If Texas executes at all, it must do so fairly

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In a speech before Parliament in 1868, the English political philosopher John Stuart Mill — an ardent supporter of capital punishment — pointed out the sole argument against it that gave him pause: “that if by an error of justice an innocent person is put to death, the mistake can never be corrected... The argument is invincible where the mode of criminal procedure is dangerous to the innocent, or where the Courts of Justice are not trusted.”

Nowhere in the United States is Mill’s warning of greater import than here in Texas, the state that consistently executes more prisoners than any other.

On Wednesday, Sept. 18, the American Bar Association released the results of a two-year study of the death penalty in Texas, which stated that Texas’ death penalty system “fell far short” of the necessary standards of proof for conviction and sentencing.

“In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, [and] fails to rely upon scientifically reliable methods and processes in the administration of the death penalty,” the report read.

The report began by praising several improvements made to the process in recent years, including new laws meant to reduce the risk of misidentification and use of unreliable science in convictions, and to require prosecutors to disclose eyewitness statements and police reports that could contain evidence in favor of the defendant.

However, the study also found several areas of serious concern.

Firstly, the procedure of using “future dangerousness” as a justification for capital sentencing opens the door for bias to sway a jury’s decision.

For starters, evaluating “future dangerousness” serves no useful purpose; unless the jury can actually see the future, how can they correctly predict what a defendant may or may not do upon their release? Moreover, the practice can allow racial prejudice to stack the deck against defendants. Repealing it is absolutely necessary, particularly since over 70 percent of those on death row in Texas are minorities — one of the largest percentages in the country.

The report also recommended that Texas comply more effectively with the U.S. Supreme Court’s prohibition on executing the mentally retarded. While the state technically abides by the law, it has no scientifically accurate legal definition of the term. Instead, it uses a vague rule of thumb based on the character Lennie Small in John Steinbeck’s novel “Of Mice and Men.”

In 2012, that distinction became of paramount importance to the case of Marvin Wilson, a 54 year-old with an IQ of 61 and the reading and writing level of seven-year-old. A neuropsychologist declared Wilson mentally retarded, but under the state’s archaic and insufficient standard he was still deemed fit for execution.

Marvin Wilson was put to death by lethal injection on Aug. 7, 2012.

The report also criticized the fact that Texas does not require indefinite preservation of biological evidence, despite the fact that DNA testing has led to the exoneration of 48 convicted persons in the state. Texas also restricts death row inmates’ access to DNA testing when such testing would cast doubt on their death sentence.

The flaws continue. Texas does not provide adequate instructions to its juries, and surveys show that many jury members are allowed to operate under erroneous assumptions about what constitutes grounds for execution. Texas’ post-conviction procedures make it in many cases impossible for an inmate to bring up his case for appeal. And Texas does not ensure that defendants in death penalty cases are provided high-quality, state-appointed counsel, rather than often-underqualified local attorneys.

These serious miscarriages of justice must be remedied without delay.

If we execute people at all, then the greatest care must be taken to ensure that those sentenced to die have been convicted without any reasonable doubt. No evidence may be left un-examined. No protection may be ignored or circumvented. And no unfair institutional advantage may be given to the prosecution.

Under the current state of affairs, the mode of criminal procedure in Texas is “dangerous to the innocent,” and “the Courts of Justice cannot be not trusted.” There is no excuse for that, and we will not be satisfied until any person charged and sentenced to death in our state has as much protection under the law as they would in any other.