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ANALYSIS

Rodney Reed wants the governor to prevent his execution, but it's happened just three times in Texas

Supporters of Texas Death Row inmate Rodney Reed rally at the U.S. Supreme Court on Friday, Nov. 15, 2019. Reed is scheduled to be executed Nov. 20, barring a clemency decision by Gov. Greg Abbott.

JOE GROMELSKI/STARS AND STRIPES

By BRITTANY SHAMMAS | The Washington Post | Published: November 15, 2019

Thomas "Bart" Whitaker was down to minutes.

It was Feb. 22, 2018, the day Texas planned to execute the 39-year-old man for orchestrating the murders of his family more than a dozen years earlier. Whitaker had already eaten his last meal, already said goodbye to the father who had long ago managed to forgive him. Now the convicted killer sat in a holding cell behind the red-brick walls of the prison where Texas had already put more than 500 people to death. Soon he'd be strapped to a gurney.

The warden arrived at the holding cell shortly before 6 p.m. - execution hour. Only he wasn't there to escort the condemned man to the death chamber. He was there to announce a last-minute reprieve. Moved by Whitaker's father's plea for his son's life to be spared, Gov. Greg Abbott, R, had decided to commute the death sentence. Whitaker would never leave prison, but he would live.

"He had gotten to the same place where we had gotten, which was that the life was over," Kent Whitaker recalled of his son. "And now he realizes that it is not."

With just days remaining until the execution date of Rodney Reed, whose plea for clemency has found support from figures as wide-ranging as reality TV star Kim Kardashian-West and Republican Sen. Ted Cruz, attention has turned to the governor once again. Reed's backers are begging Abbott to intervene before Nov. 20, when Reed is set to die by lethal injection for the 1996 murder of Stacy Stites. He has long claimed to be innocent.

But commutations are extraordinarily rare in the Lone Star State, America's execution capital. Since Texas reinstated the death penalty in 1982, governors have issued discretionary commutations just three times, according to an American Bar Association report. Five hundred sixty-six people have been put to death in Texas in that time. Among them are several whose guilt is in question, including Cameron Todd Willingham, who was convicted of killing his daughters based on an arson investigation a state commission later called "flawed science."

"I have been persecuted for 12 years for something I did not do," he said before a lethal mix of drugs was pumped into his body Feb. 17, 2004. "From God's dust I came and to dust I will return - so the earth shall become my throne."

The state's governors have in some cases declined to commute a death sentence even when the Board of Pardons and Parole - whose members the governor appoints - recommended doing so. Typically, commutations are granted in Texas only when a death sentence has been retroactively ruled unconstitutional or reversed by a court.

David Dow, a professor at the University of Houston Law Center who has represented more than 100 death row inmates, said the state's leaders tend to share a "cartoon view of Old Testament justice."

"I think that that is the common thread for people who run for governor or who have been elected governor in Texas, whether Democrat or Republican," he said. "And they adhere to a view that people who kill people should be killed."

The three inmates spared each had cases Dow called "quite unusual." The first was Henry Lee Lucas, a one-eyed drifter who famously confessed to more than 600 killings and then recanted. He was sent to death row for the murder of a woman identified only as "Orange Socks." With days to go, then-Gov. George W. Bush commuted the sentence June 26, 1998, after a state attorney general report concluded that Lee was not the killer.

Another commutation would not come for nine years. On Aug. 30, 2007, then-Gov. Rick Perry stopped the execution of Kenneth Foster hours before it was set to be carried out. The case had drawn international interest because Foster was not the gunman in the murder for which he was scheduled to die: he was the getaway driver, convicted under a law that holds co-conspirators responsible in some homicide cases.

Whitaker was the third. His case was unique in that there was no dispute over whether he committed the crime - a widely publicized ambush of his family inside their home in a middle-class, Houston-area community. It was a made-for-the tabloids tale: to lure his father, mother and 19-year-old brother away, Whitaker told them he had finished his finals and would soon graduate from college. The family of four went to dinner to celebrate, presenting a Rolex as a graduation gift and posing for photos. In one of the pictures, Whitaker holds out a dessert plate, the word "Congratulations" spelled out in chocolate syrup.

A man in a ski mask was inside their home when they returned. Chris Brashear, a friend of Whitaker's, shot and killed Tricia and Kevin Whitaker. Kent Whitaker was hit but survived. When he eventually learned that his son had been behind the killings, Kent Whitaker did something remarkable: He forgave him. Then he became the fiercest advocate for his life to be saved.

"I feel the whole decision to pursue the death penalty was an overstep," he told The Washington Post in 2018. "This isn't just a case of a dad who is ignoring the truth about his son. Believe me, I'm aware of what his choices have cost me."

In an impassioned plea for clemency, attorneys for Thomas Whitaker argued that he was a changed man who had become a model prisoner on death row. He earned a college degree and, with the help outside volunteers, started a blog called Minutes to Six - a reference to the time execution begins in Texas. It features submissions from inmates across the country.

The lawyers also invoked the harm his execution would inflict upon his father, writing, "Is killing Thomas Whitaker more important than sparing Kent Whitaker? At the end of the day, these are the profound questions of conscience you will live with for the rest of your life."

In a highly unusual decision, the Board of Pardons and Parole unanimously recommended clemency. Board members are "usually unanimous against commutation," Dow said. But even after their decision was announced, the governor's office was silent for days. The Whitakers gave up hope. On Feb. 22, 2018, father and son said a final goodbye through a glass pane inside the Texas State Penitentiary at Huntsville.

"All of our visits have been through glass, and so they're all painful," Kent Whitaker said. "The difference was that it was the last time we were going to do it."

In the prison room where families of the condemned wait for the execution to begin, the remaining minutes ticked away on a large clock. Kent Whitaker had decided that day not to watch the killing, giving in after months of his second wife and his friends telling him it should not be his last image of his son. His wife and a pastor went instead.

He was praying when word came from an attorney that Thomas Whitaker would not be put to death.

"We all started cheering and jumping up and down, and we were crying," Kent Whitaker said. "We couldn't believe it."

In a statement about his decision, the governor noted that he had allowed 30 executions "in just over three years as governor." Abbott, who has described the death penalty as "Texas justice," called Whitaker's crime "heinous" and deserving of "severe punishment." But the decision on whether he should face the ultimate punishment was complex, he said, because Whitaker did not pull the trigger - and because of his father's insistence that he would be victimized anew by the killing of the last remaining member of his immediate family.

Freed from death row, Thomas Whitaker has been transferred to another state prison. A prolific writer, he is now a PEN fellow and updates his blog frequently. Often he writes of his opposition to the death penalty and the survivor guilt he feels after escaping it.

In one, he noted that he had lived through 161 executions during his 10 years on the row.

"They all deserved the chance I've been given," he wrote, "as far as I'm concerned."
 

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