Will a Person with Intellectual Disability Become Texas’ 600^th Execution in the Modern Era?

On Friday, May 8, 2026, a three-judge pan­el of the United States Court of Appeals for the Fifth Circuit tem­porar­i­ly stayed the exe­cu­tion of Edward Busby, who had been sched­uled to be exe­cut­ed in Texas on May 14, 2026. Mr. Busby is a per­son whom all experts agree has intel­lec­tu­al dis­abil­i­ty, and he is there­fore legal­ly inel­i­gi­ble for exe­cu­tion. Despite this, Texas Attorney General Ken Paxton has asked the United States Supreme Court to lift the stay, and if that hap­pens, and Governor Greg Abbott denies clemen­cy, Mr. Busby will become the 600^th per­son exe­cut­ed in Texas in the last 50 years. 

Mr. Busby’s case is illus­tra­tive of sev­er­al pat­terns that show how the death penal­ty is used  in Texas and nationally: 

Declining Use of the Death Penalty

This mile­stone in Texas’ use of the death penal­ty high­lights the state’s chang­ing approach to cap­i­tal pun­ish­ment. Although Texas remains the nation­al leader in the total num­ber of exe­cu­tions in the mod­ern era, its pace has slowed dra­mat­i­cal­ly in recent years. Texas’ first exe­cu­tion in the mod­ern era took place on December 7, 1982. In the ear­ly years, Texas car­ried out its first 100 exe­cu­tions in just under 13 years (12/​7/​82 – 10/​4/​95). The next 100 exe­cu­tions occurred in just over 4 years (12/​6/​95 – 1/​12/​2000). That peri­od also marked the heav­i­est use of the death penal­ty across the U.S. In 2000, Texas car­ried out 40 exe­cu­tions, the most ever car­ried out by a sin­gle state in a sin­gle year. It reached 300 exe­cu­tions on March 20, 2003, exe­cut­ing 100 pris­on­ers in just over three years. Execution num­ber 400 took place on August 22, 2007, four years and five months lat­er. Thereafter, the pace of exe­cu­tions began to slow, and Kimberly McCarthy became the 500^th per­son exe­cut­ed in Texas on June 26, 2013, almost six years after the 400^th execution. 

It has been near­ly 13 years since that 500^th exe­cu­tion, evi­dence of the remark­able change in how and when Texas uses the death penal­ty. The drop in num­bers of new death sen­tences has mir­rored the decline in exe­cu­tions, reflect­ing changes in the law and a grow­ing dis­com­fort with the death penal­ty. Where Texas juries once imposed 48 death sen­tences in a sin­gle year (1999), in the past decade juries have cho­sen life sen­tences far more often. Just 38 peo­ple have been sen­tenced to death since 2016.

Texas is also no longer the epi­cen­ter of the American death penal­ty. Just once since 2020 has Texas per­formed more exe­cu­tions than any oth­er state. In 2025, Florida became the extreme out­lier with 19 exe­cu­tions. Texas’ five exe­cu­tions rep­re­sent­ed just 10.6% of the nation­al total for the year.

Geographic Isolation

Use of the death penal­ty has always been geo­graph­i­cal­ly iso­lat­ed in Texas, a trend that is becom­ing more evi­dent as use declines. More than half of the state’s 254 coun­ties have nev­er imposed a death sen­tence. Three coun­ties (Harris, Tarrant, and Dallas) account for more than half of the peo­ple cur­rent­ly on death row. A recent report by the Texas Defender Service found that Tarrant County, which rep­re­sents just 7% of the state’s pop­u­la­tion, has account­ed for near­ly a quar­ter of all death penal­ty tri­als in Texas since 2020. The racial dis­par­i­ties in Tarrant County are strik­ing. Since 2012, Tarrant County pros­e­cu­tors have sought the death penal­ty against 13 peo­ple. Twelve of those defen­dants were peo­ple of col­or. Mr. Busby, who is Black, was sen­tenced to death in Tarrant County in 2005.

Vulnerable Groups

Many of the 600 peo­ple exe­cut­ed in Texas belonged to vul­ner­a­ble groups that lat­er secured con­sti­tu­tion­al pro­tec­tions. Texas led the coun­try in the exe­cu­tions of juve­niles pri­or to the U.S. Supreme Court’s 2005 deci­sion in Roper v. Simmons, which barred the death penal­ty for defen­dants who com­mit­ted crimes before age 18. Thirteen of the 22 juve­nile defen­dants exe­cut­ed before Roper (59%) were exe­cut­ed in Texas.

Of the 44 doc­u­ment­ed cas­es of peo­ple with intel­lec­tu­al dis­abil­i­ty exe­cut­ed pri­or to the Supreme Court’s deci­sion in Atkins v. Virginia (2002), nine (20%) were in Texas. The U.S. Supreme Court struck down the death penal­ty for peo­ple with intel­lec­tu­al dis­abil­i­ty in that deci­sion but gave states the dis­cre­tion to set their own pro­ce­dures for deter­min­ing who had intel­lec­tu­al dis­abil­i­ty. Texas adopt­ed a set of unique and unsci­en­tif­ic cri­te­ria known as the ​​“Briseño fac­tors” (named after the Texas court deci­sion that announced them) to deter­mine whether a cap­i­tal defen­dant had deficits in adap­tive func­tion­ing that would make them inel­i­gi­ble for the death penal­ty. The U.S. Supreme Court unan­i­mous­ly struck down that stan­dard in 2017 in Moore v. Texas and required states to use cri­te­ria ​“informed by the med­ical community’s diag­nos­tic frame­work.” As of 2021, at least 25 peo­ple have been resen­tenced due to their intel­lec­tu­al dis­abil­i­ty, but defen­dants like Mr. Busby still face pro­ce­dur­al and legal hur­dles to obtain­ing relief, even when mul­ti­ple experts agree that they should be exempt from execution.

A 2021 study by Joseph Margulies, John Blume, and Sheri Johnson found that Texas also exe­cut­ed at least 95 peo­ple under a sen­tenc­ing scheme that uncon­sti­tu­tion­al­ly pre­vent­ed juries from con­sid­er­ing mit­i­gat­ing evi­dence out­side the lim­it­ed con­text of three statu­to­ri­ly defined ques­tions. According to the authors, those 95 pris­on­ers pre­sent­ed claims that were ​“indis­tin­guish­able from claims that have got­ten relief in the state or fed­er­al courts.” Their only fault was tim­ing – courts had not acknowl­edged the flaws in the sen­tenc­ing scheme at the time of their executions.

Economic and Human Costs

Estimates of the cost of Texas’ death penal­ty vary sig­nif­i­cant­ly. A 1992 study by the Dallas Morning News esti­mat­ed that Texas spent $2.3 mil­lion per case. In 2025, El Paso County dropped its attempt to obtain a death sen­tence for Patrick Crusius, who plead­ed guilty to killing 23 peo­ple at an El Paso Walmart in 2019. Without even going to tri­al, the case had cost tax­pay­ers near­ly $6 mil­lion. Also in 2025, the Houston Chronicle report­ed the defense costs alone in one Harris County death penal­ty case had reached $1.8 mil­lion. Prosecutors did not respond to pub­lic records requests for their spend­ing on the trial.

Using the 1992 esti­mate of $2.3 mil­lion per case, which is con­ser­v­a­tive in light of more recent cost data, Texas has spent approx­i­mate­ly $1.38 bil­lion on 600 exe­cu­tions. That fig­ure does not include the costs asso­ci­at­ed with the more than 500 peo­ple who were sen­tenced to death in Texas but died on death row, had their con­vic­tion or sen­tence over­turned, were exon­er­at­ed, or remain on death row today. It also can­not cal­cu­late the high cost of the many death penal­ty tri­als that did not end in a death sentence.

In addi­tion to the mon­e­tary costs of the death penal­ty are the human costs that can­not be so eas­i­ly tab­u­lat­ed. Each of the 600 peo­ple exe­cut­ed faced a jury of 12 mem­bers from their com­mu­ni­ty. The approx­i­mate­ly 7,200 Texans who served on those juries were sub­ject­ed to exten­sive evi­dence of vio­lent crimes and heart­break­ing grief, an expe­ri­ence many jurors described as unique­ly trau­ma­tiz­ing. Jurors also bear the weight of deter­min­ing whether anoth­er human being should live or die. A 2025 New York Times report described the ​“vic­ar­i­ous trau­ma” expe­ri­enced by up to 50% of jurors in vio­lent crim­i­nal cas­es, which can man­i­fest in symp­toms like sleep­less­ness and anx­i­ety. The psy­cho­log­i­cal toll of exe­cu­tions on cor­rec­tions offi­cers is well-doc­u­ment­ed, includ­ing reports of Post-Traumatic Stress Disorder, depres­sion, and even sui­cide among the prison offi­cials tasked with executing prisoners.

Conclusion

For decades, Texas stood apart from the rest of the coun­try with its heavy use of the death penal­ty. As it reach­es the mile­stone of 600 exe­cu­tions, Texas now appears to be falling in line with broad­er nation­al trends. Like use of the death penal­ty nation­al­ly, which is heav­i­ly con­cen­trat­ed in a minor­i­ty of states, Texas’ death penal­ty is iso­lat­ed in a hand­ful of coun­ties. Like the U.S. death penal­ty, which has declined in both pop­u­lar­i­ty and use over the last 25 years, Texas’ death sen­tences and exe­cu­tions have slowed to a frac­tion of their for­mer num­bers. Like the U.S. death penal­ty, Texas’ death penal­ty can be char­ac­ter­ized by racial bias, arbi­trari­ness, and high costs.