Texas
Retooling Criminal Justice in Wake of Furor
By JIM YARDLEY HOUSTON,
May 31 - Texas, which leads the nation in executions and endured withering criticism of its death penalty system during
the presidential
campaign last year, is poised to make significant changes
in its criminal justice laws and so, supporters of the overhaul say, create a fairer system of capital punishment .
The
Legislature, which concluded its session this week, passed a
measure addressing a central complaint about Texas criminal
justice: that indigent defendants are too often given bad lawyers
to handle their cases. The lawmakers also approved legislation
providing for DNA testing for many criminal defendants and
prisoners, as well as a bill to increase payments to people
wrongfully imprisoned .
Gov.
Rick Perry has signed the DNA bill and is expected to sign the two
others. But Mr. Perry has not yet decided what he will do on
perhaps the most controversial measure, a bill that would make
Texas the 14th state to ban the execution of mentally retarded
prisoners. Prosecutors are urging a veto, while supporters note
that a similar bill has passed the Florida Legislature and is
backed by Gov. Jeb Bush .
While
most of the changes cover a broad range of criminal defendants and
not solely those charged with capital crimes, many lawmakers were
motivated largely by the intense negative attention focused on the
state's death penalty during the presidential campaign of Gov.
George W. Bush .
The
flurry in passage of criminal justice legislation, while falling
short of what many death penalty opponents had hoped for, is in
marked contrast to activity the last time the biennial Legislature
met, in 1999, when Mr. Bush's presidential aspirations hung over
every vote. Mr. Bush, who during the campaign last year
steadfastly defended the Texas capital punishment system, vetoed a
bill as governor that was similar to the one passed this year on
legal representation for the poor, and also spoke against a failed
1999 bill that would have forbidden execution of the retarded .
Texas
carried out a record 40 executions last year. But some experts
believe that improving the quality of legal defense for the poor -
to say nothing of DNA testing, which has already resulted in some prisoners' release from death rows across the country -
could reduce the
number of death sentences in Texas. "Just having someone to
really tell your story at the time of sentencing and not doing just
a perfunctory job does seem to help," said Richard Dieter, executive director of the Death Penalty Information Center, in
Washington, which
opposes execution. "The indigent-defense system seems
to be a key factor, and if the reforms that Texas passed make a
meaningful difference in the way cases are handled there, then I think
it will result in fewer death sentences." Rodney Ellis, a
Houston Democrat in the Republican-controlled State Senate who
played a leading role in pushing for a criminal justice overhaul,
agreed that the negative attention focused on the state's system
during the presidential campaign had been a significant factor in
bringing change this year. He said he did not know if the bills would mean fewer executions, "but I
hope so." "I
think these are major reforms," Senator Ellis said. "For
the Lone Star State, it's a whole new era in criminal justice
reform." Since 1976, Texas has executed 246 people, more than
half of them during Governor Bush's administration; the state
figure is more than a
third of the national total, 716. As yet this year, there have been only seven executions in Texas, a far slower rate
than in 2000. Because
execution dates are set by local judges in the state's
254 counties rather than by a central corrections authority, there is no way to predict how many will be
scheduled in a given
month .
In
any event, a change in attitudes in this fiercely law-and-order state
was evident from the moment the legislative session began in January.
Mr. Perry, a Republican who rose from lieutenant governor to
governor after Mr. Bush's presidential election victory, surprised
some lawmakers by speaking, though in vague terms, of a need for changes in criminal justice .
A
newfound willingness of legislators to consider such changes became apparent when bills to impose a two-year moratorium on executions
passed committees in both houses, before eventually dying.
Such bills had never even been given a committee hearing in the past .
In
addition, Mr. Perry asked that lawmakers place the DNA bill on an
emergency fast track, and signed it shortly after it was passed .
In
response to questions about the Legislature's new direction, Scott McClellan, a White House spokesman, said it was not
relevant to Mr. Bush's
own record as governor. "Those are issues for the current
Legislature and the current governor in Texas to address," he
said. "When the president was governor, his views were very clear." The Scripps Howard Texas Poll has shown that
Texans remain strongly
in favor of the death penalty but are not against changing or
at least studying the system. In a February poll, 66 percent of respondents
said the state should not execute an inmate considered mentally
retarded. A poll last year showed that 76 percent supported a moratorium on executions in cases that might be affected
by DNA testing. The same poll found that 65 percent believed
Texas had executed innocent people .
For
longtime death penalty opponents in Texas, the changes are welcome,
if not yet enough. James Harrington, director of the Texas Civil
Rights Project, hailed them as enormous steps in the context of
Texas' past, even if they might seem modest compared with those in
states like Illinois, which last year imposed a moratorium on all
executions .
Maurie
Levin, a lawyer with Texas Defender Service, which represents death row inmates, said the changes were meaningful
but called them
"baby steps when Texas needs giant steps." For example,
the indigent-defense bill that Mr. Perry is expected to
sign falls far short of the statewide indigent-defense system sought by many critics of the death penalty .
Currently,
not only is each county responsible for how lawyers are appointed
for poor defendants, the state does not require standards or
provide oversight. The new bill, the Fair Defense Act, would not have
the state taking control away from county judges, but would create
minimum standards for lawyers appointed by those judges, would provide about $20 million a year in state money for the counties'
programs and would institute reporting requirements allowing
the state to monitor them .
As
for the bill on the mentally ill, Governor Perry is facing pressure from both sides, and must decide by June 17 whether
to sign it, veto it
or allow it to become law without his signature .
This
bill would allow juries to decide during a sentencing phase whether
the defendant was mentally retarded. If so, there could be no
death penalty. If the jury decided the defendant was not retarded,
then a hearing would be held in which two disinterested experts would make recommendations to the judge, who would
have final say .
The
political fight is quickly escalating. Mr. Ellis and other supporters
say that on the basis of an I.Q. of 70 or below, the state
has already executed six mentally retarded inmates and that seven more are sitting on death row .
"It
reeks of revenge, not justice, when you execute someone who is mentally
retarded and doesn't know the difference between right and wrong," said State Representative Juan Hinojosa, a
Democrat from McAllen, the chief sponsor in the
Democratic-controlled House .
But
Mr. Perry and several district attorneys have argued that Texas
has never executed a mentally retarded person, contending that
I.Q. is not the sole factor in determining retardation .
Prosecutors
also maintain that allowing the judge to have final say would
wrongly take the final decision away from the jury .
"This
bill gives it to the jury and then takes it away from the jury,"
said David Weeks, the district attorney in Walker County, which
includes Huntsville, home to the state's death chamber .
"There
are a great many problems with this law."
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