Adam Liptak reports, "At 60% of Total, Texas is Bucking Execution Trend," in Wednesday's New York Times.
This year’s death penalty bombshells — a de facto national moratorium, a state abolition and the smallest number of executions in more than a decade — have masked what may be the most significant and lasting development. For the first time in the modern history of the death penalty, more than 60 percent of all American executions took place in Texas.
Over the past three decades, the proportion of executions nationwide performed in Texas has held relatively steady, averaging 37 percent. Only once before, in 1986, has the state accounted for even a slight majority of the executions, and that was in a year with 18 executions nationwide.
But enthusiasm for executions outside of Texas has dropped sharply. Of the 42 executions in the last year, 26 were in Texas. The remaining 16 were spread across nine other states, none of which executed more than three people. Many legal experts say the trend will probably continue.
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.
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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.
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