LWOP created boomlet in TX capital cases along with death penalty decline

Several disparate, recent stories combine to paint an unlikely picture of capital murder sentencing in Texas. Since the state introduced the option of a life-without-parole (LWOP) sentence for capital murder in 2005 - simultaneously eliminating the possibility of parole for capital crimes - the number of capital cases filed has escalated, reports the Odessa American, while the number of new death sentences has plummeted (from 48 in Texas in 1999 to 8 this year). Meanwhile, of course, murder rates have continued to decline over the same period.

What does it all mean? For starters, that the increase in capital cases does not result from more heinous murders (there are actually fewer) but from changing prosecutorial charging decisions. Prosecutors are pursuing capital cases more often where they previously would have sought plain old murder charges because it provides a bigger stick to threaten defendants with (i.e., death) during the plea bargaining process. Even though more capital cases are getting charged, however, most prosecutors who're driven by pragmatic as opposed to political motives prefer not to pursue the death penalty, which can be so costly that smaller counties sometimes have had to raise taxes or issue bonds to pay for a single case. So we get this boomlet of "capital" cases, but nearly all of them result in LWOP instead of death sentences.

It's also pretty clear that - with murder rates declining in Texas while both the frequency of executions and new death sentences also declined - it'd be impossible to attribute the murder reduction to any supposed deterrence effect from capital punishment. If there's any correlation at all (notice I didn't say causation), the murder rate declined more or less in tandem with the declining use of the death penalty in Texas, and was much higher back in the '90s when it was exercised more frequently.

Other than that, it's hard to know what conclusions to draw from such counter-intuitive data except that prosecutorial discretion matters a lot more in what sentences defendants end up with than is frequently considered by those writing the laws. I'm not sure the LWOP bill would have passed if the Lege had known the result would be a much larger number of capital murder charges filed. Perhaps, but it certainly wasn't part of the terms of debate at the time.

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