The Death Penalty in Texas: A Change of Heart?


Something is afoot in America's most “law-and-order” state. The number of people sent to death row is declining.

On Sept. 21, 2006, Juan Quintero, an undocumented Mexican national, was arrested after a routine traffic stop in Houston. The arresting officer, Rodney Johnson, frisked and cuffed Quintero, who was driving without a license, before placing him in the back seat of his patrol car. But Johnson missed the gun that Quintero had hidden on him. Moments later, as Johnson sat in the front seat writing up a report, Quintero fired seven times, killing the officer.

Johnson’s murder shocked Houston. But what happened afterwards may have been just as startling. Juries in Harris County (where Houston is located) were once notable for handing down death sentences. They stood out even in Texas, long a pro-death penalty state. During the 1990s the county sent more than a dozen convicted felons a year to death row–a larger number than some states–and currently accounts for more than a third of the inmates on Texas' death row (106 of 332).

Nevertheless, Quintero received a life sentence following his trial in May 2008. Even his gruesome attack on a police officer did not alter the change of heart that has apparently transformed Houston from what anti-capital punishment advocates once dubbed the “capital of capital punishment” into a death-penalty-free zone.

It has, in fact, been more than two years since any Harris County jury has imposed a death sentence. The Quintero case, says Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty (TCADP) was a graphic demonstration that Texas is no longer “so reliant on the death penalty.”

Statistics bear that out. Last year, the number of new death sentences handed down in Texas dropped to nine, the lowest number since the state revived the death penalty in 1976, and down from nearly 30 in 2003. That's a remarkable contrast to the peak years in the late 1990s, when as many as 48 people a year would be sent to death row, according to the TCADP’s annual report on the state of Texas' death penalty.

The downward trend is also evident in Virginia, which once took second place only to Texas in the number of executions. “There was only one death sentence handed down [there] in 2009,” says Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center (DPIC), a nationwide lobby group against capital punishment. “But it was a case from 2007, and there was only one new death sentence handed down in two years.”

According to the TCADP, there are roughly 400 death-eligible cases in Texas each year. In 2009, 32 death-eligible cases went to trial where the DA sought death (including five re-trials). Of those 14 resulted in death sentences, four resulted in life without parole, and 14 resulted in convictions for less than capital murder. Also in 2009, there were 40 death-eligible cases that went to trial where the prosecutors chose not to seek death. TCADP’s Houlé says “Life without parole may be partially responsible for the reduction in cases going to trial as the DA's can justify waiving death when the possibility of parole has been eliminated.”

Legal observers and advocates suggest a number of factors may be responsible for the declines in Texas, Virginia and elsewhere–New Mexico outlawed the death penalty last year, and Colorado, Kansas and Montana are all currently considering abolition. The factors include concerns about wrongful convictions, the high cost of litigating death cases, and the availability of life in prison without parole, which has only been an option for Texas juries since late 2005.

Wrongful Convictions

Concerns about wrongful conviction have certainly swayed many Texas juries, says Craig Watkins, Dallas County’s first elected African American District Attorney. Watkins, a Democrat who campaigned on a “smart-on-crime” platform, has been leading an effort to weed out those wrongfully convicted by county prosecutors in the past. Since he took office in January 2007, 12 men have been exonerated–making a total of 22 men whose cases have been thrown out since 2001. But Watkins also attributes the decline in death sentences to a “progression of our society” fueled by increasing public recognition of the flaws in the justice system and the changing demographics of Texas cities (the state is now majority-minority).

Still, Dallas continues to seek the death penalty where it is appropriate, according to Watkins. “From my perspective, I think we’ve gotten away from those circumstantial cases,” he says, adding that county prosecutors only seek death in cases where there is no doubt about guilty. In 2009, Dallas sent three men to death row, more than any other Texas county, according to the Texas Department of Criminal Justice.

Harris County District Attorney Pat Lykos, a former Houston cop, says the addition of the life-without-parole sentencing option has been a major factor. “Before, if you didn’t get the death penalty in a capital case,” she says. “You would [have to] give a sentence where there was a possibility of parole.”

Prior to 2005, the Texas criminal code offered a stark choice of sentencing options for capital crimes: death, or life with a possibility of release after 25 years. While the likelihood that a capital defendant would ever be released was slim, it was a factor that weighed on jurors. Life without parole offers a middle ground between “the risks of the death penalty – that you might find something out in 10 years” about a case that “you didn’t know” when first trying it, “and the chance of somebody getting out,” says DPIC's Dieter. “Neither is appealing to juries.”

As life-without-parole options become available around the country, Dieter adds, prosecutors are seeking death a lot less than they used to.

Public Opinion Changes

The public seems to be in favor. In Houston, support for the death penalty dropped to just 59 percent in 2007, down from a high of just more than 79 percent in 1993, according to the Institute for Urban Research at Rice University.

However they respond in polls, “individuals are voting with their feet in the jury box,” says State Representative Lon Burnam, a Fort Worth Democrat who was once a death penalty supporter. Burnam, a Quaker, says his change-of-mind arose from both moral and fiscal considerations. The death penalty “costs too damn much,” he says bluntly, noting that it ties up valuable resources that the state could put to better use.

State Senator Rodney Ellis, a Houston Democrat and attorney who has served in the Texas Legislature since 1990, claims public officials have slowly begun to grasp this as well. “Prosecutors recognize that a capital case is extremely resource-intensive, in terms of staff time for the D.A.'s office, experts, cost of appeals, and the cost to the county to pay for the defense of the accused,” Ellis wrote in an email to The Crime Report. “(They) are likely considering those factors when determining whether or not the death penalty is on the table, along with the wishes of the victim’s family.”

In contrast, Houston D.A. Lykos says cost is not a factor in deciding whether to seek a death penalty in Harris County. “We do not take that into consideration,” she says, noting that she expects her office will seek death in at least four cases in 2010. “What we consider are the facts of the case and the statute.”

All the same, if the recent past is any guide, Harris County jurors are not likely to go along.

Jordan Smith writes for the Austin (Texas) Chronicle. She was a winner of the 2010 John Jay/H.F. Guggenheim Prize for Excellence in Criminal Justice Reporting, and a 2010 H.F. Guggenheim Fellow.

Photo by Steve and Sara via Flickr.

Related News: Texas Judge Rescinds Ruling State Death Penalty Unconstitutional, Houston Chronicle, March 9, 2010

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