Saturday, December 17, 2011

LWOP created boomlet in TX capital cases along with death penalty decline

Several disparate, recent stories combine to paint an unlikely picture of capital murder sentencing in Texas. Since the state introduced the option of a life-without-parole (LWOP) sentence for capital murder in 2005 - simultaneously eliminating the possibility of parole for capital crimes - the number of capital cases filed has escalated, reports the Odessa American, while the number of new death sentences has plummeted (from 48 in Texas in 1999 to 8 this year). Meanwhile, of course, murder rates have continued to decline over the same period.

What does it all mean? For starters, that the increase in capital cases does not result from more heinous murders (there are actually fewer) but from changing prosecutorial charging decisions. Prosecutors are pursuing capital cases more often where they previously would have sought plain old murder charges because it provides a bigger stick to threaten defendants with (i.e., death) during the plea bargaining process. Even though more capital cases are getting charged, however, most prosecutors who're driven by pragmatic as opposed to political motives prefer not to pursue the death penalty, which can be so costly that smaller counties sometimes have had to raise taxes or issue bonds to pay for a single case. So we get this boomlet of "capital" cases, but nearly all of them result in LWOP instead of death sentences.

It's also pretty clear that - with murder rates declining in Texas while both the frequency of executions and new death sentences also declined - it'd be impossible to attribute the murder reduction to any supposed deterrence effect from capital punishment. If there's any correlation at all (notice I didn't say causation), the murder rate declined more or less in tandem with the declining use of the death penalty in Texas, and was much higher back in the '90s when it was exercised more frequently.

Other than that, it's hard to know what conclusions to draw from such counter-intuitive data except that prosecutorial discretion matters a lot more in what sentences defendants end up with than is frequently considered by those writing the laws. I'm not sure the LWOP bill would have passed if the Lege had known the result would be a much larger number of capital murder charges filed. Perhaps, but it certainly wasn't part of the terms of debate at the time.

RELATED: Rise of LWOP sentences contributes to Californication of Texas justice


Anonymous said...

Interesting. The problem is, what is the solution in Texas, where common sense never prevails?

Anonymous said...

We knew this would happen. That is why Harris county prosecutors fought against having LWOP an option. They went to the legislature to beg, plead, cajole, etc., but eventually lost. We want to kill people down here in Houston, even if its just to teach people that killing people is wrong.

A friend recently lamented to me that there were only a handful of people left in the HCDAO who could try a death capital. I responded so what - how many do you freakin' need?

Gritsforbreakfast said...

1:31, that's quite a revisionist history you've got going there. As I recall, it was the Harris DA's office that insisted capital-life (w/ parole) be taken off the table for LWOP to pass. If they'd really had those concerns the bill would never have gone anywhere, or HCDAO could have consented to keeping in a life-with-parole option.

Anonymous said...

Let's see, you're suggesting that now with LWOP prosecutors are more likely to pursue capital murder charges than they were when capital life meant a mandatory 40 years? I've got news for you. They didn't have to seek death under the old law. For a regular life sentence for first degree murder, parole eligibility kicks in at 30 years. There was absolutely no punishment incentive under the old law to change the charge to regular murder. Prosecutors could just proceed non-death and get the capital life with the mandatory 40. LWOP may have given prosecutors a less expensive alternative to seeking death (especially where victim's survivors and the public could be satisfied the killer would never get out of prison) but it had ZERO impact on charging decisions.

Incidentally, why don't you explain what capital murder is in Texas so your readers can understand who these people are and what they did in the context of whether they should ever be released from prison?

Gritsforbreakfast said...

12:56, I fail to understand how in the same sentence you can say LWOP has "given prosecutors a less expensive alternative to seeking death" but that "it had ZERO impact on charging decisions." If it changed their incentives and caused the number of capital charges to increase (while murders are declining, no less), then what you're saying is a complete non sequitir.

As for "why don't you explain what capital murder is in Texas"? The simple answer is, I assume my readers are not morons. Some anonymous trolls, though, I recognize are exceptions to that general assertion, so for your benefit and anyone else who feels I've somehow been intentionally keeping readers in the dark regarding this workaday common knowledge, here's the definition.

Anonymous said...

The elements of capital murder either exist, or they don't, at the time of the commission of the crime. It is what it is. There is nothing a prosecutor can do after the fact to elevate a regular murder to capital murder if the elements of the offense aren't already there. I don't know what the explanation is for why there might be more capital murders but fewer regular murders. But it's pretty absurd to suggest that under the old capital life w/parole (at 40 yrs) prosecutors had some incentive to downgrade capital murder charges to regular murder and that such an incentive doesn't exist now under LWOP. That just doesn't make any sense whatsover. Are you suggesting that under the old law prosecutors would forego the death penalty and change the charge to murder with the understanding that parole eligibility would kick in at 30 years? Why in the world would they do that when they could go non-death capital and get the mandatory 40 years? You're reasoning on this point just doesn't make sense.

As an aside, your repeated suggestions that prosecutors were complicit in the creation of LWOP just doesn't carry water. I'd love to see the proof of your claim that the Harris Co. D.A.'s office supported LWOP. Show me the archived committee hearing footage which supports this.

Ultimately, it was the anti-death penalty crowd that pushed LWOP through. Forever, there had been this silly gamemanship in capital litigation over whether juries could be told that anyone sentenced to capital life might some day get out of prison. In the view of the anti-death penalty bunch, this always created an incentive for juries to return a death sentence out of fear there was some possibility that some capital murderer might be paroled. I was always amused at how many capital defense attorneys and anti-death penalty people made this silly claim that it was somehow more punitive to make someone spend the rest of their life in prison as opposed to getting the needle. As if this was some reason the death penalty ought not to be used.

Personally, I think the biggest worry that most prosecutors and law enforcement had when LWOP was being debated was that it was inevitable that people like yourself would start complaining that it costs too much to keep some capital murderer locked up for the rest of his natural life. Once the camel got his nose under the tent, it would just be a matter of time before LWOP wouldn't really be LWOP. Well, here we are. I wonder what the over/under is on how long it will be before a bill gets filed creating some kind of release mechanism for LWOP capital murderers? Given the commentary on this blog, I wouldn't be surprised to see one filed next session.

Gritsforbreakfast said...

9:22, I suspect you won't see that bill filed until the LWOPers begin to age and start to run up high health care costs. In the short term I'd expect instead LWOP to be added to more non-capital crimes.

My recollection of the LWOP bill was that prosecutors, led by Harris County, backed off their opposition in exchange for taking capital life off the table and making the options only death or LWOP. Whether they testified for the bill or not is irrelevant; behind the scenes, that's who cut the deal. It wouldn't, couldn't have passed without their assent.

Finally, if you don't have an explanation for the data, why are you so certain that the new LWOP law wasn't the causal factor in changing prosecutorial charging decisions? 1:31 above, after all, says "we knew this would happen."