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Texas Increasingly out of Step on Death Penalty

By David Fathi
Copyright 2009 Houston Chronicle
May 23, 2009, 3:44PM

Barring unexpected events, in the next few weeks Gov. Rick Perry of Texas will oversee his 200th execution since taking office in 2000. Perry has already allowed more executions than any other U.S. governor in modern history, far exceeding the 152 while George W. Bush was governor and the 50 overseen by Bush’s immediate predecessor, Ann Richards.

The United States is a global pariah for its continued embrace of the death penalty. In 2008 it was the world’s fourth-leading executioner, surpassed only by China, Iran and Saudi Arabia. Since executions resumed in 1977, after a hiatus of several years, more than 1,161 U.S. prisoners have been shot, hanged, electrocuted, gassed or put to death by lethal injection.

Yet it is somewhat misleading to attribute this appalling record to “the United States.” Unlike in most other countries, criminal justice in the United States is largely a matter of state law and policy. Only three executions since 1977 have been carried out by the federal government; the rest have been carried out by the states, and the vast majority by a mere handful of states.

Texas alone, with 438 executions since 1977, accounts for more than one third of the total. Just three states — Texas, Virginia (103) and Oklahoma (89) — together account for well over half of all U.S. executions in the modern era. At the other end of the spectrum, 15 states and the District of Columbia do not permit the death penalty. Of the 35 states whose laws authorize capital punishment, two have carried out no executions since 1977, and five have carried out only one apiece. There is a strong regional cast to the death penalty in the United States, with 960 executions in the South since 1977, compared with four in the Northeast.

The reasons for these state and regional variations are no doubt multiple and complex. The important point is that they show there is nothing necessary or unavoidable about the death penalty, nothing inherent in the American character that demands it.

Indeed, there are signs that Americans are turning against the death penalty. Just in the last 18 months, the citizens of two states — New Jersey and New Mexico — have, through their elected representatives, abolished capital punishment. The number of new death sentences imposed by juries has dropped dramatically in recent years, to about one third the number imposed annually in the mid-1990s.

What might account for this change? First and probably foremost is the question of innocence. Since 1973, 131 persons have been released from U.S. death rows after they were shown to be innocent of the crimes for which they had been sentenced to die. Some had come within days of execution. These exonerations have fundamentally shifted the debate on the death penalty, forcing even supporters to concede that innocent people have been sentenced to death, and that one or more may have been executed. Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty and finality; the possibility that a person will be executed for a crime he or she did not commit is a risk no society should tolerate.

There is also increasing awareness of the significant racial disparities in capital sentencing in the United States. Evidence continues to accumulate that those who kill white victims are far more likely to be sentenced to death than those who kill African-Americans or other people of color. A 2007 study of eight death penalty states by the American Bar Association concluded that “every state studied appears to have significant racial disparities in its capital system,” but that “little, if anything, has been done to rectify the problem.”

Finally, as state and local governments face yawning budget deficits and are forced to slash education, health and other vital services, the tremendous cost of the death penalty has become more salient. Studies in various states have concluded that the decision to seek the death penalty increases the cost of a murder prosecution by 38 percent to 70 percent. Last year a California state commission estimated that maintaining the death penalty costs the state $126 million more each year than would abolishing capital punishment and replacing it with life in prison without possibility of parole.

Texas will probably not abolish capital punishment anytime soon. But the good news is that more and more Americans seem to be getting the message that the death penalty is not necessary or inevitable. It’s a choice — and it’s a bad one.

Fathi is director of the U.S. program at Human Rights Watch.

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