With 2015 two-thirds over, the Texas Department of Criminal Justice this year has yet to process a single new prisoner into its death row unit in Huntsville. The dramatic slowdown has caused the Polunsky Unit’s population to plunge to 257 residents, the lowest number since it peaked at 460 in 1999.
That year represented another milestone for the state’s death chamber waiting room. The first man to arrive in 1999 was Robert Neville, who checked in on Jan. 5, after his Tarrant County conviction for killing a disabled grocery bagger. (The only woman sent to death row that year, Suzanne Basso, who beat her boyfriend to death, arrived Oct. 28.) The last, Geno Wilson, took up residence two days before the close of the year, following his conviction for killing a man during a robbery in Houston. In all, 1999 saw 48 Texas inmates added to death row — more than any other year before or since.
From four dozen to zero in less than a generation is an extraordinary reversal for a state known for its support of government executions. A deconstruction of the historic class of 1999 illustrates some of the trends responsible for the change.
For starters, there is no obvious reason for the close-of-the-decade surge. The second-highest number of death sentences was in 1994, when the Texas prison system processed 43. Yet violent crime in Texas generally had been dropping since the early 1990s, and has continued to fall.
In Houston, where nearly a quarter of the Class of 1999 was prosecuted for its crimes, the number of murders fell from more than 600 in 1991 to less than a half of that in 1998. “I don’t have a theory as to why a specific number of death penalties were tried in 1999,” said Roe Wilson, who has handled the Harris County district attorney office’s post-conviction death penalty writs since 1986.
Prosecutors cite the lack of a life-without-parole sentencing option as a major reason for their active use of the death penalty at the time. (That changed in 2005; today just less than 100 inmates a year earn the life-without-parole sentence.) Anti-execution advocates say the high number of death penalty sentences at the time, despite the declining murder rate, represented the height of tough-on-crime paranoia — an effect detached from its cause.
Scott Henson, author of the well-regarded Grits for Breakfast criminal justice blog, views the Class of 1999 as the crest of a wave churned up by political turbulence. At the time, Democrats statewide were losing power. “So Democrats were trying to out-Republican the Republicans by getting ever more tougher on crime,” he said.
But a willingness to deploy the death penalty only partially explains the bulge. Kathryn Kase, executive director of Texas Defender Service, said money and geography have contributed, too.
Eleven members of the class of 1999 came from Harris County. Dallas, Bexar and Potter counties added another dozen. On one level, it’s not surprising to see such high numbers from the state’s population centers.
But Kase also notes that placing convicts on the execution waiting list is expensive. Studies have pegged the cost to taxpayers of trying a death penalty case of between just under $1 million to $3 million. Some small counties have had to raise taxes to cover the cost.
“So what it has always boiled down to is which counties have the money to put people on death row and keep them there,” Kase said. She contends prosecutors from Texas’s larger counties have been more likely to pursue an execution than their rural colleagues facing comparable crimes because they can afford to.
Of the four dozen people who arrived on Texas’ death row in 1999, half have been executed. That comports generally with the prison system’s numbers over time. Since 1982, Texas has executed 528 prisoners. Another 257 remain on death row, while 306 have been removed from the unit or died. (The latter two numbers include prisoners from before 1982, altering the ratio slightly.)
For those who leave, their exit routes vary. Raymond Reese, who killed a pregnant woman and her husband in Hidalgo County, died of cancer three years after arriving at Polunsky in March 1999. Harris County’s Calvin McGee died from natural causes in 2004; he’d been sentenced to death in March 1999 for killing a woman during a carjacking.
Some depart because they shouldn’t have been there at all. Thirteen Texas men awaiting execution have been freed after it was determined they’d been wrongfully convicted.
One, Michael Toney, arrived with the class of 1999, convicted of setting a bomb 15 years earlier that killed three people. Appellate judges later concluded Tarrant County prosecutors withheld crucial evidence. (Released from Polunsky in September 2009, Toney died a month later in a car wreck.)
It’s a relatively small number (one study estimated 4 percent of death row inmates nationally are wrongly accused). Yet the fact the state can march the innocent so close to the cliff’s edge before admitting error almost certainly has eroded public support of the death punishment.
15 still on death row
Six of the 1999 death row class — 12 percent — left the Polunsky Unit on the same day.
When Leo Little, Derek Guillen, Christopher Solomon, Michael Lopez, Bruce Williams and Geno Wilson committed their murders, each was 17 years old. Historically, that made little difference in Texas; between 1985 and 2002, the state executed 13 men who committed their crimes as juveniles, according to the nonprofit Death Penalty Information Center.
While the youngest members of the class of 1999 were awaiting their fate, however, the U.S. Supreme Court in March 2005 ruled that executing prisoners who were minors at the time of their crimes was unconstitutionally cruel. Three months later, the six Texas men had their sentences commuted to life in prison.
That leaves 15 of the class of 1999 still on death row 16 years after arrival. They are hardly alone in their lengthy limbo. Five men in Polunsky arrived there in the 1970s; another 18 arrived in the 1980s.
In many cases, lengthy appeals can delay an execution for decades. But to Kase and others who oppose the ultimate penalty, why one prisoner dies and another lives can also appear capricious — an example “of how people are not treated equally within the system,” she said. A federal court heard a case on Aug. 31 contending such discrepancies rendered California’s death row system “arbitrary.”
Consider two of the Texas 1999-ers. John King arrived on Texas’ death row Feb. 25, 1999; Lawrence Brewer arrived on the Polunsky Unit seven months later. Both men were convicted of kidnapping and murder in the notorious racially motivated dragging death of James Byrd Jr., in Jasper County.
While Brewer was executed, in September 2011, King remains alive, his case pending appeals. “Who is going to be executed and who is going to be left alive,” Kase said, “can be like a lightning strike.”