The Life Penalty

In the execution capital of the free world, death sentences have declined precipitously—thanks in part to the institution of life-without-parole sentences.

Juan Leonardo Quintero was on the expressway to Texas death row. Prosecutors had the 34-year-old on video confessing to gunning down a police officer who had just handcuffed him and sat him in the backseat of his patrol car on September 21, 2006. Despite having his hands cuffed behind his back, Quintero had managed to get a grip on a pistol that 40-year-old police officer Rodney Johnson had overlooked during the pre-arrest pat-down. He shot Johnson four times in the back of the head while the 12-year police veteran and father of five was filling out the routine paperwork before taking his suspect downtown.

Quintero was in custody in the first place because he had no driver’s license when Johnson stopped him for speeding. Quintero had no license because he was in the country illegally, for at least the second time. Seven years before, the landscaping laborer had been deported back to Mexico after being convicted of indecency with a child. To make his fate look even more cut-and-dried, Quintero didn’t kill just any Texas police officer. He killed an officer from Houston. That meant he’d be tried in Harris County. And since the U.S. Supreme Court gave the green light for a resumption of executions in 1976, Harris County has condemned 222 capital murderers to die. If Harris County were a state unto itself, it would rank second behind the rest of Texas in the number of executions carried out in the modern era of the death penalty.

On May 8 this year, jurors rejected out of hand Quintero’s plea that he was insane on the day of the killing. They convicted him of capital murder. The jurors then had two options: Sentence him to die by lethal injection in Huntsville, or send him to prison for the rest of his life. Had Quintero been convicted 20 years ago, or even five years ago, a death sentence would have been all but automatic. Back then, a life-in-prison sentence meant that the killer could be eligible for parole 40 years after being locked up. And the notion that a cop killer could one day walk free was anathema to most Texas juries.

But Quintero was convicted at a time when once rock-solid support for the death penalty was developing fissures in Texas and around the nation-and shortly after the hard-fought 2005 passage of a state law that gives juries the option of sentencing murderers to life without parole.

The Harris County jury chose that alternative. So instead of awaiting execution, Quintero is one of at least 14 killers in Texas who, having been convicted of capital murder, will live out their lives in prison.

“You know there’s a shift in attitude in Texas when a Houston jury sentences an illegal immigrant who shoots a police officer four times in the back of the head to anything other than death,” says Larry Fitzgerald, who witnessed more than 200 executions as a Texas prison system spokesman from the mid-1990s until his retirement in 2003.

In the two decades before the Legislature enacted the life-without-parole law, Texas courts sent an average of 35 murderers per year to death row. Despite the international spotlight shining on Texas as the execution capital of the free world, those numbers were showing no sign of abatement when state Sen. Eddie Lucio launched his effort in the late 1990s to give juries the life-without-parole option. Lucio, who represents a heavily Roman Catholic district anchored by Brownsville, is among a handful of South Texas Democratic lawmakers who express equal misgivings about the death penalty and about legalized abortion. “I’m Catholic and I’m pro-life,” says Lucio. “So whether we are talking about taking the life of an unborn child or someone who has committed a terrible murder, I’m going to have some problems with it.”

It was not surprising when Lucio’s initial bill went nowhere in 1999. A solid core of police groups, prosecutors and crime victims’ groups was staunchly opposed. Their chief concern was that such a law would “weaken” the death penalty in Texas. Undaunted, Lucio filed his bill again in 2001 and 2003, with opponents bringing to bear the same arguments and the pace of executions in Huntsville continuing to make headlines.

But by the time lawmakers convened in Austin in 2005, public opinion was starting to pull back from a broad embrace of capital punishment. And so, apparently, were the attitudes of at least some Texas prosecutors. Richard Dieter, who heads the Death Penalty Information Center in Washington, D.C., chalks up that shift to the escalating drumbeat of documented problems with the application of capital punishment. Between 2000 and 2004, at least 38 death row inmates around the country had been exonerated based on systematic re-examination of the evidence used to condemn them. The most dramatic examples came from Illinois, where then-Gov. George Ryan, a Republican, ordered a halt to all executions in his state and commuted more than 150 death sentences after a group of journalism students from Northwestern University reopened inmates’ old files and found widespread evidence of faulty convictions.

Meanwhile, the U.S. Supreme Court had delivered twin blows to the administration of the death penalty. The Supremes ruled in 2002 that executing mentally retarded inmates violated the Eighth Amendment ban on cruel and unusual punishment. Three years later, they used the same rationale to prohibit the execution of inmates who had committed capital murder before their 18th birthdays.

“What we began seeing in polling data was a re-thinking of public support for the death penalty,” Dieter says. “A majority of people still supported it, but not the overwhelming majority that we were used to seeing.”

Evidence of that re-thinking manifested in Texas with a dramatic drop in the number of convicted killers being sentenced to death. In 2005, 14 death sentences were handed down, the fewest in nearly a decade-and less than half of what the state had been averaging since the 1980s.

Steve Hall, who runs the StandDown Texas Project, which has long pushed for a moratorium on executions in the state, says it’s hard to pinpoint a single reason for that decline. But he echoes a line of argument that attorneys often use in their efforts to exempt youthful offenders and those with diminished mental capacity. “I don’t know that I would call it exactly an ëevolving standard of decency,'” Hall says, “though perhaps that captures it.” That standard, he believes, has filtered down to many of the district attorneys who prosecute capital cases, as well as to the jurors who ultimately determine punishment.

During the 2005 debate on Lucio’s fourth attempt to pass life-without-parole laws, most of the state’s urban prosecutors remained entrenched in opposition-at least publicly. “My problem is [juries] might use it as a compromise instead of reaching a true decision,” Roe Wilson, an assistant district attorney in Harris County, told the Senate Criminal Justice Committee in March 2005.

But by that time, Lucio had put together a bipartisan coalition of key lawmakers, including Criminal Justice Committee Chairman John Whitmire, a Houston Democrat, and Sen. Chris Harris, a hard-line conservative from Arlington. Pivotal to Lucio’s argument were the well-documented flaws in death sentences around the country, along with his long-held assertion that life-without-parole sentences would spare crime victims’ families the agony of reliving their tragedies each time a death row inmate attempted an eleventh-hour appeal. “It still gives victims’ families the closure they need,” Lucio says, “but it doesn’t put them through that endless appeals process.”

Lucio says that “a lot of people who opposed my bill said I was trying to undermine the death penalty. The truth is, it was all these false convictions and exonerations that were undermining the death penalty.”

Hall says that Gov. Rick Perry, an ardent death-penalty supporter who has allowed more than 200 executions since taking office eight years ago, provided some cover to his fellow Republicans in the Legislature. In May 2004, the notoriously hard-line Texas Board of Pardons and Paroles had recommended that condemned inmate Kelsey Patterson be spared execution on grounds that he was severely mentally ill. Perry rejected their suggestion that Patterson’s sentence be commuted to life in prison, but his rationale was significant.

“Governor Perry said at the time, ëTexas has no life-without-parole sentencing option, and no one can guarantee this defendant would never be freed to commit other crimes were his sentence commuted,'” says Hall, who has so far been unable to persuade legislative leaders to debate a moratorium proposal introduced by Rep. Elliott Naishtat. “I think Governor Perry, in saying that, was sending a clear message to the Legislature that he would sign a life-without-parole bill that landed on his desk.” A year later, he did.

It’s unclear how much of the decline in death sentences in Texas can be linked to the life-without-parole option, or whether it’s more a symptom of growing public uncertainty about the ultimate punishment. “Whether you can chalk that up to the life-without-parole statutes that have gone on the books in Texas and other states in recent years remains to be seen,” Dieter says, pointing out that death sentences across the nation are down about 60 percent over the past five years. “But all indications are that people, and juries, want that option.

“When you present life without parole to juries, it lifts any confusion they might have about whether someone is ever going to walk the streets again. Even though a traditional life sentence in Texas meant there was no possibility of parole for at least 40 years, there’s always that misapprehension that someone could be out in a matter of a few years. So there might not be any difference in the eye of a juror who’s just seen those 8×10 glossy photos of a horrible murder scene who wants to be assured that the person responsible never walks free among us again.”

Juan Quintero’s trial was a powerful example. When Harris County jurors began deliberating his punishment for killing Rodney Johnson, defense lawyer Danalynn Recer laid a foundation to show that despite her client’s heinous act, his life still had value. Jurors were told that he had no record of past violence and was both deeply religious and deeply remorseful.

The prosecution painted a starkly different picture. “You look for some humanity in this defendant. You look for some emotion, some heart, some soul in this defendant,” said prosecutor John Jordan. “You can watch [his videotaped confession] 20 times and you won’t find it.”

Despite pleas from Johnson’s family and police colleagues that Johnson’s killer be sentenced to die, the jury sided with the defense-and clearly responded to Recer’s arguments. “I believe he has value,” juror Letty Burkholder told the Houston Chronicle. “He’s loved by many of his family and friends, and that was number one. I felt like he has potential.” Added Tiffany Moore, another juror: “I still feel we came to the right decision. We could never bring Rodney back. I feel very sad for the family, losing a loved one.”

Recer declined to be interviewed for this story, but after the trial she told Scott Henson, an Austin activist who blogs about criminal justice issues at gritsforbreakfast.blogspot.com, that she had seen an obvious shift in attitudes about capital punishment during jury selection. Five times as many potential jurors were excluded for saying their consciences would not allow them impose a death sentence, she said, than were scratched for ruling out consideration of life without parole. She also told Henson, a consultant for the Texas Innocence Project, that Quintero was so guilt-ridden, he had considered abandoning his defense and waiving his appeals, essentially volunteering for the death sentence. But he had changed his mind, she said, when his children intervened, reminding him that “his life is not over, he’s still a dad.”

For Texas prosecutors, the increasing appeal of the life-without-parole option might have as much to do with basic economics as with an evolution in opinions about the fairness of the death penalty. “The dirty little secret about life without parole is that it gives the DAs peace with honor, so to speak,” says Henson. “Death penalty cases are getting so expensive, especially when you add in all the appellate costs, that it just decimates their budgets.But with life without parole, they still get a capital conviction without all that cost.”

The cost issue weighs heavily on county governments, says Larry Fitzgerald. Since his retirement from the prison system, Fitzgerald has been engaged by defense lawyers as an expert witness in several cases where prosecutors have pushed for the death penalty, assuring jurors that life without parole is really for life. “Basically, taxpayers are paying for both sides of the freight,” says Fitzgerald, who supports the death penalty but believes that it has been overused in Texas. “The vast majority of the defendants are indigent, so they get court-appointed lawyers. Plus, with every death sentence, there’s an automatic appeal, so that means the taxpayers are on the hook for that one, too.”

The cost to the state of lifetime lock-ups is far less by comparison, experts say. Since the mid-1990s, when lawmakers enacted sweeping get-tough-on-crime legislation that tripled the size of the prison population-to more than 150,000 now-the Texas Department of Criminal Justice has added geriatric units and even a hospice system. “With the relatively small number of life-without-parole inmates we’ve received so far, there shouldn’t be a significant impact” financially, says Michelle Lyons, the department’s spokeswoman.

But neither shifts in public opinion nor economic factors have swayed prosecutors like David Weeks, the Walker County district attorney, who fiercely opposed the new sentencing option every time Sen. Lucio introduced it. “I never thought life without parole was a good idea, but it hasn’t affected my business here one bit,” says Weeks, whose office prosecutes crimes committed on the prison properties of Huntsville. “We’ve only had one capital case since it went into effect, and we’re pushing hard for the death penalty.”

That case involves a September 24, 2007, escape attempt by two prison inmates who managed to wrest a gun away from a correctional officer supervising an outdoor work crew. The inmates and guards exchanged gunfire, and one of the inmates took control of a prison pickup truck and rammed it into a horse being ridden by another officer supervising the crew. Fifty-nine-year-old Susan Canfield was thrown from the horse and smashed into the truck’s windshield. She died from her injuries. The horse was shot in the crossfire and later had to be euthanized.

Both inmates were in prison for violent crimes but had behavioral records that qualified them for outside work. Jerry Martin was serving a life sentence for murder. John Ray Falk was doing 50 years for the attempted murder of a police officer. The escaped men were caught within a few hours. Weeks expects the pair to be tried together this spring.

“If some folks are worried about the high cost of death penalty cases, I’m not,” says Weeks, the legislative liaison for the Texas Association of District and County Attorneys. “I have no trouble going to the taxpayers and saying, ëWe need to pony up and make sure justice gets done.'”

But even though many prosecutors still don’t like the life-without-parole statute, Weeks says he doubts that any serious effort will be made to repeal it.

One of the compromises Lucio made to win passage of the bill was to eliminate the option for juries to hand down a sentence of life with the possibility of parole after 40 years in capital murder cases. Some lawmakers who had opposed keeping that option argued that it might confuse juries, and possibly anger crime victims’ families who would worry about the killers’ eventually gaining their freedom. But Lucio says that one unintended consequence of the bill in its final fo
m was to give defendants who might have been parties to a killing-but not the actual killers-an incentive to plea bargain for a lesser charge, which means that they might one day win parole and that their cases can be disposed of more swiftly.

“The way it’s working so far, we are still able to hold out that parole option in some of these unique circumstances,” Lucio says.

During the years when he was gathering support for life without parole, one of Lucio’s frustrations was that state leaders had no system for determining how many capital murder trials ended with death sentences and how many resulted in lesser sentences. So two years after the life-without-parole law took effect, he pushed successful legislation requiring that Texas’ 506 district courts submit reports to the Texas Office of Court Administration documenting the outcome of each capital case.

The early findings show that 58 capital cases were decided between July 31, 2007, and October 13, 2008. Jurors opted for life without parole in 15 of those cases and imposed the death penalty in six. One defendant was acquitted. (The others either involved cases where murders were committed before the new law took effect, meaning that life without parole could not be considered, or where convictions fell short of capital murder or were plea-bargained to a lesser charge.)

In states like Florida, controversy has swirled over younger killers-some in their teens-being sentenced to life without parole. In Texas, case reports are not broken down by ages, but three defendants under 21 — the youngest being 18 — have so far gotten life without parole in the state. Lucio says that if his law means underage killers spend five or six decades behind bars, it’s all right with him. “Hopefully,” he says, “these people who get locked up come to terms with that fact and manage to make something of their lives, even if it’s in prison.”

Juan Quintero’s life now goes on in the Polunsky Unit in Livingston, which is also home to death row. When capital offenders like Quintero are sentenced to life without parole, they are assigned to the general prison population and can be eligible for jobs within the system based on an evaluation that looks at such factors as education levels and in-prison behavior. One of a growing number of Texans given the chance to live-in a case that not long ago would have meant near-certain execution-Quintero now works on a supervised squad that tends to the crops grown on the unit’s sprawling property.

John Moritz is a freelance reporter in Austin who has covered the Texas criminal justice system for more than a dozen years and has been a media witness to 20 executions in Huntsville.

Investigative reporting for this article was supported, in part, by a grant from the Open Society Institute.

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