, Alcala sat near the front of the Texas House of Representatives and watched intently as her replacement, Judge Michelle Slaughter, took the oath of office. In her remarks, Alcala assured Slaughter she was 100 percent behind her and was excited to see where the court would head.
So far, Slaughter has identified herself as a constitutional conservative who won’t legislate from the bench. She had a big conservative backing during her campaign last year, gaining endorsements from Tea Party groups and lawmakers in the House Freedom Caucus.
“I cannot promise that I will always be right or that you will always like my decisions, but what I can promise you is that I will work hard,” she said from the podium in the House chamber. “I will do my absolute best to strictly interpret and apply United States and Texas Constitution and our Texas laws the way our founders and legislators originally intended.”
On Monday, the court halted the first execution of the year — ordering
Blaine Milam’s case back to the trial court based on changes in science to determine bite marks and intellectual disability determinations after the Moore ruling.
Slaughter dissented from the order.