Even in Texas, the death penalty is dying   

Texas, long considered the death penalty capital of the United States, has undergone a remarkable transformation in its approach to executions. And what is happening in the Lone Star State is a harbinger of the fate of capital punishment across the country. 

A year-end report issued on Dec. 14 by the Texas Coalition to Abolish the Death Penalty (TCADP) documents those trends. In 2023, Texas had many fewer death sentences and executions than in the recent past, but its death penalty system continued to be plagued by arbitrariness, discrimination and cruelty.  

During 2023, Texas was one of just five states to carry out an execution. It put eight people to death this year. In 2023, executions also occurred in Florida (six executions), Oklahoma and Missouri (four executions in each state), and Alabama (two).  

The nationwide total of 24 executions in 2023 marked a slight uptick from the 18 that occurred in 2022 and 11 executions in 2021. A similar pattern is seen in Texas — however, the thing to pay attention to isn’t the slight uptick but the total numbers. 

In Texas, its eight executions in 2023 were three more than in 2022 and five more than in 2021. As the TCADP report notes, this year’s executions “were crammed into the first and last quarters of the year with a six month break in between.” 

A similar downward trend is evident if we look at death sentences rather than executions. 

The TCADP report notes that 2023 was the ninth consecutive year in which “death sentences remained in the single digits, with juries sending three new people to death row.” It calls attention to the fact that “Since 2019, juries have rejected the death penalty in one third of the capital murder cases that have proceeded to trial with death as a potential outcome.” 

Texas’s total of death sentences in 2023 was less than the five people sentenced to death in Florida and four in California. A similar decline in the number of death sentences has occurred elsewhere; as of Dec. 1, 21 people had been sentenced to death this year.  

And, as the Death Penalty Information Center (DPIC) notes, “for the first time since executions resumed in 1977, the number of executions exceeded the number of new death sentences. This,” the DPIC observes, “is further evidence of juries’ growing reluctance to impose death sentences.” 

The number of death sentences and executions in Texas this year are a striking departure from the rate at which Texas was using the death penalty at the end of the 20^th century and the beginning of the 21st. In 1999, alone 48 people received death sentences, and one year later executions in Texas peaked, at 40.  

At that time, Texas had what journalist Michael Hall called “a well-oiled execution machine that efficiently dispatched legions of the damned.” The state was able to carry out large numbers of executions for several reasons.  

First, as law professor Brent Newton explains, “Texas’ appellate judges are elected to office and hence serve according to the pleasure of the public. Not surprisingly, they require a record of toughness on criminals in order to win re-election.” 

Writing in 1996, Newton said, “there are many indications that elected appellate judges generally are of a lesser quality than their appointed counterparts in other states. … [T]hese elected judges do not carefully consider the complexities of each specific death penalty case.’ 

Another contributing factor was the fact that “Texas does not have a public defender system for indigent defendants, and instead relies upon court-appointed lawyers who likely do not have experience in capital murder defenses or appeals. … [I]ncompetent defenses in capital murder cases are legion in Texas, and that, even in a death penalty appeal, bad lawyering is hard to prove.” 

And, Newton argues, “Until the early 1990s, Texas did not permit jurors to adequately consider mitigating evidence in the sentencing phase of a trial. Thus, there are a number of people currently on death row that may well not be there had information about their mental illness or youth been weighed.” 

So why is Texas sentencing to death and executing so many fewer people than it did 20 to 30 years ago? 

Hall says that one of the key reasons is the cost of capital cases. “To investigate a capital murder,” he writes, “nab suspects, give them attorneys and experts, put them on trial, convict them, go through years of appeals while they sit in a maximum-security prison, then actually execute them—all that costs millions of dollars. Who foots the bill? The counties, all of which have other things they would rather spend their tax dollars on.”  

Moreover, since 2005, “Texas prosecutors have had a second option for punishing violent criminals convicted of capital murder: life without parole. They have used it often, and juries have followed suit. Since 2005, more than 1,200 men and women have been sentenced to essentially die in prison, while in that same period only 129 new death sentences were handed down.”  

Contributing to the new climate surrounding the death penalty in Texas is what Hall calls “a sea change in how Texans view our criminal justice system. We used to think it didn’t make mistakes. Now,” Hall says, “we know better, thanks to DNA.” 

Since 1989, 16 men who were sentenced to death in Texas have been exonerated. The result is that Texans, like many other Americans, “no longer automatically assume that the cops got the right guy, the prosecutors played by the rules, the defense lawyers did their jobs well, or that the courts took a fair look at the case. When the ultimate penalty is at stake,” Hall suggests, Texans are now “inclined to be a lot more careful.” 

Politicians in Texas, like politicians in other states, generally no longer try to make capital punishment a key wedge issue in their campaigns. Other issues, like abortion and the teaching of critical race theory, now do that job. 

But even as the death penalty recedes in Texas, what remains is a system that is rife with injustice. As the TCADP reports, capital punishment “continues to be imposed disproportionately on people of color.”  

In 2023, “Juries imposed two of the three new death sentences on people of color, and five of the people put to death were black, Hispanic, or Native American.” Here too the pattern in Texas is no different from what it is in other death penalty states. 

While Texas is a long way from formally ending its death penalty, what happened in Texas this year is a sign of the progress abolitionists have made in changing the national conversation and of the important work that still remains if we are to rid this country of this cruel punishment. As Hall puts it, the United States might soon “get to the point where it’s not worth the trouble to execute people anymore. In the end, it might be just that simple.” 

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.