Debt’s Dominion: A History of Bankruptcy Law in America, an excerpt from a new book by Prof. David A. Skeel, Jr.

Institute for Law & Economics

“Administering Capital Punishment: Is Texas Different?”
Hon. Patrick E. Higginbotham Delivers Distinguished Jurist Lecture

“The debate over capital punishment has recently suggested that Texas is different from other states in matters of capital punishment, different in meaningful ways from the 37 other states that now have the death penalty. States with capital punishment have a wide choice among procedures, choices that can be made fairly free of constitutional restraint. Today I want to talk about these perceived differences and why they should be studied.”

Thus began the Distinguished Jurist Lecture delivered by the Honorable Patrick E. Higginbotham on March 6, 2001 at the Law School. Presented to an audience that included faculty from the Law School and the University, students, and esteemed jurists, Judge Higginbotham shaped his talk with two overarching questions.

The first, addressing the “shallow” observation of whether the difference between California and Texas is that California wants to keep the death penalty but lacks the political will to execute a prisoner, or whether, in fact, “the political will is not so conveniently dichotomized but is rather being frustrated by procedures and structures that hamstring the system.” Second, Judge Higginbotham questioned whether there is common ground between forces opposing and the forces supporting the death penalty. He stated that “on that common ground we must locate the procedures and practices that offer greater fairness in the system without frustrating it.” Citing statistics in California, Virginia and Pennsylvania, Judge Higginbotham spoke of how Texas compared and what the government and courts of the state have undertaken to improve the delivery of legal services to those charged with capital crimes.

Judge Higginbotham was appointed to the United States District Court, Northern District of Texas, in 1975 and in 1982 to the United States Court of Appeals, Fifth Circuit. He serves as a faculty member of the Federal Judicial Center and is Adjunct Professor of Constitutional Law at SMU Law School where he teaches courses in constitutional law and federal courts.