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October 29, 2014

Is the death penalty really dying a slow death . . . in Texas?!?

The question in the title of this post is prompted by this new piece from The Atlantic, headlined "In Texas, the Death Penalty is Slowly Dying Out: The Lone Star State carried out its fewest executions since 1996 this year." Here are excerpts:

On Tuesday night, the state of Texas executed Miguel Paredes by lethal injection for murdering a woman and her two children sixteen years ago.  With no executions scheduled by the state department of criminal justice for November or December, Paredes' death marks the tenth and final execution for Texas this year — the fewest in almost two decades.

2014 wasn't anomalous either.  Executions in Texas, the most prolific death-penalty state in the country, spiked after Congress restricted federal appeals in death-penalty cases with the Antiterrorism and Effective Death Penalty Act in 1996.  Since then, however, the death penalty has been in overall decline both in Texas and nationwide.  Thirty people have been executed so far this year in the entire United States, whereas Texas alone executed 40 people at its peak in 2000.

What's driving the decline?  Since executions peaked nationally in the late 1990s, multiple Supreme Court rulings have limited the death penalty's scope and application.  The justices barred executions of the mentally disabled in Atkins v. Virginia in 2002, for example, and eliminated the death penalty for individual crimes other than first-degree murder in their 2008 decision in Kennedy v. Louisiana....

But for Texas, the greatest shift came in 2005. First, the Supreme Court ruled in Roper v. Simmons that executing defendants who were minors when they committed the crime violated the Eighth Amendment.  Texas had led the nation in imposing the death penalty on under-18 defendants prior to Roper; 29 inmates had their sentences reduced accordingly after the ruling.  More inmates left Texas' death row alive than dead that year for the first time since 1989.  At the same time, legislators gave Texas juries the option to sentence murder defendants to life without parole, thereby lowering the number of new death-penalty convictions.

Other extrajudicial factors are also slowing down the death penalty in Texas and around the United States.  Thanks to a European Union embargo that bars the sale of lethal-injection drugs to the U.S., executions nationwide have slowed precipitously as states scramble to find replacements and substitutes....

This doesn't mean executions will completely halt any time soon in Texas.  State officials say they have a sufficient supply of pentobarbital for upcoming executions thanks to a secret supplier they refuse to name through 2015.  Six in 10 Americans still support the death penalty according to a recent Gallup poll, and Greg Abbott, who will likely be elected governor of Texas next week, is also a staunch proponent.  Reversing the overall downward trend, however, would require either a drastic shift in the Supreme Court's jurisprudence or a complete overhaul of Texas sentencing law.  Neither are imminent.

I am glad this piece concludes by noting a number of reasons why the death penalty is very likely to persist in Texas for the years to come. Rather than talking about the death penalty potentially dying in Texas, I think the notable data on death sentences and executions in the state over recent years ought to be examined and analyzed as part of an effort to assess what might be deemed a "sound" or "stable" use of the death penalty within a state clearly committed to having the punishment be a significant aspect of its modern punishment system.

October 29, 2014 at 09:16 AM | Permalink


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In John Bessler's book "Cruel and Unusual," there are various cases where the death penalty was disfavored, but seen as necessary to some degree. So, one or more people are executed to send a message. At some point, it's seen as unnecessary/gratuitous. Still need those few, apparently. This might be comparable to Texas' situation here. There are various reasons d.p. is reduced, but it won't be stopped.

Posted by: Joe | Oct 29, 2014 9:36:00 AM

Joe. I have pointed out how general deterence violates the Fifth Amendment Procedural Due Process right to a fair hearing. You cannot punish a person to scare another he had never met, and who may speculatively commit a crime in the future, if at all.

No abolitionist has ever used that argument to demand a mistrial if a judge utters the word, message, or deterrence, or any synonym. I try to be accurate and to argue for both sides when justified, but no one seems interested in these compelling ideas.

Posted by: Supremacy Claus | Oct 30, 2014 12:15:46 AM

We should be executing, conservatively, 1000 per year. Most murderers deserve death. Death penalty should be mandatory for previously deported felons who commit murder.

Posted by: federalist | Oct 30, 2014 2:29:52 AM

If Texas is reducing its usage to something closer to real "worst of the worst" cases, that would put a big dent in the yearly inflow to death rows nationally. Although I don't see it mentioned here, my understanding is that there has been a real upgrade in trial level defense representation in some of the counties that were the biggest source of death sentences, and that having to actually fight out a contested trial where there is a chance they could lose is helping bring the DAs around to settlements in more of those cases. So that may be part of the mosaic of factors bringing Texas back from outlier status. Now, what's Florida's problem?

Posted by: anon | Nov 3, 2014 12:23:21 PM

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