Texas Assessment Team Releases Report on State’s Death Penalty System, Cites Urgent Need for Reform

The Texas Capital Punishment Assessment Team, organized by the American Bar Association (ABA), today issued a comprehensive report with recommendations to help ensure fairness and accuracy in the state’s death penalty system.

“Evaluating Fairness and Accuracy in State Death Penalty Systems: The Texas Capital Punishment Assessment Report” is the culmination of a two-year review of Texas capital punishment laws, procedures and practices by an assessment team of former judges, prosecutors, elected officials, practitioners and legal scholars.

“A just system of capital punishment in our legal system requires procedures that ensure that only those deserving of the ultimate punishment are sentenced to death, and that the public have confidence in the adequacy of the criminal justice system to that task,” said Jennifer Laurin, professor at The University of Texas School of Law, and chairwoman of the Assessment Team. “Texans cannot accept less than the strongest system of checks and balances to ensure that our capital punishment system is fair and minimizes the risk of wrongful convictions and unjust executions.”

Former Gov. Mark White, who oversaw 19 executions during his term, said, “I know that no decision is as weighty or significant as whether or not to allow an execution to go forward” and that he is “pleased that this report brings into clear focus the current state of the death penalty system in Texas and recommends prompt action to protect the innocent and provide a fair and accurate system for every person who is sentenced to death.”

Paul Coggins, former U.S. Attorney for the Northern District of Texas, noted that mistakes in the administration of the death penalty lead to serious public safety concerns with the innocent being convicted, possibly facing execution, while a guilty perpetrator remains free to commit additional crimes. Such a flawed process exacts an intangible toll on victims’ families.

“State and federal courts spend significant time and resources correcting errors in capital cases – errors that could have been prevented – to the detriment of the vast majority of Texans who rely on the justice system every day. We can do better,” Coggins said. Recent reforms like the Michael Morton Act, improved handling of eyewitness identifications, and creation of new institutions like the Criminal Justice Integrity Unit, the Regional Public Defender for Capital Cases and the Office of Capital Writs have all strengthened capital punishment procedures in Texas.

Despite recent progress, assessment team members have identified a number of areas in which the state’s death penalty system fall far short. Notably, the Lone Star State appears out of step with better practices implemented in other capital jurisdictions, failing to rely upon scientifically reliable evidence and processes in the administration of the death penalty, and providing the public with inadequate information to understand and evaluate capital punishment in the state.

The nearly 500 page report states that the system could be helped with a myriad of reforms to correct short-comings in death penalty administration, including defense services, procedural restrictions and limitations on state post-conviction and federal habeas corpus proceedings, jury instructions, an independent judiciary, racial and ethnic minority representation, and mental retardation and mental illness.

Of the 500-page Report, team member and former Chairman of the Texas Department of Criminal Justice Charlie Terrell noted, “This document catalogues numerous reasons why I asked to have my name taken off the death row unit in Huntsville.”

Potential changes recommended in the report to help make the administration of capital punishment in Texas more fair and accurate include:

  • Spend scarce state funds on bringing perpetrators to justice, not convicting the innocent. An error-prone capital punishment system is expensive. Since 1992, Texas had paid over $60 million to people who were wrongly convicted and imprisoned. This money would have been better spent bringing actual perpetrators to justice, including by adequately funding forensic science and the provision of defense services.
  • Ensure Texas’ procedures are science-based. In too many areas – from expert evidence to determining a defendant’s eligibility for the death penalty – Texas’s procedures are out of line with the best known scientific methods and procedures. This must be fixed in order to ensure the very credibility of our system.
  • Empower juries in capital cases. Jurors deserve full and accurate information about their responsibilities and about their sentencing options in capital cases. A number of improvements and clarifications of the instructions given to jurors would both improve the accuracy of their decision-making and better inform them of their roles and responsibilities in deciding whether to sentence a defendant to death. A jury should never sentence someone to death because they are confused about the law in the case.
  • Provide fair deadlines and procedures for death row inmates with serious appellate or constitutional issues. The people already on Texas’s death row have not received the benefits of recent reforms to the Texas capital punishment system. This uneven treatment is not tolerable in our system of justice. Because of deadlines and other hurdles that are out of step with procedure in other capital punishment states, current death row inmates may be executed without a court ever reviewing cases with serious procedural and constitutional problems. The post-conviction process in Texas needs to be brought into line with other capital punishment states by making filing deadlines more consistent, making the process more thorough and transparent with in-person review hearings and published opinions upholding or overturning convictions, and a proportionality review to ensure that the death penalty is being applied consistently across Texas.
  • Make clemency a meaningful process. Texas should have confidence that the final safeguard to prevent wrongful execution is a meaningful one. Its current clemency process does not serve this function. Texas’s clemency process may not only result in minimal review, but it also may contribute to the extraordinarily high denial rate of clemency petitions in Texas: Texas has executed 503 inmates in the modern death penalty era and has commuted the sentence of only two inmates facing imminent execution. By comparison, the state with the second highest number of executions after Texas – Virginia – has executed 110 inmates while commuting the sentence of eight inmates.

The report is part of a six-year effort by the ABA to examine the extent to which death penalty states ensure fairness and minimize the risk of executing the innocent. The report takes no position on the death penalty per se, the Texas assessment team focused exclusively on reviewing current laws and practices in the state’s death penalty system.

To date, the ABA has conducted assessments of the death penalty systems in Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Tennessee and Virginia.

In addition to Laurin, White and Coggins, other members of the Texas Capital Punishment Assessment Team include W. Royal Furgeson, retired U.S. District Court judge for the Northern District of Texas; former Texas Supreme Court Justice Deborah Hankinson; Ronald Breaux of Haynes and Boone, LLP, in Dallas; Professor Ana Otero of the Thurgood Marshall School of Law at Texas Southern University, and Charles Terrell, Sr., founder of Safer Dallas.

The complete report and associated materials are available on the ABA website.

In the News

KUT: Report: Texas Executions Conducted Under Broken System

The Texas Tribune: Bar Association: Texas Death Penalty System Falls Short

Dallas Morning News: ABA report suggests improvements for state’s death penalty system

Hispanic Business: Texas Death Penalty System in Urgent Need of Reform: Report

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