Off the Kuff Rotating Header Image

life without parole

The slow decline of the death penalty in Texas

Maybe a little.

Perhaps nothing symbolizes this state’s swagger over being tough on crime like “Old Sparky,” an electric chair that was used to execute 361 inmates and is now the centerpiece of a prison museum.

It sits just minutes from the Texas penitentiary where it was forever unplugged 50 years ago this summer following the execution of Houston’s Joseph Johnson Jr. for murdering a grocer.

While the oak chair is now a capital punishment relic photographed daily by visitors, this state’s death row is undergoing what looks to be a historic shift.

Texas forged an international reputation as it has executed far more inmates than any other state in the nation since 1982, when it resumed capital punishment with lethal injection. But this year, Texas just may lose its distinction as the state carrying out the most executions annually, sitting in a three-way tie with Missouri and Florida. Each state has executed seven people so far this year.

In Texas, a slew of changes in capital punishment that have been trotted out over the past decade or so and are taking hold. Those include requiring better legal representation for people facing the death penalty, giving jurors the option of sentencing defendants to life in prison without parole, and increasing the use of DNA and other scientific testing. And significant to the change is the realization by lawmakers and others that the system that condemns someone is not bulletproof.

The state executed an average of 29 people annually from 1997 to 2007, with 40 in 2000, according to statistics maintained by the Death Penalty Information Center. But it is now on track to have no more than 11 this year, according to the Texas Department of Criminal Justice, the fewest number in 23 years.

Texas is not getting weaker on crime, but getting smarter about who is sentenced to death by reducing the chances of condemning an innocent person, said former Texas Gov. Mark White.

“We are starting to recognize that being tough on crime doesn’t mean you have to be tough on innocent people,” White said. “We have learned a lot: use the cutting edge of science, and not just the fast draw of the Old West.”

Not sure how much credit I’m willing to give the Lege for this, other than the passage of life without parole, which has definitely had an effect. If there’s a greater awareness about wrongful convictions and the need to safeguard against them, it’s mostly due to the efforts of groups like the Innocence Project, local officials like Dallas County DA Craig Watkins, and the compelling stories of exonerated men like Michael Morton, Anthony Graves, and the late Timothy Cole. The fact that insufficient enthusiasm for the death penalty can still be used as a political attack suggests we haven’t come that far from the old days. Though I am not a death penalty abolitionist, I will be perfectly happy if this trend continues.

The effect of life without parole

Death sentences are way down since the law was changed to allow a life without parole sentence.

Since a new life-without-parole law took effect in 2005, Harris County — with a national reputation for pursuing capital punishment and home to the fourth-largest city in America, with a population of nearly 4 million people — has sent fewer inmates to death row than Tarrant or Bexar counties, urban counties that include Fort Worth and San Antonio, respectively. Tarrant County’s population is about 1.7 million; Bexar’s is 1.6 million, U.S. Census records show.

Bexar and Tarrant each sent eight newly convicted killers to death row in the four years since the law took effect, state prison data show. In the same period, larger Harris and Dallas counties sent six apiece, based on the Chronicle’s analysis of Texas Department of Criminal Justice death row arrivals.


Statewide, only about 50 inmates have been added to death row since the law took effect Sept. 1, 2005. In contrast, from September 2001 to September 2005 — the four years before the law was enacted — 90 were sentenced to death.

There were only nine inmates sentenced to death in Texas in 2009, which continues a downward trend. None of those sentences came from Harris County, which says a lot. As I’ve said before, I’m happy for this to keep going that direction, but I am curious about something.

Already, the 4-year-old law has created a kind of “life row” — a perpetual population of convicted killers and accomplices who can never win reductions in their sentence regardless of behavior, youth , mental deficiency or other factors. This group appears to be growing faster than death row itself.

One consequence of this is that some years down the line we will have more and more elderly inmates in Texas’s prisons. Grits has written frequently about the costs associated with elderly inmates – here’s a recent example, or just go here and browse. Most of what’s driving this is the long, often excessive, sentences that are given out in other cases, like drug crimes, but clearly LWOP sentences will add to this. I’m wondering at what point someone in the Lege will take notice of this and try to change things so that older inmates with health issues can be released as a cost-containment measure. That’ll be a fun debate, whenever it happens.

More LWOP, fewer death sentences

The number of death sentences handed out by Texas juries has declined sharply in recent years, with the new life without parole (LWOP) sentence being one reason why.

While the debate over capital punishment rages anew in Texas, new inmates going to Death Row have hit a 35-year low as prosecutors are pushing for fewer death sentences and, many believe, juries have become less willing to give them.

Various factors have contributed to a stark decline in death sentences and a dramatic shake-up in the ranking of counties that use it the most.

The biggest game-changer appears to be the introduction of life without parole as an option for juries in 2005, according to several prosecutors and defense lawyers. The change in state law represented a huge shift for jurors in capital cases, who previously were responsible for choosing either the death penalty or a life sentence in which a convicted killer could be eligible for parole in 40 years.

“With life without parole being a viable option now, [juries] feel a lot more comfortable that that person is not going to be let out back into society,” Tarrant County District Attorney Joe Shannon said. “We are probably waiving the death penalty more times than we used to because we’re trying to forecast the outcome of the case.”

There were nearly 50 executions in 1999. From the mid-eighties through that year, the annual total dipped below 30 only twice. But from 2005, the year that the LWOP law was passed, onward, the annual total has been 15 or fewer. I don’t know how much effect the LWOP law has had on that – as the story notes, juries may just be more leery of the death penalty now thanks to all of the high-profile DNA exonerations of recent years – but I think this is a good trend. It would be fine by me if the death penalty were only used in the most exceptional situations.