On the Deterrent Effect of Senate Bill 60

Texas has executed 542 people since 1976. That’s nearly 4 times more than any other state in the union. Oklahoma and Virginia are tied for a not-so-close second place, both tallying in at 112 executions in the same period [1]. It gets more lopsided when you look at the county of conviction — only 7 of the 254 counties in Texas have sentenced more than 20 people to death [2].

In September of 2005, Senate Bill 60 went into effect [3]. It increased jury discretion by updating the Texas Penal Code to make the mandatory minimum in capital convictions life without possibility of parole, where previously it was life with possibility of parole. Before the bill, in its primary author Senator Eddie Lucio’s words, “Juries were faced with a difficult decision… sentence a convict to death, or worry that he or she may be released on parole in around 40 years… juries usually opted for the death penalty.” [4]

Figure 1. Sentences retrieved from Texas Department of Criminal Justice, “Executed Offenders,” and “Offenders on Death Row.”

Looking at county level data can tell us about what effect SB 60 has had on sentences and murder rates, providing us with insight into whether or not the death penalty is a “deterrent.” You can see from Figure 1 that with the passage of SB 60, the number of people sentenced in two of the biggest death penalty contributors, Harris and Dallas counties, went down. What did that drop in sentences mean for the murder rate? Not much.

Harris County

Harris County’s death penalty statistics are staggering. It is responsible for 23 percent of those already executed (127 people). Of the 240 currently on death row, 34 percent of them were sentenced in Harris (84 people) [see 2]. The vast majority of these sentences were won Johnny B. Holmes, who began his 21-year tenure as Harris County DA in 1979, and ended with over 200 death penalty sentences [5]. That means that 25 percent of all of Texas’ sentences in the modern era that can be traced back to one man.

If death penalty sentences deter murder, then murder rates should respond to changes in sentencing. If deterrence exists, then Harris, being the riskiest place in Texas to be a murderer, should show the most evidence for it. But the evidence is muddled at best, and contradictory at worst.

Figure 2. Sentences retrieved from Texas Department of Criminal Justice, “Executed Offenders,” and “Offenders on Death Row.” Murder rates retrieved from Texas Department of Safety, “Crime in Texas” Reports.

Following the enactment of SB 60, sentences dropped significantly and the murder rate rose at the same time, which is quite striking. But it doesn’t mean much. The number of sentences were exactly the same in 2008 as in 2005, and the murder rate dropped in that year. To complicate things, sentences dropped by 5 in 2005 where they increased by only 1 in 2007, and the magnitude of the murder rate’s response was roughly the same. The pattern is so inconsistent that we can’t say with certainty whether deterrence exists.

It may even be the case that the more sentences we have, the less we see deterrent effects, a phenomenon referred to as “diminishing marginal returns.” For example, in 2003 the number of sentences climbed from 6 in the previous year to 7, and the murder rate decreased by 0.11. But in 2007, when sentences increased from 1 to 2, the murder rate fell by 1.21, a much more significant change. If it’s true that the death penalty displays diminishing marginal returns, then the Harris County “kill all” strategy doesn’t make much sense.

Dallas County

Dallas County, which is similar in size and population dynamics to Harris, has executed only 10 percent of the Texas total (56 people), and sentenced 11 percent of those currently on death row (28 people) [see 2]. Dallas is representative of densely populated counties — somewhat of a “normal” city.

Figure 3. Sentences retrieved from Texas Department of Criminal Justice, “Executed Offenders,” and “Offenders on Death Row.” Murder rates retrieved from Texas Department of Safety, “Crime in Texas” Reports.

SB 60 seems to have had little effect on Dallas sentences. They dropped in 2004 (before the passage of the bill) and remained low until 2009. It isn’t surprising that a bill shifting power from prosecutors to juries would have a lesser effect on Dallas than on Harris, with its relatively tame DA’s office. But even if SB 60 did have an effect on sentences, it had almost none on murder rates. The increase in the murder rate in 2004 seems significant, but they decreased in 2005 when sentences dropped even further. The inconsistency of the relationship between murder rates and sentences again implies that deterrence is not significant.

Travis County

Travis County is responsible for only 1 percent of those executed in Texas (8 people), and 2 percent of the current death row (6 people) [see 2]. This is representative of most Texas counties, who use the death penalty sparingly. Figure 4 shows a regular variation of murder rates in Travis. There is no reason to believe that SB 60 relates to these variations, or sentencing for that matter. Travis, like most counties in Texas with low murder rates and scarce sentencing, has very little role to play in a discussion about deterrence.

Figure 4. Sentences retrieved from Texas Department of Criminal Justice, “Executed Offenders,” and “Offenders on Death Row.” Murder rates retrieved from Texas Department of Safety, “Crime in Texas” Reports.

It’s time for Texas to consider its motives.

When considering any policy, we should think about its costs and benefits. Because SB 60 decreased sentencing and had little to no direct effect on the murder rate in any of the counties discussed, we shouldn’t consider deterrence a significant benefit of the death penalty. As for costs, some estimates have placed the death penalty at the same or a higher cost than life imprisonment [6]. Johnny B. Holmes once said, “I say without apology that if you murder someone here, the State of Texas is going to kill you.”[7] But why, if we do not see concrete benefits in the form of lower murder rates, must we continue to execute every murderer?


Notes

  1. Death Penalty Information Center. (2017, April 28). Number of Executions by State and Region Since 1976.
  2. Texas Department of Criminal Justice. (2017, May 4th). “County of Conviction for Offenders on Death Row,” “Total Number of Offenders Sentenced to Death from Each County,” and “County of Conviction for Executed Offenders.”
  3. Information on SB 60, including the bill’s text, can be found at Texas Legislature Online here.
  4. Senator Eddie Lucio. (2015, October 23). The Past, Present, and Future of the Death Penalty in Texas.
  5. Turner, A. (2007, July 25). Former DA ran powerful death-penalty machine. Houston Chronicle.
  6. McLaughlin, J. (2014). The Price of Justice: Interest-Convergence, Cost, and the Anti-Death Penalty Movement. Northwestern University Law Review 108(2), 675–710.
  7. Seiver, S. (2015, August 11). Why Three Counties That Loved the Death Penalty Have Almost Stopped Pursuing It. The Marshall Project.
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