Texas sends fewer to death row - Life without parole option cited among reasons for drop

While the debate over capital punishment rages anew in Texas, new inmates going to death row have hit a 35-year low as prosecutors push 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.

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, 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.

But because of the state's growing list of exonerations via DNA evidence and other questionable convictions, some argue that juries are simply less willing to send someone to death row. Democratic state Sen. Eddie Lucio Jr., the author of the life-without-parole law, said prosecutors are trying to blame it for their troubles getting Texans to trust a scandal-ridden system.

"It isn't life without parole that has weakened the death penalty," Lucio said. "It is a growing lack of belief that our system is fair."

In the 4 years since the introduction of life without parole, Texas death sentences have dropped 40 % compared with the 4 years prior, state records show. The number of slayings each year in Texas stayed largely unchanged during that period, according to the Texas Department of Public Safety.

Texas juries sentenced 13 people to death in 2008. 9 others have received death sentences this year.

15 years earlier, juries sent 49 people to death row.

Before 1991, someone receiving a life sentence for capital murder in Texas could be eligible for parole in 15 years. State lawmakers increased the minimum to 35 years in 1991 and 40 years in 1993.

Activists spent years lobbying state lawmakers to give juries the option of life without parole. The law-enforcement community pushed back, arguing that it would weaken the use of the death penalty as a punishment.

In 2005, Lucio was able to get his bill passed after a crucial rewrite. Instead of trying to allow life without parole as an additional option for juries in capital cases, the bill made the punishment a replacement for life with parole, although district attorneys could still offer defendants life with parole as part of a plea agreement.

With this new, harsher punishment, prosecutors now feel comfortable waiving the death penalty in more cases, and defense lawyers are often more willing to plea-bargain, according to lawyers from each side of the

courtroom.

A competing theory for why death sentences have declined is that jurors have become more worried about sending an innocent person to death row.

Reports of exonerations have popped up regularly in the past 3 years. Dallas County District Attorney Craig Watkins' office has helped obtain exonerations for 20 wrongfully convicted defendants in Dallas County.

A poll from Rasmussen Reports released this month found that 73 % of Americans are at least somewhat concerned that some people may be executed for crimes they did not commit.

Scott Phillips, an associate professor of sociology and criminology at the University of Denver who has studied the use of the death penalty, said death sentences have declined nationwide, suggesting that the option of life without parole is just part of the reason in Texas.

"People are obviously concerned about innocence," Phillips said. "People are concerned about cost. ... People are concerned about racial disparity."

Alan Levy, the lead criminal prosecutor in the Tarrant County district attorney's office, said he believes that reports of questionable cases have affected juries.

"It plays a big role," Levy said. "People are very skeptical."

Levy was one of three members of the Texas Forensic Science Commission whom Republican Gov. Rick Perry replaced in September, forcing the postponement of a widely anticipated hearing on whether outdated science was used in the murder trial of Cameron Todd Willingham, who was executed in 2004.

The case has become a rallying point for death penalty opponents nationwide.

Levy said Innocence Project groups have done a great job of highlighting cases of wrongfully convicted Texans and driving the public debate.

He said he credits them with "convincing the public that the system is much less reliable than it is."

Also, in the recession, the higher costs of pursuing the death penalty have become harder to ignore, and life without parole is a far cheaper alternative.

Death penalty trials are longer, with a punishment phase that takes more time and appeals that typically go on for years.

Pursuing life without parole from the onset can avoid millions in legal costs and settle cases quickly.

"You save a lot of money, a lot of time and you have a guarantee that this person will be incarcerated for the rest of their life," said Bill Harris, a Fort Worth defense lawyer who is president-elect of the Texas Criminal Defense Lawyers Association.

Source: McClatchy/Tribune News, Nov. 29, 2009