DPIC Analysis: States Scheduled Ten Executions for October 2019 — Why Nine Did Not Happen

Ten exe­cu­tions were sched­uled to take place in October 2019, more than in any oth­er month in the last two years. As the month closed, how­ev­er, nine of those exe­cu­tions were not car­ried out. The 90% rate of war­rant fail­ures sym­bol­izes the death penalty’s con­tin­u­ing decline and the wide­spread prob­lems states are hav­ing with its imple­men­ta­tion. And with eight active exe­cu­tion dates pend­ing and two oth­er stays of exe­cu­tion in place in November and December, 2019 is near­ly cer­tain to become the fifth con­sec­u­tive year of few­er than 30 exe­cu­tions in the United States.

A DPIC review of the October death war­rants found that four death-row pris­on­ers received stays of exe­cu­tion, two war­rants were with­drawn because of case devel­op­ments, 1 war­rant was halt­ed by reprieve, and there was 1 exe­cu­tion. Two pris­on­ers died on death row, mak­ing their warrants moot. 

As of November 1, 2019, 11 states and the fed­er­al gov­ern­ment had issued death war­rants sched­ul­ing a total of 63 exe­cu­tion dates. Seventeen of those war­rants have result­ed in exe­cu­tions, while 19 exe­cu­tions have been stayed by the courts, 13 oth­ers halt­ed by reprieve, 3 exe­cu­tions ren­dered moot when the pris­on­ers died of oth­er caus­es on death row, and 3 exe­cu­tion dates were with­drawn. In 2018, 37 of the 62 exe­cu­tion dates sched­uled were not car­ried out, or near­ly 60% of death war­rants. In 2017, 60 of the 83 sched­uled exe­cu­tion dates were halt­ed (72.3%).

The October death war­rants were spread across five states and their dis­po­si­tions were illus­tra­tive of sev­er­al con­tentious issues in death penalty cases.

Russell Bucklew was exe­cut­ed in Missouri on October 1, fol­low­ing a divi­sive 5 – 4 United States Supreme Court deci­sion in which the major­i­ty wrote that “[t]he Eighth Amendment, does not guar­an­tee a pris­on­er a pain­less death” and pro­hibits only exe­cu­tions that inten­si­fy the sen­tence of death with ​“superadd[ed] … ter­ror, pain, or dis­grace.” The Court required con­demned pris­on­ers to prove that the state had a sig­nif­i­cant­ly less painful exe­cu­tion method avail­able to end his life, even as it acqui­esced in state secre­cy prac­tices that imped­ed the pris­on­er from demon­strat­ing that such meth­ods might be available.

The next nine exe­cu­tions sched­uled to fol­low Bucklew’s either were halt­ed or were ren­dered moot by the pris­on­ers’ deaths. 

State courts stayed four exe­cu­tions — three by the Texas Court of Criminal Appeals. On September 23, the Texas court halt­ed Stephen Barbee​’s October 2 exe­cu­tion to deter­mine whether to apply to his case a 2018 U.S. Supreme Court deci­sion grant­i­ng a new tri­al to a death-row pris­on­er whose tri­al lawyer had con­ced­ed his guilt against his wish­es. On October 4, the Court of Criminal Appeals stayed the October 10 exe­cu­tion of Randy Halprin and returned his case to the Dallas County courts to adju­di­cate his claim that the vir­u­lent anti-Semitism of his tri­al judge had denied him a fair tri­al before an impar­tial tri­bunal. Then, on October 22, the court called off the October 30 exe­cu­tion of Ruben Gutierrez based on mul­ti­ple defects in the issuance and ser­vice of the death war­rant. Ray Jefferson Cromartie, also sched­uled to be exe­cut­ed on October 30, received a day-of-exe­cu­tion stay from the Georgia Supreme Court, also based upon irreg­u­lar­i­ties in the issuance of his death war­rant. Georgia pros­e­cu­tors obtained a new death war­rant for Cromartie on November 1, resched­ul­ing his exe­cu­tion for the week of November 13. 

Case devel­op­ments led state courts to with­draw two October death war­rants. Ohio had sched­uled Angelo Fears for exe­cu­tion on October 17. But on May 22, 2019, pros­e­cu­tors reached an agree­ment with the defense in which Fears’ death sen­tence was vacat­ed and he was resen­tenced to life. In turn, on June 24, the Ohio Supreme Court vacat­ed his death war­rant. Later, on October 3, a Texas coun­ty court judge with­drew the death war­rant that had sched­uled Randall Mays to die on October 16, amid con­cerns that Mays may be mentally incompetent.

The exe­cu­tions of Tennessee death-row pris­on­er Charles Walton Wright and Ohio death-row pris­on­er Jason Dean were moot­ed by their deaths. Wright, who was sched­uled to be exe­cut­ed October 10, died May 17, 2019. Dean, sched­uled for an October 23 exe­cu­tion, died March 23, 2019. Another Ohio exe­cu­tion date, sched­uled long in advance, was removed by virtue of a reprieve grant­ed by for­mer Governor John Kasich in September 2017. At that time, Kasich resched­uled James Frazier​’s October 17 exe­cu­tion for October 20, 2021. 

Ohio has been plagued by dif­fi­cul­ties in obtain­ing exe­cu­tion drugs, and Gov. Mike DeWine has said he will not place state med­ical ser­vices at risk by divert­ing med­i­cines pur­chased by oth­er state agen­cies for ther­a­peu­tic pur­pos­es to the Department of Correction for use in exe­cu­tions. On October 30, cit­ing the lethal-injec­tion drug prob­lem, DeWine issued reprieves post­pon­ing Ohio’s next two executions.

Although Texas courts halt­ed all four exe­cu­tions it had sched­uled for October, it has already exe­cut­ed 7 pris­on­ers in 2019 and has four more exe­cu­tions sched­uled for November and December. With October’s devel­op­ments, none of the 18 exe­cu­tion dates set for Ohio pris­on­ers in 2019 will be carried out.