Injection of Reflection

The Supreme Court has imposed a de facto moratorium on lethal injection while it waits to hear oral arguments this January in Baze v. Rees, a case that could determine whether, or under what conditions, lethal injection can be used as capital punishment. It may be that states will resort to giving prisoners a massive dose of barbiturates—the preferred method for putting down sick pets. In theory, at least, the high court will uphold a "better" form of lethal injection, setting off a wave of executions. But whether state officials and juries will want to dispose of humans like dogs remains to be seen. A single drug might take longer to work—prolonging the death throes.

Jurors and prosecutors are steering away from the death penalty because they are both more and less afraid: more apprehensive about killing the innocent and less fearful of crime. Over the past decade, the use of DNA testing on wrongly convicted criminals has overturned prison sentences for at least 200 inmates nationwide (about 15 of them sentenced to death). In 2000, Illinois declared a moratorium on executions after 13 death-row inmates were exonerated. Back in the '80s, when violent crime was surging along with crack-cocaine addiction in cities, Americans demanded retributive justice. But as crime rates fell in the '90s and the first few years of the new century, jurors became more lenient in capital cases.

At the same time, prosecutors began to be wary of seeking the death penalty. A series of court decisions required that more states provide competent lawyers for the criminally accused in death-penalty cases. Better defense lawyers could stall and maneuver, running up the cost to the state of bringing a capital case. The more-clever lawyers have been especially good at introducing "mitigating circumstances" into these cases, arguing that the abuse suffered by the killer as a child helps to explain the horrible crime he or she committed. Since 1982, according to New Jersey Policy Perspective, a think tank, the state has spent more than $250 million on the death penalty, or about $11 million a year—without executing a single prisoner. With legal costs soaring in death cases, states are finding it cheaper to pay for lifetime prison sentences.

In many states, jurors chose the death penalty because they feared the convicted murderer might get out on parole and kill again. But in Texas, and many other states, jurors can now sentence the convicted to life imprisonment without the possibility of parole. (The motives of the Texas Legislature in passing this law two years ago were not altogether humane: when the Supreme Court did away with the death penalty for juveniles in 2005, some Texas lawmakers wanted to find a way to put away youthful killers forever.)

Opinion polls show that about 70 percent of Texans still favor the death penalty. But in Dallas, the district attorney, Craig Watkins, is not sure how he feels. "It depends on which day you ask me," says Watkins, 39. "I'm sitting here at my desk looking at some autopsy photos. So, yeah, I'm for it." (He was reviewing the 1996 case of a woman who killed her son and now sits on death row.) "But when I come out of church on Sunday morning, I'm against it."

Two decades ago Watkins could not have been elected in Dallas. He is black, a Democrat and a former defense lawyer. His most famous, or notorious, predecessor was Henry Wade, the Dallas D.A. from 1951 to 1986. The year Wade left office, The Dallas Morning News found a manual used by city prosecutors. It stated: "Do not take Jews, Negroes, Dagos, Mexicans, or a member of any minority race on a jury, no matter how rich or well educated." Minorities have been disproportionately sentenced to death— especially if the victim was white. Wade apparently wanted to make sure they got no sympathy votes. Wade, says Watkins, choosing his words judiciously, was "a product of his time." Watkins is a product of more recent times. In the 2006 election, tough-on-crime didn't work in Dallas. "My opponent wore the number of people he had sent to death row like a badge of honor," says Watkins, about the Republican incumbent he beat last year. Watkins's more benign approach—stressing justice, not vengeance—was mocked as "hug-a-thug" by detractors, but Watkins won. "I see a change in mentality," he says. "We've had a lot of folks coming out who didn't commit crimes and that gives people pause." Dallas leads the nation in the number of DNA exonerations for all counties in the United States (14). "In the near future, we will see the death penalty rarely," he says.