A Conversation with Alan Berlow

Sleeping Lawyers, Mass Executions, and George W. Bush's Abdication of Responsibility

Alan Berlow ["Lethal Injustice," TAP Vol. 11 Issue 10] is a former National Public Radio reporter who frequently writes on capital justice issues. He is also the author of Dead Season: A Story of Murder and Revenge (Vintage Books).

Q: How legitimate is George W. Bush's claim -- frequently used to distance himself from actual executions -- that he essentially lacks the power to halt an execution?

A: It's legally legitimate. The law says that without a recommendation from the Texas Board of Pardons and Paroles, he has no authority to act on a death sentence. So he can say, in any of the cases that have come before him, that since the Board recommended clemency in only one case, he had no authority to act otherwise. I don't think that's legitimate, because Bush has appointed all 18 members of the Board. Many of them are political appointees, people with party affiliations -- in short, people who would kiss the ground Bush walks on. If Bush made it known to them that he had a concern about any individual case, I think the Board would genuflect and give him the recommendation that he wanted. The fact is, he likes the deniability that he has.

Q: Has Bush waffled on the issue of public defenders? He vetoed a bill that would have provided them in Texas, then claimed on Meet the Press that he didn't remember vetoing the bill, only to turn around on the same program and announce his support for public defenders.

A: I think his support for public defenders is a sham. The bill that he vetoed would have encouraged public defenders in a state that has 254 counties and three full-time public defender programs. What Bush supports is court-appointed attorneys, which were preserved as a result of his veto. Anyone who's studied the public defender system knows that full-time public defenders provide a generally higher level of legal advice that the court-appointed lawyers that Bush favors.

Q: Bush often says that he is comfortable executing anyone who has had "full access to the courts" in Texas. What is the weakness in that position?

A: The weakness is that Texas has arguably the worst system of providing counsel in the country. For him to say that people have been given full access to the courts when some of them have sat [in jail] without attorneys for months is ludicrous. I'd like Bush to tell us what the average court-appointed attorney in Texas is paid. Some of them are paid $150 to handle a felony case. There are some who handle hundreds of cases a year to make a living. They're what's called in the business "meet 'em-greet 'em-plead 'em" lawyers; they plead everybody guilty, they don't put up the appropriate defenses, they don't put on trials, and they essentially tell their clients what they're going to plead and how long they're going to serve.

Q: The statistics you cite in your article show that indigent defendants and those with court-appointed lawyers have a much greater chance of going to jail than those with private attorneys. Is it fair to conclude that perhaps it's the worst lawyers and not the worst criminals that are drawing death sentences in Texas?

A: Yes, I think that's true. Stephen Bright [director of the Southern Poverty Law Center] has made precisely that point, that people who have the worst lawyers are the ones who end up in prison, and I think with Texas' enthusiasm for the death penalty that that's certainly the case here.

Q: Texas courts have upheld convictions of capital defendants whose attorneys have actually slept during their trials. One judge famously noted that "the Constitution doesn't say the lawyer has to be awake." Is there a general lack of public outrage in Texas over issues of capital punishment?

A: I'd rephrase the question to ask whether there's a general lack of outrage over due process. Clearly, there's no outrage over capital punishment. Nationwide, support for capital punishment has hovered at around 70 percent. A February 24th Gallup poll showed that American support for the death penalty is now at 66 percent, the lowest level since 1981. But in Texas, those numbers have gone as high as 80 percent. I think the lack of interest is in the justice system itself and the fact that poor people in this country really don't have a Sixth Amendment right to counsel.

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Q: The last step before execution in Texas is a review by the Texas Board of Pardons and Paroles, what Bush has called the "fail-safe." Yet despite his apparently unshakable confidence in the Board, they have been averse to any sort of public scrutiny. Why is this, and has there been any effort to open up the proceedings?

A: There has been some protest over the secrecy of the proceedings. The Board's explanation is that if they open it up, it's going to delay the process. Their reluctance to open up the process is a factor of the huge volume of cases -- not just death penalty cases -- they have to consider. That isn't to excuse it. I think it should be opened up. But that's the explanation they provide. One solution might be to take these death cases out of the hands of the Board and create some alternative method for reviewing them.

Q: Bush seems determined to have it both ways. When asked about the death penalty, he gives his boilerplate response about belief in capital punishment. When pressed, he distances himself from responsibility by deferring to the review board. With Al Gore also supporting capital punishment, is there any reason to believe that Bush will be forced in any substantive way to defend his record on capital punishment?

A: He's in a more vulnerable position than Gore, because as a governor he does have this authority, which, as you point out, he tries to use both ways. But I think what reporters should focus on is how the system in Texas works. If Bush is going to get up there and say, "I know that no innocent person has ever been executed during my governorship," the question becomes, how does he know this? What has he done to evaluate these cases? My sense is that the review process is negligible for the overwhelming number of these cases.

Q: In 1995, Bush signed legislation designed to limit appeals and speed up the time between sentencing and executions, stating that he believes in "swift and sure punishment." He has acted on "swift." Has there been any reform aimed at making death sentences more "sure"?

A: The problem is that there's an inherent contradiction between swift and sure. If you speed up the process, you increase the chance of killing someone who might otherwise have been exonerated. Many people who have been found innocent -- including one in Texas -- were there for more than the seven years that Bush would like to limit death row stays to before prisoners are executed. The only balance has been some improvement in the right to counsel in post-conviction proceedings. But I think the true indicator in Texas is that the state provides virtually no money to indigent defendants.

Q: Last month, Vermont Senator Patrick Leahy introduced a bill that would require national minimum-competency standards for court-appointed lawyers. Does the best hope for reform in Texas lie at the federal level?

A: Unfortunately, I don't think the Leahy bill is likely to go anywhere. There's one aspect of the bill -- DNA testing -- that has bipartisan support. It's inexpensive, and it's obviously a clear issue of fairness. But the costly part of the bill, and the controversial part, takes the appointment of attorneys for indigents away from judges and gives it to independent appointment authorities.

Q: A Chicago Tribune poll taken last week showed that support for capital punishment in Illinois has dropped to 58 percent, down from 76 percent a decade ago. This comes as a result of the highly publicized exonerations of 13 innocent men on death row. Bush has presided over more that 120 executions in his time as governor. Is there any evidence to suggest that support for the death penalty in Texas is weakening?

A: I haven't seen any. There was a brief drop in public support for the death penalty in Texas after the execution of Karla Faye Tucker, but it's gone back up. And there was no similar drop after the execution last month of another woman, Betty Lou Beets.

Q: The alarming state of capital justice you've documented apparently doesn't bother most Texans. How much of the responsibility lies with Bush, and how much do you attribute a political climate that tolerates the current system?

A: I think it's both. It's not just Bush. What's telling about the Texas system is the legislature -- as bad as the system is -- unanimously passed a bill to provide an attorney within 20 days to anyone who is arrested. Most states provide counsel within 72 hours. The state of Texas wanted legislation that would encourage the creation of more public defender offices. They knew the current system was inadequate. They wanted a system that didn't stink as much, that wasn't quite as corrupt. They took these very, very modest steps. And Bush vetoed it. To me, that says something about Bush's notion of justice -- he is simply unwilling to take even the most minimal steps to improve a system that is rotten.