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September 18, 2013

While praising modern reforms, ABA still (unsurprisingly) critical of Texas capital punishment system

As detailed in this Texas Tribune report, "a new study the American Bar Association will release Wednesday finds that the death penalty system here still falls far short when it comes to fairness and eliminating the risk of executing the innocent." Here is more:

“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,” the report says.

The report, which outlines a host of recommendations to improve the criminal justice system, is part of the bar association’s national project examining the implementation of the death penalty in states. While it praises Texas for recent improvements intended to increase fairness, the report says much work remains. The organization says its recommendations would restore public confidence in the system and help to ensure that Texans aren't wrongfully convicted and sentenced to death. Those include requiring the indefinite preservation of biological evidence in violent crimes, abandoning the evaluation of "future dangerousness," banning the execution of those with mental retardation and mental illness and establishing an innocence commission to examine the lessons of wrongful convictions.

“Texas has made some good policy decisions over the last couple of years,” said Royal Ferguson, the founding dean of the University of North Texas at Dallas College of Law and a former U.S. district judge who served on the association’s Texas Capital Punishment Assessment Team. “There are a lot more that need to be made.”...

A key recommendation in the report, Ferguson said, is the elimination of the use of “future dangerousness” as an element in the jury’s decision-making in death penalty cases. In Texas, juries are asked to determine whether the defendant would commit violent crimes in the future before sentencing a person to death.

In 2002, then-Attorney General John Cornyn acknowledged that Texas had made a mistake in seven cases where prosecutors used testimony from a doctor who indicated to the jury that the defendants would present a bigger risk for future violence because they were black or Hispanic. “It’s impossible for anybody to try to predict the future,” Ferguson said. “That part of the law needs to be repealed immediately.”

The report also suggests that Texas lawmakers should specifically ban the death penalty in cases where the defendant suffers from mental retardation or mental illness. And it urges the state to require the use of current scientific standards in evaluating whether a defendant is mentally retarded or mentally ill....

Finally, the report calls on Texas to create a commission to investigate each of the state’s wrongful convictions, identify the factors that contributed to them and consider ways to solve those problems through legislation or other policy changes.

Lawmakers have proposed such a commission in recent legislative sessions, but the measures have failed. State Sen. Joan Huffman, R-Southside Place and a former prosecutor and judge, was one opponent during the 2013 legislative session. "Anyone listening to this could not argue we haven't made significant reforms in criminal justice," Huffman said during a legislative hearing in May. "We do not need yet another layer to go through this again."

Jennifer Laurin, a University of Texas School of Law professor and chairwoman of the team that prepared the report, said its goal was not to call into question the use of the death penalty in Texas. Instead, she said, it was to ensure that it is implemented fairly.

Former Texas Supreme Court Justice Deborah Hankinson, who also worked on the report, said lawmakers must take steps to restore public confidence in Texas' court system. “For citizens to have confidence in the process, it requires transparency in every phase,” she said.

A copy of the full report should soon be available via the ABA's website at this link.  And the other prior ABA state-specific assessment are available via this page

September 18, 2013 at 08:40 AM | Permalink


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This recommendation on future dangerousness shows exactly what is wrong with the ABA's state-by-state recommendations. They are not based on legal flaws in any state's system but rather on what the ABA thinks the law should be.

Personally, while I think that other parts of the Texas system need to be fixed, the emphasis on future dangerousness gets it exactly right about when the death penalty is the appropriate punishment -- which offenders have demonstrated by their history that it is too risky to keep them alive. Incapacitation is a legitimate goal of any system of punishment.

Posted by: tmm | Sep 18, 2013 9:58:44 AM

How odd (well, actually not so odd, given the composition of the panel) that it makes no recommendation to address what are by far the two most significant problems with the DP: That lawyers burn through a lot of money litigating it, and that it takes too long from judgment to execution.

The recommendations it should have made include, at a minimum, (1) a fixed time limit on litigation in cases where no reasonable person could doubt factual guilt, (2) an expense limit on both sides of one million bucks, (3) a full and fair, and one-time-only, adjudication of any mental state defenses or mitigators, and (4) severe professional discipline for any prosecutor who fails timely to produce exculpatory evidence and any defense lawyer who files any motion principally for dilatory purposes.

In addition to an Innocence Commission, we should also have an Honesty Commission, to ensure that the ethical rules governing attorneys in capital cases maximize the jury's ability to hear all relevant aspects of the truth.

Posted by: Bill Otis | Sep 18, 2013 10:01:19 AM

I would add that tmm nails it in speaking up for the determination of future dangerousness, a factor that has and should inform sentencing from the time sentencing first started.

Of course race should play no role in that determination. Fine, we can all agree to that. But the answer to that is simply to bar testimony that refers to race as a factor in future dangerousness, not to eliminate the future dangerousness concept altogether.

And yes, we all know that no one can predict the future with certainty (except for druggie commenters who tell us that drugs are certain to be legalized), but so what? No one is saying it can be predicted with certainty. But every adult knows that the LIKELIHOOD of future behavior can be assessed based on an established history of past behavior. This fact does not disappear because the ABA wants to pretend that we really have no idea what Ted Bundy would do if he ever got out.

Posted by: Bill Otis | Sep 18, 2013 10:12:37 AM

The ABA has been, robustly criticized, for many of their state death penalty reports. There is good reason for that.

In Texas, as with all states, both state and federal courts are the arbiters of all criminal cases.

What do the courts think of Texas' death penalty?

1) Texas death penalty cases are overturned 17% of the time.

Nationally, 37% of death penalty cases are overturned.

Texas's due process protections show a 54% improvement over the national average. I think there is only one state better than Texas.

2) Texas has executed 45% of those sentenced to death.

Nationally, that figure is 15.4%.

Texas' appellate record is 300% better than the national average. I think there is only one state better than Texas.

The record would show Texas to be even better, if the Texas numbers were removed from the national averages.

1) Capital Punishment, 2011, Bureau of Justice Statistics, July 2013, Table 17, Number sentenced to death and number of removals, by jurisdiction and reason for removal, 1973–2011, page 20


The 12 Texas death row "exonerations" is a fraud.


The Innocent Frauds: Standard Anti Death Penalty Strategy

Posted by: Dudley Sharp | Sep 21, 2013 12:14:57 PM

Future dangerousness needs to go.

It is a huge burden on the prosecution and helps the defense, by having another burden on the state.

In addition, it is an appellate benefit for the inmates.

It is not, constitutionally, required.

Whether a future danger or not, the important issues are the circumstances of the murder(s) and do they warrant a death sentence.

Get rid of it.

Posted by: Dudley Sharp | Sep 21, 2013 12:19:52 PM

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