Fort Worth — While the debate over capital punishment rages in Texas, the number of inmates sentenced to death row in 2009 is at a 35-year low.
Prosecutors have been pushing for fewer death sentences and, many observers believe, juries have become less willing to give them.
The biggest game-changer, several prosecutors and defense lawyers said, appears to be the introduction in 2005 of life without parole as an option. Jurors in capital cases previously were responsible for choosing either the death penalty or a life sentence in which a convicted killer could be eligible for parole in 40 years.
"With life without parole being a viable option now, [juries] feel a lot more comfortable that that person is not going to be let out back into society," Tarrant County Dist. Atty. Joe Shannon said. "We are probably waiving the death penalty more times than we used to because we're trying to forecast the outcome of the case."
But because of the state's growing list of exonerations via DNA evidence and other questionable convictions, some argue that juries are simply less willing to send someone to death row.
Democratic state Sen. Eddie Lucio Jr., author of the life-without-parole law, said prosecutors were trying to blame it for their troubles getting Texans to trust a scandal-ridden system.
"It isn't life without parole that has weakened the death penalty," Lucio said. "It is a growing lack of belief that our system is fair."
A poll from Rasmussen Reports released this month found that 73% of Americans are at least somewhat concerned that some people may be executed for crimes they did not commit. Numerous reports of death row inmates being exonerated have surfaced in the U.S. in recent years.
In the four years since the introduction of life without parole, Texas death sentences have dropped 40% compared with the four years earlier, state records show. The number of slayings each year in Texas stayed largely unchanged during that period, according to the Texas Department of Public Safety.
Texas juries sentenced 13 people to death in 2008. Nine have received death sentences this year. That's a far cry from 15 years earlier, when juries sent 49 people to death row.
With the new punishment option, prosecutors feel comfortable waiving the death penalty in more cases, and defense lawyers are often more willing to plea-bargain, according to lawyers on each side of the courtroom.
"You need a D.A. that's willing to offer life and a client willing to take life," said Phil Wischkaemper, a capital assistance attorney for the Texas Criminal Defense Lawyers Assn. "We're encouraging people to get these cases worked out and pled."
Some, however, still believe that a capital murderer who avoids death row gets off too easy.
"I think anyone that's convicted of capital murder should be executed, period," said William "Rusty" Hubbarth, an Austin attorney and vice president of Justice for All, a victims' advocacy group.
"I feel it's a deterrent. I feel it's justice. And I feel that it's necessary. It's the ultimate sanction reserved for the ultimate violation."
But in Texas murder trials in which prosecutors sought the death penalty, the chances of the jury delivering that sentence dropped below 50% this year, according to the Texas Defender Service, a nonprofit group that aids defense teams in death penalty cases. Lawyers say the chance of a death penalty conviction was much higher several years ago.
Scott Phillips, an associate professor of sociology and criminology at the University of Denver, said death sentences have declined nationwide -- suggesting that the option of life without parole is just part of the reason in Texas.
"People are obviously concerned about innocence," Phillips said. "People are concerned about cost. . . . People are concerned about racial disparity."
In the recession, the higher costs of pursuing the death penalty have become harder to ignore, and life without parole is a far cheaper alternative.
Death penalty trials are longer, with a punishment phase that takes more time and appeals that typically go on for years.
Pursuing life without parole from the outset can save millions of dollars in legal costs and settle cases quickly.
"You save a lot of money, a lot of time," said Bill Harris, a Fort Worth defense lawyer who is president-elect of the Texas Criminal Defense Lawyers Assn. "And you have a guarantee that this person will be incarcerated for the rest of their life."