Wednesday, September 13, 2017

Has Texas fixed the death penalty?, and other notable Texan commentary on the justice system

A few items, while I have you:

Views of the system from the perspective of the punished
These recent opinion pieces from Texans with experience on the wrong side of the justice system merit Grits' readers attention:
Discussing drug abuse and families
Meanwhile, with tens of thousands of drug overdose deaths making national headlines, Texans Care for Children this fall in Austin will launch an interesting-looking three-part discussion series on drug abuse, families, and public policy. For state-level policy folk in Texas, it's a good time to be thinking about this sort of big picture analysis more than a year out from the next legislative session. Between Gov. Abbott vetoing Good Samaritan legislation in 2015 - and the Lege declining once again in 2017 to pay for expanded treatment services through reduced incarceration of drug users - it's pretty clear most Texas pols don't yet feel comfortable addressing drug abuse through any but a tough-on-crime lens. Advocates will need new strategies, alliances and messages to get much further. 

Is Texas on the way to fixing its death penalty?
Finally, Pat Metze, a Texas Tech law prof, looked at criticism of Texas' death penalty system in a recent law review article and thinks the Legislature is on its way to solving the problem!! As luck would have it, your correspondent worked on many of the initiatives he's lauding - mostly innocence-type work - which he frames as responses to concerns raised in a 2013 American Bar Association report that was critical of several aspects of Texas' capital-punishment system.

But the Legislature didn't view its innocence work through a capital frame, and it's at best a stretch to attribute anything they did as a response to critics of capital punishment. By contrast, most of those innocence reforms could only be passed because they weren't framed as specifically affecting capital cases.

For the most prominent example, the Texas state fire marshal ultimately was happy to correct erroneous arson science and conduct a comprehensive review of disputed cases. But initially, debates over arson science were framed around the case of Todd Willingham, who was executed based on flawed arson testimony in the face of his claims of innocence. The resulting culture-war brouhaha nearly caused then-Gov. Rick Perry to disband the Texas Forensic Science Commission, the FSC's general counsel revealed to a recent national gathering. That pattern has been consistent - reforms can often happen in Texas if they're not about the death penalty or other hot-button culture-war topics - which is why it's odd to portray Texas as acting specifically to correct flaws in the capital punishment system.

Given that the US Supreme Court has taken to bench slapping the Lone Star State two or three times per year on death-penalty matters (e.g., Moore, Buck, etc.), the perspective Prof. Metze offers here definitely qualifies as a revisionist view. A capital-attorney friend who'd seen Metze's article told me it made her "blood boil."

In that light, I teasingly asked Grits' contributing writer Jennifer Laurin, one of the authors of the 2013 ABA report, whether this means "Mission Accomplished!" She responded, "The short answer is that Texas has made big strides on innocence reform, and continues not to touch anything that redounds to the exclusive benefit of capital defendants. And actually I think the analysis in the article bears that out." More on this later, for sure, but I wanted to flag the link.


Steven Michael Seys said...

Frankly, Scott, I see the legislature's push for innocence reforms on a broad scale as a good thing. In the 1980's, capital cases where already the most scrutinized of all convictions in the Texas justice system. Yet we found that dozens of executions were performed in flawed convictions. If the innocent could not get relief under the heaviest scrutiny, how much worse would it be for the innocent in lesser cases? We couldn't even get a fair hearing. Now if the legal machine would only put into practice the spirit of the legislature's efforts, the rest of the innocent would be exonerated. Too often the system works to protect a conviction from the light of justice.

Gritsforbreakfast said...

I hope I didn't appear to imply that innocence reforms were a bad thing. Hell, I spent years pushing for them.

My point was that the Lege wasn't responding to criticisms of the capital system, might not have passed them if innocence reforms had been framed that way, and, as Prof. Laurin pointed out, has mostly failed to address capital-specific reforms. (Big exception was a requirement that the defense be notified when prosecutors seek to set an execution date, passed in 2015.)

Part of this was just the politics of the day. As the Todd Willingham case demonstrated, the death penalty was Rick Perry's beserker button. Not only would he tolerate reform in other areas, Grits has speculated in the past that his over-the-top remonstrations on capital punishment were intended to give political cover to what, by the end of his tenure as governor, had evolved into moderately reformist tendencies on a variety of topics. On the death penalty, though, Perry was decidedly immoderate, almost Trumpian in his over-the-top pronouncements. And after the average voter heard that, nobody would ever believe allegations in a primary that reform made him soft on crime.

In the wake of Moore, Buck, etc., looking at the innocence reforms Texas passed and declaring "We fixed it!," or even "we're on the road to fixing it," has a bit of a disingenuous air. There are examples where the Texas Court of Criminal Appeals openly called on the Legislature to fix broken capital statutes - most notably the law underlying their Briseno ruling, which the Supreme Court overturned in Moore - and the Legislature persistently fails to address them.

Anonymous said...

Hmmm, no comment on the recently released 2016 UCR report by DPS showing yet another significant annual increase in Texas violent crimes? Isn't this like the fourth year in a row now that we've had a violent crime increase in Texas? And from GFB and the TPPF "smart on crime" folk? ...... crickets. Hot damn, let's close a few more prisons!

Lane Thibodeaux said...

Anonymous 08:57:00: Those UCR stats show total crime rate reduction in Texas from 2015 to 2016 of -.03%. What you characterize as "significant" is 5.6%. Oh yeah, DWI/DUI declined 5% over the same period.

Changing topics, a problem with the Texas Capital Murder scheme that is under-reported, and therefore under addressed, is party liability under the Texas Penal Code. It is particularly problematic in CM cases in which the death penalty is waived and life w/o possibility of parole (LWOP) is the only other statutory sentence - an increasing decision made by prosecutors . A Texas jury can be charged and instructed it may convict a CM defendant under 7.02(b) of Penal Code where, although defendant did not intend death, they were part of a conspiracy to commit a felony, a CM in furtherance of the unlawful purpose was committed (by another), and def should have anticipated it would occur. In most cases in which criminal responsibility is found under this submission (though it is often be submitted with "regular" criminal party liability under 7.02(a)(2) and the jury does not have to be unanimous on which applies-another problem) it is usually a mitigating factor at punishment. Not so in CM/LWOP where because DP waived, LWOP automatic.