Death Penalty

ABA report urges Texas death penalty reform, says 'future dangerousness' factor should be nixed

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The ABA’s Death Penalty Review Project has issued the last of 12 reports that assess the death penalty in states that account for more than 65 percent of the nation’s executions.

The last report, released Wednesday, evaluates the death penalty system in Texas, according to a press release. The review by a state-based team concluded that Texas has made significant improvements in its capital system, but additional reforms are needed. The team included former judges, a former prosecutor, a former governor, practitioners and legal scholars.

When errors are made, the innocent are convicted and the guilty go free, according to a highlights section (PDF) of the report. “An error-prone system also incurs a high financial cost,” the report says. “For example, since 1992, Texas has paid over $60 million to those it has wrongfully imprisoned—money that could have been applied more effectively to find the ‘right guy’ the first time around.”

The report identifies recent improvements. One is a 2013 law requiring Texas prosecutors to disclose police reports and witness statements, which can include exonerating or mitigating evidence. Another is the creation of offices to provide capital representation at trial and in state habeas proceedings.

But the report says more changes are needed, including:

• Police should fully tape suspect interrogations in serious felony investigations, including any questioning before the formal confession.

• Texas should eliminate the use of “future dangerousness” as a factor in capital sentencing, since the determination “often turns on unreliable scientific evidence.”

• Texas should provide fair deadlines for inmates in their habeas appeals, and its top court should conduct a proportionality review of each death sentence to make sure the penalty is applied consistently.

• Texas should change its “independent source rule” that currently permits eyewitnesses to make identifications in court even if a pretrial procedure was so suggestive as to require suppression.

• Texas should require indefinite preservation of biological evidence in any violent felony case.

• Judges should instruct jurors on possible factors to consider in assessing the reliability of eyewitness identification, and should instruct jurors about the significant importance of mitigating circumstances in sentencing.

The ABA summarized the recommendations in a letter (PDF) to Texas Gov. Rick Perry and other state officials. The ABA also sponsored assessments in Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Tennessee and Virginia.

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