While the debate over capital punishment rages anew in Texas, new inmates going to death row have hit a 35-year low as prosecutors are pushing for fewer death sentences and, many believe, juries have become less willing to give them.Various factors have contributed to a stark decline in death sentences and a dramatic shake-up in the ranking of counties that use it the most.
The biggest game-changer appears to be the introduction of life without parole as an option for juries in 2005, according to several prosecutors and defense lawyers. The change in state law represented a huge shift for jurors in capital cases, who previously were responsible for choosing
either the death penalty or a life sentence in which a convicted killer could be eligible for parole in 40 years."With life without parole being a viable option now, [juries] feel a lot more comfortable that that person is not going to be let out back into society," Tarrant County District Attorney Joe Shannon said. "We are probably waiving the death penalty more times than we used to because we're trying to forecast the outcome of the case."
But because of the states growing list of exonerations via DNA evidence and other questionable convictions, some argue that juries are simply less willing to send someone to death row. State Sen. Eddie Lucio Jr., D-Brownsville, the author of the life-without-parole law, said prosecutors are trying to blame it for their troubles getting Texans to trust a scandal-ridden system.
It isn't life without parole that has weakened the death penalty," Lucio said. "It is a growing lack of belief that our system is fair."
In the 4 years since the introduction of life without parole, Texas death sentences have dropped 40 % compared with the four years prior, state records show. The number of slayings each year in Texas stayed largely unchanged during that period, according to the Texas Department of Public Safety.
Texas juries sentenced 13 people to death in 2008. Nine others have received death sentences this year, including Erick Davila, who was sentenced in February for gunning down a 5-year-old girl and her grandmother during a birthday party in southeast Fort Worth.
It's a far cry from 15 years earlier, when juries sent 49 people to death row.
"It's a government program thats putting a lot into a few cases," said Richard Dieter, director of the Death Penalty Information Center. "It's meant to show something about toughness, but even in Texas, there are very few death sentences a year now."
Inmates added to Texas death row, by year:
- 1974---8
- 1975---17
- 1976---23
- 1977---23
- 1978---39
- 1979---21
- 1980---23
- 1981---22
- 1982---28
- 1983---21
- 1984---21
- 1985---33
- 1986---40
- 1987---35
- 1988---32
- 1989---31
- 1990---28
- 1991---29
- 1992---31
- 1993---34
- 1994---42
- 1995---43
- 1996---37
- 1997---35
- 1998---43
- 1999---47
- 2000---28
- 2001---30
- 2002---35
- 2003---28
- 2004---25
- 2005---15
- 2006---11
- 2007---15
- 2008---9
- 2009---9
Life without parole
Before 1991, someone receiving a life sentence for capital murder in Texas could be eligible for parole in 15 years. State lawmakers increased the minimum to 35 years in 1991 and 40 years in 1993.
Activists spent years lobbying state lawmakers to give juries the option of life without parole. The law enforcement community pushed back, arguing that it would weaken the use of the death penalty as a punishment.
In 2005, Lucio passed his bill after a crucial rewrite. Instead of trying to allow life without parole as an additional option for juries in capital cases, the bill made the punishment a replacement for life with parole, although district attorneys could still offer defendants life with parole as part of a plea agreement.
With this new, harsher punishment, prosecutors now feel comfortable waiving the death penalty in more cases, and defense lawyers are often more willing to plea-bargain, according to lawyers from each side of the courtroom.
"You need a DA that' willing to offer life and a client willing to take life," said Phil Wischkaemper, a capital assistance attorney for the Texas Criminal Defense Lawyers Association. "We'e encouraging people to get these cases worked out and pled."
But some still believe that a capital murderer who avoids death row gets off too easy.
"I think anyone that's convicted of capital murder should be executed, period," said William "Rusty" Hubbarth, an Austin attorney and vice president of Justice For All, a victims' advocacy group. "I feel it's a deterrent. I feel it's justice and I feel that it's necessary. It's the ultimate sanction reserved for the ultimate violation."
Wrongful convictions
A competing theory for why death sentences have declined is that jurors have become more worried about sending an innocent person to death row.
Reports of exonerations have popped up regularly in the past three years. Dallas County District Attorney Craig Watkins' office has helped obtain exonerations for 20 wrongfully convicted defendants in Dallas County.
A poll from Rasmussen Reports released Thursday found that 73 % of Americans are at least somewhat concerned that some people may be executed for crimes they did not commit.
Researchers at the Texas Defender Service, a nonprofit group that aids defense teams in death penalty cases, say that in capital murder trials in which prosecutors sought the death penalty, the chances of the jury delivering a death sentence have dropped below 50 % this year. Anecdotally, lawyers say the chance of a death penalty conviction was much higher several years ago and throughout the 1990s.
Scott Phillips, an associate professor of sociology and criminology at the University of Denver who has studied the use of the death penalty, said death sentences have declined nationwide, suggesting that the option of life without parole is just part of the reason in Texas.
"People are obviously concerned about innocence," Phillips said. "People are concerned about cost. . . . People are concerned about racial disparity."
Alan Levy, the lead criminal prosecutor in the Tarrant County district attorney's office, said he believes that reports of questionable cases have affected juries.
"It plays a big role," Levy said. "People are very skeptical."
Levy was 1 of 3 members of the Texas Forensic Science Commission whom Gov. Rick Perry replaced in September, forcing the postponement of a widely anticipated hearing on whether outdated science was used in the murder trial of Cameron Todd Willingham, who was executed in 2004. The case has become a rallying point for death penalty opponents nationwide.
Levy said Innocence Project groups have done a great job of highlighting cases of wrongfully convicted Texans and driving the public debate. He said he credits them with "convincing the public that the system is much less reliable than it is."
Cost of prosecution
In the recession, the higher costs of pursuing the death penalty have become harder to ignore, and life without parole is a far cheaper alternative.
Death penalty trials are longer, with a punishment phase that takes more time and appeals that typically go on for years.
Pursuing life without parole from the onset can avoid millions in legal costs and settle cases quickly.
"You save a lot of money, a lot of time and you have a guarantee that this person will be incarcerated for the rest of their life," said Bill Harris, a Fort Worth defense lawyer who is president-elect of the Texas Criminal Defense Lawyers Association.
Gray County gave more ammunition to critics last month when it spent over $750,000 to try Levi King on a murder charge even though he was already serving a life sentence in another state. Prosecutors sought death, but the jury sentenced King to life without parole. County commissioners reportedly cited the trial costs as part of the reason they had to cut employee raises and increase the tax rate this year.
In Tarrant County, Shannon said he reserves the death penalty for the most serious crimes. Cost does not play a role, but he does weigh how a death penalty case will tie up his office's resources, he said.
"We do use the waiver of the death penalty probably more than we used to," Shannon said. "It doesnt translate to dollar bills. It translates into uses of limited resources."
Harris County slowdown
The trend has also come with a change in which parts of the state are securing the most sentences.
In Harris County, once known as the death penalty capital of the nation for sending more people to death row than most states, death sentences dropped nearly 70 % over the last 4 years, from 28 to 9, according to state records.
"In many more cases, we are opting not to seek the death penalty because life without parole means the person convicted will not get out of prison and that makes us feel much better that the public will be protected from such a person," said Maria McAnulty, the county's trial bureau chief.
Dallas County's and Bexar County's death sentences dropped by about half.
But Tarrant County's numbers have barely moved. The county had 9 death sentences in the last 4 years, down from 11 in the 4 years before.
Harris County and Tarrant County now share the title of the most death sentences in Texas in the past 4 years.
Levy attributes the county's smaller drop to the strict system that former District Attorney Tim Curry had for reviewing capital cases.
"We were always careful," Levy said. "We always believed that the death penalty should be used for the very worst of cases and that it exacted a tremendous toll on the system."
Tarrant County stands in contrast with Harris County, which has a history of pursuing more cases that were "death-eligible" but were not necessarily so worthy of the harshest penalty, Levy said.
"The lesson we're taking from it is our philosophy was the correct philosophy all along," Levy said.
Source: Fort Worth Star-Telegram, Nov.15, 2009
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