Only a Matter of Time: A Hopeful Review of Texas’ Long Fall

by Dax-Devlon Ross

For Texas’ criminal justice system the new year can’t come quicker. To be sure, there’s nothing particularly new about the Lone Star State’s propensity to attract bad press when it comes to criminal justice matters. We all know or have a strong sense that the state sits at or near the top of every damning statistical category just as we all know the state proudly marches to the beat of its own drum. In fact, there’s an admirable, even enviable quality about such pride. But for even the staunchest pro-punishment Texan this fall has to have been a call to conscience.

What was new and compelling these past few months was the non-stop onslaught of stories emerging from the state’s courts and prisons. Although some had hopeful, inspiring angles — most notably exonerees  — they shared a common bond: each was a bitter reminder of a broken system that can no longer be trusted to correct its own errors. These terminal defects were most prominently on display during last week’s squelched death penalty hearings in Houston. After just a day of oral arguments, the hearings were shut down.  Why? Well, the public was fed a couple of obligatory rationales, which I’ll get to in due course, but the reason I believe the hearings ended so abruptly has to do with the state’s long-standing aversion to scrutiny, discretion and basic humanity.

By way of background, between 1990 and 2000 Texas tripled the size of its prison population from 50,000 to more than 150,000. This rapid growth, observed Michele Deitch, a senior lecturer at the University of Texas School of Public Affairs,  represents “the largest and most expensive construction project of any kind in Texas’ history.” At present the number of state prisoners hovers around 225,000. Over a similar period (1985-2005) spending on corrections quadruped from roughly $600 million to $2.4 billion. According to the ACLU, more Texans were under state correctional supervision in 2005 (755,423) than lived in the state’s capital, Austin (690,252). Of course, race plays a significant roll in the the state’s culture of “correction”. Four in ten Texans are either black or Latino but those populations account for seven in ten state prisoners. Across the board, the figures are as mind boggling as they are gut wrenching.

The only thing Texas may love as much as locking people up is executing them once there in.  Of the 1233 executions that have taken place since the Supreme Court lifted the capital punishment moratorium in 1976, 464 (38%) have occurred in Texas, more than four times as many as the next closest state, Virginia (108). In terms of death sentences, nearly three-fourths have been imposed on people of color – 40% African American, 30% Hispanic/Latino, and 2% other — in the last four years alone.

In the interest of full disclosure, I’m of the mind that Texas takes a certain dysfunctional pride in its “lock ’em up” legacy. For one, it fits the  folk image of the tough “we do things our way” cowboy. For another, psychology tells us that there are contexts in which human beings — and, by extension, human-created institutions — can seek to protect their self-esteem and self-image by embracing the very stereotypes that have resulted in their stigmatization. In this light it makes perfect sense that a state that has been so thoroughly demonized as backward and barbaric because of its criminal justice record should turn up its nose, puff out its chest, dig in its heels and shut up its eyes and ears to the rest of the world’s calls for reason. It’s a protective mechanism, a coping device. Thing is, making sense doesn’t make it right. In this context — with so many lives literally on the line — it just makes Texas look stubborn and callous. And when you’ve exhausted all rational remedies, which some believe is the case with Texas, the only remaining  strategy for change is outright public humiliation. Since September a combination of its own bungled policies and an unwavering anti-death penalty movement led by activist attorneys like Barry Scheck of the Innocence Project along with a guerrilla  army of journalists, students and concerned citizens (such as yours truly) have done just that.

• First came the exoneration of accused child rapist Stephen Brodie in late September. A teenager at the time of his arrest, Brodie, who has been deaf since he was a child, confessed under intense interrogation. The confession was later used to convict him. Only because his father refused to give up did Brodie’s case find its way into the hands of Dallas’ Crime Integrity Unit. Thereafter the investigation was re-opened at which it was discovered that hairs and prints found on the scene and believed to belong to the perpetrator didn’t match Brodie’s, a fact known by prosecutors and police at the time of the conviction but deliberately kept from defense attorneys.

• Less than a month later a Houston court of inquiry’s decision to open hearings on the possible wrongful  execution of alleged arsonist Cameron Todd Willingham generated national headlines. A reputed town ne’er do well, Willingham was arrested after a fire destroyed his home, killing his three daughters. He maintained his innocence up to the day he died, but only in the wake of his execution did experts begin to pick apart the junk forensic science that had been used to execute him. Willingham’s family was seeking redress in the form of a post-execution exoneration, but before  the lower court could issue its ruling an appeals court issued — and perhaps you’re beginning to sense a theme — a stay on the matter. (The same week as the hearings, PBS’s Frontline program airedDeath By Fire, a documentary about the Willingham case.)

• In late October, citing a complete lack of evidence against him,  Washington and Burleson County D.A. Bill Parham ordered the release of death row inmate Anthony Graves.  Graves had served 18 years despite a notable lack of evidence other than the testimony of his alleged co-conspirator, one Robert Earl Carter, and “jailhouse statements” overheard by law enforcement agents. Before his execution in 2000, Carter retracted his testimony, admitting that he’d “lied on [Graves] in court,” but because the former D.A. thought Carter was lying (which is interesting since he believed  him in court), Graves continued to serve time until a special prosecutor hired to investigate the case after an appeals court overturned the conviction couldn’t find a shred of evidence against him and was forced to declare his innocence.

• In early November DNA tests proved that hairs found at the crime scene did not belong to a man executed in 2000 for a liquor store murder in San Jacinto. Claude Jones had been convicted of the murder based on the testimony of another inmate, Timothy Jordan, and a chemist at the Texas Department of Public Safety who told the court the hair fragment, which was found on the counter of the liquor store, could have belonged to Jones but not to co-conspirator, the victim, or any of the other 12 individuals whose samples were collected. Despite  Jones’s unwavering maintenance of his innocence throughout his decade-long stint on death row, the state refused to conduct a mitochondrial DNA test. Four years after Jones’ execution Jordan recanted his testimony, admitting he’d given it in exchange for a reduced sentence on an unrelated robbery case. While the finding did not prove Jones’ innocence, it did eliminate the corroborative evidence needed under Texas law to convict someone when the only other evidence is the testimony of a co-conspirator.

• In mid-November the Texas Court of Criminal Appeals threw out the conviction of Roderick Newton after concurring with the lower court’s finding that a prosecutor had improperly withheld evidence of a first statement given by Newton’s co-defendant Julian Williams, who wound up being the state’s star witness against Newton. In the statement in question, Williams denied any knowledge of the crime. He later made two substantially different statements and took the stand to testify that Newton shot Montoya as the man begged for his life. Williams pleaded guilty after he testified and was sentenced to 10 years in prison. In addition to illustrating the unreliability of “snitch testimony,” the Newton case also highlighted Texas’ troubling stance on mental  competency. Newton I.Q. hovers around 61. Eight years ago the Supreme Court ruled that the mentally retarded were ineligible for capital punishment because they lack the requisite awareness to appreciate the crime or the punishment. However, the Court did not mandate a standard. States were left to decide thresholds for themselves. Most adopted an I.Q. below 70 as the standard. As of now, Texas, isn’t one of them.

• The same day Newton case was being overturned, Texas longest-serving death row inmate was found dead in a jail cell, fueling an emerging debate around the ethics and legality of keeping a prisoner on death row for an extended  period. Simply put, scholars and psychologists are beginning to mount a strong case that protracted death row engagements constitute  “cruel and unusual punishment” under the Eighth Amendment. Ronald Curtis Chambers had been death row for 35 years for Capital Murder. From 1975 to 2010 Chambers spent 23 hours a day confined in a cell. In recent years the terms Death Row Phenomena and Death Row Syndrome have emerged to give voice to both the harsh realities of the death row and the resultant psychic effects of the experience–suicidal thought, deep depression, anxiety, stress, delusions, even insanity.  Chambers’ 35 year wait raised three distinct questions: 1) was this the same man who had committed the crime all of those years ago?; 2) if part of the rationale behind capital punishment is providing vengeance and closure to the victim’s family, how is a 35-year wait serving either of those purposes?; and 3) by housing people in such extreme conditions for such long periods, are we subjecting prisoners to a form of torture (i.e. punishment) such that it is unconstitutional?

• November also saw sudden nationwide shortage of  lethal injection drug sodium thiopental (aka “killin’ juice”). The only company approved to provide the drug to states claimed it was out of stock and wouldn’t have anymore for several months. States with set execution dates scrambled to find last minute supplies, and even resorted to an animal anesthetizer. Meanwhile, Texas, owner of 39 dosages, refused to share its supply even though it only has three slated executions before the drug’s March expiration date. “We have a responsibility to ensure we have an adequate supply of the drug,” a spokesperson for Texas’ Department of Criminal Justice told the USA Today.

If that’s not enough, it gets better.

Or worse.

Earlier I mentioned the Houston court hearings on the constitutionality of the state’s death penalty statute that the state’s highest criminal court halted after less than two days. What I didn’t mention was the particular circumstances under which the issue was even brought to the court. In an unusual tactical move, defense attorneys for alleged murderer John Green sought a remedy in anticipation of a guilty verdict and capital punishment sentence. In other words, Green had not yet been sentenced to death let alone convicted of the 2008 murders of which he had been accused. Prosecutors made this the sticking point of their argument to cease the hearings. Green, they argued, lacked “standing” to seek a remedy. In the brief they submitted on Green’s behalf, his attorneys (among whom is noted Tim McVeigh attorney, Richard Burr)  argued “capital punishment schemes that create a ‘substantial risk’ that innocent people are wrongfully convicted and sentenced to death are constitutionally unacceptable.” The “substantial risk” is rooted in the sheer number of exonerations since 1976: 138 (11 of which came from Texas). To put that number into perspective, consider this: for ever nine people executed, one is exonerated. This an astounding figure, one not unnoticed by the Supreme Court itself. Speaking about the escalating number of exonerations in 2001, Justice O’Connor noted, “If statistics are any indication, the system may well be allowing some innocent defendants to be executed.” Similarly, Justice Harry Blackmun observed, “innocent persons have been executed …”

The specific “capital punishment schemes” to which Green’s attorneys are referring represent what they call a  “unique constellation of factors”. They include,

1. No safeguards against witness identification procedures used by police agencies: More than 75% of DNA exonerees were convicted based on faulty eyewitness identifications.
2. No safeguards against false confessions: “Approximately 25% of the exonerations in the U.S. revealed through post-conviction DNA testing involved a false confession.”
3. Use of faulty informant testimony: In 2000 an “estimaed 21% of wrongful capital convictions were influenced by snitch testimony. A study by the Cener on Wrongful Convictions four years later doubled that number.”
4. Use of evidence stemming from junk science posing as modern forensic work: Of 137 trials resulting in a conviction that was later invalidated by post-conviction DNA, in “82 cases or 60% — forensic analysts called by the prosecution provided invalid testimony at trial — that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data.”
5. Prosecutorial misconduct: A survey published by the Texas Defender Service “found 41 capital convictions in which misconduct was documented.”
6. Racially biased jury selection: Harris County, the site of the Green trial, has a historical pattern of excluding African Americans from juries such that in 1984 Justice Marshall called the exclusion of blacks from jury pools a “general rule. Twenty-four years  later a black former prosecutor reported that prosecutors “were expected to strike black jurors from panels due to race.”

The brief is a nearly airtight articulation of the discontinuity between the U.S. case law shaping our current capital punishment doctrine and Texas’ (failed) capital punishment system. Through the passionate appeals of governors who’ve stricken their own death penalty statutes, the sage-like wisdom of Supreme Court Justices who’ve grown increasingly wary of  humanity’s capacity to fairly mete out death, and the scientifically gleaned insights of leading social scientists who’ve studied everything from the warped psychology of death penalty juries to the frightening serendipity behind the vast majority of death row exonerations, it illustrates the  need for Texas to evolve beyond its current system.

To its credit the state has established a commission on forensic science, a justice advisory council, a justice integrity unit and a wrongful conviction panel. The only problem is that none of these bodies can claim responsibility for a single, substantive change. This, Green’s attorneys insisted in their brief, is why a constitutional challenge was appropriate. If a state is well enough aware of its frailties to create tough sounding councils, units, panels and commissions, then it has to have the courage to imbue those institutions with the power to actually make change. Otherwise what’s the point? In other words, we know the problems. They are well documented. Now do something. If not, then you have to expect nagging interlopers, hyper-concerned citizens (such as myself) and activist attorneys to keep prodding, picking, kicking and screaming.  Texas’ incarceration policies, particularly the development of the modern industrialized penitentiary, have driven America to the top of the world’s mass imprisonment charts. Symbolically and substantively, Texas is the linchpin, the anchor, the battleground of the contemporary criminal justice fight. The state’s history of extreme behavior both legitimizes other states hyper-aggressive practices and shields them from from closer scrutiny. By the same token, Texas’ cessation of capital punishment would inevitably force other states to follow suit. Overhauling the justice practices in the state would send a deafening signal. It would begin a process of healing, humanity and equity that is long overdue. It would restore the faith so many of us have lost not only in Texas but in the entire notion of justice.

I would be remiss to close this piece without noting the  light at the end of the tunnel. It is becoming increasingly apparent that the work so many anti-death penalty activists have been doing over the last decade plus is beginning to pay dividends.  This week The Texas Coalition to Abolish the Death Penalty (hat tip Toni) issued its 2010 report. Among its findings were the following:

Death sentences in Texas have dropped more than 70% since 2003, reaching a historic low in 2010.According to data compiled from news sources and the Texas Department of Criminal Justice, juriescondemned eight new individuals to death in Texas in 2010. This is the lowest number of new deathsentences since the U.S. Supreme Court upheld Texas’ revised death penalty statute in 1976.

The State of Texas carried out 17 executions in 2010, the lowest number for the state since 2001.8 Itaccounted for approximately 37% of U.S. executions this year, a smaller percentage than in recent yearswhen Texas accounted for 45-62% of all executions nationwide (2005-2009).

At least six inmates received reduced sentences in 2010, including several whose death sentences wereoverturned because jurors did not hear mitigating evidence during their original trials.

It is the Coalition’s position — and I would agree without reservation —  that the decline in new death sentences is largely the result of a confluence of factors, chief among them “longstanding concerns about wrongful conviction,” “emerging evidence of wrongful executions” and the  availability of “alternative punishments”. In particular, the passage of 2005’s Life Without Parole bill has to be viewed as the game changer that may ultimately signal the death penalty’s demise. Prior to 2005 jurors in death penalty cases either had to deliver a death sentence or settle for lifewith parole. The new option allows jurors to send felons to prison with the comfort of knowing they will never be released (unless, of course, their innocence is proven). Without question, the declining number of death row sentences and executions illustrates the average Texan’s basic respect for human life.

The other day a friend asked me if I was against the death penalty. The only answer I could legitimately offer was that I don’t know. I said this because, frankly, we’re not in a position to even have a conversation about the institution’s efficacy. For me, no legitimate conversation about capital punishment can begin until  we’ve addressed the legitimacy of the process itself. As far as I can tell, all that the attorneys for Green and others want is for Texas to stop pretending as if we can’t do better as a society. That’s all. We know enough now about what we’ve done wrong in the past and what we still haven’t figured out to  make change now. Not next year. Not even next week. Now.

DDR