No Country for Old Men

Far be it from me to defend the death penalty as it's practiced today, but I'm frustrated by today's New York Times article on capital punishment in the state of Texas. The Times reports:

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.

In fact nothing has changed about the rate or the application of the death penalty in Texas, except that they slowed somewhat. So what's the development? Nor is it honest or edifying to hang the whole article on that 60 percent figure—which is jarring, even blindly horrifying, but not meaningful without controlling for state population and murder statistics.

There are vastly many more people in Texas than in any of its peer states that assign capital punishment. There are vastly many more murders in Texas than in any of its peer states that assign capital punishment. Comparing the number of executions in Texas with the number in South Dakota dramatically understates the fact. Death penalty rates are better for comparison's sake.

A study performed by Cornell University in 2004 found that Texas assigns the death penalty at a rate lower than the national average (2 percent versus 2.5 percent). The most death penalty-prone states were not Texas or Florida, but rather Oklahoma (6 percent) and Nevada (5.1 percent). In part this rate disparity owes to Texas's sentencing standards. In order for the death penalty to be assigned, a crime must meet certain objective criteria (scroll down). For example, when a police officer or firefighter is murdered, when a child under age 6 is murdered, or in the case of multiple murders. Subjective criteria—the "heinousness" of a crime, for example—are not considered. Texas's sentencing standards are those that tend to find sympathy among even moderate opponents of the death penalty.

The speed with which the state carries out capital punishment, however, finds no quarter among sensible observers. Both the Texas Court of Criminal Appeals and the Texas Fifth Circuit are prosecutorially oriented; a state prosecutor explained to me today that there are no is only one defense lawyer serving on the Court of Criminal Appeals. The speed of the system is aggressive, as critics point out, and is certainly out of step with the current national mood. (Indicators of which include the so-called national moratorium—although it is no such thing. The Supreme Court has merely stayed every execution by way of lethal injection that has come across its desk. A formal SCOTUS moratorium would have delayed the hasty execution of Michael Richard; the "de facto" moratorium did not.)

The Times: "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." True for the convicts put to death, of course; true for the families of their victims, I would imagine. In other respects, this is a dramatic statement. The state's execution of executions is impressive and awful, the product of a pervasive political problem that inflects the justice system. Its devotion to the death penalty, however, is truly average.

Posted by Kriston at December 26, 2007 6:24 PM