death penalty Texas

American Bar Association Releases Texas Capital Punishment Assessment

Today the American Bar Association’s Texas Capital Punishment Assessment Team released the results of its more than two-year study of the fairness and accuracy of the death penalty system in Texas.  The report finds that the Lone Star State is significantly out of step with better practices implemented in other states that allow the death penalty.

According to the report, Texas fails to rely upon scientifically reliable evidence and processes in the administration of the death penalty, and it provides the public with inadequate information to understand and evaluate death penalty cases. The 500-page report, which analyzes Texas’s laws, procedures, and practices, recommends numerous reforms to correct shortcomings in the administration of the death penalty in Texas. Here are some highlights and key recommendations:

  • Jury Instructions: Observing that “Texas’s capital sentencing procedure is remarkably different from that of other jurisdictions,” the report recommends that the state abandon the use of the “future dangerousness” special issue in its instructions to capital juries.  (This is the requirement for jurors in death penalty cases to determine whether “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”  Confused?  So are many jurors.)
  • Mental Retardation: Texas should enact a statute barring the application of the death penalty to persons with mental retardation, providing a definition that conforms to the American Association on Intellectual and Developmental Disabilities and requiring a pre-trial determination by a judge.  Despite a U.S. Supreme Court ban on the practice, Texas continues to sentence and execute people with intellectual disabilities.
  • Proportionality Review: The Court of Criminal Appeals should conduct a thorough proportionality review of every death sentence in order to protect against the random and arbitrary imposition of the death penalty.  Unlike the majority of death penalty states, Texas does not engage in any form of proportionality review in capital cases. Just 20 of the 254 counties in Texas account for over 76% of those sentenced to death.
  • State Habeas Corpus Proceedings: The “vast majority of Texas death row inmates have not received the benefit of the improvements to fairness and due process that have developed over the past several years,” and should receive new sentencing hearings so that their punishment can be reassessed under the constitutional standard mandated by the U.S. Supreme Court.
  • Clemency: Texas should create a meaningful clemency process, including requiring the Board of Pardons and Paroles to conduct public hearings and adopt guidelines for evaluating clemency petitions. The report points out that since 1982, Texas has executed 503 people and commuted the sentences of just 2 inmates facing imminent execution.  By comparison, Virginia, the state with the second highest number of executions after Texas, has executed 110 people and commuted the sentences of 8 individuals.
  • Quality of Counsel: The report contains extensive recommendations related to the qualifications, selection, compensation, and evaluation of capital counsel at every step of the process.

The Texas Capital Punishment Assessment Team is comprised of former judges, a former prosecutor, a former governor, practitioners, and legal scholars.  It is the Team’s “unanimous view that so long as Texas imposes the death penalty, its system for doing so must be comprised of sufficient checks and balances to ensure fairness in the selection of offenders to receive the death penalty, reduce to the extent possible the risk of executing the innocent, and preserve public confidence in the administration of criminal justice.”

This report compellingly illustrates that there are countless areas in which the Texas death penalty system “falls far short of this imperative.”

The ABA has conducted similar assessments in 11 states over the last decade.  You can read the full report on Texas, which includes a 20-page executive summary, at

Read initial coverage of the report from the Texas Tribune.