The New York Times
Wednesday 26 December 2007
This year's death-penalty bombshells - a federal 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 only 18 executions nationwide.
But this year, enthusiasm for executions outside of Texas dropped sharply. Of last year's 42 executions, 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 that trend is likely to 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, which includes Houston and has accounted for 100 executions since 1976, said the Texas capital justice system is 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."
Asked why Texas's share of executions nationwide is rising, he said, "I frankly don't know."
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 suffer needless anguish during what can 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."
So while the number of executions in Texas been relatively constant, averaging 23, the state's share of total executions nationwide has steadily increased: 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's vigorous commitment to capital punishment.
The 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 S. Corzine's decision to empty the state's death row of its eight prisoners is almost entirely symbolic. New Jersey has not executed anyone since 1963.
And while the 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. New Mexico's House and Montana's Senate passed bills to abolish capital punishment, and Nebraska's 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 are no more apt to seek and impose death sentences than those in the rest of the country.
"Texas's 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 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 the number of death sentences in the state will fall further, 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 United States Supreme Court has repeatedly rebuked the state and federal courts that hear appeals in Texas capital cases, often in exasperated language suggesting that those courts are actively evading the Supreme Court's 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 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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