As Trial in South Carolina Execution-Method Challenge Begins, Review of State’s Death Penalty Reveals System that is Biased, Arbitrary, and Error-Prone

As the trial challenging South Carolina’s execution methods began on August 1, 2022, a review of the state’s death penalty by the Greenville News revealed a pattern of discrimination, geographic arbitrariness, and high error rates in the implementation of the punishment.  In a two-part examination, reporter Kathryn Casteel analyzed racial and county demographics on death row, reversal rates in capital cases, and the timing of death sentences to provide context for the state’s efforts to institute the electric chair and firing squad as its primary execution methods. RELATED |  Future of South Carolina death penalty now rests with judge Four of South Carolina’s 35 death-row prisoners are suing the state to block a law that would force them to choose between electrocution and firing squad as methods of execution. One of the men, Richard Moore, wrote in an April legal filing, “I believe this election is forcing me to choose between two unconstitutional methods of execution.” Executions ar

Oklahoma’s planned execution spree underlines death penalty’s errors

On July 2, Oklahoma announced a plan to execute 25 inmates over the next 29 months. The first is scheduled for Aug. 25, with subsequent executions every 4 weeks. If Oklahoma sticks to this schedule, more than 1/2 of the inmates currently on its death row will be dead by the end of 2024.

The state’s planned execution spree is unprecedented in its history, but it rivals similar ones in states like Texas and Arkansas, and in the federal death penalty under former President Trump.

Turning on the spigot after a long period with no or few executions is a familiar pattern in America’s death penalty system. But in the rush to execute, whether in Oklahoma or elsewhere, errors inevitably will be made, and injustices tolerated rather than addressed.

In fact, all of the glaring errors in the American death penalty system will be horribly on view if these executions go forward — punishment of those who are disabled or mentally ill, botched executions, proceedings where legal counsel has been inadequate, and possibly even execution of those who were innocent in the first place.

Since 1976, Oklahoma is 2nd only to Texas in the number of people it has executed. Over the course of its history, Oklahoma has executed a total of 196 men and 3 women between 1915 and 2022.

But in the 5 years between the start of 2016 and the end of 2020, it put no one to death.

Its executions were put on hold following 2014’s horribly botched execution of Clayton Lockett and Richard Glossip’s near miss in September, 2015, when state officials halted his execution after they realized that they were about to lethally inject him with the wrong drug.

Oklahoma executions resumed in 2021 when 2 inmates were put to death, including John Grant, who convulsed multiple times and vomited before dying in October of last year. 2 other inmates have been executed so far this year.

Shortly after a federal district judge found the state’s execution protocol to be constitutional last month, Oklahoma’s attorney general requested the Court of Criminal Appeals to set the execution dates for 25 death row inmates. He urged the court to provide justice for the families whose loved ones were murdered by setting execution dates on an accelerated schedule.

Over the last 25 years, Texas set the standard for mass processing executions.

Every year, from 1997-2015, the state put at least 10 people to death. And in some years, its execution totals were in the several dozens. In 1997, for example, it averaged more than three executions a month, and in 2000, it put 40 people to death.

Texas was able to carry out executions in bulk by ignoring serious problems that plagued its death penalty system.

As a 2002 ACLU report noted, “The Texas Court of Criminal Appeals for example, has forced lawyers to remain on capital cases even when the lawyers themselves expressed doubts about their ability to handle such cases. The state agency has in fact denied relief to 2 death row inmates whose lawyers slept through trial.”

Moreover, the state brushed aside a disturbing pattern of racial discrimination in death sentencing. From 2009-2018, 75 % of those sentenced to death in Texas were people of color.

Looking at a longer period — from 1973 through 2021 — 16 people who were convicted and sentenced to death were subsequently exonerated. There’s also evidence that the state may have executed several innocent people.

Turning from Texas to Arkansas, in April 2017, with its supply of lethal injection drugs about to expire and with 32 inmates still on its death row, Arkansas followed Texas’s example and announced that it would perform 8 executions over an 11-day period. Though legal problems ultimately halted 1/2 of them, 4 were carried out as originally planned. They were all conducted with a cocktail of lethal drugs that Arkansas had never before employed.

There is evidence to suggest that one of the 4 people Arkansas put to death during its execution spree was likely innocent of the crime for which he was convicted. And the executions the other 3, each of whom had suffered significant abuse during their lives or significant cognitive deficits, were marked by troublesome mishaps, not surprising when speed seems to be the premium.

The Trump administration offered a third example of the rush to execute in the second half of 2020 and in the run up to the start of President Biden’s term in January 2021. During that period, it put 13 people to death.

A close look shows that the federal death penalty is not reserved for the “worst of the worst.” The Death Penalty Information Center found that 85 % of those on federal death row had “at least one serious impairment that significantly reduces their culpability, and 63 % had 2 or more of these impairments.” The DPIC also reported that one-half were mentally ill, suffering from diseases such as schizophrenia, post-traumatic stress disorder or psychosis. 3/4 had been the victims of physical abuse and trauma during childhood; as a result, one-third had developmental brain damage or traumatic brain injury.

It is thus not surprising that a similar pattern would appear among those the feds chose to put to death: 9 of the 13 had significant intellectual disabilities, severe mental illness, and/or histories of abuse. The Trump administration executed them anyway.

Turning back to what is unfolding in Oklahoma, the Death Penalty Information Center notes that, as was the case in Texas, Arkansas and in the recent federal executions, “The prisoners slated for execution … are disproportionally individuals with serious mental health issues and significant defects in their trial and appellate proceedings. Many of the prisoners,” the DPIC said, “are severely mentally ill … At least 5 have brain damage. Others experienced severe trauma, received harsher sentences than less-culpable co-defendants, or had inadequate representation at trial.”

And the evidence of innocence in at least 1 case, that of Richard Glossip, is so strong that Republican legislators in Oklahoma have expressed reservations about executing him.

Recent history teaches that when jurisdictions rush to execute or execute in bulk, they shine a harsh light on the defects that continue to plague America’s death penalty system.

Oklahoma will be no exception.

Source: thehill.com, Austin Sarat, July 9, 2022. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College and the author of “Lethal Injection and the False Promise of Humane Execution.

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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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