Will Texas now hand out fewer death sentences?

In what may lead to a significant decline in death sentences, Texas has decided to allow jurors in capital cases to choose life without the possibility of parole instead of death when they see fit.

While it is one of the last states with capital punishment to add the sentencing option, some say it proves that even a law-and-order state like Texas is growing uneasy with the notion that the justice system is infallible when applying the death penalty.

Others see it is a necessary tough-on-crime measure, one that ensures a convicted killer will never roam the streets again.

Despite the divergent views, one thing seems certain: The death penalty is being refined, both at the federal and state levels. One enduring question is whether so many limitations will eventually be put on society's ultimate sanction that it becomes virtually obsolete, or whether it will just now be invoked in a narrower band of cases, such as for the worst of the worst.

"I see it as the latter," says Robert Blecker, a death-penalty expert at New York Law School. "And Texas is simply part of that larger movement to limit it."

The Lone Star state now joins 36 other death-penalty states in having the life-without-parole option. New Mexico, which has put only one person to death since the punishment was reinstated in 1974, is now the only such state not to have the option.

Experts say that the number of death sentences tends to drop in states where life without parole is an option.

"Polling data shows that most people want a life-without-parole option," says John Blume, director of the death penalty project at Cornell Law School in Ithaca, N.Y. "But while support does drop for the death penalty, it doesn't go away."

A main thing driving jury decisionmaking in capital cases, he says, is the misperception of how long a killer will spend in prison if sentenced to life with parole. His studies show that jurors significantly underestimate the length of a life-with-parole sentence.

In Texas, for instance, a life sentence is 40 years - a significant increase from recent years. But most people believe a convicted killer will be released much sooner than that.

Governor Perry, a Republican, said he signed the bill because it ensures that perpetrators of heinous murders will never be released from prison - even if appellate courts overturn their death sentences.

He and many prosecutors opposed the bill until the life-with-parole option was stripped from it.

"That third option was really an attempt to confuse and create more havoc within a capital-murder trial," says Diane Clemens, head of the Houston-based victims' rights organization, Justice for All.

While she's unsure if the number of death sentences will drop because of the new sentencing option, she is convinced that juries will continue to hand out capital sentences for the most horrific crimes.

It's true that Texas juries still want the death penalty for the worst of the worst, says Steve Hall, project director for StandDown Texas, which advocates a moratorium on the death penalty.

"But polling clearly indicates that Texans are increasingly troubled by the application of the death penalty," he says.

A Scripps Howard survey in November 2004, for instance, showed that 70 percent of those polled believed that the state has executed an innocent person. That was up from 56 percent five years ago.

A string of capital-case exonerations and high-profile problems with a crime laboratory in Houston are two reasons behind the growing uncertainty with the ultimate punishment, says Mr. Hall.

For their part, death-penalty supporters agree the number of capital sentences is dropping nationwide, but they see other reasons for it.

First and foremost, the murder rate is down substantially in many cities.

Second, many prosecutors have become more discriminating in asking for capital punishment, says Joshua Marquis, an Oregon district attorney on the board of the National District Attorneys Association. So if the number of cases being considered for death is down, he says, the number of death sentences has to be down as well.

"What's happening in the Supreme Court is not a sea change," he says, referring to recent rulings by the high court on capital punishment. "They are simply narrowing the categories for which death is appropriate."

While many believe Texas is finally taking a step forward with the new sentencing option, Professor Blecker believes they are taking a step backward.

"Life without parole is a very strange sentence when you think about it. One can argue that it is either too much or too little," he says. "If you find that someone deserves to die, than you should kill them. Otherwise, leave the hope alive that a person can change or transform themselves."