Is Texas Changing Its Mind About the Death Penalty?

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Texas has executed prisoners with a regularity and in record numbers that has earned the state worldwide attention. But, while Texas still led the U.S. in executions in 2008, juries in the state appear to have began to turn away from the ultimate punishment even for the most heinous crimes.

Ten men and one woman were sentenced to death in Texas in 2008, according to the Texas Coalition to Abolish the Death Penalty. It was the lowest annual figure since the 1976 reinstatement of the death penalty. Texas handed out more than 20 death sentences in each of 2003 and 2004. In 2005, the number fell to 14, and it has not risen above that annual figure since. "The need for revenge, for vengeance is being curbed, the appetite is no longer there," contends Robert Hirschorn, a nationally known Texas attorney and jury consultant who has helped pick juries for many prominent clients, including, most recently, millionaire real estate mogul Robert Durst, who was found not guilty of killing and dismembering his neighbor. "The tide has changed," Hirschorn says. "It used to be fashionable to say, 'I support the death penalty.' It used to be unfashionable to say, 'I am against the death penalty.'" (See the Top 10 Crime Stories of 2008

Nationwide, and particularly in Texas, anti-death penalty sentiment has usually been centered on college campuses and within the Catholic Church, Hirschorn says, but is expanding beyond those communities — a trend he sees reflected in his jury questionnaires as well as in nationwide political polls.

The number of people sentenced to death has been falling nationally since a peak of about 300 a year in the 1990s, according to the Death Penalty Information Center, to 115 people in 2007. The reduction comes as more states, such as New York, New Jersey and Illinois have passed death penalty moratoriums; while some, like Maryland, are considering whether to abolish executions altogether.

Texas still accounts for 50% of the executions in the U.S., and with an appeal process of 10 years (the shortest among the states), the numbers are unlikely to decrease significantly. According to Kristin Houle, director of the Texas Coalition to Abolish the Death Penalty, the state averaged nearly one lethal injection per week over a five month period in 2008. There have been 423 executions in Texas since the state reininstituted the death penalty in 1982, and 374 condemned men and women are currently residing on Texas' Death Row. (One resident, Michael Blair, walked off death row this year after being exonerated by DNA testing.) (See the Top 10 Unsolved Crimes.)

But now the number of new residents appears to be slowing. "[In 2008] officials' zeal for executions was not matched by public desire for new death sentences, as evidenced by the continued steep decline in the number of new inmates arriving on death row," Houle says. Nowhere was that more apparent than in Houston, a city dubbed the "capital of capital punishment" in a study by the NAACP. After years of being a major contributor to Texas death row numbers, thanks in part to high profile "tough-on-crime" prosecutors, Houston juries sent no new prisoners to death row in 2008. The Harris County prosecutor's office (which was roiled by the departure of its elected District Attorney over a sex-and-e-mail scandal) brought only two capital cases this year. One ended in a tough plea bargain and a 60-year sentence; the other, involving the vicious murder of a police officer, shocked the city's legal community when the defendant was convicted but spared the death penalty and given a life sentence.

The changing attitudes reflect broader changes in the cultural, political and social climate, says Hirschorn. But another factor is a key change in state sentencing laws, which now allow Texas juries to levy a life-without-parole sentence, dubbed LWOP. The LWOP sentencing provision, though vociferously opposed by the Texas prosecution bar, was passed by a conservative legislature and signed by a conservative governor in 2005.

"Cop killers, baby killers are poster children for the death penalty," Hirschorn says, "and without the option of LWOP you could guarantee the death penalty." In the Houston cop killing case, the lawyers for defendant Juan Quintero initially attempted an insanity defense, citing a traumatic brain injury. Though the jurors rejected it and found Quintero guilty, Mark Bennett, a Houston defense lawyer argued on his blog "" that the head injury testimony lingered in the minds of some jurors, who may have regarded it as a mitigating factor in deciding on a life sentence rather than execution.

But along with changes in sentencing guidelines, something else has changed in Texas, death-penalty opponents claim. In the past, both Democrats and Republicans for high office have embraced the death penalty as an issue, but in recent elections, Houle notes, the issue has been rarely raised. Improved access to better quality defense counsel and the realization that capital cases usually cost county government upwards of $2 million each, Houle says, have helped reduce the number of death penalty cases. Recent U.S. Supreme Court decisions striking down the death penalty in certain kinds of cases — the rape of a child — and concerns about the legality of executing mentally retarded or mentally ill individuals have also slowed the number of capital cases being brought. With broader legal options, the most execution-prone state of the union may increasingly be opting for some other punishment than a life for a life.