Published: Wednesday, December 26, 2007

As Support for Capital Punishment Slips, Texas Carries On

In 2007, Lone Star State performed more than 60 percent of all U.S. executions.

By ADAM LIPTAK
The New York Times

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.

During 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 this year, enthusiasm for executions outside of Texas dropped sharply. Of the 42 executions this 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.



SOON ONLY in Texas?

David R. Dow, a law professor at the University of Houston who has represented death-row inmates, said 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, Texas, which includes Houston and has accounted for 100 executions since 1976, said the Texas capital justice system is working. 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 Dieter, whose organization opposes capital punishment.

Outside 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 suffer needless anguish during what can be decades of litigation and multiple retrials.

"We're seeing fewer executions," 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, Dieter said, "we're simply not regularly using the death penalty as a country."



Consistent average

Over the past 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.