Harris 'fallen behind' in macabre competition: LWOP led to fewer Texas death sentences

There's something odd about a news story bemoaning the fact that Houston has "fallen behind" other large Texas cities in the number of death sentences given out by its juries. I admit it's remarkable, given the town's long-time reputation as the Death Penalty Capital of the United States, but it seems off-putting to view capital punishment as some sort of score in a macabre competition.

Still, Texas' and particularly Houston's decline in death sentences are a notable shift, one which Lise Olsen attributes in the Houston Chronicle ("Harris County loses state lead in executions," Dec. 28) to Texas' passage in 2005 of life without parole as a sentencing option in capital crimes:

Long the state's leader in sending convicts to death row, Harris County has fallen behind both Bexar and Tarrant counties in the number of death sentences it imposes, an analysis of eight years of records shows. ...

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.

Those tallies don't include killers, five in Texas in 2009, who remained on death row after their convictions or sentences were overturned on appeal but who were later resentenced to death.

Texas was the last of the nation's 35 death penalty states to adopt life without parole as an alternative in capital cases. The law offered a legal guarantee to jurors and prosecutors alike that convicted killers sentenced to an isolation cell in lieu of an execution chamber could never be freed.

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.

The post-life-without-parole decline in death sentences exceeds 40 percent.

There were a couple of other theories touted to explain the decline:

Roe Wilson, a prosecutor who has long overseen death row appeals for Harris County, agreed the state's life-without-parole law likely has reduced death sentences. But she also cited recent Supreme Court rulings that banned executions of those convicted for murders committed before age 18 and of mentally impaired offenders with low IQs who meet certain criteria.

Williamson County prosecutor John Bradley, who heads the Texas Forensic Science Commission, argues that widespread turnover in prosecution offices statewide, including in Dallas and Harris counties, likely played the greatest role in recent reductions in death sentences.

The change in prosecution regimes doesn't explain lower numbers in Harris County, though, because the new DA only took over this past year. The same trend exhibited itself under Chuck Rosenthal, who reveled in his reputation as a "tuff-on-crime" icon and pro-death penalty enthusiast. Roe Wilson's suggestion about SCOTUS restricting the death penatly for juveniles and retarded defendants may explain some of the trend at the margins, but it does indeed seem like the switch to an LWOP option in capital cases was the trigger that set off Texas' recent decline in death sentences.