Time on Death Row

Introduction

There is no accu­rate mea­sure of the length of time pris­on­ers spend on death row. Some pris­on­ers are on death row for only a short peri­od of time before their con­vic­tions or death sen­tences are over­turned in the courts. Other have spent more than four decades on death row before being exon­er­at­ed or being non-capitally resentenced. 

Half of all death-row exon­er­a­tions have tak­en more than a decade, and the length of time between con­vic­tion and exon­er­a­tion has con­tin­ued to grow. More than half of the exon­er­a­tions since 2013 have tak­en 25 years or more.

The length of time pris­on­ers spend on death row in the United States before being exe­cut­ed began to emerge as a top­ic of inter­est in the debate about the death penal­ty in the ear­ly 2000s. The dis­cus­sion increased around the 2005 exe­cu­tion of Michael Ross, a Connecticut inmate who had been on death row for 17 years, and has been spurred by the writ­ings of sev­er­al Supreme Court Justices — most recent­ly Justice Stephen Breyer — who have unsuc­cess­ful­ly urged the Court to con­sid­er this issue.

Death-row pris­on­ers in the U.S. typ­i­cal­ly spend more than a decade await­ing exe­cu­tion or court rul­ings over­turn­ing their death sen­tences. More than half of all pris­on­ers cur­rent­ly sen­tenced to death in the U.S. have been on death row for more than 18 years.

While on death row, those serv­ing cap­i­tal sen­tences are gen­er­al­ly iso­lat­ed from oth­er pris­on­ers, exclud­ed from prison edu­ca­tion­al and employ­ment pro­grams, and sharply restrict­ed in terms of vis­i­ta­tion and exer­cise, spend­ing as many as 23 hours a day alone in their cells.

This rais­es the ques­tion of whether death-row pris­on­ers are being sub­ject to two dis­tinct pun­ish­ments: the death sen­tence itself and the years of liv­ing in con­di­tions tan­ta­mount to soli­tary con­fine­ment — a severe form of pun­ish­ment that may be used only for very lim­it­ed peri­ods for general-population prisoners.

Moreover, unlike gen­er­al-pop­u­la­tion pris­on­ers, even in soli­tary con­fine­ment, pris­on­ers on death-row live in a state of con­stant uncer­tain­ty over when they will be exe­cut­ed. For some death-row pris­on­ers, this iso­la­tion and anx­i­ety results in a sharp dete­ri­o­ra­tion in their health and mental status.

Background

When the con­sti­tu­tion was writ­ten, the time between sen­tenc­ing and exe­cu­tion could be mea­sured in days or weeks. A cen­tu­ry lat­er, the Supreme Court not­ed that long delays between sen­tenc­ing and exe­cu­tion, com­pound­ed by a prisoner’s uncer­tain­ty over time of exe­cu­tion, could be ago­niz­ing, result­ing in ​“hor­ri­ble feel­ings” and ​“immense men­tal anx­i­ety amount­ing to a great increase in the offender’s pun­ish­ment.” (In re Medley, 1890, as cit­ed in Foster v. Florida, 2002). The time frame at issue in In re Medley: four weeks.

But in the wake of the Supreme Court-man­dat­ed sus­pen­sion of the death penal­ty in 1972 and its dec­la­ra­tion in 1976 that mean­ing­ful appel­late review was a pre­req­ui­site to any con­sti­tu­tion­al­ly accept­able scheme of cap­i­tal pun­ish­ment, numer­ous reforms have been intro­duced in an attempt to cre­ate a less arbi­trary sys­tem. This has result­ed in length­i­er appeals, as manda­to­ry sen­tenc­ing reviews have become the norm, and con­tin­u­al changes in laws and tech­nol­o­gy have neces­si­tat­ed reex­am­i­na­tion of individual sentences.

Death penal­ty pro­po­nents and oppo­nents alike say such care­ful review is imper­a­tive when the stakes are life and death. ​“People are adamant … that every avenue should be exhaust­ed to make sure there is no chance (the con­demned) are not guilty,” for­mer Georgia Attorney General Mike Bowers said in 2001. ​“The sur­er you are, the slow­er you move.” (Atlanta Constitution, October 27, 2001).

The years it takes to car­ry out a death sen­tence exact a huge toll — on tax­pay­ers, vic­tims’ fam­i­lies, and the pris­on­ers them­selves. Yet with­out thor­ough appeals, mis­takes or mis­con­duct in death penal­ty cas­es would be missed or remain con­cealed. As of June 2021, 33 of the men and women wrong­ful­ly con­vict­ed and sen­tenced to death since states resumed cap­i­tal pun­ish­ment in the 1970s had wait­ed 20 or more years to be exon­er­at­ed. Seventeen who were exon­er­at­ed between 2010 and June 2021 had wait­ed 25 years or more for their exon­er­a­tions and, for twelve, exon­er­a­tion took 30 years or more.

Characteristics of Death-Row Prisoners

The fol­low­ing infor­ma­tion is tak­en from the Bureau of Justice Statistics: Capital Punishment and is the sta­tis­ti­cal data of the death-row pop­u­la­tion for 12/​31/​2019.

• 56.1% of the death-row pop­u­la­tion is White, 41.4% is Black, 1.6% is Asian/​Native Hawaiian/​Other Pacific Islander, and .8% is American Indian/​Alaska Native. BJS records Hispanic/​Latino ori­gin as eth­nic­i­ty, not race, how­ev­er, and many Latinx pris­on­ers (who com­prise 15.1% of death row) are list­ed by BJS as White.
• Men make up 98% of those on death row; women make up 2%
• The medi­an edu­ca­tion lev­el of death-row pris­on­ers is 12^th grade.
• 55.5% of death-row pris­on­ers have nev­er mar­ried; 19.6% are divorced or sep­a­rat­ed; 21.3% are cur­rent­ly mar­ried; and 3.6% are widowed. 
• 28.2% of death-row pris­on­ers are age 25 to 44. and 54.8% are 50 or older.
• 9.5% of death-row pris­on­ers had a pri­or homicide conviction.
• 67.8% had pri­or felony convictions.

The fol­low­ing infor­ma­tion is tak­en from the Bureau of Justice Statistics: Capital Punishment and is the sta­tis­ti­cal data of the death-row pop­u­la­tion for 12/​31/​2008 (the last year that this data was publicly reported.)

• Among all pris­on­ers under sen­tence of death, half were age 20 to 29 at the time of arrest; 10.5% were age 19 or younger; and 1% were age 55 or older.
• The aver­age age at time of arrest was 29 years.

The Aging of the Death Row Population

America’s death row pop­u­la­tion is aging sig­nif­i­cant­ly: Five hun­dred and sev­en­ty-four pris­on­ers were 60 years old or old­er as of 2019. That fig­ure rep­re­sents a grow­ing senior death row pop­u­la­tion, which num­bered just 39 in 1996. Some death row seniors com­mit­ted crimes late in life, but many are there at such advanced age because of the inevitable slow­ness of the cap­i­tal appeals process. Unlike elder­ly pris­on­ers in the gen­er­al pop­u­la­tion, death row seniors typ­i­cal­ly are not housed in prison geri­atric facil­i­ties or placed in ​“end of life” pro­grams, but rather are often seg­re­gat­ed in indi­vid­ual cells with­in special facilities.

Legal schol­ars have argued that exe­cut­ing peo­ple who have become so old is incon­sis­tent with human­i­tar­i­an val­ues. ​“Dead man walk­ing is one thing,” said Jonathan Turley, a George Washington University law pro­fes­sor who has worked with old­er pris­on­ers. ​“Dead man being pushed along to the exe­cu­tion cham­ber in a wheel­chair is anoth­er thing.” (USA Today, February 10, 2005).

On December 9, 2021, Oklahoma exe­cut­ed 79-year-old Bigler Stouffer, its old­est death-row-pris­on­er and the old­est per­son to be exe­cut­ed in that state. James Frazier, Ohio’s old­est death-row pris­on­er, was sched­uled to be exe­cut­ed October 20, 2021, before dying of COVID on November 19, 2020. He suf­fered from demen­tia fol­low­ing a series of strokes, could not walk, and required the assis­tance of aides to com­plete dai­ly tasks. His lawyers had filed a peti­tion to bar his exe­cu­tion on grounds of mental incompetency.

In 2018, one year after exe­cut­ing 75-year-old Thomas Arthur, Alabama exe­cut­ed 83-year-old Walter Moody, the old­est per­son and only octo­ge­nar­i­an put to death in the United States since exe­cu­tions resumed in 1977. A DPIC analy­sis of U.S. exe­cu­tion data found that only three of the 944 pris­on­ers exe­cut­ed in the United States between 1977 and 2004 had been aged 65 or old­er. That total was matched in the first six months of 2019, with the exe­cu­tions of Billie Coble (70), Donnie Johnson (68), and Robert Long (65). In 23 years of exe­cu­tions between 1977 and the close of the 20^th cen­tu­ry, only ten pris­on­ers aged 60 or old­er were exe­cut­ed. Forty-five pris­on­ers aged 60 or old­er were exe­cut­ed between January 2010 and June 2019, 23 since 2015 alone. 

With the aging of death row, states and courts are grap­pling with how issues of age-relat­ed phys­i­cal and men­tal decline affect exe­cu­tions. In 2004, a 74-year-old man was put to death in Alabama for a mur­der he com­mit­ted in 1977. Before his exe­cu­tion, J.B. Hubbard for­got who he was at times because of demen­tia. He suf­fered from colon and prostate can­cer, and he was so weak that oth­er inmates some­times walked him to the show­er and combed his hair. (Washington Post, August 6, 2004).

Ohio tried and failed to exe­cute ter­mi­nal­ly ill 69-year-old Alva Campbell (pic­tured) in November 2017. Campbell was afflict­ed with lung can­cer, chron­ic obstruc­tive pul­monary dis­ease, res­pi­ra­to­ry fail­ure, prostate can­cer, and severe pneu­mo­nia; he relied on a colosto­my bag, need­ed oxy­gen treat­ments four times a day, and required a walk­er for even lim­it­ed mobil­i­ty. After fail­ing four times to find a suit­able vein in which to set an intra­venous exe­cu­tion line, Ohio called off the exe­cu­tion. Governor John Kasich grant­ed Campbell a tem­po­rary reprieve and resched­uled his exe­cu­tion for June 2019. Campbell died of his terminal illness less than six months later. 

The U.S. Supreme Court stayed the exe­cu­tion of 67-year old Alabama pris­on­er Vernon Madison in 2018 based on con­cerns that he was incom­pe­tent to be exe­cut­ed. Madison suf­fered mul­ti­ple severe strokes that caused him brain dam­age, vas­cu­lar demen­tia, and ret­ro­grade amne­sia. The strokes also left him with slurred speech, legal­ly blind, incon­ti­nent, and unable to walk inde­pen­dent­ly. In addi­tion to hav­ing no mem­o­ry of the offense, he can no longer recite the alpha­bet past the let­ter G, soils him­self because he does not know there is a toi­let in his cell, asks that his moth­er — who is dead — be informed of his strokes, and plans to move to Florida when he is out of jail. The State of Alabama had argued that Madison’s demen­tia was not a bar to exe­cu­tion, but in a 2019 rul­ing, the U.S. Supreme Court ruled that cog­ni­tive issues asso­ci­at­ed with demen­tia could ren­der a pris­on­er incom­pe­tent to be executed.

International Perspectives

Numerous inter­na­tion­al human rights treaties explic­it­ly pro­hib­it gov­ern­ments from sub­ject­ing indi­vid­u­als to ​“cru­el, inhu­man or degrad­ing treat­ment or pun­ish­ment.” The pro­hi­bi­tion is among the core prin­ci­ples includ­ed in the Universal Declaration of Human Rights in 1948 short­ly after the for­ma­tion of the United Nations (Article 5), the International Covenant on Civil and Political Rights (Article 7), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Preamble and Article 16), and the Convention on the Rights of Persons with Disabilities (Article 17), among oth­er human rights instru­ments. A grow­ing body of inter­na­tion­al case law sug­gests that extend­ed con­fine­ment on death row under threat of exe­cu­tion con­sti­tutes cru­el, inhu­man, or degrading punishment.

In his dis­sent­ing state­ment in Elledge v. Florida in 1998, Justice Stephen Breyer not­ed that British jurists have sug­gest­ed that the Bill of Rights of 1689 – a key part of English com­mon law that Breyer described as ​“rel­e­vant to the inter­pre­ta­tion of our own Constitution” – may pro­hib­it some delays as cru­el and unusu­al. In a land­mark 1993 rul­ing, the Judicial Committee of the Privy Council – the British court that serves as the high­est appeals court for Caribbean Commonwealth coun­tries – ruled that exe­cut­ing pris­on­ers after they had already spent more than five years on death row was ​“inhu­mane and degrad­ing,” amount­ing to uncon­sti­tu­tion­al dou­ble pun­ish­ment. Such pris­on­ers, the court held, must have their death sen­tences com­mut­ed to life in prison. (The Independent, Nov. 3, 1993).

The committee’s sev­en Law Lords did not rule that the death penal­ty itself was uncon­sti­tu­tion­al. But ​“there is an instinc­tive revul­sion against the prospect of hang­ing a man after he has been held under sen­tence of death for many years,” they wrote. ​“What gives rise to this instinc­tive revul­sion? The answer can only be our human­i­ty. We regard it as an inhu­man act to keep a man fac­ing the agony of exe­cu­tion over a long extend­ed peri­od of time.” (Ibid). The deci­sion, known as the Pratt and Morgan rul­ing, result­ed in the com­mu­ta­tion of scores of death sen­tences in Jamaica, Bermuda, Barbados, and Trinidad and Tobago, cut­ting the death row pop­u­la­tion of English-speak­ing Caribbean nations by more than half. (The Miami Herald, September 8, 1998).

The Supreme Court of Canada, which does not have the death penal­ty, ruled in 2001 that two Canadian cit­i­zens charged with mur­der in Washington state could be extra­dit­ed to the United States only with the guar­an­tee that they would not receive the death penal­ty. The Canadian court found that the poten­tial for long incar­cer­a­tions before exe­cu­tion was a ​“rel­e­vant con­sid­er­a­tion” in deter­min­ing whether extra­di­tion vio­lates prin­ci­ples of ​“fun­da­men­tal jus­tice.” (United States v. Burns, S.C.R. 283, 353, 123, cit­ed in Foster v. Florida, 2002).

In 2009, the President of Kenya com­mut­ed the death sen­tences of all of the coun­try’s more than 4,000 death row pris­on­ers to life, cit­ing the wait to face exe­cu­tion as ​“undue men­tal anguish and suffering.”

Death Row Syndrome/​Death Row Phenomenon

Psychologists and lawyers in the United States and else­where have argued that pro­tract­ed peri­ods in the con­fines of death row can make pris­on­ers sui­ci­dal, delu­sion­al and insane. Some have referred to the liv­ing con­di­tions on death row – the bleak iso­la­tion and years of uncer­tain­ty as to time of exe­cu­tion – as the ​“death row phe­nom­e­non” and the psy­cho­log­i­cal effects that can result as ​“death row syn­drome.” The ori­gins of these con­cepts are often traced to the 1989 extra­di­tion hear­ings of Jens Soering, a German cit­i­zen who was charged with mur­ders in Virginia in 1985 and who fled to the United Kingdom.

Soering argued to the European Court of Human Rights that the con­di­tions he would face dur­ing the lengthy peri­od between sen­tenc­ing and exe­cu­tion would be as psy­cho­log­i­cal­ly dam­ag­ing as torture.

The court agreed. In its rul­ing that he could not be sent to a place that would sen­tence him to death, the court cit­ed not the death penal­ty itself, but rather the ​“Death Row phe­nom­e­non” in which pris­on­ers spent years await­ing exe­cu­tion while their cas­es were appealed. (Associated Press, July 27, 1989). Soering was extra­dit­ed in 1990, but only with the pros­e­cu­tors’ promise not to seek the death penalty.

The Soering case has been cit­ed as prece­dent in inter­na­tion­al extra­di­tion cas­es, though today courts in coun­tries with­out the death penal­ty often will not extra­dite to the United States because of the pos­si­bil­i­ty of exe­cu­tion itself, regard­less of how long the wait on death row, since the death penal­ty itself is seen as a vio­la­tion of human rights.

Conclusion