Dateline Houston

The StarChase GPS Launcher.
The StarChase GPS Launcher.

Historically, civil libertarians and law enforcement watchdogs have reacted to innovations in police technology with skepticism if not alarm. Last year, for example, the ACLU published a report blasting unfettered use of automatic license-plate readers in places like Grapevine, where surveillance equipment scanned more than 14,000 plates a day, and the city had no plans to delete the data.

But a couple of high-tech solutions being rolled out in Texas police departments are proving exceptions to the rule. That’s because in addition to fighting crime, they have the potential to make police encounters safer for innocent civilians, not just officers.

One of the most dangerous police activities is the high-speed chase. The largest analysis of police pursuits found that almost a quarter of pursuits resulted in an injury or property damage, and that one in five injury victims was a bystander. But restrictive chase policies frustrate officers who feel their judgment should be trusted.

The solution? Be like Batman. As of March, a dozen patrol cars in Austin have been fitted with grill-mounted air cannons that fire GPS darts at fleeing vehicles. Deployed by a pursuing officer via keypad, the darts stick to the back of a suspect’s car, letting police discontinue the chase while continuing to track a suspect’s movements in real time.

The Austin Police Department is an early adopter. The maker, StarChase, says a “large handful” of agencies have installed the technology, including the Los Angeles County Sheriff’s Office and departments in Iowa and Florida. It’s not cheap—each system costs about $5,000 and includes two darts, which can be refurbished and reused for $250 each. But it may be less expensive than the status quo. Austin police reported 135 pursuits in 2012, of which 22 ended in crashes. One of those crashes killed a bystander. The department says if the program is successful, it will seek grants to put the system in every patrol car.

Though it’s less cutting-edge, Houston, too, is using technology to address a pernicious police problem: civilian complaints. Since last winter, nine officers at the Houston Police Department have worn different types of body cameras in the field to help evaluate models for potential use. HPD recently confirmed that it plans to add 100 cameras by next summer, an expansion that will cost an estimated $400,000 including equipment and data storage. Though pricey, Houston police Chief Charles McClelland says the cameras may save money by quickly resolving Internal Affairs investigations. “You don’t have to spend resources to investigate frivolous complaints,” McClelland told the Houston Chronicle. “Sometimes when people make complaints, and they see themselves on video, they drop the complaints.”

But potential savings aren’t why groups including the ACLU cautiously support such programs. An October report from the group called police cameras a “win-win,” saying that while the group generally takes a dim view of expanded surveillance, “on-body cameras are different because of their potential to serve as a check against the abuse of power by police officers.”

Of course, any technology can be abused. The ACLU’s endorsement is contingent on the adoption of strict policies ensuring privacy and preventing tampering, policies HPD says it’s still developing. But the fact that two large police departments in Texas are investing in new ways to ease officer-citizen conflicts looks a lot like progress.

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March in favor of a non-discrimination ordinance outside San Antonio City Council meeting.
Forrest Wilder
A September march in favor of San Antonio's non-discrimination ordinance.

Austin may have a reputation for being Texas’ most gay-friendly town, but Houston’s catching up.

Houston Mayor Annise Parker announced today that the city will start offering employment benefits like health insurance to same-sex spouses of city employees who were legally married in other states. In 2001, voters approved a city charter amendment that appears to prohibit exactly that, but Parker says because it permits benefits for “legal spouses,” then legal gay spouses should be included. (Parker, who is gay, will be unaffected by the change since she and her partner of 24 years are unmarried.)

A statement from the mayor’s office appears to claim both that the city is still legally obeying the charter amendment—the city will not extend benefits to domestic partners, for example, only to full spouses—and that the charter amendment is unlawfully discriminatory. It explained, “After a careful review of recent case law, the city legal department believes continued application of the charter amendment so as to deny same-sex spousal benefits would be unlawful because it treats employees differently on the basis of sexual orientation.”

The statement cited the August IRS decision recognizing married same-sex couples for federal tax purposes even if the couples reside in states where their marriage is not recognized. Austin, Dallas, El Paso and Fort Worth already have such policies, as does San Antonio, the recent site of an ugly squabble over whether to extend the city’s non-discrimination policy to include sexual orientation and gender identity.

It’s the second big leap forward for gay rights in Houston in as many weeks. Last Thursday, the Harris County Sheriff’s announced new policies intended to prevent sexual assault and harassment at the county jail. They include adding sexual orientation and gender orientation to the characteristics protected against discrimination and requiring new training on “updated zero-tolerance rules” about sexual abuse, harassment, improper contact and failure to report violations, according to a statement.

More radically, jail staff are now expected to consider gender identity, not merely anatomy, when deciding whether to house inmates with men or women. They’re also director to address inmates by either their chosen name or last name only, and to “follow common sense rules about whether an inmate should be searched by a male or female staffer.”

“Harris County courts will continue to mete out tough justice,” said Sheriff Adrian Garcia in the statement. “But being tough only works the right way when it is accompanied by values such as safety, fairness and dignity.”

Dignity in Houston looks to be coming along.

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Dave Wilson

On Friday, Houston news station KHOU reported on the surprising election of Dave Wilson, a white anti-gay activist who beat a 24-year incumbent in a heavily Democratic and African-American district at least in part by pretending to be black. That story has blown up, but what few outlets are noting is that Wilson is a longtime and, heretofore, unsuccessful foe of the college system he has just joined.

During his run for District II trustee of the Houston Community College System, Wilson’s campaign materials never showed his face. Instead, they featured black families beside the words, “Please vote for our friend and neighbor Dave Wilson.” One mailer crowed, “Endorsed by Ron Wilson,” suggesting the support of a former state representative who is African American. But actually the endorsement came from Wilson’s cousin Ron, who lives in Iowa.

Wilson, an electrician known locally for nuisance lawsuits and homophobia, doesn’t deny his intent to mislead. “Every time a politician talks, he’s out there deceiving voters,” Wilson told KHOU.

But besides being non-representative of his district politically and racially, Wilson joins the ranks of conservative neophytes elected to political bodies they openly despise. At a tea party event in October of last year, Wilson delivered a 76-slide presentation on why voters should reject the $425 million bond proposal to fund HCC, the gist of which was that enrollment was down and money is expensive. Despite his heroic PowerPoint, that bond passed. In 2011, Wilson sued the HCC trustees to prevent the purchase of land Wilson claimed was overpriced. The suit was summarily dismissed with prejudice and Wilson had to pay court costs.

Most of Wilson’s 20 years of relapsing-remitting political activity in Houston has gone like that. But he has had one other taste of victory. Before turning his eye on HCC, Wilson fought homosexuality. In 2001, he gathered enough signatures to put a referendum on the ballot denying benefits to same-sex partners of city employees. That referendum passed. He followed up by running for mayor on an anti-gay platform, sending out tens of thousands of mailers saying Annise Parker, who is gay, should not be mayor because “homosexual behavior leads to extinction.”

In 2009, Wilson’s homophobia took a pitying stance. In one flier, he said, “I have nothing but compassion, respect, and sensitivity toward those trapped in homosexual behavior.” But by the time Parker won a second term, Wilson had gotten uglier. A capture of campaign website from December of 2011 features a Bible verse from Romans over an unsigned cartoon of Parker high-fiving Jerry Sandusky while saying, “You’re hired!”

The electorate that, perhaps inadvertently, elected Wilson last week also granted Parker a third mayoral term.

Wilson hinted at his new campaign strategy during his last failed run. Perhaps sensing that gay-bashing had lost its value as an electoral tool, Wilson released a statement two days before the 2011 election stating that he was not in the Ku Klux Klan, that Parker’s camp had spread a rumor to that effect, and that he had been a member of the NAACP for several years.

How much Wilson’s racial subterfuge helped him in last week’s election is unknown. The HCC system has been plagued by poor performance, and other trustees were forced into runoffs. But the effect could have been tiny and still decisive. Wilson beat incumbent Bruce Austin by only 26 votes in a race with more than 11,000 cast. Austin has asked for a recount, but with electronic voting, a reversal seems unlikely. An HCC trustee term is six years.

gavel

How much is a competent defense attorney worth? If you’re the defendant, very much indeed. But how much is it worth if you’re not on trial—and you’re the one footing the bill?

That’s the question underlying a new study of the Harris County Public Defender program. Harris County was the last major urban county in the U.S. to get a public-defender program, which in 2011 started handling a small fraction of the county’s 70,000 indigent defense cases a year. The rest are still dealt with the old way: assigned to a rotating cast of Houston attorneys who are paid little per case, and whose average caseload far exceeds recommended maximums for effective counsel.

Comparing results between the public defender and traditionally appointed counsel doesn’t just make the former look good—it makes the latter look terrible.

The study found that felony public defender clients were acquitted three times as often as those with assigned counsel. Misdemeanor public defender clients with mental illness saw their cases dismissed five times as often, and both felony and misdemeanor defendants represented by public defenders were more likely to have their cases taken to trial than end in a plea deal.

These results aren’t mysterious. The study’s authors at the Council of State Governments Justice Center, a national nonprofit with an office in Austin, chalk them up to time and money. The Harris County Public Defender program is staffed by experienced lawyers who are paid a salary and prevented from taking cases in excess of national standards. Assigned lawyers in Harris County are paid per docket, and significantly less than in other urban counties in Texas. Nothing prevents them from taking on more clients than they can effectively defend.

For example, in 2012, almost half the indigent felony defendants in Harris County were represented by lawyers carrying more than the nationally recommended standard of 150 felony cases per year. And while the standard for misdemeanors is 400 cases a year, the top 10 percent of assigned attorneys in Harris County took on an average of 632 cases each. That may be because the county pays an average of $84 per misdemeanor case—little more than half of what Travis and Dallas counties pay.

The additional time Harris County public defender lawyers spend on each case gets better results, but it requires more money. For misdemeanor cases, the public defenders cost the county almost eight times as much as assigned counsel; in juvenile cases, they cost nine times as much. Felony public defender cases averaged about 1.7 times the cost of assigned counsel, in part because of issues of scale. (Public defenders took on more than half the county’s appellate cases in 2012, and did so, on average, more cheaply than assigned counsel.) But the public defender program is handling only 4 to 8 percent of the county’s misdemeanor, juvenile and felony cases. And while expanding the program will bring per-case costs down, the public defender program may never be as cheap as the assigned counsel system.

Harris County received grants to start its public-defender program, but those will end in October 2014. The county then will have to choose whether to pay rock-bottom prices, or pay for better results for people who’ve hit rock bottom.

vote

Houston voters last night decided to keep Mayor Annise Parker and to destroy the Astrodome. While those were the headline votes, the more interesting news came further down the ballot.

Parker, the city’s first openly gay mayor, was elected to a third term with relative ease, capturing 57 percent of the vote despite a field of nine candidates. Parker had the advantage of a strong city economy and an electorate kind to incumbents; the last four Houston mayors have served at least three terms, the current limit.

Parker’s main challenger, Ben Hall, took just 28 percent. Hall brought a formidable personal fortune to his campaign, but also a history of IRS trouble, much of it recent. That probably would have been enough, but Hall wasn’t helped by a ham-fisted media strategy, such as holding a press conference about crime rates at the site of a recent murder. Then, when the Houston Chronicle refused Halls’ request to bring outside media to attend its traditional candidate screenings, Hall cancelled 15 minutes before the event and released a statement calling the Chronicle a “megaphone for the interests of Ms. Parker and her cronies.” Bad form all around.

While all the statewide propositions passed, Harris County split the vote on two hotly debated propositions of its own. Prop 2, which lost with 47 percent, sought to issue $217 million in bonds to turn the disused but iconic Astrodome into an event and exhibition center. Early results predicted the defeat, but Twitter was still abuzz for hours with locals mourning the outcome, sharing pictures and stories of the Dome, and cursing Houston’s habit of choosing destruction over renovation.

Prop 1, to spend $70 million on a new joint inmate-processing center, passed by only 456 votes out of more than 224,000 cast. The center will be built across the street from the Harris County Jail and handle all bookings for both city and county, which advocates say will speed the process for all involved and allow more systematic application of programs providing mental health, substance abuse, and housing assistance. Critics point out that it’s a jail, that overcrowding should be solved by policy changes rather than new spending, and that the only reason it’s got a long name and so many bells and whistles is that voters rejected similar proposals in 2007 and 2009.

As expected, Houston City Council District A incumbent and certified character Helena Brown was forced into a runoff with Brenda Stardig, whom she defeated in a runoff two years ago. Brown took 38 percent of the vote, while Stardig had 29. Newcomer Mike Knox, a former police officer, got an impressive 20 percent. Knox has been critical of Brown since long before he became a candidate and seems likely to throw his support behind Stardig, suggesting Brown’s days as Houston’s watchdog against U.N. power grabs are numbered. Sad, really.

Speaking of power grabs, a controversial proposition out of Pasadena, in southeast Harris County, appears to have passed by just 87 votes. Prop 1 will make two of the city’s eight single-member districts at-large, a move critics say is intended to dilute minority voting power in the increasingly Hispanic north side. The Justice Department shot down a similar scheme there last year, but without the Voting Rights Act’s pre-clearance requirement—scuttled by the U.S. Supreme Court earlier this year—it was promptly revived. And now it has passed.

Helena Brown

Over the past few weeks, Ted Cruz has inflamed the national imagination with either presidential or revenge fantasies, depending on whom you ask and whether they work at NASA. But with the shutdown over (for now) and the Republican Party’s approval numbers hovering just above syphilis, political insiders who have a real problem living in the moment are wondering what’s next for Cruz. The infant-faced freshman senator has five years of job security left, which is probably more than some folks at NASA. But then Cruz will have to reapply for his position, and it’s anyone’s guess what his résumé will say under “Objective:”.

After all, it’s one thing to campaign on “NO.” It’s another to govern on it. But Helena Brown could have told Cruz that.

Remember Helena Brown? The freshman Houston city councilmember from District A rode from obscurity to (sort of) glory two years ago on a dry heave of tea party support, defeating the incumbent, Brenda Stardig, who’d had the audacity to vote for a drainage fee in her flood-prone district. Brown quickly made a name for herself not by accomplishing anything but by opposing things, often alone and to no effect. (Read the full Observer feature on her exploits here.)

During her first six months in office, Brown voiced the solitary “no” vote on the 16-person council more than 200 times, often for projects in other members’ districts. You can imagine how popular this made her. And she used these “no” moments to speechify, turning a vote against energy-efficient buildings into a stand for American sovereignty, and a vote against birth control for low-income women into an endorsement of teaching the Bible in schools. She also practiced one-woman obstructionism, often using parliamentary procedures to delay city business other members considered routine and necessary.

Sound familiar?

But while Cruz has years to learn whether this shtick delights voters as much in practice as it does in theory, Brown is about to find out. Houston’s municipal elections are November 5th and early voting starts Monday. All city councilmembers are up for reelection, but only Brown’s seat is considered at risk, and the ousted Brenda Stardig is back for a rematch. A third candidate is expected to force a runoff between Stardig and Brown, whose last showdown was also a runoff—with eight percent turnout.

The question, then, is whether District A likes what it got.

After all, Brown’s performance was no sneak attack. She ran on a simplistic government-bad, free-market-good platform and that’s how she governed. Brown accomplished little for her district and also had several small-time debacles during her first year: high staff turnover, accusations of altered time cards, and a bizarre, city-funded trip to Korea. But she never wavered in her opposition to the things she felt needed opposing, however little good it did. On Wednesday, for example, after failing in her solo bid to decrease the property tax rate, she abandoned the council meeting saying she needed to attend to constituent concerns elsewhere.

After Brown’s election in 2011, Houston blogger Charles Kuffner wondered presciently, “It will be interesting to see how CM-Elect Helena Brown reconciles her professed political beliefs with the sort of things that constituents tend to expect to get done.”

In a visit with the Houston Chronicle editorial board a year ago, outgoing U.S. Senator Kay Bailey Hutchison made a similar observation about Cruz. She warned that he was “going to have to choose early between being loyal to Jim DeMint and Mike Lee and the needs of the people of Texas.”

That dichotomy makes sense in the old world, where the government was considered a necessary evil instead of just evil. But in the new world, no such reconciliation may be necessary. If professing beliefs is what Brown’s base wanted—representing her constituency ideologically, rather than in negotiations over potholes and playgrounds—they got it. Cruz, too, has delivered what he promised, which was to stand up to Washington.

So will District A keep Brown? Ted Cruz might want to watch and find out.

Pasadena Mayor Johnny Isbell
Pasadena Mayor Johnny Isbell.

Well, that was quick.

Mere months after the U.S. Supreme Court declawed the Voting Rights Act by undermining pre-clearance—the process by which the Department of Justice prevented potentially racist electoral shenanigans—at least three Texas counties are trying to do exactly what the law once stopped them from doing.

In Pasadena, an entrenched mayor has proposed redrawing City Council district lines to eliminate two of the current eight districts and make those seats at-large. At-large seats have historically been used to dilute minority voting blocs by expanding the voter base to include the majority. Critics say the plan is meant to check the power of the city’s growing Hispanic north side. The Justice Department used to be one of those critics and shot down a similar scheme in Pasadena just last year, but, with the pre-clearance requirement gone, the plan has already been revived.

In Galveston, a rejected proposal to slash the number of justice of the peace districts from eight to four has also risen from the dead. The Justice Department blocked the move last year because it eliminated one of the two JP districts in which African-American and Hispanic voters constituted a majority, and because three white Galveston County commissioners hatched the idea with no input from the fourth commissioner, who is black. But with shame and originality in short supply, the Anglo trio has now trotted out the same scheme, prompting a coalition of black and Hispanic constables, justices of the peace and Galveston County residents to file a federal lawsuit.

And in Beaumont, litigation and at-large districts combined in a convoluted plot to oust three of the four black school board members from a school district that is almost half black.

In brief: During the last school board election, three white candidates lost to three black incumbents. Unwilling to let the democratic process stand in the way of their civic duty, the three losers filed candidacy papers for a special election that had yet to be announced. Then they waited for the filing deadline to pass and convinced a state court to call said special election. Obviously, the three black incumbents hadn’t announced candidacy for the seats they had just won because they weren’t tipped off about the impending special election.

The Justice Department filed a temporary injunction to halt the election, but then came Shelby Co. v. Holder, the Supreme Court decision that said Texas is no longer subject to the pre-clearance requirement. Now the losers of the Beaumont school board races are suing to replace the incumbents outright.

When the Supreme Court upheld the Voting Rights Act in 1966, it cited a “pervasive evil” committed through “unremitting and ingenious defiance of the Constitution.” While the levels of ingenuity may vary, unchecked power grabs like these will likely return to pervasion, unremitting.

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Russell Rios was 19, attending college, and working at a bank. He was also accused of stealing two iPhone cases from a Conroe Walmart in the early evening on July 31.

Conroe Police Sgt. Jason Blackwelder wasn’t on duty. He was in plain clothes but carrying a gun. When Rios broke away from Walmart staff and ran into a wooded area beside the store, Blackwelder chased him.

There, Conroe police say the two got into a “violent struggle” in which Rios choked Blackwelder until he was afraid he would pass out.

“This young man, he’s five-foot-seven, 140 pounds,” says Cade Bernsen, a lawyer for the Rios family. “String bean. And this cop is about six-foot, 190, 200 pounds. [Conroe police] said, ‘Oh, you know, he was choking the officer and the officer had to fire in self-defense.’ I just don’t see any scenario where that happens.”

Especially, Bernsen says, since Rios was shot in the back of the head.

“We have photos. That’s the only hole in his body. It’s not like there was an entry and an exit wound and you could get confused as to where he was shot,” Bernsen says. “The bullet actually went through his head and hit his forehead but didn’t come out. The bruise is on his forehead. You can see the bullet mark.”

Bernsen says he only has the photos because the funeral director who received Rios’s body that night “called the family and said, ‘Something is wrong. I’m telling you, something is strange. Do I have permission to take photos of the body before they do the autopsy?’ Which is also strange, because the body went from the scene to a funeral home and from the funeral home to a medical examiner.”

A grand jury in Conroe agreed. On Friday, it indicted Blackwelder on three counts, including second-degree manslaughter, felony tampering with evidence, and making a false report.

Blackwelder’s indictment may come as a surprise to regular readers of Dateline Houston because the last time a Harris County grand jury indicted a police officer for a shooting was in 2009. That officer—who shot an unarmed man three times in his own front yard mere seconds after arriving at a scene where no crime had occurred—was found not guilty of assault by a public servant.

Tragically, that’s not because Houston police rarely shoot unarmed people.

In June, a Harris County grand jury declined to indict the Houston police officer who shot and killed Brian Claunch, a one-armed, wheelchair-bound man with mental illness who threatened the officer’s partner with a ballpoint pen.

Last August, a grand jury cleared the Houston police officer who killed Blake Pate in events similar to the recent death of Jonathan Ferrell, a man shot by police in North Carolina as he sought help after a car accident. On Christmas Day of 2011, Pate was in a wreck while leaving his family’s home. He was unarmed, sober, and had no criminal record. A lawyer for Pate’s family told the Houston Press, “Blake appeared to be disoriented because he’d just been in a car accident. He started to the nearest streetlight. Along the way, Sergeant Curtis Hampton of the Houston Police Department intercepted him.” Hampton says a struggle ensued, he ended up on his back, and, fearing for his life, shot Pate three times.

A Texas Observer investigation found in the last six years, not a single Houston police officer has been disciplined for shooting a person or animal. It also found that although most complaints against HPD come from other officers, very few officers are punished, most punishments are written reprimands, and HPD officers—even those like Curtis Hampton—are almost impossible to fire.

Money and medicine

The elevator of the Harris County Jail has no buttons. As I step onto it with Dr. Michael Seale, executive director of health services at the jail, he continues to speak with intense focus but raises one hand in a peace sign. The two other men with us also give the peace sign. When I frown in confusion, Seale points at a surveillance camera in the elevator’s upper corner. “I’m telling them the floor we want,” he says.

Oh.

The second floor of this, Texas’ largest jail, also serves as the state’s largest mental health facility. A quarter of its 9,000 prisoners take some kind of psychotropic medication and are assigned to graduated levels of care, like at a hospital. Guards in the intermediate and acute care areas wear more casual uniforms to denote a therapeutic setting and get special training to recognize and deal with psychiatric symptoms. But while Dr. Seale and his staff are national leaders in handling the complex challenge of mental illness among prisoners, their work struggles to address the crux of the problem: Many people wouldn’t become inmates if they weren’t suffering from untreated mental illness.

Yesterday, the Wall Street Journal noted this problem with a brisk article titled, “The New Asylums: Jails Swell With Mentally Ill,” (behind paywall). The piece has some quick-and-dirty historical context and a 23-state comparison of corrections populations and spending related to mental health.

The Journal writes, “Two centuries ago, reformers were disturbed to find large numbers of the mentally ill in jails, paving the way for the development of state-run institutions.” But institutions bred abuse and neglect, so when advances in medication made it possible, social policy moved toward community-based care.

The problem is, community-based care requires facilities and public funding and those things can look like handouts. Most places didn’t fund their community-based programs well enough to meet the needs of people who once would have been institutionalized, so those people have psychiatric crises, are picked up for largely nonviolent crimes and (if they’re lucky) get treated in jail. Once stabilized and released, they still don’t have access to medication, so they relapse and end up in jail again.

Everything old is new again.

Texas ranks next-to-last in the nation in mental health funding, trailed only by Idaho. Fully 29 percent of Idaho’s inmates have a mental health problem according to the Journal’s survey of state corrections departments. Only 17 percent of Texas inmates have an identified mental health issue, which sounds pretty good until you consider that Idaho has about 7,400 inmates, total. Texas has almost 151,000.

But that number isn’t as high as it used to be. One of the contributors to Texas’ slowly dropping incarceration rates is a growth in diversion programs that address problems like addiction and mental illness.

Harris County, for example, recently doubled its number of crisis intervention response teams, which include trained deputies and mental health clinicians who answer 9-1-1 calls where mental illness may be a factor. The Harris County Sheriff’s Office reports that the teams handled more than 3,000 calls for service in the last two years.

“Helping Harris County residents with acute mental illness to heal would be reason enough to operate this pioneering program,” said Harris County Sheriff Adrian Garcia in a statement today announcing the new teams. “But CIRT also makes our community safer and saves taxpayers money by stopping the revolving door” of “jail without long-term treatment.”

Getting people who call 9-1-1 into treatment facilities instead of the second floor of the Harris County Jail is undoubtedly progress. But the question remains: When will Texas fund its community-based health care programs so that fewer of those emergency calls emerge?

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Jen Reel
a Texas inmate on Death Row

Today, in the nearly empty Texas capitol, a man who has survived two execution dates held up a 450-page report on the death penalty and shook it.

“I lost 18-and-a-half years,” Anthony Graves said. “Had this study been done 20 years ago, I probably wouldn’t be here today.”

Graves, who spent more than a decade on death row before being exonerated, was the featured speaker at this morning’s panel presenting the findings of the Texas Capital Punishment Assessment Team. The team, organized by the American Bar Association, spent two years analyzing Texas’ death penalty system.

Graves summed up their work. “We have a failed system top to bottom,” he said.

Indeed. The team, made up of lawyers, professors, a judge, a private citizen, and former Texas Gov. Mark White, identified 13 areas in which Texas fell short of best practices—or even, as Paul Coggins put it, short of “adequate practices.”

“If Texas is going to have a death penalty, it has to be the fairest one we can craft,” said Coggins, a former U.S. Attorney for the Northern District of Texas. He emphasized that while the ABA had organized the team, its members were all Texans who “looked for Texas solutions to a Texas problem.”

The Texas solution, it turns out, is to do at least some of what other states are doing—banning the execution of people with intellectual disabilities, for example, and using science to evaluate intellectual disability. Or using science at all.

“Texas can’t rely on junk science in capital cases that a judge wouldn’t allow in a slip-and-fall civil case,” Coggins said. And yet it does. For example, in the sentencing phase of capital cases, juries are first asked to decide on a defendant’s “future dangerousness,” which Coggins characterizes as “totally reading tea leaves.” Besides the unscientific nature of predicting future behavior, capital crimes in Texas are always sentenced to either death or life without the possibility of parole, meaning in neither case is a defendant going to be released into society. That makes the question of “future dangerousness” moot, but by posing it before addressing any aggravating or mitigating factors during sentencing, juries are primed to believe that if they think a defendant dangerous, the death penalty is appropriate.

Such is the granularity of the ABA report, which makes recommendations on every stage of the capital punishment system. Law enforcement should use model practices when dealing with eyewitnesses; interrogations should be videotaped; biological evidence should be safely preserved and defendants should be able to have it tested. Crime lab standards should be standardized and test results verified independently and often. Texas should use national standards for arson investigations, give juries better instructions, and provide adequate counsel for defendants in every stage of the process.

Yet even if these and all the other recommendations were all followed, Anthony Graves would not be satisfied.

“For years, we’ve asked the question, ‘Do you believe in the death penalty?’ he said. “I don’t care if you believe in the death penalty. That’s between you and your God. The question is, does the death penalty work?”

Graves held up the massive report again. “This says that the death penalty cannot work. Human error will not allow you to get it right every time. And if you can’t get it right every time, you have no right to be playing with the lives of other people.”