Skip to main content

USA | Why Some States Retain the Death Penalty But Never Use It

Commentators usually divide the world of the death penalty into two groups, those places that “have” or “retain” the death penalty and those that don’t. But this summer, Ohio and Nebraska are joining a number of places that don’t really fit into either of those categories.

These are jurisdictions whose criminal laws authorize capital punishment but which have gone five years or more without executing anyone. They are what I call quasi-death-penalty states, or de facto abolition states.

Adding Ohio and Nebraska will mean that 17 of the 27 states in which capital punishment is legal will not have carried out an execution for at least five years. And in 14 of those 17 states, no one has been put to death in the last ten years or more

This is quite a heterogeneous group. It encompasses states from every region of the country, including the Deep South. Some of the quasi-death-penalty states have large death rows; others have few, if any, inmates awaiting death. Some have formally declared moratoria on executions, but most do not.

Whatever their differences, all remain in a kind of death penalty limbo.

Understanding the death penalty situation in those states is crucial to understanding its status and future in the country as a whole. As was the case in several European countries, de facto abolition is an important step on the road to ending capital punishment altogether.

To be sure, quasi-death-penalty states may be one election or one court decision away from resuming executions, but the longer a place goes without putting anyone to death, the more likely it will be to get rid of that penalty entirely.

In some ways, Ohio and Nebraska might seem unlikely candidates for de facto abolition since they are both deep red states. And they have very different death penalty histories.

Ohio marked the fifth anniversary of its last execution, the 2018 execution of Robert Van Hook July 18. Prior to that, it had been an active death penalty state. Between 1976 and 2018, Ohio executed 56 inmates.

Today there are 123 people on its death row. That is the sixth-largest number in the country.

The refusal of manufacturers to supply the drugs needed for Ohio’s lethal injection protocol plus ongoing litigation about the constitutionality of its method of execution are two factors contributing to its current membership in the group of quasi-death-penalty states.

Over the years, many bills to end capital punishment have been introduced in the Ohio legislature. And a bipartisan abolition bill was recently introduced in this legislative session.

In the meantime, Mike DeWine, Ohio’s Republican governor, has been coy about what he would do if that bill reached his desk. He supported the death penalty as a state senator and when he became Ohio’s attorney general.

Now he simply says, “There’s been no executions in Ohio since I became governor. I don’t anticipate there will be.” And he has remarked that “If the legislature wants to take the issue up, we’ll engage in discussions with the legislature at that time.”

Unlike Ohio, there are only 11 people on Nebraska’s death row, ranking it tenth among states in the size of its death row population. The Associated Press reports that “All of them were convicted of either murdering multiple people or a child, and each case includes aggravating factors such as sexual assaults, cover-ups of other crimes or dismembering bodies.”

While prosecutors in Nebraska continue to seek death sentences in a few cases, the last execution in that state occurred on August 14, 2018, when Carey Dean Moore was killed by a lethal injection of fentanyl. At that time, it had been more than twenty years since Nebraska had executed anyone.

Among the distinctive features of Nebraska’s death penalty is the fact that it is the only state where a sentence of death is decided by a three-judge panel. The panel includes the presiding judge of the trial court and two other judges appointed by the state’s chief justice. The death sentence must be unanimous; otherwise a sentence of life imprisonment is imposed.

Nebraska’s distinctiveness is also reflected in the fact that it formally abolished the death penalty in 2015, only to have it restored through a referendum one year later. This year the legislature will again consider an abolition bill. It takes the form of a constitutional amendment which, if passed, would have to be approved by voters in the 2024 election.

And surveys now show that most Nebraskans favor life in prison over the death penalty for people convicted of murder. Moreover, among those who continue to support the death penalty, feelings do not seem to be particularly intense.

This suggests that even if lethal injection drugs were to become available, there would not be a groundswell among Nebraskans to resume executions. The Associated Press quotes Matt Maly, a conservative opponent of capital punishment, who notes that conversations about why the state is not executing anyone are “not something you’re hearing about in coffee shops or grocery stores.”

A similar thing could be said about the situation of the death penalty across large swaths of the American population.

Looking beyond Ohio and Nebraska, conservative states like Indiana, Kansas, Kentucky, Louisiana, Montana, North Carolina, Utah, and Wyoming are prominent among the group that retain the death penalty but don’t use it.

In fact, Kansas, with nine people on its death row, hasn’t put anyone to death since 1965. Wyoming, which currently has no death row prisoners, hasn’t done so since 1992. And in most places that have the death penalty on the books, death row inmates have a better chance of dying of natural causes than of being executed.

As Robert Dunham, formerly Executive Director of the Death Penalty Information Center, explains, there is a lot of “inertia” about the death penalty even where it is legal. “If,” he says, “you have a jurisdiction in which death sentences (or executions) haven’t been imposed, people either forget how to do it or they sort of realize they don’t miss it and they don’t tend to push for it.”

Ohio and Nebraska are just the latest examples of the many places where it seems that citizens “don’t miss” capital punishment. In the end, the fate of America’s death penalty will be decided as much in those places as in the few states which continue to carry out the bulk of this country’s executions.

Source: verdict.justia.com, Austin Sarat, July 24, 2023. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.

_____________________________________________________________________




_____________________________________________________________________


FOLLOW US ON:












HELP US KEEP THIS BLOG UP & RUNNING!



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


— Oscar Wilde

Most viewed (Last 7 days)

20 Minutes to Death: Witness to the Last Execution in France

The following document is a firsthand account of the final moments of Hamida Djandoubi, a convicted murderer executed by guillotine at Marseille’s Baumettes Prison on September 10, 1977. The record—dated September 9—was written by Monique Mabelly, a judge appointed by the state to witness the proceedings. Djandoubi’s execution would ultimately be the last carried out in France before capital punishment was abolished in 1981. At the time, President Valéry Giscard d'Estaing—who had publicly voiced his "deep aversion to the death penalty" prior to his election—rejected Djandoubi’s appeal for clemency. Choosing to let "justice take its course," the President allowed the execution to proceed, just as he had in two previous cases during his term:   Christian Ranucci , executed on July 28, 1976 and Jérôme Carrein , executed on June 23, 1977. Hamida Djandoubi , a Tunisian national, was sentenced to death for killing his former lover, Elisabeth Bousquet. He was execu...

Iranian Gay Activist: "They Forced Me to Watch Executions So I Would Know How Mine Would Be"

Iranian LGBT activist now living as a refugee in Spain. He was sentenced to death by the ayatollah regime for being homosexual and for his support campaign for the community. "The enemy was already at home," he says about the current war In 11 countries around the world, homosexuality is punishable by death - it is criminalized in almost 70 countries. One of them is the Islamic Republic of Iran, from where Ramtin Zigorat (Tabriz, 1988) managed to escape after avoiding a death sentence and enduring the worst tortures. He has been living as a refugee in Spain for six and a half years. Question . His life, his testimony, can help us better understand what the Iranian Islamist regime is. I believe that until adolescence, you did not fully understand that you were homosexual.

Florida Supreme Court halts execution of police officer convicted of raping, murdering girl

STARKE, Fla. (AP) — The execution of a former Florida police officer convicted of raping and murdering an 11-year-old girl was temporarily halted Thursday by the Florida Supreme Court. The court issued a stay in execution for 68-year-old James Aren Duckett, who was scheduled to receive a three-drug injection Tuesday at Florida State Prison near Starke. Duckett was sentenced to death in 1988 after being convicted of first-degree murder and sexual battery.

Texas inmate seeks to stop looming execution after codefendant confesses to double murder

In his appeal, James Broadnax, who wants a new trial, included a signed confession by his cousin saying he committed the 2008 Garland murders. With just 42 days remaining until his scheduled execution by lethal injection on April 30, 2026, in Huntsville, Texas death row inmate James Broadnax, 37, filed a new appeal Thursday with the Texas Court of Criminal Appeals, seeking to stay the date, remand his case for a new trial, and ultimately vacate his death sentence for the 2008 capital murders of music producers Stephen Swan, 26, and Matthew Butler, 28, outside their Zion Gate Records studio in Garland. A fabricated story The appeal centers on a signed written declaration from Broadnax's cousin and codefendant, Demarius Cummings, 37—dated March 11 and obtained by media outlets in which Cummings confesses that he alone planned the June 19, 2008, robbery, obtained the pistol used in the crime, and fired the fatal shots during the botched holdup that netted only $2 in cash and a 1995 Fo...

Once Nevada’s youngest on death row, double murderer paroled as victims’ family claims silence from state

LAS VEGAS — A man who once stood as the youngest person on Nevada’s death row has officially transitioned from a life behind bars to a life under supervision, following his release from High Desert State Prison last month. Edward Michael Domingues, 49, was released on parole on Feb. 13, 2026. His freedom marks the end of 32 consecutive years of incarceration for the 1993 murders of Arjin Chanel Pechpho and her 4-year-old son, Jonathan Smith. Since his release, the case has ignited a renewed debate over Nevada’s victim notification systems. Tawin Eshelman, the mother and grandmother of the victims, confirmed that the family was never formally notified of the parole hearing that led to Domingues' freedom.

Georgia | 11th Circuit confirms lethal injection execution for Georgia inmate wanting firing squad

In his complaint, Michael Wade Nance said his veins were so severely compromised that they were likely to blow and cause him to suffer “excruciating pain” during the execution. ATLANTA (CN) — A panel for the 11th Circuit on Thursday upheld a judge’s ruling against a death row inmate who sought an execution by a firing squad instead of lethal injection. The decision paves the way for the state’s long-awaited execution of Michael Wade Nance, who was convicted of murder and sentenced to death over 25 years ago. In a unanimous opinion, the circuit judges agreed with a federal judge’s conclusion that Nance failed to prove lethal injection was likely to cause him an unconstitutional level of pain or discomfort.

Arizona | Death Row Inmate Challenges Execution Warrant, Citing 2025 Cyberattack and Protocol Failures

Leroy Dean McGill was sentenced to death for a 2002 gasoline attack in North Phoenix against a couple, Charles Perez and Nova Banta. PHOENIX — Attorneys for Arizona death row inmate Leroy Dean McGill have formally challenged the state’s attempt to secure an execution warrant, citing a catastrophic 2025 cyberattack and a long history of troubled lethal injection protocols. The challenge comes as Arizona seeks to resume capital punishment following a year-long hiatus. If the Arizona Supreme Court grants the state’s request, McGill would become the first person executed in the state since 2024.

Texas: Dexter Darnell Johnson to die on August 15; Larry Ray Swearingen on August 21

Dexter Darnell Johnson's execution is scheduled to occur at 6 pm CDT, on Thursday, August 15, 2019, at the Walls Unit of the Huntsville State Penitentiary in Huntsville, Texas.  31-year-old Dexter is convicted of the murder of 23-year-old Maria Aparece and 17-year-old Huy Ngo on June 18, 2006, in Houston, Texas.  Dexter has spent the last 11 years of his life on Texas’ death row. Dexter was born and raised in Texas. He dropped out of school following the 9th grade. During the early morning hours of June 18, 2006, Dexter Johnson and 4 of his friends, Ashley Ervin, Louis Ervin, Keithron Fields, and Timothy Randle, were driving around in Ashley’s car, looking for someone to rob. The group discovered Maria Aparece and Huy Ngo siting in Maria’s vehicle on the street. Johnson took a shot gun and stood outside the driver’s side door, threatening to shoot Maria if she did not cooperate. Johnson demanded she open the door, and when she did, he threw her into the ...

Florida executes Michael King

Killer of stay-at-home mom whose death led to 911 reform is executed Michael King kidnapped Denise Amber Lee from her Florida home in broad daylight in 2008. If it weren't for a botched 911 call, Lee may have survived the ordeal.  Florida has executed a death row inmate for the rape and murder of a stay-at-home mom whose death exposed the vulnerabilities of the 911 system nationwide and led to reform within the industry.  Michael King, 54, was executed by lethal injection on Tuesday, March 17, for the kidnapping, rape and murder of 21-year-old Denise Amber Lee. King abducted the married mother of 2 young sons from her home in broad daylight on Jan. 17, 2008, less than an hour before Lee's husband returned from work. 

Arizona court sets May 20 execution for prisoner convicted of killing man by setting him on fire

PHOENIX -- A May 20 execution has been scheduled for an Arizona man convicted of murder for fatally setting a man on fire during a 2002 attack, marking what would be the state’s first use of the death penalty this year. The Arizona Supreme Court on Thursday issued a warrant to execute 63-year-old Leroy Dean McGill, who was convicted of first-degree murder in the death of Charles Perez. Authorities said McGill threw a cup of gasoline and a lit match at Perez and another person, Nova Banta, as they were sitting on a sofa in an apartment in north Phoenix.