Capital Punishment Commentary
By Alan Berlow
[Alan Berlow is a Washington, D.C.-based free lance writer with a major interest in death penalty issues. This Commentary was printed in the Washington Post National Weekly Edition on February 21, 2000 and was called to my attention by Orba Lee Malone, an El Paso attorney who has been a close friend since 1940 and who has been an ardent champion for Christian ethics through these 50 years.]
How many wrongful death sentences does it take to conclude that a state`s criminal justice system is fatally flawed?
For Illinois Gov. George Ryan, the answer is 13. That`s the number of people found to be innocent on his state`s death row since capital punishment was reinstated there in 1977. (The state executed 12 during that time.) Three weeks ago, Ryan declared an indefinite moratorium on executions, saying: "I cannot support a system, which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the state`s taking of innocent life."
Illinois has no monopoly on wrongful convictions, so Ryan`s declaration has resonance in all 38 states with the death penalty. Nationwide, 85 innocent people have been freed from death rows since capital punishment was reinstated in 1976, including seven in Texas. The call for a moratorium by Ryan, a moderate Republican and death penalty supporter, raises the issue of whether governors of the 37 other death-penalty states are tolerating systems that are as bad or worse.
The question is perhaps most worth asking in Texas, the nation`s execution capital, accounting for 206 of the country`s 610 executions since 1976. Its death row currently holds 457 people-out of about 3,600 nationwide-second only to California`s 563.
Like Illinois`s Ryan, Texas Gov. George W. Bush is a long-standing supporter of the death penalty. Also like Ryan, Bush has expressed concern about the possibility of executing an innocent person. In his recently released autobiography, "A Charge to Keep," Bush wrote that "the worst nightmare of a death penalty supporter and of everyone who believes in our criminal justice system is to execute an innocent man."
Unlike Ryan, however, Bush has signed off on 119 executions in his five years as governor and has repeatedly endorsed his state`s death penalty machinery-displaying a conviction that is hard to fathom for anyone who has given the Texas criminal justice system even a cursory look.
Lawrence Marshall, the Northwestern University law professor who helped free five wrongly accused men from Illinois`s death row, says Texas deserves a reputation far worse than his state`s. "Illinois has been a lot more accurate about who it sentences to death than a whole lot of other states," he told me shortly after Ryan announced his moratorium. "Our procedures are a whole lot more careful than, for example, Texas. We give people better lawyers, generally speaking, and more protection at trial….Texas is worse, I`m sure, in convicting innocent people and it`s worse in not giving people who are innocent the opportunity to prove it."
The flaws in Texas`s system become evident as soon as a defendant is arrested. There`s an overwhelming chance that he is poor-nationwide, 80 percent of felony defendants are indigent-and Texas is particularly ill-equipped to provide such defendants with competent lawyers. In some counties defendants have waited weeks or months to be assigned a lawyer.
A 1996 U.S. Justice Department study reported that one of the major reasons innocent people end up in prison is that indigent defendants are provided with "inadequate" counsel-lawyers who fail to interview clients and witnesses or fail to conduct even the most cursory investigations. (A bill introduced February 11 by Democratic Sen. Patrick Leahy of Vermont would require national minimum-competency standards for court-appointed lawyers.) Elizabeth Semel, director of the American Bar Association`s Death Penalty Representation Project, says capital defendants in Texas in particular are regularly provided with lawyers who are little more than "warm bodies."
"The system in Texas…provides the appearance of representation and not the reality." Semel told me earlier this month, noting that Texas courts have upheld convictions of capital defendants whose attorneys have literally slept through portions of their trials. In the most infamous of those cases, the judge announced that "the Constitution doesn`t say the lawyer has to be awake."
In another Texas case, the U.S. Court of Appeals for the 5th Circuit ordered death row inmate Federico Martinez-Macias freed in 1993 because of attorney incompetence. Judge Patrick Higginbotham noted that the defendant`s attorney had been paid $11.84 an hour and "the justice system got only what it paid for."
Only three of Texas`s 254 counties have full-time public defender offices, which are generally acknowledged to provide better representation than attorneys appointed ad hoc by judges. Last year, the Texas legislature unanimously approved a bill that would have encouraged the creation of more public defender offices. But it was vetoed by Bush, who said he preferred the current system because judges are "better able to assess the quality of legal representation."
But in a 1999 survey conducted for the state bar, more than one-fourth of Texas criminal court judges admitted that court-assigned attorneys don`t have the basic resources-investigators, forensics and other experts-they need to defend their clients and 72 percent believe court-assigned counsel are less prepared than retained attorneys. A study done for the Texas Judicial Council in the mid-1980s found that the chances of being convicted of murder were 28 percent higher if a defendant`s attorney was court-assigned.
Although there is a widespread perception that convicted murderers can appeal their cases indefinitely, their grounds for appeal are actually narrowed considerably upon conviction. After sentencing, the condemned prisoner who had an incompetent lawyer is not only presumed guilty (the burden is on him to prove innocence) but is at an enormous disadvantage because issues his lawyer failed to raise at trial may be inadmissible on appeal. In addition, Texas-like a handful of other states, including Virginia-enforces stringent time limits on the introduction of new evidence following conviction.
In 1995, Bush championed and signed legislation designed to limit appeals by death row inmates and to shorten the time between conviction and execution, despite overwhelming national evidence that, over the preceding two decades, a sizable number of people-including several in Texas, one during Bush`s first term-would have been wrongly executed had that time been narrowed.
The last hurdle before execution-what Bush has called the "fail-safe"-is the clemency process. Nine states, including Texas, allow a governor to grant a pardon or reprieve only if it has been recommended by a clemency board. Bush has written that he has confidence in the recommendations of the Texas Board of Pardons and Paroles (BPP). But the BPP has proved to be little more than a rubber stamp of death sentences.
Its review process came in for withering criticism in December 1998, when U.S. District Judge Sam Sparks heard a civil action against the BPP brought by two death row inmates. During two days of hearings, Sparks noted that the board-two-thirds of whose 18 members were appointed by Bush-had never held a hearing on a single death row clemency appeal.
"It is incredible testimony to me," Sparks said, "that in 70-plus cases [that had come before the board to that point] in an 18-member board, that no person has ever seen an application for clemency important enough to hold a hearing on or to talk with each other about."
The hearings before Sparks revealed that board members may cast their votes on clemency matters without reviewing case files and without explaining their decisions. ""There is nothing, absolutely nothing that the Board of Pardons and Paroles does where any member of the public, including the governor, can find out why they did this," Sparks said. "I find that appalling."
Nevertheless, Bush has okayed 100 percent of the board`s recommendations since he took office-all but one denying clemency. He publicly endorses the BPP`s operation and has opposed even opening board meetings to public scrutiny. That would be unwise, the governor told the Austin American-Statesman, because it would only provide "a chance for people to rant and rail, a chance for people to emotionalize the process beyond the questions they need to be asked."
Bush has always supported the death penalty, and his actions have underscored that support. But Bush has also called his role in the execution process an "awesome responsibility," because of the risk of executing an innocent person. If he really believes that, and wants to support it with action, he should listen more closely to Ryan-who is also his Illinois campaign chairman-and reexamine his own state`s dangerously flawed criminal justice system.
