Public radio stations from across the state collaborated on this series looking at the death penalty in Texas – its history, how it’s changed, whom it affects and its future. The following story is from Houston Public Media:

Texas is set to carry out its second execution of the year this week, barring a last minute reprieve. There are another seven planned by July. The use of the death penalty has been on the decline in Texas in recent years. But one state representative from Houston has made it his mission to end it all together.*

Harold Dutton’s law office sits two stories above the Main Street rail line in Midtown. One morning in 2002 he was drinking a cup of coffee and reading his daily paper, “and it talked about an execution that had taken place. And it said that it did it in the name of Texas,” he says. “And I thought, ‘Oh, that’s me.’ And so they did it in my name.”

The idea really bothered him. “And I said, ‘I really don’t want them doing it in my name.’”

He had already tried to stop new death sentences in Texas, after seeing states like Illinois take similar steps.

“The way the death penalty works in Texas now,” Dutton says, “is your case is automatically appealed from the lower trial court all the way up to our Court of Criminal Appeals, which is the highest criminal court, and if they deny your appeal, they send it back to the lower court for setting an execution date.”

In 2001, Dutton proposed a bill that would keep the appeals court from sending back any death penalty cases to the lower court for two years. That one made it to the House floor.

Then one of Dutton’s opponents spotted what he was doing. “He got up and went to the back mic and said, ‘Representative Dutton, this looks an awful lot like a moratorium.’ And I said, ‘That’s because it is.’ And the whole House stopped, and of course, the bill died at that point.”

That was before Dutton’s fateful cup of coffee. Dutton offered his first bill to abolish the death penalty in 2003. He’s filed at least one bill to that end every legislative session since.

Dutton also began to bring former inmates to testify at the Capitol. Some had been sentenced to die, but were exonerated after DNA or other evidence proved their innocence. Others had pled guilty, even though they weren’t, in order to avoid a death sentence. Dutton says their stories have changed minds but rarely votes.

“There are members who have said to me privately, ‘Harold, you know, I like the idea you file that bill every year, but I just can’t vote for it, because I don’t think I’d get reelected,’” he says.

Dutton is not the only reason Houston and surrounding Harris County are at the epicenter of the death penalty debate. Kristin Houlé heads the Texas Coalition to Abolish the Death Penalty. She’s tracked the number of death sentences in Texas over the past four decades and broken them down by county.

“At the top of that list is Harris County, which has sentenced nearly 300 people to death and accounts for 126 executions,” Houlé says. “That’s more executions than any other state except for Texas as a whole. But even in Harris County, use of the death penalty is declining. No one has been sentenced to death out of Harris County for the last two years.”

There are several reasons why death sentences have been falling in Texas. The use of DNA testing, for one. Another is negative publicity over botched executions. Then there’s the cost. Because of the lengthy appeals, it often costs hundreds of thousands of dollars more to execute someone than it does to keep them in prison for life.

“I think there has been more of a tendency for juries to opt for the sentencing option of life in prison without the possibility of parole when they have that opportunity,” says Jack Roady, criminal district attorney for Galveston County.

Before his election, Roady was a prosecutor with the Harris County DA’s office, and worked on many death penalty appeals. He notes the state legislature only made life without parole an option in Texas in 2005. Roady says that’s fine, “but there are some cases where the sentence of death is the appropriate punishment, and juries in Texas, in fact juries in the country, need to have that ability to impose that punishment if the evidence supports it.”

Roady feels most of his constituents aren’t ready to give up the death penalty as a way to punish what he calls “the worst of the worst,” though he says abolition could happen if enough Texans decide that’s what they want.

Dutton is counting on that. “Now that the public is also beginning to have a clearer view of the issues related to this whole issue of capital punishment,” he says, “that has made even legislators now have to stop and take a look.”

Dutton’s already filed his bill for the 2017 legislative session. He’s hoping, this year, more of his colleagues will join him.

*Editor’s note: This story has been updated to reflect that one of the two executions set for this week has been rescheduled to July.

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  • Mrs. Maura Irby (widow of James B. Irby EOW w/ HPD 6/27/1990 January 25, 2017 at 1:12 am

    Rep. Dutton. I appreciate your stance on the death penalty. I once believed as you do. My husband and I spend our careers {as do our children in our footsteps} saving peoples lives, homes….making the world in the US safer. My whole family has been and most continue to carry a legacy of public service. I grew up the daughter of a career Air Force jet jockey. My father had 22 years in the Air Force and retired a Lt. Col. My husband had 20 months to go before he a 3rd generation Law Enforcement Officer was going to retire. He wanted to open a feed store and BE A DAD! I was going to be the primary “bread winner”. Our daughter (now an EMT-P almost) was 4 days after her 1st birthday….our son (a 4th generation LEO has nearly 10 yrs. with Pflugerville PD) turned 3 yr. old a month to the day after Carl Wayne Buntion murdered the love of my life in broad daylight! There were almost 20 corroborating witnesses with the same exact story. How unusual is that? Please I beg you? Please do NOT make Buntion an example of how terrible death row inmates are treated!! That evil being was 41yrs/? 42yrs.? (his accounts vary) when he intentionally & with ALL malice of forethought shot my husband across the top of a car through the head & helmet the “strolled” according to witness accounts around the car and shot Jim Irby 4 more times through the back. Directly through his heart and lungs. Then fled. He (despite 2 trials) has NEVER offered one whisper or remorse! He would not eve look any of my family in the eye during the trials. I was NOT in favor of the death penalty! But when the DA sat down with me and explained that there was no life without parole in Texas (at that time) and even if there was….any legislature could come along years later and change the law so that evil being would be freed…I changed my mind!! 4 years ago when the penalty phase of Buntion’s original trial was overturned and we (as a family, my son already a LEO) had to essentially live through a new trial I was forced to watch the faces of my children who had to hear & see things they SHOULD have NEVER experienced??? My somewhat flagging and politically questioning stance on the death penalty was re-energized! I was told that under the statutes that originally resulted in his convicted & sentenced under (have now been changed somewhat, but not grandfathered back far enough to help us) he would have been ELIGIBLE FOR RELEASE!!! NOT parole, but RELEASE!!! Would you have wanted him in YOUR neighborhood?? Would you want him to have come upon your child in a parking lot somewhere?? Please do not speak of neglected medical care. I am a retired Firefighter/Paramedic/Flight Nurse. I have been an RN in practice for over 30 years!! Unfortunately, according to my physicians (pulmonologist, cardiologist, nephrologist, even an immunologist) most of my health problems have been the result of MANY YEARS OF STRESS!! So I have little pity for Buntion’s or any other Capital Murderer’s health issues. Our children I have raised alone both suffer from depression, PTSD…our daughter suffers from Asperger’s Syndrome & Bipolar Disorder. Our health problems have nearly bankrupted me! Our children hardly know the GREAT man their father would have been to them! Our only grandchild {a grandson…Truett James Irby….he will be 4yrs. old in May. Oddly enough, 10 days before his Grandfather would have been 65yrs. old} will never know much of James B. Irby. But will be aware due to the media that will cover everything about him life & death (by natural cause more than likely or an execution) about Carl Wayne Buntion. Does that seem fair to you?? It is also very likely that he will suffer some mental distress due to the murder of his Grandfather. One HPD Psychologist described what would happen to our family for years & generations to come….as the ripples on a pond moving out from a pebble dropped in the center. I have already asked for alerts on the legislative website for anything having to do with Criminal Justice, the prison system or the death penalty. I can promise you I WILL be at every discussion, every hearing, every committee meeting I can possibly make to defeat you!! I am also; if you look back a 28yrs or even 4yrs. no novice at using the media to have an impact! We have a beautiful family and a successful family!! Despite the evil that impacted our lives! If he had ever ONCE truly expressed remorse or prayed for redemption/forgiveness, apologized for what he stole from our children, 4 nieces, 1 nephew and our grandson?? I might, probably would see my way clear to forgiveness & benevolence myself. As a devout Catholic family? It has caused many of us a terrible time and probably condemned me to the same place he goes. I work on being forgiving every Sunday! I WILL be seeing you Rep. Dutton and I will keep YOU in my prayers as well! Thanks for you service, Maura Irby