Will the U.S. Finally End the Death Penalty?

In the past, abolition efforts have faced a backlash—but Gavin Newsom’s moratorium may be different.
The American death penalty is extraordinarily fragile, with death sentences and executions on the decline. Public support for the death penalty has diminished. The practice is increasingly marginalized around the world. California, with its disproportionately large share of American death-row inmates, announces an end to the death penalty. The year? 1972. That’s when the California Supreme Court declared the death penalty inconsistent with the state’s constitutional prohibition of cruel or unusual punishments—only to have the death penalty restored a year later through popular initiative and legislation.
On Wednesday, again, California walked back its commitment to the death penalty. Though not full-fledged abolition, Governor Gavin Newsom declared a moratorium on capital punishment lasting as long as his tenure in office, insisting that the California death penalty has been an “abject…

Capital Punishment in the United States Explained

California's death chamber
In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.

To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim - 2 of those lawyers tried to withdraw from his case, 1 was drunk in court, 1 surrendered his law license because of a mental illness. Kenneth Williams, the last man executed in Arkansas, also might have had an intellectual disability, but bad lawyering meant no one ever considered it. Arkansas also tried to kill Jack Greene this November. Greene regularly stuffs his ears and nose with toilet paper and thinks his lawyers are conspiring to destroy his "vital functioning organs." He has asked the state to sever his head after his execution. Just 2 days before his scheduled execution, the Arkansas Supreme Court stayed the execution so lawyers could litigate his competency.

In July of this year, Ohio executed Ronald Phillips, who was 19 when he committed the crime that landed him on death row. According to Ronald's attorneys, his father began anally raping when he was just 4 years old, and a cousin raped him when he was 7. The family home was covered in dog feces. He also was likely intellectually disabled. Again, because of bad trial lawyering, no jury ever learned of this evidence.

Hours before Marcellus Williams's scheduled execution on August 22, Missouri Governor Eric Greitens stayed his execution, worried Williams might be innocent after testing showed that DNA found on a knife didn't match Williams's DNA profile. Over the objections of both Saint Louis County Prosecutor Bob Mcculloch and the Attorney General, the Governor appointed a board to examine the case.

America's use of the death penalty is declining in rapid fashion. But even with fewer cases, courts are not getting better at ensuring that only the most culpable are sentenced to death, and the system is deeply broken. Below, we explore the state of the death penalty in America today.

The Use of the Death Penalty Is Declining.

New death sentences have plummeted. In 2016, juries meted out only 30 new death sentences - the lowest number since capital punishment's resurrection in 1972. In 1996, there were 315; in 2006, there were 125; and in 2016, there were 31. In Virginia, there have been no new death sentences in 5 years. In Texas, there were 11 new death sentences in 2014, but only 2 in 2015, and 4 in 2016. In Georgia, there have only been 3 new death sentences in the last 5 years.

This trend of overall capital punishment decline has stayed the path in 2017, in which there were 39 new death sentences (the 2nd lowest number since 1972). The data behind that number is also telling: responsibility for new death sentences continued to lie within a handful of outlier jurisdictions, with 31% of the sentences coming from 3 counties: Riverside, CA; Clark, NV; and Maricopa, AZ. Further, for the 1st time since 1974, there were no death sentences in 2017 in Harris County, TX. As 2017 draws to a close, Harris County's new head prosecutor, Kim Ogg, appears to have kept her promise to pursue the death penalty in only the most extreme cases, emphasizing changing attitudes towards the death penalty and the importance of reframing the issues to ensure the focus is not on "scalps on the wall." However, she acknowledges that she cannot receive all the credit, attributing the record year to, among other factors, better educated and more diverse jury pools. Ogg cites as the reasons for her new approach, "The life without parole option, the immense cost in a time of limited resources and the human toll of waiting decades for final imposition of that sentence." As death penalty support drops among the public and they in turn elect district attorneys who will focus resources elsewhere, the usage of capital punishment will likely continue to slow. In an interview, Frank Baumgartner, who has recently co-authored a book analyzing capital punishment statistics, acknowledges district attorneys' death penalty choices as the "key driver in the system" and points to this as the deciding factor in explaining Harris County's past status as the nation's death penalty capital, given the lack of other explanations: Houstonians' support for capital punishment is actually lower than in the rest of Texas, and the crime rate in Harris County is not unusually high.

Juries are rejecting prosecutor's requests to sentence people to death.

Prosecutors had not sought a death sentence in Dallas, a traditional death penalty stronghold, since 2015. But this year, they tried and failed twice. Jurors in the Justin Smith case indicated they were deadlocked on the penalty decision, and Smith reached a plea agreement with the prosecutor sentencing him to life in prison without parole. A month later, a jury declined to sentence Erbie Bowser to death. A former military veteran and special-education teacher, the government accused him of killing his girlfriend, her daughter, his estranged wife, and her daughter. The defense argued that he was seriously mentally ill and suffered from Chronic Traumatic Encephalopathy (CTE). After 8 hours of deliberations, the jury signaled it was hopelessly deadlocked and he received a life verdict.

In the notorious Aurora-movie shooting case, Colorado prosecutors sought the death penalty against James Holmes, accusing him of shooting 12 people during a screening of "The Dark Knight Rises." After a 65-day trial, the jury, after deliberating for just 7 hours, deadlocked and Holmes received a life sentence. The defense had argued Holmes suffered from a severe and debilitating mental illness. Following the judge's deadlock and subsequent mandatory life sentence, the judge addressed criticism about the waste of time and money involved in a capital trial that yielded the same result as if the state had accepted a guilty plea.

In Wake County, North Carolina, home of Raleigh, juries have declined to sentence a defendant to death in 8 out of 8 cases over the last decade. After the last life sentence, the elected prosecutor stated: "At some point, we have to step back and say, 'Has the community sent us a message on that?'" North Carolina overall is rejecting the death penalty: the state sentenced no one to death in 2017, making it the 3rd year since 2012 that the state had no death sentences. Only a single person has been sent to the state's death row in the past 3 1/2 years, and most of the state's prosecutors are no longer seeking the death penalty. The ones that are, are failing: juries failed to impose death sentences in all 4 trials where North Carolina prosecutors sought the penalty in 2017. In 3 of those trials, juries chose LWOP, and in a 4th, they convicted of a lesser crime.

This decline in death sentences is the most revealing metric about society's current tolerance for the death penalty. When asked to make real life of death decisions about a real person in a real case, prosecutors increasingly don't seek and jurors don't return death sentences.

Executions have plummeted. In 1999, the United States executed 98 people- the most ever executed in this country. With few exceptions, that number has steadily declined, with 35 executions in 2014, 28 in 2015, 20 in 2016, and 23 in 2017. The 23 executions in 2017 were the second fewest since 1991. Further, courts stepped in and granted stays in 58 of the 81 executions scheduled for 2017 (71.6%), demonstrating continued concern about the integrity of death sentences and executions.

31 states, the District of Columbia, the federal government, and the military have turned away from executing people. 23 states and D.C. have either abolished the death penalty or seen their governors impose moratoriums. 4 more jurisdictions (New Hampshire, Kansas, Wyoming and the military) have executed 1 or fewer people in the last 50 years, and 6 other jurisdictions (the federal government, Idaho, Kentucky, Montana, Nebraska, and South Dakota) each executed 3 people in the past half-century.

Governors are halting it. Governors in Oregon, Pennsylvania, Washington, and Colorado have vowed not to allow an execution on their respective watches.

In 2013, Colorado Governor John Hickenlooper granted a temporary reprieve to one of Colorado's 3 death row inmates - Nathan Dunlap. Hickenlooper called Colorado's system of capital punishment "imperfect and inherently inequitable" and called it "highly unlikely" that he would reconsider the death penalty for Dunlap. In a published order, he wrote that "[i]t is a legitimate question whether we as a state should be taking lives." Hickenlooper also noted that, in Dunlap's case, 3 jurors later said they might not have supported the death penalty if they knew Dunlap was bipolar.

Oregon Governor Kate Brown announced in 2016 she would continue the death penalty moratorium imposed by her predecessor due to "serious concerns" about the "constitutionality and workability" of Oregon's death penalty statute.

Prosecutors are declining to use the death penalty. Out of the 3,143 counties in the U.S., only 16 sentenced 5 or more people to death between 2010 and 2015. 2% of counties nationwide now account for the majority of inmates on states' death rows. Dissenting from the denial of certiorari in Tucker v. Louisiana, Justices Breyer and Ginsburg noted geography as the arbitrary factor likely behind the petitioner's Caddo Parish, Louisiana death sentence.

With the November 2017 election of Democrat Larry Krasner as Philadelphia's next D.A., the city's criminal justice system will likely experience a sea change. Krasner, a civil rights attorney, has promised not to seek the death penalty. This is an extraordinary shift? - ?Lynn Abraham, long-time Philly D.A., was labeled one of America's deadliest prosecutors. Similarly, in Denver, Colorado, District Attorney Beth McCann promised that she will not seek the death penalty.

In Harris County, Texas - traditionally the nation's death penalty capital - there have been no new death sentences since Kim Ogg took office in January 2017. Moreover, Ogg has agreed to life-saving plea deals in at least 2 important cases, Buck v. Davis and now Moore v. Texas. Ogg found Buck's case on her desk after the U.S. Supreme Court ruled that he did not get a fair trial because a defense expert testified that black men like Buck tended to be dangerous. Moore's case landed on Ogg's desk after the U.S. Supreme Court found the test Texas used for intellectual disability?- ?modeled after Lenny in "Of Mice and Men" - was unconstitutional.

In Orlando, Florida, 9th Judicial Circuit State Attorney Aramis Ayala announced in March 2017 that her office would no longer seek the death penalty. Governor Rick Scott immediately removed all 29 cases from her supervision, placing them with 5th Judicial Circuit State Attorney Brad King, "an outspoken proponent of the death penalty." After losing a fight in the Florida Supreme Court over the dissent of 2 justices, Ayala formed a 7-attorney panel to review murder cases for capital charging decisions and announced in October 2017 that it will pursue death against a woman accused of committing a murder in April.

Public Support for the Death Penalty Is Declining.

Recent polling has mirrored the decline in the death penalty's use, with support among Americans dropping dramatically. It is at its lowest in 45 years, with just 55% of Americans voicing support in the latest Gallup poll.

Even among Republican politicians, support for the death penalty has significantly decreased over the past 7 years. In 2013, Republican lawmakers sponsoring death penalty repeal bills doubled; the figure rose to 40 sponsors by 2016.

In California, voters narrowly passed Proposition 66 to speed up the state's use of the death penalty, with 51.13% voting in favor of it. But 46.85% voted to repeal the death penalty altogether (Proposition 62), suggesting that the tide may too be changing in that state. In Los Angeles, the county with the largest number of death row inmates, 52.3% voted for the repeal.

In Nebraska, the 2016 referendum in which voters opted to repeal the legislature's death penalty abolition bill is a source of controversy. Governor Pete Ricketts is being sued by the ACLU of Nebraska, on behalf of the state's death row inmates, for overstepping his executive office boundaries by donating $425,000 and staff members to the organization Nebraskans for the Death Penalty. According to the lawsuit, Ricketts provided the majority of total funding for the petition drive to get the referendum on the ballot in its first months.

The Death Penalty Is Broken.

Those who are executed are not the worst of the worst. The Supreme Court has limited the use of the death penalty to the worst of the worst - those who are the most culpable in our society. As the Supreme Court has said: "Because the death penalty is the most severe punishment ... [c]apital punishment must be limited to those offenders" whose "extreme culpability makes them the most deserving of execution."

The Walls Unit, Huntsville, Texas
The Court has established bright line rules for groups that do not fall within that category, and therefore cannot be executed. The Insane: In Ford v. Wainwright (1986), the Court ruled that execution of the insane is cruel and unusual. The Intellectually Disabled: In Atkins v. Virginia (2002), the Court declared that the death penalty for intellectually disabled (ID) offenders is cruel and unusual. Juveniles: In 2005, the Court said the same about the death penalty for juveniles (defined as those under 18) in Roper v. Simmons. Because kids have brains that are not fully developed, particularly in the frontal lobe, they have impaired judgment that "render[s] suspect any conclusion that a juvenile falls among the worst offenders."

And yet numerous cases arise where men may be intellectually disabled or insane, but are nevertheless on death row.

Ledell Lee and Kenneth Williams were both executed by the state of Arkansas despite unexplored intellectual disability claims.

Arkansas came close to killing Bruce Ward, who suffered from paranoid schizophrenia and believed he would "survive the triple lethal injection and walk out of the prison to fabulous wealth and public acclaim, then go on to found an evangelical ministry that will spread God's love through the power of his preaching." The Arkansas Supreme Court stayed the execution over the state's objection.

It also nearly succeeded in its attempt to kill Jack Greene, another severely mentally ill inmate who regularly stuffs his ears and nose with toilet paper, intentionally causes his nose to bleed, eats out of his sink and uses his toilet as his desk. The Arkansas Supreme Court granted Greene a stay of execution so lawyers could litigate competency.

Other people on death row experience serious impairments that call into question their extreme culpability.

Many argue - in court pleadings and in the media - that serious mental illness, like intellectual disability or age, should also render people ineligible for the death sentence. Several states, including Ohio, Indiana, South Dakota, Tennessee, Texas, and Virginia, have or are considering legislation proposing such a bright line rule. A 2014 poll showed that Americans oppose executing the mentally ill by a 2-1 margin.

And yet death row is replete with those suffering from serious mental illness, trauma, and other impairments. A study by Frank R. Baumgartner and Betsy Neil found that those executed between 2000 and 2015 suffered from serious mental illness at a far greater rate than those in the general population. And 39.7 experienced childhood abuse, compared to 1 in 10 kids in the U.S.

Ohio plans to execute 26 men over the next 3 years. 88% of these men have some combination of significant mental impairments, disabilities, and brain injuries, trauma resulting from horrific childhood abuse, or potential intellectual disabilities.

David Sneed is 1 of the men Ohio plans to execute. He has "severe manic bipolar disorder and a schizo-affective disorder involving hallucinations and delusions." Doctors initially found him incompetent to stand trial until they administered psychotropic drugs, after which he became a model prisoner. He also has "borderline intellectual functioning." As a child, he suffered from physical abuse and repeated sexual abuse by his foster family, by someone at his elementary school, and by his mother's friend.

The Supreme Court has just cleared the way for the execution of Vernon Madison in Alabama. Because of a stroke, parts of Madison's brain "have essentially died." He is incontinent, has slurred speech, impaired vision, and cannot walk without assistance. He has both dementia and amnesia, and does not remember the crime for which he is sentenced to die.

The vast majority of those executed in 2017 suffered from some form of impairment. 20 of the 23 men had one or more of the following impairments: significant evidence of mental illness; evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range; serious childhood trauma, neglect or abuse. All 8 of the men who were under 21 at the time of their capital offenses had experienced serious trauma.

Prosecutors keep putting the innocent on death row. As of October 17, 2017, 160 people have been exonerated from the nation's death rows, and numerous executions have taken place despite strong evidence of innocence. According to one study, 1 out of every 25 people sentenced to death is innocent.

Prosecutors put Ray Krone on death row in 1992, accusing him of killing a waitress. At trial, police used bitemark testimony to convict him. 10 years later, DNA evidence exonerated Krone. Bitemark evidence is now a discredited field that has caused over 2 dozen convictions, although some prosecutors continue defending it, without any scientific support.

South Carolina's death row
In 2017, prosecutors dismissed charges against Rodicrus Crawford, put on death row in 2012, accused of killing his 1-year-old son. Autopsy results showed bronchopneumonia in the baby's lungs and sepsis in the blood, but led by notorious (and now disgraced) then-prosecutor Dale Cox, the government put on testimony that Crawford suffocated his baby. Following his conviction, numerous experts showed the child died of natural causes. During a subsequent hearing, the Louisiana Supreme Court justices expressed disbelief that the state put this man on death row: "[H]ow did the state come about that this was a 1st-degree murder case - on circumstantial evidence with a child that an autopsy discovered to have had sepsis -and ask that this man be put to death on weak circumstances? There's not even a motive."

Executions continue to take place in the face of grave innocence concerns. Texas executed Robert Pruett in October 2017 despite no physical evidence connecting him to the crime, and despite the presence of unidentified DNA on the murder weapon that matched neither Pruett nor the victim.

Joe Giarratano was sent to Virginia's death row on the basis of his inconsistent, conflicting confessions, despite a history of drug abuse and mental illness that lawyers later argued had left him incompetent to stand trial. His death sentence was commuted in 1991, 2 days before his scheduled execution, and in November 2017, he was finally granted parole after 40 years incarceration for a crime he has long claimed he did not commit.

Race plays a role in the imposition of the death penalty. In 1983, David Baldus found that defendants accused of killing white victims were 4.3 more likely to receive a death sentence than those accused of killing a black person. That trend remains true: A recent Pennsylvania report found that death sentences are more common when the victim is white and less common when the victim is black.

Race of the defendant featured prominently in 2 capital punishment cases that made headlines in 2017. The Supreme Court reversed Duane Buck's death sentence because an expert testified Buck would be dangerous because he is black. Georgia fought hard to execute Keith Tharpe notwithstanding a juror's racially-slurred admission that he voted for death because Tharpe is black. The Supreme Court granted a last-minute stay of execution in the case.

And It is Largely in Chaos Because of Unconstitutional Laws.

Florida currently has 386 people on its death row, and now it must decide what to do with many of those cases after courts upended its sentencing scheme. In 2016, in Hurst v. Florida, the Supreme Court struck down Florida's death penalty statute, which made a jury's decision of life-or-death only a recommendation and allowed a judge to override it. In October of the same year, the Florida Supreme Court found that the state's revamped law, which did not require unanimous jury verdicts, was unconstitutional.

Florida's death chamber
That left prosecutors and courts with the task of deciding what do with about 285 cases - nearly 75% of the death row population. But whether you get relief depends largely on a date - the unanimity jury requirement is retroactive only to 2002. As a result, in October of 2017, the state executed Mark Lambrix, even though the jury in his 1st trial voted only 8-4 in favor of death, and then in the 2nd 10-2.

Will Alabama be next? Alabama does not require unanimous death verdicts, and it is possible that soon, the state will be in the same place as Florida. Alabama already took major action to bring its capital punishment scheme into constitutional compliance, passing a bill eliminating judicial override in 2017.

In March of 2017, the Supreme Court declared Texas' scheme for evaluating intellectual disability unconstitutional in Moore v. Texas. That test, which was based on Steinbeck's character Lenny in "Of Mice and Men," lacked any basis in science and medical standards. Now, Texas must develop a new standard and reconsider any cases where courts used the improper standards. Prosecutors have asked the Texas Court of Criminal Appeals (TCCA), the highest criminal court, to give Moore a life sentence, as he is intellectually disabled when evaluated according to current medical standards. The case has stoked public opinion hopeful that the court will agree. The TCCA has also vacated Carl Petetan's death sentence and ordered the trial court to conduct a new sentencing hearing to evaluate an intellectual disability claim after Moore.

In August of 2017, Fayette County Circuit Judge Ernesto Scorsone ruled that applying the death penalty to a defendant under 21 years of age was unconstitutional. If this takes, a huge number of cases could be affected.

Lethal Injection May Be Torturing People.

In execution after execution, people are awake as their lungs shut down. Most states use a 3-judge cocktail to execute people. The 1st drug, historically an anesthetic, renders you unconscious, the second drug, pancuronium bromide, stops breath and acts as a paralytic, and the third drug, potassium chloride, stops your heart from beating. But lawyers and experts have argued that this is not fail-safe, and, although the Supreme Court has rejected challenges, evidence shows they are right.

Most states use midazolam for the anesthetic to put people to sleep. It is unclear if midazolam reliably causes unconsciousness; once the 2nd drug is administered, "the prisoners will be paralyzed, unable to move a muscle, unable to indicate in any way if they are experiencing the suffocating effects of the paralytic and the searing pain of the potassium chloride."

Oklahoma infamously botched Clayton Lockett's 2014 execution; he died 43 minutes after administration of a 3-drug cocktail of midazolam, bromide and potassium chloride. He raised and jerked his head, repeatedly tried to speak, groaned and writhed. The state then imposed a moratorium on executions and convened a commission to investigate; in April 217, the commission recommended extending the moratorium until "significant reforms" are instituted.

In December of 2016 in Alabama, Ronald Bert Smith, Jr. struggled for breath, heaved, coughed, clenched his fist, raised his head, and opened his left eye during his execution. His lips also moved, but he could not speak.

In Arkansas in 2017, Marcel Williams arched his back and breathed heavily during his execution. Reporters witnessing Kenneth Williams's execution described him "[c]oughing, convulsing, lurching, and jerking." "It was clear that he was in trouble." "It was clear that he was striving for breath."

States are also experimenting with new drug-combinations - and they are not faring better.

In Ohio, executions had been on hold since Dennis McGuire's botched 2014 execution, using a 2-drug combination that included midazolam. That has ended, and the state is using midazolam, rocuronium bromide and potassium chloride. But during Gary Otte's September 2017 execution, according to his lawyer, Otte appeared to be in pain after the administration of midazolam and looked like he was struggling for air. His lawyer also noted that Otte was crying.

Death House's holding cell, Ohio
Ohio encountered further controversy when it had to call off its November 2017 execution of 69-year-old Alva Campbell after 30 minutes of struggling to find a vein. Campbell's lawyers had warned that an exam failed to find veins suitable for IV insertion in arguments that Campbell was too ill to execute. Regardless, Ohio Attorney General Mike DeWine filed a motion in federal court 5 days later seeking the dismissal of a suit filed by death-row inmates who contend that the way the state conducts executions violates their constitutional protections.

Nevada is trying to use a brand new drug combination: the opioid fentanyl, the sedative diazepam (better known as Valium), and a paralytic, cisatracurium, to execute Scott Dozier. But while the state had scheduled the execution for November 14, 2017, that execution is now stayed after the judge forbid the state from using the paralytic. After hearing expert testimony, the judge believed that if the other 1 drugs were not administered properly, the paralytic could prevent Dozier from showing signs of distress while suffocating. The state has said it will appeal. On December 19, the judge announced she will not hear further arguments in the case, and will await Nevada Supreme Court review of her decision.

A few Justices are troubled by these botched executions - but just a few. In dissenting opinions, Supreme Court Justices have strongly condemned the torturous effects of lethal injection. Dissenting from the Supreme Court's refusal to intervene in Alabama's execution of Thomas Arthur earlier this year, Justice Sotomayor, joined by Justice Breyer, called midazolam-centered execution protocols "our most cruel experiment yet." She wrote an equally powerful dissent in Glossip v. Gross, joined by Justices Ginsburg, Breyer and Kagan.

So are companies. Drug companies across the world are trying to keep states from using their product in executions; Pfizer is one famous example. Johnson & Johnson is another.

Amidst this controversy, states are trying to keep their drugs and suppliers secret. In Arkansas in August 2017, the state paid $250 cash for 4 vials of midazolam from an unknown source, enough for 2 executions. Controversy also brewed after the Arkansas Department of Corrections Director revealed that 1 of the drugs used - potassium chloride - was "donated" to her after she drove her car to pick it up from an unnamed supplier.

Conditions of Confinement on Death Row Are Cruel and Unusual.

The majority of death row inmates are held in solitary confinement. Of the 2,802 state prisoners currently condemned to death, 61% are isolated for 20 hours or more a day. 

In Texas, death row inmates spend up to 23 hours a day alone in an 8 x 12-foot cell with virtually no human contact or exposure to natural light. For 14 years in Arkansas, Bruce Ward, suffering from schizophrenia, was held every day in a 12 by 7.5 cell with a toilet and shower. Guards passed his meals in through a slot. He was permitted 1 hour a day in another enclosed "exercise" cell, although for a decade he refused to go there.

These conditions have devastating psychological effect. Inmates have recounted the insanity-inducing conditions they are forced to endure.

Death row cell, Polunsky Unit, Livingston, Texas
The isolation and sensory deprivation leads inmates to lose their minds entirely: they suffer from delusions and hallucinations, mutilate themselves, and experience psychotic episodes in which they attempt suicide or smear the walls of their cells with their blood and excretions. The suicide rate in solitary is 5 to 10 times higher than it is in the general prison population.

Extended time on death row may amount to cruel and unusual punishment. Known as a "Lackey" claim, inmates argue that the extensive confinement in solitary on death row amounts to cruel and unusual punishment. Although the Supreme Court has rejected this claim, recently Justice Breyer has signaled a commitment to it, lodging a number of dissents from denials of certiorari. Of the inordinate delay at issue in Foster v. Florida, he wrote: "[27] years awaiting execution is unusual by any standard, even that of current practice in the United States, where the average executed prisoner spends between 11 and 12 years under sentence of death."

The Fallacy of Clemency.

Clemency is almost never granted. Some believe clemency is the "fail-safe" method to make sure we do not execute the innocent, the insane, or those who have not received a fair trial. The late Supreme Court Chief Justice William Rehnquist wrote that it was necessary because "[i]t is an unalterable fact that our judicial system, like the human beings who administer it, is fallible." But in reality, it is almost never used, and it is sometimes not even controlled by an elected official accountable to the people.

In Texas, for example, the politically appointed Texas Board of Pardons and Parole must recommend parole before the governor can grant it. The board is not required to hold a hearing on the clemency petition, and during the 6 years where George W. Bush was governor, not a single one of the 152 people executed received one. 

Since 2001, the state has executed 285 people while the board has recommended clemency just 4 times. Idaho, Louisiana, and Nevada operate similarly. Georgia keeps its clemency proceedings secret - it's impossible, therefore, to know why they make decisions.

In Florida, there has not been a commutation since 1983. The state has put 95 people to death since 1979, and only 6 were commuted - in 4 of those, juries had voted to spare their lives but a judge overrode that decision.

Is It Coming to an End?

In Hidalgo v. Arizona, a petition for certiorari currently before the Supreme Court, an Arizona inmate asked the Court to strike down the death penalty in both Arizona and across the country. The petitioner argued that under Arizona's capital scheme, almost all 1st-degree murderers are eligible for the death penalty - 99 %, in fact, showing that it is not reserved for only "the worst of the worst," as the Constitution requires.

Attorneys also argued that evolving standards of decency have shown that the 40-year experiment with death has failed. "The evidence is in. The long experiment launched by Gregg - in whether the death penalty can be administered within constitutional bounds - has failed. It has failed both in Arizona in particular and in the Nation more broadly."

Source: injusticetoday.com, Callie Heller, January 5, 2018. Callie Heller works as a Staff Attorney at the Fair Punishment Project and at the Powell Project.

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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