Houston's Death Penalty Hullabaloo

Harris County Texas is the death penalty capital of the democratic
world. It accounts for about 1 percent of the U.S. population but has
carried out nearly 10 percent of the country's executions since 1976.
So when a state district judge in Houston, Kevin Fine, unexpectedly ruled Texas's capital punishment procedures unconstitutional last week, it was a shot heard 'round the world.

Attorneys for the defendant in the case, John Edward Green Jr., who
is charged with killing a woman in a robbery and shooting her sister,
praised the decision as "the beginning of the end of the death penalty
in Texas." But proponents of the death penalty, who carry larger
bullhorns, were indignant. Greg Abbott, the state's attorney general,
called the ruling "legally baseless," while Governor Rick Perry, who
has presided over 211 executions during his long tenure, denounced the
"activist judge [for] legislating from the bench."

Under fire from politicians and the media, which highlighted the magistrate's unusual background--his
history of drug use, his liberalism, his tattoos--Judge Fine backed off
on Tuesday, rescinding his decision and scheduling a hearing. But the
legal and ethical issues are hardly settled. Acting on a pre-trial
defense motion, Judge Fine asserted that Texas's death penalty is
unconstitutional not because it's cruel and unusual, the province of
the Eighth Amendment, but because the state's judicial institutions
fail to guarantee criminal defendants due process under law, as
required by the Fourteenth Amendment.

A growing body of evidence suggests that Judge Fine is correct, that
Texas's practices in death penalty cases are more arbitrary than
fair--and that innocents sometimes get the needle. The state's legal
procedures tilt toward death from the moment a capital defendant
reaches the courthouse door, especially in Harris County. There is no
public defender system (though a fledgling office is under
development), so low-income defendants get an attorney appointed by the
trial judge. Unlike full-time prosecutors, defense lawyers are paid a
flat fee, which rewards indolence since strenuous advocacy depresses
the hourly wage. There is no set budget for independent experts, so
most forensic evidence is vetted only by the county's infamously sloppy crime lab,
which, according to a wide-ranging investigation launched in 2002, has
botched hundreds of cases, almost always in favor of law enforcement.
According to studies conducted by sociologist Scott Phillips,
the outcomes of Harris County's capital prosecutions have been
significantly influenced by a defendant's race, educational attainment,
and ability to hire a private attorney.

Prompted by a string of scandals
involving judicially appointed roustabouts who slept through their
clients' trials or showed up to court drunk, Texas passed the Fair
Defense Act in 2001, increasing state funding for indigent defense. Yet
in Harris County prosecutors still outspend defense attorneys more than
two to one. While the DA's office has a staff of 30 investigators,
publically retained defense counselors have none.

Judicial review is supposed to guard against miscarriages of justice
at trial, but Texas's elected appellate judges often wield their gavels
as rubber stamps. In recent years, the Texas Court of Criminal Appeals,
the state's highest criminal court, has refused to release inmates
despite DNA evidence proving their innocence, declined to overturn a
guilty verdict despite revelations that the judge and prosecutor were
sleeping together during the trial, dismissed police and prosecutorial
misconduct as irrelevant, and refused to consider a life-or-death stay
request when it arrived after business hours, resulting in a hasty
execution. After embarrassing rebukes by the U.S. Supreme Court--a body dominated by law-and-order conservatives--the Texas Monthly labeled the Court of Criminal Appeals "the most notorious state high court in the country."

Texas's prosecutorial judiciary, more than the state's elevated
crime rates or the harshness of its juries, keeps the 6:00 pm shift at
The Walls in Huntsville unusually busy.
Although others states have larger death rows, Texas has carried out
almost 40 percent of the nation's executions since 1976--450 in all.2
Harris County alone is responsible for 112 executions, more than the entire Commonwealth of Virginia, the country's second most active death penalty state.

The numbers make Texas's capital justice system the most effectively
lethal in the United States. But the flip side of efficiency is error,
and Texas also leads the nation in the discovery of wrongful convictions, including 40 by DNA evidence and 11 exonerations from death row.

Worse, Judge Fine contends that the state is failing to exonerate
and is thus "executing innocent persons"--a fear borne out by extensive
posthumous reviews of at least five capital cases. Most famously, in
2004 Governor Perry approved the execution of Cameron Todd Willingham
(one of my research subjects), despite overwhelming evidence that his
conviction for homicide by arson was based on discredited fire science.
Last fall, the State Forensic Science Commission was moving toward
clearing Willingham, albeit after his death, but before hearings could
be held, Perry replaced the commissioners, thereby quashing the inquiry.

Advocates of judicial restraint argue that Texas should improve its capital punishment system legislatively, but in my research on the history of crime and punishment in the South,
I found that meaningful change has almost always come from the outside,
from the abolition of slavery forward. On a range of issues from racial
bias in jury selection to capital verdicts in juvenile cases, Texas has
stepped back from severity not after having second thoughts but in
compliance with federal court orders. This could flip as the state's
rapidly changing demographics alter its electoral and law enforcement
culture, but until Texas's standards of decency evolve, maverick judges
like Kevin Fine should be applauded for speaking uncomfortable truths.
What Texas needs more of is precisely what its attorney general fears:
"unabashed judicial activism" in the interest of equal justice.