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Troy Davis execution: five egregious death penalty cases in the past year

The massive outpouring of anger over Troy Davis's death a year ago has not prevented other executions going ahead in the US amid considerable controversy. Here are five cases of death row prisoners who have been judicially killed over the past year, each representing a different flaw in the application of capital punishment in America today:

Manuel Valle

Executed: 28 September 2011, aged 61

Flaw: Cruelty of prolonged stay on death row

The case: Valle, a Cuban national who was convicted of murdering a police officer in 1978, spent 33 years on death row. During that time he was held largely in solitary confinement – conditions that it has been argued amount to cruel and unusual punishment that should be banned under the eighth amendment of the US constitution.

The US supreme court judge, Justice Breyer, voted for a stay of execution for Valle but was outnumbered by his colleagues. Breyer wrote a minority judgment in which he said: "I have little doubt about the cruelty of so long a period of incarceration under sentence of death."

Christopher Johnson

Executed: 20 October 2011, aged 38

Flaw: "Volunteer"

The case: Johnson was one of the few prisoners who are executed every year as "volunteers" – that is they choose to die and waive all rights to appeal or clemency. That may sound like their right to do so, but the problem is that academic studies have found that about 80% of the volunteers show signs of serious mental illness.

Johnson was no exception. His childhood was troubled with psychotic episodes and in prison he tried several times to kill himself. Yet his desire to be executed for having murdered in 2005 his six-month-old son was still taken by the justice system to be a sane expression of choice, and not as some experts decried a form of judicially approved suicide.

Edwin Turner

Executed: 8 February 2012, aged 38

Flaw: Mental illness

The case: You could tell that Turner had a history of mental illness just by looking at him – his face was terribly disfigured from a rifle bullet after he tried to shoot himself aged 18. His family also had a history of suicide attempts and hospitalisations for mental illness that ran through both his parents and his grandmother and great-grandmother.

There is no law in the US preventing executions for those who are mentally ill. Unless it can be proved they were insane at the moment they committed the crime, they are not exempt from the gurney.

Despite clear evidence that Turner was ill, he was put to death for fatally shooting a clerk in 1995 during a robbery.

Marvin Wilson

Executed: 7 August 2012, aged 54

Flaw: Mental "retardation"

The case: Wilson was diagnosed as having learning difficulties – a condition still referred to by the US courts as "retardation". He was recorded with an IQ score of 61, putting him in the lowest percentile of the population.

The US supreme court banned executions for people with learning difficulties in 2002. None the less, Wilson was still put to death for the 1992 murder of a police drug informant because his state, Texas, applies its own definition of "retardation" based on the character of Lennie Small in John Steinbeck's 1937 novel Of Mice and Men.

Daniel Cook

Execution: 8 August 2012, aged 51

Flaw: Childhood abuse

The case: Cook was executed for the horrendous strangulation murders of two men, one aged 16, in 1987. Though there was no doubt about the heinousness of his crimes, his lawyers argued that Cook suffered such appalling abuse as a child that he should have been shown clemency in commuting his sentence to life in prison.

He was abused from infancy into his teenage years, including rape by his mother, step-father, foster parents, grandparents and the manager of a group home where he was resident. Expert witnesses testified at his appeal that he suffered post-traumatic stress disorder as a result of the abuse, leaving him prone to wild mood swings that could have been a factor behind the murders he committed.

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Capital punishment and death row inmates: A research roundup

Our newest research roundup examines capital punishment from multiple angles, including prisoner experiences, factors that affect sentencing and how effectively the death penalty deters crime.

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This work is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License .

by Denise-Marie Ordway, The Journalist's Resource May 6, 2019

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Legislators in several states have filed bills aimed at abolishing capital punishment in recent months, as the number of men and women facing death sentences continues to drop nationally and conservative U.S. Supreme Court justices have expressed frustration over delays in carrying out executions .

Meanwhile, several prisoners are scheduled to die this month, including Donnie Edward Johnson , on death row in Tennessee for suffocating his wife in 1984, and serial killer Robert “Bobby” Joe Long , who murdered at least eight women in Florida in the early 1980s.

While more than half of U.S. states and the federal government allow capital punishment, most executions between 1976 and 2017 occurred in five states — Florida, Missouri, Oklahoma, Texas and Virginia, according to the federal Bureau of Justice Statistics.

Men receive the overwhelming majority of death sentences. But more than a dozen women have been executed since 1976, when the U.S. Supreme Court lifted a moratorium on capital punishment.

While most death row prisoners die by lethal injection, many states allow other methods such as electrocution, hanging and firing squad. All executions in 2017, the most recent year for which the federal government provides data, were by lethal injection. A 2018 report from the U.S. Department of Justice offers a broad overview of the nation’s various capital punishment policies as well as a state-by-state tally of death row inmates and executions.

States that authorize capital punishment often post online rosters of their death row inmates. The roster for the Florida Department of Corrections, for example, shows there were 342 people on death row there as of early May 2019. In Idaho, there were eight .

Below, we’ve summarized 14 academic studies about capital punishment to help journalists ground their coverage and better understand the issue. This sampling of peer-reviewed research looks at capital punishment from multiple angles, including inmate experiences on death row, factors that affect sentencing and shifts in public opinion about the death penalty. We’ve also included several studies on prisoners’ last words.

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Impact of the news media

Disentangling Victim Gender and Capital Punishment: The Role of Media Phillips, Scott; Haas, Laura Potter; Coverdill, James E. Feminist Criminology , 2012.

This study of capital punishment cases in Texas suggests that the Houston Chronicle ’s news coverage of murder cases influenced prosecutors’ decisions about whether or not to seek the death penalty.

The researchers analyzed the criminal cases of 504 defendants indicted for capital murder in Harris County, Texas between 1992 and 1999. They discovered that 139 of the victims were female, 31 of whom were subject to “sexual degradation,” meaning they were either raped or raped and also “disrobed.” They also examined the newspaper’s coverage of these cases.

The researchers find that “sexual degradation shapes media coverage.” Cases that did not involve sexual degradation prompted 2.8 news articles each, on average, prior to the defendant’s indictment. If a victim was raped but not disrobed, the case generated an average of 4.4 articles. If the victim was raped and disrobed, the newspaper published an average of 14.7 articles about each case.

The analysis, according to the authors, shows that the district attorney “sought death in 9 of the 19 sexual degradation cases that generated 0 to 3 newspaper articles, compared to 11 of the 12 sexual degradation cases that generated 4 or more newspaper articles. Thus, sexual degradation alone — in the absence of intense media coverage — does not necessarily move the DA [district attorney] to seek death. But sexual degradation cases that catch the eye of the media also catch the eye of the DA. The data strongly suggest that the DA is aware of, and responsive to, media coverage of pending capital murder cases.”

Factors affecting sentencing

How Defendants’ Legal Status and Ethnicity and Participants’ Political Orientation Relate to Death Penalty Sentencing Decisions Alvarez, Mauricio J.; Miller, Monica K. Translational Issues in Psychological Science , 2017.

For this study, researchers sought to determine whether U.S. adults would punish a criminal defendant differently based on characteristics such as the defendant’s race, ethnicity and immigration status. The researchers recruited 300 U.S. citizens to read a 2,500-word summary of a mock murder trial and then asked them to decide whether to sentence the mock defendant, already found guilty of murder, to death or life in prison. Each participant also answered questions aimed at measuring their political orientation and other factors that might influence their decision-making, including their level of anti-immigrant bias.

Overall, survey participants gave harsher sentences to immigrant defendants than they did to defendants described as being born in the U.S. But sentencing decisions were influenced by participants’ political orientation. “More liberal and middle of the road participants viewed documented immigrant defendants as more deserving of the death penalty, compared to U.S. born defendants,” the authors write. On the other hand, more conservative participants “viewed documented immigrant defendants as being similarly deserving of the death penalty compared to U.S. born defendants.”

The researchers note that when they compared documented immigrant mock defendants with those who were naturalized citizens, “more liberal participants viewed documented immigrant defendants as more deserving of the death penalty than naturalized citizen defendants, while middle of the road and more conservative participants viewed both defendants as being similarly deserving of the death penalty.”

Possibility of Death Sentence Has Divergent Effect on Verdicts for Black and White Defendants Glaser, Jack; Martin, Karin D.; Kahn, Kimberly B. Law and Human Behavior , 2015.

Researchers conducted a national, web-based survey of a random sample of 276 U.S. adults to determine whether respondents would choose harsher sentences for black or white defendants on trial for murder. Respondents were asked to read a 1,185-word, four-page trial summary outlining the facts of a mock murder case, which was based on transcripts from actual murder trials in California. Survey participants — half were women and the vast majority were white — had to choose to convict or acquit the defendant.

Participants were given a version of the trial summary, which differed in two ways. In some versions, the defendant faced a death sentence while in others, he faced life in prison without the possibility of parole. Defendants were given “first names stereotypically associated with Blacks (Darnel, Lamar, Terrell) or Whites (Andrew, Frank, Peter).”

The main takeaways: Participants chose to convict nearly 73.9% of defendants whose names were associated with black men and 60.9% of defendants with names associated with white men. When study participants read the version of the case featuring a defendant facing a death sentence, they chose to convict 80% of defendants with black-sounding names and 56.5% of defendants with white-sounding names.

The authors write that their findings “indicate that, not only are potential jurors influenced by punishment severity, but defendant race alters how they are swayed — with deleterious outcomes for Black defendants. The demonstration that sentence severity, specifically, the possibility of a death sentence, has a qualitatively different effect on verdicts for ostensibly Black and White defendants is novel.”

Predictors of Death Sentencing for Minority, Equal, and Majority Female Juries in Capital Murder Trials Richards, Tara N.; et al. Women & Criminal Justice , 2016.

This study looks at the link between jury decisions in capital offense cases and the sex composition of juries in North Carolina between 1977 and 2009. It finds that juries with an equal number of male and female members “were associated with a 65% increase in the odds of recommending the death penalty.” When juries had seven or more female members, the odds of recommending a death sentence fell by 32%. The researchers did not find a statistically significant relationship between male-majority juries and sentencing decisions.

No Sympathy for the Devil: Attributing Psychopathic Traits to Capital Murderers Also Predicts Support for Executing Them Edens, John F.; et al. Personality Disorders: Theory, Research, and Treatment , 2013.

The personality traits that defendants exhibit during capital murder trials influence whether or not laypeople think they deserve the death penalty, this study suggests. “A defendant’s perceived lack of remorse in particular was influential, although perceptions of grandiose self-worth and a manipulative interpersonal style also contributed incrementally to support for a death sentence,” the authors write.

Researchers examined data from three studies — two published and one unpublished — to determine whether defendants’ personality traits affect attitudes about capital punishment. In all three studies, students recruited from a university in the southern U.S. were asked to choose a criminal sentence for a mock defendant after reading a summary of a mock murder trial. The higher the students rated the defendant on a “global psychopathy” scale, the more likely they were to choose a death sentence.

The researchers write that the results “inform how perceptions of socially undesirable personality traits relate to attitudes about the sanctioning of criminals, particularly murderers facing a possible death sentence. Our findings converge with other research … suggesting that perceived lack of remorse carries considerable weight in terms of influencing legal decision-makers.”

Public support for capital punishment

Racial-Ethnic Intolerance and Support for Capital Punishment: A Cross-National Comparison Unnever, James D.; Cullen, Francis T. Criminology , 2010.

This study finds that citizens of several European countries, including France, Great Britain and Spain, were more likely to support capital punishment if they were intolerant of racial and ethnic minorities.

The researchers analyzed a variety of surveys conducted in European nations between 1992 and 2006.

The main takeaway: “In France, Belgium, the Netherlands, East and West Germany, Italy, Luxembourg,  Denmark, Great Britain, Greece, Spain, Finland, Sweden, Austria, and Canada, individuals  who were racially and ethnically intolerant — expressing animus toward immigrants — were significantly  and substantively more likely to support the death penalty. In two countries, Portugal and Ireland, racial-ethnic intolerance did not positively predict support for either the death penalty or more general punitive attitudes,” the authors write.

The researchers also find that European youth with anti-immigrant attitudes were more likely to support capital punishment.

To Execute or Not to Execute? Examining Public Support for Capital Punishment of Sex Offenders Mancini, Christina; Mears, Daniel P. Journal of Criminal Just ice, 2010.

In this study, researchers examine whether the public agreed with a move by states in the 1990s to extend the death penalty to convicted sex offenders.

The researchers find, based on an analysis of a 1991 national telephone poll of 1,101 people, that the public’s views on punishing sex crimes with the death penalty depended on whether the victim was an adult or child. According to the opinion poll, conducted by the Minneapolis Star Tribune , 27% of Americans supported capital punishment for offenders who raped an adult while 51% favored it for offenders who sexually abused a child.

The researchers also find that people who believe sex offenders are prone to recidivism and that the criminal justice system does not do enough to address sex crime were more likely to support the death penalty for sex offenders.

“Vicarious experiences with sexual victimization — that is, knowing someone who was victimized — was associated with decreased support for executing such offenders,” the authors write.

As a crime deterrent

What Do Panel Studies Tell Us About a Deterrent Effect of Capital Punishment? A Critique of the Literature Chalfin, Aaron; Haviland, Amelia M.; Raphael, Steven. Journal of Quantitative Criminology , 2013.

Researchers analyzed multiple published studies to try to gauge how effectively capital punishment deters homicide. What they learned: the academic literature is inconclusive.

“First, we believe that the empirical research in these papers is under-theorized and difficult to interpret,” the authors write. “Second, many of the papers purporting to find strong effects of the death penalty on state-level murder rates suffer from basic methodological problems.”

The authors also note the difficulty of studying the effects of the death penalty, considering states generally execute only a few people per year.

Assumptions Matter: Model Uncertainty and the Deterrent Effect of Capital Punishment Durlauf, Steven N.: Fu, Chao; Navarro, Salvador. American Economic Review , 2012.

In this article, researchers look at some of the reasons why it’s still unclear whether capital punishment policies deter homicide. They examine how previous researchers’ assumptions about homicide influenced estimates for the number of lives saved when a convicted murderer is executed.

The authors’ explanation is technical and focuses on statistical modeling. “Depending on the model, one can claim that an additional criminal executed induces 63 additional murders or that it saves 21 lives,” the authors write. “This demonstrates the ease with which a researcher can, through choice of modeling assumptions, produce evidence that each execution either costs many lives or saves many lives.”

Inmate experiences on death row

Suicide on Death Row Tartaro, Christine; Lester, David. Journal of Forensic Sciences , 2016.

While death row inmates in the U.S. are supposed to be closely supervised, they are more likely to commit suicide than male prisoners who aren’t serving death sentences. They also are more likely to commit suicide than males over age 15 who are not incarcerated, according to this study.

From 1977 to 2010, there were an average of 2.74 suicides a year on death row. The average suicide rate was 129.70 deaths per 100,000 death row inmates. For state prison inmates not facing execution, the suicide rate was 17.41 deaths per 100,000 inmates, on average. And for males over age 15, it was 24.62 deaths per 100,000 people.

The researchers note that suicide rates for death row inmates and males in the general prison population have fallen gradually since the late 1970s. They also note that the suicide rate among death row inmates is lower during years when a greater number of death row inmates are executed.

Wasted Resources and Gratuitous Suffering: The Failure of a Security Rationale for Death Row Cunningham, Mark D.; Reidy, Thomas J.; Sorensen, Jon R. Psychology, Public Policy, and Law , 2016.

This study focuses on the behavior of death row inmates who were “mainstreamed” into the general prison population at a high-security prison in Missouri between 1991 and 2015. Elsewhere in the U.S., prisoners with death sentences tend to be segregated from other prisoners and placed in “supermaximum confinement” at a high cost to taxpayers.

The key takeaways: Over the 25-year period, not only were death row inmates as likely as or less likely than other prisoners to be involved in “assaultive misconduct,” but rates of violence among death row inmates were lower after they were mainstreamed than they had been when prisoners were segregated on death row.

“Because the CP [Capital Punishment] inmate has a limited life expectancy, he is arguably particularly motivated to make those remaining days as positive for himself as possible,” the authors write. “Rather than having ‘nothing to lose,’ the CP inmate may pragmatically recognize he has more at stake in each day and thus more to gain or lose by his conduct.”

A Review on Time Perception of Death Row Inmates’ Denials in Their Last Statements in the Context of Forensic Linguistics: The Sample of Texas Huntsville Unit Uysal, Basak. Journal of Death and Dying , 2018.

This study examines the last statements of 537 death row inmates executed in Texas between 1982 and 2016. A key takeaway: Seventy inmates used their final words to deny they committed the crimes with which they’d been convicted while 108 chose not to say or write anything at all. “The main topics reflected by the denier offenders are defense, love, wishing, and sadness, and the topics reflected less are atonement, forgiveness, and ending,” the author writes.

Those who gave last statements used 102 words, on average. Inmates who denied their crimes used an average of 138 words. The shortest statement is one sentence while the longest comprises 134 sentences. The most educated inmates “talk less and use fewer words.”

The Functional Use of Religion When Faced with Imminent Death: An Analysis of Death Row Inmates’ Last Statements Smith, Ryan A. The Sociological Quarterly , 2018.

This analysis of death row inmates’ final statements focuses on the use of religious words and phrases. This researcher also examined the last words of the 537 death row inmates sentenced to die in Texas between 1982 and 2016. Of the 429 inmates who gave oral last statements, more than 6 out of 10 expressed themselves using religious sentiments, which “challenge the stereotyped image of the hardened, unrepentant death row inmate,” the author writes.

The author states that the study “deepens our understanding of the manner in which death row inmates use religion to cope with imminent death.” But he also points out that some people may question the authenticity of their final words, which are “solicited under artificial circumstances because statements are made moments before execution when the inmate is strapped to a gurney in front of witnesses.”

Of note: Inmates’ final statements became more religious after 1996, when Texas began allowing victims’ families and close friends to witness executions and hear last statements.

Forgiveness, Spirituality and Love: Thematic Analysis of Last Statements from Death Row, Texas (2002–17) Foley, S.R.; Kelly, B.D. QJM: An International Journal of Medicine , 2018.

For this study, researchers examined the final statements of the 70 inmates executed in Texas between 2011 and 2017, 61 of whom gave oral last statements. All Hispanic inmates made last statements, compared with 92% of black inmates and 70.8% of white inmates. On average, prisoners had less than 10 years of education and their median age was 40.5 years.

The most common theme in statements was love followed by spirituality, the researchers find. Third most common was an apology to the victim’s family, which was included in 30% of statements. Meanwhile, 16% of prisoners apologized to their own families, 11% asked for forgiveness and 10% denied committing the offense for which they were executed. Nobody quoted poetry or literature, the researchers note.

Less than half as many inmates asked for forgiveness in their final statements as had done so in earlier years. Between 2002 and 2006, according to the study, 32% of prisoners asked for forgiveness before their execution. Between 2006 and 2011, 25% did.

Looking for more research on prison inmates? Check out our collection of government reports and academic papers that help paint a picture of the men, women and children who are in custody nationwide. We’ve also summarized research that looks at private prisons , which inmates get the most visitors and whether more educated adults receive shorter prison sentences .

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Denise-Marie Ordway

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The Death Penalty in 2021 : Year End Report

Virginia’s historic abolition highlights continuing decline of death penalty, executions characterized by botches and outlier practices.

Posted on Dec 16, 2021

• Introduction
• Death Penalty Developments in the States and Counties
• Federal Death Penalty
• Execution and Sentencing Trends
• Innocence and Clemency
• Problematic Executions
• A Deadly Year for Prisoners with Intellectual Disability
• New Sentences Continue to Highlight Systemic Death Penalty Flaws
• Public Opinion
• Supreme Court
• Downloadable Resources

Key Findings

• Virginia becomes 23rd state, and first in the South, to abolish the death penalty
• Seventh consecutive year with fewer than 30 executions and 50 new death sentences
• New study finds one exoneration for every 8.3 executions
• Federal execution spree ends, new administration halts all federal executions and announces policy review

Introduction Up

The death penalty in 2021 was defined by two competing forces: the continuing long-term erosion of capital punishment across most of the country, and extreme conduct by a dwindling number of outlier jurisdictions to continue to pursue death sentences and executions.

Virginia’s path to abolition of the death penalty was emblematic of capital punishment’s receding reach in the United States. A combination of changing state demographics, eroding public support, high-quality defense representation, and the election of reform prosecutors in many key counties produced a decade with no new death sentences in the Commonwealth. As the state grappled with its history of slavery, Jim Crow, lynchings, and the 70 th anniversary of seven wrongful executions, the governor and legislative leaders came to see the end of the death penalty as a crucial step towards racial justice. On March 24, Virginia became the first southern state to repeal capital punishment, and expanded the death-penalty-free zone on the U.S. Atlantic coast from the Canadian border of Maine to the northern border of the Carolinas.

Death Row Population By State†

† Data from NAACP Legal Defense and Educational Fund for July 1  of the year shown

^ Virginia abol­ished the death penal­ty with an effec­tive date of July 1 , 2021 . The bill reduced the state’s two death sen­tences to life with­out parole.

^^ New Hampshire prospec­tive­ly abol­ished the death penal­ty May 30 , 2019 .

‡ Persons with death sen­tences in mul­ti­ple states are only includ­ed once in the total

In the West, where an execution-free zone spans the Pacific coast from Alaska to Mexico, the Oregon Supreme Court began removing prisoners from the state’s death row based on a 2019 law that redefined the crimes that constitute capital murder. Nationwide, mounting distrust of the death-penalty system was reflected in public opinion polling that measured support for capital punishment at near half-century lows. With Virginia’s abolition, a majority of states have now abolished the death penalty (23) or have a formal moratorium on its use (3). An additional ten states have not carried out an execution in at least ten years.

2021 saw historic lows in executions and near historic lows in new death sentences. As this report goes to press, eighteen people were sentenced to death, tying 2020’s number for the fewest in the modern era of the death penalty, dating back to the Supreme Court ruling in Furman v. Georgia that struck down all existing U.S. death-penalty statutes in 1972. The eleven executions carried out during the year were the fewest since 1988. The numbers were unquestionably affected by the pandemic but marked the seventh consecutive year of fewer than 50 death sentences and 30 executions. Both measures pointed to a death penalty that was geographically isolated, with just three states — Alabama, Oklahoma, and Texas — accounting for a majority of both death sentences and executions.

The few jurisdictions that scheduled or carried out executions and imposed new death sentences pursued the death penalty with apparent disregard for due process, judicial review of execution methods, or potentially meritorious claims of intellectual disability, incompetence to be executed, and innocence. Oklahoma botched the execution of John Grant and then denied the execution had been problematic. Arizona authorized executions with the same lethal gas the Nazis had used to murder more than a million people in their World War II death camps. South Carolina moved to adopt the electric chair as its default execution method, with the firing squad as a “humane” alternative.

The federal government’s historically aberrant spree of thirteen executions in six months concluded with three executions carried out less than ten days before the inauguration of a president who had expressed his opposition to capital punishment. The six transition-period executions were the most ever in American history. Those executed in 2021 included a severely mentally ill woman who never received a hearing on her competency to be executed, an intellectually disabled man who never received review of his claim that he was ineligible for the death penalty, and a man who without dispute did not kill anybody. Two of the men who were executed were among the more than two dozen death-row prisoners who contracted COVID-19 as a result of prior federal superspreader executions.

The federal execution spree also raised questions about the legitimacy of the U.S. Supreme Court as a neutral arbiter of the law, as the Court actively intervened to lift lower court stays or injunctions issued by conservative and liberal judges alike, denying judicial review of serious and unresolved legal and constitutional issues. The Biden administration set no policy on the federal death penalty, allowing the Department of Justice to make decisions on capital prosecutions and appeals on a case-by-case basis. Attorney General Merrick Garland issued a memorandum saying no new executions would be authorized while DOJ reviewed changes in death-penalty policy put in place during the Trump administration. He made no commitments on the pursuit of new federal death sentences or the possibility of federal executions after the review.

Executions and death sentences in 2021 continued to highlight the arbitrary and discriminatory application of the death penalty. Rather than representing the “worst of the worst” offenders, all but one of the eleven people executed in 2021 had one or more significant impairments, including: evidence of mental illness; brain injury, developmental brain damage, or an IQ in the intellectually disabled range; or chronic serious childhood trauma, neglect, and/or abuse. Their cases were tainted by racial bias, inadequate representation, and disproportionate sentencing. The year’s new death sentences were also badly flawed, with more than a quarter (27.8%) imposed either by non-unanimous juries or by judges after defendants waived jury sentencing or in states that denied defendants the right to a sentencing jury.

Sentences and executions disproportionately involved victims who were white and female. Once again, only defendants of color were executed for cross-racial murders and no white defendant was sentenced to death in a trial that did not involve at least one white victim. Three high-profile cases — each involving likely innocent Black men sentenced to death for killing white victims — symbolized the enduring racial injustice of the nation’s death penalty. Julius Jones and Pervis Payne were spared execution, only to be resentenced to life in prison. A Texas trial judge in a county with a history of lynchings heard extensive evidence of Rodney Reed’s innocence, then credited the testimony of a disgraced white police officer who was the likely killer over that of nearly a dozen other witnesses to recommend that Reed be denied a new trial.

Two more innocent death-row prisoners were exonerated in 2021, and a DPIC review of the more than 9,600 death sentences imposed in the U.S. since 1972 discovered another eleven previously unrecorded death-row exonerations. That raised the number of death-row exonerations to 186 — one for every 8.3 executions in the modern era.

As death-penalty usage continues to erode, its flaws become even more evident. As the few jurisdictions that seek to pursue it engage in shocking conduct that undermines or evades judicial review, the cases resulting in death sentences and executions increasingly reflect arbitrariness, discrimination, and systemic failures that represent the worst of the worst judicial process. These very flaws, brought into stark relief as the death penalty becomes more rare, are causing more prosecutors, jurors, and voters in much of the country to decide to abandon capital punishment altogether, concentrating its continuing practice in a dwindling number of outlier jurisdictions with an historical legacy of slavery, lynching, and Jim Crow and a modern history of abusive law enforcement.

Death Penalty Developments in the States and Counties Up

• Virginia abolishes death penalty; 23rd state, first southern state to do so
• Oregon Supreme Court ruling continues erosion of death penalty in the West; decision is expected to clear death row
• Bipartisan abolition efforts proceed in Ohio and Utah

Death-penalty developments in the states in 2021 reflected the continuing long-term erosion of capital punishment in much of the country, with pushback from a small number of outlier jurisdictions who turned to brutal and unpopular execution methods or distorted the legal process in their fervor to resume or continue executions.

From Alaska southward to New Mexico’s borders with Texas and Mexico, there were no executions in 2021 and only two Southern California counties imposed any death sentences. From the Pacific Northwest to the Atlantic Ocean, across the entire northern border with Canada, and from the northern tip of Maine south to the Florida Keys, there were no executions and just two death sentences imposed in Florida. The practical disappearance of the death penalty in these states was accompanied by an expanding zone of official death penalty abolition, spanning the U.S. Atlantic coast from Maine to the northern border of the Carolinas. There were no executions west of Texas for a seventh straight year, where the combination of death-penalty abolition and gubernatorial moratoria on executions formally bars executions the full length of the U.S. Pacific coast.

Governor Ralph Northam signs the bill abol­ish­ing Virginia’s death penalty

Virginia’s historic abolition of the death penalty on March 24, 2021, highlighted the U.S.’s death-penalty erosion. The commonwealth — which from colonial times had carried out more executions than any other U.S. jurisdiction — became the first southern state to end capital punishment. Governor Ralph Northam, who endorsed abolition in his State of the Commonwealth address prior to the opening of the 2021 legislative session, said at the bill signing, “[t]here is no place today for the death penalty in this commonwealth, in the South, or in this nation.” The repeal effort emphasized the historical links between slavery, Jim Crow, lynchings, and the death penalty. Delegate Mike Mullin, the House sponsor of the bill, said, “We’ve carried out the death penalty in extraordinarily unfair fashion. Only four times out of nearly 1400 [executions] was the defendant white and the victim Black.” That history underlined the symbolic importance of the death penalty being abolished in the former capital of the Confederacy.

Further underscoring the relationship between death-penalty repeal and racial healing, Governor Northam on August 31 granted posthumous pardons to the Martinsville 7 , seven young Black men who were tried, convicted, and sentenced to death in sham trials before all-white, all-male juries on charges of raping a white woman. They were executed in Virginia in 1951 in the largest mass execution for rape in U.S. history.

With Virginia’s abolition, a majority of U.S. states have now abolished the death penalty (23) or have a formal moratorium on its use (3). An additional ten states have not carried out an execution in at least ten years.

Justices of the Oregon Supreme Court

A judicial ruling in Oregon on October 8, 2021 is expected to clear much, if not all, of the state’s death row, rendering the death penalty functionally obsolete in the state. In 2019, the legislature narrowly limited the crimes for which the death penalty may be imposed. The Oregon Supreme Court, in its consideration of the appeal of death-row prisoner David Ray Bartol , found that his death sentence violated the state constitution’s ban on “disproportionate punishments” because the new law had reclassified his offense as non-capital. Because none of the people on Oregon’s death row committed crimes that are now defined as death-eligible, Jeffrey Ellis, co-director of the Oregon Capital Resource Center, said, “[m]y expectation is that every death sentence that is currently in place will be overturned.” Oregon has had a moratorium on executions for a decade, since then-Governor John Kitzhaber halted all executions on November 22, 2011.

Tennessee passed a bill closing a procedural loophole that had left death-row prisoners without any legal mechanism to enforce the U.S. Supreme Court’s 2002 ruling that the death penalty could not be used against people with intellectual disability. The bill, inspired by the case of Pervis Payne , created a post-conviction procedure for prisoners to file and obtain judicial review of claims that they are ineligible for the death penalty due to intellectual disability. Until this year, Tennessee law prevented death-row prisoners from presenting intellectual disability claims to state courts if their death sentences had already been upheld on appeal before the 2002 Supreme Court ruling. The bill was shepherded through the legislature by the Tennessee Black Caucus and passed with near-unanimous support. Lawyers for Payne, who is intellectually disabled and maintains his innocence, quickly filed a petition asking the Shelby County Criminal Court to “declare that Mr. Payne is ineligible to be executed because he is intellectually disabled.” After seeking for nearly 20 years to execute Payne without any judicial review of this issue, Shelby County prosecutors on November 18 conceded that he is intellectually disabled and not subject to the death penalty. They continue to oppose his innocence claim.

Ohio Governor Mike DeWine

Efforts to restrict or abolish the death penalty gained traction in two states with Republican-controlled legislatures: Ohio and Utah . Governor Mike DeWine signed a bipartisan bill on January 9 making Ohio the first state to bar the execution of defendants who were severely mentally ill at the time of the offense. The new law granted current death-row prisoners one year to file mental illness claims, and in June, David Braden became the first person removed from death row under the new policy. In February, bipartisan sponsors announced a death-penalty repeal bill, which has received committee hearings in both houses. The legislative session continues in 2022, when legislators may vote on the bill.

Republican legislators in Utah announced in September that they will introduce an abolition bill in the 2022 session. Senator David McCay, a sponsor of the bill and a former death-penalty supporter, said of capital punishment, “It sets a false expectation for society, sets a false expectation for the victims and their families, and increases the cost to the state of Utah and for states that still have capital punishment.”

In both Virginia and Utah, prosecutors and family members of homicide victims took leading roles in advocating for the end of the death penalty. Four Utah prosecutors , representing counties that comprise nearly 60% of the state’s population, released an open letter in support of abolition. Salt Lake County District Attorney Sim Gill, Grand County Attorney Christina Sloan, Summit County Attorney Margaret Olson, and Utah County Attorney David Leavitt — two Republicans and two Democrats — called capital punishment “a grave defect” in the operation of the law “that creates a liability for victims of violent crime, defendants’ due process rights, and for the public good.” They highlighted concerns about innocence and racial bias and said the death penalty has an “inherently coercive impact” on plea negotiations. “A defendant’s need to bargain for one’s very life in today’s legal culture … gives already powerful prosecutors too much power to avoid trial by threatening death,” their letter states.

Twelve Virginia prosecutors , representing about 40% of the population, similarly joined calls for abolition. “The death penalty is unjust, racially biased, and ineffective at deterring crime,” they wrote in a letter to legislative leaders. “We have more equitable and effective means of keeping our communities safe and addressing society’s most heinous crimes. It is past time for Virginia to end this antiquated practice.”

Rachel Sutphin

Virginia’s abolition movement also gained legislative support as a result of the efforts of Rachel Sutphin , the daughter of Corporal Eric Sutphin, who was murdered in 2006. Sutphin had unsuccessfully sought clemency for William Morva, her father’s killer, based upon concerns about Morva’s mental illness. Sutphin told the legislators that victims’ family members are revictimized and repeatedly retraumatized by the appeal process and do not receive solace from the prisoner’s execution. In Utah, Sharon Wright Weeks, whose sister and niece were murdered by severely mentally ill cult leader Ronald Lafferty, is urging legislators to repeal and replace the state’s death penalty. Like Sutphin, she said her family was “retraumatized” by having to relive the murders in Lafferty’s first trial, throughout the appeals process, and then again in a retrial after his conviction was overturned. Lafferty ultimately died on death row.

By contrast, some states made efforts to resume executions by adopting brutal execution methods or distorting the legal process. Arizona announced in June that it had “refurbished” its gas chamber and would seek to carry out executions using cyanide gas, the same gas used by the Nazis to murder more than one million men, women, and children during the Holocaust. The announcement drew international backlash and condemnation.

South Carolina attempted to resume executions after a ten-year hiatus, scheduling one execution for February and another for May even though the state had no drugs to carry them out. The South Carolina Supreme Court vacated the execution notices and ordered the state to not issue another death warrant until one of three scenarios took place: the state confirms to the court that the Department of Corrections has the ability to carry out a lethal-injection execution, a death-row prisoner elects to be electrocuted instead, or the law changes to otherwise allow executions to take place. In response, the South Carolina legislature passed a bill in May 2021 making electrocution the default method of execution, with lethal injection or firing squad available as alternatives. The state immediately set two execution dates for June 2021, without having offered the men set for execution an opportunity to elect their method of execution. The South Carolina Supreme Court once again halted the executions, saying that the state had violated the prisoners’ “statutory right … to elect the manner of their execution.” The court also noted that the state had not yet developed a protocol for executions by firing squad and barred the state from setting any execution dates until a protocol is developed.

State Officials and Prosecutors Who Interfered with Legal Process

Prosecutors and state officials also engaged in questionable acts in 2021 that interfered with or undermined the legal process in death-penalty cases. Prosecutors secretly served as law clerks in cases they prosecuted without disclosing their conflicts of interest. Legislators in Nevada who worked full time as prosecutors blocked votes on an abolition bill opposed by their office. And officials in Florida , Missouri , Tennessee , and Oklahoma used their positions to attempt to intimidate parole board members or locally elected reform prosecutors or override their decisions.

Clinton Young

Prosecutorial conflicts of interest were discovered in two separate cases this year, one in Texas and one in Tennessee . The Texas Court of Criminal Appeals vacated the conviction of death-row prisoner Clinton Young because the prosecutor who tried him was simultaneously on the payroll of the judge who presided over the trial and decided Young’s trial court appeals. “Judicial and prosecutorial misconduct — in the form of an undisclosed employment relationship between the trial judge and the prosecutor appearing before him — tainted Applicant’s entire proceeding from the outset,” the court wrote. “The evidence presented in this case supports only one legal conclusion: that Applicant was deprived of his due process rights to a fair trial and an impartial judge.”

A similar problem appeared to be present in the case of Pervis Payne in Tennessee. In October, his attorneys sought a hearing to determine whether the Shelby County District Attorney’s office should be recused from his case because of an undisclosed conflict involving Assistant District Attorney General Stephen Jones. Payne’s attorney presented evidence suggesting that Jones may have represented the prosecution in Payne’s case while simultaneously working as a capital case staff attorney, assisting the county’s judges on death penalty cases during the time that Payne’s challenges to his conviction and death sentence were pending in the Shelby County courts.

Two Las Vegas prosecutors who hold legislative leadership positions in the Nevada state senate blocked movement on a death-penalty abolition bill in that state. Clark County District Attorney Steve Wolfson, who runs the office in which the two senators work when the legislature is not in session, was the lead witness against the bill in the Assembly. Over Wolfson’s opposition, the bill passed the state Assembly with a 26-16 vote and repeal advocates believed they had sufficient votes for passage in the Senate. However, they were unable to get a hearing or a vote on the bill in the Senate Judiciary Committee, which was chaired by Senator Melanie Scheible, a prosecutor in Wolfson’s office. Despite the significant margin for repeal in the state Assembly, Senate Majority Leader Nicole Cannizzaro, who is also a Clark County prosecutor, said legislators could not reach consensus on possible amendments, so the bill would not advance in the Senate. Shortly after the Assembly passed the bill, and while it was pending in the Senate, Clark County prosecutors filed pleadings to set an execution date for Nevada death-row prisoner Zane Floyd . Wolfson said the timing of the execution request was coincidental.

Abu-Ali Abdur’Rahman

State officials across the country intervened to block the actions of locally elected prosecutors in several death-penalty cases. A Nashville judge approved a plea deal for the second time to resentence death-row prisoner Abu-Ali Abdur’Rahman to life without parole. Abdur’Rahman’s 1987 conviction was tainted by former Davidson County Assistant District Attorney General John Zimmerman’s unconstitutional use of discretionary strikes to remove African Americans from the jury. Abdur’Rahman had agreed to a plea deal with Davidson County District Attorney General Glenn Funk in 2019, but Tennessee Attorney General Herbert H. Slatery III intervened in the case , claiming that Funk and the trial court had no authority to vacate Abdur’Rahman’s sentence in the absence of a proven constitutional violation. Abdur’Rahman was procedurally barred from claiming jury discrimination in his case, Slatery said. After the Tennessee Court of Criminal Appeals struck down the first plea deal, Abdur’Rahman’s attorneys argued that new evidence of discriminatory jury selection allowed him to challenge his conviction. Funk agreed, telling the court that the state’s “interest in the finality of convictions and sentences is outweighed by the interests of justice, and in some situations by recognition of the sanctity of human life.” On December 10, Slatery announced he will not appeal the latest plea deal, finalizing Abdur’Rahman’s removal from death row.

In Missouri and Florida, state attorneys general intervened to block local prosecutors from advancing potential exonerations. Under a Missouri law passed in April 2021, county prosecutors may file motions to free prisoners they believe to be innocent. Jackson County Prosecutor Jean Peters Baker filed such a motion in the case of Kevin Strickland , who was capitally tried and ultimately sentenced to life without parole for a 1978 triple murder. Strickland’s innocence claims were supported not only by Peters Baker’s office, but by the two other men convicted of the crime, the lone eyewitness, and several state legislators. At a November hearing, the Jackson County Prosecutor’s office and the Missouri Attorney General’s office, which would typically be allied in a criminal case, were adversaries. In an attempt to prevent Jackson County prosecutors from presenting new evidence of innocence, the attorney general’s office filed a motion to limit the evidence the court could consider to the evidence that been presented to jurors in Strickland’s initial trial. When that failed, they moved to substitute themselves for local prosecutors as counsel for the state and to exclude Strickland from participating as a party in his own innocence hearing. The court rejected that motion as well and ultimately issued an order exonerating Strickland.

Florida Attorney General Ashley Moody also intervened in two cases involving potentially innocent death-row prisoners, filing motions to block DNA testing that State Attorney Monique H. Worrell had consented to and that the trial court had approved. Worrell had agreed to testing in the cases of Tommy Zeigler and Henry Sireci , both of whom were sentenced to death in 1976 for unrelated crimes and both of whom had consistently maintained their innocence for more than forty years. Moody argued that the state DNA law erected limits on when DNA testing could be performed and denied local prosecutors discretion to consent to DNA testing without the approval of state prosecutors, and that Ziegler’s and Sireci’s requests for testing did not meet the requirements of Florida state post-conviction law. She failed to note that years earlier, less sophisticated DNA testing had been conducted under a similar agreement without any objection from the attorney general’s office. The trial court refused to rescind its order, and Moody has further delayed the testing by filing an appeal.

In Oklahoma, prosecutors repeatedly attempted to manipulate the clemency process by trying to recuse members of the state’s pardons and parole board who they believed would favor death-row prisoner Julius Jones . In the spring of 2020, the pardons board indicated that it would be receptive to requests from death-row prisoners to consider petitions for commutation before death warrants had been issued in their cases. However, as a later investigation by The Frontier discovered, former judge Allen McCall — then a member of the board — had threatened the board’s executive director, Steven Bickley, with a grand jury investigation if he scheduled a hearing for Jones without first obtaining approval from then-Attorney General Mike Hunter. In June 2020, the board formally asked Hunter if it had the authority to conduct pre-warrant commutation hearings for death-row prisoners. Hunter agreed that the board had the authority to conduct such hearings, but Bickley subsequently resigned, saying he had been “threatened for doing his job.”

Julius Jones

Prior to Jones’ commutation hearing, Oklahoma County District Attorney David Prater filed an emergency motion with the Oklahoma Supreme Court to recuse two members of the board, alleging that they would be biased in favor of commutation because of their ties to organizations that seek to reduce incarceration rates. The court denied the motion, writing that Prater was “asking this Court to provide for a remedy that simply does not exist under Oklahoma law.” The board voted 3-1 to recommend that Governor Kevin Stitt commute Jones’ sentence to a parole-eligible life term.

After that recommendation, Oklahoma Attorney General John O’Connor sought and obtained a death warrant for Jones. Governor Stitt then indicated he would not act on the board’s recommendation until it conducted a separate clemency hearing at which Jones and family members of murder victim Paul Howell would testify. Prior to that clemency hearing, O’Connor filed a new motion in the Oklahoma Supreme Court, attempting to recuse the same two board members on the same previously rejected grounds. The court again denied the recusal request and the board, once again by a 3-1 vote, recommended clemency. Four hours before Jones’ scheduled execution, Governor Stitt issued an order commuting Jones’ death sentence to life without parole, conditioned upon Jones never seeking a future pardon or further commutation of his sentence.

Federal Death Penalty Up

• Federal execution spree ends less than one week before Biden inauguration
• Six federal executions performed between election and inauguration are the most ever in a presidential transition period
• Attorney General Merrick Garland announces pause on federal executions, DOJ will review Trump policies

The change of presidential administration had major effects on the use of the federal death penalty, bringing Department of Justice (DOJ) practices back in line with those of other modern presidencies. The Trump administration concluded its unprecedented execution spree just four days before President Biden was inaugurated. The thirteen federal executions performed in a six-month period were procedurally and historically anomalous and marked the federal government as an outlier in its use of the death penalty.

Attorney General Merrick Garland

Although Biden had campaigned on a promise to try to end the federal death penalty, his administration took no affirmative steps to do so. Attorney General Merrick Garland issued a memorandum announcing that DOJ would not seek new execution dates while it reviewed changes in death-penalty policies implemented under the former administration, but it also took steps to defend or reinstate federal death sentences in two notorious cases.

The executions of Lisa Montgomery , Corey Johnson , and Dustin Higgs in January 2021 concluded an unprecedented thirteen-execution spree undertaken by the federal government. In performing the executions, the Trump administration deviated dramatically from historical norms and practices. The six executions between the November 3, 2020 election and the January 20, 2021 inauguration were the most in U.S. history during a presidential transition period. The executions were performed during the worst pandemic in more than a century, flouting public health safeguards that led every U.S. state to pause executions. All 13 federal executions took place during the longest pause between state executions in more than forty years.

Throughout the federal execution spree, the conduct of the DOJ and the U.S. Supreme Court ran counter to both long-established norms and recent national trends. While death sentences and executions hovered near historic lows for the seventh consecutive year, and public support for the death penalty remained at its lowest level in half a century, the Department of Justice performed the most federal civilian executions in any single year since 1896. Among those executed were two people accused of murders committed in their teens, two prisoners with strong evidence of intellectual disability, two severely mentally ill prisoners, one prisoner who undisputedly was not the triggerman, and two prisoners who had contracted COVID-19 in the weeks leading up to their executions.

The Supreme Court intervened to lift stays and injunctions imposed by lower courts, foreclosing opportunities for judicial review of weighty claims of intellectual disability, competency to be executed, and challenges to the federal government’s execution protocol that the lower federal courts had found were likely to succeed. Four of the executions took place after the midnight expiration of the prisoners’ execution warrants, because the Supreme Court acted to lift lower court stays late at night. In those executions, the Federal Bureau of Prisons issued unprecedented and legally suspect same-day execution notices and proceeded to execute the prisoners within a few hours.

On June 30, Attorney General Merrick Garland announced a formal pause on all federal executions while the Department of Justice undertook a review of changes in executive branch death-penalty policies implemented under the Trump DOJ. The announcement marked the Biden administration’s official departure from the outlier practices of the Trump administration. “The Department of Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws of the United States, but is also treated fairly and humanely. That obligation has special force in capital cases,” Garland wrote. The memorandum did not address the administration’s policy on continuing to seek new death sentences or oppose appeals filed by current death-row prisoners.

Dzhokhar Tsarnaev

In the months after the announcement, the DOJ withdrew a number of notices of intent to seek the death penalty that had been filed under the previous administration. However, DOJ continued to defend previously imposed death sentences, and its actions in the cases of Dylann Roof and Dzhokhar Tsarnaev showed a willingness to do so aggressively, at least in the most nationally prominent federal cases. In August, the U.S. Court of Appeals for the Fourth Circuit affirmed Roof’s federal-court convictions and death sentences for the racially motivated murders of nine parishioners in an historic Charleston, South Carolina African-American church in 2017. The DOJ had defended Roof’s convictions and death sentences at the Fourth Circuit. In October, the U.S. Supreme Court heard oral argument in the case of Dzhokhar Tsarnaev, who was convicted of the 2013 Boston Marathon bombing. In 2020, the U.S. Court of Appeals for the First Circuit had vacated Tsarnaev’s conviction, but the DOJ opted to continue the Trump administration’s appeal of that decision and argue in favor of reinstating the death sentence.

A White House spokesperson disassociated the President from the DOJ’s Tsarnaev appeal, citing the Justice Department’s “independence regarding such decisions.” In an email to reporters on June 15, Deputy White House Press Secretary Andrew Bates wrote, “President Biden has made clear that he has deep concerns about whether capital punishment is consistent with the values that are fundamental to our sense of justice and fairness. … The President believes the Department should return to its prior practice, and not carry out executions.”

Legislation to abolish the federal death penalty was introduced in the U.S. Congress, and legislators in both the House and the Senate wrote letters to Attorney General Garland urging him to stop seeking death sentences and asked President Biden to use his executive power to commute federal death row. The White House offered no substantive comment on either request.

Execution and Sentencing Trends Up

• Seventh consecutive year with fewer than 50 new death sentences and 30 executions
• Use of the death penalty is increasingly geographically concentrated: three states accounted for majority of executions and death sentences
• Just five counties now account for more than 20% of all U.S. executions

Executions By State

The combined impact of the continuing COVID pandemic and dwindling support for capital punishment made 2021 the seventh consecutive year with fewer than 30 executions and 50 new death sentences in the United States. The 11 executions carried out during the year were the fewest since 1988, and the eight state executions were the second fewest since 1983, one more than the 37-year low of seven state executions in 2020. The number of new death sentences tied last year’s record low, with just 18 imposed across the country.

Just five states and the federal government conducted executions in 2021. Texas and the U.S. government each executed three people, Oklahoma executed two, and three additional states — Alabama , Mississippi , and Missouri — each executed one person.

Racial disparities in executions and new death sentences persisted in 2021, as six of the eleven people executed were Black (54.5%). Half of the Black prisoners executed were put to death for interracial murders, but every white prisoner was executed for the murder of a white victim. The majority (61.1%) of people sentenced to death in 2021 were either Black or Latinx. No white defendant was sentenced to death in trial proceedings that did not involve any white victim.

Seven states imposed new death sentences in 2021. Oklahoma and Alabama each handed down four new sentences, although no jury in Alabama unanimously recommended the death penalty. California and Texas each imposed three death sentences. Florida imposed two. Two states – Nebraska and Tennessee — imposed one death sentence each. Only two U.S. counties — Los Angeles County, California and Oklahoma County, Oklahoma — were responsible for more than a single death sentence. The two sentences imposed in Los Angeles both resulted from jury verdicts handed down before the county elected reform prosecutor George Gascón , who has pledged not to seek the death penalty. The final judicial sentencings in those cases had been delayed by the pandemic. One death sentence in Florida was also the result of pandemic-delayed court proceedings, after a jury recommended a death sentence in 2019.

Counties With the Most Death Sentences in the Last Five Years

Notably, there were no death sentences in many formerly heavy-use death-penalty counties, including Harris County, Texas; Philadelphia County, Pennsylvania; and Duval County, Florida. The election of reform prosecutors in those and other counties across the country has contributed significantly to the continuing low number of new death sentences.

The states responsible for the year’s executions were, in large part, also responsible for the new death sentences. Alabama, Texas, and Oklahoma collectively accounted for 54.5% of the year’s executions and 61.1% of the year’s new death sentences. Oklahoma has surpassed Virginia as the state with the second-most executions since 1976.

At the county level, five U.S. counties (Harris, Dallas, Tarrant, and Bexar counties in Texas and Oklahoma County, Oklahoma) now account for 20% of all executions in the U.S. since 1976. Oklahoma County, one of only two U.S. counties to impose more than one death sentence in 2021, has performed more executions than any county outside of Texas. With 42 executions, it has carried out more than twice the number of executions of the next-highest county (St. Louis County, Missouri, with 19).

Fewer than one quarter of the executions scheduled in 2021 were carried out. Of the 45 execution dates that were set, 11 (24.4%) resulted in executions. One person, Julius Jones , received a commutation of his death sentence. One person with an execution date this year, James Frazier of Ohio, died on death row. Frazier, Ohio’s oldest death-row prisoner, was one of at least 136 Ohio prisoners to die of COVID-19 since the pandemic began. Governor Mike DeWine granted reprieves to an additional nine Ohio prisoners, citing problems with Ohio’s lethal-injection protocol and the risk to the state’s access to therapeutic medicines if the state diverted drugs intended for public health purposes for use in executions. One reprieve was granted in Pennsylvania, where Governor Tom Wolf has imposed a moratorium on executions.

One-third of all scheduled executions (15 of 45) were stayed by the courts. Three prisoners in Texas received stays to allow time for consideration of their claims of intellectual disability. Another two, also in Texas, were granted stays while the U.S. Supreme Court considers whether Texas’ execution policies violate prisoners’ religious liberty. Executions in Nevada and South Carolina were stayed over concerns about methods of execution. An Idaho court stayed the execution of terminally ill prisoner Gerald Pizzuto so the state pardons board could consider his application for clemency.

Seven additional death warrants were removed, withdrawn, vacated, or rescheduled.

Though few jurisdictions performed or even scheduled executions in 2021, those that did undertook extreme measures that demonstrated a lack of concern for due process and a cavalier inattentiveness to execution preparation. South Carolina twice attempted to schedule executions without obtaining execution drugs or establishing a legally required protocol for executions by firing squad. Oklahoma set seven execution dates despite a pending trial on the constitutionality of the state’s lethal-injection protocol and a prior representation by the state attorney general that the state would not seek execution dates until the lethal-injection issues were resolved.

Arizona prosecutors attempted to resume executions by asking the Arizona Supreme Court to set expedited filing deadlines in advance of issuing execution warrants for two prisoners. These limitations would require prisoners to present and courts to resolve challenges to Arizona’s lethal-injection protocol and other legal issues within the 90-day window before the pentobarbital the state had spent $1.5 million to obtain went bad. The compressed schedule was necessary, they argued, so the state could obtain death warrants, have the drug manufactured by a compounding pharmacy, get the drug tested, and carry out each execution before the drug lost its potency. The prisoners objected that Arizona had misrepresented the shelf life of the compounded drug, citing medical journals and scientific experts who said compounded pentobarbital loses potency after 45 days. In response, prosecutors admitted their mistake and asked the court to limit the time for judicial review even further so the executions could move forward — a proposal that would give the prisoners just four days to respond to a motion to set an execution date. The Arizona Supreme Court then vacated the briefing schedule, requiring prosecutors to conduct “specialized testing to determine a beyond-use date for compounded doses of the drug” before renewing its scheduling motion.

In May, Idaho scheduled the execution of a hospice-bound terminally ill prisoner while his petition for a hearing before the Idaho Commission of Pardons and Parole was pending. After the commission agreed to hear the case and set a November hearing date, the trial court granted a stay “until the conclusion of the commutation proceedings.” Nevada also prematurely set an execution date for Zane Floyd , which was stayed because the state failed to disclose the drugs it intended to use in its never-before-tried execution protocol in sufficient time for the court to review the constitutionality of the protocol. Drug manufacturer Hikma Pharmaceuticals threatened to sue the state for illegally obtaining its drugs for use in the execution. Courts had previously blocked Nevada’s attempt to execute Scott Dozier with drugs the court said had been purchased in “bad faith” through “subterfuge.” Advocates for the repeal of the state’s death penalty questioned the timing of the execution warrant, which prosecutors requested while the state legislature was considering an abolition bill.

Innocence and Clemency Up

• Two more death-row prisoners exonerated in 2021, and DPIC review of death sentences imposed since 1972 revealed 11 additional exonerations, bringing to 186 the number of death-row exonerees since 1973
• Since 1973, one wrongfully convicted death-row prisoner has been exonerated for every 8.3 executions
• States and counties paid out close to $100 million in payments for wrongful capital convictions
• Julius Jones and Pervis Payne released from death row in 2021 but still face life in prison

Exonerations in 2021

The public’s understanding of the grave dangers of wrongful capital convictions and death sentences deepened in 2021 as two innocent prisoners were exonerated more than 25 years after being wrongfully sentenced to die, and a multi-year Death Penalty Information Center review of more than 9,600 death sentences imposed since 1972 discovered 11 previously unreported death-row exonerations. The now 186 death-row exonerations since 1973 revealed that the American death-penalty system is even more frighteningly unreliable than was previously understood. The data now show that one person wrongfully convicted and condemned to die has been exonerated for every 8.3 prisoners who have been executed.

DPIC’s February 2021 special report, The Innocence Epidemic , analyzed the factors contributing to those wrongful capital convictions and the exoneration process. The report found that wrongful capital convictions cannot be dismissed as mere accidental failures of the justice system. Instead, most involve a combination of police or prosecutorial misconduct and perjury or false accusation. The data further showed that innocent Black defendants were more likely to be wrongfully convicted and condemned and were more likely to spend more time imprisoned before being exonerated. The report also found that wrongful capital convictions occurred all over the country, but were most likely in outlier counties that most aggressively pursued death sentences and in states with outlier sentencing practices such as non-unanimous jury recommendations for death and judicial override of jury recommendations for life.

Both death-row exonerations in 2021 involved cases from Mississippi , and both involved false forensic testimony.

Eddie Lee Howard, Jr.

Eddie Lee Howard, Jr. , convicted and sentenced to death based on the false forensic testimony of a since disgraced prosecution expert witness, was exonerated in January 2021. He was the sixth death-row prisoner exonerated in Mississippi since 1973.

Howard spent 26 years on death row on charges that he murdered and allegedly raped an 84-year-old white woman. He was first convicted and sentenced to death in 1994 in a trial in which he represented himself. The Mississippi Supreme Court overturned that conviction in 1997 and ordered a new trial. He was convicted and sentenced to death again in a retrial in 2000 at which forensic odontologist Dr. Michael West testified that Howard was the source of bite marks he claimed to have found on the victim’s body during a post-autopsy, post-exhumation examination of her body. The initial autopsy report did not mention bite marks but claimed that the victim had been beaten, strangled, stabbed, and raped.

During post-conviction evidentiary hearings in 2016, Howard’s lawyers presented DNA evidence that eviscerated the prosecution’s false forensic testimony. DNA testing showed no evidence of semen or male DNA on the victim’s clothing, bedsheets, or body and no male DNA on the locations on the victim’s body where she supposedly had been bitten. None of the blood or other items tested contained Howard’s DNA. Male DNA found on the knife used by the murderer excluded Howard as the source.

Howard was represented by lawyers from the Mississippi Innocence Project and the national Innocence Project. “I want to say many thanks to the many people who are responsible for helping to make my dream of freedom a reality,” said Howard after his exoneration. “I thank you with all my heart, because without your hard work on my behalf, I would still be confined in that terrible place called the Mississippi Department of Corrections, on death row, waiting to be executed.”

Sherwood Brown

In August 2021, Sherwood Brown was exonerated of a triple murder that sent him to Mississippi’s death row in 1995.

Brown was sentenced to death for the murder of 13-year-old Evangela Boyd and received two life sentences for the murders of her mother and grandmother. His convictions and death sentence rested in substantial part on false expert forensic testimony, as well as the perjured testimony of a jailhouse informant. The informant was facing serious charges for car theft when he claimed Brown had confessed to the murders. Prosecutors argued that blood found on the sole of one of Brown’s shoes came from the victims, and two forensic bitemark analysts falsely claimed that a cut on Brown’s wrist was a bitemark that matched the girl’s bite pattern.

DNA evidence later contradicted the prosecution’s narrative. The evidence showed that bloody footprints in and around the murder scene contained only female DNA and the blood spot on Brown’s shoe contained only male DNA. DNA testing on a swab of Boyd’s saliva did not contain Brown’s DNA, refuting the claim that she had bitten Brown. DNA tests on the sexual assault kit collected during the autopsy found no DNA from Brown but showed that Evangela Boyd’s pubic hair and her bra contained DNA from unidentified males. A forensic scientist from the Mississippi Crime Laboratory found that none of the hair evidence recovered from the clothing and bodies of the victims had any microscopic characteristics similar to Brown’s hair. A crime lab fingerprint analyst also found that none of the fingerprints found at the scene belonged to Brown.

Based on this evidence, the Mississippi Supreme Court overturned Brown’s conviction and death sentence in October 2017 . However, Brown remained in custody facing possible capital retrial as prosecutors attempted to build another case against him. With Brown in county pretrial custody, four more laboratories tested the DNA evidence over the course of three more years. Each came back with the same results. “Every time, there was nothing incriminating Sherwood,” said one of Brown’s attorneys after his exoneration. “The state was trying to find something to incriminate Sherwood, but every time they did, it kind of stumped them deeper.”

Finally, on August 24, Mississippi Circuit Court Judge Jimmy McClure granted a prosecution motion to dismiss charges against Brown. He was released later that day after having spent 26 years on death row or facing the prospects of a capital retrial.

Court Decisions in Potential Exoneration Cases

Crosley Green

More than thirty years after a Florida judge sentenced him to death following an 8-4 sentencing recommendation by an all-white jury, Crosley Green was freed in April 2021. Citing Green’s age and health risks related to continued incarceration during the pandemic, a judge of the U.S. District Court for the Middle District of Florida ordered Green’s immediate release while a federal appeals court considers prosecutors’ appeal of the district court’s July 2018 decision overturning his conviction.

Green, who is Black, was convicted and sentenced to death in 1990 for the 1989 murder of Charles “Chip” Flynn. No physical evidence linked him to the crime, and the one witness to the crime was the victim’s ex-girlfriend, who first responders initially identified as the likely perpetrator. The two police officers who responded to the crime scene told prosecutors they believed the ex-girlfriend had killed Flynn, but prosecutors withheld their notes from Green’s defense team, denying him access to potentially exculpatory evidence. All three witnesses who testified that Green had confessed to the murder later recanted their statements, saying they had been coerced by prosecutors. In 2007, the trial court overturned Green’s death sentence. The court found that trial counsel had failed to investigate court records that would have disproven the prosecution’s claim that Green had a previous conviction in New York for a crime of violence. The Florida Supreme Court upheld that ruling in 2008 and Green was resentenced to life before being released this year.

The Texas Court of Criminal Appeals (TCCA) in September 2021 vacated the conviction of death-row prisoner Clinton Young , whose prosecutor was also on the payroll of the judge who presided over the trial and decided his trial court appeals. In granting Young’s petition for a new trial, the TCCA wrote: “Judicial and prosecutorial misconduct — in the form of an undisclosed employment relationship between the trial judge and the prosecutor appearing before him — tainted Applicant’s entire proceeding from the outset. … The evidence presented in this case supports only one legal conclusion: that Applicant was deprived of his due process rights to a fair trial and an impartial judge.”

Young was convicted and sentenced to death by a Midland County jury in 2003 on charges that he had murdered two men for use of their vehicles during a 48-hour crime spree. He has long said he was framed for the murders. Assistant District Attorney Ralph Petty was one of the prosecutors in Young’s case, while at the same time serving as a paid law clerk to state District Court Judge John Hyde. In that dual role, Petty conducted research and made legal recommendations to the court on the same motions the prosecution had filed or were opposing in the case. Neither Petty, nor Hyde, nor the Midland County District Attorney’s office disclosed this conflict to the defense. Petty has since been barred from the continued practice of law.

Rodney Reed

After being directed by the Texas Court of Criminal Appeals (TCCA) to review Rodney Reed ’s claim that he was innocent of the 1996 murder of Stacey Stites, a Texas district court judge recommended that Reed ’s conviction be upheld. In a November 1, 2021 decision, Bastrop County District Court Judge J.D. Langley issued recommendations and findings of fact that credited every prosecution witness over every witness presented by Reed’s defense counsel.

The TCCA had stayed Reed’s execution on November 15, 2019, less than one week before he was scheduled to be put to death and returned his case to the Bastrop County district court to review Reed’s claims that prosecutors presented false testimony and suppressed exculpatory evidence and that Reed is actually innocent. The appeals court retained jurisdiction over the case and directed the trial court to make recommendations on how it should rule in the case.

During a ten-day evidentiary hearing, Reed’s lawyers presented evidence that Reed, who is Black, was having an affair with Stites, who is white; that Stites was actually murdered by her abusive fiancé, Jimmy Fennell; and that Fennell, who at that time was a police officer in Giddings, Texas, had framed Reed for the murder. Numerous witnesses testified that they had seen Stites together with Reed on prior occasions, heard Fennell threaten to kill her if she cheated on him, and heard Fennell admit to the killing. Two forensics experts testified that Stites died hours earlier than the prosecution had claimed, at a time that Fennell had said she was with him. Fennell took the stand and denied that he had committed the killing.

Langley accepted Fennell’s testimony on every disputed issue over the contrary testimony of a dozen separate defense witnesses. The court also rejected Reed’s challenges that prosecutors presented false forensic testimony, crediting the trial testimony of the prosecution’s local forensic examiners over that of Reed’s nationally known forensic experts. The county court transmitted its findings and recommendations to the TCCA, which will consider Judge Langley’s recommendation, but make its own final ruling. Reed’s lawyers continue to pursue relief, citing the unreliability of the evidence against Reed, as well as racial bias during his trial.

Wrongful Capital Prosecutions

Dennis Perry

Dennis Perry was exonerated this year of the racially motivated murders of a deacon and his wife in a Black church in Georgia in 1985. His case was one of at least four death-penalty prosecutions involving misconduct by Brunswick Judicial Circuit Assistant District Attorney John B. Johnson III . Johnson obtained death sentences against death-row exonerees Larry Jenkins and Larry Lee, as well as Jimmy Meders, whose death sentence was commuted in 2020.

Johnson had capitally prosecuted Perry even after the lead investigators in the case had determined he could not have been at the church at the time of the murders. Johnson presented testimony from the mother of Perry’s ex-girlfriend, claiming he had told her he planned to kill one of the victims. Johnson withheld evidence from the defense that the witness was to receive $12,000 in reward money for her testimony. New DNA evidence implicated an alternate suspect, an alleged white supremacist who an Atlanta Journal-Constitution investigation showed had bragged that he had “killed two ni****rs“ and had manufactured a false alibi for the murders.

When he stood with his defense team on the steps of the Brunswick, Georgia courthouse after a trial judge dismissed all charges against him, Perry was a free man.

Kevin Strickland

In November 2021, a Missouri judge released Kevin Strickland from prison more than 42 years after his wrongful capital murder conviction in June 1979. No physical evidence linked Strickland to the 1978 Kansas City triple murders for which he was convicted; two other men convicted of the killings later named other participants in the offense but said Strickland was not involved; and the lone eyewitness who testified against him said she had been pressured by police to falsely implicate Strickland.

Strickland initially rejected a plea deal in his case and faced a possible death sentence, believing the system would acquit him. At an innocence hearing authorized by a new Missouri law, he testified, “I wasn’t about to plead guilty to a crime I had absolutely nothing to do with. Wasn’t going to do it … at 18 years old, and I knew the system worked, so I knew that I would be vindicated, I wouldn’t be found guilty of a crime I did not commit. I would not take a plea deal and admit to something I did not do.” Strickland, who is Black, was capitally tried twice for the murders. The jury in his first trial deadlocked at 11-1 for conviction, with the only Black juror holding out for acquittal. Strickland was convicted of one count of capital murder and two counts of second-degree murder by an all-white jury in his second trial. After he was convicted, the prosecution withdrew the death penalty from his case.

Speaking to reporters outside the Western Missouri Correctional Center following his release, Strickland — now 62 and in a wheelchair following several heart attacks — said he was attempting to process a range of emotions. “I’m not necessarily angry. It’s a lot,” he said. “Joy, sorrow, fear. I am trying to figure out how to put them together.” He said he would like to become involved in efforts to reform the criminal legal system to “keep this from happening to someone else.”

2021 Payouts Expose the Collateral Costs of Wrongful Capital Convictions

Taxpayer payouts in 2021 from police and prosecutorial misconduct associated with the wrongful use or threatened use of the death penalty exposed a previously hidden collateral cost of capital punishment: the cost of liability. In 2021, multiple death-row exonerees won lawsuits against or received compensation awards from jurisdictions that wrongfully sentenced them to death, and multiple exonerees have lawsuits still pending against the jurisdictions and various officials involved in their wrongful convictions.

Henry McCollum and Leon Brown

In May 2021, half-brothers Henry McCollum and Leon Brown were each awarded $31 million, $1 million for each year they spent in prison in North Carolina , plus an additional $13 million in punitive damages. McCollum and Brown were 19 and 15, respectively, when they were arrested in 1983 on charges of raping and murdering 11-year-old Sabrina Buie. They were coerced into confessing, and police fabricated evidence against them while suppressing or ignoring evidence of their innocence. In 2014, they were exonerated after DNA evidence implicated Roscoe Artis, who has been convicted of a similar crime. McCollum and Brown’s youth and intellectual disabilities made them particularly vulnerable to manipulation and coercion by police.

Joe D’Ambrosio

In August 2021, the Ohio Controlling Board voted unanimously to award Cleveland death-row exoneree Joe D’Ambrosio $1 million in compensation from the state’s wrongful imprisonment fund for his wrongful convictions. D’Ambrosio was convicted of burglary, kidnaping, felony murder, and the aggravated murder of teenager Tony Klann in 1989.

In early September 2021, former death-row prisoner Robert Miller reached a $2 million settlement with Oklahoma City for his wrongful conviction and death sentence for the rape and murder of two elderly women in Oklahoma County in 1988. Both D’Ambrosio and Miller were tried and convicted in counties with long histories of prosecutorial misconduct and high rates of wrongful capital convictions. The compensation comes more than a decade after each was released from incarceration.

Curtis Flowers

Multiple lawsuits brought by other death-row exonerees and exonerees who were threatened with the death penalty during their prosecutions are pending across the country. Former Mississippi death-row prisoner Curtis Flowers , who was exonerated in 2020, is suing the officials whose misconduct led to his arrest and repeated wrongful convictions. Flowers was tried six times and spent 23 years wrongfully incarcerated for a quadruple murder in a white-owned furniture store in Winona, Mississippi.

Robert DuBoise

Florida death-row exoneree Robert DuBoise is suing the City of Tampa, four Tampa police officers, and the forensic odontologist who falsely testified against him, alleging that they fabricated evidence that led to his wrongful conviction and death sentence. DuBoise was exonerated in August 2020 after a Conviction Integrity Unit reviewed his case and new DNA evidence excluded him as the perpetrator of the rape and murder for which he was wrongfully convicted and sentenced to death 37 years earlier. DuBoise’s conviction was based on junk-science bite-mark evidence and false testimony from a prison informant.

In May 2021, Pennsylvania exoneree Theophalis Wilson filed a civil rights suit against Philadelphia following discovery by the Philadelphia District Attorney’s Conviction Integrity Unit that the prosecution’s lead witness had falsely testified against Wilson after homicide detectives threatened him with the death penalty. The Philadelphia Inquirer reported in June that the City of Philadelphia had paid $34 million since 2018 to six exonerees who had been wrongfully prosecuted for murder, and that 20 more people, including multiple death row exonerees, had either filed lawsuits or are within the statute of limitations to do so. On November 23, the U.S. Court of Appeals for the Third Circuit ruled in favor of former Philadelphia death-row prisoner Jimmy Dennis , who pleaded no contest to a murder he did not commit so that he could obtain his release from prison and avoid a possible capital retrial, that the police officers who withheld exculpatory evidence and planted evidence against him in his capital trial were not protected by qualified immunity for their actions.

Innocent, Spared Execution, But Now Sentenced to Life In Prison

Two nationally known prisoners with significant innocence claims, Julius Jones and Pervis Payne , were removed from death row in 2021 but remain imprisoned for life. On November 18, Oklahoma Governor Kevin Stitt commuted Jones’ death sentence to life without parole. That same day, the Shelby County District Attorney’s office conceded that Payne is intellectually disabled and ineligible for the death penalty. The trial court vacated his death sentence and removed him from death row on November 23.

Pervis Payne hugs his lawyer, Assistant Federal Defender Kelley Henry, after a Tennessee judge removed him from death row.

Pervis Payne was convicted and sentenced to death in Memphis, Tennessee in 1988 on charges that he murdered Charisse Christopher and her 2-year-old daughter, Lacie, and seriously wounded her 3-year-old son, Nicholas. He was prosecuted by the Shelby County District Attorney’s office in a county that had the most known lynchings in the state of Tennessee and was responsible for nearly half of its death sentences. A July 2017 report by Harvard University’s Fair Punishment Project, The Recidivists: New Report on Rates of Prosecutorial Misconduct , highlighted Shelby County District Attorney Amy Weirich for withholding key evidence from the defense and making improper arguments.

The investigation and prosecution of Payne’s case was repeatedly infected by racial bias. Payne told his sister that while police were interrogating him, they said to him: “you think you black now, wait until we fry you.” In a trial tainted by prosecutorial misconduct, county prosecutors asserted without evidence that Payne, a young Black man, was on drugs and stabbed a white woman to death because she spurned his sexual advances.

Payne, the son of a minister, did not use drugs, and police refused his mother’s request to conduct a blood test to prove he had no drugs in his system. Prosecutors also falsely asserted that Payne had sexually assaulted Christopher, showing the jury a bloody tampon that they asserted he had pulled from her body. However, the tampon did not appear in any of the police photos or video taken at the crime scene. DNA testing of evidence that had been withheld from the defense for decades found the presence of an unidentified male’s DNA on the handle of the murder weapon. The testing found Payne’s DNA on the hilt of the knife, but not on the handle or any other location the killer’s hands would have been expected to touch while stabbing the victims more than 85 times.

The victims lived in an apartment across the hallway from Payne’s girlfriend. He has long maintained that he heard cries from the apartment and entered it to investigate. His lawyers said that evidence supports his testimony that he had touched the knife while trying to help the victims after the attack. Hearing police sirens, he then fled, fearing he would be considered a suspect.

For nearly two decades, prosecutors tried to execute Payne without any judicial review of his claim that he was ineligible for the death penalty because of intellectual disability. He was scheduled to be executed on December 3, 2020 but received a temporary reprieve from Governor Bill Lee based on coronavirus concerns. Responding to Payne’s case, the Tennessee legislature then amended the state’s post-conviction law to redress a flaw in the statute that had prevented death-row prisoners from presenting their intellectual disability claims to Tennessee’s courts. Payne became the first person to seek review under the new law, forcing prosecutors to finally address the issue. With a December 13 hearing date looming on Payne’s claim, the Shelby County District Attorney’s office conceded that he was ineligible for the death penalty.

Payne’s lawyers vowed to continue the fight to exonerate him. “Our proof that Pervis is intellectually disabled is unassailable, and his death sentence is unconstitutional,” said assistant federal defender Kelley Henry, Payne’s lead counsel. “The state did the right thing today by not continuing on with needless litigation. … We however will not stop until we have uncovered the proof which will exonerate Pervis and release him from prison.”

Julius Jones also was convicted and sentenced to death in a racially charged case tried by a prosecutor’s office notorious for misconduct. Jones, who is Black, was prosecuted by Oklahoma County District Attorney “Cowboy Bob” Macy, who sent 54 people to death row during his 21 years as district attorney.

Macy was featured among the rogue’s gallery of America’s Top Five Deadliest Prosecutors in a June 2016 report by the Fair Punishment Project. At that time, courts had found prosecutorial misconduct in approximately one-third of Macy’s death penalty cases and had reversed nearly half of his death sentences. DPIC’s February 2021 special report, The Innocence Epidemic , found that the five death-row exonerations in Oklahoma County — all a product of official misconduct and/or false accusation — were the fourth most of any county in the U.S.

Jones was convicted and sentenced to death by a nearly all-white jury for the 1999 killing of Paul Howell, a prominent white businessman. In his commutation application, Jones wrote that “while being transferred from an Oklahoma City police car to an Edmond police car, an officer removed my handcuffs and said; ‘Run n****r. I dare you, run.’” In a June 2019 sworn affidavit, one of the jurors in Jones’ case said she overheard another juror say, during a break, “something to the effect of, ‘They just need to take this n****r and shoot him, and take him and bury him underneath the jail.”

Jones and his family have long said he was at home with them playing Monopoly at the time of the murder. However, his court-appointed trial lawyers failed to call any alibi witnesses, did not cross-examine his co-defendant, Christopher Jordan, and did not call Jones to testify on his own behalf. An eyewitness description of the shooter matched Jordan’s appearance, not Jones’. Jordan made a deal with prosecutors to testify against Jones and served 15 years.

At a clemency hearing before the Oklahoma Pardon and Parole Board, one of Jones’ lawyers presented the board with additional evidence: testimony from Roderick Wesley. Wesley said that while in prison, Jordan confessed that he had killed a man and that someone else was doing time on death row for his crime. Jones’ prosecutors asked the Board to disregard Wesley’s testimony because of his criminal record. Noting the irony, Jones’ lawyer pointed out that while the prosecution asserted that defense witnesses with felony convictions are not believable, it “at the same time has asked you to credit the testimony of its central witnesses, all of whom were convicted felons and informants themselves.”

The Oklahoma Pardon and Parole Board twice recommended that Jones’ sentence be reduced to life with the possibility of parole, based on evidence of Jones’ innocence. On September 13 , and again on November 1 , the board voted 3-1 to recommend clemency. On November 18, 2021, four hours before Jones’ execution was to be carried out, Governor Stitt commuted Jones’ sentence to life in prison without the possibility of parole. Stitt issued the commutation “on the condition that [Jones] shall never again be eligible to apply for, be considered for, or receive any additional commutation, pardon, or parole.”

Problematic Executions Up

• Ten of the eleven people executed in 2021 had evidence of a significant impairment
• Groundbreaking study found one of every seven executions involved a defendant who raised claims that the Supreme Court has said would require reversing their convictions or death sentences
• Texas performs execution with no media witnesses present
• Oklahoma schedules execution spree despite pending legal challenge to constitutionality of execution method

Though there were fewer executions in 2021 than in any year since 1988, the executions that were carried out highlighted serious systemic issues concerning who is executed, how they are executed, and the legal process leading up to executions.

As in past years, the eleven people executed in 2021 represented the most vulnerable or impaired prisoners, rather than the “worst of the worst.” All but one prisoner executed this year had evidence of one or more of the following significant impairments: serious mental illness (5); brain injury, developmental brain damage, or an IQ in the intellectually disabled range (8); chronic serious childhood trauma, neglect, and/or abuse (9). In addition, Quintin Jones was executed in Texas for a crime he committed at age 20, placing him in a category that neuroscience research has shown is materially indistinguishable in brain development and executive functioning from juvenile offenders who are exempt from execution.

Compounding doubt about the reliability of the judicial process to correct constitutional errors, a groundbreaking new study found that at least 228 people executed in the modern era — or more than one in every seven executions — were put to death despite raising legal claims that the Supreme Court has said would require reversing their convictions or death sentences. Some of these prisoners were “right too soon,” raising meritorious claims before the Supreme Court had ruled on the issue. However, most of the prisoners were executed after the Supreme Court had established the basis for relief, when the lower state and federal courts refused to enforce the Supreme Court’s rulings and the Court declined to intervene.

The execution procedure itself raised significant concerns in multiple states, as Texas performed an execution without media witnesses present and Oklahoma began an execution spree, despite ongoing legal challenges to its lethal-injection protocol and a botched execution. The year’s executions also presented questions of innocence, competency to be executed, and executions carried out against the wishes of the victim’s family. The first three executions of the year were the final executions carried out by the Trump administration. In addition to the aberrant practices discussed at greater length in the Federal Death Penalty section, the three prisoners executed in January — Lisa Montgomery, Corey Johnson, and Dustin Higgs — each presented case-specific reasons why their executions would be inappropriate.

Lisa Montgomery

Lisa Montgomery , the first woman executed by the federal government in 67 years, had been the victim of lifelong sexual and physical abuse, including being sexually trafficked by her mother. The conditions of her pre-execution incarceration, including being denied underclothing while being watched by male prisoner guards, recapitulated her prior sexual victimizations, exacerbating her already severe mental illness. As she decompensated under the stress of the death warrant, Montgomery’s lawyers filed motions for a competency hearing, arguing that her “deteriorating mental condition results in her inability rationally to understand she will be executed, why she will be executed, or even where she is. Under such circumstances, her execution would violate the Eighth Amendment.” Montgomery received four separate stays of execution from federal courts. The stays were meant to provide time for the courts to consider whether the federal government had violated federal law in the way it set her execution date and to hold a hearing on her mental competency. Two of these stays remained in effect at the time of Montgomery’s scheduled execution. But, without issuing any explanation of its reasoning, the U.S. Supreme Court lifted the stays hours after Montgomery’s execution had been scheduled to take place. After the original notice of execution warrant expired at midnight on January 12, the Bureau of Prisons issued a new notice scheduling her immediate execution on January 13 and proceeded to execute her at 1:31 a.m.

The following day, the federal government executed Corey Johnson without any judicial review of his claim that he was ineligible for the death penalty because of intellectual disability. He was the second intellectually disabled person put to death in the 2020­–2021 federal execution spree to be denied an opportunity to present evidence of disability. Judge James A. Wynn, dissenting from the U.S. Court of Appeals for the Fourth Circuit’s 8-7 denial of Johnson’s request for an evidentiary hearing, wrote, “Corey Johnson is an intellectually disabled death row inmate who is scheduled to be executed later today.” Newly available evidence, he wrote “convincingly demonstrates … that he is intellectually disabled under current diagnostic standards. But no court has ever considered such evidence. If Johnson’s death sentence is carried out today, the United States will execute an intellectually disabled person, which is unconstitutional.”

Dustin Higgs

Dustin Higgs , the final prisoner executed in the federal execution spree, was put to death just four days before the inauguration of President Biden, who had expressed opposition to capital punishment. Higgs was the sixth person put to death during the transition period between former President Trump’s election defeat and Biden’s inauguration — the most transition-period executions in American presidential history. Higgs was sentenced to death based on the incentivized testimony of a co-defendant who received a substantially reduced sentence in exchange for his testimony. A third co-defendant, the undisputed triggerperson in the crime, was sentenced to life in prison. Higgs maintained that he did not orchestrate the crime, as alleged by prosecutors. The only evidence for prosecutors’ theory of the crime was the self-interested testimony of his co-defendant.

Mattie Long (left) and Quintin Jones (right)

When Texas resumed executions on May 19, 2021, it ended a 315-day hiatus in state executions, the longest such gap in 40 years. Quintin Jones was put to death for the murder of Berthena Bryant, whose family opposed the execution . Bryant’s sister, Mattie Long, asked Governor Greg Abbott to spare Jones’ life, saying he had reformed his life and become a positive influence in the lives of others. Jones also sought a hearing on claims of intellectual disability. His IQ scores placed him in the borderline range of intellectual functioning, but his first state appeals lawyer could not develop the issue, because, at the time of the appeal, the Texas courts were applying an unconstitutionally harsh definition of intellectual disability. In seeking the hearing, Jones argued he should have an opportunity to have the issue decided based upon the current clinical diagnostic criteria for intellectual disability.

In a failure that Texas Representative Jeff Leach called “unfathomable,” Texas executed Jones without any media witnesses in attendance . It was the first time in the 572 executions Texas had carried out since 1976 that no media witnesses were able to serve as the public’s eyes on the state’s use of the death penalty. The Texas Department of Criminal Justice characterized the error as a “miscommunication” that resulted from “a number of new personnel” who were part of the execution team. In a statement, the Associated Press emphasized the importance of media witnesses, saying its reporters have, in recent years, witnessed and revealed to the public botched or problematic executions in Alabama, Arizona, Oklahoma, and Ohio.

John Hummel

John Hummel , an honorably discharged former Marine who experienced trauma during his military service, was executed in Texas on June 30. His court-appointed trial counsel, Larry Moore, failed both to present mitigating evidence concerning Hummel’s service and its effects on his mental health and to rebut testimony by prosecution witnesses who denigrated Hummel’s time in the service. Moore subsequently went to work for the Tarrant County District Attorney’s office while that office defended Hummel’s conviction and death sentence on appeal, filed motions to set his execution dates, and worked to have him executed. Hummel’s appellate lawyer, Michael Mowla, argued that Moore’s employment by the DA’s office presented a conflict of interest. State prosecutors argued that Moore had not been directly involved in its work on Hummel’s case but, Mowla wrote, Moore’s appeals had alleged that Moore had provided ineffective representation and, “[c]onsciously or not, Larry Moore and the Tarrant County District Attorney’s Office stand to benefit by hastening Hummel’s execution.”

Rick Rhoades

Texas executed Rick Rhoades on September 28 while his lawyers were attempting to investigate whether prosecutors had unconstitutionally excluded jurors of color from serving on his case. Texas county, state, and federal courts denied Rhoades’ requests to produce juror records and stay his execution to provide time to litigate that claim. Like many other death-row prisoners, Rhoades experienced severe childhood trauma, which his attorneys said caused brain damage that impaired his judgment and impulse control. Rhoades was the first person executed in Texas after the U.S. Supreme Court agreed to hear John Henry Ramirez ’s challenge to the state’s execution protocol, which alleged that the state would violate his religious liberty by barring his pastor from laying hands on him or praying aloud during his execution. Rhoades did not seek a stay on religious liberty grounds, providing a counterpoint to prosecutors’ contentions that death-row prisoners were simply filing such claims for “strategic delay.”

Ernest Johnson

The next two executions, those of Ernest Johnson in Missouri and Willie B. Smith III in Alabama , demonstrated the difficulties prisoners face in advancing claims of intellectual disability. Despite the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia that it is unconstitutional to execute a person with intellectual disability, the two states proceeded with the executions of men with strong evidence that they were intellectually disabled. The Missouri Supreme Court applied medically unsound criteria in determining that Johnson was not intellectually disabled and refused his attorneys’ motion for a rehearing to apply current diagnostic criteria. In Smith’s case, a federal court agreed that he was intellectually disabled, but refused to retroactively apply two U.S. Supreme Court decisions that struck down rigid and unscientific standards like those Alabama’s courts had used to deny his claim. The U.S. Court of Appeals for the Eighth Circuit acknowledged that Smith’s execution was purely “a matter of timing”: if he had been tried today, he would not be eligible for the death penalty. Smith’s appeal lawyers also filed a claim that the state had violated the Americans with Disabilities Act by denying him accommodations in designating a method of execution. If Smith had understood that he would be executed by lethal injection unless he designated another method, they argued, he would have selected execution by nitrogen hypoxia.

Oklahoma resumed executions in 2021 after a six-year hiatus in the midst of federal litigation on the constitutionality of the state’s lethal-injection protocol. Oklahoma’s Attorney General and the federal judge overseeing the litigation had promised death row prisoners that no executions would be sought before the constitutionality of the execution process had been resolved. Nevertheless, with a pending February 2022 trial date in the federal lawsuit, the state issued seven death warrants , setting execution dates over a five-month period spanning October 2021 to March 2022. The state asserted that the prisoners for whom dates were set had no legal grounds to challenge the state’s execution process because they had not identified an alternative method by which they could be executed. The federal district court agreed and dismissed them from the litigation, but the U.S. Court of Appeals for the Tenth Circuit reinstated them to the lawsuit on October 18.

The prisoners sought to enjoin their executions until the federal trial was resolved, but the district court denied their motion. The Tenth Circuit reversed and issued a stay, citing the inequity of executing prisoners using a method sufficiently problematic that a court had ordered a trial on its constitutionality. Prosecutors appealed, and just hours before John Grant ’s scheduled execution on October 28, the U.S. Supreme Court, without explaining its reasoning, intervened to lift the stay.

Media eyewitnesses at Grant’s execution reported that he convulsed “about two dozen times” after midazolam — the controversial first drug in the execution protocol — was administered. Sean Murphy of the Associated Press said at a post-execution news conference that, after about two dozen full-body convulsions, Grant “began to vomit, which covered his face, then began to run down his neck and the side of his face.” Grant, he said, convulsed and vomited again. Another media witness, Oklahoma City Fox television anchor Dan Snyder, said that medical staff had to wipe away vomit multiple times during the execution. Contrary to the witnesses’ descriptions, Oklahoma Department of Corrections (DOC) communications director Justin Wolf claimed that the execution had been carried out “without complication.” DOC director Scott Crow called witness accounts “embellished,” adding that the state did not intend to change its execution protocol as a result of Grant’s execution.

Mississippi also resumed executions in 2021 after a long hiatus. In its first execution since 2012, Mississippi on November 17 executed David Cox , who had waived his appeals and “volunteered” to be put to death. Cox was at least the 150th volunteer executed in the modern era of the death penalty. Ten percent of all U.S. executions since the 1970s have involved volunteers, who comprised four of the first five prisoners executed after the Supreme Court upheld the constitutionality of capital punishment in 1976, and were the first prisoners to be executed in 15 states and by the federal government. Cox’s execution marked the sixth time a state restarted executions after a pause of between five and 21 years by acceding to the wishes of a volunteer.

Bigler Stouffer at his clemen­cy hearing

The final execution of the year, that of Bigler “Bud” Stouffer in Oklahoma, took place despite the Oklahoma Pardon and Parole Board’s recommendation that his sentence be commuted to life without parole. Board members expressed concerns about the botched execution of John Grant. Larry Morris, one of the three board members who voted for clemency, said, “I don’t think that any humane society ought to be executing people that way until we figure out how to do it right.”

In addition to the problematic executions carried out in 2021, a groundbreaking new study found that nearly 15% of all executions between the 1970s and June 30, 2021 — or more than one in seven — involved cases in which U.S. Supreme Court caselaw now clearly establishes the unconstitutionality of the conviction or death sentence. In Dead Right: A Cautionary Capital Punishment Tale , published in the Fall 2021 issue of the Columbia Human Rights Law Review , Cornell Law School professors Joseph Margulies, John Blume, and Sheri Johnson reported that 228 executed prisoners “had claims in their case that today would render their execution unconstitutional.”

These executions fell into two major categories: (1) people who were executed before the Supreme Court categorically barred applying the death penalty against defendants who shared their characteristics; and (2) people who were executed despite raising claims the Supreme Court has clearly said establish the unconstitutionality of their convictions or death sentences. In the first category, the researchers found 22 people who were younger than age 18 at the time of the offense who were executed before the Supreme Court limited the death penalty to offenders 18 or older in Roper v. Simmons in 2005. They also identified at least 42 people with intellectual disability who were executed before the U.S. Supreme Court struck down the use of capital punishment against those with intellectual disability in 2002. In the second, larger category, they identified 173 individuals who presented claims that the U.S. Supreme has recognized clearly establish the unconstitutionality of their convictions or death sentences. Those 173 included 170 people who were executed after the Supreme Court had established the basis for relief in their cases when the lower state and federal courts refused to enforce the controlling Supreme Court caselaw and the Supreme Court refused to intervene. Subtracting the individuals who fell into multiple categories, the professors found 228 executed prisoners who were “right too soon.”

The worst offenders were the states of Texas, in which “at least 108 people were executed after the Supreme Court had already established the relevant basis for relief,” and Florida, which has executed at least 36 prisoners despite Supreme Court decisions clearly establishing the unconstitutionality of the individuals’ death sentences. That amounts to 36.4% of all Florida executions (1 in every 2.75 executions) and 18.8% of all Texas executions (1 in every 5.3 executions).

The 2021 executions also demonstrated the continuing geographic arbitrariness of the death penalty. Just five U.S. counties — Harris, Dallas, Tarrant, and Bexar in Texas and Oklahoma County in Oklahoma — have accounted for 20.9% of all U.S. executions since the 1970s. With two executions in cases from Tarrant County in 2021 and one each from Harris and Oklahoma counties, these outliers accounted for 36.4% of the year’s executions.

A Deadly Year for Prisoners with Intellectual Disability Up

• Three people with strong evidence of intellectual disability were executed in 2021
• Courts in Missouri and Texas used medically inappropriate and unconstitutionally restrictive definitions of intellectual disability to deny prisoners’ claims
• At least four people were removed from death row due to claims of intellectual disability

2021 was a deadly year for death-row prisoners with intellectual disability. At least seven intellectually disabled prisoners faced death warrants at some point in 2021. Three were executed; three came within eight days of being put to death before their executions were stayed; and one faces execution in January 2022. A U.S. Supreme Court seemingly devoted to undermining the constitutional protections afforded by Atkins v. Virginia denied stays of execution or vacated grants of penalty relief for four intellectually disabled men and refused to review the case of another even though prosecutors agreed he was ineligible for execution.

Corey Johnson

The year began with the execution of Corey Johnson , who was put to death by the federal government on January 14, 2021 without judicial review of his strong evidence of intellectual disability. He was the second intellectually disabled person executed in the federal government’s 2020-2021 execution spree, following by one month the December 11, 2020 execution of Alfred Bourgeois.

Missouri executed Ernest Johnson on October 5 after applying a medically inappropriate and unconstitutionally restrictive definition of intellectual disability to deny his challenge to his death sentence.

Willie B. Smith

Barely two weeks later, Alabama executed Willie B. Smith III on October 21 despite a federal appeals court’s acknowledgement that he met the clinical criteria for intellectual disability. Saying if he had been tried today, Smith would be ineligible for the death penalty, the U.S. Court of Appeals for the Eleventh Circuit refused to retroactively apply two U.S. Supreme Court decisions that demonstrated the unconstitutionality of Alabama’s rejection of his intellectual disability claim.

On July 2, in a ruling rendered along partisan lines without benefit of oral argument, the United States Supreme Court overturned a federal appeals court decision that had vacated the death sentence imposed on Alabama death-row prisoner Matthew Reeves , whose trial lawyers had failed to obtain expert assistance to present evidence of his intellectual disability. Alabama has scheduled Reeves’ execution for January 27, 2022.

In a November 1 ruling that provoked a sharp dissent from the Court’s liberal minority, the U.S. Supreme Court declined to review the case of federal death-row prisoner Wesley Coonce , whom prosecutors and defense lawyers agreed is not eligible for the death penalty. Coonce became intellectually disabled at age 20 after sustaining a traumatic brain injury that caused bleeding around his brain and temporarily left him comatose. Intellectual disability is a developmental disorder that requires onset “during the developmental period,” which historically had been defined as age 22. When Coonce was tried, however, the diagnostic criteria employed by the American Association on Intellectual and Developmental Disability (AAIDD) required that the disorder manifest before age 18. Because of that, the trial court and the U.S. Court of Appeals for the Eighth Circuit refused to consider his evidence of intellectual disability. While his petition for review was pending in the Supreme Court, the AAIDD revised its age-of-onset criterion to return to age 22. Dissenting, Justice Sotomayor wrote: “To my knowledge, the Court has never before denied a [request to grant certiorari, vacate the lower court’s decision, and remand the case to a lower court for further review] in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt.”

Several state supreme courts have also taken steps to undermine or evade Atkins ’ constitutional prohibition on executing individuals with intellectual disability. On June 1, the Georgia Supreme Court denied a constitutional challenge by Rodney Young to the state’s harshest-in-the-nation statutory requirement that a capital defendant must prove beyond a reasonable doubt that he or she is intellectually disabled before being declared ineligible for the death penalty. Under the beyond-a-reasonable-doubt standard, no Georgia jury has ever found a defendant charged with an intentional killing to be intellectually disabled.

On March 18, the Oklahoma Court of Criminal Appeals upheld Alton Nolen ’s death sentence against a challenge that he was ineligible for the death penalty because of intellectual disability. Viewing the evidence in the light most favorable to the prosecution, the court held that the jury was entitled to credit the testimony of the prosecution’s expert witness, who did not administer any tests of intellectual or adaptive functioning but criticized the defense experts’ testing methodology and conclusions.

Blaine Milam

Texas state courts also applied medically inappropriate and unconstitutionally restrictive definitions of intellectual disability to deny claims by Blaine Milam , Edward Busby , and Ramiro Ibarra that they were ineligible for the death penalty. Milam and Busby came within a week of execution before the Texas Court of Criminal Appeals (TCCA) stayed their executions (January 15 and February 3, respectively) and ordered that their claims be properly reviewed. Ibarra received a stay from the appeals court on similar grounds on February 24, eight days before his scheduled execution. The TCCA previously reversed Charles Brownlow’s death sentence, saying that the state courts had applied an unconstitutional definition of intellectual disability to reject his claim. On remand, the Kaufman County District Attorney’s office on January 22 conceded that Brownlow is intellectually disabled.

Pervis Payne was one of 14 Tennessee death-row prisoners with active death sentences who could not obtain judicial review of their intellectual disability claims because of defects in the state post-conviction review system. He was scheduled to be executed on December 3, 2020 but received a temporary reprieve because of coronavirus concerns on November 6, 2020. The Tennessee legislature subsequently amended the state post-conviction process to make review available. The Shelby County District Attorney’s office, which for nearly two decades after Atkins had attempted to execute him, conceded in November 2021 that he is ineligible for the death penalty. His death sentences were vacated on November 23. He had been on death row for 33 years.

Sonny Boy Oats

On August 31, Los Angeles prosecutors agreed that Stanley Davis , who was sentenced to death in 1989 for a double murder that occurred in 1985, was intellectually disabled, bringing to end what District Attorney George Gascón characterized as “more than 30 years of costly litigation.” In Florida , a Marion County judge accepted a stipulation that Sonny Boy Oats , who had been on death row for more than 40 years, was ineligible for the death penalty because of intellectual disability. Thirty years earlier, during a hearing to vacate his death sentence because his trial counsel had failed to investigate and present evidence of what was then known as mental retardation, prosecutors had conceded that Oats met the diagnostic criteria for intellectual disability. The trial court nonetheless denied Oats’ ineffectiveness claim. After Atkins was decided in 2002, Oats again sought to overturn his death sentence, but the trial court refused to consider Oats’ evidence from the 1990 hearing. In 2015, noting that “expert after expert consistently recognized that Oats has an intellectual disability,” the Florida Supreme Court ordered a new evidentiary hearing on the issue. In February 2020, prosecutors again agreed that Oats is intellectually disabled, but because of the COVID pandemic, it took until April 2, 2021 for Oats to be resentenced to life.

In a contested case, the U.S. Court of Appeals for the Eighth Circuit on August 13 affirmed an Arkansas district court decision that granted Alvin Jackson relief under Atkins . The appeals court denied Arkansas prosecutors’ motion for reargument on October 20.

New Sentences Continue to Highlight Systemic Death Penalty Flaws Up

• Eighteen new death sentences imposed, tying a record low
• Just seven states imposed death sentences
• Five death sentences handed down without a unanimous jury vote
• Majority of defendants sentenced to death were people of color, but majority of victims in underlying cases were white

The eighteen death sentences imposed in 2021 again disproportionally involved cases that lacked key trial protections or classes of the most vulnerable defendants. They included three prisoners sentenced by non-unanimous juries, two who waived jury sentencing, and another who expressed a desire to be executed. As in past years, they were concentrated in a small number of high-use states. Though the year’s sentencing numbers were artificially reduced as a result of ongoing pandemic-induced court closures and trial delays, the record-low number of new death sentences also unquestionably reflected declining public support for capital punishment and the policies of reform prosecutors who have chosen not to pursue the death penalty.

Oklahoma and Alabama led the country in death sentences in 2021, with four each. California and Texas each imposed three. At the county level, only two U.S. counties imposed more than one death sentence: Oklahoma County, Oklahoma and Los Angeles County, California each imposed two.

Alabama’s 2021 death sentences were particularly problematic. Alabama is the only state that allows the trial court to impose the death penalty based upon a non-unanimous jury recommendation for death and no Alabama jury issued a unanimous death recommendation in 2021. Instead, three death sentences followed non-unanimous jury recommendations for death and the defendant waived his right to a jury sentencing in the fourth case. The trial court sentenced Michael Dale Iervolino to death after 10 jurors — the statutory minimum for a death sentence — recommended the death penalty. The juries in the other two cases with jury recommendations each had a single juror vote for life.

In Nebraska , Aubrey Trail was sentenced to death under the state’s three-judge sentencing statute. A second three-judge panel divided 2-1 for death for his codefendant, Bailey Boswell. Because Nebraska law mandates a life sentence after a non-unanimous sentencing vote, Boswell narrowly avoided becoming the first woman ever sentenced to death in Nebraska.

Florida defendant Billy Wells pleaded guilty to a prison murder and told prosecutors and the court that he wanted to be executed. The court sentenced him to death in May. Wells had previously sought to be executed for prior murders committed in 2003. However, prosecutors, doubting his mental competency, ultimately accepted a guilty plea for five life sentences.

At least one defendant was sentenced to death who was under age 21 at the time of the crime. Adrian Ortiz was sentenced to death in California for a crime committed when he was 19.

The majority of defendants sentenced to death in 2021 were people of color — six (33.3%) were Black and four (22.2%) were Latino. More than three quarters of the cases (14, 77.8%) involved at least one white victim and thirteen (72.2%) involved only white victims. Five of the six death sentences imposed on Black defendants (83.3%) were for interracial murders, four involving only white victims. Three of the four death sentences imposed on Latinx defendants (75%) involved interracial killings. No white defendant was sentenced to death for any murder that did not involve at least one white victim.

Public Opinion Up

• Public support for the death penalty is at a half-century low
• Despite differences between polling methods and questions, an index of death penalty public opinion polls shows a consistent downward trend in public support
• Polls in California, Virginia, Ohio, Nevada, and Utah show decreased public support in states in which death penalty repeal has been or is being considered
• Polls in Texas and Oklahoma show an erosion of public support in states that lead the nation in executions

Public opinion polls and an historical index of polling on capital punishment found that support for the death penalty in the United States was the lowest it has been in a half-century. While major polling organizations differed on the most appropriate polling method to measure views about capital punishment, they agreed that their poll results reflect a sustained erosion of public support for the death penalty. An index of nearly 600 death-penalty public opinion surveys conducted over the course of 75 years indicated that public support for capital punishment has steadily declined since the 1990s and was lower in 2021 than at any time since 1966. Local polling in states considering abolition found significant public support for replacing the death penalty with non-capital alternatives, while support in states that most aggressively apply the death penalty was eroding.

The 2021 Gallup poll measured public support for the death penalty at a half-century low, with 54% of respondents to the organization’s annual crime survey saying that they were “in favor of the death penalty for a person convicted of murder.” The figure was the lowest since 50% of respondents in March 1972 told Gallup they favored the death penalty and matched the record-low 54% of Americans in the May 2020 Gallup Values and Beliefs Poll who said the death penalty was “morally acceptable.” Gallup described the results as “essentially unchanged from readings over the past four years.” Support was marginally lower than the 55% reported in October 2017 and 2020, and two percentage points lower than in October 2018 and 2019.

Support for capital punishment has declined 26 percentage points from the high of 80% reported in Gallup’s September 1994 crime survey.

Forty-three percent of respondents told Gallup that they were opposed to the death penalty as a punishment for murder, matching the responses reported in the 2020 death penalty poll. Opposition to capital punishment was at its highest in 55 years, since 47% of Americans expressed opposition to capital punishment in the May 1966 Gallup survey. The number was marginally higher than the 42% level of opposition reported in 2019 and two percentage points higher than in 2017 and 2018.

A poll conducted in April 2021 by the Pew Research Center also reported a decline in public support for the death penalty. However, because of changes in its polling methods, Pew’s reported level of death-penalty public support was higher than Gallup’s. In a Pew phone survey in August 2020, 52% of adults said that they favored the death penalty, while 65% of online respondents favored the death penalty. Saying that “survey questions that ask about sensitive or controversial topics — and views of the death penalty may be one such topic — may be more likely to elicit different responses across modes,” Pew shifted to exclusive reliance on online polling in 2021. Its online polling found that 60% of respondents said they favored the death penalty for persons convicted of murder, a five percentage-point decline from the levels of support reported by online respondents in August 2020 and September 2019.

An overwhelming number of Pew’s online respondents acknowledged serious problems with the administration of the death penalty. 78% agreed that “[t]here is some risk that an innocent person will be put to death,” while only 21% responded that “[t]here are adequate safeguards to ensure that no innocent person will be put to death.” “Only 30% of death penalty supporters — and just 6% of opponents — say adequate safeguards exist to prevent innocent people from being executed,” Pew said. Respondents also disagreed with the assertion that capital punishment contributes to public safety. 63% of online respondents told Pew that “the death penalty does not deter people from committing serious crimes,” compared to 35% who said they believed the death penalty was a deterrent. 56% also said that “Black people are more likely than White people to be sentenced to death for committing similar crimes.”

The trends noted in the Gallup and Pew polls were reflected in an index of death-penalty public opinion that tracked responses to 595 opinion surveys on capital punishment that were administered between 1935 and May 2021. The analysis, conducted by University of North Carolina political science professor Frank R. Baumgartner, found that American support for the death penalty has fallen precipitously since the late 1990s and is now at its lowest point since 1966.

Local polls released in 2021 in states considering abolition of capital punishment showed substantial and increasingly bipartisan support for repealing the death penalty and replacing it with non-capital alternatives. Shortly before the Virginia legislature voted to abolish the death penalty, a poll by the Wason Center for Civic Leadership at Christopher Newport University found that a majority of Virginians supported repealing the death penalty, including 36% of Republican poll respondents.

An online poll of Ohio registered voters, released in January 2021, found that 54% preferred some form of life in prison to the death penalty (34%) as the punishment for murder. After being provided information on innocence, costs, and other issues, 59% favored replacing the death penalty with life without parole. Given that information, majorities of Republicans (53%) and Democrats (70%) supported eliminating capital punishment in favor of life sentences, while significantly more Independents supported replacement (48%) than opposed it (29%).

A poll of Nevada voters found that 49% of Nevadans favored replacing the state’s death penalty with life without parole, compared with 46% who would keep capital punishment. When asked to choose between the death penalty and a variety of non-capital sentences as the appropriate punishment for those who commit first-degree murder, only 36% of Nevadans favored the death penalty.

In a May 2021 poll of California registered voters, a 44% plurality indicated they would vote for a state constitutional amendment repealing the death penalty, while 35% said would vote against repeal. Twenty-one percent were undecided. In Utah , 40% of respondents told that “Utah lawmakers will consider a bill to do away with the death penalty as a sentencing option in future cases” without being offered a choice of replacement sentencing alternatives said they would support “eliminating the death penalty.” Fifty-one percent of respondents said they would oppose eliminating the state’s death penalty, a drastic difference from a 2010 poll in which 79% of Utahns said they favored the death penalty.

Other polls indicated that public support for capital punishment is declining, even in traditional strongholds of the death penalty. An October 2021 poll of Oklahomans found that 64% of poll respondents said they supported the death penalty. While support remained substantial, it was down significantly from older polls showing 68% (2015) and 74% (2014) support. A University of Texas/ Texas Tribune online poll of registered Texas voters found that 63% say they favor keeping the death penalty for people convicted of violent crimes, the lowest level of support in the poll’s 11-year history. Support was down from 75% in February 2015 and 78% when the poll began in 2010.

A separate Public Policy Polling survey of Dallas , Texas voters found that three-quarters of respondents preferred some form of life sentence for first-degree murder convictions, and only 14% preferred the death penalty. Twelve percent of respondents were undecided.

State and local voters also stayed the course on efforts to roll back criminal legal reform. In a primary election widely considered a referendum on reform prosecutors, incumbent Philadelphia District Attorney Larry Krasner easily defeated former Philadelphia homicide prosecutor Carlos Vega.

Four Utah district attorneys — two Democrats and two Republicans who collectively represent 57% of the state’s population — announced in September their support for legislative efforts to repeal and replace the state’s death penalty. “Pretending that the death penalty will somehow curb crime is simply a lie,” Utah County Attorney David Leavitt , a Republican, said in an announcement that his office will no longer seek the death penalty. The county commissioners in Utah County voted to recommend that the legislature replace the death penalty with non-capital alternatives.

Criminal justice reformers faced concerted partisan attempts to remove them from office in California. Voters overwhelmingly rejected efforts to recall California Governor Gavin Newsom , who had imposed a moratorium on executions in the state. Newsom defeated the recall by 3 million votes, with 61.9% of voters casting ballots to retain him. Efforts to recall Los Angeles’s reform District Attorney George Gascón also failed, as recall proponents fell far short of the number of signatures necessary to place the issue on the ballot. Those seeking to recall San Francisco District Attorney Chesa Boudin failed in a first attempt to obtain sufficient signatures to force a recall election but succeeded in a second attempt . The recall election is scheduled for June 7, 2022. In December, opponents of Gascón launched a second effort to put the recall on the ballot.

Supreme Court Up

• Death penalty cases in 2021 revealed the potentially transformative impact of Justice Kennedy’s retirement and Justice Ginsburg’s death, contributing to a crisis of legitimacy
• The newly constituted Court demonstrates active hostility to death penalty cases, denying or lifting every stay of execution requested on other than religious grounds
• The federal execution spree ended as it began, with the Court overturning lower court rulings to pave the way for executions

U.S. Supreme Court

The United States Supreme Court’s decisions in death penalty cases in 2021 raised questions about the court’s commitment to the rule of law and its institutional role as a neutral arbiter of constitutional questions. Its apparently result-oriented, consistently anti-defendant actions revealed the potentially transformative impact of Justice Anthony Kennedy’s retirement and Justice Ruth Bader Ginsburg’s death on the Court’s death penalty jurisprudence.

The year began as 2020 ended, with the Court actively intervening to overturn lower court rulings to allow the executions of federal death-row prisoners. The Court’s actions in the federal cases and subsequent state cases demonstrated deep hostility to stays of executions based on any grounds other than the exercise of religion in the execution chamber. And even in those cases, the Court expressed skepticism about the genuineness of prisoners’ religious beliefs that was absent from its review of religious liberty issues in other contexts.

The Court uniformly declined to review cases in which death-row prisoners had been denied relief from their convictions and death sentences, even when prosecutors agreed with the prisoner’s claim. On the other hand, it accepted for review cases in which the law appeared settled and there were no disputes among state courts or the federal circuits, but death-row prisoners had won relief. It also took action on cases related to religious activity within the execution chamber that would not affect whether a prisoner would be executed, only the degree to which states must permit the exercise of religion in the moments before the prisoner’s death.

Cases that are currently pending before the Court may affect important precedent on previously settled issues relating to jury selection and the consideration of mitigating evidence, establish the bounds of religious rights at the time of execution, and determine the degree to which prisoners who have been denied the effective assistance of counsel throughout both their trials and state post-conviction appeals will have access to federal judicial review of their lawyers’ failures.

The Court’s actions enabled the last three federal executions to proceed in the face of substantial legal challenges, a pattern that was evident throughout the federal government’s 2020-21 execution spree. On January 13, 2021, the Court paved the way for Lisa Montgomery to be the first person executed in 2021 and the first woman executed by the federal government in 67 years. In summary orders, the Court vacated two stays of execution imposed by the District of Columbia and Seventh Circuit federal appeals courts. The day after Montgomery’s execution, in an order issued four hours after Corey Johnson was scheduled to be executed, the Supreme Court denied Johnson’s request for a stay of execution to permit him to litigate his intellectual disability claim.

On January 16, the Court took the almost unheard-of step of granting a petition for a writ of certiorari before judgment to ensure that Dustin Higgs ’ execution went forward. The Court also vacated a stay of execution that would have permitted a federal appeals court to consider unresolved issues regarding the legality of Higgs’ execution date. It was the 17 th time during the federal execution spree that the U.S. Supreme Court or a federal appeals courts had lifted a stay of execution or vacated an injunction that would have allowed the lower courts to address contested issues in a prisoner’s case.

Supreme Court Justice Sonia Sotomayor

In dissents from the Court’s decision in Higgs’ case, Justices Stephen Breyer and Sonia Sotomayor summarized and criticized the Court’s pattern of result-oriented decision-making throughout the course of the executions. Justice Breyer noted that the Court had sided with the government on every contested issue during that period. Justice Sotomayor wrote that “[o]ver the past six months, this Court has repeatedly sidestepped its usual deliberative processes, often at the Government’s request, allowing it to push forward with an unprecedented, breakneck timetable of executions.” She reviewed the substantial claims raised by the federal death-row prisoners about statutory interpretation, the federal execution protocol, mental incompetence, and intellectual disability, and she concluded that “the Court has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised.”

In a ruling reminiscent of its activism in the federal executions cases, the Court lifted a stay that would have halted the execution of Oklahoma death row prisoner John Grant . Oklahoma scheduled Grant’s execution to occur in advance of a federal trial on the constitutionality of its execution protocol. The U.S. Court of Appeals for the Tenth Circuit granted a stay of execution, citing the unacceptable risk that Oklahoma death row prisoners would be “unable to present what may be a viable Eighth Amendment claim to the federal courts before they are executed using the method they have challenged.” After the Supreme Court lifted the Tenth Circuit’s stay, Grant was executed using the protocol that he argued would inflict cruel and unusual punishment. Media witnesses reported that Grant convulsed more than two dozen times over a fifteen-minute period and vomited several times before dying.

The Court’s hostility to judicial review that would enforce death-row prisoners’ rights not to be unconstitutionally executed was evident in a series of cases involving intellectual disability. After denying stays of execution early in the year that would have allowed Corey Johnson and Alabama death-row prisoner Willie B. Smith to have courts, for the first time, assess their claims of intellectual disability using clinically and constitutionally appropriate standards, the justices declined to review the case of federal death row prisoner Wesley Coonce . Prosecutors and defense lawyers agreed that, applying the most recent clinical definition of intellectual disability accepted by the medical community, Coonce was intellectually disabled and not eligible for the death penalty. The parties jointly requested that the Court vacate his death sentence and return his case to a Missouri federal court to evaluate his intellectual disability claim using the current diagnostic criteria. Despite the parties’ agreement that Coonce is ineligible to be executed, the Court refused to provide him the procedural mechanism to have a court recognize this fact.

Expressing incredulity, Justice Sotomayor wrote in dissent: “To my knowledge, the Court has never before denied a [request to grant certiorari, vacate the lower court’s decision, and remand the case to a lower court for further review] in a capital case where both parties have requested it, let alone where a new development has cast the decision below into such doubt.” The Court, she wrote, “has an obligation to protect our Constitution’s mandates.” Its failure to grant the parties’ joint request, she said, “falls short of fulfilling that obligation today.”

The Court also intervened to stay or overturn merits rulings in favor of several death-sentenced prisoners. In March 2021, the Court reversed a federal appeals court’s grant of relief to Tennessee prisoner Anthony Dugard Hines . Hines’ counsel failed to investigate and present evidence to the jury that a key prosecution witness was a potential alternate suspect in the murder. In May 2021, the justices granted a motion filed by Oklahoma prosecutors to stay enforcement of a state appeals court ruling that had applied the Court’s landmark tribal sovereignty decision in McGirt v. Oklahoma to void the state conviction of death-row prisoner Shaun Michael Bosse for murders that took place on tribal lands. In July 2021, the Court reversed the decision of a federal appeals court that had vacated the death sentence imposed on Matthew Reeves , whose trial lawyers had failed to obtain expert assistance to present evidence of his intellectual disability. Justice Sotomayor respectfully dissented, writing, “Today’s decision continues a troubling trend in which this Court strains to reverse summarily any grants of relief to those facing execution. … In essence, the Court turns ‘deference’ into a rule that federal habeas relief is never available to those facing execution.”

Raising questions about the principle that the Supreme Court is not in the business of “error correction,” the Court also agreed to hear three other death penalty cases that did not appear to involve disputed issues of law. These cases, all decided in favor of the prisoners in the courts below, have potentially broad implications for the future of the death penalty.

On March 22, 2021, the Court agreed to review the decision of the United States Court of Appeals for the First Circuit that overturned the death sentences imposed on Dzhokhar Tsarnaev for his involvement in the April 2013 Boston Marathon bombing. The Court heard argument in the case on October 13, 2021. The First Circuit held that the trial court had improperly prevented defense lawyers from interviewing prospective jurors about the content of the extensive pretrial publicity to which they had been exposed. Additionally, it determined that the trial court had unconstitutionally excluded mitigating evidence that the defense claimed was central to its efforts to demonstrate that Tsarnaev had acted under the domineering influence of his older brother, Tamerlan.

The Court’s ruling on the issue could have broad impact on parties’ ability to assess juror bias in high-profile civil and criminal cases that attract broad media coverage, as well as in the presentation of evidence that courts have long accepted as mitigating in capital cases. As for its impact on the Tsarnaev case itself, If the Court rules in favor of federal prosecutors, the case will be returned to the appeals court to resolve other issues that were not previously decided. Those issues include whether the impaneling of two jurors who wrote derogatory social media posts about Tsarnaev violated his constitutional right to an impartial jury.

Barry Jones

On December 8, 2021, the Court heard oral arguments in Shinn v. Ramirez and Jones , Arizona prosecutors’ challenge to federal appellate court rulings in favor of Arizona death-row prisoners Barry Jones and David Ramirez . Jones and Ramirez argued that Arizona provided ineffective trial and post-conviction lawyers who unreasonably failed to adequately investigate and present critical issues: Jones’ evidence of innocence and Ramirez’s evidence of intellectual disability and mitigating evidence of childhood abuse and neglect. In both cases, crucial evidence was not discovered and presented until Jones and Ramirez reached federal court and were provided competent representation in their federal habeas corpus proceedings. Consistent with the rulings of every other federal appeals court that had addressed the issue, the U.S. Court of Appeals for the Ninth Circuit allowed the new evidence to be considered in determining whether Jones’ and Ramirez’s trial counsel were constitutionally ineffective. Jones’ conviction was vacated based on the new evidence, and Ramirez’s case was set for an evidentiary hearing in federal district court.

Arizona has asked the Supreme Court to intervene to limit the evidence that can be considered in such cases to the evidence that the prior ineffective lawyers presented — or, more appropriately, failed to present — in state court: a limitation that several of the justices suggested at oral argument would leave habeas petitioners with the hollow right of presenting claims with no evidence. If the Court rules in favor of Arizona, death-row prisoners who had already been denied effective representation at trial and in state post-conviction appeals would also be denied meaningful access to the federal courts to enforce their right to effective representation at trial.

While denying stays of execution on all other grounds in 2021, the Court twice granted stays based on disputes over the exercise of religion in the death chamber. On February 11, 2021, four hours after Alabama was scheduled to execute Willie B. Smith , the Court let stand a federal appeals court injunction barring his execution from going forward unless the state permitted Smith’s pastor to be present to provide him religious comfort in the execution chamber. However, that same day, the Court also issued an order vacating a stay of execution that the Eleventh Circuit had granted on a separate claim that Alabama had violated Smith’s rights under the Americans with Disabilities Act by failing to make accommodations for his intellectual disability in his selection of the method of execution. After reaching a settlement on the religious rights issue, Alabama rescheduled Smith’s execution and Smith was executed on October 21, 2021.

In September, the Court granted certiorari in the case of Texas death-row prisoner John Henry Ramirez and stayed his execution. Ramirez argued that the state’s refusal to allow his pastor to “lay hands” on him or pray audibly during his execution violates the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) and his First Amendment right to the free exercise of religion. Ramirez’s case will be the first challenge to restrictions on religious liberty in the execution chamber to be decided by the Supreme Court after full briefing and argument. The case was argued on November 9, 2021 and remains under consideration.

Key Quotes Up

Virginia Governor Ralph Northam

“There is no place today for the death penalty in this commonwealth, in the South, or in this nation.” — Governor Ralph Northam, signing historic legislation making Virginia the 23rd U.S. state and the first in the South to abolish capital punishment

“I recall the look on his face. I recall the smell of his body. I recall me being a part of cooking [him] to death. … I wonder whether God will ever forgive me now.” — Former South Carolina corrections officer Terry Bracey on his role in carrying out executions.

Utah County Attorney David O. Leavitt

“The fact of the matter is that these death sentences are not about justice. They are about who has institutional power and who doesn’t. Like slavery and lynching did before it, the death penalty perpetuates cycles of trauma, violence and state-sanctioned murder in Black and brown communities.” — Representatives Cori Bush (MO-01) and Emanuel Cleaver (MO-05) urging Missouri Governor Michael L. Parson to grant clemency to intellectually disabled death-row prisoner Ernest Johnson

“Pretending that the death penalty will somehow curb crime is simply a lie. … What I have witnessed and experienced since deciding to seek the death penalty is that regardless of the crime, seeking the death penalty does NOT promote our safety.” — Utah County Attorney David O. Leavitt, announcing that his office will no longer seek the death penalty.

“Today’s decision continues a troubling trend in which this Court strains to reverse summarily any grants of relief to those facing execution. … In essence, the Court turns “deference” into a rule that federal habeas relief is never available to those facing execution. I respectfully dissent.” — Justice Sonia Sotomayor, dissenting from the Supreme Court’s reversal of an appeals court decision overturning the death sentence of Alabama death-row prisoner Matthew Reeves, whose trial lawyers had failed to obtain expert assistance to present evidence

“The craven bloodlust of a failed administration was on full display tonight. Everyone who participated in the execution of Lisa Montgomery should feel shame.” — Assistant Federal Defender Kelley Henry, reacting to the execution of her severely mentally ill client, Lisa Montgomery

“After a thorough examination, the Committee has determined that the death penalty as created and enforced in California has not and cannot ensure justice and fairness for all Californians.” — The California Committee on Revision of the Penal Code’s November 2021 Death Penalty Report

“Inmate Grant’s execution was carried out in accordance with Oklahoma Department of Corrections’ protocols and without complication.” — Oklahoma Department of Corrections communications director Justin Wolf following the October 28 execution of John Grant, in which media witnesses reported that Grant had more than two dozen full-body convulsions and vomited several times over a fifteen-minute period before being pronounced unconscious.

Downloadable Resources Up

Click HERE to download 2021 Execution Data as an Excel File.

Click HERE to download 2021 Sentencing Data as an Excel File.

The Death Penalty Information Center is a non-profit organization serving the media and the public with information and analysis on capital punishment. The Center provides in-depth reports, conducts briefings for journalists, promotes informed discussion, and serves as a resource to those working on this issue. DPIC’s Executive Director Robert Dunham and Managing Director Anne Holsinger wrote this report with assistance from DPIC’s staff. Further sources for facts and quotations are available upon request. The Center is funded through the generosity of individual donors and foundations, including the MacArthur Justice Center, the Open Society Foundations, the Tides Foundation, M. Quinn Delaney, and the Fund for Nonviolence. Funding for DPIC’s law fellow position was provided in part by the Georgetown University Law Center. The views expressed in this report are those of DPIC and do not necessarily reflect the opinions of its donors.

Sentenced to death, but innocent: These are stories of justice gone wrong.

Since 1973, more than 8,700 people in the U.S. have been sent to death row. At least 182 weren’t guilty—their lives upended by a system that nearly killed them.

A version of this story appears in the March 2021 issue of National Geographic magazine.

A 63-year-old man named Kwame Ajamu lives walking distance from my house in a suburb of Cleveland, Ohio. Ajamu was sentenced to death in 1975 for the murder of Harold Franks, a money order salesman on Cleveland’s east side. Ajamu was 17 when he was convicted.

Ajamu, then named Ronnie Bridgeman, was found guilty primarily because of the testimony of a 13-year-old boy, who said he saw Bridgeman and another young male violently attack the salesman on a city street corner. Not a shred of evidence, forensic or physical, connected Bridgeman to the slaying. He had no prior criminal record. Another witness testified that Bridgeman was not on the street corner when Franks was killed. Yet mere months after his arrest, the high school junior was condemned to die.

It would be publicly revealed 39 years later that the boy who testified against him had immediately tried to recant his statement. But Cleveland homicide detectives told the boy they would arrest and charge his parents with perjury if he changed his story, according to his later court testimony. Ajamu was released on parole in 2003 after 27 years in prison, but the state of Ohio would not declare him innocent of the murder for nearly another 12 years, when the boy’s false statement and police misconduct were revealed in a related court hearing.

I interviewed Ajamu and others who represent vastly different backgrounds but share a similar, soul-crushing burden: They were sentenced to death after being convicted of crimes they didn’t commit.

(*Figures in all captions are rounded to the nearest year and don’t include time in jail pre-sentencing.)  

The daily paths they travel as former death-row inmates are every bit as daunting, terrifying, and confusing as the burden of innocence that once taunted them. The post-traumatic stress faced by a wrongly convicted person who has awaited execution by the government doesn’t dissipate simply because the state frees the inmate, apologizes, or even provides financial compensation—which often is not the case.

FREE BONUS ISSUE

The lesson is as charged as superbolt lightning: An innocent man or woman sentenced to die is the perfect witness against what many see as the inherent immorality and barbarity of continuing capital punishment.

It’s a particularly poignant lesson in a nation that executes people at a rate outpaced by few others—and where factors such as a defendant’s or victim’s race, low income, or inability to counter overly zealous police and prosecutors can put the accused at increased risk of a wrongful conviction that could lead to execution. Race is a particularly strong determinant: As of April 2020, Black people made up more than 41 percent of those on death row but only 13.4 percent of the U.S. population.

During the past three decades, groups such as the Innocence Project have shed light on how dangerously fallible the U.S. justice system can be, particularly in capital cases. DNA testing and scrutiny of actions by police, prosecutors, and public defenders have helped exonerate 182 people from death row since 1972, and as of December 2020 had led to more than 2,700 exonerations overall since 1989.

Each of the former death-row inmates I interviewed belongs to an organization called Witness to Innocence . Based in Philadelphia since 2005, WTI is a nonprofit led by exonerated death-row inmates. Its primary goal is to see the death penalty abolished in the U.S. by shifting public opinion on the morality of capital punishment.

During the past 15 years, WTI’s outreach targeting the U.S. Congress, state legislatures, policy advisers, and academics has been credited with helping to abolish the death penalty in several states, though it remains legal in 28 states, the federal government, and the U.S. military. In 2020, 17 people were executed in the U.S., 10 by the federal government. It was the first time more prisoners were executed by the federal government than by all of the states combined.

“I was abducted by the state of Ohio when I was 17 years old,” Ajamu began our conversation when we met on my backyard patio.

“I was a child when I was sent to prison to be killed,” Ajamu, now chairman of WTI’s board, told me. “I did not understand what was happening to me or how it could happen. At first I begged God for mercy, but soon it dawned on me that there would be no mercy coming.”

The day Ajamu arrived at the Southern Ohio Correctional Facility, a maximum-security prison in rural Ohio, he was escorted to a cellblock filled with condemned men. At the end of death row was a room that held Ohio’s electric chair. Before the guards put him in his cell, they made a point of walking him past that room.

“One of the guards really wanted me to see that chair,” Ajamu recalled. “I’ll never forget his words: ‘That’s gonna be your hot date.’ ”

From the time Ajamu was sentenced to die until 2005—when the U.S. Supreme Court ruled that executing juveniles violated the Constitution’s ban on cruel and unusual punishment—the nation executed 22 people who were convicted of a crime committed when they were under age 18, according to the Death Penalty Information Center (DPIC) .

The high court’s ruling countered a history of executing juveniles that began long before the United States was conceived. The first known case of a juvenile executed in the British colonies was in 1642 in the Plymouth Colony, where Thomas Granger, 17, was hanged. His alleged offense was sodomy with livestock.

In the earliest days of the nation, even younger children were subject to the harshest of all judicial penalties. Hannah Ocuish, 12, a Native American girl, was hanged in New London, Connecticut, in 1786 for murder. Two enslaved boys—a 12-year-old convicted of murder and a 13-year-old convicted of arson—were hanged in Virginia in 1787 and 1796, respectively.

For most of the next 200 years, age was ignored as a factor in sentencing. Juveniles and adults alike were tried, convicted, and executed based on their crimes, not their maturity. Available criminal records don’t cite the age of the executed regularly until around 1900. By 1987, when the U.S. Supreme Court first agreed to consider the constitutionality of the death penalty for minors, some 287 juvenile executions had been documented. When the Supreme Court ruled in 1978 that Ohio’s death penalty law violated the Eighth Amendment’s ban on cruel and unusual punishment, as well as the 14th Amendment’s requirement of equal protection under the law, Ajamu’s death sentence was reduced to life in prison. Still, he lingered behind bars for another quarter of a century, when he was released on parole. He wouldn’t be exonerated until 2014, after a crusading reporter for a Cleveland magazine and the Ohio Innocence Project helped unravel the lie that had sent Ajamu to death row.

“There is a wide array of blunders that can cause erroneous convictions in capital cases,” said Michael Radelet, a death penalty scholar and sociologist at the University of Colorado Boulder. “Police officers might secure a coerced or otherwise false confession. Prosecutors occasionally suppress exculpatory evidence. Sometimes there is a well-intentioned but mistaken eyewitness identification. Most common is perjury by prosecution witnesses.”

Few opponents of capital punishment summarize the case against state-sponsored executions more bluntly than Sister Helen Prejean, co-founder of WTI and author of Dead Man Walking, the best-selling book that inspired the 1995 film of the same title, starring Susan Sarandon and Sean Penn.

The plainspoken nun described how her animus toward the death penalty became personal by recalling her fear of a fairly routine dental experience she underwent years ago.

“I had to have a root canal on a Monday morning,” she told me. “The whole week before that root canal, I dreamt about it. As the appointment got closer, the more nervous I became.”

She continued, “Now imagine anticipating your scheduled appointment to be put to death. The six people that I’ve accompanied onto death row all had the same nightmare. The guards were dragging them from their cells. They cry for help and struggle. Then they wake up and realize that they are still in their cells. They realize it’s just a dream. But they know that one day the guards are really going to come for them, and it won’t be a dream. That’s the torture. It’s a torture that as of yet our Supreme Court refuses to recognize as a violation of the Constitution’s prohibition against cruel and unusual punishments.”

More than 70 percent of the world’s nations have rejected the death penalty in either law or practice , according to the DPIC. Of the places where Amnesty International has recorded recent executions, the U.S.—which has the highest incarceration rates in the world—was one of just 13 countries that held executions every one of the past five years. Americans’ support for capital punishment has dropped significantly since 1996, when 78 percent supported the death penalty for people convicted of murder. By 2018, support had fallen to 54 percent, according to the Pew Research Center.

“If I were to be murdered,” wrote Prejean, “I would not want my murderer executed. I would not want my death avenged— especially by government —which can’t be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide which of its citizens to kill.”

Before Ray Krone was sentenced to die, his life bore no resemblance to Ajamu’s. From tiny Dover, Pennsylvania, Krone was the eldest of three children and a typical small-town American boy. Raised a Lutheran, he sang in a church choir, joined the Boy Scouts, and as a teenager was known as a fairly smart kid, a bit of a prankster. He pre-enlisted in the Air Force during high school; after graduating, he served for six years.

Having received an honorable discharge, he stayed in Arizona and went to work for the U.S. Postal Service, a job he planned to keep until retirement.

That career dream—and his life—were abruptly shattered in December 1991, when Kim Ancona, a 36-year-old bar manager, was found stabbed to death in the men’s bathroom of a Phoenix lounge that Krone frequented.

Police immediately zeroed in on Krone as a suspect after learning that he’d given Ancona, whom he knew casually, a ride to a Christmas party a few days earlier. The day after her body was discovered, Krone was ordered to provide blood, saliva, and hair samples. A dental cast of his teeth also was created. The next day he was arrested and charged with aggravated murder.

Investigators said the distinctive misalignment of Krone’s teeth matched bite marks on the victim’s body. Media reports would soon derisively refer to Krone as the “snaggletooth” killer. As was the case with Ajamu, there was no forensic evidence linking Krone to the crime. DNA was a fairly new science, and none of the saliva or blood collected at the crime scene was tested for DNA. Simpler blood, saliva, and hair tests were inconclusive. Exculpatory evidence was available but ignored, such as shoe prints found around the victim’s body that didn’t match the size of Krone’s feet or any shoes he owned.

Based on little more than the testimony of a dental analyst who said the bite marks on the victim’s body matched Krone’s misaligned front teeth, a jury found Krone guilty. He was sentenced to death.

“It’s a devastating feeling when you recognize that everything you’ve ever believed in and stood for has been taken away from you, and without just cause,” Krone told me. “I was so naive. I didn’t believe this could actually happen to me. I had served my country in uniform. I worked for the post office. I wasn’t perfect, but I had never been in trouble. I’d never even gotten a parking ticket, but here I was on death row. That’s when I realized that if it could happen to me, it could happen to anyone.”

The Maricopa County Attorney’s Office spent upwards of $50,000 on the prosecution, centered on its bite-mark theory, while the consulting dental expert for Krone’s publicly funded defense was paid $1,500. This discrepancy in resources available to prosecutors and defendants in capital cases has long been replicated across the nation, leading to predictable outcomes for defendants staked to under-resourced and often ineffective legal counsel.

Krone got a new trial in 1995, when an appeals court ruled that prosecutors had wrongly withheld a videotape of the bite evidence until the day before the trial. Again, he was found guilty. Prosecutors relied on the same dental analysts who’d helped convict Krone the first time. But this time the sentencing judge ruled that a life sentence was appropriate, not death.

Krone’s mother and stepfather refused to give up on their belief in their son’s innocence. They mortgaged their house, and the family hired their own lawyer to look into the physical evidence collected during the original investigation. Over objections by the prosecution, a judge granted a request by the family’s lawyer to have an independent lab examine DNA samples, including saliva and blood from the crime scene.

In April 2002 the DNA test results showed that Krone was innocent. A man named Kenneth Phillips, who lived less than a mile from the bar where Ancona was killed, had left his DNA on clothes Ancona had been wearing. Phillips was easy to find: He already was in prison for sexually assaulting and choking a seven-year-old girl.

When Krone was released from prison four days after the DNA test results were announced, he became known as the hundredth man in the United States since 1973 who’d been sentenced to death but later proved innocent and freed.

Gary Drinkard was no choirboy. He’d had prior brushes with the law when Dalton Pace, a junk dealer, was robbed and killed in Decatur, Alabama, in August 1993.

Police arrested Drinkard, then 37, two weeks later when Beverly Robinson, Drinkard’s half sister, and Rex Segars, her partner, struck a deal with police that implicated Drinkard in the slaying. Facing unrelated robbery charges that also potentially implicated Drinkard, the couple agreed, in exchange for the charges being dropped against them, to cooperate with police and testify that Drinkard told them he’d killed Pace.

When I spoke with Drinkard, he reminded me of a weather-beaten man straight out of a Merle Haggard song. He wore coveralls and chain-smoked Newports. He spoke slowly and guardedly in a deep southern drawl. He grew exasperated only when I asked him to describe his time on death row.

“I thought they were going to kill me,” Drinkard said. That certainly seemed to be the plan. Using testimony from their star witnesses (the half sister and her partner), prosecutors hammered home the alleged confession while improperly influencing the jury with references to Drinkard’s alleged involvement in those earlier thefts. Drinkard’s public defenders, who had no experience in capital cases and very little in criminal law, mostly stood mute. They made no real attempt to introduce evidence that could have proved their client’s innocence. Drinkard was found guilty in 1995 and sentenced to death. He would spend close to six years on death row.

In 2000 the Supreme Court of Alabama ordered a new trial because of the prosecution’s introduction of Drinkard’s criminal history.

“Evidence of a defendant’s prior bad acts … is generally inadmissible. Such evidence is presumptively prejudicial because it could cause the jury to infer that, because the defendant has committed crimes in the past, it is more likely that he committed the particular crime with which he is charged,” the court wrote in granting a new trial.

Drinkard’s case had drawn the attention of the Southern Center for Human Rights, an organization that fights capital punishment. It provided him with legal counsel. At Drinkard’s 2001 retrial, his lawyers introduced evidence that indicated Drinkard was suffering from a debilitating back injury and was heavily medicated at the time of the slaying. Drinkard’s lawyers argued that he had been at home and on workers’ compensation when Pace was killed, so he couldn’t have committed the crime. A county jury found Drinkard not guilty within one hour, and he was released.

“I was not opposed to capital punishment until the state tried to kill me,” Drinkard said.

There have been more than 2,700 exonerations overall in the U.S. since 1989, the first year that DNA became a factor, according to the National Registry of Exonerations.

In 1993 Kirk Bloodsworth was the first person in the nation to be exonerated from death row based on DNA evidence. Bloodsworth was arrested in 1984 and charged with raping and murdering Dawn Hamilton, a nine-year-old girl, near Baltimore, Maryland. Police were alerted to Bloodsworth, who had just moved to the area, when an anonymous tipster reported him after seeing a televised police sketch of the suspect.

Bloodsworth bore little resemblance to the suspect in the police sketch. No physical evidence linked him to the crime. He had no prior criminal record. Yet Bloodsworth was convicted and sentenced to death based primarily on the testimony of five witnesses, including an eight-year-old and a 10-year-old, who said they could place him near the murder scene. Witness misidentification is a factor in many wrongful convictions, according to the DPIC.

“Give him the gas and kill his ass,” Bloodsworth recalled people in the courtroom chanting after he was sentenced. All the while, he wondered how he could be sentenced to die for a ghastly crime he hadn’t committed.

He was granted a second trial nearly two years later, after it was shown on appeal that prosecutors had withheld potentially exculpatory evidence from his defense, namely that police had identified another suspect but failed to pursue that lead. Again, Bloodsworth was found guilty. A different sentencing judge handed Bloodsworth two life sentences, rather than death.

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“I had days when I was giving up hope. I thought I was going to spend the rest of my life in prison. And then I saw a copy of Joseph Wambaugh’s book,” Bloodsworth said.

That 1989 book, The Blooding, describes the then emerging science of DNA testing and how law enforcement had first used it to both clear suspects and solve a rape and murder case.

Bloodsworth wondered whether that science could somehow clear his name.

When he asked whether DNA evidence could be tested to prove that he was not at the crime scene, he was told the evidence had been destroyed inadvertently. That wasn’t true. The evidence, including the girl’s underwear, later was found in the courthouse. Prosecutors, sure of their case, agreed to release the items.

Once the items were tested, usable DNA was detected—none of it Bloodsworth’s. He was freed, and six months later, in December 1993, Maryland’s governor granted him a full pardon. It would be almost another decade before the actual killer was charged. The DNA belonged to a man named Kimberly Shay Ruffner, who had been released from jail two weeks before the girl’s murder. For a time Ruffner, who was given a 45-year sentence for an attempted rape and attempted murder soon after Bloodsworth’s arrest, and Bloodsworth were housed in the same prison. Ruffner pleaded guilty to Hamilton’s murder and was sentenced to life in prison.

Today Bloodsworth is the executive director of WTI and a tireless campaigner against capital punishment. The Innocence Protection Act, signed into law by President George W. Bush in 2004, established the Kirk Bloodsworth Post-Conviction DNA Testing Grant Program to help defray the cost of DNA testing after conviction.

“I was poor and had only been in the Baltimore area for 30 days when I was arrested,” said Bloodsworth, now 60. “When I tell people my story and how easy it is to be convicted of something of which you’re innocent, it often causes them to rethink the way the criminal justice system works. It doesn’t require much of a stretch to believe that innocent people have been executed.”

Sabrina Butler discovered that Walter, her nine-month-old son, had stopped breathing shortly before midnight on April 11, 1989. An 18-year-old single mother, Butler responded with urgent CPR. When the child could not be revived after several minutes, she raced him to a hospital in Columbus, Mississippi, where he was pronounced dead on arrival. Less than 24 hours later she was charged with murder.

Walter had serious internal injuries when he died. Butler told police investigators she believed that the injuries were caused by her efforts to revive him. Police doubted her story, and after several hours of interrogation, without a lawyer present, she signed a statement that said she’d struck her baby in the stomach after he wouldn’t stop crying. Eleven months later Butler was convicted of murder and sentenced to die.

Butler’s defense team called no witnesses. A medical expert might have testified that Walter’s injuries were consistent with the clumsy CPR of a desperate mother. A neighbor—who was called as a witness during a subsequent trial—could have provided helpful testimony of Butler’s attempts to save her son’s life. Instead Butler’s court-appointed lawyers, including one who specialized in divorce law, neither called witnesses nor put Butler on the witness stand to support her case.

“Here I was, this young Black child in a room full of white adults,” Butler, now Sabrina Smith, recalled. “I did not understand the proceedings. All that I had been told by my attorneys was to sit quietly and look at the jury. When I realized my defense wasn’t going to call any witnesses to help prove my innocence, I knew my life was over.”

Butler’s conviction and sentence were set aside in August 1992, after Mississippi’s supreme court ruled that the prosecutor had improperly commented on her failure to testify at trial. A new trial was ordered.

The second trial, with better lawyers, working pro bono, resulted in exoneration. A neighbor testified about Butler’s frantic attempts to revive her child. A medical expert testified that the child’s injuries could have resulted from the CPR efforts. Evidence also was introduced indicating that Walter had a preexisting kidney condition that likely contributed to his sudden death. Butler was released after spending five years in prison, the first half of that on death row.

Less than two years after her exoneration, Butler, the first of just two American women ever to be exonerated from death row, received a summons for jury duty.

“I was so appalled,” she told me. “I went downtown and spoke to the court administrator. I explained to him that the state of Mississippi had tried to kill me. I told him I was quite certain that I would not make a good juror.” She was dismissed.

A question that frequently confounds exonerees and the general public alike is whether a consistent formula exists for compensating the falsely convicted, especially those sentenced to die. The short answer is no. A small number of exonerees have been compensated for millions of dollars depending on the laws of the state that convicted them, but many receive little or nothing.

Few death-row exonerees more closely follow the issue of compensation than Ron Keine, who lives in southeastern Michigan. Keine has made it part of his life’s mission to improve the plight of the wrongly convicted, who often reenter society with meager survival skills. He wasn’t always so benevolent.

Growing up in Detroit, Keine ran with a rough crowd. He’d been shot and stabbed before he turned 16. At age 21, he and his closest friend, who both belonged to a notorious motorcycle club, decided to drive a van across the U.S.

The extended open-road party was going as planned until he and four others were arrested in 1974 in Oklahoma and extradited to New Mexico, where they were charged with the murder and mutilation of a 26-year-old college student in Albuquerque. A motel housekeeper reported that the group raped her and that she then saw the group kill the student at the same motel.

The problem with the story should have been readily apparent. The bikers weren’t in Albuquerque when William Velten, Jr., the student, was killed. They were partying in Los Angeles and had a dated traffic citation to prove it. The housekeeper later recanted her story.

In September 1975 a drifter, Kerry Rodney Lee, confessed to killing Velten, possibly because he felt guilty knowing that four men were on death row for his crime. The gun used in Velten’s slaying matched a gun stolen from the father of Lee’s girlfriend. Based on this evidence, Keine and his biker friends were granted new trials and the prosecutor decided not to indict them. Lee was convicted in May 1978 of murdering Velten.

“When I was on death row, I knew I was innocent, but I still came within nine days of my first scheduled execution date,” said Keine, now 73. “I didn’t have a voice. So when I got out, I decided I was going to spend my life being a thorn” in the side of the criminal justice system. “I decided that I was going to go from dead man walking to dead man talking.”

Keine, who founded several successful small businesses after his exoneration, has testified before state legislators seeking to overturn capital punishment laws. Having received only a $2,200 settlement from the county that put him on death row, he has been vocal in calling for a system of compensation for others wrongly sentenced to death.

“When people get off death row, they feel like a piece of shit,” he said. “They don’t have any self-worth—no self-esteem, and they usually don’t have two nickels in their pocket. We try to build them up. We try and help them find the resources they need to survive.”

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The Case That Made Texas the Death Penalty Capital

In an excerpt from his new book, ‘let the lord sort them,’ marshall project staff writer maurice chammah explains where a 1970s legal team fighting the death penalty went wrong..

The town of Cuero, halfway between San Antonio and the Gulf Coast, was small enough that a child’s disappearance would be noticed quickly. In August 1973, a little after dusk, the grandmother of 10-year-old Wendy Adams arrived to pick her up at the pool in the town park. Her clothes were still in a locker. “The child was obedient,” her grandmother later recalled, “and I knew that if she had changed her plans she would have called me.” She alerted the woman behind the park concession stand, who happened to also be the wife of the local police chief. A search began.

Witnesses had seen Adams in the back of a dark blue pickup truck, speeding down the road, screaming for help as her long, blonde hair billowed in the wind. A group of adolescent girls said a 22-year-old cotton mill worker named Jerry Jurek had tried to chase them down in the same truck earlier that day. Late that night, the police picked up Jurek at his parents’ house, and brought him, shoeless and shirtless, to the local jail. Among the arresting officers was Ronnie Adams, the father of the missing girl.

Jurek initially denied involvement, but eventually confessed. He said he’d been drinking and invited Adams to go “riding around” with him. She climbed into his truck and he drove to a bridge just outside of town. “Wendy told me that I shouldn't be drinking, and that I was just like my brother who drinks a lot,” he said in a written confession. “I got mad at her and jerked her off the truck and grabbed Wendy around her throat and choked her to death; she tried to talk to me to get me to stop but I wouldn't listen.” Sheriff’s deputies found her body floating face down in the river below the bridge.

Prosecutors remained suspicious about whether Jurek was telling them the whole truth, and they continued to press him. He gave a second confession. “I did not tell the truth about the conversation I had with Wendy at the river…and I now herein wish to correct that statement,” reads his second confession, using oddly formal language. “I asked her if she had ever had sex before and she said yes. I asked her if she wanted to have sex with me but she said no and started screaming and yelled ‘help’ and ‘please don't kill me.’ So I started choking her.” Jurek was charged with “murder in the course of kidnapping and attempted rape.” Prosecutors decided to seek the death penalty.

This all might have amounted to a straightforward small-town murder case, one of thousands every year resolved through a plea deal or a short trial, and Jurek might have faded into the rising wave of mass incarceration. But one year earlier, the Supreme Court had struck down every death penalty law in the country. State legislators across the U.S. raced to write new laws, and by May 1973, Texas had one on the books. As one of the first death sentences under the new law, Jurek’s case would become a test case, playing a key role in both the nationwide rise of the death penalty and Texas’s place at the center. Since 1972, Texas has carried out more than 500 of the country’s roughly 1,500 executions. The case of Jerry Jurek—and the many what-might-have-beens along his path through the legal system—helps explain why.

Shortly before his trial, Jurek was appointed two attorneys: George Middaugh, a part-time lawyer who also ran a lumber mill, and Emmett Summers III, who had finished law school three months before the murder. Summers had grown up with Jurek’s older brother and knew the Adams family, too. The more experienced attorneys in town didn’t want to be associated with such a horrible crime, he recalled years later, but “a young guy like me could get away with it.” Middaugh “was certainly not a criminal law expert,” Summers continued, “but it was not like anyone else was beating down the door to do it.” (Middaugh died in 2011.)

At Jurek’s five-day trial, his lawyers repeatedly cast suspicion on the two confessions, the first of which had been made after Jurek had spent a night, as Summers recalled, “virtually naked in this cold jail cell.” Jurek had scored 66 on the verbal portion of an IQ test, indicating an intellectual disability. And yet his first confession had him putting strangely mature words in the mouth of a 10-year-old, and his second confession used phrases like “herein” and “my prior statement.” The pathologist who examined Adams’ body found evidence of strangulation, but not of rape.

As Middaugh saw it, his client had no obvious motive to give a second confession, but the prosecutors did have a motive to get one. Shortly before the crime, he told the jury, the Texas legislature had decided that someone could only get the death penalty if they committed a second crime along with the murder, like rape or kidnapping. (It also allowed death if the victim was younger than 6, but Adams was 10.) The second confession implied rape and also removed the mention of Adams climbing into the truck by choice.

Middaugh suggested that the prosecutors had come to a realization. “Oh my god,” he said in court, mimicking their thought process. “The law’s been changed and we don’t have this boy accused of kidnapping anybody or raping anybody and we can’t get the death penalty.”

Middaugh’s suspicions didn’t sway the jury, which found Jurek guilty of murder “in the course of committing or attempting to commit kidnapping and/or forcible rape.” They didn’t need to specify.

The trial then moved into its second phase. The Texas Legislature had written that if jurors were going to sentence someone to death, they needed to decide “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” In other words, the jury had to predict the future.

The longtime district attorney of DeWitt County, Wiley Cheatham, brought to the stand a series of community members who said Jurek had a “bad” reputation. He’d been accused in the past, though not convicted, of sexually assaulting several other children. A psychiatrist who had met with Jurek described him as “sociopathic, exhibiting a number of antisocial traits.” Jurek’s father testified that his son had worked—pumping gas, and on oil and construction crews—and gave most of his paycheck to support the family. Neither side presented an especially rich picture, and the jury sided with the prosecution.

Jurek went to death row. Soon after, Middaugh was disbarred over an unrelated ethics issue. So it fell to Emmett Summers—still less than a year out of law school—to prepare Jurek’s appeal. He knew he could not responsibly do this alone, so he looked for help, and he learned that the Legal Defense Fund (LDF), which had grown out of the National Association for the Advancement of Colored People,* was offering assistance to any lawyer with a death row client, regardless of that client’s race. The LDF was eager to swoop in, knowing that the Jurek case might be crucial to the fate of the Texas law, shaping the course of hundreds of future cases. Although Summers continued to be bothered by Jurek’s confessions, the Texas law as a whole, rather than the details of Jurek’s case in particular, became the focal point of his defense, folded into the LDF’s larger, national strategy.

The architect of the LDF’s effort against the death penalty was Anthony Amsterdam. Although not as well-known today as other LDF legends like Thurgood Marshall and Constance Baker Motley, this Jewish law professor was, in his heyday, considered a genius and a workaholic, the sort of person who dictated legal briefs from memory, cited case law by page number, and made his colleagues wonder whether he ever slept. It was Amsterdam who, in 1972, had stood before the Supreme Court and convinced the justices to strike down the entire country’s death penalty laws. (He declined an interview with me, but gave one to Evan Mandery for the 2013 book “A Wild Justice: The Death and Resurrection of Capital Punishment in America” ). He had a particular skill in pulling listeners through dense legal arguments and then rhetorically slamming the brakes. “The figures are perfectly plain,” he said at one such point in the oral argument. “Georgia executes Black people.” Influenced by his arguments, several justices wrote that the death penalty had become cruel and unusual because it was handed down in an arbitrary way, akin to being “struck by lightning.”

Anthony Amsterdam, center, a Stanford University law professor, led a team of lawyers in 1972 to convince the Supreme Court that the death penalty in America should be abolished.

But as the new laws came into effect and the test cases worked their way through the system, Amsterdam led a team of lawyers who divided up the states, planning how to convince the court that all these new laws violated the Constitution as well—and, by extension, that the death penalty in America should be abolished forever.

The Texas law went to Peggy Davis. She had little in common with Jurek, an impoverished, White, intellectually disabled cotton mill worker who’d spent his whole life in rural Texas. Davis came from a middle-class Black family and had become an academic star: In addition to law, she’d studied philosophy and psychoanalysis and even jazz singing before joining the LDF. She was excited to work with Amsterdam, who was one of her personal heroes, and she got to work studying the Texas law, which was a bit of an anomaly.

Most of the new death penalty laws produced by the states fell into two broad categories. Some states set aside a handful of specific crimes—murder of a police officer, for example—and made the death penalty automatic. Other states held a sort of second trial over punishment, in which the jury would hear lawyers present cases for and against death, and consider specific “aggravating” factors (the defendant killed for money, killed lots of people, etc.) and “mitigating” factors (the defendant had no history of violence, suffered from mental illness, etc.).

The Texas law was a hybrid: There was a second trial, but the jury only had to answer three questions: Was the murder deliberate? Was it unprovoked? And might the defendant be a “continuing threat to society”? In most murder cases, the first two questions were already assumed to be yes based on the guilty verdict, so it was the third question, known as the “future dangerousness” question, that mattered most.

Peggy Davis was in charge of researching Texas law in the Legal Defense Fund's efforts against the death penalty in the Supreme Court in 1976.

Because she’d studied psychology, Davis knew there was a whole area of academic literature on predicting who would commit crimes, and she felt it could not be done responsibly. Although Jurek was White, Davis suspected the emphasis on dangerousness would be used to tag Black defendants as especially deserving of death, since they were often perceived, consciously or not, to be more dangerous.

Another problem with the Texas law was that it gave the jury little opportunity to consider evidence that might sway them towards mercy and away from a death sentence—evidence like Jurek’s intellectual disability, or his work ethic, or his love for his family members. But in Texas, because the jury only had to answer three limited questions, they were unable to truly take account of such evidence.

In early 1976, the Supreme Court agreed to hear five cases from five states as a way of ruling on the entire range of death penalty laws that had been passed around the country. Many of the justices’ own clerks were convinced Anthony Amsterdam would lose: surely the court would uphold at least one of the new laws. But there was plenty of room for a partial victory; the court might keep one kind of law while striking down others.

Amsterdam and his team had a difficult strategic choice to make. They could focus on attacking the harsher laws from North Carolina and Louisiana that doled out automatic death penalties and say they restricted the juries’ ability to consider mitigating evidence. The problem with this strategy was that it might nudge the justices to see the laws out of Florida and Georgia, which did allow jurors to weigh evidence more broadly, as acceptable. Amsterdam would in effect be helping to send prisoners in those two states to their executions.

On the other hand, Amsterdam could push the court to strike down all the laws. If he was successful, the death penalty might disappear from the U.S. for good. This was risky: if the court rejected his reasoning, they might uphold all of the new state laws.

Part of the problem was that Amsterdam and the LDF were representing people on death row across numerous states. In order to fight for all of them at the same time, he had to take an all-or-nothing approach. Jerry Jurek was in a way at the center of this legal and intellectual conundrum. If Jurek had his own lawyer, who was looking only to save just his life, the best argument may well have been that the Texas law was too harsh, that the jury who sentenced Jurek had therefore never been given a robust opportunity to weigh whether, given his mental limitations, he perhaps deserved mercy. Might this mean that one lawyer shouldn’t be representing five defendants with five different sets of interests and potential legal strategies? There is no evidence that Amsterdam and his colleagues ever considered this question as they took the more sweeping approach.

Jurek, living in a prison cell 1,600 miles away from the LDF office, could hardly have known he was at the center of this question. Davis, though she was responsible for his case at the LDF, was unable to visit him. “There were conversations about whether you attack the death penalty overall, or whether you attack just the case and do what’s best for Jerry,” Summers, his local lawyer, recalled. Given his mental limitations, “Jerry would not have been able to participate in the conversation.”

As Amsterdam set his strategy for the argument, he relied on Davis and one of her colleagues. They rehearsed arguments, Amsterdam smoking a cigar and working out how to make himself appear reasonable to the justices. Still, Amsterdam did not let the younger lawyers seriously challenge his plans. Not that they would have. “I didn’t feel like I could disagree with Tony,” Davis later said. “He was a phenomenon.”

On the day oral arguments began, in March 1976, dark rain clouds veiled the Supreme Court building. Jerry Lane Jurek v. Texas was argued first, but Amsterdam’s opening was not about Jurek or Texas: he made sweeping arguments about all of the death penalty laws across the country. (A full recording is online .) One justice asked Amsterdam if he thought the death penalty to be cruel and unusual “no matter how serious the offense and no matter how completely a fair trial he may have been given.” Amsterdam said yes. Throughout the argument, the justices continued to give Amsterdam opportunities to compromise—to say some state laws were better than others, or to say that the death penalty could perhaps be preserved for the occasional airplane hijacking or presidential assassination. But he wouldn’t bite.

Instead, Amsterdam argued that every single one of the new laws involved too much human decision-making—prosecutors deciding who to charge, jurors deciding who to sentence, governors deciding whose sentences to commute—and that as a result executions would remain arbitrary.

As an example, he brought up the future dangerousness question in Texas. “The thing that is most devastating is that you can’t even challenge the jury’s finding because the question to which it responds is so meaningless,” Amsterdam said, noting that Jurek had been sentenced to die on the testimony of a few community members who just didn’t seem to like him.

We Are Witnesses

Justice Lewis Powell Jr. wrote down that he found Amsterdam’s views on the Texas law “fairly persuasive.” But as the argument continued and Amsterdam continued to talk abstractly about all the laws, Powell added to his notes, Amsterdam is “not interested in the fairness of procedure in a particular case.”

Another justice pointed out that human decision-making existed throughout the criminal justice system, not just in death penalty cases. Amsterdam responded, “Our argument is essentially that death is different.” He continued, “Death is final, death is irremediable. ... It goes beyond this world. It is a legislative decision to do something and we know not what we do.”

After he finished, he was followed by John Hill, the attorney general of Texas, who pounded Amsterdam as an extremist who was trying to foist his personal opposition to capital punishment on the American people. He pointed out that among 60 reported cases from Texas, the jury had found that 12 defendants would not be a future danger and spared their lives.

After Hill came Robert Bork, the conservative legal scholar. Years later, during his own confirmation hearings for a spot on the Supreme Court, his views would be tagged as too extreme, but for now he was simply representing a majority of Americans—66 percent according to an April 1976 poll—who supported executions. He jumped on the weakest part of Amsterdam’s argument: By saying that human decisions were a problem, he explained, Amsterdam was actually implying the solution would be a law that totally removes human decisions, that is “so rigid and automatic and insensitive that it would be morally reprehensible.”

Then Bork made his most sweeping argument, that the death penalty was a sign of a healthy democracy at work: “These five cases are about democratic government, the right of various legislatures of the United States, to choose or reject—according to their own moral sense and that of their people—the death penalty.”

Amsterdam returned for a final argument. Justice Powell asked him to pick between the five laws: Which would be the most fair in handing out the death penalty?

“None of them is close enough so that I can give a meaningful answer,” Amsterdam said.

More than 30 years later, speaking with the historian Evan Mandery, Amsterdam noted that at this moment he might have chosen to change course completely, and trying to turn the justices against one law in particular, the law that pretended to give juries a choice but restricted that choice so much that it was practically mandatory—the one from Texas.

“Now I know what it’s like to hear Jesus Christ,” William Brennan fumed to his clerks once he returned to his chambers. Brennan was one of the court’s most liberal justices, and he hated the death penalty, but he was angry at Amsterdam for giving up so many opportunities to appear pragmatic. Still, when the justices gathered two days later, Brennan told his colleagues he’d vote to strike down all five laws and keep the death penalty from returning. Thurgood Marshall agreed. At the other extreme were four justices whose support for the death penalty was firm and who wanted to uphold all the laws: Chief Justice Burger, along with Justices Byron White, Harry Blackmun and William Rehnquist.

Associate Justices William Rehnquist and Lewis Powell, shown here shortly after they joined the court in 1972, were tasked several years later with deciding whether new state death penalty laws violated the Constitution.

That left three whose votes were still in question: Lewis Powell, who had challenged Amsterdam during the arguments, along with John Paul Stevens and Potter Stewart. They were all willing to accept the Georgia and Florida laws, but were troubled by the “mandatory” laws in North Carolina and Louisiana. They saw how Texas, with its three questions and talk of future dangerousness, fell awkwardly between the two approaches, and Stevens and Stewart expressed ambivalence about it. Still, the Texas law appeared to command a majority, as did all of the laws except the one in North Carolina.

But all was not settled; Powell was having second thoughts. One of his law clerks had been arguing it was necessary to preserve an element of mercy in the system and believed that both the Louisiana and Texas laws, like the one in North Carolina, restricted that mercy too much. She thought the Texas law was effectively a “mandatory” death penalty.

Powell reached out to Stevens and Stewart. They met for lunch, and their conversation, held at a popular D.C. restaurant called The Monocle, is lost to history . But the issues they must have discussed remain unresolved to this day. The justices seemed to want to let juries make individual decisions about each defendant, while also ensuring their decisions, in aggregate, were not arbitrary. Most Americans are familiar with the idea that ‘the punishment must fit the crime,’ suggesting that two different people who commit the same crime must suffer the same consequences. Many Americans also believe in mercy, that judges and juries should be able to show leniency based on what they learn about the individual person before them. But how should we respond when their decisions fall along lines of race and gender and class that trouble us? In Mandery’s elegant formulation, “a person cannot be both unique and equal.”

The justices emerged with a plan: all three would oppose the Louisiana law and uphold the Texas one. On a Friday morning in July, the court announced that the death penalty would return, upholding the laws in Florida, Georgia, and Texas, and striking down those in Louisiana and North Carolina.

The overall message was that juries should be allowed to choose whether a specific person should receive the death penalty, considering the particulars of the crime (Did the defendant seem especially cruel while committing it? Did he show remorse right away?) and of the defendant (What was his childhood like? Had he struggled with poverty or addiction or mental illness?). Defendants should be treated, in Stewart’s words, as “uniquely individual human beings.” In an early draft of the decision striking down the mandatory law in North Carolina, Stewart wrote that jurors should be able to consider “the frailty of human actors,” but he cut the phrase and replaced it with something a bit more poetic and sweeping: “the diverse frailties of humankind.”

The three justices believed the questions devised by the Texas legislature would allow the jury to weigh these factors. Ironically, it was Rehnquist, a conservative who approved of all the laws, who disagreed. He thought his colleagues were fooling themselves by believing the Texas law would really give juries the opportunity to juries to consider the “diverse frailties of humankind.” The Texas law, he thought, was going to turn out to be just as unwavering as the ‘mandatory’ laws his colleagues had voted to strike down.

In many ways, Rehnquist was proven right by history. Although Florida and Georgia’s laws also proved to have flaws, and the death penalty systems in those states were later challenged for arbitrariness and racial disparities, it was Texas that built the country’s dominant conveyor belt to death row. Texas prosecutors grew adept at using the future dangerousness question to scare jurors into handing out death sentences. They enlisted forensic psychiatrists—one with the nickname “ Dr. Death ”—to make scientifically bogus predictions that defendants would kill again if not sentenced to death.

In 1989, the Supreme Court finally ruled that the state’s law needed to be rewritten, and it was tweaked to allow juries to more fully consider mitigation evidence. But scholars have argued that the continuing emphasis on future dangerousness tends to push jurors away towards picking the death penalty. In 2013, the American Bar Association declared jurors could interpret the concept of future dangerousness “so broadly that a death sentence would be deemed warranted in virtually every capital murder case.” And LDF attorney Peggy Davis’ prediction about race bore out too: By 2000, seven cases had emerged in which an expert witness explicitly predicted that defendants would be dangerous because of their race.

Right after the court ruled, Amsterdam wrote up a request for the justices to reconsider their petitions. Such “petitions for rehearing” are seldom granted, but it was one more opportunity to argue that the Texas law was too harsh, and that Jurek had not been given a robust opportunity to present a case to spare his life. Davis pushed her boss to take this route. She had not slept well in the days after the decision. “Over and over again, during the last week I have thought: What kind of rehearing petition would I write if I represented only Jerry Lane Jurek?” she wrote to Amsterdam in a memo. “And every time I think about that I am troubled because I think that a much stronger attack on the Texas statute could be made.” She thought the Texas law was “unconscionably mandatory” and would not allow a jury to consider the “diverse frailties of humankind” mentioned by the court. Amsterdam did write in his petition that the Texas law was “Draconian” and “forbids the consideration of any but the narrowest factors of mitigation,” but he didn’t fully separate the Jurek case from the others.

Shortly after Justice John Paul Stevens retired, in 2010, he gave an interview and said that after 35 years on the court, there was only a single decision he regretted: Jurek v. Texas. “I think upon reflection, we should have held the Texas statute...to fit under the mandatory category and be unconstitutional,” he told his former colleague Sandra Day O’Connor. “In my judgment we made a mistake on that case.”

Scholars were rough on Amsterdam, calling his legal strategy “ a cautionary tale about cause lawyering ” and his attitude “ tone deaf to the changing tune of the country .” Executions resumed in 1977, ending a decade-long hiatus brought about by the legal battles.

But Davis did not need to worry: Jurek survived. Even after she left the LDF, in 1977, the organization kept fighting his case. A couple of years later, judges on the Fifth Circuit Court of Appeals ruled that his confessions could not have been truly voluntary, especially because Jurek’s “verbal intelligence is limited” and he was “less likely to be able to understand his right to remain silent.” His death sentence was thrown out, and the same year lethal injections began, in 1982, he pled guilty in exchange for a life sentence.

Though his name was attached to one of the most significant moments in the country’s legal history, Jerry Jurek began living out his quiet life in a Texas prison. As his hair turned gray and wispy, he continued to slick it back into the style of his youth. He worked in a prison kitchen—avoiding the dayroom because the televisions and loud fans and shouting prisoners stressed him out—talked to his cellmate, and wrote letters with doodles of cartoon dogs along the bottom of the page. He spoke with a clipped, wised-up drawl, though his mind had departed significantly from reality. “Mine is the one that got everyone off death row,” he recalled incorrectly, during a 2015 interview. He maintained that he was totally innocent of killing Wendy Adams, and was the victim of a conspiracy between his lawyers and multiple local authorities. He said there is a missing document that will prove it, if only someone will go find it in a town called “Eldorado.” “If everything goes right,” he said, “I might be out of here pretty soon.”

Every so often, Jurek would come up for parole, and Brandi Adams Garza, his victim’s little sister, would write a letter to the parole board describing the toll the murder took on her family; her father quit his job as a police officer, and her mother suffered a mental breakdown. “I think that the death penalty was appropriate to start with and, had it been followed through with,” Garza told the Victoria Advocate , “it would have eliminated a lot of stress on my dad, my family, myself, my brother.”

As the death penalty system ground into motion in the late 1970s, the LDF realized its work was only beginning. Every case would now be a smaller battle in a bigger war of attrition. Hundreds of men and women sentenced to death would need lawyers to attack those sentences one by one and stave off execution. Sometimes, their cases would end up back at the Supreme Court, which would be tasked with deciding not whether the death penalty as a whole was constitutional, but rather whether one element of a trial violated a defendant’s rights. The court would go on to rule in ways that both helped and hurt death row prisoners, but the overall effect would be to further entrench the punishment.

There would be a lot of relationships like the one between lawyer Davis and client Jurek. Often the racial dynamic would be flipped, with White lawyers and Black clients. The lawyers would develop arguments and study arcane legal precedents while their clients sat in death row cells for years and years, waiting for the day they might lose their cases and their lives. And what haunted Peggy Davis would haunt the many lawyers who would come after her. They would wonder, as she had wondered: What else could be done?

Adapted from “Let the Lord Sort Them: The Rise and Fall of the Death Penalty,” published by Crown on Jan. 26, 2021.

Rachel Siegel contributed reporting.

Excerpt has been updated to reflect that while the Legal Defense Fund is an outgrowth of the NAACP, it had become a separate organization by the time of the events.

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Maurice Chammah Twitter Email is a staff writer whose book, “ Let the Lord Sort Them: The Rise and Fall of the Death Penalty ”, won the 2019 J. Anthony Lukas Work-In-Progress Book Award. A former Fulbright and H.F. Guggenheim fellow, he has reported on a range of criminal justice subjects, including jail conditions, sheriffs, wrongful convictions, and art by incarcerated people.

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Capital Punishment in the United States, 1973-2021 (ICPSR 38924)

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United States. Bureau of Justice Statistics. Capital Punishment in the United States, 1973-2021. Inter-university Consortium for Political and Social Research [distributor], 2023-11-16. https://doi.org/10.3886/ICPSR38924.v1

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CAPITAL PUNISHMENT IN THE UNITED STATES, 1973-2021 provides annual data on prisoners under a sentence of death, as well as those who had their sentences commuted or vacated and prisoners who were executed. This study examines basic sociodemographic classifications including age, sex, race and ethnicity, marital status at time of imprisonment, level of education, and state and region of incarceration. Criminal history information includes prior felony convictions and prior convictions for criminal homicide and the legal status at the time of the capital offense. Additional information is provided on those inmates removed from death row by yearend 2021. The dataset consists of one part which contains 9,657 cases. The file provides information on inmates whose death sentences were removed in addition to information on those inmates who were executed. The file also gives information about inmates who received a second death sentence by yearend 2021 as well as inmates who were already on death row.

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All inmates on death row since 1973 in the United States.

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Capital punishment, closure, and media.

• Jody Madeira Jody Madeira Maurer School of Law, Indiana University
• https://doi.org/10.1093/acrefore/9780190264079.013.20
• Published online: 22 November 2016

In contemporary society, “closure” refers to “end to a traumatic event or an emotional process” (Berns, 2011, pp. 18–19)—and, in the more specific context of capital punishment, controversy over what, if anything, is needed for murder victims’ families to attain healing and finality or move forward with their lives, including the execution of their loved one’s killer. The term is highly politicized, and is used by both death penalty advocates and its opponents to build arguments in favor of their respective positions. Closure has been indelibly linked to both capital punishment and media institutions since the late 1990s and early 2000s. The media’s penchant for covering emotional events and its role in informing the American public and recording newsworthy events make it perfectly suited to construct, publicize, and reinforce capital punishment’s alleged therapeutic consequences. Legal and political officials also reinforce the supposed link between closure and capital punishment, asking jurors to sentence offenders to death or upholding death sentences to provide victims’ families with a chance to heal. Such assertions are also closely related to beliefs that a particular offender is defiant or lacks remorse. Surprisingly, however, the association between closure and capital punishment has only recently been subjected to empirical scrutiny. Researchers have found that victims’ families deem closure a myth and often find executions themselves unsatisfying, provided that a perpetrator does not enjoy high media visibility so that the execution has a silencing effect, as did Oklahoma City bomber Timothy McVeigh’s execution by lethal injection in 2001. Recent empirical examinations of the link between capital punishment and closure prompt a redefinition of closure through which victims’ family members learn to cope with, work through, and tell the story of a murder and its impact. This redefinition is less sensational and thus perhaps less newsworthy, which may have the salubrious effect of discouraging extensive media emphasis on executions’ closure potential. Another way to decouple closure from capital punishment is for media organizations to change their practices of covering perpetrators, such as by not continually showing images of the perpetrator and by incorporating a more extensive focus on the victims and their families. While government officials have called for the media to exercise restraint in the wake of such events as the Oklahoma City bombing and 9/11, victims’ groups are now beginning to advocate for this same goal, with much success.

• capital punishment
• death penalty

The identification of closure with capital punishment is a fairly recent development, given the centuries-long history of the death penalty in the United States. As Armour and Umbreit ( 2012 ) observe, “although small in number, capital murder cases consume the attention of the public through mass media” (p. 4). Here, the term “media” is used to refer to the “main means of mass communication (esp. television, radio, newspapers, and the Internet) regarded collectively” (Media, n.d. ), including both those organizations that cover news and those focused on other forms of entertainment. The controversial coupling of closure with capital punishment (Armour & Umbreit, 2006 ) stems from both mass media coverage and criminal justice system practice, as prosecutors argue to juries that family members can gain closure from the execution of their loved ones’ killer, or that executions heal social or communal wounds (Meade, 1996 , pp. 743–744; Bandes, 2004 , pp. 592–595). Media institutions in particular have assumed a bullhorn role in broadcasting the association between capital punishment and closure, publicly articulating, circulating, and ultimately reinforcing this link. Although this oversimplifies the media’s role in the popular construction of the closure phenomenon, there is little doubt that the media has been instrumental. Death penalty researcher Frank Zimring reported that, before 1989 , closure was never mentioned by the media in conjunction with capital punishment; in 1989 , the two were mentioned in the same context only once (Zimring, 2003 , p. 60). Beginning in 1993 , however, the frequency with which closure was mentioned in the context of capital punishment grew with exponential frequency to 500 mentions in 2001 , when an ABC News/ Washington Post poll found that 60% of respondents strongly or moderately agreed with the statement that the death penalty was fair because it gave closure to murder victims’ family members (Zimring, 2003 , p. 60).

The Politicization of “Closure” Rhetoric

Closure concerns can appear in diverse social and cultural contexts, from adoption, personal injury, and death care to divorce, forensics, and memorialization (Berns, 2011 ). Closure concerns became highly visible in popular culture during the 1990s; Berns attributes this to “victims’ social movements; a rise in therapeutic language and goals; court decisions; and our cultural expectations for happy, inspiring, and quick resolutions” (Berns, 2011 , p. 8). Most scholarship addressing closure, however, has focused on its use as a justification for capital punishment (Kanwar, 2002 , p. 216). Scholars have observed that closure can be achieved through other means, including forgiveness, mercy, and alternative sentences such as life in prison without the possibility of parole. Kanwar and others have linked closure to the victims’ rights movement, making it increasingly “victim-centered”: “In political discourse, ‘closure’ is somehow presented as a rational and dispassionate matter of political concern, emptied of its emotional underpinnings and distanced from the viscerality of ‘satisfaction’” (Kanwar, 2002 , pp. 217, 222–237). Berns notes, “politicians and advocates use closure to talk about grief, victimization, justice, and healing” (Berns, 2011 , p. 118).

Both opponents and supporters of the death penalty have taken stances on the propriety of closure in connection with execution, from abolitionist organizations such as Murder Victims Families for Reconciliation to advocate organizations such as the National Organization of Parents of Murdered Children—but, in doing so, both stances have embraced and thus helped to legitimate the concept (Kanwar, 2002 , p. 249). On the one hand, those who disagree that capital punishment effects closure observe that legal proceedings are ill equipped to resolve grief and other emotions, focused as they are adjudicating guilt and allocating punishment (Kanwar, 2002 , pp. 241–242). Indeed, they argue, such contexts are more likely to exploit family members than to heal them, or at the very least produce many contradictory emotional responses (Kanwar, 2002 , pp. 242, 243). They also point to the possibilities of attaining closure through mercy and even forgiveness rather than vengeance, and to the fact that some victims who witness executions still feel hurt and anger, now compounded by disappointment and disillusionment (Berns, 2011 , p. 127; Goodwin, 1997 , p. 585). For example, numerous victims have attempted to decouple execution from closure expectations through “Not in My Name” movements that openly expose their refusal to allow states to use their stories to justify executions (King, 2003 ). On the other hand, supporters who believe capital punishment facilitates closure point not only to the recently extended “rights” to give victim impact evidence in capital sentencing proceedings and at times to witness executions, but also to individual family members’ public remarks preceding or following the execution of their loved ones’ killer that often emphasize relief and satisfaction. Much of the politicization of closure rhetoric has occurred through various forms of media, from news coverage of executions to interviews with victims’ families to online blogs and social media posts. The following, however, will focus not on the broader relationship between capital punishment and closure but on the media’s role in this relationship. More specifically, how do media representations of closure, perpetrators, and punishment reinforce the link between closure and capital punishment, and how have these representations affected victims’ families’ lived experience in the aftermath of mass murder and terrorism?

The Media Spotlight on Closure and Capital Punishment

As a phenomenon that is highly media-driven, closure illustrates how journalism can respond to traumatic events that seem to evade human understanding through facilitating the use of “simple narrative formats” (Sreberny, 2002 , p. 221). Thus, murders that trigger death sentences and closure claims may also in our “excessively mediated culture … encourage a kind of simulacrum of emotion and a form of affective manipulation by the culture industries”—which include the media (Sreberny, 2002 , p. 221). Media researchers such as Elayne Rapping have focused on television talk shows and their adoption of “a depoliticized, over-individualized approach to social problems,” an oversaturation of feelings (Rapping, 1994 ; Sreberny, 2002 , p. 221). Rapping explains that “television drama depends foremost on closure,” and argues this medium cultivated “an audience of viewer-citizens who were increasingly demanding a particular kind of closure: the conviction and punishment of the evil offender” (Rapping, 2003 , p. 10). This of course feeds into the current “soundbite culture,” characterized by “the rise of the image and the decline of the word,” facilitating superficial coverage instead of reasoned exchange (Slayden & Whillock, 1999 , pp. ix–x). It is especially ironic, then, that the US Supreme Court allowed cameras—the tools of an allegedly oversentimental medium—into criminal courtrooms to demonstrate the impartiality and efficacy of the criminal justice system, to “allay the fears … that the criminal justice system wasn’t ‘working,’ that it was too ‘soft on crime’ and that criminals were increasingly being allowed to go free” (Rapping, 2003 , p. 241). According to law professor Susan Bandes, the “law and media exist in a complex feedback loop,” with television, and perhaps now the Internet, “becom[ing] our culture’s principal storyteller, educator, and shaper of the popular imagination” (Bandes, 2004 , p. 585). Death-eligible crimes are highly newsworthy, in particular the “horse race” of the trial and the “minutiae of the execution” that mark those events as distinct (Bandes, 2004 , p. 587).

The media can effectively and consistently reinforce the association between closure and capital punishment because it plays key roles not only in broadcasting but in preserving historical perceptions and images, constructing American consciousness and contributing indelibly to American collective memory. Media focus our attention in both contemporary and historical ways. To these ends, Sontag ( 2003 ) has observed there is a common assumption that “public attention is steered by the attentions of the media—which means, most decisively, images,” highlighting “the determining influence of photographs in shaping what catastrophes and crises we pay attention to, what we care about, and ultimately what evaluations are attached to these conflicts” (p. 105).

But focusing Americans’ attention on some issues rather than others and prompting us to consider these issues in particular ways are processes that also carry normative and moral implications—what should citizens be looking at, and how ? Thus, the intersection between capital punishment, closure, and media also entails a debate over how American citizens and institutions should regard, react to, and reproduce images of and information about criminal perpetrators. Looking at perpetrators may feel somehow inappropriate in ways that gazing at images of their victims and rescuers does not, and may even approach a breach of moral propriety. Citizens become familiar with victims’ names to protest the anonymity of their deaths and to celebrate their humanity. But there can be less salubrious motives to learn about perpetrators, ranging from morbid curiosity to worshipful fascination. As Sontag ( 2003 ) eloquently noted in Regarding the Pain of Others , “[t]here is the satisfaction of being able to look at the image without flinching. There is the pleasure of flinching” (p. 41). Mitigating this visceral experience, however, is an awareness that preventing future violent acts may entail learning more, not less, about those who instigate them.

Closure’s popular appeal centers upon the cultural figure of the crime victim that has long maintained a hold upon the American public imagination. Contemporary interest in victims, their family members, and closure pursuits is often thought to be a reaction to the focus on criminal defendants and their rights that marked the “Warren Court” era of the US Supreme Court from 1953 to 1969 (Madeira, 2012 , p. 89). The ensuing crime victims’ rights movement casts crimes as transactions for which perpetrators must pay what they owe to both society and their victim(s) by serving their sentences and perhaps providing criminal restitution (Cole, 2007 , p. 35; Madeira, 2012 , p. 39). Prosecutors use victims and their family members largely as moral anchors that demand attention to the perpetrator’s infringement upon victims’ autonomy and dignity (Boutellier, 2000 , pp. 45–46). Significantly, in popular culture, closure needs are only attributed to victims’ families and sometimes rescuers, not the perpetrators’ family members.

Victims gained enhanced visibility in legal proceedings in 1991 when the US Supreme Court ruled in Payne v. Tennessee (505 U.S. 808, 825 ( 1991 )) that murder victims’ family members could deliver victim impact testimony at sentencing, extending new participative opportunities and symbolizing a legal focus on more therapeutic ends (Bandes, 2009 ). Thus, closure acquired a wide variety of dimensions; it became a procedural goal to give family members finality, an entitlement for victims’ families to a timely trial and punishment, and a therapeutic aspiration ensuring the inclusion of victims’ perspectives (Madeira, 2012 , p. 40). The media was ready to help to convey these conceptions of closure to a wider audience through such events as the televised trial of O. J. Simpson that captivated audiences, sowing the seeds for cultural connections between courtrooms, therapy, and victims. Richard Sherwin ( 2000 ) has described how such affairs may provide “hyper-catharsis,” “a spectacle that masks rather than reveals unconscious impulses and the fantasies they produce” and “exploits images—of victims and aggressors alike—for the sake of their emotional payoff” (p. 166).

Crucially, the media’s relationship with capital punishment and closure has always been at most indirect, surfacing in quotes or statements from journalists, government officials, attorneys, and victims’ families (Gross & Matheson, 2003 ; Vollum & Longmire, 2007 ). Family members interviewed in the news media often claim to experience closure from trials and executions—but that is the closest the media has come to investigating closure effects (Armour & Umbreit, 2006 ). American courts have vigorously resisted all attempts to broadcast executions, in large part because the execution image is thought to have a disruptive and disturbing potential, implicating both the inmate’s privacy and participants’ safety. The federal government, for example, prohibits photographic, audio, and visual recording devices at federal executions in 28 C.F.R. § 26.4(f). In cases addressing the media’s right to film an execution, judges have disputed the danger of the execution image, variously finding that it possesses no special qualities (Garrett vs. Estelle, 556 F.2d 1274, 1278 (C.A. Tex 1977 )) and that it is “qualitatively different from a mere verbal report about an execution” (Halquist vs. Department of Corrections, 732 P.2d 1065, 1067 (Wash. 1989 )). Oft-cited reasons for a ban on execution broadcasts are that such coverage would breach participating officials’ and inmates’ privacy, jeopardize security in the execution chamber, destroy execution solemnity, and introduce novel questions such as whether camera placement would disrupt execution routines (KQED vs. Vasquez, 1991 U.S. Dist. LEXIS 21163, p. 8 ( June 7, 1991 ); Entertainment Network vs. Lappin, 134 F. Supp. 2d 1002, 1018 (S.D. Ind. 2001 )). One court even proposed a “suicidal cameraman theory,” claiming a need to protect attendees from “heavy objects of any sort” such as news cameras that, if thrown in the witness room, might strike and break the window separating the witness room from the gas chamber (KQED vs. Vasquez, 1991 U.S. Dist. LEXIS 21163, p. 8 ( June 7, 1991 )).

A Case Study: The Oklahoma City Bombing

Extended empirical assessments of the relationship between capital punishment and closure can allow researchers to examine how particular murder victims’ family members experienced the relationship between capital punishment and closure. The 1995 Oklahoma City bombing offers an effective case study, since it had been the largest terrorist attack on American soil prior to 9/11; all legal proceedings are completed; and perpetrators Timothy McVeigh, Terry Nichols, and Michael Fortier all had differing levels of involvement and received wildly disparate sentences. Timothy McVeigh constructed and ignited a Ryder truck bomb outside the Murrah Federal Building on April 19, 1995 , and was executed on June 11, 2001 , in front of an unprecedented 242 individuals. His accomplice, Terry Nichols, had played a formative role in financing the project and constructing the truck bomb and is serving several life sentences in a federal Supermax penitentiary in Florence, Colorado. Michael Fortier, McVeigh’s former Army roommate who had known about the plans to construct the bomb, accepted a plea bargain and was sentenced to twelve years in prison, serving ten and a half years before being released early for good behavior and joining the federal Witness Protection Program.

Interviews with survivors and family members of the Oklahoma City bombing revealed that many spoke of McVeigh not as a perpetrator whom they had never met but as an involuntary presence in their lives who was forced upon them through an overbearing and seemingly ceaseless media presence. After McVeigh’s lawyer, Stephen Jones, allowed him to meet several journalists in an effort to find one who could write an effectively humanizing article (Madeira, 2012 , pp. 114, 204–205), McVeigh stayed in touch with several whom he had met until his execution in 2001 . There is no question that McVeigh became a media personality. Among his most noteworthy media appearances was the heavy media coverage and recirculation of images from his perpwalk, including his appearance in 1995 on the front cover of Time magazine, an Emmy award winning 60 Minutes death row interview by Ed Bradley in 2000 , and his collaboration on an authorized biography, American Terrorist: Timothy McVeigh and the Oklahoma City Bombing , authored by journalists Dan Herbeck and Lou Michel, that was published in April 2001 , shortly before his execution. Moreover, Attorney General John Ashcroft’s unprecedented decision to allow his execution in Terre Haute, Indiana, to be broadcast back to Oklahoma City via closed-circuit television ensured that he would be a leading media topic until his death was a fait accompli. As Bruce Shapiro noted on Salon.com , McVeigh’s closed-circuit execution broadcast ensured that “the press and pundits are talking about how big the crowd will be that gets to watch McVeigh … McVeigh is able to keep himself on the front page” (Shapiro, 2001 ).

Referencing media researchers Horton and Wohl’s concept of parasocial relationship, where media personalities such as sitcom characters or evening news anchors can come to feel like positive and familiar presences in a viewer’s social circle, it is possible that McVeigh had become a negative parasocial presence for survivors and family members, particularly those living in Oklahoma City, at the heart of the media maelstrom (Madeira, 2012 , p. 14). Several survivors and family members spoke of a need to execute McVeigh to “silence” him as well as to hold him accountable for his role in the bombing (Madeira, 2012 , p. 245). While many wanted Terry Nichols executed as well for his role in the bombing, their reasons for doing so did not have to do with silencing him, for he had remained quiet and out of the media limelight since his arrest. As family member Paul Howell stated,

McVeigh, even though he knew that he was getting the death sentence, he was defiant all the way up to the point where it actually happened, okay? He would speak out to the media. He would tell the families to grow up; it’s collateral damage that we killed your kids, you know. And everything that he did was doing nothing but hurting the family members here in Oklahoma. So the only way for us to have any kind of peace was to execute this man. Now on Nichols, Nichols is a little different because since he’s been tried and convicted, you don’t hear about him … I can live with him being in prison for the rest of his life, for the simple reason that he is not defiant and he’s not going out and getting on the news and so forth and trying to hurt the family members. (Madeira, 2012 , p. 246)

McVeigh was indeed aware that a handful of survivors and family members were very actively engaged in giving media interviews, and was determined to use his media access in turn to counter these voices, arguing that the bombing was justified as an act of war in retaliation for the United States government’s actions at Waco and Ruby Ridge (Madeira, 2012 , pp. 201–220).

Closure is not a popular term with most survivors and family members, and those in Oklahoma City were no exception. They almost unanimously denied that closure existed, lamenting the impossibility of finality or “getting over it” and speaking instead of the possibility of adjusting or “moving on” (Madeira, 2012 , pp. 41–45). Several termed closure a “media word” or “buzz term” (Madeira, 2012 , p. 42), and connected it to unrealistic expectations that those exposed to such trauma could rebound to “normal” within a matter of months—or indeed, unrealistic expectations that there was even a “normal” to which they could return (Madeira, 2012 , 41–45).

These findings prompt a redefinition of closure that considers the overlapping roles of both media institutions and capital legal proceedings. In contemporary media usage, closure most often refers to a state of being (“reaching closure”); in reality, however, it is “an interactive process by which individual family members and survivors construct meaningful narratives of the bombing and its impact upon their lives, and how they have moved on, dealt with, adjusted to, or healed from this culturally traumatic event” (Madeira, 2012 , pp. xxii–xxiv). This definition casts closure as a process comprising both intra personal and inter personal cycles. Closure requires both reflective behaviors of comprehension and self-adjustment, and more active interventions, from learning how to tell the story of a traumatic event to intervening to prevent other future events (Madeira, 2012 , pp. 50–53). Interventions might include participating in media interviews, helping to build the Oklahoma City National Memorial and Museum, attending the trial and/or execution, or working toward legal reforms (Madeira, 2012 , p. 53). Instead of effecting a “closing,” then, closure is concerned with creating an opening—an expansion of awareness and engagement and a readiness to reencounter social relationships and roles.

Changes in media practices also affected survivors’ and family members’ attempts to work through their grief and cope with McVeigh’s visibility. Many journalists and reporters in Oklahoma City demonstrated a sensitivity to how their communications with McVeigh would impact survivors and family members, and sometimes modified journalistic practice so as to minimize surprise and harm. For example, Terri Watkins, a reporter for KOCO-TV in Oklahoma, would meet with interested survivors and family members after she received a letter from McVeigh, but before she broadcast its contents (Madeira, 2012 , p. 206). Many were actually quite interested in what McVeigh had to say, but did not relish learning about these matters from watching television. In this fashion, McVeigh’s communications became more educational than sensationalist or profiteering, as they revealed a glimpse into the mind of this young man who had committed such a heinous act.

But the relationship between capital punishment, closure, and the media is scarcely straightforward; the Oklahoma City bombing case study illustrates two compelling paradoxes that problematize the assumption that the news media coverage always supports a link between closure and capital punishment, or that all coverage of a perpetrator is traumatic to and undesired by victims’ family members and survivors.

The same news media organizations that popularize the coupling between closure and capital punishment can undermine this connection by helping to convey how victims’ families found witnessing an execution a less than satisfactory experience. For example, one news story addressing the question of whether executions provided closure quoted a victim’s son as stating that the execution was “anticlimactic” and the perpetrator’s death was “very easy and peaceful,” perhaps making him angrier (Montgomery, 2009 ). Another victim’s son stated, “It didn’t bring my brother back. It didn’t do nothing” (Montgomery, 2009 ). Witnesses to McVeigh’s execution also found the ease of his death disappointing; as one closed-circuit witness recalled, “I just thought it’d take a long time … It took me longer to get out of the restroom [beforehand] than it took for him to die” (Madeira, 2012 , p. 251). Another closed-circuit witness lamented, “I don’t think it was gruesome enough. I think it should have been more painful … He just went to sleep. That’s the easy way out” (Madeira, 2012 , p. 254). Denied a satisfying visual experience, witnesses must find solace instead in the fact that the death sentence has been carried out, and the process is complete.

Moreover, if Oklahoma City family members and survivors faulted the media for its seemingly ceaseless coverage of the perpetrators that often hampered their ability to heal, they also acknowledged that the media played a formative role in providing important information such as investigational and trial updates and details about the perpetrators’ upbringings and family lives. McVeigh’s father, Bill, in particular attracted much sympathy from family members and survivors; in contrast, Nichols’s brother attracted much more negative attention as family members and survivors felt that he was using the media to popularize his anti-governmental views (Madeira, 2012 , p. 111). A television interview with Bill McVeigh even led family member Bud Welch to perhaps his greatest moment of personal peace; Welch ultimately met with Bill and McVeigh’s sister Jennifer at their home in upstate New York, when Bud was able to tell them that the two men were living the same pain, that Bud cared how they felt, and did not blame them for Timothy McVeigh’s actions (Madeira, 2012 , pp. 111–112).

Other Illustrative Cases

The Oklahoma City bombing stands out in American history as a rather extreme example of the traumatic potential of a criminal perpetrator’s presence. However, other criminal perpetrators have also had a comparably toxic media presence, with traumatizing effects to victims’ family members. Daniel Rolling, the so-called Gainesville Ripper, maintained a particularly infamous media presence with similar consequences for the families of his victims. Rolling, a serial killer, murdered five University of Florida Students in Gainesville in 1990 , mutilating their bodies. When he was prosecuted for these crimes nearly four years later, Rolling claimed to want to be a criminal “superstar” (Associated Press, “Florida Executes Serial Killer,” 2006 ) like Ted Bundy and pled guilty to all charges; he was subsequently sentenced to death on each count. At trial, he sang gospel songs while he was sentenced (Fisher, 2006 ). He later collaborated with Sondra London on a book entitled The Making of a Serial Killer: The Real Story of the Gainesville Murders in the Killer’s Own Words (London, 1996 ). Rolling also gave London, who eventually became his fiancée, exclusive rights to any interviews and written material, and also asked her to market the many letters, songs and poems, and pictures he produced while on death row in Florida (Writer to marry Rolling, 1993 ). Like McVeigh, Rolling also wrote letters to news media organizations (Associated Press, “Serial Killer Danny Rolling Executed,” 2006 ). Following the execution, during which Rolling sang a gospel hymn, Chief Assistant State Attorney Jeanne Singer remarked that “it looked like a final stage performance” (Fisher, 2006 ).

The mass media may also exhibit what Susan Bandes terms “selective empathy”—disproportionately covering extremely sympathetic perpetrators, such as Karla Faye Tucker, who was executed in 1998 (Bandes, 2004 , p. 593). The first woman Texas had executed since the Civil War, Tucker had been sentenced to death for murdering two people in 1983 with a 3-foot pickax while engaging in a weekend-long party that included drug use (Grumman, 1998 ; Kudlac, 2007 ). After she was sentenced to death, news coverage chronicled her history of prostitution and drug abuse and the fact that she had become a fervent Christian and obtained her GED, even marrying her prison minister, Dana Brown (“Karla Faye Tucker’s Last Hours,” 1998 ). Again, coverage of Tucker’s impending execution became headline news. Larry King conducted an Emmy award-winning interview with Tucker approximately one month before her execution (King, 2007 ). She was on the cover of People Magazine , was a guest on Pat Roberson’s 700 Club , and Pope John Paul II sent her a letter of support (Kudlac, 2007 , p. 73). Yet, this omnipresent media coverage had not worn well with the family members of her victims; Richard Thornton, the husband of one of her victims, stated that “She finally said my wife’s name. It took her 14½ years to do it. We’ll begin tomorrow without the name Karla Faye Tucker stuck in our face every day” (Grumman, 1998 ).

If capital punishment is thought more likely to bring closure in cases where offenders appear disrespectful, defiant, and unrepentant, the news media is undoubtedly the chief means of publicizing these qualities, as well as others that can influence public opinion about whether executing a given offender will bring closure. Following the trial of Scott Peterson, charged and convicted of the murder of his wife, Lacie, and her unborn son, Connor, the media was saturated with references to Peterson’s conduct during trial, where he sat “defiantly still and tight-jawed” (Vries, 2004 ), and with jurors’ assertions that this lack of emotion was what finally pushed them toward a death sentence—particularly after he did not testify at trial (Vries, 2004 ). One juror interviewed on CBS News’s The Early Show stated that Peterson “is a cold blooded killer. He has no remorse” (Vries, 2004 ).

More recently, news coverage of the trial of Dzhokhar Tsarnaev, one of two brothers responsible for the 2013 Boston Marathon bombing, consistently portrayed him as remorseless and openly insolent. One Boston Globe article noted, “while he sits obediently in the courtroom, without drawing much attention to himself, he wears a neutral expression, even during gut-wrenching testimony from witnesses” (Wen & Valencia, 2015 ). The most memorable visual example of Tsarnaev’s lack of remorse was the widely circulated image from a closed-circuit video wherein he raised his middle finger to a camera in his cell (CNN Tonight, 2015 ). One CNN article reported that, in this video clip, Tsarnaev “glares into the camera defiantly, his middle finger raised in a profane salute,” and repeated federal prosecutor Nadine Pellegrini’s statement describing Tsarnaev as “unconcerned, unrepentant, and unchanged … Without remorse, he remains untouched by the grief and loss that he caused” (O’Neill, 2015 ). A perpetrator who remains untouched is, of course, difficult or impossible to empathize with—although the defense attempted to explain that this “profane salute” was “a show of spontaneous juvenile behavior” by showing other footage from the same video clip that showed Dzhokhar fussing with his hair in the camera’s reflection and “flash[ing] a V sign” (Wen & Valencia, 2015 ). Tsarnaev’s apparent remorselessness can explain reactions like that which Charles C. W. Cooke, a self-described opponent of the death penalty, published in an opinion piece in the National Review : “I accept my own failings here. I accept there’s no high principle involved, and that my heart is betraying my head. But if this one fries, I’m not sure how much I care” (Cooke, 2015 ).

Recent research, however, reminds us that we need to exercise caution when attempting to assess perpetrators’ remorse and making related judgments about what closure requires and whether capital punishment is warranted, because these judgments are often inaccurate and have harsh consequences. Law professor Susan Bandes argues that, while there is currently no evidence that a defendant’s remorse can be accurately evaluated in a courtroom, several research studies demonstrate that race and other biases may distort these assessments of remorsefulness (Bandes, 2015 ). This is a particularly compelling and widespread problem because judgments about remorsefulness often influence “sentencing hearings; parole, probation, and clemency determinations; forensic evaluations; decisions on whether to try a juvenile as an adult; and even (counter-intuitively) determinations of guilt or innocence” (Bandes, 2015 , p. 1).

Constraints Upon Media Coverage of Perpetrators

Media organizations’ preoccupation with grieving victims’ families and, more problematically, with the criminal perpetrators responsible, has prompted criticism. But would altering media news coverage of perpetrators decrease family members’ traumatization, or alter public closure perceptions?

Attempts by government officials to reduce perpetrators’ presence in the media are predictable responses in the wake of terrorism events or accountability proceedings. On April 12, 2001 , while announcing that McVeigh’s execution would be broadcast via closed-circuit television, US Attorney General John Ashcroft asked journalists to not give McVeigh continued media access:

As an American who cares about our culture, I want to restrict a mass murderer’s access to the public podium … I do not want anyone to be able to purchase access to the podium of America with the blood of 168 innocent victims … If the news media conducts an interview with Timothy McVeigh, I would ask them for self-restraint. Please do not help him inject more poison into our culture … I would ask that the news media not become Timothy McVeigh’s co-conspirators in his assault on America’s public safety and upon America itself. (Madeira, 2012 , p. 198)

Similarly, following 9/11, Victor Navasky noted that National Security Adviser Condoleezza Rice “famously got all the heads of all the network news divisions on the line and asked that they think twice before running any more Bin Laden tapes,” whereupon, “instead of objecting to this blatant and unprecedented government intrusion or reciting the press’s traditional mantra about fairness and the obligation to present both sides, they all caved in to her request” (Navasky, 2002 , p. xvii). James Carey observes that Rice made this request to prevent networks from “inadvertently transmit[ting] propaganda or carry[ing] coded instructions from the ‘terrorist-in-chief’ to al-Qaeda operatives worldwide” (Carey, 2002 , p. 74).

Recently, victims’ families and survivors have also attempted to change media practices in more dramatic ways. A group called “No Notoriety” was formed by Tom and Caren Teves, whose son Alex was killed in a mass shooting perpetrated by James Holmes, who was convicted and sentenced to life in prison for killing 12 and wounding 70 others at a Century movie theater in Aurora, Colorado, on July 20, 2012 . Tom Teves had challenged Anderson Cooper and CNN during an interview on July 23, 2012 , to stop giving notoriety to his son’s killer; media coverage had consistently featured Holmes’ mug shot, taken at the Arapahoe County Jail immediately after his arrest, which showed a young man with wide, staring eyes and flame-orange hair. Members of No Notoriety include over 70 families and survivors from some of the worst mass shootings in American history. The group supports “responsible media coverage for the sake of public safety” and challenges media organizations to limit the name and likeness of suspects after identification except when they are still at large, to refuse to publish self-serving statements or images made by the individual in favor of focusing on victims, and to promote data and analyses that help eliminate the motivations behind mass murder (NoNotoriety, n.d. a ). Many journalists, media organizations, professional associations, and government agencies have responded positively to this challenge, including People magazine, the International Police Association, and the FBI (NoNotoriety, n.d. b ).

Finally, recent media coverage has demonstrated increased sensitivity to the question of whether or not to name the shooter, and how often; after a shooting in Colorado Springs on October 31, 2015 , Joanna Bean at the Colorado Statesman clarified that the publication named the shooter so that those who knew him could provide information that might protect the public and to enable the community to ask questions about “access to mental health services, law enforcement response to active-shooter situations and how people acquire guns” (Bean, 2015 ). Some, however, have responded to the anti-perpetrator publicity movement by refusing to name the perpetrator at all. Following a mass shooting at Umpqua Community College in Rosewood, Oregon, Douglas County Sheriff John Hanlin stated that he would not name the killer, stating “I will not give him the credit he probably sought. You will never hear me mention his name” (Alteir, 2015 ).

Review of the Literature and Further Sources

Despite the growing popularity of capital punishment’s link to closure for murder victims’ family members, there are surprisingly few empirical research studies investigating the validity of this connection. In fact, the earliest studies did not focus upon victims’ family members but other populations, such as journalists who witnessed executions and college students asked to contemplate witnessing an execution.

In a 1994 study examining the “psychological distress associated with simply being an uninvolved, threatened witness to violence,” Freinkel, Koopman, and Spiegel ( 1994 ) submitted a questionnaire to journalists one month after they witnessed the 1992 execution of Robert Alton Harris to assess dissociative symptoms. Based on the 15 returned questionnaires, the authors concluded that no journalist reported “severe or long-lasting psychological trauma,” but that many experienced dissociative symptoms and “short-term psychological impact” (Freinkel et al., 1994 ). Significantly, this study lacked a control group of journalists who did not witness the execution, and its methodology made it difficult or impossible to conclusively distinguish stress from witnessing the execution to stress from unrelated, postexecution assignments. A second study by Domino and Boccaccini ( 2000 ) questioned 219 University of Alabama students as to whether family members of victims should be allowed to watch the executions of their loved ones’ killers. The questionnaire contained a brief description of a policy initiative allowing family members to witness executions, followed by eight attitudinal questions about execution viewing. The authors reported that, while most subjects would not want to witness, they were more likely to witness the execution of an inmate who had murdered their family member than a stranger, and that most subjects felt that witnessing would not “assist the family in coping with the loss of their loved one” (Domino & Boccaccini, 2000 , p. 71).

Much prior research has addressed the propriety of televising executions. In her book Pictures at an Execution , Wendy Lesser ( 1998 ) addressed the question of whether the mass media should broadcast executions, concluding that this was not advisable. Examining the “crucial connection between murder and theater,” Lesser ( 1998 ) asserted that execution broadcasts would be offensive and prurient, noting that actual murder narratives, unlike fictional ones, do not provide closure (pp. 17–18). Law and Society scholar Austin Sarat ( 2001 ), however, came to the opposite conclusion in his book When the State Kills: Capital Punishment and the American Condition , contending that, because capital punishment’s survival depends on its “relative invisibility,” execution broadcasts would problematize that invisibility and therefore perhaps bring about the abolition of the death penalty (p. 191). For Sarat, “the public is always present at an execution” as “authorizing audience,” and not broadcasting executions helps the state to maintain control by determining who witnesses, since “the very uncontrollability of the gaze and the indeterminacy of its political effects are what make televising executions so threatening to the survival of capital punishment” (Sarat, 2001 , pp. 25, 207). He continues, “televising executions would disrupt the attempt to dignify state killing and to reduce it from political spectacle to administrative act”; without cameras in the execution chamber, we “forget that we are killing” (Sarat, 2001 , p. 280).

Finally, additional empirical research is beginning to address the psychological effects of a death sentence on victims’ families’ well-being. In a recent research study, Marilyn Armour and Mark Umbreit ( 2012 ) conducted in-person interviews with a randomly selected set of survivors from four different time periods to assess the longitudinal impact of a death sentence, comparing the experiences of family members in an abolition state, Minnesota, with those of family members from an active death penalty state, Texas. The researchers found that “in Minnesota, survivors … show higher levels of physical, psychological, and behavioral health” (Armour & Umbreit, 2012 , p. 1).

Further Reading

• Acker, J. (2006). The Myth of Closure and Capital Punishment. In R. M. Bohm & J. T. Walker (Eds.), Demystifying Crime and Criminal Justice (pp. 167–175). Los Angeles: Roxbury.
• Acker, J. , & Karp, D. R. (2006). Wounds that do not bind: Victim-based perspectives on the death penalty . Durham, NC: Carolina Academic Press.
• Armour, M. P. , & Umbreit, M. S. (2012). Assessing the impact of the ultimate penal sanction on homicide survivors: A two state comparison. Marquette Law Review , 96 , 1–131.
• Associated Press . (2004, December 14). Jurors: Peterson’s stoicism was the final straw . NBC News .
• Beck, E. , Britto, S. , & Andrews, A. (2007). In the shadow of death: Restorative justice and death row families . New York: Oxford University Press.
• Berns, N. (2009). Contesting the victim card: Closure discourse and emotion in death penalty rhetoric. The Sociological Quarterly , 50 , 383–406.
• Berns, N. (2011). Closure: The rush to end grief and what it costs us . Philadelphia: Temple University Press.
• Bessler, J. D. (1997). Death in the dark: Midnight executions in America . Boston: Northeastern Press.
• Gerber, T. (2014, July 28). FBI to media: Don’t name mass shooters . ABC KSAT 12 .
• Kaplan, P. (2012). Murder stories: Ideological narratives in capital punishment . Lanham, MD: Lexington.
• Sharp, S. F. (2005). Hidden victims: The effects of the death penalty on the families of the accused . New Brunswick, NJ: Rutgers University Press.
• Spungen, D. (1998). Homicide: The hidden victims . Thousand Oaks, CA: SAGE.
• Tribune News Services . (2004, December 14). Jury says stoic Peterson deserves to be executed . Chicago Tribune .
• Alteir, N. (2015, October 1). “You will never hear me say his name,” sheriff says of Roseburg school shooter . The Oregonian .
• Armour, M. P. , & Umbreit, M. S. (2006). Exploring “closure” and the ultimate penal sanction for survivors of homicide victims. Federal Sentencing Reporter , 19 , 105–112.
• Associated Press . (2006, October 25). Florida executes serial killer Danny Harold Rolling . Fox News .
• Associated Press . (2006, October 26). Serial killer Danny Rolling executed in Florida . NBC News .
• Bandes, S. (2004). Fear factor: The role of the media in covering and shaping the death penalty. Ohio State Journal of Criminal Law , 1 , 585–597.
• Bandes, S. (2009). Victims, “closure,” and the sociology of emotion. Law and Contemporary Problems , 72 , 1–26.
• Bandes, S. (2015). Remorse and criminal justice. Emotion Review , 1 , 1–6.
• Bean, J. (2015, November 3). The Gazette: Why we published the name of the gunman . The Colorado Statesman .
• Boutellier, H. (2000). Crime and morality: The significance of criminal justice in postmodern culture . New York: Springer.
• Carey, J. W. (2002). American journalism on, before, and after September 11. In B. Zelizer & S. Allan (Eds.), Journalism after September 11 (pp. 85–103). New York: Oxford University Press.
• CNN Tonight . (2015, April 22). Boston marathon bomber flips camera the bird . CNN .
• Cole, A. M. (2007). The cult of true victimhood . Stanford: Stanford University Press.
• Cooke, C. W. (2015, April 8). I’m against the death penalty, but I don’t really care if Tsarnaev fries . National Review .
• Domino, M. L. , & Boccaccini, M. T. (2000). Doubting Thomas: Should family members of victims watch executions? Law & Psychology Review , 24 , 59–75.
• Fisher, L. (2006, October 26). Danny Rolling executed for five student murders . The Gainesville Sun .
• Freinkel, A. , Koopman, C. , & Spiegel, D. (1994). Dissociative symptoms in media eyewitnesses of an execution. American Journal of Psychiatry , 151 , 1335–1339.
• Goodwin, M. L. (1997). An eyeful for an eye: An argument against allowing the families of murder victims to view executions. Brandeis Journal of Family Law , 36 , 585–608.
• Gross, S. R. , & Matheson, D. J. (2003). What they say at the end: Capital victims’ families and the press. Cornell Law Review , 88 , 486–516.
• Grumman, C. (1998, February 4). Karla Tucker put to death in Texas, last statement an apology to victims’ families . Chicago Tribune .
• Kanwar, V. (2002). Capital punishment as closure: The limits of a victim-centered jurisprudence. New York University Review of Law and Social Change , 27 (2), 215–255.
• King, L. (2007, March 26). Karla Faye Tucker: Born again on death row . CNN .
• King, R. (2003). Don’t kill in our names: Families of murder victims speak out against the death penalty . Piscataway, NJ: Rutgers University Press.
• Kudlac, C. S. (2007). Public executions: The death penalty and the media . Westport, CT: Praeger.
• Karla Faye Tucker’s last hours? Condemned killer awaits word from court, governor . (1992, February 3). CNN .
• Lesser, W. (1998). Pictures at an execution: An inquiry into the subject of murder . Cambridge, MA: Harvard University Press.
• London, S. (1996). The making of a serial killer: The real story of the Gainesville murders in the killer’s own words . Portland, OR: Feral House.
• Madeira, J. L. (2012). Killing McVeigh: The death penalty and the myth of closure . New York: New York University Press.
• Meade, C. J. (1996). Reading death sentences: The narrative construction of capital punishment. New York Law Review , 71 , 732–761.
• Media . (n.d.). In Oxford Dictionaries .
• Montgomery, D. (2009, November 10). For murder victims’ families, witnessing execution offers hollow satisfaction . Washington Post .
• Navasky, V. (2002). Foreword. In B. Zelizer & S. Allan (Eds.), Journalism after September 11 . (pp. xix–xxv). New York: Oxford University Press.
• NoNotoriety.com . (n.d. a). Challenge to the media .
• NoNotoriety.com . (n.d. b). Data, experts, endorsements .
• O’Neill, A. (2015, April 21). Prosecution shows what it calls Tsarnaev’s defiant message to U.S. . CNN .
• Rapping, E. (1994). Mediations: Forays into the culture and gender wars . Boston: South End.
• Rapping, E. (2003). Law and Justice as seen on TV . New York: New York University Press.
• Sarat, A. (2001). When the state kills: Capital punishment and the American condition . Princeton, NJ: Princeton University Press.
• Shapiro, B. (2001, February 24). Killing McVeigh . Salon .
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‌the end of the death penalty.

‌‘Unintended consequences’ and the legacy of Furman v. Georgia

More than 50 years ago, the U.S. Supreme Court held in Furman v. Georgia that the death penalty was an unconstitutional violation of the Eighth Amendment ban against cruel and unusual punishment. With that, 629 people on death row nationwide had their capital sentences commuted, and the death penalty disappeared overnight.

“Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact.” Carol Steiker

But Furman didn’t abolish capital punishment for very long. Four years later, Gregg v. Georgia and several companion cases made clear that governments could impose capital punishment under certain conditions. Those decisions were a response to the backlash sparked by Furman , which appeared to revive support for a practice that had been in sharp decline for years. Today, 27 states in the U.S., as well as the federal government, retain the death penalty, and as of April 2022, one source reported that there were 2,414 people on death row across the country. Despite what many would have predicted in 1972, when the Furman decision suggested the U.S. would become an international leader in eliminating the death penalty, today it’s the only Western democracy that still imposes it. 

Still, while the death penalty persists in the U.S., it’s not exactly thriving. Indeed, it’s once again “withering” across the country, says Carol S. Steiker ’86 , the Henry J. Friendly Professor of Law at Harvard Law School, who has taught Capital Punishment in America at the school since 1993. Though Furman (and its subsequent overruling) helped fuel the death penalty’s revival, it also set in motion a long series of events that may ultimately eliminate capital punishment in the United States, Steiker says.

“ Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact,” says Steiker, who is co-author, with her brother, Jordan Steiker ’88, of “Courting Death: The Supreme Court and Capital Punishment” (Harvard University Press, 2016) and co-editor, also with him, of “Comparative Capital Punishment” (Edward Elgar, 2019).

“ Furman was a remarkable intervention,” says Jordan Steiker, a professor at the law school at the University of Texas at Austin and co-director of its Capital Punishment Center. “Even though it was quite short-lived in suspending the death penalty in the U.S., it completely changed its course because it essentially inspired or required states to rethink how they were doing capital punishment. And ultimately, the practice of the death penalty changed substantially over time.”

Given the greatly heightened public attention to the power of the Supreme Court today, the 50th anniversary of Furman is an opportunity to reexamine not just the history of the death penalty but the appropriate role of the Court in American life, Carol Steiker and others believe.

“Right now a lot of people are wondering how much of a role we want the courts to play in deciding what rights are guaranteed by the Constitution, and Furman v. Georgia is a unique example of when the Court struck down a policy that was widely prevalent throughout the states for violating the Constitution,” says Gene Young Chang ’24, who has been studying the death penalty with Steiker since he was a freshman in her Harvard College course The American Death Penalty: Morality, Law, and Politics. Furman , he says, “teaches us things about the role of the courts in a democratic society, the scope of constitutional rights, and the proper method for defining those rights.” 

Categorical abolition of the death penalty across the nation is unlikely without another Furman v. Georgia , “what you might call Furman II, which is obviously not forthcoming from this Court or anytime in the foreseeable future,” Carol Steiker says. Instead, the future of the death penalty, she says, is being played out at the local level, in “a kind of guerrilla war going on county by county, state by state, with the election of progressive prosecutors who do not seek the death penalty, state legislative activity, and state constitutional litigation under state constitutions.”

The final death knell for capital punishment will likely depend on a very different Supreme Court from the one we have today, she says. “But at that point,” given other trends in the country, “it may be more like a coup de grâce rather than what it was at the time of Furman .”

History of a ‘remarkable intervention’

In the 1960s, due to a campaign by the NAACP Legal Defense and Educational Fund to challenge its constitutionality in cases across the country, capital punishment was in decline. Indeed, no one was executed in the five years before Furman , as states waited to see what the high court would rule. In 1971, the Supreme Court rejected a due process challenge to capital punishment. But Furman , argued a year later, relied on the Eighth Amendment: The LDF team argued that the arbitrary application of capital punishment — jurors, often with no guidance, had complete discretion on when to impose it — was a cruel and unusual punishment.

”The Supreme Court intervention [in Furman] not only didn’t kill the death penalty but actually made it stronger when it was reinstated.” Carol Steiker

The Supreme Court agreed, 5-4, although the justices issued nine separate opinions, which was very unusual, as Carol Steiker notes. Justice Thurgood Marshall (for whom both Steikers later clerked) and Justice William J. Brennan Jr. LL.B. ’31 maintained that the death penalty was unconstitutional per se. Justice William O. Douglas was troubled by its discriminatory application, given overwhelming evidence that it was more often imposed on Black defendants, the poor, and the politically unpopular. Justices Potter Stewart and Byron White were troubled by its arbitrary application under state statutes, with Justice Stewart famously writing, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” He concluded that the Constitution could not “permit this unique penalty to be so wantonly and so freakishly imposed.” 

But abolitionists’ hopes didn’t last long. Soon after Furman, 35 states rewrote their laws to try to comply with the Court’s ruling. In 1976, in a group of consolidated cases known as Gregg v. Georgia , the Supreme Court held that the death penalty was not per se unconstitutional. It ruled the punishment could be revived if state laws provided an objective process for deciding when to apply it and gave sufficient discretion to juries to determine whether it was appropriate. However, mandatory death penalties were unconstitutional, it held, even though some states believed that mandatory penalties were necessary to eliminate sentencing discretion.

Furman created an enormous backlash, the Steikers explain, so that capital punishment — which was becoming less and less popular in public opinion — resurged. It became “more of a wedge issue, part of the tough-on-crime political strategy of [President Richard] Nixon, and political entrepreneurs exploited the resentment at the Supreme Court’s intervention in the death penalty,” says Jordan Steiker, who has frequently taught at Harvard Law School, most recently in 2018 as the Touroff-Glueck Visiting Professor of Law and Psychiatry. “In the short term, the death penalty became more vigorous, there were more death sentences, and by the 1990s, there were many more executions than we were having pre- Furman .”

At least initially, then, “the Supreme Court intervention [in Furman ] not only didn’t kill the death penalty but actually made it stronger when it was reinstated,” says Carol Steiker, something she sees as an “unintended and unforeseen consequence” of the case.

Birth of the capital defense bar

But there was another unforeseen consequence of Furman , one that Jordan Steiker describes as “probably more important and long-lasting” — the birth of a large and highly skilled capital defense bar. 

With the resurrection of the death penalty, new, sophisticated institutions were created and staffed by passionate and skilled anti-capital lawyers: state offices for capital representation at the trial, appellate, and post-conviction levels; capital habeas corpus units within state and federal public defenders’ offices; and numerous non-governmental nonprofits, such as Bryan Stevenson ’85’s Equal Justice Initiative. Today, “we have a whole legion of much more focused and talented advocates working on behalf of people facing capital charges or sentenced to death,” says Jordan Steiker.

Capital litigation has become far more complex, and the costs have soared. This has helped persuade many local prosecutors to avoid seeking the death penalty.

With these developments, as well as the Supreme Court’s imposition of special procedural requirements for cases involving the death penalty, capital litigation has become far more complex, and the costs have soared. “The constitutional decisions post- Furman have not imposed the most rigorous scrutiny of capital practices,” says Jordan Steiker, “but they have produced institutional actors who have made the death penalty much less attractive as a practical matter because to do it reasonably well is just exorbitantly expensive.” This has helped persuade many local prosecutors to avoid seeking the death penalty and has led to an “extraordinary decline in capital proceedings,” he says.

The current Supreme Court has signaled greater willingness to affirm capital sentences than in the recent past, says Jordan Steiker, and some jurisdictions have embraced that signal. The Oklahoma Court of Criminal Appeals had scheduled nearly one execution a month between 2022 and 2024 (although at the request of the new attorney general, the pace has now been slowed to no more than one every 60 days). In Texas, on the other hand, two death sentences were imposed in 2022, which contrasts starkly with the 1990s, when Texas juries were handing out more than 40 a year, Jordan Steiker says. “The practice on the ground is withering in part because of the institutions built in response to Furman ,” he says.

Local prosecutors and state courts take over

Other factors besides cost have decreased the public’s appetite for the death penalty, including media attention to, and public awareness of, the number of innocent people sentenced to death. Since 1973, at least 190 people who were wrongly convicted and sentenced to death have been exonerated, according to the Death Penalty Information Center. For that and other reasons, including declining crime rates, there has been a dramatic decline in public support for the death penalty over the past 20 years. Though the 2021 Gallup poll found that 54% of respondents continued to support it, that is the lowest number in the annual poll since 1972. 

Erica Medley LL.M. ’22 was a prosecutor in the U.S. Air Force before matriculating at HLS. When she was a schoolgirl, in Oregon, two of her friends were raped and murdered by a neighbor, Ward Weaver III. When Weaver received two life sentences, “It made no sense,” Medley recalls. “I thought he should have gotten the death penalty.” When Medley enrolled in Carol Steiker’s class on capital punishment in fall 2021, she was among the very few students who supported the death penalty, according to an informal online class poll. 

But before the first class, Medley did a complete reversal sparked by reading the course materials. “I was so overwhelmed reading everything that I did a 180. It was that fast,” says Medley, who was persuaded by the evidence of the racially disparate impact of the death penalty, its exorbitant expense compared with that of prison sentences, the number of people on death row who turn out to be innocent, and the fact that no other peer nations still impose the penalty.

The shifting demographics of urban counties are also having an effect on the use of the death penalty across the country since such counties are often the only places that can afford to prosecute many capital cases, says Jordan Steiker. As these counties become less politically conservative, they are increasingly controlled by “less zealous prosecutors,” he says. Harris County, Texas, which includes Houston, and Dallas County were “longstanding conservative-controlled political entities, and now they’re not. Now many prosecutors run not on the death penalty but away from the death penalty. That’s a very significant shift.” 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate.” Jordan Steiker

And, just as the resurgence of the death penalty in the 1980s and ’90s paralleled public reaction to a crime surge, a drop in death penalty cases mirrors what has generally been a long-term decline in the homicide rate, as well as public concerns about mass incarceration and racial inequities in the criminal justice system, says Carol Steiker, faculty sponsor of the Capital Punishment Clinic, through which Harvard Law students are placed in externships at capital defense organizations around the country.

And the past 16 years have seen a growing legislative trend toward abolishing the death penalty. In 2007, 38 states retained it; today, there are only 27. In 2021, Virginia, which has executed more people than any other state, became the first Southern state to abolish capital punishment. It was preceded by legislative repeals in Colorado, New Jersey, Illinois, and Connecticut, among other states. In Washington state, the Supreme Court found the death penalty unconstitutional under the state constitution because it was used in an arbitrary and racially biased manner. 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate,” says Jordan Steiker. 

“I think in the short term we’ll end up having more executions because of the Supreme Court’s reluctance to impede them, even though executions have been in as much of a decline as death sentences,” he adds. But with fewer capital sentences taking place, “death row has been shrinking considerably, and at some point we’ll have a death row that seems inconsequential as part of our criminal justice system.” 

Furman’s ultimate impact?

In the end, then, was Furman a victory for those who brought the case? “That’s a good question,” says Jordan Steiker. “There’s one point of view that I’m sympathetic to, that says that Furman revived a practice that was dying on the ground, and had there been no intervention, we might not have had a revival and then a second decline.”

On the other hand, when Michael Meltsner, one of the lawyers on the LDF team who brought Furman , speaks to Carol Steiker’s capital punishment class each year, he emphasizes that there were 629 people on death row in 1972 whose lives were saved by Furman.

“So in that sense, it was a tremendous victory,” says Carol Steiker. “It was a reset moment.”

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The Case Against the Death Penalty

The American Civil Liberties Union believes the death penalty inherently violates the constitutional ban against cruel and unusual punishment and the guarantees of due process of law and of equal protection under the law. Furthermore, we believe that the state should not give itself the right to kill human beings – especially when it kills with premeditation and ceremony, in the name of the law or in the name of its people, and when it does so in an arbitrary and discriminatory fashion.

Capital punishment is an intolerable denial of civil liberties and is inconsistent with the fundamental values of our democratic system. The death penalty is uncivilized in theory and unfair and inequitable in practice. Through litigation, legislation, and advocacy against this barbaric and brutal institution, we strive to prevent executions and seek the abolition of capital punishment.

The ACLU’s opposition to capital punishment incorporates the following fundamental concerns:

The death penalty system in the US is applied in an unfair and unjust manner against people, largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place . People of color are far more likely to be executed than white people, especially if thevictim is white

The death penalty is a waste of taxpayer funds and has no public safety benefit. The vast majority of law enforcement professionals surveyed agree that capital punishment does not deter violent crime; a survey of police chiefs nationwide found they rank the death penalty lowest among ways to reduce violent crime. They ranked increasing the number of police officers, reducing drug abuse, and creating a better economy with more jobs higher than the death penalty as the best ways to reduce violence. The FBI has found the states with the death penalty have the highest murder rates.

Innocent people are too often sentenced to death. Since 1973, over 156 people have been released from death rows in 26 states because of innocence. Nationally, at least one person is exonerated for every 10 that are executed.

INTRODUCTION TO THE “MODERN ERA” OF THE DEATH PENALTY IN THE UNITED STATES

In 1972, the Supreme Court declared that under then-existing laws “the imposition and carrying out of the death penalty… constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” ( Furman v. Georgia , 408 U.S. 238). The Court, concentrating its objections on the manner in which death penalty laws had been applied, found the result so “harsh, freakish, and arbitrary” as to be constitutionally unacceptable. Making the nationwide impact of its decision unmistakable, the Court summarily reversed death sentences in the many cases then before it, which involved a wide range of state statutes, crimes and factual situations.

But within four years after the Furman decision, several hundred persons had been sentenced to death under new state capital punishment statutes written to provide guidance to juries in sentencing. These statutes require a two-stage trial procedure, in which the jury first determines guilt or innocence and then chooses imprisonment or death in the light of aggravating or mitigating circumstances.

In 1976, the Supreme Court moved away from abolition, holding that “the punishment of death does not invariably violate the Constitution.” The Court ruled that the new death penalty statutes contained “objective standards to guide, regularize, and make rationally reviewable the process for imposing the sentence of death.” ( Gregg v. Georgia , 428 U.S. 153). Subsequently 38 state legislatures and the Federal government enacted death penalty statutes patterned after those the Court upheld in Gregg. Congress also enacted and expanded federal death penalty statutes for peacetime espionage by military personnel and for a vast range of categories of murder.

Executions resumed in 1977. In 2002, the Supreme Court held executions of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment to the Constitution. Since then, states have developed a range of processes to ensure that mentally retarded individuals are not executed. Many have elected to hold proceedings prior to the merits trial, many with juries, to determine whether an accused is mentally retarded. In 2005, the Supreme Court held that the Eighth and Fourteenth Amendments to the Constitution forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed, resulting in commutation of death sentences to life for dozens of individuals across the country. As of August 2012, over 3,200 men and women are under a death sentence and more than 1,300 men, women and children (at the time of the crime) have been executed since 1976 .

ACLU OBJECTIONS TO THE DEATH PENALTY

Despite the Supreme Court’s 1976 ruling in Gregg v. Georgia , et al, the ACLU continues to oppose capital punishment on moral, practical, and constitutional grounds:

Capital punishment is cruel and unusual . It is cruel because it is a relic of the earliest days of penology, when slavery, branding, and other corporal punishments were commonplace. Like those barbaric practices, executions have no place in a civilized society. It is unusual because only the United States of all the western industrialized nations engages in this punishment. It is also unusual because only a random sampling of convicted murderers in the United States receive a sentence of death.

Capital punishment denies due process of law. Its imposition is often arbitrary, and always irrevocable – forever depriving an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.

The death penalty violates the constitutional guarantee of equal protection . It is applied randomly – and discriminatorily. It is imposed disproportionately upon those whose victims are white, offenders who are people of color, and on those who are poor and uneducated and concentrated in certain geographic regions of the country.

The death penalty is not a viable form of crime control. When police chiefs were asked to rank the factors that, in their judgment, reduce the rate of violent crime, they mentioned curbing drug use and putting more officers on the street, longer sentences and gun control. They ranked the death penalty as least effective . Politicians who preach the desirability of executions as a method of crime control deceive the public and mask their own failure to identify and confront the true causes of crime.

Capital punishment wastes limited resources . It squanders the time and energy of courts, prosecuting attorneys, defense counsel, juries, and courtroom and law enforcement personnel. It unduly burdens the criminal justice system, and it is thus counterproductive as an instrument for society’s control of violent crime. Limited funds that could be used to prevent and solve crime (and provide education and jobs) are spent on capital punishment.

Opposing the death penalty does not indicate a lack of sympathy for murder victims . On the contrary, murder demonstrates a lack of respect for human life. Because life is precious and death irrevocable, murder is abhorrent, and a policy of state-authorized killings is immoral. It epitomizes the tragic inefficacy and brutality of violence, rather than reason, as the solution to difficult social problems. Many murder victims do not support state-sponsored violence to avenge the death of their loved one. Sadly, these victims have often been marginalized by politicians and prosecutors, who would rather publicize the opinions of pro-death penalty family members.

Changes in death sentencing have proved to be largely cosmetic. The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s, have not been appreciably altered by the shift from unrestrained discretion to “guided discretion.” Such so-called “reforms” in death sentencing merely mask the impermissible randomness of a process that results in an execution.

A society that respects life does not deliberately kill human beings . An execution is a violent public spectacle of official homicide, and one that endorses killing to solve social problems – the worst possible example to set for the citizenry, and especially children. Governments worldwide have often attempted to justify their lethal fury by extolling the purported benefits that such killing would bring to the rest of society. The benefits of capital punishment are illusory, but the bloodshed and the resulting destruction of community decency are real.

CAPITAL PUNISHMENT IS NOT A DETERRENT TO CAPITAL CRIMES

Deterrence is a function not only of a punishment’s severity, but also of its certainty and frequency. The argument most often cited in support of capital punishment is that the threat of execution influences criminal behavior more effectively than imprisonment does. As plausible as this claim may sound, in actuality the death penalty fails as a deterrent for several reasons.

A punishment can be an effective deterrent only if it is consistently and promptly employed. Capital punishment cannot be administered to meet these conditions .

The proportion of first-degree murderers who are sentenced to death is small, and of this group, an even smaller proportion of people are executed. Although death sentences in the mid-1990s increased to about 300 per year , this is still only about one percent of all homicides known to the police . Of all those convicted on a charge of criminal homicide, only 3 percent – about 1 in 33 – are eventually sentenced to death. Between 2001-2009, the average number of death sentences per year dropped to 137 , reducing the percentage even more. This tiny fraction of convicted murderers do not represent the “worst of the worst”.

Mandatory death sentencing is unconstitutional. The possibility of increasing the number of convicted murderers sentenced to death and executed by enacting mandatory death penalty laws was ruled unconstitutional in 1976 ( Woodson v. North Carolina , 428 U.S. 280).

A considerable time between the imposition of the death sentence and the actual execution is unavoidable, given the procedural safeguards required by the courts in capital cases. Starting with selecting the trial jury, murder trials take far longer when the ultimate penalty is involved. Furthermore, post-conviction appeals in death-penalty cases are far more frequent than in other cases. These factors increase the time and cost of administering criminal justice.

We can reduce delay and costs only by abandoning the procedural safeguards and constitutional rights of suspects, defendants, and convicts – with the attendant high risk of convicting the wrong person and executing the innocent. This is not a realistic prospect: our legal system will never reverse itself to deny defendants the right to counsel, or the right to an appeal.

Persons who commit murder and other crimes of personal violence often do not premeditate their crimes.

Most capital crimes are committed in the heat of the moment. Most capital crimes are committed during moments of great emotional stress or under the influence of drugs or alcohol, when logical thinking has been suspended. Many capital crimes are committed by the badly emotionally-damaged or mentally ill. In such cases, violence is inflicted by persons unable to appreciate the consequences to themselves as well as to others.

Even when crime is planned, the criminal ordinarily concentrates on escaping detection, arrest, and conviction. The threat of even the severest punishment will not discourage those who expect to escape detection and arrest. It is impossible to imagine how the threat of any punishment could prevent a crime that is not premeditated. Furthermore, the death penalty is a futile threat for political terrorists, like Timothy McVeigh, because they usually act in the name of an ideology that honors its martyrs.

Capital punishment doesn’t solve our society’s crime problem. Threatening capital punishment leaves the underlying causes of crime unaddressed, and ignores the many political and diplomatic sanctions (such as treaties against asylum for international terrorists) that could appreciably lower the incidence of terrorism.

Capital punishment has been a useless weapon in the so-called “war on drugs.” The attempt to reduce murders in the drug trade by threat of severe punishment ignores the fact that anyone trafficking in illegal drugs is already risking his life in violent competition with other dealers. It is irrational to think that the death penalty – a remote threat at best – will avert murders committed in drug turf wars or by street-level dealers.

If, however, severe punishment can deter crime, then permanent imprisonment is severe enough to deter any rational person from committing a violent crime.

The vast preponderance of the evidence shows that the death penalty is no more effective than imprisonment in deterring murder and that it may even be an incitement to criminal violence. Death-penalty states as a group do not have lower rates of criminal homicide than non-death-penalty states. Use of the death penalty in a given state may actually increase the subsequent rate of criminal homicide. Why? Perhaps because “a return to the exercise of the death penalty weakens socially based inhibitions against the use of lethal force to settle disputes…. “

In adjacent states – one with the death penalty and the other without it – the state that practices the death penalty does not always show a consistently lower rate of criminal homicide. For example, between l990 and l994, the homicide rates in Wisconsin and Iowa (non-death-penalty states) were half the rates of their neighbor, Illinois – which restored the death penalty in l973, and by 1994 had sentenced 223 persons to death and carried out two executions . Between 2000-2010, the murder rate in states with capital punishment was 25-46% higher than states without the death penalty.

On-duty police officers do not suffer a higher rate of criminal assault and homicide in abolitionist states than they do in death-penalty states. Between 1976 and 1989, for example, lethal assaults against police were not significantly more or less frequent in abolitionist states than in death-penalty states. Capital punishment did not appear to provide officers added protection during that time frame. In fact, the three leading states in law enforcement homicide in 1996 were also very active death penalty states : California (highest death row population), Texas (most executions since 1976), and Florida (third highest in executions and death row population). The South, which accounts for more than 80% of the country’s executions, also has the highest murder rate of any region in the country. If anything, the death penalty incited violence rather than curbed it.

Prisoners and prison personnel do not suffer a higher rate of criminal assault and homicide from life-term prisoners in abolition states than they do in death-penalty states. Between 1992 and 1995, 176 inmates were murdered by other prisoners. The vast majority of those inmates (84%) were killed in death penalty jurisdictions. During the same period, about 2% of all inmate assaults on prison staff were committed in abolition jurisdictions . Evidently, the threat of the death penalty “does not even exert an incremental deterrent effect over the threat of a lesser punishment in the abolitionist states.” Furthermore, multiple studies have shown that prisoners sentenced to life without parole have equivalent rates of prison violence as compared to other inmates.

Actual experience thus establishes beyond a reasonable doubt that the death penalty does not deter murder. No comparable body of evidence contradicts that conclusion.

Furthermore, there are documented cases in which the death penalty actually incited the capital crimes it was supposed to deter. These include instances of the so-called suicide-by-execution syndrome – persons who wanted to die but feared taking their own lives, and committed murder so that the state would kill them. For example, in 1996, Daniel Colwell , who suffered from mental illness, claimed that he killed a randomly-selected couple in a Georgia parking lot so that the state would kill him – he was sentenced to death and ultimately took his own life while on death row.

Although inflicting the death penalty guarantees that the condemned person will commit no further crimes, it does not have a demonstrable deterrent effect on other individuals. Further, it is a high price to pay when studies show that few convicted murderers commit further crimes of violence. Researchers examined the prison and post-release records of 533 prisoners on death row in 1972 whose sentences were reduced to incarceration for life by the Supreme Court’s ruling in Furman. This research showed that seven had committed another murder. But the same study showed that in four other cases, an innocent man had been sentenced to death. (Marquart and Sorensen, in Loyola of Los Angeles Law Review 1989)

Recidivism among murderers does occasionally happen, but it occurs less frequently than most people believe; the media rarely distinguish between a convicted offender who murders while on parole, and a paroled murderer who murders again. Government data show that about one in 12 death row prisoners had a prior homicide conviction . But as there is no way to predict reliably which convicted murderers will try to kill again, the only way to prevent all such recidivism is to execute every convicted murderer – a policy no one seriously advocates. Equally effective but far less inhumane is a policy of life imprisonment without the possibility of parole.

CAPITAL PUNISHMENT IS UNFAIR

Constitutional due process and elementary justice both require that the judicial functions of trial and sentencing be conducted with fundamental fairness, especially where the irreversible sanction of the death penalty is involved. In murder cases (since 1930, 88 percent of all executions have been for this crime), there has been substantial evidence to show that courts have sentenced some persons to prison while putting others to death in a manner that has been arbitrary, racially biased, and unfair.

Racial Bias in Death Sentencing

Racial discrimination was one of the grounds on which the Supreme Court ruled the death penalty unconstitutional in Furman . Half a century ago, in his classic American Dilemma (1944), Gunnar Myrdal reported that “the South makes the widest application of the death penalty, and Negro criminals come in for much more than their share of the executions.” A study of the death penalty in Texas shows that the current capital punishment system is an outgrowth of the racist “legacy of slavery.” Between 1930 and the end of 1996, 4,220 prisoners were executed in the United States; more than half (53%) were black .

Our nation’s death rows have always held a disproportionately large population of African Americans, relative to their percentage of the total population. Comparing black and white offenders over the past century, the former were often executed for what were considered less-than-capital offenses for whites, such as rape and burglary. (Between 1930 and 1976, 455 men were executed for rape, of whom 405 – 90 percent – were black.) A higher percentage of the blacks who were executed were juveniles; and the rate of execution without having one’s conviction reviewed by any higher court was higher for blacks. (Bowers, Legal Homicide 1984; Streib, Death Penalty for Juveniles 1987)

In recent years, it has been argued that such flagrant racial discrimination is a thing of the past. However, since the revival of the death penalty in the mid-1970s, about half of those on death row at any given time have been black . More striking is the racial comparison of victims . Although approximately 49% of all homicide victims are white, 77% of capital homicide cases since 1976 have involved a white victim.

Between 1976 and 2005 , 86% of white victims were killed by whites (14% by other races) while 94% of black victims were killed by blacks (6% by other races). Blacks and whites are murder victims in almost equal numbers of crimes – which is a very high percentage given that the general US population is 13% black. African-Americans are six times as likely as white Americans to die at the hands of a murderer, and roughly seven times as likely to murder someone. Young black men are fifteen times as likely to be murdered as young white men.

So given this information, when those under death sentence are examined more closely, it turns out that race is a decisive factor after all.

Further, studies like that commissioned by the Governor of Maryland found that “black offenders who kill white victims are at greater risk of a death sentence than others, primarily because they are substantially more likely to be charged by the state’s attorney with a capital offense.”

The classic statistical study of racial discrimination in capital cases in Georgia presented in the McCleskey case showed that “the average odds of receiving a death sentence among all indicted cases were 4.3 times higher in cases with white victims.” (David C. Baldus et al., Equal Justice and the Death Penalty 1990) In 1987 these data were placed before the Supreme Court in McCleskey v. Kemp and while the Court did not dispute the statistical evidence, it held that evidence of an overall pattern of racial bias was not sufficient. Mr. McCleskey would have to prove racial bias in his own case – a virtually impossible task. The Court also held that the evidence failed to show that there was “a constitutionally significant risk of racial bias….” (481 U.S. 279) Although the Supreme Court declared that the remedy sought by the plaintiff was “best presented to the legislative bodies,” subsequent efforts to persuade Congress to remedy the problem by enacting the Racial Justice Act were not successful. (Don Edwards & John Conyers, Jr., The Racial Justice Act – A Simple Matter of Justice, in University of Dayton Law Review 1995)

In 1990, the U.S. General Accounting Office reported to the Congress the results of its review of empirical studies on racism and the death penalty. The GAO concluded : “Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision” and that “race of victim influence was found at all stages of the criminal justice system process…”

Texas was prepared to execute Duane Buck on September 15, 2011. Mr. Buck was condemned to death by a jury that had been told by an expert psychologist that he was more likely to be dangerous because he was African American. The Supreme Court stayed the case, but Mr. Buck has not yet received the new sentencing hearing justice requires.

These results cannot be explained away by relevant non-racial factors, such as prior criminal record or type of crime, as these were factored for in the Baldus and GAO studies referred to above. They lead to a very unsavory conclusion: In the trial courts of this nation, even at the present time, the killing of a white person is treated much more severely than the killing of a black person . Of the 313 persons executed between January 1977 and the end of 1995, 36 had been convicted of killing a black person while 249 (80%) had killed a white person. Of the 178 white defendants executed, only three had been convicted of murdering people of color . Our criminal justice system essentially reserves the death penalty for murderers (regardless of their race) who kill white victims.

Another recent Louisiana study found that defendants with white victims were 97% more likely to receive death sentences than defendants with black victims. [1]

Both gender and socio-economic class also determine who receives a death sentence and who is executed. Women account for only two percent of all people sentenced to death , even though females commit about 11 percent of all criminal homicides. Many of the women under death sentence were guilty of killing men who had victimized them with years of violent abuse . Since 1900, only 51 women have been executed in the United States (15 of them black).

Discrimination against the poor (and in our society, racial minorities are disproportionately poor) is also well established. It is a prominent factor in the availability of counsel.

Fairness in capital cases requires, above all, competent counsel for the defendant. Yet “approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried.”) Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. As Justice William O. Douglas noted in Furman , “One searches our chronicles in vain for the execution of any member of the affluent strata in this society”(408 US 238).

Failure of Safeguards

The demonstrated inequities in the actual administration of capital punishment should tip the balance against it in the judgment of fair-minded and impartial observers. “Whatever else might be said for the use of death as a punishment, one lesson is clear from experience: this is a power that we cannot exercise fairly and without discrimination.”(Gross and Mauro, Death and Discrimination 1989)

Justice John Marshall Harlan, writing for the Court in Furman , noted “… the history of capital punishment for homicides … reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die…. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by history…. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” (402 U.S. 183 (1971))

Yet in the Gregg decision, the majority of the Supreme Court abandoned the wisdom of Justice Harlan and ruled as though the new guided-discretion statutes could accomplish the impossible. The truth is that death statutes approved by the Court “do not effectively restrict the discretion of juries by any real standards, and they never will. No society is going to kill everybody who meets certain preset verbal requirements, put on the statute books without awareness of coverage of the infinity of special factors the real world can produce.”

Evidence obtained by the Capital Jury Project has shown that jurors in capital trials generally do not understand the judge’s instructions about the laws that govern the choice between imposing the death penalty and a life sentence. Even when they do comprehend, jurors often refuse to be guided by the law. “Juror comprehension of the law… is mediocre. The effect [of this relative lack of comprehension of the law]… is to reduce the likelihood that capital defendants will benefit from the safeguards against arbitrariness built into the… law.”

Even if the jury’s sentencing decision were strictly governed by the relevant legal criteria, there remains a vast reservoir of unfettered discretion: the prosecutor’s decision to prosecute for a capital or lesser crime, the court’s willingness to accept or reject a guilty plea, the jury’s decision to convict for second-degree murder or manslaughter rather than capital murder, the determination of the defendant’s sanity, and the governor’s final clemency decision, among others.

Discretion in the criminal justice system is unavoidable. The history of capital punishment in America clearly demonstrates the social desire to mitigate the harshness of the death penalty by narrowing the scope of its application. Whether or not explicitly authorized by statutes, sentencing discretion has been the main vehicle to this end. But when sentencing discretion is used – as it too often has been – to doom the poor, the friendless, the uneducated, racial minorities, and the despised, it becomes injustice.

Mindful of such facts, the House of Delegates of the American Bar Association (including 20 out of 24 former presidents of the ABA) called for a moratorium on all executions by a vote of 280 to 119 in February 1997 . The House judged the current system to be “a haphazard maze of unfair practices.”

In its 1996 survey of the death penalty in the United States, the International Commission of Jurists reinforced this point. Despite the efforts made over the past two decades since Gregg to protect the administration of the death penalty from abuses, the actual “constitutional errors committed in state courts have gravely undermined the legitimacy of the death penalty as a punishment for crime.” (International Commission of Jurists, Administration of the Death Penalty in the United States 1996)

In 2009, the American Law Institute (ALI), the leading independent organization in the U.S. producing scholarly work to clarify, modernize and improve the law, removed capital punishment from its Model Penal Code. The ALI, which created the modern legal framework for the death penalty in 1962, indicated that the punishment is so arbitrary, fraught with racial and economic disparities, and unable to assure quality legal representation for indigent capital defendants, that it can never be administered fairly.

Thoughtful citizens, who might possibly support the abstract notion of capital punishment, are obliged to condemn it in actual practice.

CAPITAL PUNISHMENT IS IRREVERSIBLE

Unlike any other criminal punishments, the death penalty is irrevocable. Speaking to the French Chamber of Deputies in 1830, years after having witnessed the excesses of the French Revolution, the Marquis de Lafayette said, “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.” Although some proponents of capital punishment would argue that its merits are worth the occasional execution of innocent people, most would hasten to insist that there is little likelihood of the innocent being executed.

Since 1900, in this country, there have been on the average more than four cases each year in which an entirely innocent person was convicted of murder. Scores of these individuals were sentenced to death. In many cases, a reprieve or commutation arrived just hours, or even minutes, before the scheduled execution. These erroneous convictions have occurred in virtually every jurisdiction from one end of the nation to the other. Nor have they declined in recent years, despite the new death penalty statutes approved by the Supreme Court.

Disturbingly, and increasingly, a large body of evidence from the modern era shows that innocent people are often convicted of crimes – including capital crimes – and that some have been executed.

In 2012, a new report in the Columbia Human Rights Law Review chronicled the horrifying case of Carlos DeLuna, a man executed in Texas in 1989 for a murder that it was “common knowledge” had been committed by another man. [2] DeLuna’s story demonstrates so many of the factors that can go wrong in a capital case: faulty eyewitness identification, prosecutorial misconduct, police misconduct, a botched crime scene, destroyed DNA evidence, a poor person represented by ineffective by an ineffective inexperienced defense attorney overmatched by a professional prosecutor, and insufficient oversight from the bench. [3] In its case against DeLuna, the State presented no blood or DNA evidence, no crime scene fingerprints, and no proof of hair or fibers from the victim having been found on the defendant. He was convicted largely based on eyewitness testimony made from the back of a police car in a dimly lit lot near the crime scene. Meanwhile, a violent criminal named Carlos Hernandez—a man who not only shared DeLuna’s name, but also looked like him—repeatedly boasted about how he had committed the murder and gotten away with it. [4] These disturbing facts about DeLuna’s case, brought to light more than two decades after his execution, refute the claim, made by some proponents of capital punishment, that the United States has never executed an innocent person. [5]

Consider this additional handful of cases of innocent people sentenced to die – some executed and some spared:

• In 2011, the state of Georgia executed Troy Davis, a Black man who was almost certainly innocent of the murder of a white off-duty police officer. The circumstances of his execution raised an international outcry, for good reason. Davis was convicted based on eyewitness testimony, since there was no murder weapon or physical evidence presented by the prosecution. Seven of the nine eyewitnesses recanted or contradicted their trial testimony, many of them saying they were pressured or threatened by police at the time. Troy Davis came close to execution three previous times, because of the difficulty of getting any court to listen to new evidence casting doubt on his conviction. After passage of a federal law in 1996, petitioners are very limited in their ability to appeal death sentences, and courts routinely refuse to hear new testimony, even evidence of innocence. When Troy Davis finally did get a hearing on his evidence, the judge required “proof of innocence” – an impossibly high standard which he ruled that Mr. Davis did not meet. Despite the overwhelming call for clemency, supposed to be the “fail-safe” of the death penalty system, the Georgia Board of Pardons refused to commute the sentence to life and Mr. Davis was executed. Only one day after Troy Davis was executed, two men were freed by the special Innocence Commission of North Carolina after a decade apiece in prison. The two men had actually pled guilty to a crime they did not commit, because they were threatened with the death penalty.
• In Texas in 2004, Cameron Todd Willingham was executed for the arson-murder of his three children. Independent investigations by a newspaper, a nonprofit organization using top experts in the field of fire science, and an independent expert hired by the State of Texas all found that accident, not arson was the cause of the fire. There simply was no reliable evidence that the children were murdered. Yet even with these reports in hand, the state of Texas executed Mr. Willingham. Earlier this year, the Texas Forensic Science Commission was poised to issue a report officially confirming these conclusions until Texas Governor Rick Perry replaced the Commission’s chair and some of its members. Cameron Todd Willingham, who claimed innocence all along, was executed for a crime he almost certainly did not commit. As an example of the arbitrariness of the death penalty, another man, Ernest Willis, also convicted of arson-murder on the same sort of flimsy and unscientific testimony, was freed from Texas death row six months after Willingham was executed.
• In 1985, in Maryland, Kirk Bloodsworth was sentenced to death for rape and murder, despite the testimony of alibi witnesses. In 1986 his conviction was reversed on grounds of withheld evidence pointing to another suspect; he was retried, re-convicted, and sentenced to life in prison. In 1993, newly available DNA evidence proved he was not the rapist-killer, and he was released after the prosecution dismissed the case. A year later he was awarded $300,000 for wrongful punishment. Years later the DNA was matched to the real killer.
• In Mississippi, in 1990, Sabrina Butler was sentenced to death for killing her baby boy. She claimed the child died after attempts at resuscitation failed. On technical grounds her conviction was reversed in 1992. At retrial, she was acquitted when a neighbor corroborated Butler’s explanation of the child’s cause of death and the physician who performed the autopsy admitted his work had not been thorough.
• In 1990, Jesse Tafero was executed in Florida. He had been convicted in 1976 along with his wife, Sonia Jacobs, for murdering a state trooper. In 1981 Jacobs’ death sentence was reduced on appeal to life imprisonment, and 11 years later her conviction was vacated by a federal court. The evidence on which Tafero and Jacobs had been convicted and sentenced was identical; it consisted mainly of the perjured testimony of an ex-convict who turned state’s witness in order to avoid a death sentence. Had Tafero been alive in 1992, he no doubt would have been released along with Jacobs. Tafero’s execution went horribly wrong, and his head caught on fire during the electrocution.
• In Alabama, Walter McMillian was convicted of murdering a white woman in 1988. Despite the jury’s recommendation of a life sentence, the judge sentenced him to death. The sole evidence leading the police to arrest McMillian was testimony of an ex-convict seeking favor with the prosecution. A dozen alibi witnesses (all African Americans, like McMillian) testified on McMillian’s behalf that they were together at a neighborhood gathering, to no avail. On appeal, after tireless efforts by his attorney Bryan Stevenson, McMillian’s conviction was reversed by the Alabama Court of Appeals. Stevenson uncovered prosecutorial suppression of exculpatory evidence and perjury by prosecution witnesses, and the new district attorney joined the defense in seeking dismissal of the charges.
• In 1985, in Illinois, Rolando Cruz and Alejandro Hernandez were convicted of abduction, rape, and murder of a young girl and were sentenced to death. Shortly after, another man serving a life term in prison for similar crimes confessed that he alone was guilty; but his confession was inadmissible because he refused to repeat it in court unless the state waived the death penalty against him. Awarded a new trial in 1988, Cruz was again convicted and sentenced to death; Hernandez was also re-convicted, and sentenced to 80 years in prison. In 1992 the assistant attorney general assigned to prosecute the case on appeal resigned after becoming convinced of the defendants’ innocence. The convictions were again overturned on appeal after DNA tests exonerated Cruz and implicated the prisoner who had earlier confessed. In 1995 the court ordered a directed verdict of acquittal, and sharply criticized the police for their unprofessional handling of the case. Hernandez was released on bail and the prosecution dropped all charges.
• In 1980 in Texas a black high school janitor, Clarence Brandley, and his white co-worker found the body of a missing 16-year-old white schoolgirl. Interrogated by the police, they were told, “One of you two is going to hang for this.” Looking at Brandley, the officer said, “Since you’re the nigger, you’re elected.” In a classic case of rush to judgment, Brandley was tried, convicted, and sentenced to death. The circumstantial evidence against him was thin, other leads were ignored by the police, and the courtroom atmosphere reeked of racism. In 1986, Centurion Ministries – a volunteer group devoted to freeing wrongly convicted prisoners – came to Brandley’s aid. Evidence had meanwhile emerged that another man had committed the murder for which Brandley was awaiting execution. Brandley was not released until 1990. (Davies, White Lies 1991)

This sample of freakish and arbitrary innocence determinations also speaks directly to the unceasing concern that there are many more innocent people on death rows across the country – as well as who have been executed. Several factors seen in the above sample of cases help explain why the judicial system cannot guarantee that justice will never miscarry: overzealous prosecution, mistaken or perjured testimony, race, faulty police work, coerced confessions, the defendant’s previous criminal record, inept and under-resourced defense counsel, seemingly conclusive circumstantial evidence, and community pressure for a conviction, among others. And when the system does go wrong, it is often volunteers from outside the criminal justice system – journalists, for example – who rectify the errors, not the police or prosecutors. To retain the death penalty in the face of the demonstrable failures of the system is unacceptable, especially since there are no strong overriding reasons to favor the death penalty.

CAPITAL PUNISHMENT IS BARBARIC

Prisoners are executed in the United States by any one of five methods; in a few jurisdictions the prisoner is allowed to choose which one he or she prefers:

The traditional mode of execution, hanging , is an option still available in Delaware, New Hampshire and Washington. Death on the gallows is easily bungled: If the drop is too short, there will be a slow and agonizing death by strangulation. If the drop is too long, the head will be torn off.

Two states, Idaho and Utah, still authorize the firing squad . The prisoner is strapped into a chair and hooded. A target is pinned to the chest. Five marksmen, one with blanks, take aim and fire.

Throughout the twentieth century, electrocution has been the most widely used form of execution in this country, and is still utilized in eleven states, although lethal injection is the primary method of execution. The condemned prisoner is led – or dragged – into the death chamber, strapped into the chair, and electrodes are fastened to head and legs. When the switch is thrown the body strains, jolting as the voltage is raised and lowered. Often smoke rises from the head. There is the awful odor of burning flesh. No one knows how long electrocuted individuals retain consciousness. In 1983, the electrocution of John Evans in Alabama was described by an eyewitness as follows:

“At 8:30 p.m. the first jolt of 1900 volts of electricity passed through Mr. Evans’ body. It lasted thirty seconds. Sparks and flames erupted … from the electrode tied to Mr. Evans’ left leg. His body slammed against the straps holding him in the electric chair and his fist clenched permanently. The electrode apparently burst from the strap holding it in place. A large puff of grayish smoke and sparks poured out from under the hood that covered Mr. Evans’ face. An overpowering stench of burnt flesh and clothing began pervading the witness room. Two doctors examined Mr. Evans and declared that he was not dead.

“The electrode on the left leg was re-fastened. …Mr. Evans was administered a second thirty second jolt of electricity. The stench of burning flesh was nauseating. More smoke emanated from his leg and head. Again, the doctors examined Mr. Evans. [They] reported that his heart was still beating, and that he was still alive. At that time, I asked the prison commissioner, who was communicating on an open telephone line to Governor George Wallace, to grant clemency on the grounds that Mr. Evans was being subjected to cruel and unusual punishment. The request …was denied.

“At 8:40 p.m., a third charge of electricity, thirty seconds in duration, was passed through Mr. Evans’ body. At 8:44, the doctors pronounced him dead. The execution of John Evans took fourteen minutes.” Afterwards, officials were embarrassed by what one observer called the “barbaric ritual.” The prison spokesman remarked, “This was supposed to be a very clean manner of administering death.”

The introduction of the gas chamber was an attempt to improve on electrocution. In this method of execution the prisoner is strapped into a chair with a container of sulfuric acid underneath. The chamber is sealed, and cyanide is dropped into the acid to form a lethal gas. Execution by suffocation in the lethal gas chamber has not been abolished but lethal injection serves as the primary method in states which still authorize it. In 1996 a panel of judges on the 9th Circuit Court of Appeals in California (where the gas chamber has been used since 1933) ruled that this method is a “cruel and unusual punishment.” Here is an account of the 1992 execution in Arizona of Don Harding, as reported in the dissent by U.S. Supreme Court Justice John Paul Stevens:

“When the fumes enveloped Don’s head he took a quick breath. A few seconds later he again looked in my direction. His face was red and contorted as if he were attempting to fight through tremendous pain. His mouth was pursed shut and his jaw was clenched tight. Don then took several more quick gulps of the fumes.

“At this point Don’s body started convulsing violently…. His face and body turned a deep red and the veins in his temple and neck began to bulge until I thought they might explode. After about a minute Don’s face leaned partially forward, but he was still conscious. Every few seconds he continued to gulp in. He was shuddering uncontrollably and his body was racked with spasms. His head continued to snap back. His hands were clenched.

“After several more minutes, the most violent of the convulsions subsided. At this time the muscles along Don’s left arm and back began twitching in a wavelike motion under his skin. Spittle drooled from his mouth.

“Don did not stop moving for approximately eight minutes, and after that he continued to twitch and jerk for another minute. Approximately two minutes later, we were told by a prison official that the execution was complete.

“Don Harding took ten minutes and thirty one seconds to die.” ( Gomez v. U.S. District Court , 112 S.Ct. 1652)

The latest mode of inflicting the death penalty, enacted into law by more than 30 states, is lethal injection , first used in 1982 in Texas. It is easy to overstate the humaneness and efficacy of this method; one cannot know whether lethal injection is really painless and there is evidence that it is not. As the U.S. Court of Appeals observed, there is “substantial and uncontroverted evidence… that execution by lethal injection poses a serious risk of cruel, protracted death…. Even a slight error in dosage or administration can leave a prisoner conscious but paralyzed while dying, a sentient witness of his or her own asphyxiation.” ( Chaney v. Heckler , 718 F.2d 1174, 1983).

Its veneer of decency and subtle analogy with life-saving medical practice no doubt makes killing by lethal injection more acceptable to the public. Journalist Susan Blaustein, reacting to having witnessed an execution in Texas, comments:

“The lethal injection method … has turned dying into a still life, thereby enabling the state to kill without anyone involved feeling anything…. Any remaining glimmers of doubt – about whether the man received due process, about his guilt, about our right to take life – cause us to rationalize these deaths with such catchwords as ‘heinous,’ ‘deserved,’ ‘deterrent,’ ‘justice,’ and ‘painless.’ We have perfected the art of institutional killing to the degree that it has deadened our natural, quintessentially human response to death.”

Botched Lethal Injections

Nor does execution by lethal injection always proceed smoothly as planned. In 1985 “the authorities repeatedly jabbed needles into … Stephen Morin, when they had trouble finding a usable vein because he had been a drug abuser.” In 1988, during the execution of Raymond Landry, “a tube attached to a needle inside the inmate’s right arm began leaking, sending the lethal mixture shooting across the death chamber toward witnesses.”

Although the U.S. Supreme Court has held that the current method of lethal injection used is constitutional, several people have suffered because of this form of execution. In Ohio, Rommel Broom was subjected to 18 attempts at finding a vein so that he could be killed by lethal injection. The process to try to execute him took over two hours. Finally, the governor had to stop the execution and grant the inmate a one week reprieve. Mr. Broom has not been executed because he is challenging the state’s right to hold a second execution attempt. Nor was he the only Ohio inmate so maltreated. During his 2006 execution Joseph Clark screamed, “it don’t work” and requested to take something by mouth so the torture would end when his executioners took thirty minutes to find a vein. Christopher Newton’s execution took over two hours – so long that he had to be given a bathroom break.

Lethal Injection Protocol Issues

Most lethal injections in the United States use a “cocktail” consisting of three drugs that sequentially render an inmate unconscious, cause paralysis and cease breathing, and stop an inmate’s heart. [6] But in 2011, the sole American manufacturer of sodium thiopental, a vital part of the three-drug cocktail, decided to discontinue production, forcing states to adapt their lethal injection methodology. [7] Some states have replaced the three-drug cocktail with a single substance, [8] while others have replaced thiopental in the three-drug sequence with another anesthetic. [9] Both three-drug and single-drug executions raise vital concerns: the three-drug cocktail’s paralyzing sedative may mask the inmate’s pain and suffering, while the single-drug method takes about 25 minutes to end a life (if there are no complications), compared with the ten-minute three-drug process. [10]

Although the Supreme Court held in 2008 that Kentucky’s three-drug lethal injection procedure did not violate the Constitution’s ban on cruel and unusual punishment, [11] it is unclear whether states’ adapted procedures pass muster. Indeed, in February 2012, a three-judge panel of the Ninth Circuit Court of Appeals admonished the Arizona Department of Corrections, stating that its approach to execution “cannot continue” and questioning the “regularity and reliability” of protocols that give complete discretion to the corrections director to determine which and how many drugs will be used for each execution. [12] In Georgia, the state Supreme Court stayed the execution of Warren Hill hours before he was scheduled to die in July 2012 in order to review the Department of Corrections’ new single-drug lethal injection procedure. [13] The Missouri Supreme Court imposed a temporary moratorium on executions in August 2012, declaring that it would be “premature” to set execution dates for death row inmates given a pending lawsuit about whether the state’s lethal injection procedures are humane. The state had amended its injection protocol to use a single drug, propofol, which advocates say causes severe pain upon injection. [14]

Although similar suits are pending in other states, [15] not all protocol-based challenges have succeeded; in Texas and Oklahoma, executions have continued despite questions about the potential cruelty of lethal injection and the type or number of chemicals used. [16]

Regardless of whether states use one or three drugs for an execution, all of the major lethal injection drugs are in short supply due to manufacturers’ efforts to prevent the use of their products for executions [17] and European Union restrictions on the exportation of drugs that may be used to kill. [18] As a result, some state executioners have pursued questionable means of obtaining the deadly chemicals from other states and foreign companies, including a pharmaceutical wholesaler operating out of the back of a London driving school. [19] These backroom deals—which, astoundingly, have been approved by the U.S. Food and Drug Administration (FDA)—are now the subject of federal litigation that could impact the legitimacy of the American death penalty system. In March 2012, six death row inmates argued that the FDA had shirked its duty to regulate lethal substances and raised concerns about the “very real risk that unapproved thiopental will not actually render a condemned prisoner unconscious.” [20] A federal district judge agreed and ordered the FDA to confiscate the imported thiopental, but the agency has appealed. [21]

Witnessing the Execution

Most people who have observed an execution are horrified and disgusted. “I was ashamed,” writes sociologist Richard Moran, who witnessed an execution in Texas in 1985. “I was an intruder, the only member of the public who had trespassed on [the condemned man’s] private moment of anguish. In my face he could see the horror of his own death.”

Revulsion at the duty to supervise and witness executions is one reason why so many prison wardens – however unsentimental they are about crime and criminals – are opponents of capital punishment. Don Cabana, who supervised several executions in Missouri and Mississippi reflects on his mood just prior to witnessing an execution in the gas chamber:

“If [the condemned prisoner] was some awful monster deemed worthy of extermination, why did I feel so bad about it, I wondered. It has been said that men on death row are inhuman, cold-blooded killers. But as I stood and watched a grieving mother leave her son for the last time, I questioned how the sordid business of executions was supposed to be the great equalizer…. The ‘last mile’ seemed an eternity, every step a painful reminder of what waited at the end of the walk. Where was the cold-blooded murderer, I wondered, as we approached the door to the last-night cell. I had looked for that man before… and I still had not found him – I saw, in my grasp, only a frightened child. [Minutes after the execution and before] heading for the conference room and a waiting press corps, I… shook my head. ‘No more. I don’t want to do this anymore.'” 1996)

Recently, Allen Ault, former executioner for the State of Georgia, wrote , “The men and women who assist in executions are not psychopaths or sadists. They do their best to perform the impossible and inhumane job with which the state has charged them. Those of us who have participated in executions often suffer something very much like posttraumatic stress. Many turn to alcohol and drugs. For me, those nights that weren’t sleepless were plagued by nightmares.”

For some individuals, however, executions seem to appeal to strange, aberrant impulses and provide an outlet for sadistic urges. Warden Lewis Lawes of Sing Sing Prison in New York wrote of the many requests he received to watch electrocutions, and told that when the job of executioner became vacant. “I received more than seven hundred applications for the position, many of them offering cut-rate prices.” (Life and Death in Sing Sing 1928)

Public executions were common in this country during the 19th and early 20th centuries. One of the last ones occurred in 1936 in Kentucky, when 20,000 people gathered to watch the hanging of a young African American male. (Teeters, in Journal of the Lancaster County Historical Society 1960)

Delight in brutality, pain, violence and death may always be with us. But surely we must conclude that it is best for the law not to encourage such impulses. When the government sanctions, commands, and ceremoniously carries out the execution of a prisoner, it lends support to this destructive side of human nature.

More than two centuries ago the Italian jurist Cesare Beccaria, in his highly influential treatise On Crimes and Punishment (1764), asserted: “The death penalty cannot be useful, because of the example of barbarity it gives men.” Beccaria’s words still ring true – even if the death penalty were a “useful” deterrent, it would still be an “example of barbarity.” No society can safely entrust the enforcement of its laws to torture, brutality, or killing. Such methods are inherently cruel and will always mock the attempt to cloak them in justice. As Supreme Court Justice Arthur J. Goldberg wrote, “The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality.”(Boston Globe, August 16, 1976)

Death Row Syndrome

Capital appeals are not only costly; they are also time-consuming. The average death row inmate waits 12 years between sentencing and execution, and some sit in anticipation of their executions on death row for up to 30 years. [22] For these prisoners, most of whom are housed in solitary confinement, this wait period may cause “Death Row Phenomenon” or “Death Row Syndrome.” Although the terms are often used interchangeably, “Death Row Phenomenon” refers to the destructive consequences of long-term solitary confinement [23] and the inevitable anxiety that results from awaiting one’s own death, while “Death Row Syndrome” refers to the severe psychological illness that often results from Death Row Phenomenon. [24]

In solitary confinement, inmates are often isolated for 23 hours each day without access to training or educational programs, recreational activities, or regular visits. Such conditions have been demonstrated to provoke agitation, psychosis, delusions, paranoia, and self-destructive behavior. [25] To inflict this type of mental harm is inhumane, but it also may prove detrimental to public safety. When death row inmates successfully appeal their sentences, they are transferred into the general inmate population, and when death row inmates are exonerated, they are promptly released into the community. [26] Death Row Syndrome needlessly risks making these individuals dangerous to those around them.

Neither Death Row Syndrome nor Death Row Phenomenon has received formal recognition from the American Psychiatric Association or the American Psychological Association. [27] In 1995, however, Justices Stevens and Breyer, in a memorandum regarding the Supreme Court’s denial of certiorari to death row inmate Clarence Lackey, highlighted the “importance and novelty” of the question “whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” [28] Further, as some scholars and advocates have noted, the mental deterioration symptomatic of Death Row Syndrome may render an inmate incompetent to participate in their own post-conviction proceedings. [29]

Death Row Syndrome gained international recognition during the 1989 extradition proceedings of Jens Soering, a German citizen arrested in England and charged with committing murder on American soil. [30] Soering argued, and the European Court of Human Rights agreed, that extraditing him to the United States would violate Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. [31] The Court explained that, in the United States, “the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death” such that extraditing Soering would violate protections against “inhuman or degrading treatment or punishment.” [32] Similar conclusions have been reached by the United Kingdom’s Judicial Committee of the Privy Council, the United Nations Human Rights Committee, and the Canadian Supreme Court. [33]

CAPITAL PUNISHMENT IS UNJUSTIFIED RETRIBUTION

Justice, it is often insisted, requires the death penalty as the only suitable retribution for heinous crimes. This claim does not bear scrutiny, however. By its nature, all punishment is retributive. Therefore, whatever legitimacy is to be found in punishment as just retribution can, in principle, be satisfied without recourse to executions.

Moreover, the death penalty could be defended on narrowly retributive grounds only for the crime of murder, and not for any of the many other crimes that have frequently been made subject to this mode of punishment (rape, kidnapping, espionage, treason, drug trafficking). Few defenders of the death penalty are willing to confine themselves consistently to the narrow scope afforded by retribution. In any case, execution is more than a punishment exacted in retribution for the taking of a life. As Nobel Laureate Albert Camus wrote, “For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.” (Reflections on the Guillotine, in Resistance, Rebellion, and Death 1960)

It is also often argued that death is what murderers deserve, and that those who oppose the death penalty violate the fundamental principle that criminals should be punished according to their just desserts – “making the punishment fit the crime.” If this rule means punishments are unjust unless they are like the crime itself, then the principle is unacceptable: It would require us to rape rapists, torture torturers, and inflict other horrible and degrading punishments on offenders. It would require us to betray traitors and kill multiple murderers again and again – punishments that are, of course, impossible to inflict. Since we cannot reasonably aim to punish all crimes according to this principle, it is arbitrary to invoke it as a requirement of justice in the punishment of murder.

If, however, the principle of just deserts means the severity of punishments must be proportional to the gravity of the crime – and since murder is the gravest crime, it deserves the severest punishment – then the principle is no doubt sound. Nevertheless, this premise does not compel support for the death penalty; what it does require is that other crimes be punished with terms of imprisonment or other deprivations less severe than those used in the punishment of murder.

Criminals no doubt deserve to be punished, and the severity of the punishment should be appropriate to their culpability and the harm they have caused the innocent. But severity of punishment has its limits – imposed by both justice and our common human dignity. Governments that respect these limits do not use premeditated, violent homicide as an instrument of social policy.

Murder Victims Families Oppose the Death Penalty

Some people who have lost a loved one to murder believe that they cannot rest until the murderer is executed. But this sentiment is by no means universal. Coretta Scott King has observed, “As one whose husband and mother-in-law have died the victims of murder and assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil deed is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of a human life. Morality is never upheld by a legalized murder.” (Speech to National Coalition to Abolish the Death Penalty, Washington, D.C., September 26, 1981)

Kerry Kennedy Cuomo, daughter of the slain Senator Robert Kennedy, has written:

“I was eight years old when my father was murdered. It is almost impossible to describe the pain of losing a parent to a senseless murder.…But even as a child one thing was clear to me: I didn’t want the killer, in turn, to be killed. I remember lying in bed and praying, ‘Please, God. Please don’t take his life too.’ I saw nothing that could be accomplished in the loss of one life being answered with the loss of another. And I knew, far too vividly, the anguish that would spread through another family – another set of parents, children, brothers, and sisters thrown into grief.”(Foreword to Gray and Stanley, A Punishment in Search of A Crime 1989)

Across the nation, many who have survived the murder of a loved one have joined Murder Victims’ Families for Reconciliation or Murder Victims Families for Human Rights, in the effort to replace anger and hate toward the criminal with a restorative approach to both the offender and the bereaved survivors.

Groups of murder victims family members have supported campaigns for abolition of the death penalty in Illinois, Connecticut, Montana and Maryland most recently.

Barbara Anderson Young, the sister of James Anderson, who was allegedly run over by a white teenager in Mississippi in 2011, who reportedly wanted to hurt him because he was Black, wrote a letter to the local prosecutor on behalf of their family indicating the family’s opposition to the death penalty, which is “deeply rooted in our religious faith, a faith that was central in James’ life as well.” The letter also eloquently asks that the defendant be spared execution because the death penalty “historically has been used in Mississippi and the South primarily against people of color for killing whites.” It continues, “[e]xecuting James’ killers will not help balance the scales. But sparing them may help to spark a dialogue that one day will lead to the elimination of capital punishment.”

Lawrence Brewer, convicted of the notorious dragging death of James Byrd in Texas, was executed in 2011. Members of Mr. Byrd’s family opposed the death penalty, despite the racist and vicious nature of the killing. Of Brewer’s remorseless – he said he had no regrets the day he was executed – Byrd’s sister, Betty Boatner, said, “If I could say something to him, I would let him know that I forgive him and then if he still has no remorse, I just feel sorry for him.” Byrd’s daughter shared that she didn’t want Brewer to die because “it’s easy . . .(a)ll he’s going to do it go to sleep” rather than live every day with what he did and perhaps one day recognize the humanity of his victim. James Byrd’s son, Ross, points out “You can’t fight murder with murder . . .(l)ife in prison would have been fine. I know he can’t hurt my daddy anymore. I wish the state would take in mind that this isn’t what we want.”

CAPITAL PUNISHMENT COSTS MORE THAN INCARCERATION

It is sometimes suggested that abolishing capital punishment is unfair to the taxpayer, on the assumption that life imprisonment is more expensive than execution. If one takes into account all the relevant costs, however, just the reverse is true. “The death penalty is not now, nor has it ever been, a more economical alternative to life imprisonment.”) A murder trial normally takes much longer when the death penalty is at issue than when it is not. Litigation costs – including the time of judges, prosecutors, public defenders, and court reporters, and the high costs of briefs – are mostly borne by the taxpayer. The extra costs of separate death row housing and additional security in court and elsewhere also add to the cost. A 1982 study showed that were the death penalty to be reintroduced in New York, the cost of the capital trial alone would be more than double the cost of a life term in prison. (N.Y. State Defenders Assn., “Capital Losses” 1982)

The death penalty was eventually reintroduced in New York and then found unconstitutional and not reintroduced again, in part because of cost.

In Maryland, a comparison of capital trial costs with and without the death penalty for the years concluded that a death penalty case costs “approximately 42 percent more than a case resulting in a non-death sentence.” In 1988 and 1989 the Kansas legislature voted against reinstating the death penalty after it was informed that reintroduction would involve a first-year cost of more than $11 million. 59 Florida, with one of the nation’s most populous death rows, has estimated that the true cost of each execution is approximately $3.2 million, or approximately six times the cost of a life-imprisonment sentence.” (David von Drehle, “Capital Punishment in Paralysis,” Miami Herald, July 10, 1988)

A 1993 study of the costs of North Carolina’s capital punishment system revealed that litigating a murder case from start to finish adds an extra $163,000 to what it would cost the state to keep the convicted offender in prison for 20 years. The extra cost goes up to $216,000 per case when all first-degree murder trials and their appeals are considered, many of which do not end with a death sentence and an execution.

In 2011 in California, a broad coalition of organizations called Taxpayers for Justice put repeal of the death penalty on the ballot for 2012 in part because of the high cost documented by a recent study that found the state has already spent $4 billion on capital punishment resulting in 13 executions. The group includes over 100 law enforcement leaders, in addition to crime-victim advocates and exonerated individuals. Among them is former Los Angeles County District Attorney Gil Garcetti, whose office pursued dozens of capital cases during his 32 years as a prosecutor. He said, “My frustration is more about the fact that the death penalty does not serve any useful purpose and it’s very expensive.” Don Heller, a Republican and former prosecutor, wrote “I am convinced that at least one innocent person may have been executed under the current death penalty law. It was not my intent nor do I believe that of the voters who overwhelmingly enacted the death penalty law in 1978. We did not consider that horrific possibility.” Heller emphasized that he is not “soft on crime,” but that “life without parole protects public safety better than a death sentence.” Additionally, he said the money spent on the death penalty could be better used elsewhere, as California cuts funding for police officers and prosecutors. “Paradoxically, the cost of capital punishment takes away funds that could be used to enhance public safety.” [34]

From one end of the country to the other public officials decry the additional cost of capital cases even when they support the death penalty system. “Wherever the death penalty is in place, it siphons off resources which could be going to the front line in the war against crime…. Politicians could address this crisis, but, for the most part they either endorse executions or remain silent.” The only way to make the death penalty more “cost effective” than imprisonment is to weaken due process and curtail appellate review, which are the defendant’s (and society’s) only protection against the most aberrant miscarriages of justice. Any savings in dollars would, of course, be at the cost of justice : In nearly half of the death-penalty cases given review under federal habeas corpus provisions, the murder conviction or death sentence was overturned .

In 1996, in response to public clamor for accelerating executions, Congress imposed severe restrictions on access to federal habeas corpus and also ended all funding of the regional death penalty “resource centers” charged with providing counsel on appeal in the federal courts. (Carol Castenada, “Death Penalty Centers Losing Support Funds,” USA Today, Oct. 24, 1995) These restrictions virtually guarantee that the number and variety of wrongful murder convictions and death sentences will increase. The savings in time and money will prove to be illusory.

CAPITAL PUNISHMENT IS LESS POPULAR THAN THE ALTERNATIVES

It is commonly reported that the American public overwhelmingly approves of the death penalty. More careful analysis of public attitudes, however, reveals that most Americans prefer an alternative; they would oppose the death penalty if convicted murderers were sentenced to life without parole and were required to make some form of financial restitution. In 2010, when California voters were asked which sentence they preferred for a first-degree murderer, 42% of registered voters said they preferred life without parole and 41% said they preferred the death penalty. In 2000, when voters were asked the same question, 37% chose life without parole while 44% chose the death penalty . A 1993 nationwide survey revealed that although 77% of the public approves of the death penalty, support drops to 56% if the alternative is punishment with no parole eligibility until 25 years in prison. Support drops even further, to 49%, if the alternative is no parole under any conditions. And if the alternative is no parole plus restitution, it drops still further, to 41% . Only a minority of the American public would favor the death penalty if offered such alternatives.

INTERNATIONALLY, CAPITAL PUNISHMENT IS WIDELY VIEWED AS INHUMANE AND ANACHRONISTIC

An international perspective on the death penalty helps us understand the peculiarity of its use in the United States. As long ago as 1962, it was reported to the Council of Europe that “the facts clearly show that the death penalty is regarded in Europe as something of an anachronism….” 1962)

Today, either by law or in practice, all of Western Europe has abolished the death penalty. In Great Britain, it was abolished (except for cases of treason) in 1971; France abolished it in 1981. Canada abolished it in 1976. The United Nations General Assembly affirmed in a formal resolution that throughout the world, it is desirable to “progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment.” By mid-1995, eighteen countries had ratified the Sixth Protocol to the European Convention on Human Rights, outlawing the death penalty in peacetime.

Underscoring worldwide support for abolition was the action of the South African constitutional court in 1995, barring the death penalty as an “inhumane” punishment. Between 1989 and 1995, two dozen other countries abolished the death penalty for all crimes. Since 1995, 43 more abolished it. All told, 71% of the world’s nation’s have abolished the death penalty in law or practice; only 58 of 197 retain it .

International Law

A look at international trends and agreements sheds light on the peculiarity of the United States’ continued imposition of capital punishment. Today, over 140 nations have abolished the death penalty either by law or in practice and, of the 58 countries that have retained the death penalty, only 21 carried out known executions in 2011. [35] Furthermore, capital punishment has compelled the United States to abstain from signing or ratifying several major international treaties and perhaps to violate international agreements to which it is a party:

In 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), one of the UN’s primary human rights treaties. [36] Parties to the Protocol must take all necessary measures to abolish the death penalty and protect their citizens’ right not to be executed, although signatories may reserve the right to apply the death penalty for serious military criminals during wartime. [37] The United States has yet to join the 35 signatories or 75 parties to the Protocol, trailing behind the world’s leading democracies in the protection of human rights.

Although the Second Protocol to the ICCPR is the only worldwide instrument calling for death penalty abolition, there are three such instruments with regional emphases. Adopted by the Council of Europe in 1982 and ratified by eighteen nations by mid-1995, the Sixth Protocol of the European Convention on Human Rights (ECHR) provides for the abolition of capital punishment during peacetime. In 2002, the Council adopted the Thirteenth Protocol to the ECHR, which provides for the abolition of the death penalty in all circumstances, including times of war or imminent threat of war. In 1990, the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which provides for total abolition but allows states to reserve the right to apply the death penalty during wartime. [38]

The United States has ratified the Vienna Convention on Consular Relations (VCCR), an international treaty setting forth a framework for consular relations among independent countries. Under Article 36 of the VCCR, local authorities are obligated to inform all detained foreigners “without delay” of their right to request consular notification of their detention and their right to demand and access opportunities to communicate with their consular representatives. [39] Local authorities have repeatedly disregarded this obligation, resulting in the International Court of Justice holding in 2004 that states had violated the VCCR by failing to inform 51 named Mexican nationals of their rights. All 51 were sentenced to death. When the State of Texas refused to honor this judgment and provide relief for the 15 death-row inmates whose VCCR rights it had violated, President George W. Bush sought to intervene on the prisoners’ behalf, taking the case to the United States Supreme Court. The Court denied the President’s appeal, and Texas has gone on to execute inmates whose VCCR rights it had failed to honor.

In 1994, the United States signed the United Nations (UN) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). [40] The treaty, which has now been ratified or signed by 176 nations, outlaws the imposition of physical or psychological abuse on people in detention. While it does not explicitly prohibit capital punishment, the treaty does forbid the intentional infliction of pain. Since 1976, however, more than 20 executions in the United States have involved prolonged, painful, or shocking errors, such as an inmate’s head catching fire or a lengthy and torturous search for a vein suitable for lethal injection. Additionally, accidents aside, our methods of execution—lethal injection, electrocution, firing squad, gas chamber, and hanging—may be inherently painful. The CAT also forbids the infliction of pain and suffering “based on discrimination of any kind,” [41] yet racial inequality is endemic to our death rows .

Also in 1994, the United States ratified the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), a treaty intended to protect against racial discrimination, whether intentional or resulting from seemingly neutral state policies. To meet its obligations as a party to ICERD, the United States must take steps to review and amend policies and procedures that create or perpetuate racial discrimination, including capital punishment. [42]

Once in use everywhere and for a wide variety of crimes, the death penalty today is generally forbidden by law and widely abandoned in practice, in most countries outside the United States. Indeed, the unmistakable worldwide trend is toward the complete abolition of capital punishment. In the United States, opposition to the death penalty is widespread and diverse. Catholic, Jewish, and Protestant religious groups are among the more than 50 national organizations that constitute the National Coalition to Abolish the Death Penalty.

The Case Against the Death Penalty was first published by the ACLU as a pamphlet in 1973. The original text was written by Hugo Adam Bedau, Ph.D., who also contributed to several subsequent editions of the pamphlet. This version was most recently revised by the ACLU in 2012.

[1] Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008 , 71 La. L. Rev. 647, 671 (2011), available at http://www.deathpenaltyinfo.org/documents/PierceRadeletStudy.pdf .

[2] Liebman et. al, Los Tocayos Carlos , 43 Colum. Hum. Rts. L. Rev. 711, 1104 (2012).

[3] See Andrew Cohen, Yes, America, We Have Executed an Innocent Man , Atlantic, May 14, 2012, http://www.theatlantic.com/national/archive/2012/05/yes-america-we-have-executed-an-innocent-man/257106/ .

[4] See id.

[5] See id. ; Carlos DeLuna Case: The Fight to Prove an Innocent Man Was Executed , PBS Newshour, May 24, 2012, http://www.pbs.org/newshour/bb/law/jan-june12/deathpenalty_05-24.html .

[6] A Three-Drug Cocktail , WashingtonPost.com, Sep. 26, 2007, http://www.washingtonpost.com/wp-dyn/content/graphic/2007/09/26/GR2007092600116.html ; see also Victoria Gill, The Search for a Humane Way to Kill , BBC News, Aug. 7, 2012, http://www.bbc.co.uk/news/magazine-19060961 .

[7] See Carol J. Williams, Maker of Anesthetic Used in Executions is Discontinuing Drug, L.A. Times, Jan. 22, 2011, http://articles.latimes.com/2011/jan/22/local/la-me-execution-drug-20110122 ; John Schwartz, Death Penalty Drug Raises Legal Questions , N.Y. Times, Apr. 13, 2011, http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all .

[8] See Brandi Grissom, Texas Will Change its Lethal Injection Protocol , Tex. Tribune, July 10, 2012, www.texastribune.org/texas-dept-criminal-justice/death-penalty/texas-changing-its-lethal-injection-protocol/ ; Rob Stein, Ohio Executes Inmate Using New, Single-Drug Method for Death Penalty , Wash. Post, Mar. 11, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/03/10/AR2011031006250.html ; David Beasley, Georgia Delays Execution Amid Drug Protocol Change , Reuters, July, 17, 2012, http://www.reuters.com/article/2012/07/17/us-usa-execution-georgia-idUSBRE86G14L20120717 ; Rhonda Cook & Bill Rankin, State Changes Lethal Injection Protocol, Reschedules Execution , Atlanta Journal-Constitution, July 17, 2012, http://www.ajc.com/news/atlanta/state-changes-lethal-injection-1479424.html ; Steve Eder, A Texas First: Single-Drug Used to Execute Inmate , WSJ Law Blog, http://blogs.wsj.com/law/2012/07/19/a-texas-first-single-drug-used-to-execute-inmate/ ; Idaho Switches Execution Protocol to Single-Drug Lethal Injection , Spokesman.com, May 18, 2012, http://www.spokesman.com/blogs/boise/2012/may/18/idaho-switches-execution-protocol-single-drug-lethal-injection/ .

[9] See Carol J. Williams, California’s New Lethal Injection Protocol Tossed By Judge, L.A. Times, Dec. 17, 2011, http://articles.latimes.com/2011/dec/17/local/la-me-executions-20111217 ; Kathy Lohr, New Lethal Injection Drug Raises Concerns , NPR, Jan. 29, 2011, http://www.npr.org/2011/01/29/133302950/new-lethal-injection-drug-raises-concerns ; Steve Eder, Virginia Adds New Drug for Lethal Injections , WSJ Law Blog, July 27, 2012, http://blogs.wsj.com/law/2012/07/27/virginia-adds-new-drug-for-lethal-injections/ .

[10] Laura Vozzella, Virginia opts for One-Drug Lethal Injection Protocol , Wash. Post, July 27, 2012, http://www.washingtonpost.com/local/dc-politics/virginia-opts-for-one-drug-lethal-injection-protocol/2012/07/27/gJQA8jxiEX_story.html .

[11] See Linda Greenhouse, Supreme Court Allows Lethal Injection for Execution , N.Y. Times, Apr. 17, 2008, http://www.nytimes.com/2008/04/17/us/16cnd-scotus.html?pagewanted=all .

[12] See Michael Kiefer, State is Sued Again Over Its Lethal-Injection Procedure , USA Today, Feb. 7, 2012, http://www.usatoday.com/USCP/PNI/Valley%20&%20State/2012-02-07-PNI0207met–executionsART_ST_U.htm ; Court Gives Arizona Warning About Execution Protocol , Associated Press, Feb. 28, 2012, available at http://www.azcentral.com/community/pinal/articles/2012/02/28/20120228arizona-moorman-execution-death-row-inmate-lawyers-seek-stays.html . Notably, however, the panel did not halt Arizona’s scheduled executions. Id.

[13] David Beasley, Georgia Inmate Gets Stay Hours Before Scheduled Execution , Reuters, July 23, 2012, http://www.reuters.com/article/2012/07/23/us-usa-execution-georgia-idUSBRE86M1F720120723 .

[14] Steve Eder, Missouri Executions on Hold Amid Concerns About New Drug , Aug. 15, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/15/missouri-executions-on-hold-amid-concerns-about-new-drug/ .

[15] Melissa Anderson, ACLU Challenges Montana’s Lethal Injection Protocol , KXLH.com, Aug. 1, 2012, http://www.kxlh.com/news/aclu-challenges-montana-s-lethal-injection-protocol/ .

[16] See Eder, supra note 3; Steve Olfason, Oklahoma to Execute Man Who Killed Ex-Girlfriend and Her Two Kids , Chicago Tribune, Aug. 14, 2012, http://articles.chicagotribune.com/2012-08-14/news/sns-rt-us-usa-execution-oklahomabre87d0s8-20120814_1_jerry-massie-method-of-lethal-injection-three-drug-protocol ; Steve Eder, Oklahoma Execution Set After Lethal Injection Challenge Fails , Aug. 13, 2012, WSJ Law Blog, http://blogs.wsj.com/law/2012/08/13/oklahoman-set-for-executution-after-lethal-injection-challenge-fails/ .

[17] See Grissom, supra note 3; Ed Pilkington, Texas Executions Threatened As Stocks of Death Penalty Drug Run Low , Guardian, Feb. 14, 2012, http://www.guardian.co.uk/world/2012/feb/14/texas-executions-threatened-stocks-run-low ; John Schwartz, Seeking Execution Drug, States Cut Legal Corners , N.Y. Times, Apr. 13, 2011,

http://www.nytimes.com/2011/04/14/us/14lethal.html?pagewanted=all ; Kiefer, supra note 7.

[18] EU Imposes Strict Controls on ‘Execution Drug’ Exports, BBC News, Dec. 20, 2011, http://www.bbc.co.uk/news/world-europe-16281016 ; Matt McGrath, FDA Goes to Court to Secure Drugs for Lethal Injections , BBC World, June 1, 2012, http://www.bbc.co.uk/news/science-environment-18253578 .

[19] See Jeremy Pelofsky, U.S. Wants Lawsuit Over Execution Drug Dismissed , Reuters, Apr. 20, 2011, http://www.reuters.com/article/2011/04/20/us-usa-execution-lawsuit-idUSTRE73J7MH20110420 ; Michael Kiefer, Execution Drugs: Arizona Inmate Lawsuit Seeks FDA Policing , Ariz. Republic, Feb. 3, 2011, http://www.azcentral.com/news/articles/2011/02/02/20110202arizona-execution-drug-fda-lawsuit-brk02-ON.htm l; Kevin Johnson, Lawsuit Seeks to Block Imports of Key Execution Drug , USA Today, Feb. 2, 2011, http://content.usatoday.com/communities/ondeadline/post/2011/02/lawsuit-seeks-to-block-imports-of-key-execution-drug/1#.UA2pmKBCzGc ; Ryan Gabrielson, Lethal Injection Drug Tied to London Wholesaler , California Watch, Jan. 7, 2011, http://californiawatch.org/dailyreport/lethal-injection-drug-tied-london-wholesaler-7888 ; Ryan Gabrielson, California Lethal Injection: Prison Officials Refuse to Hand Over Lethal Injection Drug , California Watch, May 30, 2012, available at http://www.huffingtonpost.com/2012/05/30/california-lethal-injection_n_1556155.html .

[20] Pelofsky, supra note 14.

[21] See Raymond Bonner, FDA’s Immoral Stance on Lethal Injection Drugs , Bloomberg, July 29, 2012, http://www.bloomberg.com/news/2012-07-29/fda-s-immoral-stance-on-lethal-injection-drugs.html .

[22] See Elizabeth Rapaport , A Modest Proposal: The Aged of Death Row Should be Deemed Too Old to Execute, 77 Brook. L. Rev. 1089 (Spring 2012); Michael J. Carter, Wanting to Die: The Cruel Phenomenon of “Death Row Syndrome”, Alternet, Nov. 7, 2008, http://www.alternet.org/rights/106300/waiting_to_die%3A_the_cruel_phenomenon_of_%22death_row_syndrome%22/ ; Dr. Karen Harrison and Anouska Tamony, Death Row Phenomenon, Death Row Syndrome, and Their Affect [sic.] on Capital Cases in the U.S. , Internet Journal of Criminology 2010, available at http://www.internetjournalofcriminology.com/Harrison_Tamony_%20Death_Row_Syndrome%20_IJC_Nov_2010.pdf .

[23] See Stop Solitary – The Dangerous Overuse of Solitary Confinement in the United States, ACLU.org, https://www.aclu.org/stop-solitary-dangerous-overuse-solitary-confinement-united-states-0 .

[24] See Harrison and Tamony, supra note 25.

[25] See Carter, supra note 25; Death Penalty Information Center, Time on Death Row (2006), at http://www.deathpenaltyinfo.org/time-death-row .

[26] See id.

[27] Amy Smith, Not “Waiving” But Drowning: The Anatomy of Death Row Syndrome and Volunteering for Execution , 17 B.U. Pub. Int. L.J. 237, 243, available at http://www.bu.edu/law/central/jd/organizations/journals/pilj/vol17no2/documents/17-2SmithArticle.pdf .

[28] Lackey v. Texas, 115 S. Ct. 1421, 1421 (1995) (Stevens, J., concurring in the denial of certiorari).

[29] Stephen Blank, Killing Time: The Process of Waiving Appeal – The Michael Ross Death Penalty Cases , 14 J.L. & Pol’y 735, 738-39 (2006).

[30] Soering v. UK , App. No. 14038/88, 11 Eur. H.R. Rep. 439 (1989), available at http://eji.org/eji/files/Soering%20v.%20United%20Kingdom.pdf .

[31] See David Wallace-Wells, What is Death Row Syndrome? , Slate, Feb. 1, 2005, http://www.slate.com/articles/news_and_politics/explainer/2005/02/what_is_death_row_syndrome.html ; Smith supra note 30.

[32] Smith supra note 30. (quoting Soering , 11 Eur. H. R. Rep. at 475-76).

[33] Id. at 239.

[34] Carol J. Williams, Death Penalty: Exhaustive Study Finds Death Penalty Costs California $184 Million a Year , L.A. Times, June 20, 2011, http://articles.latimes.com/2011/jun/20/local/la-me-adv-death-penalty-costs-20110620 .

[35] Figures on the Death Penalty , Amnesty International, http://www.amnesty.org/en/death-penalty/numbers .

[36] UN General Assembly, Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty , Dec. 15, 1989, A/RES/44/128, available at: http://www.unhcr.org/refworld/docid/3ae6b3a70.html [accessed 15 August 2012] [ hereinafter Second Optional Protocol].

[37] See Pierre Desert, Second Optional Protocol: Frequently Asked Questions , World Coalition Against the Death Penalty, June 27, 2008, http://www.worldcoalition.org/Second-Optional-Protocol-Frequently-Asked-Questions.html ; Pierre Desert, Second Optional Protocol: The Only Global Treaty Aiming at the Abolition of the Death Penalty , World Coalition Against the Death Penalty, June 24, 2008, www.worldcoalition.org/UN-Protocol-the-only-global-treaty-aiming-at-the-abolition-of-the-death-penalty.html ; Second Optional Protocol, supra note 21.

[38] Desert, Second Optional Protocol: Frequently Asked Questions , supra note 22.

[39] Vienna Convention on Consular Relations, Mar. 19, 1967, 596 U.N.T.S. 261, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf .

[40] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://treaties.un.org/doc/publication/UNTS/Volume%201465/v1465.pdf .

[41] Richard C. Dieter, Introduction: Ford Foundation Symposium, Nov. 12, 1998, available at http://www.deathpenaltyinfo.org/us-death-penalty-and-international-law-us-compliance-torture-and-race-conventions .

[42] International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195, available at http://treaties.un.org/doc/publication/UNTS/Volume%20660/v660.pdf .

Related Issues

• Capital Punishment

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Legal Dictionary

The Law Dictionary for Everyone

Capital Punishment

The term “capital punishment” refers to the death penalty, which is the punishment for a crime by death. For example, capital punishment methods can include lethal injection, the electric chair or hanging. There is a great deal of controversy surrounding the issue of putting people to death, such that each state has different laws regarding this ultimate penalty. To explore this concept, consider the following capital punishment definition.

Definition of Capital Punishment

• The death penalty, or the punishment for a crime by way of death.

What is Capital Punishment Meaning?

Capital punishment is a form of punishment for the committing of a crime. Specifically, capital punishment refers to the death penalty, or the sentencing of an individual to death for a capital crime. While the prisoner is still in prison but awaiting execution, he is on “death row.”

Some people spend years on death row before the state puts them to death. Many individuals oppose capital punishment for several reasons, including the right to life and the possibility that states may be executing innocent people.

Public Perception of the Death Penalty

In November of 2010, the Death Penalty Information Center released the results of a study conducted to gain true insight into the public perception of the death penalty. The study included a poll conducted by Lake Research Partners wherein they polled 1,500 individuals, who reported a growing support for alternative methods of punishment. In other words, the public perception of the death penalty seems to be shifting from being in favor of the death penalty to opting for another type of punishment instead.

In order of most favorable to least favorable, most individuals polled said they would prefer such alternatives to the death penalty as:

• Life in jail with no possibility of parole , but with restitution paid to the victim’s family
• Life in jail with no possibility of parole
• Life in jail with the possibility of parole

What is perhaps most interesting in the public perception of the death penalty is the opinion of the country’s police chiefs, who believe the death penalty is the least effective with respect to deterring crime. Criminologists agree that this harsh penalty does nothing to dissuade someone from committing murder .

History of Capital Punishment

The history of capital punishment goes back a very long time – to the very beginning of life as we know it. In fact, those who have researched the history of capital punishment have found that until prison systems were instituted around the 19th century, there existed no alternative as a punishment for a crime.

The authorities had no way to ensure they could keep criminals locked away from society, and they did not know of any other way to deter them from committing a similar crime in the future. So, the only viable solution, they decided, was to kill the criminal.

The history of capital punishment involves some brutal methods involving everything from drawing and quartering, to burning people at the stake, or boiling them alive. There was also flaying, impalement, and, of course, hanging. Today, prisons still rely on lethal injection, the firing squad, and the electric chair. Most historical records show that capital punishment has been a cornerstone in the development of the justice system in nearly every society.

Capital Punishment Examples

Many examples of capital punishment come out of the state of Texas. This is because Texas is the first state to actually carry out the death penalty. Texas was also the first state to carry out lethal injections specifically, when it put Charles Brooks, Jr. to death in 1982.

The first recorded execution in the state of Texas occurred in 1819, when the state executed George Brown for the crime of piracy. One of the earlier capital punishment examples to come out of Texas was of convicted murderer Nathan Lee, the last man to be hanged in the state since 1923.

There are also several capital punishment examples in Texas wherein people believed that the person executed was innocent. Take, for example, Cameron Todd Willingham, whom Texas put to death in February of 2004 for the murder of his three daughters by arson . The Texas Forensic Science Commission hired Dr. Craig Beyler to review the case, and he found that arson was not a guarantee in this situation.

Capital Crime

There are several crimes that qualify as a “capital crime,” and they tend to vary by country, and sometimes even by state. For instance, murder is almost always a capital crime, no matter where you go. What this means is that if a person kills someone, he risks the death penalty as a possible punishment.

Crimes against humanity , like genocide, also typically qualify as capital crimes. In some countries, crimes such as treason , espionage, and attempting to overthrow the government are all capital crimes. Other countries consider something as harmless as witchcraft or a minor drinking alcohol (not even being drunk, but simply drinking it) to be a capital crime.

Debate over Capital Punishment

As one might expect, there exists considerable debate over capital punishment. Some people do not believe in “an eye for an eye,” and instead believe that prisons should focus on rehabilitating inmates so they can be productive members of society when they eventually get out of prison. Another argument in the debate over capital punishment is that, in some cases, individuals who may be innocent might receive the death penalty, leading to a miscarriage of justice.

Still another argument in the debate over capital punishment is that some believe there is a racial, ethnic, or class bias , and that members of one race, for instance, receive the death penalty more than members of any other race. In fact, research shows that white individuals are more likely to support the death penalty when the perpetrator is black.

Capital Punishment in the States

As far as capital punishment in the states goes, lethal injection is the most commonly used method in the 31 states that allow the death penalty. In 2008, the Supreme Court approved the use of a three-part cocktail of drugs to “humanely” execute an inmate. The drugs work by putting the individual into an unconscious state, relaxing his muscles and, finally, stopping his heart.

There is a backup, or secondary, method of execution to support capital punishment in the states. Specifically, if lethal injection is unavailable for some reason, these states also have permission to use another method of execution.

In some states, like Alabama, Florida, and South Carolina, the state may provide to the individual the option of an alternative method. Such alternatives can include electrocution, hanging, or even a firing squad. With regard to backup capital punishment in the states, however, the states must consult their statutes to ensure the secondary methods they choose to use are constitutional.

Capital Punishment Statistics

The Bureau of Justice Statistics (BJS) collects capital punishment statistics that include people who are on death row, as well as those whom the states have executed during a given year. They get these capital punishment statistics from the Federal Bureau of Prisons and from the state department of corrections from each state.

The BJS also compiles capital punishment statistics of executions scheduled to take place during the following year to provide a more accurate picture. In their database, the BJS includes everything from the individual’s race and offense, to their age at the time of the arrest, and the method of execution.

Capital Punishment Example Involving a Teenager

An example of capital punishment occurred in the matter of Roper v. Simmons in 2005. Here, 17-year-old Christopher Simmons wanted to commit murder, so he convinced his younger friends, Charles Benjamin and John Tessmer, to join him in the burglary and murder of Shirley Crook.

Ultimately, Tessmer decided not to join Simmons and Benjamin when they went to Crook’s home. Once there, the two bound Crook and drove her in her own minivan to a local park, where they then threw her off a bridge, leaving her to drown in the river below.

The next day, Simmons bragged to friends about the murder, and the police arrested him at his high school. Simmons waived his right to an attorney and confessed to the murder after two hours of interrogation. He even recreated the act on video for the officers.

Because he was 17 years old, the State of Missouri tried Simmons as an adult and convicted him for the murder. The state sought the death penalty as a possible sentence because of the nature of the crime. Simmons’ attorney argued that the court should grant leniency because of Simmons’ age, lack of a record, and personal testimony from his family about his good character.

The jury , however, agreed to the death penalty, and Simmons hired a new lawyer . Simmons’ new lawyer argued that Simmons’ troubled past lent to his tendency to act impulsively. Both the trial court and the appellate court upheld Simmons’ sentence.

Supreme Court

In 2002, in the case of Atkins v. Virginia , the U.S. Supreme Court found the execution of a mentally disabled person was unconstitutional. The Missouri Supreme Court had stayed Simmons’ execution while awaiting the Supreme Court’s decision in the Atkins matter. Encouraged by this ruling, the Missouri Supreme Court then overturned the death penalty as a sentence for minors.

Simmons’ case then made its own path up to the U.S. Supreme Court. Following their Atkins precedent , the Court agreed with Missouri that the execution of minors was unconstitutional in that it violated the Eighth Amendment . Writing for the majority, Justice Kennedy wrote:

“Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. ( Citation omitted.). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism ; a proven balance in political mechanisms through separation of powers ; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity.

These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”

Related Legal Terms and Issues

• Appellate Court – A court having jurisdiction to review decisions of a trial-level or other lower court.
• Restitution – The restoration of rights or property previously taken away or surrendered; reparation made by giving compensation for loss or injury caused by wrongdoing.
• Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to rule in a civil matter.

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The Case of Aileen Wuornos - The Facts

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Aileen “Lee” Carol Wuornos was born February 29, 1956, in Rochester, Michigan. Her father was convicted of child molestation after her birth and a few years later killed himself in prison. Wuornos’ mother abandoned her and her brother when they were young, leaving them with her parents, Wuornos’ grandparents, and their children. Childhood friends said that Wuornos’ grandfather beat her and her grandmother was an alcoholic. At 11, Wuornos began trading sexual favors for money, beer, and cigarettes. She had her only child at 14; neighbors claimed the father was an older adult friend of Wuornos’ grandfather. The child was given up for adoption. Soon after, she began spending more time away from home, either living in the woods or hitchhiking around the country, often under assumed names. She was 14 when her family kicked her out of her house. By the early 1980s, after her brother’s death from cancer, Wuornos moved to Florida to work as a prostitute. She frequently was in trouble with the law, for being a prostitute and for other crimes. By 1991 her record included (among other felonies and misdemeanors) arrests for illegal possession of a firearm, forgery, assault, and robbery. Her associates and law enforcement personnel often described her as erratic and easily angered. Her arrest records frequently noted “Attitude POOR.” In 1986 Wuornos met Tyria Moore at a bar in Daytona Beach, Florida, and they began an intense romantic relationship that ended just before Wuornos’ final arrest in 1991. Wuornos’ relationship with Moore was her second relationship with a woman. As a prostitute, her clients were mainly middle-aged, low-to-middle-class white men. Together, Wuornos and Tyria Moore sold stolen items at Florida pawnshops. During the murder investigations, Volusia County police discovered items belonging to Richard Mallory at a local pawnshop, with a receipt showing Wuornos’ thumbprint.   Police then traced other stolen items from Mallory to Wuornos. A camera from Mallory's automobile was found inside a rented warehouse unit, which was opened with a key taken from Wuornos. Wuornos had rented the unit under an alias. Police traced other items from Mallory's car to people or pawnshops Wuornos had contacted. By 1990 Tyria Moore had become suspicious – if not fully aware – of Wuornos’ activities.  Moore moved in with her family in Pennsylvania. When Wuornos was arrested on an outstanding warrant at a biker bar in Harbor Oaks, Florida, police tracked Moore down and used her to elicit a confession from Wuornos.

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Capital Punishment

The Bureau of Justice Statistics (BJS) collects data on persons held under sentence of death and persons executed during the calendar year from the state departments of corrections and the Federal Bureau of Prisons, see  Capital Punishment  series. Reports produced from this collection summarize the movement of prisoners into and out of death sentence status. The data describe prisoners’ sex, race, Hispanic origin, education, marital status, age at time of arrest for the capital offense, and legal status at the time of the offense. Reports also include information on removals, including execution trends and time between imposition of death sentence and execution. BJS also collects preliminary counts of executions during the following year to provide web users with the most recent available data, see  Prisoners executed .

Recent Publications

• Capital Punishment, 2021 – Statistical Tables
• Prisoners Executed
• Capital Punishment, 2020 – Statistical Tables

Recent Data Collections

• Capital Punishment (NPS-8)

How many offenders have been executed?

In 2022, 18 inmates were executed in the United States.  The Bureau of Justice Statistics' (BJS) Capital Punishment reports present characteristics of persons under sentence of death and persons executed, and summarize the movement of prisoners into and out of death sentence status. See Prisoners executed under civil authority in the United States, by year, region, and jurisdiction for additional data on executions.

Why do data take so long to collect and publish?

Data collections vary in scope, burden, and frequency of collection (see individual data collection descriptions for more information). Generally, BJS collects data both from administrative records and from interviews with prison and jail inmates. All data collections must be approved by the Office of Management and Budget (OMB) prior to fielding, which takes several months. Collections must be resubmitted for approval every 3 years (sooner if there are changes in the data collection). For data that are collected through inmate interviews, there must also be an Institutional Review Board (IRB) to protect human subjects (prior to OMB submission), and individual jurisdictions may require additional reviews prior to participation.

All data collection is voluntary. Without a specific mandate by Congress, no jurisdiction is compelled to participate in our data collections; individual surveys are conducted only with persons granting formal consent to participate. Most jurisdictions choose to participate because the information is helpful for policy and practice and may be used to allocate funding. It takes time to achieve a complete enumeration, particularly in times of staff shortages and budget cuts in many levels of government.

Administrative collections are sent out close to the reference date in the survey and are due to BJS 2 to 3 months later. Most respondents submit the data on time, but for various reasons, other jurisdictions take longer to submit the data. BJS staff or contractor staff work with jurisdictions to obtain the necessary information, which can take an additional 3 months.

After data are collected, they must then be cleaned, weighted (in the case of sample populations), and analyzed. BJS staff has several methods of release, including a formal report, statistical/electronic tables, or a summary brief. All data are fully verified prior to release. Keeping in mind that each data collection is different and the times may vary significantly depending on the collection of interest, provided below is an average data collection and processing timetable:

Collection, 5–6 months (from reference date) for administrative surveys; 8–12 for interview surveys

Cleaning/weighting, 1–2 months for administrative surveys; 3–6 for interview surveys

Analysis/verification, 2–12 months, depending on survey type and complexity of analysis

Preparation to disseminate, 2–3 months

Why are data so difficult to compare over years?

Caution must be used when using trend data, as definitions and reporting capabilities change over time. Some changes in definitions are due to BJS initiatives to improve counting (such as separating out state inmates held in private facilities or local jails), some may be driven by the Office of Management and Budget (such as changes in racial and ethnic definitions), and some may be noted by the reported jurisdiction (such as noncitizen inmate counts, including those who were foreign-born). 

Whenever possible, BJS notes these differences and encourages users to check footnotes within tables and jurisdiction notes within reports to better understand why comparability can vary from state-to-state or year-to-year.

Note:  When you see a sharp increase or decline in a year-to-year count, it is recommended to verify there was no change in definition or counting method.

Terms & Definitions

Capital punishment.

Capital punishment refers to the process of sentencing convicted offenders to death for the most serious crimes (capital crimes) and carrying out that sentence. The specific offenses and circumstances that determine if a crime is eligible for a death sentence are defined by statute and are prescribed by Congress or any state legislature.

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NCJRS Virtual Library

Ministering to the condemned: a case study (from facing the death penalty, p 112-122, 1989, michael l radelet, ed. -- see ncj-118827), additional details.

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