American Bar Association to Texas: Your Administration of the Death Penalty Is Woefully Inept

There are a number of legitimate criticisms that can be levied at the American Bar Association: it has accredited far too many law schools such that there are more lawyers than there are jobs, it can be self important and it skews towards the "elites" in the legal profession.

That said, it is still the premier legal association in the United States and when it releases a 517 (!) page report on the administration of the death penalty in Texas with an all-star cast (all based in Texas), we should listen. (Not every member of the Task Force was against the death penalty). 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. Texas also has problematic interrogation procedures -- it is not mandated that interrogations be videotaped (like many other states). To that end, five of the people exonerated by DNA testing were coerced by detectives into confessing to a crime they did not commit.

Texas also has a number of restrictions on allowing death row inmates to obtain access to DNA/biological evidence -- they need to show a "reasonable probability" that they would not have been convicted of the death penalty. This is just inane -- if the evidence exists, it should be tested. Point. Period.

Grossly, Texas is still ok with executing mentally retarded criminals.The Court of Criminal Appeals -- the court of last resort in Texas for criminal defendants -- has set up a "test" that is based on prosecutors' ideas (most of the Court is made of up of prosectors) of what constitutes "normal" behavior for mentally retarded persons. But is based on no scientific evidence.

There's more bad news: "just twenty of Texas's 254 counties account for over 76 percent of those individuals sentenced to death." So, if you happen to live in a county (say Harris County) that is gung-ho on the death penalty, tough luck. Choose your home wisely.

As of August 1, 2013, 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.

Let me be very clear: this is disgusting. Texas prosecutors, especially Harris County prosecutors need to reign themselves in. Harris County leads the nation in the most death penalty convictions and concomitant executions. Indeed, of the top ten counties in the nation, Texas has seven of them. These prosecutors have a grotesque "just win, baby" attitude (prosecutors rise through the ranks via conviction rates) where they keep exonerating or mitigating evidence out of the hands of the defense attorneys. For these people to be able to sleep at night, their cognitive dissonance must be off the charts.

Texas's has a notoriously tough criminal justice system. But these prosecutors -- and, yes, many death penalty defendants committed very terrible crimes -- to be this blood-thirsty is, frankly, weird.The people convicted of the death penalty, by and large, come from the very lowest rungs of society, where they never had a chance to succeed. But these myopic prosecutors live in a black and white world. Someone needs to introduce them to the color gray.

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