State Without Pity

Two articles Dec 27 & Dec 26 from the NYTimes

Excerpts
It is a shameful distinction, but Texas is the undisputed capital of capital punishment.

Texas should at least take a hard look at a system that still produces so many executions and is so wildly out of step with the rest of the country.

Of the 42 executions in the last year, 26 were in Texas. No other state put more than three people to death during that time.

December 27, 2007
Editorial
State Without Pity
It is a shameful distinction, but Texas is the undisputed capital of capital punishment. At a time when the rest of the country is having serious doubts about the death penalty, more than 60 percent of all American executions this year took place in Texas. That gaping disparity provides further evidence that Texas’s governor, Legislature, courts and voters should reassess their addiction to executions.

As Adam Liptak reported in The Times on Wednesday, in the last three years, Texas’s share of the nation’s executions has gone from 32 percent to 62 percent. This year, Texas executed 26 people. No other state executed more than three.

It is not that Texas sentences people to death at a much higher rate than other states. Rather, Texas has proved to be much more willing than others to carry out the sentences it has imposed.

The participants in Texas’s death penalty process, including the governor and the pardon board, are more enthusiastic about moving things along than they are in many states. Texas’s system also contains some special features, like the power of district attorneys to set execution dates. Prosecutors are likely to be more eager than judges to see an execution carried out.

While Texas has been forging ahead with capital punishment, many other states have been moving away from it. New Jersey abolished the death penalty this month, and other states have been considering doing the same thing. Illinois made headlines a few years ago when its governor, troubled about the number of innocent people who had been sent to death row, put in place a moratorium on executions.

These states have had good reasons for their doubts. The traditional objections to the death penalty remain as true as ever. It is barbaric — governments should simply not be in the business of putting people to death. It is imposed in racially discriminatory ways. And it is too subject to error, which cannot be corrected after an execution has taken place.

In recent years, two other developments have undercut the public’s faith in capital punishment.

There has been a tidal wave of DNA exonerations, in which it has been scientifically proved that the wrong people had been sentenced to death. There is also increasing awareness that even methods of execution considered relatively humane impose considerable suffering on the condemned.

The Supreme Court will hear arguments next month in a case about whether the pain caused by lethal injection is so great that it violates the Eighth Amendment injunction against cruel and unusual punishment. Those who study the death penalty say that if current trends continue, eventually almost all of the nation’s executions will occur in Texas. That is not a record any state should want. Some states, such as Illinois and New Jersey, have already had wide-ranging discussions about what role they want the death penalty to play in their criminal justice system. Texas is long overdue for such a debate.

If it is unwilling to abolish the death penalty, which all states should do, Texas should at least take a hard look at a system that still produces so many executions and is so wildly out of step with the rest of the country.

http://www.nytimes.com/2007/12/27/opinion/27thu1.html?_r=5&ex=1356498000&en=1ebfd869e3ec77ff&ei=5088&partner=rssnyt&emc=rss&oref&oref=login

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60 Percent of Executions Happen in Texas
By ADAM LIPTAK,The New York Times
Posted: 2007-12-26 18:25:35

(Dec. 26) -- This year’s death penalty bombshells — a de facto national 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 18 executions nationwide.

But enthusiasm for executions outside of Texas has dropped sharply. Of the 42 executions in the last year, 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 the trend will probably 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, Tex., which includes Houston and has accounted for 100 executions since 1976, said the Texas capital justice system was 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.”

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 suffered needless anguish during what could 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.”

Over the last three years, the number of executions in Texas has been relatively constant, averaging 23 per year, but the state’s share of the number of total executions nationwide has steadily increased as the national totals have dropped, 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’ vigorous commitment to capital punishment.

A 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 Corzine’s decision to empty death row of its eight prisoners is almost entirely symbolic. New Jersey has not executed anyone since 1963.

And while the total 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. Two state legislative bodies — the House in New Mexico and the Senate in Montana — passed bills to abolish capital punishment, and in Nebraska, the 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 were no more apt to seek and impose death sentences than those in the rest of the country.

“Texas’ 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 H. 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 that the number of death sentences in the state will fall farther, 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 Supreme Court has repeatedly rebuked the state and the federal courts that hear appeals in Texas capital cases, often in exasperated language suggesting that those courts are actively evading Supreme Court 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 its regular time of 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.

Copyright © 2007 The New York Times Company
2007-12-26 07:30:33

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