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We Don’t Know, Because There Was Never a Hearing

While the country watches Tennessee, Texas is preparing to execute Jamaal Howard on Wednesday, October 7, using pentobarbital, the same drug that failed to kill Christa Pike last week. Christa Pike’s survival has pulled nearly every camera and headline toward Tennessee. I understand why. But a man is two days from the gurney in Huntsville, and the most important question in his case has never been answered by any court.

The facts of the crime are not in dispute. In May 2000, Jamaal Howard, then 20 years old, robbed and killed Vickie Swartout, a store clerk in Silsbee, Texas. Her family has carried that loss for twenty-six years, and nothing written here diminishes it. The question is not whether a crime occurred. The question is whether the Constitution allows Texas to execute this particular man.

What the court knew from the beginning

Before trial, the court’s own appointed psychologist estimated Howard’s IQ between 65 and 70 and questioned whether he was competent to stand trial. That range places him at roughly the functioning of an 11 or 12 year old, and every number in it falls at or below the line Texas itself uses for significantly subaverage intellectual functioning. Howard had been shot in the head at 17, three years before the crime. A jury was seated to decide his competency to stand trial, and it could not reach a verdict. After trial, he cycled between death row and the prison psychiatric hospital, medicated with Haldol for diagnosed schizophrenia.

And yet, in twenty-six years, no court has ever held a hearing on whether Jamaal Howard is competent to be executed, meaning whether he understands what Texas intends to do to him and why. The Supreme Court has held that executing a person who lacks that understanding violates the Eighth Amendment. Texas has simply never looked.

Judged by a character from a novel

In 2002, Atkins v. Virginia barred the execution of people with intellectual disability. Texas responded in 2004 with Ex parte Briseno, a homemade test built on lay stereotypes rather than clinical science. The Texas Court of Criminal Appeals openly suggested that most Texans might agree Lennie, the fictional farmhand from John Steinbeck’s Of Mice and Men, should be spared, but not necessarily everyone with a low IQ score. Read that again. A character in a novel became the yardstick for which real human beings Texas could kill.

In 2017, the U.S. Supreme Court struck down the Briseno factors in Moore v. Texas, holding that states may not rely on superseded, non-clinical standards when a life is at stake. When the Texas court reached the same result on remand, the Supreme Court had to reverse Texas a second time in 2019. Jamaal Howard was tried a year before Atkins was decided. When his lawyers raised intellectual disability afterward, the Texas Court of Criminal Appeals rejected the claim under Briseno, the very standard later held unconstitutional. His intellectual disability has never been weighed under the clinical standard the Constitution actually requires.

The state will point to one number. Fifteen years after trial, during his federal appeals, an expert measured Howard’s full-scale IQ at 74, which is in the borderline range (TCADP). Here is why that number does not settle anything. Every IQ test carries a margin of error of roughly five points in either direction, so a 74 means a true score somewhere between about 69 and 79. In Hall v. Florida (2014), the Supreme Court struck down rigid IQ cutoffs and held that anyone scoring within that margin, roughly up to 75, must be allowed to present the rest of the evidence. Scores also tend to drift upward as test norms age and as a person is retested again and again, and Howard has been tested repeatedly for twenty-six years. Most important, intellectual disability is never diagnosed from a number alone. Clinicians also look at everyday adaptive functioning and at whether the deficits began in childhood. Howard’s record speaks to both: a doctor found he could not explain what a judge does, and his school performance collapsed after the second grade. A 74 does not close the question. It is exactly the kind of evidence that requires the full examination Texas has never given him.

Coloring books for a judge

Jamaal Howard loves coloring books. In September, in a campaign organized by his spiritual advisor, the Reverend Doctor Jeff Hood of the Execution Intervention Project, people across the country mailed coloring books and crayons to Judge Steven Thomas in Kountze, the judge positioned to order a competency hearing. I sent fifty of them myself, each with a box of crayons. We asked for nothing except that hearing. No brief ever filed made the point as plainly as a stack of coloring books on a judge’s desk.

A winning claim is no guarantee: the case of Edward Busby

If Howard’s lawyers prove intellectual disability, the Constitution says that should end it. Here is why no one should assume it will. On May 14, Texas executed Edward Busby, the 600th person it has put to death since 1982. Two experts evaluated him, one hired by his defense and one hired by the Tarrant County District Attorney’s Office, the very office trying to execute him. Both concluded he met the current clinical standard for intellectual disability. The trial judge disagreed anyway, substituting his own non-expert view, and upheld the death sentence in 2023.

It gets worse. On May 8, the Fifth Circuit stayed the execution because the U.S. Supreme Court had already heard arguments in an Alabama case about how courts should weigh multiple IQ scores, and the panel wanted to be certain the right constitutional rule was applied before a man died under it. Attorney General Ken Paxton asked the Supreme Court to lift the stay, arguing in part that the claim was time-barred. The Supreme Court agreed, and Busby was executed that night, before the Court had clarified the very rule at issue. A procedural deadline outweighed a constitutional prohibition.

Tell me where the logic is

I believe in following facts to their conclusion. So lay these facts side by side:

• The Constitution forbids executing people with intellectual disability. Texas executed a man whose intellectual disability was confirmed by the prosecution’s own expert.
• For thirteen years, Texas decided who was disabled enough to live by comparing real people to a character in a novel.
• Whether a defendant is competent is a clinical question, yet Texas handed it to twelve laypeople. They could not agree whether Jamaal Howard was competent, and he was tried anyway.
• The law forbids executing someone who cannot understand why he is being executed. Texas has never held a hearing to find out whether Howard does.
• Tennessee halted every execution after pentobarbital failed to kill Christa Pike. Texas plans to use the same drug on Howard in two days.
• The Supreme Court was preparing to clarify how intellectual disability must be measured, and allowed Busby to be executed before it did.

These are not isolated mistakes. Nationally, 25 of the 47 people executed in 2025, more than half, had evidence of intellectual disability, brain damage, or low IQ. In Texas, it was three of five. A system that claims to reserve death for the worst of the worst keeps selecting the people least able to understand it, defend against it, or explain themselves to a jury. That is not justice applied unevenly. That is the system working exactly as it was built.

Where things stand

On September 28, Howard’s attorneys, Don Bailey and Jeff Newberry, filed a new intellectual disability claim with the Texas Court of Criminal Appeals, asking it to halt the execution and send the case back to the trial court to reexamine the evidence. As of this writing, no ruling has been reported. Whatever that court decides is likely headed to the Fifth Circuit and then the U.S. Supreme Court. Gov. Greg Abbott holds the power to grant a one-time reprieve of up to 30 days and has given no indication he will use it.

I will tell you what this case is really about. Nobody can say with confidence that Jamaal Howard understands why he is about to die. We don’t know, because there has never been a hearing. A state that is certain enough to kill should at least be certain enough to ask.

Sources: Austin Chronicle, Houston Chronicle, Execution Intervention Project: The Mind of Jamaal Howard, Execution Intervention Project: jamaalhoward.org, Supporters launch campaign seeking competency hearing, Texas Dept. of Criminal Justice, Death Penalty Information Center: Busby, Austin Chronicle: Busby, CBS Texas: Busby

Also in the News: Tennessee’s Execution Failure

This case is already saturating national coverage, so we’re keeping it brief here. On September 30, Tennessee attempted to execute Christa Pike by lethal injection. It would have made her the first woman executed in the U.S. in over two centuries. This was not a “botched” procedure; it was a total failure. The execution team spent more than an hour searching for a usable vein, using at least seven needles in her left arm. Neither the primary nor backup dose of pentobarbital killed her; she remained conscious, spoke, and was heard snoring before her microphone was cut roughly 90 minutes in. She was taken to a hospital and remains, as of October 1, in critical condition receiving life-saving care; her attorneys say they don’t yet know her prognosis or whether she suffered brain damage from oxygen deprivation.

Republican Gov. Bill Lee called the events “deeply disturbing” and ordered an independent review of the state’s execution procedures. He indefinitely postponed Pike’s case and another execution scheduled later this year. All Tennessee executions are now halted through the end of 2026 pending that review. It’s the second failed execution attempt in Tennessee this year, intensifying scrutiny of the state’s single-drug pentobarbital protocol adopted in 2024.

Source: PBS NewsHour, Atlanta Journal-Constitution

Other Pending Executions

Florida: double execution set for October 13. Both James Robertson and William Thompson are scheduled to die October 13, Florida’s second double execution this year. Thompson’s case carries a serious competency question: his attorneys say he has severe dementia and is gravely ill, and more than 100 medical professionals have sent a letter opposing his execution on those grounds. A Governor’s Commission evaluated his competency on October 1, but as of the most recent reporting no stay has been granted and both executions remain on track. Source: Tampa Bay Times, Floridians for Alternatives to the Death Penalty

Alabama: Michael Taylor, November window. Gov. Kay Ivey has set a November execution window for Taylor, convicted in the 1991 murders of Ivan and Lucille Moore. Source: Alabama Reflector

Stays & Reprieves

Georgia: Stacey Humphreys update. No new movement since the September 16 stay. The Georgia Supreme Court has upheld the lower court’s stay, keeping Humphreys’ execution on hold while a Cobb County judge considers whether to hold a hearing under the new Survivor Justice Act, which would let him seek resentencing to 10 to 30 years if childhood abuse is found to have been a significant factor in his crime. The state attorney general’s office opposes extending the law to death row cases. No hearing date has been set yet. Source: Fox 5 Atlanta

Exonerations

No new capital exonerations reported in the last 24 to 48 hours.

Other Threads to Watch

Tiffany Moss (Georgia). No new developments reported since the last update; her retrial hearing remains set for November 15.

North Carolina moratorium. Still intact, with no execution since 2006 and 122 people on death row (120 men, 2 women). The de facto moratorium continues to rest on pending Racial Justice Act appeals. But the clock is running: Iryna’s Law, passed last year, requires death penalty appeals pending more than two years to be scheduled for hearing by December 2026, with hearings held by December 2027. Gov. Josh Stein has ruled out firing squads and the electric chair, but lethal injection remains on the table. No court ruling or protocol change has moved the state off pause in the last 24 to 48 hours.

Florida/Alabama pace. Florida remains the nation’s busiest death chamber in 2026 under Gov. DeSantis (18 death warrants signed this year as of early October); Alabama under Gov. Ivey continues scheduling executions into November, with both governors leaving office in January 2027. Texas, by contrast, has executed about five or six people a year lately, but remains far ahead in total, with 602 executions since 1976 to Florida’s 141.