It tolls for thee.

Last week an ordinary circuit court judge in Texas heard the bell toll and did something simple and good for us all. He refused to permit a prosecutor to try a defendant for capital murder. He said the obvious: Capital punishment denies a defendant the right of due process under the law.

Houston Judge Kevin Fine accepted a pro-forma pretrial defense motion in a murder case, which argued that the death penalty violated the Constitution. Texas Governor Rick Perry claimed Judge Fine was simply legislating from the bench, and now everyone is saying the judge’s ruling will be overturned on appeal.

In my opinion, and I am not a lawyer—just a mere citizen of the U. S.—it was neither legislation from the bench nor is it a slam-dunk to be overturned.

The Constitution makes the judiciary independent of both the executive and the legislative branches of government, in the states as well as the federal government. If a judge finds that any legislation violates fundamental principles of state or federal constitutions, then he is required to throw it out.

Judges constantly find fault with laws and make law through their decisions. Politicians seem to think they alone are entitled to make law; they never want anyone—including the people—to make law (witness the way Illinois politicians blocked the constitutionally mandated opportunity for a constitutional convention in this state or the way they complain about California’s “initiatives”).

If the Texas appeals courts understand the wisdom of Judge Fine’s decision, they will uphold it. After all, last year in Texas an executed convict was exonerated for all intents and purposes. Why should the courts enable future wrongful executions like that? The citizens and taxpayers of Texas ought to be worried about how horribly this distorts their justice system (and, besides, it’s time they took a look at the exorbitant cost of trying capital cases).

Let This Be the Last Toll

Like most obvious truths, apparently no one saw it until one person had an insight. I certainly didn’t. I was fixated on the issue of “cruel and unusual punishment,” a concept I believe is misunderstood by speakers of Modern Standard American English.

Obviously, as Judge Fine said, an irreversible punishment denies an innocent defendant of due process under the law. And every defendant is presumed innocent until convicted. But even if the presumption of innocence ceases when a person is wrongfully convicted, due process rights are not discontinued. Every convict is entitled to appeal, to beg for mercy, to be pardoned, or to have his punishment commuted.

From a juror’s perspective, capital punishment is grotesque. No one should be asked to decide whether someone else—who has done nothing to her—should live or die.

Worse yet, the law in this country requires a jury to decide the sentence in a capital punishment case, and those juries must first be “death qualified.” In other words, before the trial even begins, the jury has to swear to support the idea of capital punishment, which is a sure and certain sign the jury is inclined to convict defendants charged with murder. This is also a violation of a defendant’s right to due process. At most, there should be two separate trials—one for guilt and one for the sentence—with two different juries.

I pray that this decision will be appealed to the U. S. Supreme Court on a fast track and that the Supremes will acknowledge the wisdom of declaring capital punishment unconstitutional under the Fifth Amendment right to due process.

The justice system will be infinitely more just without capital punishment. While innocent people may still be convicted and sentenced severely, though wrongfully, at least they will have the opportunity to continue to pursue the due processes of the law from behind bars.