The American Bar Association released a report this week assessing Texas’ death penalty laws, procedures and practices. The state has improved the way it pursues the death penalty, the report says, but the administration of capital punishment in Texas hardly can be called accurate and fair.
Far from pointing out the obvious, however, the report recommends ways Texas lawmakers can reform the state’s death penalty system. Legislators would do well to consider the recommendations.
The state should clarify its criteria for evaluating and determining the intellectual disabilities of defendants, something it has failed to do even though the U.S. Supreme Court declared the execution of defendants with intellectual disabilities unconstitutional in 2002.
And the state should abandon its use of “future dangerousness.” Texas juries weighing whether to sentence someone to death must first decide whether the person poses a future danger to society. This is a nearly impossible task, and experience has shown it is one subject to manipulation by bad science and racial bias.
“Jurors are left to comprehend ‘probability,’ ‘criminal acts of violence,’ and ‘society’ so broadly that a death sentence would be deemed warranted in virtually every capital murder case,” the report says.
The primary purpose of the association’s recommended reforms is to eliminate wrongful convictions in death penalty cases. Wrongful convictions not only send an innocent person to death row, but as the report points
Th Houston Press posts "American Bar Association to Texas: Your Administration of the Death Penalty is Woefully Inept," by Calvin TerBeek.
The report opens with this salvo:"In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the administration of the death penalty, and provides the public with inadequate information to understand and evaluate capital punishment in the state. For example, since 1992, Texas has paid over $60 million to those it has wrongfully imprisoned--money that could have been applied more effectively to find the "right guy" the first time around. In addition, the state and federal courts must 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. Indeed,preventing error is often far less expensive than correcting error."
It gets worse: from 1989 to 2012, 47 (!) Texas death row inmates have been exonerated via DNA testing or the discovery of new evidence. But yet, almost unbelievably, Texas does not require "indefinite preservation" of DNA/biological evidence for violent felony crimes. (Dallas County's District Attorney has been the exception to this rule and has been remarkably open to getting it right).
What is more, Texas is behind the times on eyewitness identifications, a problem I highlighted in an article for the Law & Psychology Review back in 2007 (which has been cited by Connecticut Supreme Court). Texas courts routinely allow in unreliable eyewitness identifications which have repeatedly been shown to problematic. No matter, Texas prosecutors just want their conviction. But, according to the report, Texas leads the nation in wrongful convictions and exonerations in criminal cases generally.
Earlier coverage of the ABA Texas report begins at the link.