New Report from Texas Defender Service Examines Ongoing Racial Disparities in Harris County Death Penalty Practices and Recommends Reforms

A new report from the Texas Defender Service (TDS) titled ​“Arbitrary and Capricious: Examining Racial Disparities in Harris County’s Pursuit of Death Sentences” was pub­lished on February 22, 2024 and is the lat­est in series of TDS reports on use of the death penal­ty in Texas. The report focus­es on Harris County’s out­lier death penal­ty prac­tices, both with­in the state and nation­al­ly. While more than half of the 254 coun­ties in Texas have nev­er imposed a death sen­tence, Harris County is respon­si­ble for most of the state’s cur­rent death row pop­u­la­tion. Aside from Texas, Harris County has exe­cut­ed more peo­ple than any state in the U.S. Of the last 21 peo­ple sen­tenced to death in the coun­ty, 20 peo­ple (95%) have been peo­ple of col­or, 15 of whom were Black men. Among these 21 cas­es, 17 post-con­vic­tion appeals cit­ing race-based bias dur­ing tri­al or sen­tenc­ing have been filed. The num­ber of new death sen­tences have decreased since District Attorney Kim Ogg took office in 2017; how­ev­er, of the three death sen­tences sought by D.A. Ogg, two were against peo­ple of color.

“Racism should play no part in how we admin­is­ter jus­tice in Harris County,” said Estelle Hebron-Jones, Director of Special Projects at TDS and the pri­ma­ry author of the report. ​“Historic data show that Black defen­dants are three times more like­ly to be sen­tenced to death than sim­i­lar­ly sit­u­at­ed white defen­dants. Twenty per­cent of death sen­tences against Black men have been per­ma­nent­ly over­turned due to errors. These num­bers show a his­to­ry of race-based prosecution.”

The report rec­om­mends that (1) state agen­cies, espe­cial­ly the Harris County District Attorney, imple­ment robust data col­lec­tion prac­tices, share the infor­ma­tion pub­licly, and use data-dri­ven insights to change pro­ce­dures; that (2) judges under­go evi­dence-based train­ing to under­stand racial bias; and that (3) state leg­is­la­tors pass a Texas Racial Justice Act to stream­line post-con­vic­tion review based on discriminatory practices. 

Published on the sev­en-year anniver­sary of Buck v. Davis (2017), in which the U.S. Supreme Court reversed a death sen­tence due to racist expert tes­ti­mo­ny, the report traces cap­i­tal punishment’s racist roots in the for­mer slave-hold­ing state. Harris County was the site of at least four racial ter­ror lynch­ings from 1882 to 1928. The report pro­vides many exam­ples of the racism his­tor­i­cal­ly preva­lent among edu­ca­tion­al, polit­i­cal, and judi­cial insti­tu­tions, includ­ing the Ku Klux Klan spon­sor­ing polit­i­cal can­di­dates in the 1920s and the Houston Bar Association only allow­ing white mem­bers from 1870 to 1965. 

The report “… pow­er­ful­ly expos­es the banal­i­ty of racism in Harris County’s crim­i­nal legal sys­tem,” said Innocence Project exec­u­tive direc­tor Christina Swarns, who argued Mr. Buck’s case before the U.S. Supreme Court. ​“This data pow­er­ful­ly under­mines the integri­ty of our court sys­tem and demands a sys­tem­at­ic com­mit­ment to under­stand­ing and address­ing the deep and arbi­trary racial dis­par­i­ties that per­vade and dis­tort the admin­is­tra­tion of justice.”