DPIC Analysis — At Least 1,300 Prisoners are on U.S. Death Rows in Violation of U.S. Human Rights Obligations

At least 1,300 prisoners have been incarcerated on U.S. death rows for more than two decades, in violation of U.S. human rights obligations, a Death Penalty Information Center analysis of death-row demographic data has found. The number represents more than half of all U.S. death-row prisoners as of January 1, 2020. Nearly one third of the prisoners whose extended incarcerations on death row violate their human rights are facing execution in California. Nearly 200 more condemned prisoners were executed 20 or more years after having been sentenced to death, also in violation of U.S. human rights obligations.

Thirteen of the 169 men and women exonerated from wrongful capital murder convictions since 1973 also had spent two decades or more on death row.

In 2018, the Inter-American Commission on Human Rights (IACHR) ruled that “[t]he very fact of spending 20 years on death row is … excessive and inhuman” punishment, in violation of the American Declaration of the Rights and Duties of Man (American Declaration). Subsequently, in April 2020, the IACHR — the body of the Organization of American States (OAS) that reviews potential breaches of human rights by member nations in the Western Hemisphere — returned to the issue in Sequoyah v. United States, and found that California’s 27-year imprisonment of Nvwtohiyada Idehesdi Sequoyah (formerly Billy Ray Waldon) on death row violated U.S. human rights obligations.

The IACHR held the United States responsible for violating Sequoyah’s “right to humane treatment,” saying his extended incarceration under threat of death constituted “cruel, infamous or unusual punishment” under the American Declaration. It further ruled that his execution after such a lengthy period on death row would constitute an additional human rights violation and recommended as a remedy that his death sentence be commuted to life imprisonment.

Following the IACHR’s decision in Sequoyah, DPIC conducted a review of data related to current and executed death-row prisoners to assess the breadth of the nation’s human rights violation. DPIC found that 1,344 current prisoners on 26 state, federal government, or U.S. military death rows have been incarcerated facing execution for more than 20 years. With 2,620 prisoners on death row in the United States or still in jeopardy of death on retrial or resentencing on January 1, 2020, that means more than half (51.3%) of those facing execution in the United States are on death row in violation of their human rights. An additional 191 prisoners have been executed by 20 states 20 or more years after having been first sentenced to death.

These two categories of prisoners accounted for 1,535 death-penalty-related human rights violations by 26 U.S. states, the federal government, and the U.S. military.

With 429 prisoners on death row for more than two decades as of January 1, 2020, California was responsible for 31.9% of the human rights violations relating to the duration of current prisoners’ confinement on death row. Florida – whose death-penalty statute has been struck down as unconstitutional four different times — was next with 192 prisoners who had been on death row twenty or more years, followed by North Carolina with 95, Pennsylvania with 75, Texas with 74, and Alabama and Ohio with 71 each.

Florida has executed 34 prisoners who had been on death row for 20 or more years, the most in the nation. Texas was next with 31, followed by Georgia with 28 and Alabama with 20.

On April 22, 2020, the Inter-American Commission on Human Rights ruled in Sequoyah v. United States that the United States had violated its obligations to California death-row prisoner Nvwtohiyada Idehesdi Sequoyah (Billy Ray Waldon, pictured) under the American Declaration of the Rights and Duties of Man by failing to resolve his case more than 27 years after he was first sentenced to death. That failure, the Commission found, violated his “right of access to justice” under Articles 18 and 24 of the American Declaration.

In addition to that procedural violation, the IACHR found that the period for which Mr. Sequoyah has been imprisoned on death row facing the possibility of execution “greatly exceeds the length of time that other international and domestic courts have characterized as cruel, inhuman and degrading treatment.” The IACHR wrote, “[t]he very fact of spending 27 years on death row is, by any account, excessive and inhuman, and is aggravated by the prolonged expectation that the death sentence could be executed. Consequently, the United States is responsible for violating, to the detriment of Mr. Sequoyah, the right to humane treatment, and to receive cruel, infamous or unusual punishment established by the American Declaration.”

Previously, in 2018, the Inter-American Commission had found that in the case of Russell Bucklew — executed by Missouri the following year — that spending 20 years on death row was “excessive and inhuman.”

The IACHR ruling also declared that, after having subjected Mr. Sequoyah to the extended “deprivation of liberty on death row, [his] eventual execution [would constitute] … a violation of the right to protection against cruel, infamous or unusual punishment. … [T]he IACHR concludes that the execution of Mr. Sequoyah would constitute a serious violation of his right to life established in Article[ ] I of the American Declaration.”

The IACHR also found case-specific human rights violations independent of the length of time Mr. Sequoyah has been confined on California’s death row. Those included the California courts’ decisions permitting Mr. Sequoyah to waive counsel and represent himself, despite substantial evidence that mental illness left him incompetent to do so. The Commission wrote:

[A] heightened and rigorous scrutiny must be applied when deciding whether an accused is able to adequately and effectively represent himself or herself in a death penalty case. A motion for self-representation cannot be granted when there are important doubts as to the capacity of the accused to adequately and effectively represent himself or herself in a case in which his/her life is at stake. Therefore, the IACHR finds that the lack of rigorous scrutiny at the time of deciding on the motion for self-representation amounts to a violation of the right to a fair trial and to due process of law.

Mr. Sequoyah had been discharged from the Navy in 1984 as a result of his mental illness, after having been diagnosed with “major depression with psychosis,” paranoia, and a thought disorder. He “was having auditory hallucinations [including] … hearing voices in different languages [that were] telling him to hurt himself or hurt someone else.” His capital trial and death sentence, the IACHR found, violated the right of every person with mental disabilities not to be subjected to the death penalty and constituted cruel, infamous or unusual punishment for that additional reason.

The IACHR concluded that the United States was responsible for violations of five separate Articles of the American Declaration. It recommended that Sequoyah be granted “effective relief,” including that “his death sentence be commuted.” The commission also recommended that the U.S. “review its laws, procedures, and practices”

• to ensure compliance with the American Declaration of Human Rights, in particular “that no one with a mental or intellectual disability at the time of the commission of the crime or execution of the death sentence receives the death penalty or is executed”;
• to ensure that a “more rigorous standard is applied when assessing a defendant’s competence to self-represent in death penalty cases”; and
• “to ensure that death penalty conviction and post-conviction proceedings fully comply with the right to be tried without undue delay.”

Finally, the Commission recommended that the United States “adopt a moratorium on executions of persons sentenced to death.”

DPIC also analyzed how many prisoners have been on death row a quarter century or more or were executed following 25+ years on death row. That analysis found that, as of June 1, 2020, 769 prisoners with active death sentences have been on the death rows of 24 states, the federal government, or the U.S. military for more than a quarter century in violation of their human rights. DPIC found that another 61 had been put to death in 14 states in violation of international human rights norms, after having spent 25 years or more facing execution.

California again disproportionately accounted for these human rights violations (34.9%), with 268 prisoners on death row for more than a quarter century. Florida accounts for another 139 human rights violations — 16.7% of the national total — with 125 current prisoners who have been on death row 25 years or more and 14 executions of prisoners who had served at least 25 years on death row.

Those states are followed by Ohio with 47 human rights violations, Pennsylvania and Nevada with 46 each, North Carolina with 44 and Texas with 40.

Nineteen prisoners have been on death row for more than four decades. 315 others have been on death row between 30 and 40 years. At least 26 prisoners who were later executed had been on death row for more than three decades before they were put to death.

DPIC reviewed its database of 169 death-row exonerations to determine how many of the exonerees had been victims of this form of U.S. human rights violation. In 30 cases, it took 20 or more years for a wrongfully convicted former death-row prisoner to be exonerated. However, in many of those cases, the exoneration was a multi-step process in which the exoneree’s death sentence was overturned years before he or she was released or finally exonerated.

DPIC has identified 13 cases from 12 states in which exonerees spent 20 or more years on death row, in violation of their human rights. The states committing those violations were Alabama, Arizona, California, Georgia, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Ohio, Pennsylvania, and Tennessee.

Three of the exonerees — Paul Browning in Nevada, Henry McCollum in North Carolina, and Glenn Ford in Louisiana — had been on death row 30 years or more before they were exonerated.

The DPIC analysis significantly understates the magnitude of U.S. human rights violations arising from lengthy confinement under sentence of death. DPIC reviewed the portions of its death-penalty database relating to the 2,620 prisoners on death row as of January 1, 2020, the 1518 U.S. executions since 1977, and the 169 death-row exonerations since 1973. The data reviewed did not include former death row prisoners who spent 20 or more years on death row before being resentenced to life or less or having their death sentences commuted; or those who died in custody after 20 years or more confinement on death row.

The information DPIC reviewed in determining the scope of the U.S. human rights violation is part of a larger database it is compiling for its Death Row Census of all persons sentenced to death in the United States since 1972. The first phase of this multi-year project, which will contain information on the status of more than 9,400 death sentences imposed across the country since the U.S. Supreme Court struck down existing capital punishment statutes in June 1972, is expected to be completed this summer.

DPIC takes no position on capital punishment itself but is critical of the manner in which it is applied.

— Analysis by Robert Dunham with the assistance of data fellows Patrick Geiger and Steven Czarnecki. Tableau visualizations by Steven Czarnecki.

Updated 6/23/20 to correct typographical errors in column of table listing executions after 20 years on death row.