The goal of any criminal justice system should be to protect and serve the citizens. While the death penalty has existed in Texas, individuals have been unfairly convicted, the violent crime rate has not declined, and innocent people have died. These are traits of an institution that is the antithesis of its purpose and the justice it is supposed to serve. We have all heard of the cases. Many of us have signed the petitions.
The issue of the death penalty can easily generate an array of emotions, especially within the state of Texas. However, evidence to advocate its continuance or abolition should not be based on emotional response. Instead, to fairly evaluate capital punishment, we must carefully review data that examines
all aspects of the system. While doing such research, one can find indications that the death penalty process in Texas has serious flaws. The faults of capital punishment have resulted in the wrongful imprisonment and execution of citizens of Texas and the degradation of our state in the eyes of many across the country. The feelings and trauma of the crime victims and their families obviously are a very important consideration. However, the death penalty offers only a false or temporary condolence to those victims while a never-ending cycle of violence continues. The death penalty is unnecessary in the 21st century. It does not decrease the crime rate and it uses monetary resources that could be spent for other crime prevention programs. The use of long-term incarceration and life without parole can protect Texans from criminals while punishing the guilty.
The Texas legislature, along with those in many other states, acted quickly to answer the objections of the Supreme Court , and by 1976, there was a new death penalty statute.5 Since then, the state of Texas has executed over 362 individuals.6 In 2005 alone, Texas was responsible for the deaths of nineteen of the sixty individuals executed nationwide, continuing its dubious distinction of being the leading capital punishment state. Of those who have been convicted in Texas under the new statute, eight have been exonerated while on death row due to evidence of their innocence. Unfortunately, mistakes in other trials were revealed too late. Because of errors that have led to the deaths of several individuals, it is necessary to take action to reform the criminal justice system, and eventually to abolish capital punishment in the state of Texas. There is strong evidence to support the notion that this form of punishment is still being administered unconstitutionally, just as the Supreme Court ruled over thirty-four years ago.
Texas continues to be infamous for its controversial cases. Among them, questions of inaccuracies such as unreliable witnesses, lack of evidence, incorrect experts, official misconduct, and inadequate defense attorneys often seem to arise. These issues present a picture of a system that often does not protect the innocent or punish the guilty.
Suggestions for Reform
The research presented has led us to formulate several conclusions about reforming the criminal justice system in the state of Texas. Although the work that needs to be done is extensive, a more reliable and fairer system that helps all Texans and protects all citizens is mandatory.
Implement measures to eliminate official and trial misconduct.
After Republican Illinois governor, George H. Ryan, enacted a moratorium in his state, he created the Commission on Capital Punishment to guide him with recommendations. In the area of misguided police practices, the Commission found the following areas in need of utmost improvement: general police practices, custodial interrogations, eyewitness identification procedures, and law enforcement training. What is appropriate in Illinois is appropriate in the State of Texas.
First and foremost, after a suspect is identified, police and investigators should be required to investigate all leads, even if they point away from the suspect in custody. This will obligate investigators to solve the crime itself. Additionally, the police should be required to create a schedule of all items that may be of relevant evidence and allow both the prosecution and defense equal access to them.
Video Tape Interrogations.
To prevent coerced confessions, all interrogations should be videotaped. The police should also make a reasonable attempt to analyze the suspect’s mental capacity before interrogation. In case the suspect is mentally retarded, he will not be led to admit to a crime he has not committed. Eyewitnesses should be told that the suspected perpetrator may not be in a lineup. This way, they will not feel pressured to identify someone who may not have committed a crime. If the eyewitness does identify a suspect, he should be required to write a statement to specify the level of confidence he has in that person’s guilt. Finally, all police who work on homicide cases should receive periodic training to further their knowledge of the risks of false testimony, wrongful convictions, interrogation methods, forensic evidence, and false confessions.
Qualified Legal Representation.
All judges and defense lawyers participating in capital cases should be adequately trained in hearing and representing a capital punishment case. A process should be implemented to certify that both the judge and the defense attorney are qualified through experience, training, or both. They should also receive periodic training equal to that of the law enforcement officials mentioned previously.
Mental Capacity. Future Danger.
During a trial, testimony from psychiatrists who claim to be able to predict “future dangerousness” should be excluded. On the other end of the spectrum, defendants whose IQ’s place them at the mental retardation level should not be sentenced to death. Any deviation from these rules can be seen as trial misconduct as well.
Review of Claimed Misconduct.
An independent body should be created to investigate claims of official and trial misconduct. Cases should be reviewed for any mistakes that may have resulted in an unfair conviction. Criminal or disciplinary charges should be made against the perpetrators .
Instate a statewide public defender system and/or provide public defenders
with access to adequate funding for qualified/independent experts,
consultation, and tests.
A two-year study released by the Spangenberg Group, a nationally recognized consulting firm that specializes in improving justice programs, called the indigent defense situation in Texas “desperate” and described it as the worst among the death penalty states. Texas is actually one of only seven states that currently does not provide funds for capital representation to those who cannot afford it. The responsibility for paying indigent defense attorneys rests with Texas counties.
In the state of Texas, private lawyers are appointed but inadequately funded. Though the study found problems to exist in every step of the capital punishment process, the “crisis” stage occurred in state habeas corpus proceedings. Lawyers are rarely appointed to death row inmates and those who are appointed are under-compensated for their work. The state has been reduced to relying on a
small supply of volunteer lawyers who cannot handle the large volume of death row appeals. Texas should instate a statewide capital public defender system, or short of this, provide adequate monetary funding to a trial support unit. Statewide statutory standards for capital trial counsel should also be implemented. A peer review system and capital trial training should also be required. Defense attorneys who do not meet the established standards should not be appointed to defend a suspect.
The public defenders should be kept on a Court of Criminal Appeals’ list of qualified counsel and should be removed from the list if their performance is ever mediocre. Regarding funding, the Spangenberg Group research recommended the state pay half of the costs of providing two defense lawyers for capital trials and all of the costs of two lawyers in state habeas proceedings. Currently, an appointed defense attorney may be paid as little as $12 per hour. To increase funding for attorneys representing indigent clients, the governor and state legislature would need to work closely with the Court of Criminal Appeals to allocate funds. Currently, the Fair Defense Act governs these issues and requires counties to annually write plans on how they will fairly appoint indigent defense counsel in all criminal cases. The judges who provide these written details
are required to submit them to the Texas Task Force on Indigent Defense. Instead of having to create an entirely new statute, however, lawmakers could just amend the already existing Fair Defense Act. Since the Texas Task Force on Indigent Defense is already authorized to develop statewide policies and standards governing capital representation, amendments could authorize them to petition for certification of expenses for necessary litigation expenses. The cap on fees paid to capital habeas corpus attorneys should be removed. Instead, the counsel should be paid fairly for their time and work.
These changes are especially important since it has been proven time and time again that ineffective counsel can lead to a guilty verdict.
Make DNA testing a mandatory procedure in capital cases
where DNA evidence is available and allow death row prisoners
the right to be DNA tested.
DNA tests have been used in the past to prove someone’s guilt, and they are now being used to exonerate the innocent. Since the late 1990s, dozens of prisoners, some on death row, were proven through DNA tests to be wrongly convicted. A statute was recently created to provide defendants access to testing physical evidence. However, the Court of Criminal Appeals has limited the use of that statute and has thus prevented access to DNA evidence in many cases of proposed innocence. Because of the accuracy of DNA testing; it should be a mandatory procedure in capital cases where such evidence is available.
Attorneys of those on death row should be allowed to use current DNA technology. All procedural technicalities should be put aside when untested physical evidence could prove or disprove the inmate’s guilt. State rules must be flexible enough to correct these errors “after the fact.” Courts need to be receptive to new tests that may prove the actual innocence of those already convicted.
The cost of DNA “fingerprinting” has decreased. When tests were first administered, they cost around $5000. Now, the newest versions cost around $100. Complaints that say these tests are too expensive and time consuming are unfounded. Funding earmarked for DNA testing for indigent defendants should be established to ensure a fair trial. Minimum standards for DNA evidence should also be established. In the state of Texas, it is the responsibility of the district attorney to turn over evidence that may establish the innocence of an accused individual. Texas does not have a law that requires the full disclosure of evidence pertaining to DNA results. Since this law is absent, requests for these results are usually denied by the Court of Criminal Appeals.
Not only would mandatory DNA testing more accurately prove someone’s guilt or innocence in capital punishment cases, but DNA testing would also greatly decrease the statistical probability of bias. Bias, whether it is against an individual’s gender, race, or sexual orientation, has often been proved
to be sufficient to set aside a conviction. In many Texas cases, it has been sufficient to also sentence a defendant to death. DNA testing may be the only way to offset the biases of a law enforcement officer, lawyer, judge, or jury. A conviction based on proof rather than prejudice would reduce biases and help reform our capital punishment system.
An Interim Plan
Texas should instate an immediate moratorium on executions.
To successfully implement a moratorium, Texas could follow the guidelines as outlined by the American Bar Association. During the American Bar Association Midyear Meeting held in San Antonio, Texas in 1997, the ABA voted to urge jurisdictions not to carry out death sentences until the following goals were met:
Competent legal counsel was provided at all stages of the conviction, sentencing and appeals processes. Due process was preserved, especially in adjudication of constitutional claims in state post conviction proceedings and in federal habeas corpus proceedings. Racial discrimination that resulted in death sentences was eliminated.
Executions of the mentally retarded and those that committed the offense when they were under the age of 18 were prevented. Former American Bar Association President John J. Curtin said that their resolution “is not a referendum on the death penalty. It expressly takes no position on the death penalty.” Curtin reiterated that this move was made because “We need to reaffirm our commitment to justice.” At the time of the outline of these goals, ABA President Anthony Amsterdam said, “Whatever one’s views about capital punishment in the abstract, there are compelling reasons to believe that the way it is practiced in the United States today is fatally unjust and prone to error.”
A Worldwide Perspective
From a worldwide perspective, the United States has not been progressive in capital punishment issues. More than half of the countries in the world have now abolished the death penalty. Seventy six have for all crimes, sixteen have for all but war crimes, and twenty can be considered “retentionist” countries since capital punishment is still in law but has not been used in over ten years.
The death penalty had not been carried out in some European countries since as early as 1826. Finland was the first country to suspend the use of capital punishment and following Finland’s lead were Portugal, the Netherlands, Romania, Italy and Switzerland, all before the twentieth century. The majority of European countries continued to abolish the practice and since 1990, Azerbaijan, Bulgaria, Cyprus, Georgia, Poland, Serbia, Montenegro, Turkmenistan, and the Ukraine have done so as well. However, 1,526 people were still executed in 2002. Of these executions, 81% were administered by China, Iran, and the United States of America.
In fact, the countries that are known to have carried out legal executions in 2002 include the following: Belarus, China, Egypt, Equatorial Guinea, India, Iran, Iraq, Japan, Jordan, Kazakhstan, North Korea, Kuwait, Malaysia, Nigeria, Pakistan, Palestine, Saudi Arabia, Singapore, Somalia, Sudan, Syria, Taiwan, Tajikistan, Thailand, Uganda, United Arab Emirates, Uzbekistan, Vietnam, Yemen, Zimbabwe, and the United States. America’s decision to diverge from the practices of countries that “share with it a common political heritage and culture” has led to it being the only country in the Western world to still use capital punishment.
Please I ask you, for the foundation of a civil society, for democracy, for human rights. Ask your representatives and urge government officials to promote a non-violent culture, and the abolishment of capital punishment. We may have different political, social, cultural believes, or objectives, but the importance of abolishing capital punishment is a point we will all have to agree on. For a better America!