Atlantic Grantees in Texas Work to End a Lethal Lottery

When I arrived in Austin, Texas, the day after Labor Day in 1984 to take up my post as Executive Director of the Texas state branch of the American Civil Liberties Union, a 30-year old Yankee who’d never set foot in the state before my job interview the previous spring, I was in for a shock. My predecessor and his assistant, I quickly learned, spent the majority of their time on the phone to law firms in New York, San Francisco, Chicago and other big cities outside the state pleading with them to take on, without fee, the appeals of inmates scheduled for execution on death row. In some cases these prisoners were weeks away from an execution date but hadn’t met or talked with a lawyer since their conviction at trial, often many years past. It seemed that every cell at Huntsville, where death row inmates were sent to await lethal injection, had the ACLU’s number written on the wall.

I was determined to do something about this appalling lethal lottery. We worked with national civil rights groups to get the best representation possible from out-of-state lawyers – one of my colleagues in that effort, Deval Patrick of the NAACP Legal Defense Fund, is now the Governor of Massachusetts – while trying to address the systemic problem. Finally we got the State Bar of Texas to take the representation crisis seriously, arguing that, whatever one’s position on the death penalty (and in Texas, it enjoys overwhelming public support), no one should be put to death without adequate assistance of counsel.

After much hard work over several years involving many strange bedfellows, Texas set up an agency to provide representation in capital appeals. Soon after, I left the state to move back to New York, feeling I’d played a role in accomplishing something in my four years as ACLU director.

But the story wasn’t over. The agency was staffed with terrific lawyers and they did their job so well that the prosecutors and other powerful death penalty advocates targeted it for elimination, and in time it was defunded, and things returned to the wretched status quo.

I tell this story at the start of this column to provide a frame for what follows. First, to point out that I have a personal passion, and some personal scars, with respect to the struggle to provide poor criminal defendants with counsel in Texas. Second, to underscore that change is hard, and for every step forward, you sometimes fall two steps back. And third, to show that when Atlantic determined to work on this issue a few years back, the situation it confronted was dire indeed.

I returned to Austin earlier this month with my colleague Rebecca Rittgers of our Reconciliation and Human Rights Programme to meet with the Texas Indigent Defense Coalition, which with significant Atlantic funding has made enormous progress. Here’s what they faced when they started.

More than 15% of Texas’s 22 million people live below the poverty line, most in rural areas. Texas is one of 16 states in the U.S. that require county governments to provide a majority of funding for indigent defense services. Each Texas county has its own protocol for providing legal defense to the poor, and most use a “low-bid, flat fee” approach with judges assigning cases to contract lawyers. These lawyers are provided few, if any, resources for critical discovery or investigation phases of the case, held to virtually no standards of representation, and given little oversight by the court.

Texas remains the death penalty capital of the U.S., stubbornly resistant to the downward trend in other parts of the country. The state prison in Huntsville was the setting for 26 of the 42 executions in the country last year. As the New York Times reported in December, over the last three years, the number of executions in Texas has been relatively constant, averaging 23 per year, but the state’s share of total executions nationwide has steadily climbed, from 32 percent in 2005 to 45 percent in 2006 to 62 percent in 2007.

Atlantic’s initial grant of $4 million over three years provided core support for a six-year coalition effort to reform indigent defense in Texas. The coalition includes the Texas Defender Service, my old employer the ACLU of Texas, The Texas Innocence Network, StandDown Texas, and the American Bar Association’s Death Penalty Representation Project. The Washington, D.C.-based Justice Project provides leadership and coordination to the coalition.

As someone familiar with the challenges of Texas, I’m amazed at what these dedicated and often brave advocates have achieved in a short time:

• The establishment in August of the West Texas Capital Public Defender Office, the first of its kind in the state. It will handle death penalty cases in an 85-county area in West Texas and serve as a model for similar offices in other regions of Texas.

• The protection of the mentally retarded from execution, through extensive strategic communications in support of the Texas Defender Service’s lawsuit resulting in the Supreme Court’s invalidation of Scott Panetti’s death sentence and clarification of standards for mental competency.

• It helped secure the rare gubernatorial commutation of a death sentence, and used the case and many others to highlight the unfairness of capital sentencing laws in Texas, obtaining more than 20 stays of execution.

• Most importantly, the Coalition is building on these cases to turn around public opinion in one of the toughest places in the nation, if not the world, to do it. Thanks to its efforts, last April the Dallas Morning News – when I worked in the state twenty years ago one of the most conservative papers in Texas – called for abolition of the death penalty, the second major newspaper to take that stance.

Ending the death penalty and assuring effective representation for the poor is a pillar of Atlantic’s commitment to protecting human rights in United States (while 133 nations have abolished the death penalty in law or practice, of the other countries in which Atlantic maintains offices, only Viet Nam continues executions) and the model we are supporting in Texas is similar to those we back in Michigan, Tennessee and New York. Little else that we do is so literally life-saving. If we can sustain and build on the progress the Texas coalition has made, Atlantic will have a proud legacy and a stain on America’s human rights record will begin to recede.

Gara LaMarche