New Law Likely to Cut Death Sentences in Texas

Monday, July 4, 2005 10:13 AM CDT
By LISA BOSE McDERMOTT Texarkana Gazette

Texas juries may curtail the use of the death penalty with a new life-without-parole option recently inked by Texas Gov. Rick Perry.

Perry signed legislation that gives juries the option to give life-without-parole on capital murder cases in Texas beginning Sept. 1.

Presently, the punishment for capital murder in Texas is death by lethal injection or life in prison. But, life in prison by Texas law for a capital offense means that a murderer must spend at least 40 years in prison before he or she is eligible to seek parole.

By contrast, in Arkansas, life truly means life in prison unless a criminal defendant gets a reprieve from the governor to seek parole.

Bowie County District Attorney Bobby Lockhart, as well as defense lawyers Craig Henry and Troy Hornsby, all say the number of death penalties is going to drop in Texas, a state that leads most others in the number of executions.

Since Lockhart has been in office as district attorney, his prosecutors have sought the death penalty in 11 cases. Nine of the convicted murderers were sentenced to death.

"I do think it'll cut down the number of death penalties in the state of Texas because the third option that we have now is a good middle resting place between death and 40 years," said Lockhart. "It's the middle of the road that we haven't had."

He and Henry both point out that the present definition of life as 40 years in prison does not mean a killer will actually get paroled once he or she has served 40 years in prison.

"There's a lot of people that think that it's just not right to get out after 40 years. What they don't understand is that most capital/life defendants are never going to get out on parole anyway. Now, it's guaranteed because life means life," Henry says.

Hornsby said, "There is a confusion in Texas, if we don't assess death, then what happens? But some people may not think that's not enough; because it's still a risk. I think people have moral qualms about assessing the death penalty; but worry about the risk of this person walking free."

He said he would be stunned if there is not one person on a 12-member jury who wouldn't want to opt for life without parole if it is available.

"It's going to make it tougher for a DA to get a death penalty assessed," Hornsby said.

Henry says although a defense lawyer will still have to do as much trial preparation as ever for a capital murder case, he thinks it will change the way prosecutors do business.

"It may cause the district attorneys to not file as many as they have in the past," Henry said.

Lockhart agrees.

"We always sit with the victims at some point and time and tell them 'this is the option, what do you want to do.' It may help some plea agreements," Lockhart said of the new option. "That third option will definitely change some trial strategies."

In order to levy the death penalty in Texas, a jury has to decide if the murderer poses as risk of future danger to society.

"It'll change the face about how district attorneys approach capital murders in Texas. We're going to live with it now, because it's the law," Lockhart said. "It'll affect the marginal cases where you're not sure about what the jury will do; or if you can't prove future dangerousness issues."

One of the glitches that Henry sees is that the law only applies to suspected murderers who kill someone after the law's Sept. 1 enactment. He thinks those awaiting trial or sentencing now should be able to face the new option.

"I think there will be an argument about that because those persons have not been sentenced. There may be the argument that they should have that opportunity," Henry said.

But Hornsby believes that this is yet another change in the use of the death penalty.

"There is some progress," Hornsby said. He cited recent changes of law by the U.S. Supreme Court striking down the use of the death penalty for those killers who are mentally retarded, and more recently, those who are younger than 18 years old.

"Texas is an incredibly pro-death penalty state," Hornsby said.