Innocence cases dominated much of the media’s attention on death penalty cases in 2023. While these prisoners were largely unsuccessful in the courts, there was unprecedented support for their claims from state legislators, prosecutors, judges, and other elected officials, some of whom declared themselves newly disillusioned with use of the death penalty in their state.
This year is the 9th consecutive year with fewer than 30 people executed (24) and fewer than 50 people sentenced to death (21, as of December 1). The 23 men and one woman who were executed in 2023 were the oldest average age (tied with 2021) and spent the longest average number of years in prison in the modern death penalty era before being executed. As in previous years, most prisoners had significant physical and mental health issues at the time of their executions, some of which can be attributed to the many years they spent in severe isolation on death row. Continued difficulties obtaining lethal injection drugs led some states to explore new, untested methods of execution or revive previously abandoned methods. Other states enacted or continued pauses on executions while the state’s method of execution was studied.
Before 1972, state officials generally used the death penalty without fear of federal court review. That changed with
Furman v. Georgia, when the Supreme Court invalidated all death penalty statutes, citing serious constitutional concerns with the arbitrariness and racial discrimination in many state processes and death sentences. After the Court approved the reinstatement of the death penalty in 1976, the Court assumed a more active role in regulating states’ use of the death penalty. In what Justice Blackmun later called “tinkering with the machinery of death,” the Court spent decades scrutinizing state laws and procedures, interpreting arcane statutory provisions, clarifying constitutional safeguards, reviewing challenges to methods of execution, and deciding cases that
narrowed the application of the death penalty. The Court also intervened in extraordinary cases to grant stays of execution and resisted
state efforts to expand use of the death penalty.
Now, more than 50 years after
Furman was decided, the majority of the Court appears unwilling to continue in this role. The Supreme Court granted only one stay of execution, reflecting the view of some
members of the Court that prisoners bring “last-minute claims that will delay the execution, no matter how groundless.” The Court granted certiorari in only four death penalty cases, all of which pertained to procedural issues, and turned away the overwhelming majority of petitions filed by death-sentenced prisoners. Some state officials and legislatures may once again feel unrestrained by the risk of judicial oversight or correction; Florida directly flouted Supreme Court precedent with
new legislation making a non-homicide crime a death-eligible offense, while states like Alabama announced plans to
use nitrogen gas in an untested, risky method of execution.
But the pivot away from the Supreme Court does not mean there is (or will be) increased use of the death penalty. For the first time, more Americans now believe that the death penalty is administered unfairly than fairly. The data show that the death penalty is increasingly disfavored, and the continued, years-long decline in its use has little to do with the Supreme Court. It is, instead, the result of society’s greater understanding about the fallibility of our legal system and its inability to protect innocent people from execution, the vulnerabilities of the people who are sentenced to death, and a recognition that the significant resources and time necessary to use the death penalty do not deliver enough of a return on the public’s investment in terms of safety or deterrence. These lessons are reflected in changing public opinion polls, jury verdicts, state legislative and executive decisions, and charging decisions, as this 2023 Year End Report details
below.
Executive Summary
- For the first time, a Gallup poll reports that more Americans (50%) believe the death penalty is administered unfairly than fairly (47%).
- Only 5 states (Texas, Florida, Missouri, Oklahoma, and Alabama) executed people this year, and only 7 states (Alabama, Arizona, California, Florida, Louisiana, North Carolina, and Texas) sentenced people to death. For the first time, the number of executions exceeded the number of new death sentences.
- The majority of states (29) have now either abolished the death penalty or paused executions by executive action.
- 2023 is the 9th consecutive year with fewer than 30 people executed (24) and fewer than 50 people sentenced to death (21).
- Three exonerations this year bring the total to 195 in the modern death penalty era.
- High profile innocence cases in several states received intense media attention but found no relief in the courts, raising questions about the adequacy of state procedures and the ability of the legal system to protect innocent people.
- The United States Supreme Court overwhelmingly rejected petitions from death-sentenced prisoners over the increasingly alarmed dissents of Justices Jackson, Kagan, and Sotomayor.
- Prisoners who were executed spent an average of 23 years in prison, the longest average time since executions resumed in 1976, and were an average age of 54 years old at the time of their execution, the oldest average age since executions resumed in 1976 (tied with 2021).
- The Biden Administration’s Department of Justice secured its first death sentence for Robert Bowers, convicted of killing eleven people in the Pittsburgh, Pennsylvania Tree of Life Synagogue.
