Texas Retooling Criminal Justice in Wake of Furor

By Jim Yardley

Houston -- 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 of 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 capital punishment. "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 it 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; that 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 local judges set execution dates, there is no way to predict how many will be scheduled in any 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 reforms became apparent when bills to place a two-year moratorium on executions passed committees in both houses, before eventually dying. Such legislation had never even been given a committee hearing in the past.

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 the bills were 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," Mr. McClellan 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, 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 take control away from county judges, but would create minimum standards for lawyers appointed by 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 person 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 the state has already executed six mentally retarded inmates while seven more are sitting on death row, based on I.Q.'s of 70 or below. 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 retardation.

"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.

District attorneys, however, 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."

Copyright © 2001. New York Times Company. All rights reserved.

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