Texas still has a ways to go for fair justice

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By Sen. Rodney Ellis | for the San Antonio Express-News | November 3, 2013

Texas has made significant steps toward improving its criminal justice system in recent years, but we have a long way to go on the path to providing Texans the reliable, effective and fair justice they deserve.

Reliable and accurate justice

At the bare minimum, Texans deserve an accurate and reliable justice system — one with proper checks and balances and transparency to make sure all relevant facts come to light, and one based on evidence that is, in turn, based on real science and best practices. Adequate procedural safeguards must exist to ensure dependable verdicts. Failing to uphold those basic principles creates the heightened risk of convicting the innocent and allowing true criminals to remain free, undermining public safety as well as public trust in our system of justice.

Unfortunately, based on verified mistakes, Texas leads the nation in the shameful category of proven wrongful convictions. Progress has been made on the heels of these tragedies — with reforms ranging from eyewitness identification procedures to the creation of the Forensic Science Commission — but many of the leading causes of wrongful convictions remain completely unaddressed.

There are essential advances Texas needs to make to ensure we have evidence and results we can trust in our justice system. These include specific changes like requiring the recording of interrogations to improve the reliability of confessions and establishing better scientific standards for what we accept as evidence in our courtrooms. They include also broader measures such as creating an innocence commission with experts to consistently review and evaluate our system, and make recommendations to improve the integrity of justice.

Effective justice

Our criminal justice policies should effectively improve public safety and efficiently utilize taxpayer dollars. That seems basic enough. But Texas has historically been criticized for its wasteful, ineffective and overly “tough” approach to criminal justice that has too often relied on incarceration first and asking questions later.

The good news is we’ve made strides in recent years. We now utilize more alternatives to incarceration that have reduced the prison population, saved money and been more effective at reducing crime, so that Texas no longer has one of the nation’s — and world’s — highest incarceration rates.

The bad news is that despite these steps, we continue to over-rely on incarceration as the primary means of addressing low-level drug use. Drug users — not dealers or violent offenders — accounted for almost a quarter of new prisoners in state facilities last year. Plus, we still have the fourth highest incarceration rate in the U.S., far higher than most other populous states, and with far more total people in prison than any other state in the nation.

Spending billions of dollars to incarcerate thousands people for lower level offenses might be justifiable if it was actually effective at making our communities safer. But study after study proves that incarceration is far less effective at reducing drug use or improving public safety than less expensive, less destructive, evidence-based alternatives such as pre-trial and pre-arrest diversion programs.

Fortunately, there is increased momentum to address this problem. In recent months, we’ve witnessed diverse and influential voices ranging from U.S. Sen. Rand Paul of Kentucky to U.S. Attorney General Eric Holder publicly agree the war on drugs has been ineffective public safety policy, wasted billions of taxpayer dollars and had a particularly unjust and disparate effect on minorities.

Here in Texas, I have advocated being smarter on crime by diverting more nonviolent drug possession offenders into alternatives to incarceration that have proven to be successful at reducing crime and drug use in our communities.

Advancing this smart-on-crime approach will put Texas on the path to a more effective and efficient approach to justice.

Fair and equal justice

The promise that every person, rich or poor, stands equal before the law is at the root of the American ideals of liberty and justice. Ensuring that promise is a reality requires that all people have their rights equally protected by quality legal representation when they are accused of a crime.

Unfortunately, in Texas, quality of justice is too often contingent on your wealth and the attorney you can afford.

Again, this is an area where Texas has made progress but still lags woefully behind in establishing structural safeguards and investing the resources necessary to truly protect the Sixth Amendment right to counsel for all Texans.

Most Texas counties continue to utilize an antiquated, court-appointed counsel system where a judge chooses your lawyer if you’re poor and even decides whether an attorney gets resources to investigate a case. Allowing a judge to have that level of control over a defendant’s attorney creates an inherent conflict and risks interfering with an individual’s freedom to have independent representation.

These structural impediments to providing quality counsel are compounded by the failure to invest adequate resources for indigent defense. Texas ranked an embarrassing 48th out of the 50 states in indigent defense investment in 2010. As a result of this underfunding, attorneys burdened with overwhelming caseloads, with some even handling up to 900 cases in a single year. This translates into inadequate time to visit with clients, conduct sufficient research, or do meaningful investigation.

The outcome is a fundamentally unfair system of legal representation that places innocent people at risk of being wrongfully convicted simply because they are poor.

That’s not a system worthy of Texas.

Again, easy fixes are available. Texas needs to encourage and support the creation of additional public defender systems to handle indigent defense.

Evidence proves that public defender systems are the most cost-effective way to deliver quality indigent defense services and ensure that low-income Texans, at the very least, receive some semblance of equal justice.

Public defenders improve the quality of representation because they are independent of the judiciary and provide an institutional infrastructure that builds accountability, just like a prosecutor’s office. Additionally, public defenders use tax dollars more efficiently than court-appointed systems because economies of scale and non-duplication of services allow them to save money.

That is why more Texas counties have recently moved to utilize public defender offices. Texas simply needs to provide the financial and institutional support to continue that trajectory. Since we spend more than any other state to lock people up, the least we can do is invest in making sure we are locking up the right people in a fair and just manner.

Quality justice

Dr. Martin Luther King Jr. said, “the arc of the moral universe is long, but it bends toward justice.”

But that arc doesn’t bend on its own. It’s our responsibility, working together, to uphold and advance policies that create a reliable and effective system that protects the innocent, brings the guilty to justice, and is instilled with the fairness and integrity that justice demands and Texans deserve.

It’s important that we do this, not only to honor the fundamental values of our Constitution, but also because real lives are destroyed every day that we fall short.

State Sen. Rodney Ellis, D-Houston, chairs the board of directors for the Innocence Project and has authored numerous criminal justice reforms.

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