2022 DPIC Mid-Year Review: Geographic Isolation of Death Penalty Continues Amidst Eight-Year Trend of Minimal Use

At the halfway point of 2022, the United States is on pace to mark the eighth con­sec­u­tive year with few­er than 30 exe­cu­tion and few­er than 50 new death sen­tences. But even as the death penal­ty declines, a few states have attempt­ed to ramp up exe­cu­tions and the United States Supreme Court has con­tin­ued to impede death-row pris­on­ers’ access to the courts and impair judi­cial enforce­ment of defen­dants’ constitutional rights.

The low num­bers of new death sen­tences imposed and exe­cu­tions car­ried out have come from a small num­ber of juris­dic­tions that his­tor­i­cal­ly have been heavy users of cap­i­tal pun­ish­ment. As in past years, the few peo­ple exe­cut­ed have dis­pro­por­tion­al­ly been vul­ner­a­ble defen­dants with men­tal ill­ness, intel­lec­tu­al dis­abil­i­ty, inno­cence claims, and inad­e­quate legal process. Problems with lethal injec­tion con­tin­ued to mar the execution process.

DPIC’s mon­i­tor­ing of media cov­er­age of cap­i­tal tri­als has iden­ti­fied at least sev­en new death sen­tences that were imposed in five states from January through June 2022. That pace remained near the record low 18 new death sen­tences imposed dur­ing the pan­dem­ic years of 2020 and 2021. Five of the sev­en defen­dants sen­tenced to death are defen­dants of col­or: three are Black and two are Latinx.

Likewise, sev­en peo­ple were exe­cut­ed in five states between January and June 2022. At least five of the pris­on­ers who were exe­cut­ed had evi­dence of one or more of the fol­low­ing sig­nif­i­cant impair­ments: seri­ous men­tal ill­ness; brain injury, devel­op­men­tal brain dam­age, or an IQ in the intel­lec­tu­al­ly dis­abled range; and chron­ic seri­ous child­hood trau­ma, neglect, and/​or abuse. The states that car­ried out exe­cu­tions — Alabama, Arizona, Missouri, Oklahoma, and Texas — are all among the eleven states with the most exe­cu­tions since 1972.

Action and inac­tion by the con­ser­v­a­tive super­ma­jor­i­ty of the U.S. Supreme Court in the first half of 2022 con­tin­ued to erode judi­cial enforce­ment of con­sti­tu­tion­al pro­tec­tions in death penal­ty cas­es. Calling fed­er­al court inter­ven­tion to pre­vent uncon­sti­tu­tion­al con­vic­tions or exe­cu­tions an ​“intru­sion … [on] the State’s sov­er­eign pow­er to enforce ​‘soci­etal norms through crim­i­nal law,’” the Court barred two Arizona death-row pris­on­ers from receiv­ing fed­er­al review of evi­dence of inno­cence and intel­lec­tu­al dis­abil­i­ty that inef­fec­tive lawyers appoint­ed to rep­re­sent them at tri­al and in state post-con­vic­tion pro­ceed­ings had failed to inves­ti­gate. The Court also declined to review numer­ous cas­es in which low­er courts had failed to enforce death-row pris­on­ers’ constitutional rights.

Problems with lethal injec­tion con­tin­ued to cast a shad­ow over exe­cu­tions. Oklahoma exe­cut­ed pris­on­ers who had been removed from a legal chal­lenge to the state’s exe­cu­tion pro­to­col, then, with­in days of a fed­er­al dis­trict judge uphold­ing the pro­to­col, the state sought exe­cu­tion dates for 25 peo­ple. On July 1, the Oklahoma Court of Criminal Appeals issued an order set­ting the exe­cu­tions dates between August 2022 and December 2024. Arizona resumed exe­cu­tions after an eight-year hia­tus, but both exe­cu­tions demon­strat­ed the exe­cu­tion team’s lack of skill or inad­e­quate train­ing. Clarence Dixon’s exe­cu­tion was botched, as exe­cu­tion­ers car­ried out a cut-down pro­ce­dure to set an IV line in his groin after fail­ing for 25 min­utes to set an IV in his arm. A month lat­er, as exe­cu­tion­ers once again fum­bled to set an IV line, pris­on­er Frank Atwood assist­ed them in find­ing a vein to inject the drugs that would kill him.

Death-penal­ty leg­is­la­tion was also influ­enced by state’s dif­fi­cul­ties obtain­ing lethal-injec­tion drugs. Florida and Idaho both passed secre­cy laws, con­ceal­ing the iden­ti­ty of exe­cu­tion drug sup­pli­ers. Mississippi moved the choice of exe­cu­tion method from pris­on­ers to the Commissioner of Corrections, giv­ing the prison direc­tor unprece­dent­ed dis­cre­tion over how to perform executions.

Issues of inno­cence remained promi­nent, as the num­ber of death-row exon­er­a­tions rose to 189. Samuel Randolph was exon­er­at­ed in Pennsylvania after 19 years on death row. A Pennsylvania judge also approved the posthu­mous exon­er­a­tion Alexander McClay Williams, a Black teenag­er who had been exe­cut­ed in 1931 on false charges of mur­der­ing a white woman. The inno­cence claims of death-row pris­on­ers Melissa Lucio and Richard Glossip gar­nered nation­al atten­tion. State leg­is­la­tors in Texas and Oklahoma spoke out on behalf of the two pris­on­ers. Lucio was grant­ed a stay just two days before Texas planned to exe­cute her, while Glossip now faces his fourth exe­cu­tion date in September 2022.