Nevada death-row prisoner Scott Dozier (pictured), who unsuccessfully tried to force the state to execute him, was found dead in his prison cell on January 5, 2019 of an apparent suicide. News reports indicated that Dozier had hanged himself. Dozier had told the court and several reporters that he would rather die than spend life in prison and had attempted to speed up his execution by dropping his appeals. However, his prior suicide attempt raised questions about his mental state and his competency to waive appeals.
Dozier’s case gained national attention when Nevada proposed to execute him with an untested fentanyl-based drug combination after it was unable to replace its expired supplies of the drugs authorized under its prior execution protocol. He would have been the first person ever executed using fentanyl. Though steadfast in seeking execution, Dozier initially allowed federal public defenders to challenge the constitutionality of the new drug protocol. That challenge resulted in two stays of execution in 2017, after the trial judge found that the use of the paralytic drug cisatracurium in combination with diazepam (Valium) and fentanyl could cause Dozier to experience “air hunger” and suffocate to death, while masking signs that he was conscious and suffering during the execution. The court authorized the execution if Nevada dropped the paralytic drug, but Nevada appealed, prompting Dozier to write to the state judge who had halted his execution that “I’ve been very clear about my desire to be executed ... even if suffering is inevitable.” Court filings in a prior lawsuit challenging Dozier’s isolation in prison revealed that he had previously attempted suicide after having been denied recreation time, communication with his family, and consultation with his legal counsel. The state argued at that time that Dozier’s isolation was necessary to protect him from self-harm.
The Nevada Supreme Court later vacated the lower court’s stay order on procedural grounds, clearing the way for a second death warrant, which was issued in June 2018. Eight days before the July 11, 2018 execution, Nevada changed its drug formula again, and drug manufacturer Alvogen filed suit against the state for allegedly obtaining a supply of its sedative, midazolam, “by subterfuge” to circumvent the company’s restrictions against sales of its products for use in executions. A Clark County District Judge halted Dozier’s execution, agreeing with Alvogen that Nevada had misrepresented its intended use of the drugs and purchased them in “bad faith” through subterfuge. The court barred the state from using the drugs obtained from Alvogen in any execution. At the time of Dozier’s death, state prosecutors had not yet decided whether to appeal that order. Nevada prison officials had recently placed Dozier in solitary confinement, purportedly for self-protection.
As he prepared for retirement, the long-time director of the Georgia Bureau of Investigation (GBI) said he does not support the death penalty and believes the punishment is on its way out in Georgia and across the country. In a television interview on his final day of work as GBI director, Vernon Keenan (pictured) told WXIA-TV, Atlanta’s NBC television affiliate, that he has “never believed in the death penalty” and “[t]he day will come when we won’t have the death penalty in Georgia and in the United States.”
Keenan, a 45-year veteran of law enforcement who has run the state criminal justice agency for the past sixteen years, called the death penalty outdated and ineffective in advancing public safety. Keenan said, “I don’t believe the death penalty deters anyone. The people that commit crime, they don’t believe they’re going to get caught. The death penalty is just a way society gets retribution from the criminal.” He told WXIA that he believes declining public support for capital punishment will ultimately lead elected officials to reconsider whether the death penalty should remain part of the state’s criminal code.
Keenan’s belief that the death penalty is not a deterrent reflects the widely held beliefs of many senior criminal justice personnel. A 2008 study found that 88% of the nation’s leading criminologists believe the death penalty is not an effective deterrent to crime and that three-quarters of them believed that debates over the death penalty “distract legislatures from real crime solutions.” A 2008 poll of 500 police chiefs in the United States, commissioned by DPIC, found that police chiefs rank the death penalty lowest among crime fighting options as “most important for reducing violent crime.” The chiefs believed that increasing the number of police officers, reducing drug abuse, and creating a better economy were all more important in reducing crime. More than two-thirds (69%) said that “[p]oliticians support the death penalty as a symbolic way to show they are tough on crime.” “I believe life in prison without parole is punishment enough,” Keenan said. “Probably worse than death.”
Georgia was one of only eight states to carry out executions in 2018. No Georgia jury has recommended a new death sentence since 2014.
Nations that abolish the death penalty then tend to see their murder rates decline, according to a December 2018 report by the Abdorrahman Boroumand Center, a Washington, DC-based organization that promotes human rights and democracy in Iran. The report examined murder rates in 11 countries that have abolished capital punishment, finding that ten of those countries experienced a decline in murder rates in the decade following abolition. Countries were included if they met the following criteria: they had formally abolished the death penalty at least ten years ago, at least one death sentence had been imposed or carried out in the decade prior to abolition, and murder rate data was available from the World Trade Organization. The countries that met the study’s criteria were Azerbaijan, Bulgaria, Poland, Serbia, Estonia, Latvia, Ukraine, South Africa, Kyrgyzstan, Georgia, and Albania. (Click image to enlarge.)
The researchers compared murder rates in the ten years after abolition of the death penalty to the baseline rate in the year of abolition. Six of the abolitionist countries experienced murder rates below the baseline all ten years following abolition. Four countries had either one or two years in which murder rates were higher than in the year of abolition, but saw murders fall below the baseline within five years and experienced overall downward trends. Only one country in the study, Georgia, saw murder rates trend upwards in the decade following abolition. One decade after abolition, the murder rates in these countries declined by an average of six murders per 100,000 population. The authors conclude, “Death penalty advocates’ fears that the state relinquishing the ultimate punishment will embolden potential criminals, or at least weaken deterrence, prove to be unfounded in light of this evidence.”
The data is consistent with state-level data in the United States, which has repeatedly shown lower murder rates in states that do not have the death penalty than in states that do and that the presence or absence of the death penalty does not appear to affect murder trends. A 2017 DPIC analysis found that abolishing the death penalty had no measurable effect on murder rates in general or the rate at which police officers are killed, contradicting popular arguments that the death penalty is necessary for public safety and to protect law enforcement officials.
The Florida Supreme Court issued rulings in thirteen death penalty cases in the last two weeks of 2018, upholding convictions and death sentences in ten, reversing one death sentence, remanding one case for a new hearing on intellectual disability, and allowing limited DNA testing in another case. The most notable of the decisions came in the cases of Gerald Murray (pictured left) and Steven Taylor (pictured, right), decided on December 20, 2018, who were sentenced to death for the same murder and raised exactly the same challenge to their unconstitutional death sentences. Murray’s death sentence was overturned, but Taylor’s was upheld, renewing criticism that the Florida Supreme Court has arbitrarily and unfairly applied its decisions declaring that death sentences that are based on non-unanimous jury sentencing recommendations are unconstitutional.
Murray and Taylor were tried separately for the same 1990 Jacksonville burglary, sexual assault, and murder. Taylor was tried once and sentenced to death by the trial judge following a 10-2 jury recommendation for death. The Florida Supreme Court decided his direct appeal in 1993. His conviction and death sentence became final in October 1994, when the U.S. Supreme Court declined to review his case. Because of a series of constitutional errors in Murray’s case, his conviction was overturned twice and the death penalty imposed against him in another trial also was overturned. The trial judge imposed a death sentence in his fourth trial following an 11-1 jury recommendation for death. The Florida Supreme Court upheld that conviction and death sentence on direct appeal in 2009, and the conviction and sentence became final when the U.S. Supreme Court declined to review his case later that year.
In January 2016, in Hurst v. Florida, the U.S. Supreme Court ruled that the sentencing procedures under which both Murray and Taylor were tried violated Florida capital defendants’ Sixth Amendment right to have a jury determine all the facts that could subject them to the death penalty. Later that year, the Florida Supreme Court ruled in Hurst v. State that the Sixth Amendment violation could never be harmless in a case in which one or more jurors had voted for life and that death sentences based on such non-unanimous jury verdicts also violated the Florida state constitution. However, the court also decided that it would limit enforcement of its constitutional ruling to cases that became final after June 2002, when the U.S. Supreme Court first announced the Sixth Amendment right to jury factfinding in the penalty-phase of a capital trial. At that time, Justices Pariente and Perry dissented, calling the appeal cutoff date arbitrary. In her December 20 concurring opinion in Taylor’s case, Pariente called the Murray and Taylor rulings “the textbook example of the ‘unintended arbitrariness’” she had warned about in her prior dissent. “Taylor and Murray were both convicted of first-degree murder and sentenced to death after nonunanimous jury recommendations for death for the murder of Alice Vest in September 1990. Yet, only one will receive a new penalty phase. Clearly, the Court’s line-drawing for the retroactivity of Hurst creates unconstitutional results for defendants like Taylor,” she wrote.
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.”