While the rest of America recoils from a brief love affair with the death penalty, Texas soldier on. Last year, as Adam Liptak reports in the New York Times, the Lone Star state accounted for 60% of the executions performed in these United States. That’s right, 60%!
Americans continue to support the death penalty, at least in theory. But the recent crop of DNA-based exonerations have given the nation pause. Why are we convicting so many innocent people; and why are so many of the exonerees black?
These questions are being asked in Texas as well. After all, some of the most shocking exonerations have occurred here. In fact, new Dallas County DA., Craig Watkins, has reversed the long-established practice of frustrating DNA analysis. DNA tells us when we’ve nailed the wrong person and reassures us in cases where we got the right guy.
So, why is the Death business still thriving in Texas? Politics. Politicians get votes by out-tuffing the opposition or by appointing “hang-’em-high” judges to appeals courts. Over the past few decades, the Texas Court of Criminal Appeals has evolved into a bad joke (see below).
The Texas prison system exploded after an unseemly “I’m tuffer’n you” spat between George W. Bush and Democractic incumbent Ann Richards in the 1990s. The generally sensible Richards forced herself to believe that prisons were okay because some addicts need enforced rehabilitation. Bush declared that prison, per se, was rehabilitation. The result was lots of addicts in the joint but precious little rehab for anyone.
Texas takes pride in its status as the death penalty state. Curiously, the growing pile of exonerations has, so far at least, had little influence on our appetite for death. Still, even here, the breezes of reform are beginning to stir. Shocking revelations about our juvenile justice system and chronic overcrowding in state prisons have raised eyebrows and furrowed brows from Houston to Amarillo. Is tuff enough? Maybe our obsession with death and detention isn’t having the desired effect.
Adam Liptak came to my attention when he covered the dramatic Tulia evidentiary hearings in the spring of 2003. He now has a weekly column in the Times and writes the occasional feature article on the legal system.
U.S. Disparity in Executions Grows as Texas Bucks Trend
Indeed, said David R. Dow, a law professor at the University of Houston who has represented death-row inmates, the day is not far off when essentially all executions in the United States will take place in Texas.
“The reason that Texas will end up monopolizing executions,” he said, “is because every other state will eliminate it de jure, as New Jersey did, or de facto, as other states have.”
Charles A. Rosenthal Jr., the district attorney of Harris County, Tex., which includes Houston and has accounted for 100 executions since 1976, said the Texas capital justice system was working properly. The pace of executions in Texas, he said, “has to do with how many people are in the pipeline when certain rulings come down.”
The rate at which Texas sentences people to death is not especially high given its murder rate. But once a death sentence is imposed there, said Richard C. Dieter, the executive director of the Death Penalty Information Center, prosecutors, state and federal courts, the pardon board and the governor are united in moving the process along. “There’s almost an aggressiveness about carrying out executions,” said Mr. Dieter, whose organization opposes capital punishment.
Outside of Texas, even supporters of the death penalty say they detect a change in public attitudes about executions in light of the time and expense of capital litigation, the possibility of wrongful convictions and the remote chance that someone sent to death row will actually be executed.
“Any sane prosecutor who is involved in capital litigation will really be ambivalent about it,” said Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association. He said the families of murder victims suffered needless anguish during what could be decades of litigation and multiple retrials.
“We’re seeing fewer executions,” Mr. Marquis added. “We’re seeing fewer people sentenced to death. People really do question capital punishment. The whole idea of exoneration has really penetrated popular culture.”
As a consequence, Mr. Dieter said, “we’re simply not regularly using the death penalty as a country.”
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 the number of total executions nationwide has steadily increased as the national totals have dropped, from 32 percent in 2005 to 45 percent in 2006 to 62 percent in 2007.
The death penalty developments that have dominated the news in recent months are unlikely to have anything like the enduring consequences of Texas’ vigorous commitment to capital punishment.
A Supreme Court case concerns how to assess the constitutionality of lethal injection protocols. While it is possible that states may have to revise the ways they execute people, executions will almost certainly resume soon after the court’s decision, which is expected by June.
Similarly, New Jersey’s abolition of the death penalty last week and Gov. Jon Corzine’s decision to empty death row of its eight prisoners is almost entirely symbolic. New Jersey has not executed anyone since 1963.
And while the total number of executions in 2007 was low, it would have been similar to those in recent years but for the moratorium, if extrapolated to a full year.
There do seem to be slight stirrings suggesting that other states might follow New Jersey. Two state legislative bodies — the House in New Mexico and the Senate in Montana — passed bills to abolish capital punishment, and in Nebraska, the unicameral legislature came within one vote of doing so.
Texas has followed the rest of the country in one respect: the number of death sentences there has dropped sharply.
In the 10 years ending in 2004, Texas condemned an average of 34 prisoners each year — about 15 percent of the national total. In the last three years, as the number of death sentences nationwide dropped significantly, from almost 300 in 1998 to about 110 in 2007, the number in Texas has dropped along with it, to 13 — or 12 percent.
Indeed, according to a 2004 study by three professors of law and statistics at Cornell published in The Journal of Empirical Legal Studies, Texas prosecutors and juries were no more apt to seek and impose death sentences than those in the rest of the country.
“Texas’ reputation as a death-prone state should rest on its many murders and on its willingness to execute death-sentenced inmates,” the authors of the study, Theodore Eisenberg, John H. Blume and Martin T. Wells, wrote. “It should not rest on the false belief that Texas has a high rate of sentencing convicted murderers to death.”
There is reason to think that the number of death sentences in the state will fall farther, given the introduction of life without the possibility of parole as a sentencing option in capital cases in Texas in 2005. While a substantial majority of the public supports the death penalty, that support drops significantly when life without parole is included as an alternative.
Once an inmate is sent to death row, however, distinctive features of the Texas justice system kick in.
“Execution dates here, uniquely, are set by individual district attorneys,” Professor Dow said. “In no other state would the fact that a district attorney strongly supports the death penalty immediately translate into more executions.”
Texas courts, moreover, speed the process along, said Jordan M. Steiker, a law professor at the University of Texas who has represented death-row inmates.
“It’s not coincidental that the debate over lethal injections had traction in other jurisdictions but not in Texas,” Professor Steiker said. “The courts in Texas have generally not been very solicitous of constitutional claims.”
Indeed, the Supreme Court has repeatedly rebuked the state and the federal courts that hear appeals in Texas capital cases, often in exasperated language suggesting that those courts are actively evading Supreme Court rulings.
The last execution before the Supreme Court imposed a de facto moratorium happened in Texas, and in emblematic fashion. The presiding judge on the state’s highest court for criminal matters, Judge Sharon Keller, closed the courthouse at its regular time of 5 p.m. and turned back an attempt to file appeal papers a few minutes later, according to a complaint in a wrongful-death suit filed in federal court last month.
The inmate, Michael Richard, was executed that evening.
Judge Keller, in a motion to dismiss the case filed this month, acknowledged that she alone had the authority to keep the court’s clerk’s office open but said that Mr. Richard’s lawyers could have tried to file their papers directly with another judge on the court.
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