DPIC Analysis: Death Penalty Erosion Spreads Across the Western United States in 2019

In a year of declin­ing death-penal­ty usage across the United States, nowhere was the ero­sion of cap­i­tal pun­ish­ment as sus­tained and pro­nounced in 2019 as it was in the west­ern United States. Continuing a wave of momen­tum from Washington​’s judi­cial abo­li­tion of cap­i­tal pun­ish­ment in October 2018, one state halt­ed exe­cu­tions and dis­man­tled its death cham­ber, anoth­er cleared its death row, two cut back on the cir­cum­stances in which the death penal­ty could be sought and imposed, and the entire region set record lows for new death sen­tences and executions.

Calling cap­i­tal pun­ish­ment in California — the nation’s largest death-penal­ty state — ​“by all mea­sures, a fail­ure,” Governor Gavin Newsom announced in March 2019 that he was impos­ing a mora­to­ri­um on exe­cu­tions and clos­ing down its exe­cu­tion cham­ber. Newsom said the state’s death penal­ty ​“has dis­crim­i­nat­ed against defen­dants who are men­tal­ly ill, black and brown, or can’t afford expen­sive legal rep­re­sen­ta­tion. It has pro­vid­ed no pub­lic safe­ty ben­e­fit or val­ue as a deter­rent. It has wast­ed bil­lions of tax­pay­er dol­lars. But most of all, the death penal­ty is absolute. It’s irre­versible and irrepara­ble in the event of human error.”

California was the fourth west­ern state in less than a decade in which gov­er­nors had halt­ed exe­cu­tions, and the move set aside the threat of immi­nent exe­cu­tion for more than 700 death-row pris­on­ers, com­pris­ing more than a quar­ter of the entire U.S. death-row pop­u­la­tion. California joined fel­low west­ern states Colorado, Oregon, and Washington in putting exe­cu­tions on hold, and Newsom expressed hope that the mora­to­ri­um would be an inter­im step towards the goal of repeal­ing the state’s death penalty.

Historically, the West has account­ed for few­er than 6% of exe­cu­tions in the United States since 1976. But exe­cu­tions have halt­ed com­plete­ly in the region in recent years. 2019 marked the fifth con­sec­u­tive year with no exe­cu­tions west of Texas. Alaska, Hawaii, and New Mexico have no death penal­ty. California, Colorado, Montana, Nevada, and Oregon have not exe­cut­ed any­one in more than a decade, and will be joined by Utah in June 2020. New death sen­tences are also at his­toric lows for the region. The four new death sen­tences imposed in 2019 were the fewest in the West since California rein­stat­ed its death penal­ty in 1977, and fell by half from the pri­or record low set in 2018. Only three coun­ties west of Texas sen­tenced any­one to death. (Click here to enlarge map.)

Courts and leg­is­la­tures across the west also chipped away at the region’s use of capital punishment.

In June, the New Mexico Supreme Court cleared the state’s death row, resen­tenc­ing its two remain­ing pris­on­ers to life in prison a decade after the state leg­is­la­ture had prospec­tive­ly abol­ished cap­i­tal pun­ish­ment. Relying on a state-law require­ment that death sen­tences be pro­por­tion­al to pun­ish­ments imposed in sim­i­lar cas­es, the court found ​“no mean­ing­ful dis­tinc­tion” that jus­ti­fied the death penal­ty for the two pris­on­ers still on death row as com­pared to ​“oth­er equal­ly hor­ren­dous cas­es in which defen­dants were not sen­tenced to death.”

In August, call­ing the state’s death penal­ty ​“dys­func­tion­al,” ​“cost­ly,” and ​“immoral,” Oregon Governor Kate Brown signed a bill sig­nif­i­cant­ly lim­it­ing the crimes for which cap­i­tal pun­ish­ment can be imposed in the state. The new law reduced the cat­e­gories of mur­der pun­ish­able by death in the state from 19 to four. The death penal­ty now can be imposed only in cas­es involv­ing acts of ter­ror­ism in which two or more peo­ple are killed, pre­med­i­tat­ed mur­ders of chil­dren aged thir­teen or younger, prison mur­ders com­mit­ted by those already incar­cer­at­ed for aggra­vat­ed mur­der, and pre­med­i­tat­ed mur­ders of police or correctional officers.

Arizona also reduced the cir­cum­stances in which the death penal­ty could be imposed, elim­i­nat­ing death-eli­gi­bil­i­ty in cir­cum­stances that had been repeat­ed­ly chal­lenged as vague or over­broad: when the defen­dant ​“know­ing­ly cre­at­ed a grave risk of death” to some­one in addi­tion to the mur­der vic­tim or the mur­der was com­mit­ted ​“in a cold, cal­cu­lat­ed man­ner with­out pre­tense of moral or legal justification.”

Abolition move­ments appeared to gain momen­tum in sev­er­al state leg­is­la­tures, though each effort at repeal ulti­mate­ly stalled in 2019. In Wyoming, a bipar­ti­san abo­li­tion bill passed the House and a Senate leg­isla­tive com­mit­tee, receiv­ing sig­nif­i­cant Republican sup­port in one of the country’s most con­ser­v­a­tive leg­is­la­tures. The bill failed by an 18 – 12 vote before the full Senate but gar­nered the sup­port of 1/​3 of Senate Republicans. Colorado’s repeal bill failed amid crit­i­cisms that the pro­pos­al was being rushed through the leg­is­la­ture. Proponents vowed to try again, adopt­ing a more con­cil­ia­to­ry and bipar­ti­san tone. The Intercept reports that leg­isla­tive move­ments to repeal the death penal­ty are also active in Montana, Nevada, and Utah.