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Texas legal team releases ABA’s 12th assessment of state death penalty system


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Texas legal team releases ABA’s 12th assessment of state death penalty system

By John Glynn

AUSTIN, Texas, Sept. 18, 2013 — The American Bar Association’s Death Penalty Due Process Review Project released today the final report in a series of 12 comprehensive assessments of state death penalty systems. The report aims to ensure fairness and accuracy in the use of capital punishment in Texas. In addition to releasing the report, the state assessment team delivered a letter to Texas’ governor, the speaker of the state House of Representatives and others, urging them to improve the fairness of the Texas capital punishment system.


With the issuance of the Texas report, the ABA has now sponsored examinations of the death penalty in the states responsible for more than 65 percent of executions in the modern death penalty era.

With groundbreaking research aimed at giving states an objective instrument to evaluate the administration of the death penalty, each report, including the most recent in Texas, culminates a two-year review of state capital punishment laws, procedures and practices by an assessment team of state-based legal experts. Beginning in 2003, the ABA has sponsored assessments in Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Ohio, Pennsylvania, Missouri, Tennessee, Virginia and Texas.

“The ABA is committed to ensuring due process under the law for every American. Too often, when it comes to the ways in which the death penalty is imposed in this country, fairness is neither assured nor implied,” ABA President James R. Silkenat said. “The ABA has now sponsored comprehensive assessments of death penalty practices in 12 states. And each one of them has shown that states are grappling with a number of problems concerning the administration of the death penalty. These assessments — including this one on Texas — have indicated there is still so much work to be done if we are to have a fair and impartial system of capital punishment.”

In Texas, an assessment team of former judges, prosecutors, elected officials, practitioners and legal scholars noted that despite recent reforms, there still exist a number of areas in which the state’s death penalty system falls far short.

Notably, the Lone Star State appears out of step with better practices implemented in other capital jurisdictions, failing to rely on 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.

“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 has confidence in the adequacy of the criminal justice system to that task,” said Jennifer Laurin, professor at the University of Texas at Austin 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.”

The nearly 500-page report states that the system could be helped with a myriad of reforms to correct shortcomings 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. The report takes no position on the death penalty. The Texas assessment team focused exclusively on reviewing current laws and practices in the state’s death penalty system.

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

·         Spending 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 more than $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.

·         Ensuring 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 credibility of the system.

·         Empowering juries in capital cases. Jurors deserve full and accurate information about their responsibilities and their sentencing options in capital cases. A number of improvements and clarifications to the instructions given to jurors would 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.

·         Providing fair deadlines and procedures for death row inmates with serious appellate or constitutional issues. The people already on Texas’ 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 and making the process more thorough and transparent with in-person review hearings and published opinions upholding or overturning convictions. The process should also include proportionality review to ensure that the death penalty is being applied consistently across Texas.

·         Making 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’ clemency process may not only result in minimal review, but it also may contribute to the extraordinarily high denial rate of clemency petitions in the state: 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 sentences of eight inmates.

In addition to Laurin, other members of the Texas Capital Punishment Assessment Team include former Texas Gov. Mark White, who oversaw 19 executions during his term; Paul Coggins, former U.S. attorney for the Northern District of Texas; 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:


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