Justice: Injection of Reflection

Texas has long been the Hang 'em high state. In 2000, it executed convicted prisoners at the rate of almost one a week. Gov. George W. Bush seemed to take pride in turning down appeals for clemency. The "Decider" was known for spending as little as 15 minutes reviewing a death case. In a Talk magazine piece, Tucker Carlson reported that Bush mocked the plea of one double murderer on death row, pursing his lips in mock desperation and whispering, "Please, don't kill me." (Bush later said Carlson had "misread, mischaracterized me.")

Texas still accounts for more than half of all executions in the United States. But a strange thing is happening in the state that has executed more prisoners than any other since the U.S. Supreme Court revived the death penalty in 1976 after a brief hiatus. Texas prosecutors are less willing to seek, and juries are less willing to grant, capital punishment for aggravated murder. In 2006, only 15 Texas convicts were sentenced to death, down from 34 a decade earlier. Texas mirrors a national trend: death-penalty sentences in the 38 states that allow capital punishment dropped from 317 in 1996 to 128 in 2005, the latest year for which statistics are available.

Why the reluctance to populate death row? Polls show popular support for capital punishment stays relatively high, at about 65 percent. But when it comes to carrying out death sentences, the people involved—judges and juries, prosecutors and prison officials—are starting to recoil, or at least pull back. What is acceptable in theory seems less and less tolerable in practice. Indeed, the Supreme Court has called at least a temporary halt to executions while it examines the fine points of killing convicts by pumping lethal chemicals into their veins. "The death penalty may go out with a whimper, not a great moral revolution," says Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C.

The new reluctance to punish by killing is part of a historical trend. There was a time when death and torture were spectator sports, when crowds flocked to see prisoners drawn and quartered or beheaded. In some parts of the world, flogging and stoning are still public spectacles. But in the 19th century, supposedly "enlightened" states began looking for more-humane ways to serve final justice—to kill people without causing too much suffering to either the victims or their executioners. The authorities tried hanging, firing squads, electrocutions, gas chambers and, more recently, lethal injection. Each method was supposed to be an improvement over the last.

But the results could be ghastly. Too much depended on the uneven skills of the executioners. The hangman's noose has to be handled just so. Too short a drop and the prisoner slowly strangles. Too long a drop and the prisoner can be decapitated. Witnesses to executions in the electric chair have watched, horrified, as flames shot out of the head of the doomed prisoner. In Arizona in 1992, the state attorney general vomited and the prison warden threatened to quit after observing the agonizingly slow death of a man in a gas chamber. Today not many doctors are willing to play any part in an execution, and prison guards often complain of little or no training.

Lethal injection is less violent than a firing squad and less grisly than the electric chair. In most states, the prisoner is given a "three-drug cocktail": a sedative to put him to sleep, a paralyzing agent to stop him from struggling (or breathing) and a drug to stop his heart. But, hands shaking, guards sometimes botch inserting the needle, and veins can be hard to find if the inmate was a drug addict. In Ohio, a prisoner raised his head to announce, "It's not working," and in Florida, a prisoner sustained chemical burns on his arm while he grimaced for almost a half hour. Inevitably, defense lawyers began to attack the cocktail as "cruel and unusual punishment," banned by the Eighth Amendment to the Constitution.

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.

There may be no such thing as a foolproof system for killing people fairly and painlessly. The smallest glitch can make too much of a difference. The last execution before the Supreme Court imposed its moratorium is a case in point. Harris County, Texas—encompassing the city of Houston—has far more executions than most states, so it has had plenty of practice. At 9 a.m. on Sept. 25, the U.S. Supreme Court announced it would hear the Baze case challenging the constitutionality of lethal injection. Michael Richard, convicted of rape and murder in 1986, was scheduled for execution that night. His lawyers rushed to file a new motion based on the high court's ruling, but their computer crashed and they missed the 5 p.m. filing deadline. A judge refused to keep open the state court. Richard was executed at 8:22 p.m.

Join the Discussion