2018 was a record-low year for death-penalty usage in the United States, as nineteen death-penalty states set or matched records for the fewest new death sentences imposed in the modern history of U.S. capital punishment. (Click on map to enlarge.) Thirty-six U.S. states—including seventeen that authorized capital punishment in 2018—did not impose any death sentences in 2018, while California and Pennsylvania, which collectively account for nearly one-third of the nation’s death-row population, imposed record lows. Every western state except Arizona set or tied a record low, and Arizona, which imposed two new death sentences, was just one above its record low. Several southern states that were once among the heaviest users of capital punishment have now gone years without imposing any new death sentences.
For the first time in its modern history, North Carolina has gone two consecutive years without a death sentence, and it has imposed one new death sentence in the past four years. Only three capital trials took place in the state in 2018, and jurors rejected the death penalty in each. Gretchen Engel, executive director of North Carolina’s Center for Death Penalty Litigation, said, "Jurors are turning away from the death penalty and, in response to less favorable jury pools, prosecutors are seeking the death penalty less. And so, this trend away from the death penalty is really being led by citizens who've been summoned for jury duty." In Wake County (Raleigh), one of the 2% of U.S. counties that was responsible for a majority of death-row prisoners as of 2013, the last nine capital trials—including one in 2018—have resulted in life sentences. According to the North Carolina Office of Indigent Defense Services, taxpayers would have saved $2.4 million if prosecutors had not sought the death penalty in those cases. For the seventh consecutive year, Virginia did not sentence anyone to death in 2018. Though second only to Texas in the number of executions, Virginia has seen a dramatic decline in death sentences since establishing regional capital defender offices to provide quality representation to capital defendants. Georgia and South Carolina each marked four years with no new death sentences, a change that can also be attributed, at least in part, to improved representation.
Two of the states with the nation’s largest death rows, California and Pennsylvania, had historically low numbers of death sentences in 2018. California imposed only five death sentences, its fewest since reinstating the death penalty in 1978 and 38 fewer than its peak of 43 in 1999. Pennsylvania imposed a single death sentence for only the second time in the modern era. The previous year in which only one sentence was imposed was 2016. Neither state has carried out an execution in more than a decade, but California has the largest death row in the U.S., with 740 prisoners, and Pennsylvania has the fifth-largest, with 160.
The R Street Institute, a Washington-based policy think tank, has joined the growing number of conservative voices advocating for death-penalty abolition. In a commentary in the November/December 2018 issue of The American Conservative, the institute’s criminal justice and civil liberties policy director Arthur Rizer (pictured, left) and its Southeast region director Marc Hyden (pictured, right) argue that “the closer conservatism remains to its core values, the more credibility it brings to the table,” and that the core values of conservatism—promoting “government restraint, fiscal responsibility, morality, and public safety”—ideally situate conservatives to “champion capital punishment’s demise.” “If conservatives want to convince others that a smaller, more nimble government is best,” Rizer and Hyden write, “then those values should be reflected in all policy areas, including the death penalty.”
Rizer’s and Hyden’s argument against capital punishment starts from the premise that “skepticism of state power is at the heart of the American identity and conservative philosophy.” This, they write, is “for good reason. The United States government has a history of incompetence and malfeasance.” Criminal justice policies, they say, should not be immune from the traditional conservative “suspicion of government”—particularly policies such as capital punishment, in which “the United States has a track record of acting in an arbitrary and biased fashion.” Addressing issues ranging from racial bias, the possibility of executing an innocent person, the costs of capital punishment, its failure to make society safer, and the mistrust of big government, the article catalogues why the authors believe conservatives should oppose the death penalty.
On race, Rizer and Hyden write: “The simple matter is that the death penalty has an extensive history of overt bias.” Despite the advances of the civil rights movement, they say, “we still have not been able to banish the bias that permeates the justice system. … Justice must not only be blind, but also color blind.” In the U.S., however, “a murder victim’s race also seems to influence whether or not the accused will be put to death,” the authors write, leaving the implication “that, at least through the criminal justice lens, some lives are more valuable than others.” The death penalty, they write, falls short on another core conservative belief, “that the government is too often inefficient and prone to mistakes." They ask: “Why should the death penalty’s administration by government bureaucrats be any different?” Recognizing the certainty that there will be some wrongful convictions, they say the death penalty carries with it inevitably “irreversible consequences.” “Conservatives take great pride in championing the sanctity of life and respecting its intrinsic value," but—citing historical evidence of wrongful executions and data showing that there is one exoneration for every nine executions in the U.S.—the authors say, “a death penalty system that repeatedly and unnecessarily risks innocent lives does neither.” Likewise, they say, “numerous cost studies have examined the death penalty’s expense and found that it far outweighs the price of life without parole (LWOP).… Given the death penalty’s high costs compared to LWOP, it’s clear that capital punishment is antithetical to fiscal conservatism.”
The article concludes by urging conservatives to adhere to their core values in judging the death penalty: “Conservatives should return to the root principles of liberty and dignity to ensure that the criminal justice system is fair, just, and respects life…. Perhaps more than anything else, opposition to the death penalty should boil down to a lack of faith in a woefully error-prone government. After all, how willing are you to trust your life to this system?”
Empowered by the results of the November 2018 mid-term elections, legislatures in at least four states are poised to renew efforts to repeal their states’ death-penalty statutes or drastically reduce the circumstances in which capital punishment is available. State legislative and gubernatorial elections in Colorado, Nevada, New Hampshire, and Oregon have redefined the local political landscape in 2019 in ways that death-penalty abolitionists say have made those bills more likely to succeed. Colorado and Oregon already have moratoria on the death penalty, but legislators in both states are expected to move forward with bills abolishing or further restricting its use. In New Hampshire, where legislators voted to repeal the death penalty in 2018 but were unable to override a gubernatorial veto, the newly-elected legislature may now have the two-thirds supermajority necessary to override. And in Nevada, where a state court found that corrections officials had engaged in “subterfuge” in attempts to obtain execution drugs, voters elected a governor who has expressed concerns about capital punishment, and legislators say they will propose an abolition bill.
In Colorado, Gov. John Hickenlooper, who imposed a moratorium on executions in May 2013, was barred by term limits from seeking reelection. Voters elected Democrat Jared Polis (pictured, left), who said during the gubernatorial campaign that he would sign a bill to abolish or phase out the state’s death penalty, and Democrats gained control of both houses of the state legislature. Fort Collins State Rep. Jeni Arndt, who plans to sponsor the repeal bill, said she is seeking bipartisan support for the measure, noting that “If [prosecutors] can’t get the death penalty for the Aurora theater shooter, then this is a waste of taxpayer time and money.” Outgoing senate minority leader Lucia Guzman, a past sponsor of repeal legislation, said “I have worked on this issue for several years but wasn’t able to get it passed. But I think this year is going to be the year.”
Mid-term changes to the composition of the New Hampshire legislature have increased the likelihood that the Granite State will repeal its death penalty in 2019, despite another promised veto by Gov. Chris Sununu. State Rep. Renny Cushing (pictured, right), whose repeal bill received bipartisan legislative support in 2018, is reintroducing the measure in 2019. Voters elected a veto-proof majority of sixteen abolitionist senators in November. In the state house, where the repeal bill received just under the two-thirds supermajority necessary to overcome a veto in 2018, backers of abolition are optimistic they will have even more support in 2019.
In Oregon, voters reelected Gov. Kate Brown, who pledged to extend the state’s moratorium on executions, and elected Democratic supermajorities in both houses of the state legislature. With the state constitution requiring a voter referendum to abolish the death penalty, legislators are instead seeking bipartisan support for a plan to limit capital punishment only to acts of terrorism. In Nevada, Governor-elect Steve Sisolak, who defeated state attorney general and death-penalty proponent Adam Laxalt, has indicated he is willing to sign a bill to abolish the death penalty. Assemblyman Ozzie Fumo, who favors repeal, said he expects the legislature to consider an abolition bill or to request that the governor impose a moratorium on executions. “There’s a social change coming,” Fumo said. “Overwhelmingly, we’re going to see people think about it, and say this is wrong.”
Death-row exoneree Ron Keine (pictured) reflects on spending the holidays on death row:
It is Christmas time on the row. At night I can hear the muffled sounds of a grown man crying in his pillow. His trusty pillow which is his only safe confidant as emotions are seen as weakness in prison and can even get you killed. Everywhere in the world it is a time for happiness, a time to rejoice, but here on death row it is depression and sadness in the very souls of us death row denizens.
I miss the excitement of the mythical but harmless prevarications and fibs employed to instill the concept of Santa Claus in the quizzical minds of children. Memories that will last a lifetime. The legacy of elves and fairies.
Awkward sadness permeates every molecule of the stone and steel that surrounds us. That stone and steel that separates us from our loved ones at this solemn time of year. While the children are opening presents on Christmas morning, reveling in bliss, miles away in some forgotten dungeon cell, a tear runs down my cheek. As the family sits down, heads bowed for the meal’s prayer, I sit alone on my steel bunk and try to picture the lone bare table setting that my mother arranged in my honor. There will be no Christmas dinner for me this year. My prison issued dinner looks sickening as it defiantly slides down the windows and walls outside of my cell as if it was trying to rejoin the steel tray laying on the floor beneath it.
Why must I suffer like this? Why am I here? It will be almost another year before I will be exonerated when it is discovered that the prosecutor hid the evidence of my innocence and manufactured the case against me. I have done nothing to deserve this, but I feel helpless to change the situation. That arrogant prosecutor is probably sitting next to a beautiful Christmas tree, opening the presents with his children while I sit in despair. Who is the real criminal here?
I must fight these emotions or they will drag me down even deeper in this pit of loneliness. I must cast them off before they become too much of a burden to bear. Before I get so mired down in this hopelessness that I become like Larry, down in cell 14 who succumbed to the pressures and hung himself yesterday.
Yes, the following year would bring both my exoneration, and that of my best friend Doc who had occupied the cell next to mine. It would also bring Doc’s suicide.
It’s 40 Christmases later now, and I still remember the pain, loneliness, and sense of helplessness of that place. I remember those who were with me on death row, often think of those there now, and never forget the families who are suffering alongside but apart from their incarcerated loved ones.
In the latest podcast episode of Discussions with DPIC, members of the DPIC staff discuss key themes from the 2018 Year End Report. Robert Dunham, Ngozi Ndulue, and Anne Holsinger delve into the major death-penalty trends and news items of the year, including the “extended trend” of generational lows in death sentencing and executions, election results that indicate the decline will likely continue, and the possible impact of Pope Francis’s change to Catholic teaching on capital punishment. They explore the reasons for reduced death-penalty usage, highlighting the stories of people who were exonerated in 2018, the theme of executing people with characteristics that make them vulnerable to unfair legal proceedings, and the ongoing controversy surrounding execution methods.
DPIC Executive Director Robert Dunham noted the importance of the shrinking death-row population, saying, “Death row is declining in size even as the number of executions is declining, which suggests that the decline is a result of the erosion of capital punishment, as opposed to it actually being carried out.” He explains the lack of death sentences in several traditional death-penalty states, including Virginia, North Carolina, South Carolina, and Georgia. “The biggest change is the availability of quality indigent defense,” Dunham said, adding that the adoption of life without parole as a sentencing option has also been a major contributing factor.
Dunham addresses the theme of inadequate legal process, saying that the current system fails to ensure that prisoners’ constitutional rights are fully upheld. “If we want the death penalty in the United States, ... it’s imperative that it be able to accurately assess whether somebody was fairly tried, whether somebody was fairly sentenced, and whether the individual deserves to live or die,” he said. Those procedural failures, and the secrecy that surrounds executions, have created a “distrust” among the public that Dunham predicts with have a “prolonged and lingering effect.” “In 2018, death sentences were down, executions were down for a variety of reasons, but I think one of the reasons that’s going to last and contribute to a continued reduction in the future is that more and more people think that we can’t trust the states to carry it out,” Dunham concluded.
Florida courts have refused death-row prisoners access to DNA testing seventy times, denying 19 men – eight of whom have been executed – any testing at all and preventing nine others from obtaining testing of additional evidence or more advanced DNA testing after initial tests were inconclusive. For a six-part investigative series, Blood and truth: The lingering case of Tommy Zeigler and how Florida fights DNA testing, Tampa Bay Times Pulitzer-prize winning investigative journalist Leonora LaPeter Anton reviewed more than 500 cases in which Florida’s defendants were sentenced to death. Her investigation disclosed that even after Florida adopted a DNA testing law in 2001, court rulings have continued to create barriers to obtaining testing that could potentially prevent wrongful executions. “Almost 20 years later,” she wrote, “some prosecutors routinely fight DNA requests, especially in high-profile death row cases, and the courts often fail to intervene.” According to Innocence Project of Florida executive director Seth Miller, “[i]n 2018, it is just as hard to get post-conviction DNA testing as it was before we had a post-conviction DNA testing law, and that’s completely upside down.”
The investigative series focuses on the case of Tommy Zeigler (pictured), who has maintained his innocence throughout the 42 years in which he has been on Florida’s death row. On Christmas Eve in 1975, Ziegler was shot and his wife, her parents, and a man who served as Ziegler’s handyman were murdered in Ziegler’s furniture store in Winter Garden, Florida. Ziegler was charged with the murders. The Times series describes the controversial trial and questionable evidence in his case in detail. Ultimately, the jury convicted Zeigler but took less than half an hour to recommend that he be sentenced to life. The trial judge overrode their decision and sentenced Zeigler to death.
Zeigler has sought DNA testing six times. In 2001, he was granted limited testing, which, Anton reports, “appeared to support his story that he was a victim of a robbery at his furniture store.” However, even though Ziegler’s lawyers have offered to defray the entire cost of DNA analysis, Florida’s courts have refused to grant him a more advanced type of DNA testing that is now routinely available in murder cases. Ziegler’s lawyers have already presented evidence discrediting some of the key prosecution witnesses and demonstrating the implausibility that Ziegler could have shot himself through the stomach to fake his own victimization. They argue that the DNA evidence would prove his innocence and, at a minimum, transform the rest of the prosecution’s case by proving that the testimony the prosecution presented was false.
Twenty-eight Florida death-row prisoners have been exonerated, more than in any other state. In 90% of the more than twenty exonerations for which the jury vote is known, jurors had not unanimously recommended death and had in some cases – like Ziegler’s – recommended life. Former Republican state senator J. Alex Villalobos, who helped write Florida’s DNA statute, told Anton that the law was designed to remove doubts as to guilt and that the prisoners should be given access to DNA testing. Death Penalty Information Center executive director Robert Dunham agreed, telling the Times, “If we’re interested in the truth and interested in avoiding executing the innocent, we need to be allowing this kind of testing.”
In March 2018, Alabama enacted a new law authorizing the use of nitrogen gas as an alternative method of execution. Although lethal injection remained the primary method of execution, the law provided condemned prisoners a limited opportunity to designate nitrogen asphyxiation (hypoxia) as the means of their death. The availability of execution by nitrogen gas led to a July 2018 settlement of a federal lawsuit Alabama’s death-row prisoners had filed that had challenged the constitutionality of the state’s three-drug lethal injection protocol as constituting cruel and unusual punishment. But nine months after the law was enacted and five months after the prisoners opted for execution by lethal gas, Alabama has not yet issued a protocol explaining how it intends to conduct nitrogen-gas executions, and there are no clear indications as to when the state will do so.
No state has carried out an execution through nitrogen hypoxia, although three states – Alabama, Mississippi, and Oklahoma – now authorize its use if lethal injection is held unconstitutional or determined to be unavailable. Alabama also permits its use if the prisoner selects lethal gas over lethal injection. Other forms of lethal gas, all involving a gas chamber, have been used in 11 of the 1,490 executions carried out in the United States since executions resumed in 1977. However, none of the states authorizing the use of nitrogen gas has issued a nitrogen-gas execution protocol nor have the states indicated whether they plan to construct a vacuum chamber or use some form of a death mask to administer the gas.
The Alabama legislature turned to nitrogen gas as an alternative to lethal injection in response to difficulty obtaining appropriate drugs for lethal injection and a series of botched or visibly problematic lethal-injection executions using the drug midazolam. In February 2018, the execution of Doyle Lee Hamm was called off after an Alabama execution team failed for two-and-a-half hours to find a suitable vein in which to place an intravenous execution line. In October 2017, witnesses to the 35-minute execution of Torrey McNabb reportedly “expressed repeated concerns to each other that he was still conscious during the lethal injection.” Witnesses also reported that Ronald Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period of his 34-minute execution in December 2016. In November and December 2018, two Tennessee death-row prisoners elected to be executed in the electric chair after a medical expert reported that Billy Ray Irick had not been properly anesthetized and experienced the torturous effects of the second and third lethal-injection drugs while still conscious during a prolonged midazolam execution
After a gas protocol is promulgated, it will still be subject to court challenges based upon the particular method chosen. The Alabama Department of Corrections has said it is “continuing to develop the protocol” in conjunction with the Alabama Attorney General's Office.
With the support of a record 120 nations, the United Nations General Assembly adopted a resolution on December 17, 2018 calling for a worldwide moratorium on the death penalty. The resolution expressed “deep concern” over the use of the death penalty and urged those countries that continue to use it to take action to ensure that death sentences are not the product of discriminatory or arbitrary laws or practices. The moratorium resolution, proposed this year by Brazil and co-sponsored by 83 nations, marked the seventh time since 2007 that the global body has formally called for an end to executions. When Italy sponsored the first resolution, it drew the support of 105 countries. This year, the recorded vote was 121-35 in favor, with 32 abstentions. However, Pakistan’s Foreign Office later said that its apparent vote in favor of the resolution had been miscounted.
The UN General Assembly last considered a moratorium resolution during its 2016 session. At that time, 117 countries voted in favor. Dominica, Libya, and Malaysia voted in favor of the resolution for the first time this year, and Antigua and Barbuda, Guyana, and South Sudan moved from opposition to abstention. According to Amnesty International, 139 of the 193 UN member states are abolitionist in law or in practice. Amnesty International Death Penalty Expert Chiara Sangiorgio said in a statement, “The fact that more countries than ever before have voted to end executions shows that global abolition of the death penalty is becoming an inevitable reality. A death penalty-free world is closer than ever.”
On the same day as the UN vote, Pope Francis met with a delegation from the International Commission Against the Death Penalty and reiterated his unequivocal opposition to the death penalty. In a statement prepared for the meeting, the Pope called the death penalty “a consequence of a mentality of the time – more legalistic than Christian – that sanctified the value of laws lacking in humanity and mercy.” He explained the recent revision of the Church’s catechism, saying, “The church could not remain in a neutral position in the face of today’s demands to reaffirm personal dignity.” He urged countries that continue to use the death penalty to adopt a moratorium, with the eventual goal of abolition.
Six former governors have urged California Governor Jerry Brown (pictured) to “be courageous in leadership” and grant clemency to the 740 men and women on California’s death row before he leaves office on January 7, 2019. In a December 13 op-ed in the New York Times, the former governors—Ohio’s Richard Celeste, Oregon’s John Kitzhaber, Maryland’s Martin O’Malley, New Mexico’s Bill Richardson and Toney Anaya, and Illinois’s Pat Quinn—wrote that “Mr. Brown has the power to commute the sentences of 740 men and women, to save 740 lives. ... Such an act will take political will and moral clarity, both of which Mr. Brown has demonstrated in the past. In the interest of his legacy, the people of California need his leadership one more time before he leaves office.”
The governors called signing a death warrant “a terrible responsibility, hard even to imagine until you’re asked to carry it out, as we were. But we became convinced that it wasn’t something a civilized society should ask of its leaders. That’s why we halted executions in our states, and we call on Gov. Jerry Brown of California to do the same.” Each of the former governors granted clemency to at least one death-row prisoner during their tenures in office, and Anaya, O’Malley, and Quinn commuted the death sentences of all the prisoners on their states’ death rows. The ex-governors said, “we know it must weigh on Mr. Brown that, unless he acts soon, he will leave behind 740 men and women on California’s death row. It’s a staggering number and our hearts go out to him. From a humanitarian perspective, it is horrifying to imagine executing that many humans. As a practical matter, it’s beyond comprehension. ... If the state were to execute a single person every day, people would still be waiting on death row after two years.”
In late November, three former Ohio governors, Richard Celeste, Bob Taft, and Ted Strickland gave a joint interview to the Columbus Dispatch in which each told the paper that the toughest burden he had to bear as governor was deciding whether a condemned prisoner should live or die. Celeste commuted the death sentences of eight prisoners—four men and all four women on the state’s death row—towards the close of his second term. Although no one was executed during his eight years in office, Celeste said, “[a]s I look back on it, if I had really ... been bold, I would have ... just sa[id], ‘I’m going to commute them all to life [sentences], without the benefit of parole.’” Strickland said his biggest regret was not stopping executions in his state. “I wish I had done what my friend Jay Inslee, who’s the governor of Washington state, did when he became governor. He just said, ‘There will be no executions as long as I’m the governor of the state of Washington.’ And I wish I had had the courage to make that decision.” Strickland granted clemency five times, but allowed 17 executions to go forward. “I’m just convinced as long as we have the death penalty, innocent people are going to lose their lives .... [O]ur judicial system has serious problems that need attention,” he said.
In their New York Times op-ed, the six former governors wrote: “The achievement of high office demands that one be courageous in leadership. Mr. Brown now has the chance to do what others in our ranks have done after they became aware of the price paid for taking a human life. We were compelled to act because we have come to believe the death penalty is an expensive, error-prone and racist system, and also because our morality and our sense of decency demanded it.” Brown, they said, should commute California's entire death row or “declare a moratorium on the death penalty and give Governor-elect Gavin Newsom the time he will need to figure out how to end a system broken beyond repair.” At an international conference on the death penalty at the Italian Parliament in November, the Community of Sant’ Egidio—a Catholic group with close connections to Pope Francis—and representatives of 25 countries, including the justice ministers of South Africa, Benin, Zimbabwe and Malaysia also called upon Brown to commute all death sentences in the state before leaving office.
The long-term decline of death-penalty use in the U.S. continued in 2018, as a twentieth state abolished capital punishment and executions and new death sentences remained near generational lows. On October 11, the Washington State Supreme Court struck down the state’s death penalty, finding that it was imposed arbitrarily and in a racially discriminatory manner. Washington became the eighth state to legislatively or judicially abolish the death penalty since 2007. According to the Death Penalty Information Center’s 2018 Year End Report, fourteen states and the federal government have imposed a total of 41 new death sentences this year, with one more death sentence anticipated towards the end of the year. Eight states carried out a total of 25 executions.
The executions and death sentences extended a long decline in capital punishment, with fewer than 30 people executed and fewer than 50 sentenced to death in each of the last four years. Before this four-year period, neither had happened in a quarter century. For the first time since death sentencing resumed in the U.S. in 1973, no U.S. county imposed more than two death sentences. The death penalty remained geographically isolated, with most executions carried out in a few southern states. More than half (13) were in Texas, and the nine executions carried out in the rest of the country were the fewest executions in those 49 states since 1991.
The declining usage of capital punishment, however, did not redress concerns about the manner of its application. “Death sentences have been dropping over the course of the last 25 years and the hope always had been that as use of the death penalty declined, it would be imposed in a way that would be less arbitrary and less discriminatory,” Death Penalty Information Center Executive Director Robert Dunham told the Houston Chronicle. “That hasn’t happened, and in many respects it’s gotten worse.” A review of the 2018 executions by DPIC and the Promise of Justice Initiative found that 72% of the prisoners executed showed evidence of serious mental illness, brain damage, intellectual impairment, or chronic abuse and trauma, and four were executed despite substantial innocence claims.
Public opinion polls in 2018 also showed that support for the death penalty remained near historic lows, with 56% of Americans saying they support capital punishment (down from 80% in the 1990s). For the first time since Gallup began asking about the fairness of capital punishment in 2001, fewer than half of Americans (49%) said they believe it is fairly applied. Election results confirmed the reduced public appetite for the death penalty. The three states with death penalty moratoria (Colorado, Oregon, and Pennsylvania) elected governors who will continue those policies. Prosecutors in six counties known for the heavy use of the death penalty were defeated, replaced in most case with candidates who ran on reform platforms pledging to use the death penalty sparingly, if at all. Since 2015, voters in 11 of the 30 most prolific death-sentencing counties have replaced their prosecutors.
“America continued its long-term movement away from the death penalty in 2018,” Dunham said. “Even in the face of inflammatory political rhetoric urging its expanded use, voters showed that the death penalty is no longer a political wedge issue. The reelection of governors who imposed death penalty moratoria, the replacement of hardline pro-death-penalty prosecutors with reformers, and Washington’s court decision striking down its death penalty suggest that we will see even greater erosion of the death penalty in the years ahead.”