For what it's worth, Texas is still the death-penalty capital of the United States, which in turn employs capital punishment more frequently than any other western country. Only Iran, Iraq, Saudi Arabia and China — none of them shining beacons of human rights and individual liberty — kill more prisoners. In 2015, Texas executed 13 people, just less than half of the 28 put to death nationwide.
But there's another way to frame the issue: In 2015, Texas executed just 13 people, down from a peak of 40 in 2000. Even more striking, the state's courts handed out only three death sentences for the entire year, the lowest number since Texas reintroduced the death penalty in 1976, and went more than nine months without issuing a single one. Dallas, Harris and Tarrant counties, collectively responsible for about half of Texas' death row population over the past four decades, didn't condemn a single person to death last year.
As highlighted by a report released this week by the Texas Coalition to Abolish the Death Penalty, this is part of a long-term decline. The causes are varied, says Kathryn Kase, executive director of the Texas Defender Service. High-profile exonerations like that of Anthony Graves, who spent nearly two decades on death row after being wrongfully convicted of murdering six people in Burleson County, have sowed doubts in the public mind about the infallibility of the criminal justice system. Ditto for the expanding recognition of deep flaws in forensic science, the unreliability of eyewitness testimony, and racial disparity in prosecution and sentencing.
"Prosecutors understand there's a great deal of sensitivity on the part of juries now in terms of innocence issues and issues of lack of certainty," Kase says. Case in point: Four of the seven juries from whom Texas prosecutors sought the death penalty in 2015 opted for a lesser sentence, a sharp reduction from prosecutors' historic batting average of about 80 percent.
There's also the matter of cost. Texas has become a leader in criminal justice reform in no small part because smaller prisons saves the state money. So, for that matter, does taking the death penalty off the table. Capital cases, with their endless appeals pursued by taxpayer-funded defense lawyers, are expensive, and prosecutors, particularly in smaller counties, have become increasingly reluctant to burden their jurisdictions with the cost.
But focusing only on bleeding-heart juries and budget-minded prosecutors would miss the biggest factor driving Texas away from the death penalty. Until a decade ago, Texas juries in capital cases had two sentencing options: death or life in prison with the distant (40 years) possibility of parole. They almost invariably chose death. "I think juries were looking for certainty in the punishment that someone that they convicted of capital murder wouldn't harm anyone else," says Kristin Houlé, TCADP's executive director. A guarantee of 40 years behind bars just wasn't certain enough.
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Then, in 2005, Governor Rick Perry signed a bill creating a sentence of life without possibility of parole. The numbers suggest that jurors have found this to be a much more palatable alternative, with the increase in life without parole sentences more than replacing the decrease in death sentences. Death sentences peaked in 1999 at 48, then bounced between about two and three dozen over the next five years. Life without parole took a couple of years to catch on, but recent years have averaged about 100 such sentences, according to Texas Department of Criminal Justice's annual statistical reports. (Note: TDCJ doesn't report new sentences, just the total number of inmates with that sentence at the end of the fiscal year. To find the number of new sentences, we simply subtracted one year's population from the next. So it's possible, in the case that prior inmates died in custody, that the number of new sentences could actually be higher.)
Together with Texas' declining violent crime rate during this period, the numbers suggest that life without parole isn't merely being employed as a replacement for the death penalty; it's also being used in place of more lenient sentences. This raises its own set of issues. Many of the same factors that make the death penalty so problematic — racial bias, shoddy science, overzealous prosecutors — almost certainly apply to life sentences as well, the difference being that life sentences receive less scrutiny and guarantee fewer opportunities to appeal.
Death penalty opponents are OK with that. "You have to look at what are our alternatives here and right now in Texas," Kase says. To her, life without parole is the lesser evil. Houlé acknowledges that the problems with the death penalty are the "tip of the iceberg in terms of broader failings of the criminal justice system," but, she says, "death is different." At least with a life sentence, the criminal justice system has the ability to go back and correct its inevitable mistakes.