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The New York Times
u.s.
Executions Decline
Elsewhere,
but Texas Holds
Steady
By ADAM LIPTAK,
nytimes.com on the Web, December 26, 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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