The Death Penalty in 2020: Year End Report

Key Findings

• • Colorado becomes 22^nd state to abol­ish death penalty
  • Reform pros­e­cu­tors gain footholds in for­mer­ly heavy-use death penalty counties
  • Fewest new death sen­tences in mod­ern era; state exe­cu­tions low­est in 37 years
  • Federal gov­ern­ment resumes exe­cu­tions with out­lier prac­tices, for first time ever con­ducts more exe­cu­tions than all states combined
  • COVID-19 pan­dem­ic halts many exe­cu­tions and court pro­ceed­ings; fed­er­al exe­cu­tions spark outbreaks
    

This report was updat­ed on December 22 to reflect the exon­er­a­tion of Roderick Johnson in Pennsylvania.

2020 was abnor­mal in almost every way, and that was clear­ly the case when it came to cap­i­tal pun­ish­ment in the United States. The inter­play of four forces shaped the U.S. death penal­ty land­scape in 2020: the nation’s long-term trend away from cap­i­tal pun­ish­ment; the worst glob­al pan­dem­ic in more than a cen­tu­ry; nation­wide protests for racial jus­tice; and the his­tor­i­cal­ly aber­rant con­duct of the fed­er­al admin­is­tra­tion. At the end of the year, more states had abol­ished the death penal­ty or gone ten years with­out an exe­cu­tion, more coun­ties had elect­ed reform pros­e­cu­tors who pledged nev­er to seek the death penal­ty or to use it more spar­ing­ly; few­er new death sen­tences were imposed than in any pri­or year since the Supreme Court struck down U.S. death penal­ty laws in 1972; and despite a six-month spree of fed­er­al exe­cu­tions with­out par­al­lel in the 20^th or 21^st cen­turies, few­er exe­cu­tions were car­ried out than in any year in near­ly three decades.

The his­tor­i­cal­ly low num­bers of death sen­tences and exe­cu­tions were unques­tion­ably affect­ed by court clo­sures and pub­lic health con­cerns relat­ed to the coro­n­avirus. But even before the pan­dem­ic struck, the death sen­tences and exe­cu­tions in the first quar­ter of the year had put the United States on pace for a sixth con­sec­u­tive year of 50 or few­er new death sen­tences and 30 or few­er exe­cu­tions. The exe­cu­tion num­bers also were skewed by a rash of exe­cu­tions that marked the fed­er­al government’s death-penal­ty prac­tices as an out­lier, as for the first time in the his­to­ry of the coun­try, the fed­er­al gov­ern­ment con­duct­ed more civil­ian exe­cu­tions than all of the states of the union combined.

The ero­sion of cap­i­tal pun­ish­ment at the state and coun­ty lev­el con­tin­ued in 2020, led by Colorado’s abo­li­tion of the death penal­ty. Two more states — Louisiana and Utah – reached ten years with no exe­cu­tions. With those actions, more than two-thirds of the United States (34 states) have now either abol­ished cap­i­tal pun­ish­ment (22 states) or not car­ried out an exe­cu­tion in at least ten years (anoth­er 12 states). The year’s exe­cu­tions were geo­graph­i­cal­ly iso­lat­ed, with just five states, four of them in the South, per­form­ing any exe­cu­tions this year. The Gallup poll found pub­lic sup­port for the death penal­ty near a half-cen­tu­ry low, with oppo­si­tion at its high­est lev­el since the 1960s. Local vot­ers, par­tic­u­lar­ly in urban cen­ters and col­lege towns, reject­ed mass incar­cer­a­tion and harsh pun­ish­ments, elect­ing new anti-death-penal­ty dis­trict attor­neys in coun­ties con­sti­tut­ing 12% of the cur­rent U.S. death-row population.

A major­i­ty (59%) of all exe­cu­tions this year were con­duct­ed by the fed­er­al gov­ern­ment, which in less than six months car­ried out more fed­er­al civil­ian exe­cu­tions than any pri­or pres­i­dent in the 20^th or 21^st cen­turies, Republican or Democratic, had autho­rized in any pri­or cal­en­dar year. The Trump admin­is­tra­tion per­formed the first lame-duck fed­er­al exe­cu­tion in more than a cen­tu­ry, while sched­ul­ing more tran­si­tion-peri­od exe­cu­tions than in any pri­or pres­i­den­tial tran­si­tion in the his­to­ry of the United States. The exe­cu­tions reflect­ed sys­temic prob­lems in the appli­ca­tion of cap­i­tal pun­ish­ment and drew wide­spread oppo­si­tion from pros­e­cu­tors, vic­tims’ fam­i­lies, Native American lead­ers, reli­gious lead­ers, reg­u­la­to­ry law experts, and European Union offi­cials. In addi­tion to the legal issues, the exe­cu­tions also pre­sent­ed pub­lic health prob­lems, like­ly spark­ing an out­break in a fed­er­al prison, infect­ing mem­bers of the exe­cu­tion teams, and caus­ing two fed­er­al defense attor­neys to contract COVID-19.

Death sen­tences, which were on pace for sus­tained low lev­els pri­or to the pan­dem­ic, plunged to a record low of 18. While the resump­tion of tri­als delayed by the pan­dem­ic may arti­fi­cial­ly increase the num­ber of death ver­dicts over the next year or two, the bud­get strain caused by the pan­dem­ic and the need for court­room space to con­duct back­logged non-cap­i­tal tri­als and main­tain­ing a func­tion­ing court sys­tem may force states to recon­sid­er the val­ue and via­bil­i­ty of pur­su­ing expen­sive capital trials. 

Executions and new death sen­tences in 2020 con­tin­ued to be direct­ed at defen­dants and pris­on­ers who were the most vul­ner­a­ble or who had the most defec­tive court process. Every pris­on­er exe­cut­ed in 2020 had one or more sig­nif­i­cant men­tal or emo­tion­al impair­ments (men­tal ill­ness, intel­lec­tu­al dis­abil­i­ty, brain dam­age, or chron­ic trau­ma) or was under age 21 at the time of the crime for which he was exe­cut­ed. The exe­cut­ed includ­ed sev­er­al pris­on­ers whose more cul­pa­ble co-defen­dants received less­er sen­tences, a pris­on­er who was denied poten­tial­ly excul­pa­to­ry DNA test­ing, and pris­on­ers whose exe­cu­tions were opposed by vic­tims’ fam­i­lies. Of those who were sen­tenced to death this year, more than 20% waived key pro­ce­dur­al rights, includ­ing their rights to coun­sel and/​or a jury tri­al, and three stren­u­ous­ly pro­claimed their innocence.

Six pris­on­ers were exon­er­at­ed from death row in 2020. In each of the six cas­es, pros­e­cu­to­r­i­al mis­con­duct had con­tributed to the wrong­ful con­vic­tion. The men exon­er­at­ed this year spent between 14 and 37 years await­ing exon­er­a­tion. Three of them faced mul­ti­ple tri­als, despite evi­dence of their inno­cence, and one – Curtis Flowers – was tried six times for the same crime. Pennsylvania exoneree Walter Ogrod con­tract­ed COVID-19 and was denied trans­port to an inde­pen­dent hos­pi­tal while he wait­ed for a hear­ing on whether he would be freed.

Landmark state court deci­sions reflect­ed arbi­trari­ness and bias in the appli­ca­tion of cap­i­tal pun­ish­ment. The North Carolina Supreme Court issued sev­er­al rul­ings over­turn­ing the state leg­is­la­ture’s attempt to retroac­tive­ly repeal the state’s Racial Justice Act. The rul­ings rein­stat­ed life sen­tences for three for­mer death-row pris­on­ers and paved the way for approx­i­mate­ly 140 to obtain hear­ings on the impact of race dis­crim­i­na­tion in their cas­es. A Florida Supreme Court recon­sti­tut­ed after manda­to­ry retire­ments with activist judges from the Federalist Society, elim­i­nat­ed con­sti­tu­tion­al and statu­to­ry pro­tec­tions for cap­i­tal defen­dants and death-row pris­on­ers on four dif­fer­ent occa­sions, but stopped short of tak­ing away resen­tenc­ing tri­als for up to 100 pris­on­ers whose death sen­tences had pre­vi­ous­ly been overturned. 

The death penal­ty has been plagued by inequity and injus­tice through­out its his­to­ry, but those prob­lems came into stark focus this year as the pan­dem­ic and the protests against police vio­lence high­light­ed the same dis­par­i­ties through­out our nation­al insti­tu­tions. As the United States engaged in a nation­wide con­ver­sa­tion about sys­temic racism, access to resources, and fail­ures of fed­er­al lead­er­ship, cap­i­tal pun­ish­ment mir­rored those faults through its racial­ly biased appli­ca­tion, inad­e­quate legal pro­tec­tions, and out­lier prac­tices by the federal government.

Death penal­ty devel­op­ments at the state and coun­ty lev­el con­tin­ued the long-term nation­al trend away from cap­i­tal pun­ish­ment, as anoth­er state abol­ished the death penal­ty, two oth­ers reached land­marks with­out exe­cu­tions, and more reform pros­e­cu­tors gained footholds in for­mer­ly heavy-use counties. 

In 2020, Colorado became the 22^nd state to abol­ish the death penal­ty, while Louisiana and Utah each reached 10 years with no exe­cu­tions. As a con­se­quence, more than two-thirds of the coun­try – 34 states – have either abol­ished cap­i­tal pun­ish­ment or have not car­ried out an exe­cu­tion in more than a decade. Oklahoma, the state that has car­ried out the third-most exe­cu­tions in the mod­ern era, marked five years since its last exe­cu­tion. Legislative and judi­cial actions in California, North Carolina, Ohio, and Virginia also sig­naled the with­er­ing of cap­i­tal pun­ish­ment, even in high-use states.

On March 23, Colorado Governor Jared Polis signed leg­is­la­tion abol­ish­ing the death penal­ty for all future offens­es. Governor Polis also com­mut­ed the death sen­tences of the three pris­on­ers on the state’s death row to life with­out parole. All three of the state’s death row pris­on­ers were Black, and Polis not­ed the racial dis­par­i­ty in his state­ment on the com­mu­ta­tions. The com­mu­ta­tions, he said, were ​“con­sis­tent with the abo­li­tion of the death penal­ty in the State of Colorado, and con­sis­tent with the recog­ni­tion that the death penal­ty can­not be, and nev­er has been, admin­is­tered equi­tably in the State of Colorado.” Two cap­i­tal pros­e­cu­tions were pend­ing at the time of abo­li­tion but, fac­ing crit­i­cism of the futil­i­ty and waste­ful­ness of the post-abo­li­tion pur­suit of cap­i­tal sanc­tions, the pros­e­cu­tors dropped the death penal­ty in both cases.

The pro­nounced decline of cap­i­tal pun­ish­ment in the west­ern U.S. was evi­dent not only in Colorado’s abo­li­tion, but also in Utah’s mile­stone of ten years with no exe­cu­tions. The last exe­cu­tion car­ried out in Utah was on June 18, 2010, when Ronnie Gardner was exe­cut­ed by fir­ing squad. With this anniver­sary, only two of the eleven states west of Texas — Arizona and Idaho — still have a death penal­ty and have car­ried out an exe­cu­tion in the last decade. Louisiana also marked ten years with­out an exe­cu­tion, reach­ing that anniver­sary on January 7. Twelve of the 28 states (42.9%) that con­tin­ue to autho­rize cap­i­tal pun­ish­ment have not exe­cut­ed any­one in at least ten years.

Oklahoma, the nation’s third most pro­lif­ic exe­cu­tion state, reached five years with no exe­cu­tions on January 15. The state’s last three exe­cu­tions were botched or bun­gled, and the state placed exe­cu­tions on hold after using the wrong drug in the January 15, 2015 exe­cu­tion of Charles Warner and procur­ing the same wrong drug for the abort­ed September 30, 2015 exe­cu­tion of Richard Glossip. Just a month after the anniver­sary of Warner’s exe­cu­tion, the state announced plans to resume exe­cu­tions using the same con­tro­ver­sial three-drug pro­to­col that con­tributed to the string of prob­lem­at­ic exe­cu­tions in 2014 and 2015. Litigation is ongo­ing as death-row pris­on­ers chal­lenge the state’s ​“risky and incom­plete” lethal-injec­tion pro­to­col, which pro­vid­ed no clear plan for address­ing the ​“sig­nif­i­cant flaws” in train­ing prac­tices iden­ti­fied by the state’s inde­pen­dent Death Penalty Review Commission.

California passed a pack­age of crim­i­nal legal reform leg­is­la­tion in August, intend­ed to address racial dis­par­i­ties in the legal sys­tem. One bill amends California’s death penal­ty intel­lec­tu­al dis­abil­i­ty statute to pro­hib­it the use of race-based IQ adjust­ments in deter­min­ing a defendant’s or death-row prisoner’s eli­gi­bil­i­ty for the death penal­ty; anoth­er is direct­ed at racial, eth­nic, reli­gious, and gen­der dis­crim­i­na­tion in jury selec­tion; and a third – the California Racial Justice Act – seeks to com­bat racial dis­crim­i­na­tion in crim­i­nal pros­e­cu­tions and sen­tenc­ing. The lat­ter two bills apply not only in death-penal­ty cas­es, but aim to redress racial bias in any crim­i­nal case. The California Racial Justice Act, like the since-repealed North Carolina Racial Justice Act, allows pris­on­ers to use sta­tis­ti­cal evi­dence of racial bias to chal­lenge their sentences.

California Governor Gavin Newsom took fur­ther action to tack­le racial injus­tice in the use of the death penal­ty when he became the first sit­ting gov­er­nor in California his­to­ry to file a friend-of-the-court brief ​“call­ing atten­tion to the unfair and uneven appli­ca­tion of the death penal­ty.” In sup­port of the cap­i­tal appeal of Don’te Lamont McDaniel, Governor Newsom’s brief stat­ed, ​“Since its incep­tion, the American death penal­ty has been dis­pro­por­tion­ate­ly applied, first, to enslaved Africans and African Americans, and, lat­er to free Black peo­ple. With this fil­ing, we make clear that all Californians deserve the same right to a jury tri­al that is fair, and that it is a mat­ter of life and death.”

The North Carolina Racial Justice Act (RJA), which was passed in 2009, but watered down in 2012 and repealed in 2013, was also in the news in 2020. In a pair of rul­ings on June 5, the North Carolina Supreme Court struck down the state legislature’s attempt­ed retroac­tive amend­ment and repeal of the act, restor­ing the rights of approx­i­mate­ly 140 death-row pris­on­ers to chal­lenge death sen­tences they claimed were sub­stan­tial­ly affect­ed by racial bias. The rul­ings in the cas­es of Andrew Ramseur and Rayford Burke held that ​“the retroac­tive appli­ca­tion of the RJA Repeal vio­lates the pro­hi­bi­tion against ex post fac­to laws under the United States and North Carolina Constitutions.” It remand­ed their cas­es to the tri­al court to con­duct hear­ings to deter­mine whether their death sen­tences vio­lat­ed the Racial Justice Act. If the defen­dants win their chal­lenges, they will be resen­tenced to life with­out parole. In three deci­sions issued on September 25, 2020, the court extend­ed its rul­ing, direct­ing that pris­on­ers who had proven that their death sen­tences vio­lat­ed the RJA must be resen­tenced to life impris­on­ment with­out pos­si­bil­i­ty of parole. The court ruled that resen­tenc­ing Christina Walters, Quintel Augustine, and Tilmon Golphin to death after they had estab­lished their enti­tle­ment to a life sen­tence under the RJA vio­lat­ed con­sti­tu­tion­al prin­ci­ples of dou­ble jeop­ardy and pro­hi­bi­tions against after-the-fact enhance­ments of pun­ish­ment, and it restored their life sentences.

A series of Florida Supreme Court deci­sions stripped pro­tec­tions from crim­i­nal defen­dants and death-row pris­on­ers. In January, the court’s deci­sion in State v. Poole rein­stat­ed a death sen­tence imposed on Mark Anthony Poole in 2011 after a non-unan­i­mous jury had vot­ed to rec­om­mend the death penal­ty. Applying the court’s 2016 rul­ing in Hurst v. State, a Polk County tri­al court had over­turned Poole’s death sen­tence and ordered a new sen­tenc­ing hear­ing. ​“Our court … got it wrong,” the jus­tices said, when it ruled in 2016 that death sen­tences imposed after non-unan­i­mous jury rec­om­men­da­tions for death vio­lat­ed the state and fed­er­al con­sti­tu­tions. The court’s com­po­si­tion changed dras­ti­cal­ly in 2019 when three lib­er­al and mod­er­ate jus­tices reached manda­to­ry retire­ment age and were replaced with arch-con­ser­v­a­tive jurists. Prosecutors sought to apply the Poole rul­ing to the more than 100 death-row pris­on­ers who had received final orders revers­ing their death sen­tences, but who had not yet com­plet­ed a new sen­tenc­ing hear­ing. On November 25, the court unan­i­mous­ly rebuffed those attempts, say­ing it did not have the pow­er to rein­state those death sentences.

In addi­tion to its deci­sion in Poole, the court also aban­doned a cen­tu­ry-old stan­dard for height­ened review in cas­es in which a con­vic­tion rest­ed sole­ly on cir­cum­stan­tial evi­dence, lim­it­ed enforce­ment of a U.S. Supreme Court case that bars exe­cu­tion of intel­lec­tu­al­ly dis­abled pris­on­ers, and declared the 50-year-old cap­i­tal appeal safe­guard of pro­por­tion­al­i­ty review to be unconstitutional.

In Virginia, leg­is­la­tion reversed an ear­li­er lethal-injec­tion secre­cy pol­i­cy by mak­ing the iden­ti­ty of lethal-injec­tion drug sup­pli­ers pub­lic infor­ma­tion sub­ject to dis­clo­sure under the state Freedom of Information Act and in civ­il legal pro­ceed­ings. With strong bipar­ti­san sup­port, the Virginia Senate also passed a bill to bar the death penal­ty for indi­vid­u­als who were severe­ly men­tal­ly ill at the time of the crime. The mea­sure did not make it out of a House sub­com­mit­tee. A sim­i­lar mea­sure passed the Ohio House by a 76 – 17 mar­gin, and an amend­ed ver­sion passed the Senate in December by a vote of 27 – 3. As this report went to press, the bill had returned to the House for final approval. 

Ohio Governor Mike DeWine issued reprieves post­pon­ing 11 sched­uled exe­cu­tions, cit­ing the state’s inabil­i­ty to obtain exe­cu­tion drugs with­out plac­ing its sup­plies of med­i­cines for ther­a­peu­tic pur­pos­es at risk. In an end-of-year news con­fer­ence, DeWine said that he no longer con­sid­ered lethal injec­tion a viable method of exe­cu­tion in the state. 

In coun­ties across the coun­try, local vot­ers, par­tic­u­lar­ly in urban cen­ters and col­lege towns, brought the nation­al reck­on­ing on racial jus­tice to the bal­lot box, reject­ing mass incar­cer­a­tion and harsh pun­ish­ments in favor of reform pros­e­cu­tors. At least nine major coun­ties elect­ed new dis­trict attor­neys who pledged nev­er to pur­sue the death penal­ty or to use it only very spar­ing­ly. The move­ment was led by the elec­tion of George Gascón in Los Angeles County, home of the nation’s largest death row. Within hours of being sworn in, Gascón issued direc­tives to halt all cap­i­tal pros­e­cu­tions and to review on an indi­vid­u­al­ized basis the cas­es of the more than 200 pris­on­ers on the county’s death row. New reform pros­e­cu­tors also were elect­ed in Fulton and Gwinnett coun­ties (Atlanta, Athens) in Georgia; Pima County (Tucson), Arizona; Orleans Parish (New Orleans), Louisiana; Travis County (Austin), Texas; Orange-Osceola Counties (Orlando), Florida; Multnomah County (Portland), Oregon; and Franklin County (Columbus), Ohio. Collectively, those coun­ties com­prised 12% of the cur­rent U.S. death-row population.

The fed­er­al gov­ern­ment resumed exe­cu­tions in July 2020 after a 17-year hia­tus, with a series of actions that pro­duced con­tro­ver­sy and chaos. The sheer num­ber of exe­cu­tions set the Trump admin­is­tra­tion apart as an out­lier in the use of cap­i­tal pun­ish­ment, com­pared both to the his­tor­i­cal prac­tices of American pres­i­den­cies and the con­tem­po­rary prac­tices of the states in the Union. In addi­tion, the details of the cas­es and the high­ly politi­cized man­ner in which they were car­ried out revealed sig­nif­i­cant prob­lems in the appli­ca­tion of the fed­er­al death penalty. 

The ten peo­ple exe­cut­ed under the fed­er­al death penal­ty in the sec­ond half of 2020 exceed­ed the num­ber exe­cut­ed by all of the states com­bined, the first time in the his­to­ry of the United States in which the fed­er­al gov­ern­ment car­ried out more civil­ian exe­cu­tions than did the states. The cas­es select­ed raised issues about the overt politi­ciza­tion of cap­i­tal pun­ish­ment, as well as con­cerns about lethal injec­tion, Native American trib­al sov­er­eign­ty, dis­re­spect of the wish­es of vic­tims’ fam­i­lies, and the con­sti­tu­tion­al­i­ty of exe­cut­ing teenage offend­ers and indi­vid­u­als with seri­ous men­tal ill­ness or intellectual disability. 

Resuming exe­cu­tions in the midst of a dead­ly pan­dem­ic forced attor­neys, reli­gious advi­sors, media wit­ness­es, and vic­tims’ fam­i­ly mem­bers to choose between attend­ing exe­cu­tions and pro­tect­ing their health and con­tributed to an out­break at the cor­rec­tion­al com­plex in Terre Haute that has result­ed in mul­ti­ple prison deaths. At least one mem­ber of the fed­er­al exe­cu­tion team who attend­ed exe­cu­tion prepa­ra­tion meet­ings with­out virus pro­tec­tive gear test­ed pos­i­tive for COVID-19 before the exe­cu­tions began and, by mid-December, the exe­cu­tions had exposed hun­dreds of peo­ple to the coro­n­avirus. Shortly after the November 19 exe­cu­tion of Orlando Hall in which exe­cu­tion team mem­bers again did not wear virus pro­tec­tive gear, eight mem­bers of the exe­cu­tion team who came to Terre Haute from oth­er fed­er­al facil­i­ties and Hall’s reli­gious advi­sor test­ed pos­i­tive for the virus. 

Long-term nation­al trends away from cap­i­tal pun­ish­ment, com­bined with health mea­sures adopt­ed to pro­tect the pub­lic from the dead­liest glob­al pan­dem­ic in more than a cen­tu­ry, drove the num­ber of state exe­cu­tions to a 37-year low. But fac­ing the very same fac­tors, the fed­er­al gov­ern­ment ignored the pub­lic health risks in a rush to car­ry out exe­cu­tions timed for the start of the polit­i­cal par­ties’ pres­i­den­tial con­ven­tions and con­tin­u­ing through and beyond the pres­i­den­tial elec­tion. When 2020 con­clud­ed, the Trump admin­is­tra­tion had car­ried out more fed­er­al exe­cu­tions in a cal­en­dar year than any pres­i­den­cy in the 20^th or 21^st cen­turies and had sched­uled more exe­cu­tions for the tran­si­tion peri­od between pres­i­den­cies than had ever been car­ried out in the his­to­ry of the United States. 

The rash of exe­cu­tions was also aber­rant in its selec­tions of pris­on­ers to be put to death. The con­demned includ­ed the first Native American ever exe­cut­ed by the fed­er­al gov­ern­ment for a mur­der of a mem­ber of his own tribe on trib­al lands; the first fed­er­al exe­cu­tions of teenaged offend­ers in 68 years; the first fed­er­al exe­cu­tion in 57 years for a crime com­mit­ted in a state that had abol­ished the death penal­ty; the sched­uled exe­cu­tions of two pris­on­ers who med­ical evi­dence indi­cat­ed had intel­lec­tu­al dis­abil­i­ty; the sched­uled exe­cu­tions of two pris­on­ers with seri­ous men­tal ill­ness, includ­ing one who may have been men­tal­ly incom­pe­tent at the time of his exe­cu­tion; the sched­uled exe­cu­tions of two pris­on­ers who did not kill any­one and three who were less cul­pa­ble than co-defen­dants who received less­er sen­tences; the first lame-duck exe­cu­tions in more than a cen­tu­ry; and exe­cu­tions car­ried out against the wish­es of vic­tims’ fam­i­ly mem­bers, tri­al or appel­late pros­e­cu­tors in the cas­es, and at least one of the judges who presided at trial. 

The planned exe­cu­tion of Lisa Montgomery, who would have been the first woman exe­cut­ed by the fed­er­al gov­ern­ment in 70 years, was delayed when her legal team con­tract­ed COVID-19 after trav­el­ing to meet with her and could not com­plete her clemen­cy peti­tion. A coali­tion of more than 1,000 advo­cates had called for clemen­cy for Montgomery, who is severe­ly men­tal­ly ill as a result of hor­rif­ic abuse through­out her child­hood, includ­ing being sexually trafficked.

The time­line of exe­cu­tions — enabled by U.S. Supreme Court rul­ings refus­ing to pro­tect the integri­ty of judi­cial review — arti­fi­cial­ly lim­it­ed the fed­er­al courts’ abil­i­ty to con­sid­er pris­on­ers’ claims, includ­ing chal­lenges to the fed­er­al exe­cu­tion pro­to­col. The Department of Justice announced the first four exe­cu­tion dates while lethal-injec­tion lit­i­ga­tion was still pend­ing in fed­er­al court in a case that had pre­vi­ous­ly halt­ed fed­er­al exe­cu­tions sched­uled in 2019. In the hours lead­ing up to the sched­uled exe­cu­tion of Daniel Lewis Lee on July 13, a fed­er­al dis­trict court in Washington, D.C. issued a pre­lim­i­nary injunc­tion bar­ring all four sched­uled fed­er­al exe­cu­tions on the grounds that the pris­on­ers were like­ly to pre­vail on their chal­lenge to the con­sti­tu­tion­al­i­ty of the exe­cu­tion pro­to­col. Federal pros­e­cu­tors filed simul­ta­ne­ous motions in the U.S. Court of Appeals for the District of Columbia Circuit and the United States Supreme Court seek­ing to vacate the injunc­tion. As the mid­night dead­line approached, the appeals court denied the motion, and set an expe­dit­ed brief­ing sched­ule to con­sid­er the mer­its of the dis­trict court’s rul­ing. That sched­ule, how­ev­er, extend­ed beyond July 17, effec­tive­ly halt­ing the first three sched­uled exe­cu­tions. In a 5 – 4 deci­sion issued at 2:30 a.m. on July 14, the U.S. Supreme Court wrote that last-minute stay appli­ca­tions were dis­fa­vored and that the pris­on­ers had not met the ​“exceed­ing­ly high bar” of estab­lish­ing that they could show that exe­cu­tions using pen­to­bar­bi­tal con­sti­tute cru­el and unusual punishment.

Because the exe­cu­tion of Wesley Purkey was sched­uled just two days after Lee’s, a sim­i­lar­ly chaot­ic series of rul­ings pre­ced­ed his exe­cu­tion, with a stay again being lift­ed by the U.S. Supreme Court in the mid­dle of the night. In both cas­es, the gov­ern­ment left no oppor­tu­ni­ty to chal­lenge the notice it pro­vid­ed of an imme­di­ate morn­ing exe­cu­tion after the orig­i­nal death notice expired. For more details on the rushed exe­cu­tions of Lee, Purkey, and Dustin Honken, read DPIC’s report, The Federal Government Restarts Federal Executions Amid Procedural Concerns and a Pandemic.

Lee and nine oth­er pris­on­ers were exe­cut­ed despite low­er fed­er­al court rul­ings that at least one por­tion of the exe­cu­tion pro­to­col vio­lates fed­er­al law. Nonetheless, the Supreme Court has per­mit­ted the exe­cu­tions to go forward.

On September 20, the U.S. District Court for the District of Columbia found that the exe­cu­tion pro­to­col vio­lates the Food, Drug, and Cosmetic Act’s pre­mar­ket­ing, label­ing, and pre­scrip­tion require­ments. However, it did not grant a stay on those grounds, allow­ing the gov­ern­ment to pro­ceed with exe­cu­tions using an illegal protocol.

The exe­cu­tions of Orlando Hall, Brandon Bernard, and Alfred Bourgeois, car­ried out in the lame-duck peri­od between the November 3 elec­tion and the inau­gu­ra­tion of President-elect Joe Biden, marked a stark depar­ture from pres­i­den­tial norms. Orlando Hall was the first per­son exe­cut­ed by a lame-duck pres­i­dent in more than a cen­tu­ry. No admin­is­tra­tion since Grover Cleveland’s first pres­i­den­cy in 1888 – 1889 had ever car­ried out mul­ti­ple tran­si­tion-peri­od exe­cu­tions. Three weeks after President Trump lost the elec­tion, his Justice Department pro­ceed­ed to set three new exe­cu­tion dates, announce new cap­i­tal pros­e­cu­tions it would not be in a posi­tion to pur­sue, and issue a new exe­cu­tion pro­to­col that in cer­tain cir­cum­stances could per­mit the use of con­tro­ver­sial back-up meth­ods of exe­cu­tion autho­rized by some states, includ­ing elec­tro­cu­tion, hang­ing, fir­ing squad, and lethal gas. Records uncov­ered in ear­ly December revealed that the Bureau of Prisons sought a no-bid con­tract for pen­to­bar­bi­tal, claim­ing it was jus­ti­fied under an excep­tion for cas­es ​“of such an unusu­al and com­pelling urgency that the Government would be seri­ous­ly injured” if it had to open the con­tract to com­pet­i­tive bid­ding. With an incom­ing admin­is­tra­tion that has expressed an inten­tion to end the fed­er­al death penal­ty, the Trump administration’s steps to ramp up exe­cu­tions and pro­mul­gate a more relaxed reg­u­la­to­ry regime for exe­cu­tions seemed par­tic­u­lar­ly spite­ful and out-of-step.

Driven by the com­bined effects of a glob­al pan­dem­ic and the con­tin­u­ing decline in pub­lic sup­port for cap­i­tal pun­ish­ment, new death sen­tences and exe­cu­tions reached his­toric lows in 2020. Though the COVID-19 pan­dem­ic had a sig­nif­i­cant impact on both sen­tences and exe­cu­tions, the U.S. was poised for its sixth con­sec­u­tive year with 50 or few­er new death sen­tences and 30 or few­er exe­cu­tions even before the pan­dem­ic shut down court proceedings nationwide. 

Fewer new death sen­tences were imposed in the United States in 2020 than in any oth­er year since the Supreme Court struck down all exist­ing cap­i­tal pun­ish­ments statutes in the U.S. in 1972. With coun­ties unable to safe­ly con­duct cap­i­tal tri­als, states imposed a record low 18 new death sen­tences, 42% below the pre­vi­ous record low of 31 set in 2016. Most of these sen­tences (11) were imposed in the first three months of 2020, before courts across the coun­try halt­ed tri­als as a pre­cau­tion against the pan­dem­ic. Nearly all the death sen­tences imposed after that time involved judge-only pro­ceed­ings, con­sist­ing of court deci­sions for­mal­ly accept­ing pre-pan­dem­ic jury sen­tenc­ing rec­om­men­da­tions or tri­als in which a defen­dant waived the right to a jury. 

The death sen­tences that were imposed January through March 2020 put the nation on pace for a sixth con­sec­u­tive year of few­er than 50 death sen­tences, a sus­tained decline of more than 85% from the peak death-sen­tenc­ing years of the mid-1990s. The tem­po­rary clos­ing of courts at the begin­ning of the pan­dem­ic pro­duced the longest stretch of time with­out a new death sen­tence since cap­i­tal pun­ish­ment was rein­stat­ed after Furman. From March to May, 66 days passed with­out a death sen­tence being imposed.

Seventeen peo­ple were exe­cut­ed in 2020, ten of whom (59%) were exe­cut­ed by the fed­er­al gov­ern­ment. DPIC’s analy­sis of his­tor­i­cal exe­cu­tion data­bas­es indi­cat­ed that it was the first time in American his­to­ry that the fed­er­al gov­ern­ment had exe­cut­ed more pris­on­ers that all of the states com­bined. Just five states con­duct­ed exe­cu­tions, and only Texas car­ried out more than one. Despite the his­tor­i­cal­ly unprece­dent­ed fed­er­al exe­cu­tion spree, the nation­wide total of exe­cu­tions was the low­est in near­ly three decades, since eight states car­ried out four­teen exe­cu­tions in 1991. States car­ried out the fewest exe­cu­tions in 37 years, when five states exe­cut­ed one pris­on­er each in 1983.

The racial dis­par­i­ties reflect­ed in this year’s exe­cu­tions con­tin­ue decades-long trends. Nearly half of the 17 defen­dants exe­cut­ed in 2020 were peo­ple of col­or (5 Black, 1 Latinx, 1 Native American). Seventy-six per­cent of the exe­cu­tions were for the deaths of white victims.

Only sev­en states – Alabama, California, Florida, Mississippi, Ohio, Oklahoma, and Texas – imposed new death sen­tences this year, and just three – California, Florida, and Texas – imposed more than one. Texas was the only state that both imposed a death sen­tence and con­duct­ed an exe­cu­tion in 2020. Six of the ten fed­er­al exe­cu­tions car­ried out were from death sen­tences imposed by juries in just two states – Texas (4) and Missouri (2).

Only two coun­ties in the United States – Riverside, California (3 sen­tences) and Lafayette, Florida (2 sen­tences) – imposed more than one death sen­tence, and the Lafayette death sen­tences were the prod­uct of a sin­gle tri­al in which both defen­dants pled guilty, waived a sen­tenc­ing jury, rep­re­sent­ed them­selves, and pre­sent­ed no case for life. This was the third time in the last five years that Riverside County led the nation in death sen­tences. The fif­teen coun­ties that imposed death sen­tences rep­re­sent less than half of one per­cent of all U.S. counties.

Nearly three-quar­ters (73%) of exe­cu­tion dates sched­uled in 2020 were halt­ed in some way. Of the 62 dates sched­uled this year, only 17 were car­ried out. One exe­cu­tion – that of Jimmy Meders in Georgia – was halt­ed by com­mu­ta­tion. Nineteen exe­cu­tions were stayed. Sixteen exe­cu­tions were halt­ed by reprieve, 14 of which were Ohio exe­cu­tions delayed because of prob­lems with the state’s exe­cu­tion pro­to­col. The oth­er two reprieves came in cas­es in which Tennessee Governor Bill Lee delayed exe­cu­tions as a result of pan­dem­ic-relat­ed con­cerns. Nine exe­cu­tion war­rants were with­drawn, removed, or rescheduled.

Six of the stays cit­ed the COVID-19 pan­dem­ic and its impacts on the legal process. Six were legal­ly pre­ma­ture war­rants issued in Pennsylvania and Ohio, which were stayed to allow pris­on­ers to com­plete their guar­an­teed appeals. Two stays were grant­ed in fed­er­al exe­cu­tions that had been sched­uled for January 2020, but the fed­er­al gov­ern­ment issued new war­rants for both pris­on­ers lat­er in the year. The remain­ing stays were issued to per­mit lit­i­ga­tion of case-spe­cif­ic claims, includ­ing intel­lec­tu­al dis­abil­i­ty and access to a spir­i­tu­al advi­sor in the exe­cu­tion cham­ber. The South Carolina Supreme Court stayed what would have been the state’s first exe­cu­tion in nine years because it did not have a sup­ply of execution drugs.

The pan­dem­ic is like­ly to have a con­tin­u­ing influ­ence on the death penal­ty for the next sev­er­al years, dis­tort­ing the num­bers of new death sen­tences imposed and exe­cu­tions car­ried out. The num­bers will remain arti­fi­cial­ly low until the pan­dem­ic sub­sides, as court clo­sures and con­tin­u­ances delay death penal­ty tri­als and push back death war­rants and exe­cu­tions. Once courts return to full func­tion­ing, we are like­ly to see arti­fi­cial pan­dem­ic-relat­ed increas­es in both new death sen­tences and exe­cu­tions. Because of these dis­tor­tions, it will like­ly be sev­er­al years before we can reli­ably assess the impact of COVID-19 on U.S. death-penal­ty sen­tenc­ing and execution trends.

The inad­e­qua­cy of judi­cial review to pro­tect the inno­cent from wrong­ful cap­i­tal con­vic­tions stood out bold­ly in 2020, as six inno­cent men were exon­er­at­ed after decades on death row, two like­ly inno­cent men were exe­cut­ed, and sev­er­al oth­ers were grant­ed retri­als or entered a plea to crimes they did not com­mit to gain their free­dom. Official mis­con­duct con­tin­ued to be the lead­ing cause of wrong­ful cap­i­tal con­vic­tions, typ­i­cal­ly occur­ring along­side false accu­sa­tion, junk sci­ence, eye­wit­ness misiden­ti­fi­ca­tion, and ineffective representation. 

2020 Exonerations

The six exon­er­a­tions in 2020 brought the num­ber of doc­u­ment­ed death-row exon­er­a­tions in the United States since 1973 up to 173 individuals. 

On January 24, 2020, months after his release from prison, the Nevada Supreme Court affirmed the deci­sion of a Las Vegas tri­al court that had dis­missed all charges against for­mer death-row pris­on­er Paul Browning, for­mal­ly com­plet­ing his exon­er­a­tion. Browning’s case involved all of the lead­ing caus­es of wrong­ful con­vic­tions: offi­cial mis­con­duct, per­jury, false foren­sic evi­dence, eye­wit­ness misiden­ti­fi­ca­tion, and inad­e­quate rep­re­sen­ta­tion. His tri­al attor­ney had been prac­tic­ing crim­i­nal defense for less than a year and failed to inter­view the police who respond­ed to the scene, exam­ine the evi­dence against Browning, or inves­ti­gate the crime. This was only wors­ened by the fact that police and pros­e­cu­tors had with­held evi­dence of a bloody foot­print found at the scene that did not match Browning’s shoes or foot size and had mis­rep­re­sent­ed oth­er blood evi­dence in the case. The victim’s wife couldn’t iden­ti­fy Browning in a line-up and anoth­er white wit­ness from the scene claimed that she thought all Black peo­ple looked alike, yet both were allowed to tes­ti­fy at tri­al that Browning was the killer. 

Philadelphia saw two new death-row exonerees this year, with the six total exon­er­a­tions from that city since 1973 all involv­ing offi­cial mis­con­duct. In a dra­mat­ic vir­tu­al hear­ing held on June 5, a Pennsylvania judge agreed to over­turn Walter Ogrod​’s wrong­ful con­vic­tion and death sen­tence, reduc­ing the charges to third-degree mur­der so he could be released on bail. The Philadelphia District Attorney’s office dropped all charges a few days later.

Ogrod had con­sis­tent­ly main­tained his inno­cence in the 1988 mur­der and alleged sex­u­al assault of a four-year-old girl. His first tri­al end­ed in a mis­tri­al when one of the 12 jurors who had vot­ed to acquit changed his mind. Before his sec­ond tri­al, pros­e­cu­tors engaged the assis­tance of a noto­ri­ous jail­house infor­mant, who worked with anoth­er infor­mant to fab­ri­cate a con­fes­sion from Ogrod. That tes­ti­mo­ny, along with a false con­fes­sion elicit­ed after 14 hours of inter­ro­ga­tion by homi­cide detec­tives who had coerced false con­fes­sions in sev­er­al oth­er cas­es, sent Ogrod to death row. 

Ogrod’s exon­er­a­tion efforts gained new momen­tum with the sup­port of both the Philadelphia District Attorney’s office and Sharon Fahy, the moth­er of the mur­der vic­tim. A review of Ogrod’s case by the DA’s Conviction Integrity Unit (CIU) con­clud­ed that the evi­dence used to send Ogrod to death row had been ​“false, unre­li­able and incom­plete.” There had been no sex­u­al assault and autop­sy evi­dence showed that the mur­der had not been com­mit­ted in the man­ner pre­sent­ed by the pros­e­cu­tion. Ogrod’s con­vic­tion, CIU Chief Patricia Cummings said, was a ​“gross mis­car­riage of jus­tice,” marred by police and pros­e­cu­to­r­i­al mis­con­duct — includ­ing the pre­sen­ta­tion of junk sci­ence and false infor­mant tes­ti­mo­ny, and with­hold­ing excul­pa­to­ry evi­dence con­cern­ing the cause of the young girl’s death.

Former Pennsylvania death-row pris­on­er Kareem Johnson was exon­er­at­ed on July 1, 2020, thir­teen years after being wrong­ful­ly con­vict­ed and sen­tenced to death by a Philadelphia jury. The pros­e­cu­tion, police, and a pros­e­cu­tion foren­sic ana­lyst told the jury that Johnson had shot the vic­tim, Walter Smith, at close range, based on a blood-splat­tered base­ball cap that sup­pos­ed­ly had been recov­ered at the mur­der scene and con­tained Johnson’s sweat. In fact, there was no blood on the hat recov­ered on the ground near the scene, nor did the ini­tial DNA sam­ples col­lect­ed from the hat link the sweat to Johnson. Instead, the victim’s blood was on a dif­fer­ent hat that the vic­tim him­self had been wear­ing when he was shot. When post-con­vic­tion coun­sel dis­cov­ered this dis­crep­an­cy, pros­e­cu­tors claimed the error had been an accidental mix-up. 

The Philadelphia DA’s office agreed in April 2015 that Johnson’s con­vic­tion should be over­turned but stip­u­lat­ed that the rever­sal was based only ​“on inef­fec­tive assis­tance of coun­sel at the guilty-inno­cence phase of tri­al.” Johnson moved to bar his retri­al on dou­ble jeop­ardy grounds. However, despite describ­ing the prosecution’s behav­ior as ​“extreme­ly neg­li­gent, per­haps even reck­less,” the low­er courts allowed the retri­al to pro­ceed. On May 19, the Pennsylvania Supreme Court reversed, find­ing that the mis­con­duct — even if not deemed inten­tion­al — was so severe that retry­ing Johnson would vio­late his con­sti­tu­tion­al rights. All charges were for­mal­ly dis­missed on July 1.

After six tri­als marred by pros­e­cu­to­r­i­al mis­con­duct and racial prej­u­dice that drew a scathing rebuke from the U.S. Supreme Court, for­mer Mississippi death-row pris­on­er Curtis Flowers was offi­cial­ly exon­er­at­ed on September 4, 2020. Flowers, who is African American, was tried for cap­i­tal mur­der six times by the same white pros­e­cu­tor, Fifth Circuit Court District Attorney Doug Evans. Four of the tri­als result­ed in con­vic­tions and death sen­tences imposed by all-white or near­ly all-white juries, but each con­vic­tion was over­turned for pros­e­cu­to­r­i­al mis­con­duct. Despite Evans’ relent­less efforts to send Flowers to death row, the only direct evi­dence of guilt came from a jail­house infor­mant who claimed that Flowers had con­fessed to the mur­ders. The infor­mant lat­er admit­ted to fab­ri­cat­ing this confession.

The U.S. Supreme Court vacat­ed Flowers’ sen­tence in 2019 based on Evans’ uncon­sti­tu­tion­al removal of Black jurors. Justice Brett Kavanaugh wrote that Evans’ ​“relent­less, deter­mined effort to rid the jury of black indi­vid­u­als strong­ly sug­gests that the State want­ed to try Flowers before a jury with as few black jurors as pos­si­ble, and ide­al­ly before an all-white jury.” Following the Supreme Court’s rever­sal, Evans expressed his inten­tion to try Flowers for a sev­enth time. However, after a fed­er­al law­suit was filed to pre­vent Evans from engag­ing in future acts of jury dis­crim­i­na­tion and Flowers’ defense team moved to remove his office from the case, Evans vol­un­tar­i­ly with­drew from the case. Attorney General Lynn Fitch took over the pros­e­cu­tion, reviewed the case, and filed a motion to dis­miss the charges against Flowers. The tri­al court grant­ed the motion, leav­ing Flowers ​“final­ly free from the injus­tice that left [him] locked in a box for near­ly 23 years.”

Robert DuBoise was released from prison in Florida in August 2020 after new DNA evi­dence proved his inno­cence. DuBoise had been con­vict­ed of rape and cap­i­tal mur­der based on junk-sci­ence bite-mark evi­dence and false tes­ti­mo­ny from a prison infor­mant. The jury unan­i­mous­ly rec­om­mend­ed that DuBoise be sen­tenced to life, but his tri­al judge, Henry Lee Coe III, over­rode their rec­om­men­da­tion and sen­tenced DuBoise to be exe­cut­ed in Florida’s elec­tric chair. In February 1988, the Florida Supreme Court resen­tenced him to life in prison instead, rul­ing that the tri­al court should not have over­rid­den the jury. At an evi­den­tiary hear­ing in September 2020, all of DuBoise’s charges were for­mal­ly dis­missed, and DuBoise became Florida’s 30^th death-row exoneree since 1973, the state with the most exon­er­a­tions in the nation. The state has exe­cut­ed 99 pris­on­ers dur­ing that peri­od, or one exon­er­a­tion for every 3.3 exe­cu­tions. Until 2016, Florida per­mit­ted tri­al judges to impose death sen­tences despite jury rec­om­men­da­tions for life or based on non-unan­i­mous jury votes for death. Including DuBoise’s case, in 22 of the 24 Florida exon­er­a­tions for which the jury’s sen­tenc­ing rec­om­men­da­tion is known, the jury either rec­om­mend­ed a life sen­tence or was not unan­i­mous in recommending death.

Roderick Johnson was exon­er­at­ed from Pennsylvania’s death row on December 1, becom­ing the third per­son exon­er­at­ed in Pennsylvania this year, when the Pennsylvania Attorney General’s office declined to appeal a tri­al court order bar­ring his repros­e­cu­tion because of ​“egre­gious” pros­e­cu­to­r­i­al mis­con­duct. Johnson’s wrong­ful con­vic­tion was based on the tes­ti­mo­ny of a drug deal­er and police infor­mant who had repeat­ed­ly avoid­ed pros­e­cu­tion by pro­vid­ing infor­ma­tion to police in oth­er cas­es. The tri­al pros­e­cu­tor, then-Berks County District Attorney Mark Baldwin, sup­pressed five sep­a­rate police reports that doc­u­ment­ed the witness’s crim­i­nal­i­ty and the ben­e­fits he had received from police in exchange for his past coop­er­a­tion. Judge Eleni Dimitriou Geishauser, who dis­missed all charges against Johnson, wrote an opin­ion exco­ri­at­ing Baldwin for the ​“delib­er­ate nature of his con­temp­tu­ous behav­ior,” which she said was ​“evi­dent in the fact that he bla­tant­ly lied about his knowl­edge of the reports direct­ly to the court.”

Executed But Likely Innocent

Three of the 17 peo­ple exe­cut­ed in 2020 raised sig­nif­i­cant claims of inno­cence. Their cas­es high­light­ed the dan­ger of junk sci­ence, an ongo­ing pat­tern of denial of poten­tial­ly excul­pa­to­ry DNA test­ing, and the racial dis­par­i­ties that are present in innocence cases.

Donnie Lance was sen­tenced to death for the mur­der of his ex-wife and her boyfriend. Lance main­tained his inno­cence and sought DNA test­ing that he said would exon­er­ate him. His chil­dren, who were also the chil­dren of the vic­tim, joined in ask­ing the state to grant the request. The pros­e­cu­tors opposed DNA test­ing and the Georgia courts denied Lance’s request. ​“It’s just mind-bog­gling that we have this evi­dence, but the state of Georgia is not will­ing to tru­ly try to find out if this man is inno­cent before they kill him,” Lance’s son, Jessie, said. 

Former Georgia Governor Roy Barnes said that dur­ing his tenure, he instruct­ed the Board of Pardons and Paroles to per­mit requests for DNA test­ing. ​“I was not going to take the risk of an inno­cent man being exe­cut­ed,” he said. ​“Even one mis­take in a death case can­not be tol­er­at­ed. There have just been too many cas­es where years lat­er DNA exon­er­at­ed some­one.” Lance was the third con­sec­u­tive Georgia pris­on­er exe­cut­ed after being denied poten­tial­ly excul­pa­to­ry DNA testing.

Alabama’s exe­cu­tion of Nathaniel Woods fea­tured sev­er­al hall­marks of wrong­ful con­vic­tion: offi­cial mis­con­duct, coerced infor­mant tes­ti­mo­ny, and racial dis­crim­i­na­tion. Woods was sen­tenced to death for the killings of three police offi­cers in June 2004. Prosecutors acknowl­edge that Woods’ co-defen­dant, Kerry Spencer, shot the offi­cers in an inci­dent in a drug house. Spencer con­fessed to hav­ing shot the offi­cers, but says he did so in self-defense after they had beat­en Woods dur­ing a shake­down and point­ed a gun at him. Knowing he was not the shoot­er, pros­e­cu­tors offered Woods a plea deal for 20 – 25 years, but his tri­al lawyer advised him not to take it, mis­in­form­ing him that he could not be con­vict­ed of cap­i­tal mur­der as an accomplice. 

After Woods, who is Black, turned down the plea deal, pros­e­cu­tors claimed at tri­al that he had been the mas­ter­mind of a plan to kill the three white offi­cers because he sup­pos­ed­ly hat­ed police. In sup­port of that new the­o­ry, they pre­sent­ed tes­ti­mo­ny from Woods’ girl­friend that he had made com­ments about his hatred of police. But even before the tri­al, she recant­ed. ​“I made that up. I told y’all what you want­ed to hear,” she said at a pretrial hearing. 

Woods’ appeal alleged that police threat­ened to charge her with parole vio­la­tions if she did not tes­ti­fy. At tri­al, the court refused to allow the defense to present evi­dence of police misconduct. 

Spencer called Woods ​“100 per­cent inno­cent.” ​“Nate ain’t done noth­ing,” he said. ​“All he did that day was get beat up and he ran.”

Walter Barton’s con­vic­tion in Missouri relied on junk sci­ence tes­ti­mo­ny that assert­ed small blood stains on Barton’s clothes were ​“impact stains” from ​“high veloc­i­ty” blood spat­ter, which the pros­e­cu­tion argued occurred while Barton was pur­port­ed­ly stab­bing 81-year-old Gladys Kuehler. However, a 2015 analy­sis by crime scene ana­lyst Lawrence Renner con­clud­ed that the blood­stains on Barton’s clothes were actu­al­ly ​“trans­fer stains,” like­ly caused by con­tact with oth­er blood­stains. Kuehler had been stabbed 50 times, and Renner said that the per­pe­tra­tor of such a griz­zly mur­der would have been cov­ered in the victim’s blood. Barton was one of three peo­ple, along with a neigh­bor and Kuehler’s grand­daugh­ter, Debbie Selvidge, who dis­cov­ered her body. He says he pulled Selvidge away from Kuehler’s body, get­ting droplets of Kuehler’s blood on his clothes. Prior to the exe­cu­tion, three jurors who had vot­ed to con­vict Barton signed affi­davits say­ing that the new analy­sis of evi­dence from the case would have affect­ed their deci­sion to convict him.

Growing National Attention to Issues of Innocence, Race

As issues of inno­cence and racial dis­crim­i­na­tion come to the fore­front of the nation­al con­scious­ness, mul­ti­ple death-row pris­on­ers’ cas­es made mainstream news.

As the Black Lives Matter move­ment reignit­ed con­ver­sa­tions about insti­tu­tion­al racism in the United States over the sum­mer, a grow­ing coali­tion of state leg­is­la­tors, legal asso­ci­a­tions, faith lead­ers, and com­mu­ni­ty groups in Memphis called for the courts to per­mit DNA test­ing that could poten­tial­ly exon­er­ate Pervis Payne, a Black death-row pris­on­er who may be both inno­cent and intel­lec­tu­al­ly dis­abled and who has been denied access to the courts to review those claims. At Payne’s racial­ly charged tri­al, pros­e­cu­tors char­ac­ter­ized Payne — a pastor’s son who had no pri­or record, no his­to­ry of drug use, and no his­to­ry of vio­lence — as a sex­u­al­ly preda­to­ry Black man, high on drugs, who attacked a white woman. Without evi­dence, they assert­ed that Payne had sex­u­al­ly assault­ed Charisse Christopher, show­ing the jury a bloody tam­pon that they assert­ed he had pulled from her body. However, the tam­pon did not appear in any of the police pho­tos or video tak­en at the crime scene. Following this wide-spread sup­port from the African-American com­mu­ni­ty and cit­ing the coro­n­avirus pan­dem­ic, Governor Bill Lee grant­ed a tem­po­rary reprieve to Payne, halt­ing his December 3, 2020 exe­cu­tion until at least April 9, 2021.

The inno­cence case of Oklahoma death-row pris­on­er Julius Jones, a Black high school sports star and hon­ors stu­dent sen­tenced to death in 1999 for the mur­der of a promi­nent white busi­ness­man, received broad pub­lic sup­port in 2020 from high-pro­file celebri­ties, ath­letes, and racial jus­tice orga­ni­za­tions. At the start of the 2020 National Football League sea­son, Dallas Cowboys quar­ter­back Dak Prescott and Cleveland Browns quar­ter­back Baker Mayfield, who played col­le­giate foot­ball at the University of Oklahoma, raised pub­lic aware­ness about Jones’ case, writ­ing let­ters to Governor Kevin Stitt urg­ing him to grant clemen­cy and wear­ing decals on their hel­mets sup­port­ing Jones. The quar­ter­backs joined NBA stars Blake Griffin, Trae Young, and Russell Westbrook in sup­port­ing Jones’ clemen­cy peti­tion, which was sub­mit­ted to the Pardon and Parole Board in October 2019. By mid-2020, an online peti­tion call­ing for clemen­cy had gained near­ly 6 mil­lion sig­na­tures, and rap super­star Common and real­i­ty TV celebri­ty Kim Kardashian West called atten­tion to his case. Black Lives Matter — OKC includ­ed his com­mu­ta­tion as one of its demands for local crim­i­nal legal system reforms.

Junk Science Implicated in Wrongful Convictions in 2020

In October, a three-judge pan­el in Madison County, Ohio acquit­ted Peter Romans, who had been charged with cap­i­tal mur­der for alleged­ly start­ing a fire to burn down his house with his wife and chil­dren inside in 2008. While pros­e­cu­tors the­o­rized that Romans poured gaso­line on the driver’s side of his car and inten­tion­al­ly set it ablaze, the defense pre­sent­ed expert tes­ti­mo­ny that the fire had instead been caused by a faulty cruise-con­trol deac­ti­va­tion switch in his Ford Expedition. At the time of the fire, Ford had issued a recall for the faulty switch because it had been impli­cat­ed in spon­ta­neous vehi­cle fires, some of which occurred when the engine was off, but Romans’ SUV had not been repaired after the recall. Because the car had sus­tained so much dam­age in the 2008 fire, inves­ti­ga­tors didn’t pro­nounce it a case of arson for more than a year. The deaths were not declared homi­cides until 2011, three years after the fire. Romans’ indict­ment for cap­i­tal mur­der didn’t occur until a full decade after the tragedy. His defense lawyer asked, ​“Why now? … What evi­dence has changed after 11 years?” Romans’ case is one of many involv­ing junk arson sci­ence, and the National Academies of Science have warned since 2009 that ​“many of the rules of thumb that are typ­i­cal­ly assumed to indi­cate that an accel­er­ant was used [to start a fire] … have been shown not to be true.”

The Mississippi Supreme Court grant­ed a new tri­al to death-row pris­on­er Eddie Lee Howard, Jr. in August 2020, based on sci­en­tif­i­cal­ly invalid bitemark evi­dence and new DNA evi­dence. First con­vict­ed in 1994, Howard’s death sen­tence was over­turned, but he was sen­tenced to death once again in 1997 in a retri­al fea­tur­ing tes­ti­mo­ny from foren­sic odon­tol­o­gist Dr. Michael West. West assert­ed that Howard was the source of bite marks he claimed to have found on the victim’s body dur­ing a post-autop­sy, yet the ini­tial autop­sy by Dr. Steven Hayne had not­ed no such marks. Bitemark-iden­ti­fi­ca­tion claims such as those made by West were the sub­ject of blis­ter­ing crit­i­cism by the National Academies of Science in a land­mark 2009 report, expos­ing the field of foren­sic odon­tol­ogy as lack­ing any ​“evi­dence of an exist­ing sci­en­tif­ic basis for iden­ti­fy­ing an indi­vid­ual to the exclu­sion of all others.”

“Mr. Howard has been in prison for almost thir­ty years, almost all of that time on death row, slat­ed to be exe­cut­ed,” Mississippi Innocence Project direc­tor Tucker Carrington said in a state­ment. ​“It’s now time to bring this case to an end — and to close anoth­er door on a dis­as­trous era of injus­tice in this state.”

Prosecutorial Misconduct and Innocence

Johnny Lee Gates was freed from death row in May 2020, 43 years after being sen­tenced to death in Georgia for a mur­der he has stead­fast­ly main­tained he did not com­mit. Gates entered a ​“Alford plea” on charges of manslaugh­ter and armed rob­bery, mean­ing he did not admit guilt but also con­ced­ed that pros­e­cu­tors had enough evi­dence to orig­i­nal­ly con­vict him. After giv­ing a con­fes­sion his lawyers say was coerced, the intel­lec­tu­al­ly dis­abled Gates has main­tained his inno­cence. During the appeals process, Gates’ defense attor­neys obtained jury selec­tion notes from the tri­al pros­e­cu­tors that demon­strat­ed how they sys­tem­at­i­cal­ly exclud­ed Black prospec­tive jurors to empan­el all-white or near­ly all-white juries in numer­ous cap­i­tal tri­als. New evi­dence of neck­ties and a bathrobe belt used to bind the vic­tim were even unearthed in 2015 by two Innocence Project interns after the pros­e­cu­tion had false­ly assert­ed that no phys­i­cal evi­dence was ever dis­cov­ered at the scene of the crime. 

Data from recent death-row exon­er­a­tions high­light a dis­turb­ing pat­tern of pros­e­cu­to­r­i­al mis­con­duct, includ­ing the use or threat­ened use of the death penal­ty to secure false con­fes­sions from or false tes­ti­mo­ny again inno­cent defen­dants. DPIC’s October 2020 report, Use or Threat of Death Penalty Implicated in 19 Exoneration Cases in 2019, found that pros­e­cu­tors or police offi­cers had used the threat of death penal­ty as a coer­cive tool that led to or extend­ed the wrong­ful con­vic­tions of more than 13% of the 143 exon­er­a­tions report­ed in the National Registry of Exonerations annu­al review of the pre­vi­ous year’s cas­es. Those 19 indi­vid­u­als alone lost a com­bined 500 years of free­dom to wrong­ful incar­cer­a­tion. As DPIC Executive Director Robert Dunham explained, ​“The data sug­gest that the mis­use of the death penal­ty as a coer­cive inter­ro­ga­tion and plea-bar­gain­ing tool pos­es a far greater threat to the fair admin­is­tra­tion of the crim­i­nal laws than we had previously imagined.”

Two states grant­ed clemen­cy to death-row pris­on­ers in 2020.

In January, the Georgia Board of Pardons and Paroles grant­ed clemen­cy to death-row pris­on­er Jimmy Meders, just six hours before his sched­uled exe­cu­tion, com­mut­ing his death sen­tence to life with­out the pos­si­bil­i­ty of parole. The Board issued its deci­sion after receiv­ing affi­davits from every liv­ing mem­ber of the jury from Meders’ 1989 tri­al, all stat­ing that they would have imposed a life sen­tence with­out parole instead of the death penal­ty if they had been pro­vid­ed that sen­tenc­ing option at the time of tri­al. Meders is the 10^th death-row pris­on­er grant­ed clemen­cy in Georgia and the 291^st in the U.S. since 1976. Meders’ case was the first time the Board had grant­ed clemen­cy to a death-row pris­on­er since the state leg­is­la­ture enact­ed a new law in 2015 requir­ing the board to pro­vide an expla­na­tion for its deci­sion when­ev­er it com­mutes a death sen­tence, but not when it rejects a clemency application.

Following the abo­li­tion of the death penal­ty in Colorado in March, Governor Jared Polis com­mut­ed the sen­tences of the state’s three remain­ing death-row pris­on­ers to life impris­on­ment with­out the pos­si­bil­i­ty of parole. In a state­ment issued at the time of the com­mu­ta­tions, Polis said that he removed Nathan Dunlap, Sir Mario Owens, and Robert Ray from death row to reflect the real­i­ty that ​“the death penal­ty can­not be, and nev­er has been, admin­is­tered equi­tably in the State of Colorado.”

The exe­cu­tions in 2020 con­tin­ued to raise ques­tions con­cern­ing the appar­ent unwill­ing­ness of state and fed­er­al pros­e­cu­tors and the courts to lim­it cap­i­tal pun­ish­ment to the most seri­ous mur­ders and the most cul­pa­ble defen­dants. As in recent years, those exe­cut­ed in 2020 dis­pro­por­tion­ate­ly reflect­ed the most vul­ner­a­ble or impaired pris­on­ers, rather than the most cul­pa­ble ones. All but one pris­on­er exe­cut­ed in 2020 had evi­dence of one or more of the fol­low­ing sig­nif­i­cant impair­ments: seri­ous men­tal ill­ness (8); brain injury, devel­op­men­tal brain dam­age, or an IQ in the intel­lec­tu­al­ly dis­abled range (6); chron­ic seri­ous child­hood trau­ma, neglect, and/​or abuse (14). In addi­tion, three of the sev­en­teen exe­cut­ed pris­on­ers were teenagers and four were under 21 years old at the time of their offens­es, plac­ing them in a cat­e­go­ry that neu­ro­science research has shown is mate­ri­al­ly indis­tin­guish­able in brain devel­op­ment and exec­u­tive func­tion­ing from juve­nile offend­ers who are exempt from execution. 

The year’s exe­cu­tions also high­light­ed numer­ous sys­temic prob­lems in the appli­ca­tion of the death penal­ty, includ­ing racial bias, the vio­la­tion of Native American trib­al sov­er­eign­ty, dis­re­gard­ing the wish­es of vic­tims’ fam­i­ly mem­bers, inef­fec­tive rep­re­sen­ta­tion, and inad­e­quate appellate review.

Donnie Lance main­tained his inno­cence in the killing of his ex-wife, Joy Lance. His adult chil­dren, who were also the chil­dren of the vic­tim, sup­port­ed his request for DNA test­ing and asked the state to grant clemen­cy. In 2019, three U.S. Supreme Court jus­tices dis­sent­ed from the Court’s refusal to review Lance’s claim of inef­fec­tive assis­tance of coun­sel. His tri­al coun­sel failed to present any mit­i­gat­ing evi­dence, even though Lance had brain dam­age from repeat­ed head trau­mas. Justice Sonia Sotomayor wrote that allow­ing the exe­cu­tion ​“per­mits an egre­gious break­down of basic pro­ce­dur­al safe­guards to go unremedied.” 

Lance’s appel­late lawyers also argued that the cap­i­tal charges against him were the prod­uct of impro­pri­eties in the legal process. In a motion filed in the Georgia Supreme Court, he pre­sent­ed evi­dence that pros­e­cu­tors had ille­gal­ly cor­rupt­ed the indict­ment process by stack­ing the jury with hand-select­ed friends and allies, rather than ran­dom­ly select­ing mem­bers as required by law.

Abel Ochoa, a Texas pris­on­er with brain dam­age and men­tal ill­ness result­ing from his drug addic­tion, was exe­cut­ed on February 6 after courts declined to hear his claim that the state uncon­sti­tu­tion­al­ly inter­fered in the clemen­cy process by pre­vent­ing him from sub­mit­ting evi­dence in sup­port of his clemency application. 

Nicholas Sutton was exe­cut­ed in Tennessee on February 20, 2020. Governor Bill Lee declined to grant clemen­cy, despite affi­davits of sup­port from sev­en Tennessee cor­rec­tion­al offi­cials, mem­bers of the vic­tims’ fam­i­lies, and five of the jurors in Sutton’s case. ​“Five Tennesseans, includ­ing three prison staff mem­bers, owe their lives to him,” the peti­tion said. The peti­tion sup­port­ed that claim with state­ments from two cor­rec­tions offi­cers who said that Sutton had saved their lives, and an ear­li­er state­ment by a since-deceased sheriff’s deputy that described how Sutton had pro­tect­ed him from an attack by another prisoner. 

The clemen­cy peti­tion doc­u­ment­ed Sutton’s trans­for­ma­tion from a man who expe­ri­enced extreme abuse and trau­ma dur­ing child­hood that impaired his rea­son­ing and judg­ment, to one who had expe­ri­enced remark­able growth dur­ing his time in prison. Former cor­rec­tions offi­cer Tony Eden wrote, ​“Nick Sutton is a prime exam­ple of a person’s abil­i­ty to change and that those con­vict­ed of mur­der can be reha­bil­i­tat­ed. If Nick Sutton was released tomor­row, I would wel­come him into my home and invite him to be my neighbor.”

Nathaniel Woods’ racial­ly charged Alabama con­vic­tions and death sen­tences were taint­ed by evi­dence of police cor­rup­tion, intim­i­da­tion of wit­ness­es, and inad­e­quate rep­re­sen­ta­tion. Prosecutors acknowl­edged that Woods’ co-defen­dant, Kerry Spencer, shot three white police offi­cers in an inci­dent in a drug house on June 17, 2004. Spencer acknowl­edged that he alone had shot the offi­cers but main­tained that he did so in self-defense after they had beat­en Woods dur­ing a shake­down and point­ed a gun at him. It was undis­put­ed that Woods was not the shoot­er, and the pros­e­cu­tion ini­tial­ly offered him a plea deal for 20 – 25 years in prison. However, he turned down the deal based on erro­neous advice from his coun­sel that he could not be con­vict­ed of cap­i­tal mur­der as an accom­plice. After Woods, who is Black, turned down the offer, pros­e­cu­tors changed their the­o­ry of the case to assert at tri­al that Woods sup­pos­ed­ly hat­ed police and had mas­ter­mind­ed a plan to lure the offi­cers to their deaths.

The first exe­cu­tion car­ried out after the COVID-19 pan­dem­ic reached the United States was that of Walter Barton in Missouri on May 19. Barton’s con­vic­tion relied on junk sci­ence con­tra­dict­ed by lat­er expert analy­sis. Barton main­tained his inno­cence in the mur­der of 81-year-old Gladys Kuehler. Repudiated blood spat­ter evi­dence and the tes­ti­mo­ny of a prison infor­mant who had been con­vict­ed 29 times for fraud, forgery, and relat­ed offens­es were the pri­ma­ry evi­dence against Barton. Prior to the exe­cu­tion, three jurors who had vot­ed to con­vict Barton signed affi­davits say­ing that the new analy­sis of evi­dence from the case would have affect­ed their deci­sion to convict him.

Billy Joe Wardlow was 18 years old when he killed 82-year-old Carl Cole. The trou­bled teen of a bru­tal­ly abu­sive moth­er, Wardlow had attempt­ed sui­cide three times between age 15 and 18. Weeks before the mur­der, he report­ed­ly tried to dri­ve a stolen truck off a bridge. He killed Cole dur­ing a botched attempt to steal Cole’s car so that Wardlow and his girl­friend could pur­sue their fan­ta­sy of run­ning away from their abu­sive homes to start a new life in Montana.

Wardlow was sen­tenced to death based upon false but uncon­test­ed tes­ti­mo­ny by a crim­i­nal inves­ti­ga­tor for the Texas Special Prosecution Unit that he posed a con­tin­u­ing threat to soci­ety if the jury sen­tenced him to life because he would be housed in the gen­er­al prison pop­u­la­tion, where his pres­ence would put prison guards and oth­ers at risk. Wardlow chal­lenged the state’s use of ​“future dan­ger­ous­ness” find­ings to impose the death penal­ty on defen­dants younger than age 21 at the time of their offense, argu­ing that such find­ings ​“are inher­ent­ly unre­li­able” in light of the ongo­ing devel­op­ment of the ado­les­cent brain. His claims were sup­port­ed by neu­ro­science pro­fes­sion­als includ­ing the American Academy of Pediatric Neuropsychology, the Center for Law, Brain and Behavior at Massachusetts General Hospital, and the Society for Adolescent Health and Medicine, as well eight lead­ing experts in brain research and adolescent behavior. 

Wardlow was exe­cut­ed on July 8. He was the fourth Texas pris­on­er exe­cut­ed since 2019 after false future-dan­ger­ous­ness tes­ti­mo­ny by Texas Special Prosecution Unit criminal investigators.

On July 14, Daniel Lewis Lee became the first per­son exe­cut­ed by the U.S. fed­er­al gov­ern­ment in 17 years. The gov­ern­ment pro­ceed­ed with the exe­cu­tion under an arti­fi­cial­ly rushed timetable that pre­vent­ed courts from con­duct­ing evi­den­tiary hear­ings that were nec­es­sary to adju­di­cate a series of com­plex issues con­cern­ing the legal­i­ty and con­sti­tu­tion­al­i­ty of the fed­er­al exe­cu­tion process. Lee’s exe­cu­tion was opposed by the vic­tims’ fam­i­ly, the tri­al pros­e­cu­tor, and the tri­al judge. The European Union and more than 1,000 faith lead­ers from a vari­ety of reli­gious back­grounds joined them in call­ing for clemency. 

By car­ry­ing out the exe­cu­tion in the midst of a glob­al pan­dem­ic, the gov­ern­ment forced the vic­tims’ fam­i­ly – includ­ing Earlene Peterson, the 81-year-old moth­er and grand­moth­er of the vic­tims – to choose between attend­ing the exe­cu­tion and risk­ing their health. The fam­i­ly filed suit to delay the exe­cu­tion until the pan­dem­ic was over, and a fed­er­al dis­trict court in Indiana issued an injunc­tion against the exe­cu­tion. The Department of Justice suc­cess­ful­ly appealed the injunc­tion, derid­ing the family’s law­suit as ​“friv­o­lous” and their fear of con­tract­ing the coro­n­avirus as a mere trav­el incon­ve­nience. Monica Veillette, a cousin and niece of the two vic­tims, said the government’s con­duct retrau­ma­tized her fam­i­ly. ​“Over and over it’s been said that it’s being done for my aunt and cousin, it’s being done for our fam­i­ly,” she said. ​“And in the end, they com­plete­ly dismissed us.” 

The exe­cu­tion itself was marked by chaos. A flur­ry of last-minute court rul­ings caused by the com­pressed exe­cu­tion sched­ule, includ­ing a dis­trict court injunc­tion based upon the like­ly uncon­sti­tu­tion­al­i­ty of the fed­er­al exe­cu­tion pro­to­col, pushed Lee’s exe­cu­tion past the mid­night expi­ra­tion of his notice of exe­cu­tion. In the predawn hours of the morn­ing of July 14, the U.S. Supreme Court vacat­ed the injunc­tion and denied oth­er appli­ca­tions to stay the exe­cu­tion. The Bureau of Prisons (BOP) began prepar­ing Lee for exe­cu­tion around 4 a.m., strap­ping him to the gur­ney and read­ing him a new notice of exe­cu­tion. Notified by defense coun­sel that a stay of exe­cu­tion was still in effect from an Arkansas fed­er­al court rul­ing in December 2019, the BOP left Lee strapped to the exe­cu­tion gur­ney for near­ly four hours while pros­e­cu­tors filed motions in the fed­er­al appeals court to ter­mi­nate the stay. The appeals court lift­ed the stay at 7:36 a.m. Without noti­fy­ing defense coun­sel, BOP pro­ceed­ed with the exe­cu­tion, even as mul­ti­ple motions in his case were still pend­ing. Lee was declared dead at 8:07 a.m.

The sched­uled July 15 exe­cu­tion of Wesley Purkey fol­lowed a sim­i­lar­ly tumul­tuous path. Purkey’s lawyers argued that, because of the com­bined effects of schiz­o­phre­nia, brain dam­age, and demen­tia, he had become men­tal­ly incom­pe­tent and was inel­i­gi­ble for exe­cu­tion. They sought a stay of exe­cu­tion so the dis­trict court could con­duct a hear­ing to deter­mine his com­pe­ten­cy. Around 2:45 a.m. on July 16, after the exe­cu­tion notice had expired, the Court vot­ed 5 – 4 to per­mit the exe­cu­tion to pro­ceed. Justice Sonia Sotomayor, joined by Justices Breyer, Ginsburg, and Kagan, authored a vig­or­ous dis­sent sharply crit­i­ciz­ing the Court’s ​“deci­sion to short­cut judi­cial review and per­mit the exe­cu­tion of an indi­vid­ual who may well be incompetent.” 

With motions still pend­ing in the U.S. Court of Appeals for the Seventh Circuit, Purkey was exe­cut­ed at 8:19 a.m. His attor­ney, Rebecca Woodman, wrote, ​“We should expect more of our fed­er­al gov­ern­ment than the rushed exe­cu­tion of a dam­aged and delu­sion­al old man. As the dis­trict court in Washington, D.C. quot­ed …, ​‘the pub­lic inter­est has nev­er been and could nev­er be served by rush­ing to judg­ment at the expense of a con­demned inmate’s con­sti­tu­tion­al rights.’ What hap­pened today is truly abhorrent.”

Dustin Honken’s fed­er­al exe­cu­tion on July 17 marked the first time in the mod­ern era of the death penal­ty that a pris­on­er was exe­cut­ed for a crime com­mit­ted in a state that had abol­ished the death penal­ty. Honken was con­vict­ed of a 1993 mur­der in Iowa. He chal­lenged infor­mant tes­ti­mo­ny against him, say­ing that the infor­mants had coor­di­nat­ed their tes­ti­mo­ny and pros­e­cu­tors with­held evi­dence that could have been used to impeach their credibility.

Lezmond Mitchell, a Navajo cit­i­zen, was exe­cut­ed on August 26 in a case that raised sig­nif­i­cant ques­tions about the fed­er­al government’s respect for Native American trib­al sov­er­eign­ty. Mitchell was the first Native American exe­cut­ed by the fed­er­al gov­ern­ment for a crime com­mit­ted against a mem­ber of his own tribe on trib­al lands. The Navajo Nation gov­ern­ment has long opposed the death penal­ty as incon­sis­tent with its cul­ture and tra­di­tions and repeat­ed­ly object­ed to the U.S. Department of Justice’s deci­sion to seek and car­ry out the death penal­ty for a crime com­mit­ted on its lands. The National Congress of American Indians, thir­teen trib­al gov­ern­ments, and more than 230 mem­bers from more than 90 U.S. tribes and Alaska native com­mu­ni­ties joined Navajo Nation President Jonathan Nez in ask­ing for clemen­cy for Mitchell. 

Mitchell alleged that his con­vic­tion and death sen­tence were the prod­uct of jurors’ anti-Native American bias. In sup­port of that claim, he attempt­ed to argue that pros­e­cu­tors first dis­crim­i­na­to­ri­ly exclud­ed Native Americans from his jury and then pre­sent­ed racial­ly deroga­to­ry argu­ments to the jury. However, the tri­al court barred his defense team from inter­view­ing jurors to prove the claim, defer­ring to Arizona state law pro­hibit­ing post-tri­al con­tact with jurors. He sought to reopen his appeals after the U.S. Supreme Court ruled in 2017 in Peña-Rodriguez v. Colorado that state rules against impeach­ing the jury’s ver­dict can­not be used to pre­vent a defen­dant from pre­sent­ing juror tes­ti­mo­ny show­ing that the ver­dict was a prod­uct of racial bias. The low­er fed­er­al courts ruled that they would not afford the pro­tec­tions of Peña-Rodriguez to cas­es like Mitchell’s that had com­plet­ed their direct appeals before it was decid­ed, and the Supreme Court refused to hear Mitchell’s appeal. He was exe­cut­ed with­out an oppor­tu­ni­ty to inves­ti­gate and present his bias claim.

Keith Nelson was exe­cut­ed on August 28, 2020. Nelson expe­ri­enced symp­toms of psy­chosis and was very like­ly brain dam­aged before birth as a result of Fetal Alcohol Syndrome. Prior to the penal­ty phase of his tri­al, Nelson attempt­ed sui­cide, but his tri­al attor­neys did lit­tle to inves­ti­gate his men­tal health. A peti­tion to the U.S. Supreme Court described his upbring­ing as a ​“relent­less bar­rage of trau­ma,” includ­ing phys­i­cal and sex­u­al abuse. His tri­al lawyers failed to present any evi­dence of his men­tal impair­ments to the jury dur­ing his tri­al. In February 2020, the U.S. Supreme Court declined to hear his case.

William LeCroy was exe­cut­ed on September 22. His attor­ney, who has under­ly­ing health con­di­tions that place him at high risk for COVID-19, was unable to vis­it LeCroy to con­sult with him on crit­i­cal pre-exe­cu­tion lit­i­ga­tion and clemen­cy efforts, and could not attend the exe­cu­tion. The U.S. Supreme Court denied his request for a stay because of this denial of access to counsel.

Christopher Vialva and Brandon Bernard were the first teenage offend­ers put to death by the fed­er­al gov­ern­ment in near­ly 70 years. Vialva was 19 years old and Bernard 18 when they and three co-defen­dants, aged 15, 16, and 16, killed a Texas cou­ple dur­ing a car­jack­ing and rob­bery. In a com­men­tary pub­lished before Vialva’s exe­cu­tion, Dr. Jason Chein, the direc­tor of the Temple University Brain Research and Imaging Center, wrote that while this was clear­ly an abhor­rent act, ​“to make a final judg­ment about a person’s life based on a crime he com­mit­ted as a teenag­er is to ignore what the last 20-plus years of research has taught us about the devel­op­ing brains of teenagers and ado­les­cents.” Vialva was exe­cut­ed on September 24 and Bernard on December 10.

Vialva argued that his tri­al had been marred by inef­fec­tive and con­flict­ed coun­sel who failed to inves­ti­gate the exten­sive evi­dence of his trau­mat­ic child­hood and cog­ni­tive impair­ments. Unknown to Vialva, his lawyer was active­ly seek­ing employ­ment with the U.S. Attorney’s Office that was pros­e­cut­ing the case dur­ing the time he was rep­re­sent­ing Vialva. Vialva lat­er dis­cov­ered that his tri­al judge had presided over his tri­al and post-con­vic­tion pro­ceed­ings while bat­tling uncon­trolled alco­holism and was report­ed­ly intox­i­cat­ed while con­duct­ing his judi­cial duties. The judge even­tu­al­ly resigned under pres­sure after the Judicial Council of the Fifth Circuit imposed ​“severe sanc­tions” and ordered him to desist from continuing misconduct.

Bernard’s post-con­vic­tion lawyers argued that he was less cul­pa­ble than younger co-defen­dants who had received less­er sen­tences, and that pros­e­cu­tors pre­sent­ed false junk-sci­ence tes­ti­mo­ny to argue he would pose a future dan­ger in prison while sup­press­ing evi­dence that their own expert believed he was less cul­pa­ble than oth­ers involved in the mur­ders. Bernard had an exem­plary behav­ior record in his more than 20 years in prison. Because of evi­dence the defense failed to present and that the pros­e­cu­tion mis­rep­re­sent­ed, Bernard’s age, and his mat­u­ra­tion in prison, a major­i­ty of the sur­viv­ing jurors who sen­tenced Bernard to death either affir­ma­tive­ly sup­port­ed his clemen­cy efforts or did not oppose resen­tenc­ing him to life. The fed­er­al pros­e­cu­tor who defend­ed his death sen­tence on appeal also urged President Trump to com­mute Bernard’s sentence.

Nonetheless, the Supreme Court refused to hear his case and he was exe­cut­ed with­out a rul­ing on his clemen­cy peti­tion. In dis­sent, Justice Sotomayor wrote: ​“Today, the Court allows the Federal Government to exe­cute Brandon Bernard, despite Bernard’s trou­bling alle­ga­tions that the Government secured his death sen­tence by with­hold­ing excul­pa­to­ry evi­dence and know­ing­ly elic­it­ing false tes­ti­mo­ny against him. Bernard has nev­er had the oppor­tu­ni­ty to test the mer­its of those claims in court. Now he never will.”

Orlando Hall was exe­cut­ed November 19, despite evi­dence that his con­vic­tion and death sen­tence were the uncon­sti­tu­tion­al prod­uct of sys­temic racial dis­crim­i­na­tion in the appli­ca­tion of the fed­er­al death penal­ty in Texas and case-spe­cif­ic dis­crim­i­na­tion in the selec­tion of jurors in his case. He pre­sent­ed data show­ing that, for fed­er­al defen­dants in Texas, a death ver­dict was near­ly six­teen times more like­ly to be ren­dered in a case with a Black defen­dant than a non-Black defen­dant. Hall, who is Black, was con­vict­ed by an all-white jury, and the pros­e­cu­tor who con­duct­ed jury selec­tion in his case has twice been found to have engaged in racial­ly biased jury selec­tion in oth­er cas­es. Hall was one of only two peo­ple exe­cut­ed in 2020 for the mur­der of a Black victim.

Alfred Bourgeois was exe­cut­ed on December 11, despite hav­ing an IQ in the clin­i­cal­ly accept­ed range for intel­lec­tu­al dis­abil­i­ty. His lawyers argued that his death sen­tence vio­lat­ed the U.S. Supreme Court’s 2002 rul­ing Atkins v. Virginia and that his exe­cu­tion would vio­late the pro­scrip­tion in the Federal Death Penalty Act that “[a] sen­tence of death shall not be car­ried out upon a per­son who is men­tal­ly retard­ed.” No fed­er­al court reviewed his claims using med­ical­ly appro­pri­ate def­i­n­i­tions of intellectual disability.

Because of the pan­dem­ic, there were sig­nif­i­cant­ly few­er cap­i­tal tri­als in 2020, and they dis­pro­por­tion­ate­ly involved pro­ceed­ings in which defen­dants waived crit­i­cal pro­ce­dur­al rights. Trials posed health risks not only to jurors and court per­son­nel, but to defense and pros­e­cu­tion lawyers and inves­ti­ga­tors, wit­ness­es, men­tal health experts, and their fam­i­lies. Attitudes towards the pan­dem­ic affect­ed which jurors appeared for ser­vice and, with the racial­ly imbal­anced health impact of COVID-19, threat­ened to make cap­i­tal juries even less rep­re­sen­ta­tive of the com­mu­ni­ty. The impact of COVID-19 health risks on the thor­ough­ness and qual­i­ty of cap­i­tal defense rep­re­sen­ta­tion remains to be seen. In a year with very few death sen­tences due to a glob­al pan­dem­ic, it is already evi­dent that a sig­nif­i­cant num­ber of the death sen­tences imposed in 2020 paint a trou­bling pic­ture of the legal process.

More than 20% of the new death sen­tences were the prod­uct of pro­ceed­ings in which defen­dants were not afford­ed key pro­ce­dur­al pro­tec­tions. Three of the eigh­teen peo­ple sen­tenced to death in 2020 waived their rights to a jury tri­al and to have jurors deter­mine their fate, and a fourth rep­re­sent­ed him­self from arrest through tri­al. In Florida, co-defen­dants Jesse Bell and Barry Noetzel both pled guilty and waived their rights to coun­sel, a tri­al, and a sen­tenc­ing hear­ing. Each rep­re­sent­ed him­self in the court­room and each was sen­tenced to death by a tri­al judge. At the begin­ning of Bell’s penal­ty phase, the court offered him stand-by coun­sel. Bell accept­ed this offer, and then was pro­vid­ed a stand-by lawyer who did not meet Florida’s require­ments for pro­vid­ing rep­re­sen­ta­tion in a death-penalty case.

In Ohio, a three-judge pan­el sen­tenced Joel Drain to death. Drain had waived his right to a jury tri­al and sen­tence, pre­sent­ed no guilt defense, and refused to present mit­i­gat­ing evi­dence in the penal­ty-phase of his trial.

In California, a fourth defen­dant, Israel Ramirez Guardado, rep­re­sent­ed him­self from arrest through tri­al, dur­ing which he con­tin­u­al­ly main­tained his inno­cence. In his clos­ing state­ment, he told the jury, ​“It is total­ly up to you guys. Whatever [you] think I should get, I’m fine with it.”

Other defen­dants who were sen­tenced to death also pro­claimed their inno­cence. In California, defen­dant Charles Merritt​’s lawyer said that there was ​“not a shred” of evi­dence that Merritt was guilty. Even the pros­e­cu­tor and judge admit­ted that the case against Merritt was con­struct­ed on cir­cum­stan­tial evi­dence. In Florida, defen­dant Mark Sievers told the court before sen­tenc­ing: ​“Although a jury found me guilty, I’m inno­cent of all charges as I have main­tained since the day this crime took place.”

Two of the defen­dants sen­tenced to death had doc­u­ment­ed his­to­ries of men­tal ill­ness or chron­i­cal­ly trau­mat­ic child­hoods. In Florida, defen­dant Marlin Joseph was sen­tenced to death after his case bounced between men­tal-health and crim­i­nal court address­ing issues of his com­pe­ten­cy to stand tri­al. Texas defen­dant Brandon McCall​’s lawyers unsuc­cess­ful­ly plead­ed for mer­cy, ask­ing the jury: ​“If you grew up in a car and had to show­er with a hose behind a church would you be the per­son you are today?” Six months before McCall’s crime, he had been hos­pi­tal­ized for suicidal behavior.

Historically, 85% of the pris­on­ers who waived their rights and were exe­cut­ed have been white, and anoth­er 8% have been Latinx. The death sen­tences imposed on exe­cu­tion ​“vol­un­teers” in 2020 fol­lowed that same demo­graph­ic pat­tern, with three white defen­dants and one Latinx defen­dant waiv­ing pro­ce­dur­al pro­tec­tions. Of the 14 death sen­tences in which defen­dants did not waive their rights, sev­en were imposed on white defen­dants, five on Black defen­dants, and one on a Latinx defendant.

Two thirds of the new death sen­tences imposed in 2020 involved one or more white vic­tims and 11 of the 18 (61%) involved only white vic­tims. Two Black defen­dants, but no white or Latinx defen­dants were sen­tenced to death for interracial murders.

The worst glob­al pan­dem­ic in more than cen­tu­ry pro­found­ly affect­ed every aspect of American life, includ­ing the admin­is­tra­tion of the U.S. death penal­ty and the con­di­tions on U.S. death rows. At least four­teen sched­uled exe­cu­tions were delayed because of the pan­dem­ic, and an unknown num­ber of exe­cu­tion dates were nev­er set. Only two states – Missouri and Texas – and the fed­er­al gov­ern­ment car­ried out exe­cu­tions after the pan­dem­ic reached the United States, and no state did so after July 8. Ignoring pub­lic health warn­ings, offi­cials in the juris­dic­tions that car­ried out exe­cu­tions brought togeth­er attor­neys, reli­gious advi­sors, media wit­ness­es, vic­tims’ fam­i­lies, and oth­ers for exe­cu­tions, risk­ing virus expo­sure for them and for those who live and work in the prison. In the weeks after­ward, COVID-19 out­breaks were report­ed in each of the facil­i­ties that conducted executions. 

The case of Pennsylvania exoneree Walter Ogrod illus­trat­ed many of the prison system’s prob­lems in han­dling the pan­dem­ic, includ­ing fail­ure to pro­vide ade­quate med­ical care, and unnec­es­sar­i­ly delay­ing pris­on­er releas­es. In March, the Philadelphia District Attorney’s Office filed a brief say­ing Ogrod was like­ly inno­cent and stip­u­lat­ing to grant­i­ng him a new tri­al. The court refused to accept the stip­u­la­tion with­out a court hear­ing and then sched­uled the hear­ing for June. Ogrod sub­se­quent­ly devel­oped symp­toms of COVID-19, includ­ing a fever of 106°F. The court then denied a joint motion by Ogrod and the dis­trict attorney’s office to con­duct an expe­dit­ed hear­ing, and the Pennsylvania Department of Corrections defied an order by anoth­er judge, lat­er with­drawn, to trans­port Ogrod to an inde­pen­dent hos­pi­tal to obtain med­ical care. Fortunately, Ogrod recov­ered from the virus, the court held the hear­ing in June, and he was exonerated.

An ACLU report released in September linked the five fed­er­al exe­cu­tions per­formed in July and August to a COVID-19 out­break at the fed­er­al prison in Terre Haute, Indiana. During prepa­ra­tions for the exe­cu­tions, a prison employ­ee who had test­ed pos­i­tive for COVID-19 worked at the prison with­out a mask. The Bureau of Prisons did not under­take con­tact trac­ing to iden­ti­fy those at risk for expo­sure. Two weeks before the exe­cu­tions began, just 11 peo­ple at the prison had test­ed pos­i­tive. By September 18, 206 peo­ple had test­ed pos­i­tive, but the true num­ber of cas­es is like­ly high­er because test­ing was lim­it­ed. The out­break at the Terre Haute facil­i­ty killed at least three people.

At least eleven oth­er cas­es of COVID have been direct­ly linked to the resump­tion of fed­er­al exe­cu­tions. Eight mem­bers of the fed­er­al exe­cu­tion team and Yusuf Ahmed Nur, the spir­i­tu­al advi­sor for Orlando Hall, con­tract­ed the dis­ease from attend­ing or par­tic­i­pat­ing in Hall’s November 19 exe­cu­tion. The two lead lawyers for Lisa Montgomery became seri­ous­ly ill with COVID-19 as a result of being forced to trav­el, against med­ical advice, from their homes in Nashville, Tennessee to the prison in Fort Worth, Texas, to vis­it with Montgomery dur­ing the short peri­od between the announce­ment of her exe­cu­tion date on October 16 and her sched­uled exe­cu­tion on December 8. Kelley Henry and Amy Harwell had been rep­re­sent­ing Montgomery, who is seri­ous­ly men­tal­ly ill and emo­tion­al­ly unsta­ble, dur­ing her appeals, which had con­clud­ed just months before. Because of her frag­ile emo­tion­al state, they need­ed to meet with Montgomery in per­son to explain the sta­tus of the case and ascer­tain her men­tal sta­tus. Other lawyers stepped in to seek a stay of Montgomery’s exe­cu­tion date because Henry’s and Harwell’s ill­ness­es and health restric­tions on the expert wit­ness­es who were sched­uled to assess Montgomery’s peti­tion pre­vent­ed them from mean­ing­ful­ly prepar­ing her clemen­cy peti­tion and pos­si­ble lit­i­ga­tion on her men­tal com­pe­ten­cy. The dis­trict court grant­ed a stay, effec­tive until December 31, find­ing that the lawyers’ unavail­abil­i­ty denied Montgomery’s statu­to­ry right to mean­ing­ful assis­tance of coun­sel in the clemen­cy process. The Department of Justice respond­ed by resched­ul­ing Montgomery’s exe­cu­tion for January 12, 2021. 

While the fed­er­al gov­ern­ment ignored coro­n­avirus con­cerns, courts in Texas halt­ed or delayed eight exe­cu­tions. Tennessee’s courts and gov­er­nor delayed four oth­ers, includ­ing resched­ul­ing the exe­cu­tions of Oscar Franklin Smith and Byron Black, and then stay­ing Black’s resched­uled April 2021 exe­cu­tion date after his lawyers con­tract­ed COVID-19. Governor Bill Lee issued coro­n­avirus-relat­ed reprieves to Harold Nichols on July 17 and Pervis Payne on November 6. Payne was sub­se­quent­ly one of eleven Tennessee death-row pris­on­ers diag­nosed with the coronavirus. 

According to data gath­ered by The Marshall Project and Associated Press, 1571 pris­on­ers in the United States had died of COVID-19 as of December 10, 2020, exceed­ing the total num­ber of exe­cu­tions per­formed in the mod­ern era of the death penal­ty (1529). Deaths from COVID-19 among death row inmates rivaled the num­ber of exe­cu­tions this year, with at least 16 con­firmed cas­es of death row pris­on­ers who died from COVID. 

Arizona death-row pris­on­er Alfonso Salazar became the first con­firmed death-row fatal­i­ty from the virus on April 30, 2020. At that time, sev­en oth­er pris­on­ers on death row in Arizona test­ed pos­i­tive for coro­n­avirus and eleven oth­ers who had not been test­ed showed symp­toms of COVID-19. Thirteen death-row pris­on­ers died from COVID-19 in California, match­ing the num­ber exe­cut­ed since the state rein­stat­ed the death penal­ty in 1978, with dozens infect­ed. Additional con­firmed deaths from COVID-19 were report­ed on death rows in Missouri and Ohio, and infec­tions also were report­ed on death rows in North Carolina, Pennsylvania, and Texas and in facil­i­ties hous­ing death rows in at least six other states.

Court shut­downs played a sig­nif­i­cant role in states car­ry­ing out the fewest exe­cu­tions in 37 years and in 2020 hav­ing the fewest new death sen­tences imposed of any year since Furman v. Georgia struck down all U.S. death-penal­ty statutes in 1972. The virus con­tin­ued to affect death sen­tences even when courts attempt­ed to reopen, with the December 15 judge-only sen­tenc­ing phase for Nebraska cap­i­tal defen­dant Aubrey Trail, which had been post­poned from March, delayed again until 2021 after defense coun­sel test­ed pos­i­tive for the virus. Even before the pan­dem­ic, how­ev­er, the coun­try was on pace to have few­er than 50 new death sen­tences and 30 exe­cu­tions for the sixth consecutive year. 

Public opin­ion polls and the results of the November 3 elec­tion indi­cat­ed that oppo­si­tion to cap­i­tal pun­ish­ment con­tin­ues to rise nation­wide and in for­mer­ly heavy-use coun­ties across the United States.

The 2020 Gallup poll on U.S. atti­tudes towards cap­i­tal pun­ish­ment found that 55% of Americans say they sup­port the death penal­ty. That result is tied with 2017 for the low­est lev­el of sup­port in 48 years. The 43% of respon­dents who said they oppose the death penal­ty is the high­est lev­el of oppo­si­tion Gallup has record­ed since 1966. A May 2020 Gallup poll on Americans’ val­ues and beliefs found that just 54% of Americans find the death penal­ty ​“moral­ly accept­able,” the low­est in the 20-year his­to­ry of that poll.

The groups least favor­able to the death penal­ty were non-whites (51% opposed, 47% in favor), young peo­ple aged 18 – 34 (52% opposed, 48% in favor), and Democrats (58% opposed, 39% in favor). Although there were major dif­fer­ences in the over­all lev­el of sup­port among dif­fer­ent demo­graph­ic groups, Gallup report­ed that sup­port for the death penal­ty has declined among all age groups, across race and eth­nic­i­ty, and for indi­vid­u­als of every lev­el of edu­ca­tion­al attain­ment over the past decade. Gallup sug­gest­ed that these demo­graph­ic trends ​“may lead to fur­ther ero­sion in death penal­ty sup­port” because key demo­graph­ic groups such as mil­len­ni­als and Generation Z, non-white adults, and col­lege grad­u­ates that con­sti­tute an increas­ing share of the U.S. adult pop­u­la­tion ​“all show below-aver­age sup­port for the death penalty.”

The coun­ty-lev­el ero­sion of cap­i­tal pun­ish­ment and the broad pop­u­lar­i­ty of crim­i­nal jus­tice reform were evi­dent in the results of this year’s elec­tions. Candidates pledg­ing sys­temic reforms, includ­ing reduced use or aban­don­ment of the death penal­ty, won pros­e­cu­tor races in sev­er­al juris­dic­tions that have his­tor­i­cal­ly pro­duced a dis­pro­por­tion­ate num­ber of death sen­tences or exe­cu­tions: Los Angeles County (CA), Travis County (Austin, TX), Orange-Osceola coun­ties (Orlando, FL), Franklin County (Columbus, OH), and Pima County (Tucson, AZ). 

Former San Francisco District Attorney and for­mer Mesa, Arizona police chief George Gascón was elect­ed District Attorney in Los Angeles County, California, defeat­ing incum­bent Jackie Lacey. With 228 pris­on­ers as of January 2020, Los Angeles’ death row is the largest of any U.S. coun­ty. It has imposed the death penal­ty 336 times since California rein­stat­ed the death penal­ty in December 1973. A 2019 ACLU report found that all 22 peo­ple sen­tenced to death in Los Angeles dur­ing Lacey’s tenure had been peo­ple of col­or and their cas­es had dis­pro­por­tion­ate­ly involved killings of white victims.

Former pub­lic defend­er José Garza, who won the race to become District Attorney in Travis County, Texas, ran on a plat­form of reform­ing the county’s pros­e­cu­to­r­i­al prac­tices. He pledged not to seek the death penal­ty, stat­ing, ​“The Death Penalty is moral­ly and eth­i­cal­ly wrong, does not serve as a deter­rent, has proven to be applied arbi­trar­i­ly at best, and comes at tremen­dous financial costs.”

New dis­trict attor­neys who won elec­tions in oth­er major U.S. pop­u­la­tion cen­ters also expressed oppo­si­tion to the death penal­ty. All of the can­di­dates for District Attorney in Fulton County (Atlanta, GA) pledged not to seek the death penal­ty, as did new Multnomah County (Portland, OR) District Attorney Steve Schmidt. Both can­di­dates in the Orleans Parish (New Orleans, LA) District Attorney run-off elec­tion expressed per­son­al oppo­si­tion to the death penalty.

Apart from the elec­tion results, the Santa Clara County, California District Attorney Jeff Rosen announced in July that his office would no longer seek the death penal­ty. Asked why he had decid­ed to stop seek­ing the death penal­ty and adopt sev­er­al reform mea­sures, Rosen cred­it­ed a trans­for­ma­tive vis­it to the National Memorial for Peace and Justice in Montgomery, Alabama and the nation­wide move­ment for racial jus­tice sparked by the mur­der of George Floyd. ​“It has changed our coun­try and our com­mu­ni­ty,” Rosen said. ​“It has changed my office. It has changed me.” Rosen was one of six cur­rent or for­mer California pros­e­cu­tors who are part of a new pro­gres­sive Prosecutors Alliance of California who sub­mit­ted a brief to the California Supreme Court in the McDaniel case argu­ing that the state’s death penal­ty is arbitrarily imposed.

At the nation­al lev­el, the Biden-Harris tick­et pledged to reduce mass incar­cer­a­tion, address racial bias in the legal sys­tem, and elim­i­nate the fed­er­al death penal­ty. Citing the preva­lence of wrong­ful con­vic­tions, Biden’s plat­form says, ​“Because we can­not ensure we get death penal­ty cas­es right every time, Biden will work to pass leg­is­la­tion to elim­i­nate the death penal­ty at the fed­er­al lev­el, and incen­tivize states to fol­low the fed­er­al government’s example.”

2020 brought a nation­al reck­on­ing on racial jus­tice that was sparked by out­rage at police and white vig­i­lante killings of Black peo­ple and has extend­ed into every aspect of soci­ety. The con­tin­u­ing role of racial bias in the admin­is­tra­tion of the death penal­ty has been the sub­ject of land­mark court rul­ings, leg­is­la­tion, and research.

This spring, the U.S. Supreme Court issued a land­mark deci­sion that required Oklahoma to respect Native American sov­er­eign­ty and result­ed in Patrick Dwayne Murphy​’s death sen­tence being vacat­ed. In a 5 – 4 deci­sion in a non-cap­i­tal case, McGirt v. Oklahoma, the Court con­clud­ed that almost half of Oklahoma, includ­ing much of the city of Tulsa, remains Indian Country. The Court found that the fed­er­al gov­ern­ment had reserved land for the Muscogee (Creek) Nation through a series of treaties signed by the U.S. Government and the Creek Nation that was part of the ​“Trail of Tears,” the forced migra­tion of tens of thou­sands of Native Americans from their ances­tral lands to ter­ri­to­ry west of the Mississippi River. 

The McGirt deci­sion affirmed that these lands were still ​“Indian Country,” as defined by fed­er­al law, with­in which Oklahoma lacked juris­dic­tion to attempt to try trib­al mem­bers for seri­ous offens­es. Based on McGirt, the Court grant­ed Murphy relief because he is a mem­ber of the Muscogee (Creek) Nation who was sen­tenced to death in Oklahoma state court for a crime that occurred with­in the Creek reservation.

The North Carolina Supreme Court issued a series of opin­ions that restored the relief pro­vid­ed by the state’s repealed Racial Justice Act (“RJA”) and allowed some death-row pris­on­ers to pur­sue claims that racial bias affect­ed their sen­tences. In June, the court held that tri­al courts must con­sid­er the RJA claims of Andrew Ramseur, Rayford Burke, and the approx­i­mate­ly 140 more pris­on­ers who brought RJA claims before the act’s repeal. In August and September, the court restored the life with­out parole sen­tences that a tri­al court imposed on Marcus Robinson, Christina Walters, Quintel Augustine, and Tilmon Golphin, four Black death-row pris­on­ers who had received relief under the RJA. In the major­i­ty opin­ion in Robinson’s case, Chief Justice Cheri Beasley recount­ed the long his­to­ry of dis­crim­i­na­tion that has exclud­ed African Americans from jury service.

This fall, Chief Justice Beasley faced Justice Paul Newby, a dis­senter in all of the RJA deci­sions, in a fierce­ly con­test­ed judi­cial re-elec­tion race. On December 12, Chief Justice Beasley con­ced­ed the race after a hand recount deter­mined Justice Newby to be the win­ner by a mar­gin of less than 500 votes.

In September, California passed its own Racial Justice Act, with a broad­er scope than North Carolina’s pri­or law. California’s RJA requires courts to over­turn con­vic­tions or sen­tences in cap­i­tal and non-cap­i­tal cas­es in which a defen­dant proves bias ​“on the basis of race, eth­nic­i­ty, or nation­al ori­gin.” In a sep­a­rate bill, the state strength­ened pro­tec­tions against jury dis­crim­i­na­tion in crim­i­nal and civ­il cas­es, less­en­ing the bur­den for chal­leng­ing dis­cre­tionary juror strikes and pre­sum­ing invalid many rea­sons that have been used as pre­text for exclud­ing jurors of color.

Commentators, advo­cates, and researchers have addressed the role of race in the death penal­ty. In September, the Death Penalty Information Center released a com­pre­hen­sive report about racial injus­tice in the death penal­ty, Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty. The report con­nects racial dis­crim­i­na­tion in the admin­is­tra­tion of the mod­ern death penal­ty to the his­tor­i­cal lega­cy of slav­ery, Jim Crow seg­re­ga­tion, and lynch­ing and to mod­ern move­ments to reform the crim­i­nal legal sys­tem. The next month, the Center for Death Penalty Litigation’s Racist Roots project launched, exam­in­ing the con­text for the racial­ly dis­crim­i­na­to­ry use of the death penal­ty in North Carolina.

The most sig­nif­i­cant devel­op­ment in 2020 that is like­ly to affect U.S. Supreme Court cap­i­tal jurispru­dence for years was the loss of Justice Ruth Bader Ginsburg, who died of pan­cre­at­ic can­cer on September 18. The 87-year-old jus­tice repeat­ed­ly expressed skep­ti­cism about the death penal­ty but nev­er took the step of say­ing it was inher­ent­ly uncon­sti­tu­tion­al. A DPIC analy­sis of Supreme Court death-penal­ty deci­sions since 2014 found that Justice Ginsburg had pro­vid­ed a vote in favor of death-row pris­on­ers in every case in which the Court over­turned a cap­i­tal con­vic­tion or death sen­tence and in every instance in which the Court grant­ed a stay of execution. 

Justices Ginsburg and now-retired Justice Anthony Kennedy pro­vid­ed cru­cial votes in the Court’s 5 – 4 or 6 – 3 deci­sions in Atkins v. Virginia (2002), Roper v. Simmons (2005), Kennedy v. Louisiana (2008), Hall v. Florida (2014), and Moore v. Texas (2017) estab­lish­ing the con­sti­tu­tion­al pro­hi­bi­tions against exe­cut­ing indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty and offend­ers under age 18, bar­ring the death penal­ty for crimes in which no one was killed, and strik­ing down state prac­tices that evad­ed the con­sti­tu­tion­al pro­tec­tions Atkins pro­vid­ed to the intel­lec­tu­al­ly dis­abled. With the denial of a con­fir­ma­tion hear­ing to Judge Merrick Garland in 2016 and the replace­ment of Justice Kennedy with Justice Brett Kavanaugh, Justice Ginsburg’s replace­ment with Amy Coney Barrett just five weeks lat­er cement­ed a right­ward shift in the Court that is like­ly to sig­nif­i­cant­ly reduce fed­er­al enforce­ment of con­sti­tu­tion­al rights in death penalty cases. 

The Court itself issued very few mer­its deci­sions in cap­i­tal cas­es in 2020:

In a 5 – 4 vote along par­ti­san lines, the Court upheld James Erin McKinney​’s death sen­tence after the Arizona Supreme Court reweighed the aggra­vat­ing and mit­i­gat­ing evi­dence in his case with­out afford­ing him a new sen­tenc­ing tri­al. McKinney was sen­tenced to death in 1993 under Arizona’s judge-only sen­tenc­ing pro­ce­dures. Although his tri­al judge found that McKinney had expe­ri­enced a hor­rif­ic child­hood that was ​“beyond the com­pre­hen­sion of most peo­ple,” the court ignored that evi­dence, bound by Arizona Supreme Court rul­ings that only evi­dence that had a direct causal con­nec­tion to the crime could be considered mitigating.

In June 2002, in Ring v. Arizona, the U.S. Supreme Court struck down Arizona’s death-sen­tenc­ing pro­ce­dures, say­ing they vio­lat­ed a cap­i­tal defendant’s right to have a jury deter­mine all facts nec­es­sary for a death sen­tence to be imposed. However, the Court declined to apply Ring to cas­es like McKinney’s that had already com­plet­ed their ini­tial stage of appeal before Ring was decid­ed. Subsequently, a fed­er­al appeals court over­turned McKinney’s death sen­tence, apply­ing long-stand­ing Supreme Court caselaw that the ​“causal nexus” require­ment was uncon­sti­tu­tion­al. When his case was returned to the state courts, McKinney argued that the right to a jury tri­al announced in Ring should apply to his resen­tenc­ing. Instead, the Arizona Supreme Court reweighed the aggra­vat­ing and mit­i­gat­ing evi­dence itself and rein­stat­ed McKinney’s death sentence.

In Kahler v. Kansas, the Court upheld the con­vic­tion of Kansas death-row pris­on­er James Kahler, who had argued that Kansas had uncon­sti­tu­tion­al­ly pre­vent­ed him from pre­sent­ing a guilt-stage insan­i­ty defense. In a 6 – 3 deci­sion authored by Justice Elena Kagan, the Court held that if a state per­mits a defen­dant to present a defense that men­tal ill­ness pre­vent­ed him from form­ing the req­ui­site crim­i­nal intent, it is not also required to allow a sep­a­rate ​“moral inca­pac­i­ty” insan­i­ty defense. The 14^th Amendment’s Due Process Clause, the Court wrote, does not ​“com­pel[ ] the acquit­tal of any defen­dant who, because of men­tal ill­ness, could not tell right from wrong when com­mit­ting his crime.”

As dis­cussed above, the Court grant­ed relief to Oklahoma death-row pris­on­er Patrick Dwayne Murphy as a result of its ground-break­ing rul­ing on Native American sov­er­eign­ty, McGirt v. Oklahoma.

In a per curi­am deci­sion in Andrus v. Texas, the Court over­turned a Texas Court of Criminal Appeals (TCCA) rul­ing that had reject­ed death-row pris­on­er Terence Andrus’ claim of inef­fec­tive assis­tance of penal­ty-phase coun­sel. Over a stri­dent dis­sent by Justice Samuel Alito, joined by Justices Clarence Thomas and Neal Gorsuch, the Court ruled that ​“Andrus’ defense coun­sel not only neglect­ed to present [sub­stan­tial mit­i­gat­ing evi­dence]; he failed even to look for it.” The Court returned the case to the TCCA to deter­mine whether counsel’s defi­cient per­for­mance may have affect­ed the jury’s sentencing decision.

However, the Court’s most sig­nif­i­cant rul­ings in 2020 did not come in mer­its deci­sions or cas­es that had been ful­ly briefed and argued, but rather in a series of deci­sions dur­ing its sum­mer recess, when the Court played a crit­i­cal role in paving the way for an unprece­dent­ed series of fed­er­al exe­cu­tions. In those deci­sions, the Court major­i­ty con­sis­tent­ly denied relief to fed­er­al pris­on­ers sched­uled for exe­cu­tion and con­sis­tent­ly vacat­ed low­er courts’ grants of relief. The Court denied all 13 requests for injunc­tions or stays of exe­cu­tion from the pris­on­ers and grant­ed all 5 requests by the gov­ern­ment to over­turn low­er court injunc­tions or stays. 

The fed­er­al gov­ern­ment sched­uled the exe­cu­tion of Daniel Lewis Lee, the first fed­er­al exe­cu­tion in almost two decades, for July 13. The day of Lee’s exe­cu­tion, the fed­er­al dis­trict court for the District of Columbia declared the fed­er­al exe­cu­tion pro­to­col uncon­sti­tu­tion­al and issued an injunc­tion halt­ing the fed­er­al exe­cu­tions. The U.S. Circuit Court of Appeals for the District of of Columbia Circuit upheld the injunc­tion late that night, but in an unsigned 5 – 4 opin­ion issued in the ear­ly morn­ing hours of July 14, the Court vacat­ed the injunc­tion with a 5 – 4 vote, and the fed­er­al gov­ern­ment exe­cut­ed Lee lat­er that morn­ing. The major­i­ty wrote that last-minute stay appli­ca­tions were dis­fa­vored and that the pris­on­ers had not met the ​“exceed­ing­ly high bar” of estab­lish­ing that they could show that exe­cu­tions using pen­to­bar­bi­tal con­sti­tut­ed cru­el and unusu­al pun­ish­ment. In dis­sent, Justice Sonia Sotomayor wrote that ​“hasti­ly” deny­ing the pris­on­ers’ chal­lenge ​“accepts the Government’s arti­fi­cial claim of urgency to trun­cate ordi­nary pro­ce­dures of judi­cial review” and ​“sets a dangerous precedent.” 

Forty-eight hours lat­er, the exe­cu­tion of Wesley Purkey fol­lowed a sim­i­lar tra­jec­to­ry. Lower courts issued three sep­a­rate orders halt­ing Purkey’s exe­cu­tion to per­mit review of issues involv­ing the legal­i­ty of the fed­er­al exe­cu­tion process, his men­tal com­pe­ten­cy, and whether fed­er­al law pro­vid­ed a pro­ce­dur­al vehi­cle to con­sid­er his claim of inef­fec­tive penal­ty-phase rep­re­sen­ta­tion. The Supreme Court vacat­ed all three rul­ings in Purkey’s favor and reject­ed two oth­er peti­tions to post­pone his exe­cu­tion. Two of the rul­ings vacat­ing injunc­tions were 5 – 4 deci­sions. Dissenting from the dis­po­si­tion of Purkey’s com­pe­ten­cy case, Justice Sotomayor crit­i­cized the Court’s ​“deci­sion to short­cut judi­cial review and per­mit the exe­cu­tion of an indi­vid­ual who may well be incompetent.”

The Court’s actions in Lee’s and Purkey’s cas­es set the tone for the remain­der of the fed­er­al exe­cu­tions in sum­mer and fall. Three — Dustin Honken, Keith Nelson, and Christopher Vialva —did not pur­sue relief in the Court. For the oth­ers, the Court denied all requests for stays of exe­cu­tion. The dis­trict court review­ing the exe­cu­tion pro­to­col cas­es inter­pret­ed the Court’s deci­sion in Lee’s case as doom­ing all future chal­lenges to the use of pen­to­bar­bi­tal in fed­er­al exe­cu­tions, an inter­pre­ta­tion that was lat­er over­ruled by the District of Columbia cir­cuit court of appeals.

In November, after Justice Barrett’s con­fir­ma­tion, the Court inter­vened to vacate a stay of exe­cu­tion issued by the dis­trict court that would have tem­porar­i­ly halt­ed Orlando Hall​’s fed­er­al exe­cu­tion. The increas­ing­ly polar­ized Court did not even wait for the cir­cuit court to rule on the government’s request to vacate the dis­trict court’s injunc­tion, grant­i­ng the government’s appli­ca­tion and vacat­ing the dis­trict court’s stay with­out expla­na­tion. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.

“Just like a Confederate mon­u­ment, the death penal­ty has always been a sym­bol of white suprema­cy. Now, there is only one thing left to do with this poi­soned tree. Dig it up and salt the earth. Never again assert the state’s pow­er to kill any human being.” — The Center for Death Penalty Litigation’s Staff in their report, ​“Racist Roots: Origins of North Carolina’s Death Penalty”

“[T]he death penal­ty can­not be, and nev­er has been, admin­is­tered equi­tably in the State of Colorado.” — Governor Jared Polis announc­ing the com­mu­ta­tions of sen­tences of the three pris­on­ers on Colorado’s death row

“This is not being done in our name; we do not want this.” — Monica Veillette, whose aunt, Nancy Mueller, and cousin, Sarah Powell, were mur­dered, speak­ing about her family’s views on the fed­er­al exe­cu­tion of Daniel Lee.

“Over 160 indi­vid­u­als who’ve been sen­tenced to death in this coun­try since 1973 have lat­er been exon­er­at­ed. Because we can­not ensure we get death penal­ty cas­es right every time, Biden will work to pass leg­is­la­tion to elim­i­nate the death penal­ty at the fed­er­al lev­el, and incen­tivize states to fol­low the fed­er­al government’s exam­ple. These indi­vid­u­als should instead serve life sen­tences with­out pro­ba­tion or parole.” — Part of ​“The Biden Plan for Strengthening America’s Commitment to Justice”

“Today, I am final­ly free from the injus­tice that left me locked in a box for near­ly 23 years. I’ve been asked if I ever thought this day would come. I have been blessed with a fam­i­ly that nev­er gave up on me and with them by my side, I knew it would.” — Curtis Flowers after all charges against him were dropped on Sept. 4, 2020

“We don’t expect fed­er­al offi­cials to under­stand our strong­ly held tra­di­tions of clan rela­tion­ship, keep­ing har­mo­ny in our com­mu­ni­ties, and hold­ing life sacred. What we do expect, no, what we demand, is respect for our People, for our Tribal Nation, and we will not be pushed aside any longer.” — President Jonathan Nez and VP Myron Lizer of the Navajo Nation regard­ing the fed­er­al exe­cu­tion of Lezmond Mitchell

“[T]he death penal­ty is inad­e­quate from a moral stand­point and no longer nec­es­sary from that of penal jus­tice. There can be no step­ping back from this posi­tion.” — Pope Francis in his encycli­cal let­ter, Fratelli Tutti

“I expe­ri­ence injus­tices first­hand day in and day out, even as an ath­lete with ​‘celebri­ty sta­tus.’ … The treat­ment of Julius Jones is the kind of mis­car­riage of jus­tice African American men like myself live in fear of, and that is why I feel com­pelled to use the influ­ence that God has blessed me with to speak up for what I believe is right and to give a voice to those who can­not speak for them­selves.” — Dallas Cowboys’ quar­ter­back Dak Prescott in a let­ter to Governor Kevin Stitt defend­ing death row pris­on­er Julius Jones

“The cul­ture and prac­tices that per­mit the law to dis­crim­i­na­to­ri­ly take a person’s life legit­imize the devalu­ing of Black and brown lives. The racial­ly dis­crim­i­na­to­ry appli­ca­tion of cap­i­tal pun­ish­ment sym­bol­izes and embod­ies what America most needs to change.” — Death Penalty Information Center Report, Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty

Click HERE to down­load 2020 Execution Data as an Excel File

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