Nov. 29
TEXAS:
The Life Penalty—-In the execution capital of the free world, death
sentences have declined precipitouslythanks in part to the institution of
life-without-parole sentences.
Juan Leonardo Quintero was on the expressway to Texas death row.
Prosecutors had the 34-year-old on video confessing to gunning down a
police officer who had just handcuffed him and sat him in the backseat of
his patrol car on September 21, 2006. Despite having his hands cuffed
behind his back, Quintero had managed to get a grip on a pistol that
40-year-old police officer Rodney Johnson had overlooked during the
pre-arrest pat-down. He shot Johnson 4 times in the back of the head while
the 12-year police veteran and father of five was filling out the routine
paperwork before taking his suspect downtown.
Quintero was in custody in the 1st place because he had no driver's
license when Johnson stopped him for speeding. Quintero had no license
because he was in the country illegally, for at least the second time.
Seven years before, the landscaping laborer had been deported back to
Mexico after being convicted of indecency with a child. To make his fate
look even more cut-and-dried, Quintero didn't kill just any Texas police
officer. He killed an officer from Houston. That meant he'd be tried in
Harris County. And since the U.S. Supreme Court gave the green light for a
resumption of executions in 1976, Harris County has condemned 222 capital
murderers to die. If Harris County were a state unto itself, it would rank
2nd behind the rest of Texas in the number of executions carried out in
the modern era of the death penalty.
On May 8 this year, jurors rejected out of hand Quintero's plea that he
was insane on the day of the killing. They convicted him of capital
murder. The jurors then had 2 options: Sentence him to die by lethal
injection in Huntsville, or send him to prison for the rest of his life.
Had Quintero been convicted 20 years ago, or even 5 years ago, a death
sentence would have been all but automatic. Back then, a life-in-prison
sentence meant that the killer could be eligible for parole 40 years after
being locked up. And the notion that a cop killer could one day walk free
was anathema to most Texas juries.
But Quintero was convicted at a time when once rock-solid support for the
death penalty was developing fissures in Texas and around the nationand
shortly after the hard-fought 2005 passage of a state law that gives
juries the option of sentencing murderers to life without parole.
The Harris County jury chose that alternative. So instead of awaiting
execution, Quintero is one of at least 14 killers in Texas who, having
been convicted of capital murder, will live out their lives in prison.
"You know there's a shift in attitude in Texas when a Houston jury
sentences an illegal immigrant who shoots a police officer 4 times in the
back of the head to anything other than death," says Larry Fitzgerald, who
witnessed more than 200 executions as a Texas prison system spokesman from
the mid-1990s until his retirement in 2003.
In the 2 decades before the Legislature enacted the life-without-parole
law, Texas courts sent an average of 35 murderers per year to death row.
Despite the international spotlight shining on Texas as the execution
capital of the free world, those numbers were showing no sign of abatement
when state Sen. Eddie Lucio launched his effort in the late 1990s to give
juries the life-without-parole option. Lucio, who represents a heavily
Roman Catholic district anchored by Brownsville, is among a handful of
South Texas Democratic lawmakers who express equal misgivings about the
death penalty and about legalized abortion. "I'm Catholic and I'm
pro-life," says Lucio. "So whether we are talking about taking the life of
an unborn child or someone who has committed a terrible murder, I'm going
to have some problems with it."
It was not surprising when Lucio's initial bill went nowhere in 1999. A
solid core of police groups, prosecutors and crime victims' groups was
staunchly opposed. Their chief concern was that such a law would "weaken"
the death penalty in Texas. Undaunted, Lucio filed his bill again in 2001
and 2003, with opponents bringing to bear the same arguments and the pace
of executions in Huntsville continuing to make headlines.
But by the time lawmakers convened in Austin in 2005, public opinion was
starting to pull back from a broad embrace of capital punishment. And so,
apparently, were the attitudes of at least some Texas prosecutors. Richard
Dieter, who heads the Death Penalty Information Center in Washington,
D.C., chalks up that shift to the escalating drumbeat of documented
problems with the application of capital punishment. Between 2000 and
2004, at least 38 death row inmates around the country had been exonerated
based on systematic re-examination of the evidence used to condemn them.
The most dramatic examples came from Illinois, where then-Gov. George
Ryan, a Republican, ordered a halt to all executions in his state and
commuted more than 150 death sentences after a group of journalism
students from Northwestern University reopened inmates' old files and
found widespread evidence of faulty convictions.
Meanwhile, the U.S. Supreme Court had delivered twin blows to the
administration of the death penalty. The Supremes ruled in 2002 that
executing mentally retarded inmates violated the Eighth Amendment ban on
cruel and unusual punishment. 3 years later, they used the same rationale
to prohibit the execution of inmates who had committed capital murder
before their 18th birthdays.
"What we began seeing in polling data was a re-thinking of public support
for the death penalty," Dieter says. "A majority of people still supported
it, but not the overwhelming majority that we were used to seeing."
Evidence of that re-thinking manifested in Texas with a dramatic drop in
the number of convicted killers being sentenced to death. In 2005, 14
death sentences were handed down, the fewest in nearly a decadeand less
than half of what the state had been averaging since the 1980s.
Steve Hall, who runs the StandDown Texas Project, which has long pushed
for a moratorium on executions in the state, says it's hard to pinpoint a
single reason for that decline. But he echoes a line of argument that
attorneys often use in their efforts to exempt youthful offenders and
those with diminished mental capacity. "I don't know that I would call it
exactly an evolving standard of decency,'" Hall says, "though perhaps that
captures it." That standard, he believes, has filtered down to many of the
district attorneys who prosecute capital cases, as well as to the jurors
who ultimately determine punishment.
During the 2005 debate on Lucio's 4th attempt to pass life-without-parole
laws, most of the state's urban prosecutors remained entrenched in
oppositionat least publicly. "My problem is [juries] might use it as a
compromise instead of reaching a true decision," Roe Wilson, an assistant
district attorney in Harris County, told the Senate Criminal Justice
Committee in March 2005.
But by that time, Lucio had put together a bipartisan coalition of key
lawmakers, including Criminal Justice Committee Chairman John Whitmire, a
Houston Democrat, and Sen. Chris Harris, a hard-line conservative from
Arlington. Pivotal to Lucio's argument were the well-documented flaws in
death sentences around the country, along with his long-held assertion
that life-without-parole sentences would spare crime victims' families the
agony of reliving their tragedies each time a death row inmate attempted
an eleventh-hour appeal. "It still gives victims' families the closure
they need," Lucio says, "but it doesn't put them through that endless
appeals process."
Lucio says that "a lot of people who opposed my bill said I was trying to
undermine the death penalty. The truth is, it was all these false
convictions and exonerations that were undermining the death penalty."
Hall says that Gov. Rick Perry, an ardent death-penalty supporter who has
allowed more than 200 executions since taking office 8 years ago, provided
some cover to his fellow Republicans in the Legislature. In May 2004, the
notoriously hard-line Texas Board of Pardons and Paroles had recommended
that condemned inmate Kelsey Patterson be spared execution on grounds that
he was severely mentally ill. Perry rejected their suggestion that
Patterson's sentence be commuted to life in prison, but his rationale was
significant.
"Governor Perry said at the time, 'Texas has no life-without-parole
sentencing option, and no one can guarantee this defendant would never be
freed to commit other crimes were his sentence commuted,'" says Hall, who
has so far been unable to persuade legislative leaders to debate a
moratorium proposal introduced by Rep. Elliott Naishtat. "I think Governor
Perry, in saying that, was sending a clear message to the Legislature that
he would sign a life-without-parole bill that landed on his desk." A year
later, he did.
It's unclear how much of the decline in death sentences in Texas can be
linked to the life-without-parole option, or whether it's more a symptom
of growing public uncertainty about the ultimate punishment. "Whether you
can chalk that up to the life-without-parole statutes that have gone on
the books in Texas and other states in recent years remains to be seen,"
Dieter says, pointing out that death sentences across the nation are down
about 60 % over the past 5 years. "But all indications are that people,
and juries, want that option.
"When you present life without parole to juries, it lifts any confusion
they might have about whether someone is ever going to walk the streets
again. Even though a traditional life sentence in Texas meant there was no
possibility of parole for at least 40 years, there's always that
misapprehension that someone could be out in a matter of a few years. So
there might not be any difference in the eye of a juror who's just seen
those 8×10 glossy photos of a horrible murder scene who wants to be
assured that the person responsible never walks free among us again."
Juan Quintero's trial was a powerful example. When Harris County jurors
began deliberating his punishment for killing Rodney Johnson, defense
lawyer Danalynn Recer laid a foundation to show that despite her client's
heinous act, his life still had value. Jurors were told that he had no
record of past violence and was both deeply religious and deeply
remorseful.
The prosecution painted a starkly different picture. "You look for some
humanity in this defendant. You look for some emotion, some heart, some
soul in this defendant," said prosecutor John Jordan. "You can watch [his
videotaped confession] 20 times and you won't find it."
Despite pleas from Johnson's family and police colleagues that Johnson's
killer be sentenced to die, the jury sided with the defenseand clearly
responded to Recer's arguments. "I believe he has value," juror Letty
Burkholder told the Houston Chronicle. "He's loved by many of his family
and friends, and that was number one. I felt like he has potential." Added
Tiffany Moore, another juror: "I still feel we came to the right decision.
We could never bring Rodney back. I feel very sad for the family, losing a
loved one."
Recer declined to be interviewed for this story, but after the trial she
told Scott Henson, an Austin activist who blogs about criminal justice
issues at gritsforbreakfast.blogspot.com, that she had seen an obvious
shift in attitudes about capital punishment during jury selection. Five
times as many potential jurors were excluded for saying their consciences
would not allow them impose a death sentence, she said, than were
scratched for ruling out consideration of life without parole. She also
told Henson, a consultant for the Texas Innocence Project, that Quintero
was so guilt-ridden, he had considered abandoning his defense and waiving
his appeals, essentially volunteering for the death sentence. But he had
changed his mind, she said, when his children intervened, reminding him
that "his life is not over, he's still a dad."
For Texas prosecutors, the increasing appeal of the life-without-parole
option might have as much to do with basic economics as with an evolution
in opinions about the fairness of the death penalty. "The dirty little
secret about life without parole is that it gives the DAs peace with
honor, so to speak," says Henson. "Death penalty cases are getting so
expensive, especially when you add in all the appellate costs, that it
just decimates their budgets.But with life without parole, they still get
a capital conviction without all that cost."
The cost issue weighs heavily on county governments, says Larry
Fitzgerald. Since his retirement from the prison system, Fitzgerald has
been engaged by defense lawyers as an expert witness in several cases
where prosecutors have pushed for the death penalty, assuring jurors that
life without parole is really for life. "Basically, taxpayers are paying
for both sides of the freight," says Fitzgerald, who supports the death
penalty but believes that it has been overused in Texas. "The vast
majority of the defendants are indigent, so they get court-appointed
lawyers. Plus, with every death sentence, there's an automatic appeal, so
that means the taxpayers are on the hook for that one, too."
The cost to the state of lifetime lock-ups is far less by comparison,
experts say. Since the mid-1990s, when lawmakers enacted sweeping
get-tough-on-crime legislation that tripled the size of the prison
populationto more than 150,000 nowthe Texas Department of Criminal Justice
has added geriatric units and even a hospice system. "With the relatively
small number of life-without-parole inmates we've received so far, there
shouldn't be a significant impact" financially, says Michelle Lyons, the
department's spokeswoman.
But neither shifts in public opinion nor economic factors have swayed
prosecutors like David Weeks, the Walker County district attorney, who
fiercely opposed the new sentencing option every time Sen. Lucio
introduced it. "I never thought life without parole was a good idea, but
it hasn't affected my business here one bit," says Weeks, whose office
prosecutes crimes committed on the prison properties of Huntsville. "We've
only had one capital case since it went into effect, and we're pushing
hard for the death penalty."
That case involves a September 24, 2007, escape attempt by two prison
inmates who managed to wrest a gun away from a correctional officer
supervising an outdoor work crew. The inmates and guards exchanged
gunfire, and one of the inmates took control of a prison pickup truck and
rammed it into a horse being ridden by another officer supervising the
crew. 59-year-old Susan Canfield was thrown from the horse and smashed
into the truck's windshield. She died from her injuries. The horse was
shot in the crossfire and later had to be euthanized.
Both inmates were in prison for violent crimes but had behavioral records
that qualified them for outside work. Jerry Martin was serving a life
sentence for murder. John Ray Falk was doing 50 years for the attempted
murder of a police officer. The escaped men were caught within a few
hours. Weeks expects the pair to be tried together this spring.
"If some folks are worried about the high cost of death penalty cases, I'm
not," says Weeks, the legislative liaison for the Texas Association of
District and County Attorneys. "I have no trouble going to the taxpayers
and saying, 'We need to pony up and make sure justice gets done.'"
But even though many prosecutors still don't like the life-without-parole
statute, Weeks says he doubts that any serious effort will be made to
repeal it.
One of the compromises Lucio made to win passage of the bill was to
eliminate the option for juries to hand down a sentence of life with the
possibility of parole after 40 years in capital murder cases. Some
lawmakers who had opposed keeping that option argued that it might confuse
juries, and possibly anger crime victims' families who would worry about
the killers' eventually gaining their freedom. But Lucio says that one
unintended consequence of the bill in its final form was to give
defendants who might have been parties to a killingbut not the actual
killersan incentive to plea bargain for a lesser charge, which means that
they might one day win parole and that their cases can be disposed of more
swiftly.
"The way it's working so far, we are still able to hold out that parole
option in some of these unique circumstances," Lucio says.
During the years when he was gathering support for life without parole,
one of Lucio's frustrations was that state leaders had no system for
determining how many capital murder trials ended with death sentences and
how many resulted in lesser sentences. So two years after the
life-without-parole law took effect, he pushed successful legislation
requiring that Texas' 506 district courts submit reports to the Texas
Office of Court Administration documenting the outcome of each capital
case.
The early findings show that 58 capital cases were decided between July
31, 2007, and October 13, 2008. Jurors opted for life without parole in 15
of those cases and imposed the death penalty in six. One defendant was
acquitted. (The others either involved cases where murders were committed
before the new law took effect, meaning that life without parole could not
be considered, or where convictions fell short of capital murder or were
plea-bargained to a lesser charge.)
In states like Florida, controversy has swirled over younger killerssome
in their teensbeing sentenced to life without parole. In Texas, case
reports are not broken down by ages, but 3 defendants under 21 — the
youngest being 18 — have so far gotten life without parole in the state.
Lucio says that if his law means underage killers spend 5 or 6 decades
behind bars, it's all right with him. "Hopefully," he says, "these people
who get locked up come to terms with that fact and manage to make
something of their lives, even if it's in prison."
Juan Quintero's life now goes on in the Polunsky Unit in Livingston, which
is also home to death row. When capital offenders like Quintero are
sentenced to life without parole, they are assigned to the general prison
population and can be eligible for jobs within the system based on an
evaluation that looks at such factors as education levels and in-prison
behavior. One of a growing number of Texans given the chance to livein a
case that not long ago would have meant near-certain executionQuintero now
works on a supervised squad that tends to the crops grown on the unit's
sprawling property.
(source: Texas Observer—-John Moritz is a freelance reporter in Austin
who has covered the Texas criminal justice system for more than a dozen
years and has been a media witness to 20 executions in Huntsville.