The Death Penalty in 2021: Year End Report

Key Findings

• Virginia becomes 23^rd state, and first in the South, to abol­ish the death penalty 
• Seventh con­sec­u­tive year with few­er than 30 exe­cu­tions and 50 new death sentences 
• New study finds one exon­er­a­tion for every 8.3 executions 
• Federal exe­cu­tion spree ends, new admin­is­tra­tion halts all fed­er­al exe­cu­tions and announces policy review

The death penal­ty in 2021 was defined by two com­pet­ing forces: the con­tin­u­ing long-term ero­sion of cap­i­tal pun­ish­ment across most of the coun­try, and extreme con­duct by a dwin­dling num­ber of out­lier juris­dic­tions to con­tin­ue to pur­sue death sen­tences and executions.

Virginia’s path to abo­li­tion of the death penal­ty was emblem­at­ic of cap­i­tal punishment’s reced­ing reach in the United States. A com­bi­na­tion of chang­ing state demo­graph­ics, erod­ing pub­lic sup­port, high-qual­i­ty defense rep­re­sen­ta­tion, and the elec­tion of reform pros­e­cu­tors in many key coun­ties pro­duced a decade with no new death sen­tences in the Commonwealth. As the state grap­pled with its his­to­ry of slav­ery, Jim Crow, lynch­ings, and the 70^th anniver­sary of sev­en wrong­ful exe­cu­tions, the gov­er­nor and leg­isla­tive lead­ers came to see the end of the death penal­ty as a cru­cial step towards racial jus­tice. On March 24, Virginia became the first south­ern state to repeal cap­i­tal pun­ish­ment, and expand­ed the death-penal­ty-free zone on the U.S. Atlantic coast from the Canadian bor­der of Maine to the north­ern bor­der of the Carolinas.

In the West, where an exe­cu­tion-free zone spans the Pacific coast from Alaska to Mexico, the Oregon Supreme Court began remov­ing pris­on­ers from the state’s death row based on a 2019 law that rede­fined the crimes that con­sti­tute cap­i­tal mur­der. Nationwide, mount­ing dis­trust of the death-penal­ty sys­tem was reflect­ed in pub­lic opin­ion polling that mea­sured sup­port for cap­i­tal pun­ish­ment at near half-cen­tu­ry lows. With Virginia’s abo­li­tion, a major­i­ty of states have now abol­ished the death penal­ty (23) or have a for­mal mora­to­ri­um on its use (3). An addi­tion­al ten states have not car­ried out an exe­cu­tion in at least ten years.

2021 saw his­toric lows in exe­cu­tions and near his­toric lows in new death sen­tences. As this report goes to press, eigh­teen peo­ple were sen­tenced to death, tying 2020’s num­ber for the fewest in the mod­ern era of the death penal­ty, dat­ing back to the Supreme Court rul­ing in Furman v. Georgia that struck down all exist­ing U.S. death-penal­ty statutes in 1972. The eleven exe­cu­tions car­ried out dur­ing the year were the fewest since 1988. The num­bers were unques­tion­ably affect­ed by the pan­dem­ic but marked the sev­enth con­sec­u­tive year of few­er than 50 death sen­tences and 30 exe­cu­tions. Both mea­sures point­ed to a death penal­ty that was geo­graph­i­cal­ly iso­lat­ed, with just three states — Alabama, Oklahoma, and Texas — account­ing for a major­i­ty of both death sen­tences and executions. 

The few juris­dic­tions that sched­uled or car­ried out exe­cu­tions and imposed new death sen­tences pur­sued the death penal­ty with appar­ent dis­re­gard for due process, judi­cial review of exe­cu­tion meth­ods, or poten­tial­ly mer­i­to­ri­ous claims of intel­lec­tu­al dis­abil­i­ty, incom­pe­tence to be exe­cut­ed, and inno­cence. Oklahoma botched the exe­cu­tion of John Grant and then denied the exe­cu­tion had been prob­lem­at­ic. Arizona autho­rized exe­cu­tions with the same lethal gas the Nazis had used to mur­der more than a mil­lion peo­ple in their World War II death camps. South Carolina moved to adopt the elec­tric chair as its default exe­cu­tion method, with the fir­ing squad as a ​“humane” alternative. 

The fed­er­al government’s his­tor­i­cal­ly aber­rant spree of thir­teen exe­cu­tions in six months con­clud­ed with three exe­cu­tions car­ried out less than ten days before the inau­gu­ra­tion of a pres­i­dent who had expressed his oppo­si­tion to cap­i­tal pun­ish­ment. The six tran­si­tion-peri­od exe­cu­tions were the most ever in American his­to­ry. Those exe­cut­ed in 2021 includ­ed a severe­ly men­tal­ly ill woman who nev­er received a hear­ing on her com­pe­ten­cy to be exe­cut­ed, an intel­lec­tu­al­ly dis­abled man who nev­er received review of his claim that he was inel­i­gi­ble for the death penal­ty, and a man who with­out dis­pute did not kill any­body. Two of the men who were exe­cut­ed were among the more than two dozen death-row pris­on­ers who con­tract­ed COVID-19 as a result of pri­or fed­er­al superspreader executions. 

The fed­er­al exe­cu­tion spree also raised ques­tions about the legit­i­ma­cy of the U.S. Supreme Court as a neu­tral arbiter of the law, as the Court active­ly inter­vened to lift low­er court stays or injunc­tions issued by con­ser­v­a­tive and lib­er­al judges alike, deny­ing judi­cial review of seri­ous and unre­solved legal and con­sti­tu­tion­al issues. The Biden admin­is­tra­tion set no pol­i­cy on the fed­er­al death penal­ty, allow­ing the Department of Justice to make deci­sions on cap­i­tal pros­e­cu­tions and appeals on a case-by-case basis. Attorney General Merrick Garland issued a mem­o­ran­dum say­ing no new exe­cu­tions would be autho­rized while DOJ reviewed changes in death-penal­ty pol­i­cy put in place dur­ing the Trump admin­is­tra­tion. He made no com­mit­ments on the pur­suit of new fed­er­al death sen­tences or the pos­si­bil­i­ty of fed­er­al exe­cu­tions after the review.

Executions and death sen­tences in 2021 con­tin­ued to high­light the arbi­trary and dis­crim­i­na­to­ry appli­ca­tion of the death penal­ty. Rather than rep­re­sent­ing the ​“worst of the worst” offend­ers, all but one of the eleven peo­ple exe­cut­ed in 2021 had one or more sig­nif­i­cant impair­ments, includ­ing: evi­dence of men­tal ill­ness; brain injury, devel­op­men­tal brain dam­age, or an IQ in the intel­lec­tu­al­ly dis­abled range; or chron­ic seri­ous child­hood trau­ma, neglect, and/​or abuse. Their cas­es were taint­ed by racial bias, inad­e­quate rep­re­sen­ta­tion, and dis­pro­por­tion­ate sen­tenc­ing. The year’s new death sen­tences were also bad­ly flawed, with more than a quar­ter (27.8%) imposed either by non-unan­i­mous juries or by judges after defen­dants waived jury sen­tenc­ing or in states that denied defen­dants the right to a sentencing jury.

Sentences and exe­cu­tions dis­pro­por­tion­ate­ly involved vic­tims who were white and female. Once again, only defen­dants of col­or were exe­cut­ed for cross-racial mur­ders and no white defen­dant was sen­tenced to death in a tri­al that did not involve at least one white vic­tim. Three high-pro­file cas­es — each involv­ing like­ly inno­cent Black men sen­tenced to death for killing white vic­tims — sym­bol­ized the endur­ing racial injus­tice of the nation’s death penal­ty. Julius Jones and Pervis Payne were spared exe­cu­tion, only to be resen­tenced to life in prison. A Texas tri­al judge in a coun­ty with a his­to­ry of lynch­ings heard exten­sive evi­dence of Rodney Reed’s inno­cence, then cred­it­ed the tes­ti­mo­ny of a dis­graced white police offi­cer who was the like­ly killer over that of near­ly a dozen oth­er wit­ness­es to rec­om­mend that Reed be denied a new trial.

Two more inno­cent death-row pris­on­ers were exon­er­at­ed in 2021, and a DPIC review of the more than 9,600 death sen­tences imposed in the U.S. since 1972 dis­cov­ered anoth­er eleven pre­vi­ous­ly unrecord­ed death-row exon­er­a­tions. That raised the num­ber of death-row exon­er­a­tions to 186 — one for every 8.3 exe­cu­tions in the modern era.

As death-penal­ty usage con­tin­ues to erode, its flaws become even more evi­dent. As the few juris­dic­tions that seek to pur­sue it engage in shock­ing con­duct that under­mines or evades judi­cial review, the cas­es result­ing in death sen­tences and exe­cu­tions increas­ing­ly reflect arbi­trari­ness, dis­crim­i­na­tion, and sys­temic fail­ures that rep­re­sent the worst of the worst judi­cial process. These very flaws, brought into stark relief as the death penal­ty becomes more rare, are caus­ing more pros­e­cu­tors, jurors, and vot­ers in much of the coun­try to decide to aban­don cap­i­tal pun­ish­ment alto­geth­er, con­cen­trat­ing its con­tin­u­ing prac­tice in a dwin­dling num­ber of out­lier juris­dic­tions with an his­tor­i­cal lega­cy of slav­ery, lynch­ing, and Jim Crow and a mod­ern his­to­ry of abu­sive law enforcement.

Key Findings

• Virginia abol­ish­es death penal­ty; 23^rd state, first south­ern state to do so
• Oregon Supreme Court rul­ing con­tin­ues ero­sion of death penal­ty in the West; deci­sion is expect­ed to clear death row
• Bipartisan abo­li­tion efforts pro­ceed in Ohio and Utah

Death-penal­ty devel­op­ments in the states in 2021 reflect­ed the con­tin­u­ing long-term ero­sion of cap­i­tal pun­ish­ment in much of the coun­try, with push­back from a small num­ber of out­lier juris­dic­tions who turned to bru­tal and unpop­u­lar exe­cu­tion meth­ods or dis­tort­ed the legal process in their fer­vor to resume or continue executions.

From Alaska south­ward to New Mexico’s bor­ders with Texas and Mexico, there were no exe­cu­tions in 2021 and only two Southern California coun­ties imposed any death sen­tences. From the Pacific Northwest to the Atlantic Ocean, across the entire north­ern bor­der with Canada, and from the north­ern tip of Maine south to the Florida Keys, there were no exe­cu­tions and just two death sen­tences imposed in Florida. The prac­ti­cal dis­ap­pear­ance of the death penal­ty in these states was accom­pa­nied by an expand­ing zone of offi­cial death penal­ty abo­li­tion, span­ning the U.S. Atlantic coast from Maine to the north­ern bor­der of the Carolinas. There were no exe­cu­tions west of Texas for a sev­enth straight year, where the com­bi­na­tion of death-penal­ty abo­li­tion and guber­na­to­r­i­al mora­to­ria on exe­cu­tions for­mal­ly bars exe­cu­tions the full length of the U.S. Pacific coast.

Virginia’s his­toric abo­li­tion of the death penal­ty on March 24, 2021, high­light­ed the U.S.’s death-penal­ty ero­sion. The com­mon­wealth — which from colo­nial times had car­ried out more exe­cu­tions than any oth­er U.S. juris­dic­tion — became the first south­ern state to end cap­i­tal pun­ish­ment. Governor Ralph Northam, who endorsed abo­li­tion in his State of the Commonwealth address pri­or to the open­ing of the 2021 leg­isla­tive ses­sion, said at the bill sign­ing, “[t]here is no place today for the death penal­ty in this com­mon­wealth, in the South, or in this nation.” The repeal effort empha­sized the his­tor­i­cal links between slav­ery, Jim Crow, lynch­ings, and the death penal­ty. Delegate Mike Mullin, the House spon­sor of the bill, said, ​“We’ve car­ried out the death penal­ty in extra­or­di­nar­i­ly unfair fash­ion. Only four times out of near­ly 1400 [exe­cu­tions] was the defen­dant white and the vic­tim Black.” That his­to­ry under­lined the sym­bol­ic impor­tance of the death penal­ty being abol­ished in the for­mer cap­i­tal of the Confederacy.

Further under­scor­ing the rela­tion­ship between death-penal­ty repeal and racial heal­ing, Governor Northam on August 31 grant­ed posthu­mous par­dons to the Martinsville 7, sev­en young Black men who were tried, con­vict­ed, and sen­tenced to death in sham tri­als before all-white, all-male juries on charges of rap­ing a white woman. They were exe­cut­ed in Virginia in 1951 in the largest mass exe­cu­tion for rape in U.S. history. 

With Virginia’s abo­li­tion, a major­i­ty of U.S. states have now abol­ished the death penal­ty (23) or have a for­mal mora­to­ri­um on its use (3). An addi­tion­al ten states have not car­ried out an exe­cu­tion in at least ten years.

A judi­cial rul­ing in Oregon on October 8, 2021 is expect­ed to clear much, if not all, of the state’s death row, ren­der­ing the death penal­ty func­tion­al­ly obso­lete in the state. In 2019, the leg­is­la­ture nar­row­ly lim­it­ed the crimes for which the death penal­ty may be imposed. The Oregon Supreme Court, in its con­sid­er­a­tion of the appeal of death-row pris­on­er David Ray Bartol, found that his death sen­tence vio­lat­ed the state constitution’s ban on ​“dis­pro­por­tion­ate pun­ish­ments” because the new law had reclas­si­fied his offense as non-cap­i­tal. Because none of the peo­ple on Oregon’s death row com­mit­ted crimes that are now defined as death-eli­gi­ble, Jeffrey Ellis, co-direc­tor of the Oregon Capital Resource Center, said, “[m]y expec­ta­tion is that every death sen­tence that is cur­rent­ly in place will be over­turned.” Oregon has had a mora­to­ri­um on exe­cu­tions for a decade, since then-Governor John Kitzhaber halt­ed all exe­cu­tions on November 22, 2011. 

Tennessee passed a bill clos­ing a pro­ce­dur­al loop­hole that had left death-row pris­on­ers with­out any legal mech­a­nism to enforce the U.S. Supreme Court’s 2002 rul­ing that the death penal­ty could not be used against peo­ple with intel­lec­tu­al dis­abil­i­ty. The bill, inspired by the case of Pervis Payne, cre­at­ed a post-con­vic­tion pro­ce­dure for pris­on­ers to file and obtain judi­cial review of claims that they are inel­i­gi­ble for the death penal­ty due to intel­lec­tu­al dis­abil­i­ty. Until this year, Tennessee law pre­vent­ed death-row pris­on­ers from pre­sent­ing intel­lec­tu­al dis­abil­i­ty claims to state courts if their death sen­tences had already been upheld on appeal before the 2002 Supreme Court rul­ing. The bill was shep­herd­ed through the leg­is­la­ture by the Tennessee Black Caucus and passed with near-unan­i­mous sup­port. Lawyers for Payne, who is intel­lec­tu­al­ly dis­abled and main­tains his inno­cence, quick­ly filed a peti­tion ask­ing the Shelby County Criminal Court to ​“declare that Mr. Payne is inel­i­gi­ble to be exe­cut­ed because he is intel­lec­tu­al­ly dis­abled.” After seek­ing for near­ly 20 years to exe­cute Payne with­out any judi­cial review of this issue, Shelby County pros­e­cu­tors on November 18 con­ced­ed that he is intel­lec­tu­al­ly dis­abled and not sub­ject to the death penal­ty. They con­tin­ue to oppose his innocence claim.

Efforts to restrict or abol­ish the death penal­ty gained trac­tion in two states with Republican-con­trolled leg­is­la­tures: Ohio and Utah. Governor Mike DeWine signed a bipar­ti­san bill on January 9 mak­ing Ohio the first state to bar the exe­cu­tion of defen­dants who were severe­ly men­tal­ly ill at the time of the offense. The new law grant­ed cur­rent death-row pris­on­ers one year to file men­tal ill­ness claims, and in June, David Braden became the first per­son removed from death row under the new pol­i­cy. In February, bipar­ti­san spon­sors announced a death-penal­ty repeal bill, which has received com­mit­tee hear­ings in both hous­es. The leg­isla­tive ses­sion con­tin­ues in 2022, when leg­is­la­tors may vote on the bill. 

Republican leg­is­la­tors in Utah announced in September that they will intro­duce an abo­li­tion bill in the 2022 ses­sion. Senator David McCay, a spon­sor of the bill and a for­mer death-penal­ty sup­port­er, said of cap­i­tal pun­ish­ment, ​“It sets a false expec­ta­tion for soci­ety, sets a false expec­ta­tion for the vic­tims and their fam­i­lies, and increas­es the cost to the state of Utah and for states that still have capital punishment.”

In both Virginia and Utah, pros­e­cu­tors and fam­i­ly mem­bers of homi­cide vic­tims took lead­ing roles in advo­cat­ing for the end of the death penal­ty. Four Utah pros­e­cu­tors, rep­re­sent­ing coun­ties that com­prise near­ly 60% of the state’s pop­u­la­tion, released an open let­ter in sup­port of abo­li­tion. Salt Lake County District Attorney Sim Gill, Grand County Attorney Christina Sloan, Summit County Attorney Margaret Olson, and Utah County Attorney David Leavitt — two Republicans and two Democrats — called cap­i­tal pun­ish­ment ​“a grave defect” in the oper­a­tion of the law ​“that cre­ates a lia­bil­i­ty for vic­tims of vio­lent crime, defen­dants’ due process rights, and for the pub­lic good.” They high­light­ed con­cerns about inno­cence and racial bias and said the death penal­ty has an ​“inher­ent­ly coer­cive impact” on plea nego­ti­a­tions. ​“A defendant’s need to bar­gain for one’s very life in today’s legal cul­ture … gives already pow­er­ful pros­e­cu­tors too much pow­er to avoid tri­al by threat­en­ing death,” their letter states. 

Twelve Virginia pros­e­cu­tors, rep­re­sent­ing about 40% of the pop­u­la­tion, sim­i­lar­ly joined calls for abo­li­tion. ​“The death penal­ty is unjust, racial­ly biased, and inef­fec­tive at deter­ring crime,” they wrote in a let­ter to leg­isla­tive lead­ers. ​“We have more equi­table and effec­tive means of keep­ing our com­mu­ni­ties safe and address­ing society’s most heinous crimes. It is past time for Virginia to end this antiquated practice.”

Virginia’s abo­li­tion move­ment also gained leg­isla­tive sup­port as a result of the efforts of Rachel Sutphin, the daugh­ter of Corporal Eric Sutphin, who was mur­dered in 2006. Sutphin had unsuc­cess­ful­ly sought clemen­cy for William Morva, her father’s killer, based upon con­cerns about Morva’s men­tal ill­ness. Sutphin told the leg­is­la­tors that vic­tims’ fam­i­ly mem­bers are revic­tim­ized and repeat­ed­ly retrau­ma­tized by the appeal process and do not receive solace from the prisoner’s exe­cu­tion. In Utah, Sharon Wright Weeks, whose sis­ter and niece were mur­dered by severe­ly men­tal­ly ill cult leader Ronald Lafferty, is urg­ing leg­is­la­tors to repeal and replace the state’s death penal­ty. Like Sutphin, she said her fam­i­ly was ​“retrau­ma­tized” by hav­ing to relive the mur­ders in Lafferty’s first tri­al, through­out the appeals process, and then again in a retri­al after his con­vic­tion was over­turned. Lafferty ulti­mate­ly died on death row.

By con­trast, some states made efforts to resume exe­cu­tions by adopt­ing bru­tal exe­cu­tion meth­ods or dis­tort­ing the legal process. Arizona announced in June that it had ​“refur­bished” its gas cham­ber and would seek to car­ry out exe­cu­tions using cyanide gas, the same gas used by the Nazis to mur­der more than one mil­lion men, women, and chil­dren dur­ing the Holocaust. The announce­ment drew inter­na­tion­al back­lash and condemnation. 

South Carolina attempt­ed to resume exe­cu­tions after a ten-year hia­tus, sched­ul­ing one exe­cu­tion for February and anoth­er for May even though the state had no drugs to car­ry them out. The South Carolina Supreme Court vacat­ed the exe­cu­tion notices and ordered the state to not issue anoth­er death war­rant until one of three sce­nar­ios took place: the state con­firms to the court that the Department of Corrections has the abil­i­ty to car­ry out a lethal-injec­tion exe­cu­tion, a death-row pris­on­er elects to be elec­tro­cut­ed instead, or the law changes to oth­er­wise allow exe­cu­tions to take place. In response, the South Carolina leg­is­la­ture passed a bill in May 2021 mak­ing elec­tro­cu­tion the default method of exe­cu­tion, with lethal injec­tion or fir­ing squad avail­able as alter­na­tives. The state imme­di­ate­ly set two exe­cu­tion dates for June 2021, with­out hav­ing offered the men set for exe­cu­tion an oppor­tu­ni­ty to elect their method of exe­cu­tion. The South Carolina Supreme Court once again halt­ed the exe­cu­tions, say­ing that the state had vio­lat­ed the pris­on­ers’ ​“statu­to­ry right … to elect the man­ner of their exe­cu­tion.” The court also not­ed that the state had not yet devel­oped a pro­to­col for exe­cu­tions by fir­ing squad and barred the state from set­ting any exe­cu­tion dates until a pro­to­col is developed.

State Officials and Prosecutors Who Interfered with Legal Process

Prosecutors and state offi­cials also engaged in ques­tion­able acts in 2021 that inter­fered with or under­mined the legal process in death-penal­ty cas­es. Prosecutors secret­ly served as law clerks in cas­es they pros­e­cut­ed with­out dis­clos­ing their con­flicts of inter­est. Legislators in Nevada who worked full time as pros­e­cu­tors blocked votes on an abo­li­tion bill opposed by their office. And offi­cials in Florida, Missouri, Tennessee, and Oklahoma used their posi­tions to attempt to intim­i­date parole board mem­bers or local­ly elect­ed reform pros­e­cu­tors or over­ride their decisions.

Prosecutorial con­flicts of inter­est were dis­cov­ered in two sep­a­rate cas­es this year, one in Texas and one in Tennessee. The Texas Court of Criminal Appeals vacat­ed the con­vic­tion of death-row pris­on­er Clinton Young because the pros­e­cu­tor who tried him was simul­ta­ne­ous­ly on the pay­roll of the judge who presided over the tri­al and decid­ed Young’s tri­al court appeals. ​“Judicial and pros­e­cu­to­r­i­al mis­con­duct — in the form of an undis­closed employ­ment rela­tion­ship between the tri­al judge and the pros­e­cu­tor appear­ing before him — taint­ed Applicant’s entire pro­ceed­ing from the out­set,” the court wrote. ​“The evi­dence pre­sent­ed in this case sup­ports only one legal con­clu­sion: that Applicant was deprived of his due process rights to a fair tri­al and an impartial judge.”

A sim­i­lar prob­lem appeared to be present in the case of Pervis Payne in Tennessee. In October, his attor­neys sought a hear­ing to deter­mine whether the Shelby County District Attorney’s office should be recused from his case because of an undis­closed con­flict involv­ing Assistant District Attorney General Stephen Jones. Payne’s attor­ney pre­sent­ed evi­dence sug­gest­ing that Jones may have rep­re­sent­ed the pros­e­cu­tion in Payne’s case while simul­ta­ne­ous­ly work­ing as a cap­i­tal case staff attor­ney, assist­ing the county’s judges on death penal­ty cas­es dur­ing the time that Payne’s chal­lenges to his con­vic­tion and death sen­tence were pend­ing in the Shelby County courts. 

Two Las Vegas pros­e­cu­tors who hold leg­isla­tive lead­er­ship posi­tions in the Nevada state sen­ate blocked move­ment on a death-penal­ty abo­li­tion bill in that state. Clark County District Attorney Steve Wolfson, who runs the office in which the two sen­a­tors work when the leg­is­la­ture is not in ses­sion, was the lead wit­ness against the bill in the Assembly. Over Wolfson’s oppo­si­tion, the bill passed the state Assembly with a 26 – 16 vote and repeal advo­cates believed they had suf­fi­cient votes for pas­sage in the Senate. However, they were unable to get a hear­ing or a vote on the bill in the Senate Judiciary Committee, which was chaired by Senator Melanie Scheible, a pros­e­cu­tor in Wolfson’s office. Despite the sig­nif­i­cant mar­gin for repeal in the state Assembly, Senate Majority Leader Nicole Cannizzaro, who is also a Clark County pros­e­cu­tor, said leg­is­la­tors could not reach con­sen­sus on pos­si­ble amend­ments, so the bill would not advance in the Senate. Shortly after the Assembly passed the bill, and while it was pend­ing in the Senate, Clark County pros­e­cu­tors filed plead­ings to set an exe­cu­tion date for Nevada death-row pris­on­er Zane Floyd. Wolfson said the tim­ing of the exe­cu­tion request was coincidental. 

State offi­cials across the coun­try inter­vened to block the actions of local­ly elect­ed pros­e­cu­tors in sev­er­al death-penal­ty cas­es. A Nashville judge approved a plea deal for the sec­ond time to resen­tence death-row pris­on­er Abu-Ali Abdur’Rahman to life with­out parole. Abdur’Rahman’s 1987 con­vic­tion was taint­ed by for­mer Davidson County Assistant District Attorney General John Zimmerman’s uncon­sti­tu­tion­al use of dis­cre­tionary strikes to remove African Americans from the jury. Abdur’Rahman had agreed to a plea deal with Davidson County District Attorney General Glenn Funk in 2019, but Tennessee Attorney General Herbert H. Slatery III inter­vened in the case, claim­ing that Funk and the tri­al court had no author­i­ty to vacate Abdur’Rahman’s sen­tence in the absence of a proven con­sti­tu­tion­al vio­la­tion. Abdur’Rahman was pro­ce­du­ral­ly barred from claim­ing jury dis­crim­i­na­tion in his case, Slatery said. After the Tennessee Court of Criminal Appeals struck down the first plea deal, Abdur’Rahman’s attor­neys argued that new evi­dence of dis­crim­i­na­to­ry jury selec­tion allowed him to chal­lenge his con­vic­tion. Funk agreed, telling the court that the state’s ​“inter­est in the final­i­ty of con­vic­tions and sen­tences is out­weighed by the inter­ests of jus­tice, and in some sit­u­a­tions by recog­ni­tion of the sanc­ti­ty of human life.” On December 10, Slatery announced he will not appeal the lat­est plea deal, final­iz­ing Abdur’Rahman’s removal from death row.

In Missouri and Florida, state attor­neys gen­er­al inter­vened to block local pros­e­cu­tors from advanc­ing poten­tial exon­er­a­tions. Under a Missouri law passed in April 2021, coun­ty pros­e­cu­tors may file motions to free pris­on­ers they believe to be inno­cent. Jackson County Prosecutor Jean Peters Baker filed such a motion in the case of Kevin Strickland, who was cap­i­tal­ly tried and ulti­mate­ly sen­tenced to life with­out parole for a 1978 triple mur­der. Strickland’s inno­cence claims were sup­port­ed not only by Peters Baker’s office, but by the two oth­er men con­vict­ed of the crime, the lone eye­wit­ness, and sev­er­al state leg­is­la­tors. At a November hear­ing, the Jackson County Prosecutor’s office and the Missouri Attorney General’s office, which would typ­i­cal­ly be allied in a crim­i­nal case, were adver­saries. In an attempt to pre­vent Jackson County pros­e­cu­tors from pre­sent­ing new evi­dence of inno­cence, the attor­ney general’s office filed a motion to lim­it the evi­dence the court could con­sid­er to the evi­dence that been pre­sent­ed to jurors in Strickland’s ini­tial tri­al. When that failed, they moved to sub­sti­tute them­selves for local pros­e­cu­tors as coun­sel for the state and to exclude Strickland from par­tic­i­pat­ing as a par­ty in his own inno­cence hear­ing. The court reject­ed that motion as well and ulti­mate­ly issued an order exonerating Strickland.

Florida Attorney General Ashley Moody also inter­vened in two cas­es involv­ing poten­tial­ly inno­cent death-row pris­on­ers, fil­ing motions to block DNA test­ing that State Attorney Monique H. Worrell had con­sent­ed to and that the tri­al court had approved. Worrell had agreed to test­ing in the cas­es of Tommy Zeigler and Henry Sireci, both of whom were sen­tenced to death in 1976 for unre­lat­ed crimes and both of whom had con­sis­tent­ly main­tained their inno­cence for more than forty years. Moody argued that the state DNA law erect­ed lim­its on when DNA test­ing could be per­formed and denied local pros­e­cu­tors dis­cre­tion to con­sent to DNA test­ing with­out the approval of state pros­e­cu­tors, and that Ziegler’s and Sireci’s requests for test­ing did not meet the require­ments of Florida state post-con­vic­tion law. She failed to note that years ear­li­er, less sophis­ti­cat­ed DNA test­ing had been con­duct­ed under a sim­i­lar agree­ment with­out any objec­tion from the attor­ney general’s office. The tri­al court refused to rescind its order, and Moody has fur­ther delayed the test­ing by fil­ing an appeal.

In Oklahoma, pros­e­cu­tors repeat­ed­ly attempt­ed to manip­u­late the clemen­cy process by try­ing to recuse mem­bers of the state’s par­dons and parole board who they believed would favor death-row pris­on­er Julius Jones. In the spring of 2020, the par­dons board indi­cat­ed that it would be recep­tive to requests from death-row pris­on­ers to con­sid­er peti­tions for com­mu­ta­tion before death war­rants had been issued in their cas­es. However, as a lat­er inves­ti­ga­tion by The Frontier dis­cov­ered, for­mer judge Allen McCall — then a mem­ber of the board — had threat­ened the board’s exec­u­tive direc­tor, Steven Bickley, with a grand jury inves­ti­ga­tion if he sched­uled a hear­ing for Jones with­out first obtain­ing approval from then-Attorney General Mike Hunter. In June 2020, the board for­mal­ly asked Hunter if it had the author­i­ty to con­duct pre-war­rant com­mu­ta­tion hear­ings for death-row pris­on­ers. Hunter agreed that the board had the author­i­ty to con­duct such hear­ings, but Bickley sub­se­quent­ly resigned, say­ing he had been ​“threat­ened for doing his job.”

Prior to Jones’ com­mu­ta­tion hear­ing, Oklahoma County District Attorney David Prater filed an emer­gency motion with the Oklahoma Supreme Court to recuse two mem­bers of the board, alleg­ing that they would be biased in favor of com­mu­ta­tion because of their ties to orga­ni­za­tions that seek to reduce incar­cer­a­tion rates. The court denied the motion, writ­ing that Prater was ​“ask­ing this Court to pro­vide for a rem­e­dy that sim­ply does not exist under Oklahoma law.” The board vot­ed 3 – 1 to rec­om­mend that Governor Kevin Stitt com­mute Jones’ sen­tence to a parole-eli­gi­ble life term. 

After that rec­om­men­da­tion, Oklahoma Attorney General John O’Connor sought and obtained a death war­rant for Jones. Governor Stitt then indi­cat­ed he would not act on the board’s rec­om­men­da­tion until it con­duct­ed a sep­a­rate clemen­cy hear­ing at which Jones and fam­i­ly mem­bers of mur­der vic­tim Paul Howell would tes­ti­fy. Prior to that clemen­cy hear­ing, O’Connor filed a new motion in the Oklahoma Supreme Court, attempt­ing to recuse the same two board mem­bers on the same pre­vi­ous­ly reject­ed grounds. The court again denied the recusal request and the board, once again by a 3 – 1 vote, rec­om­mend­ed clemen­cy. Four hours before Jones’ sched­uled exe­cu­tion, Governor Stitt issued an order com­mut­ing Jones’ death sen­tence to life with­out parole, con­di­tioned upon Jones nev­er seek­ing a future par­don or fur­ther com­mu­ta­tion of his sentence.

Key Findings

• Federal exe­cu­tion spree ends less than one week before Biden inauguration
• Six fed­er­al exe­cu­tions per­formed between elec­tion and inau­gu­ra­tion are the most ever in a pres­i­den­tial transition period
• Attorney General Merrick Garland announces pause on fed­er­al exe­cu­tions, DOJ will review Trump policies

The change of pres­i­den­tial admin­is­tra­tion had major effects on the use of the fed­er­al death penal­ty, bring­ing Department of Justice (DOJ) prac­tices back in line with those of oth­er mod­ern pres­i­den­cies. The Trump admin­is­tra­tion con­clud­ed its unprece­dent­ed exe­cu­tion spree just four days before President Biden was inau­gu­rat­ed. The thir­teen fed­er­al exe­cu­tions per­formed in a six-month peri­od were pro­ce­du­ral­ly and his­tor­i­cal­ly anom­alous and marked the fed­er­al gov­ern­ment as an out­lier in its use of the death penalty. 

Although Biden had cam­paigned on a promise to try to end the fed­er­al death penal­ty, his admin­is­tra­tion took no affir­ma­tive steps to do so. Attorney General Merrick Garland issued a mem­o­ran­dum announc­ing that DOJ would not seek new exe­cu­tion dates while it reviewed changes in death-penal­ty poli­cies imple­ment­ed under the for­mer admin­is­tra­tion, but it also took steps to defend or rein­state fed­er­al death sen­tences in two notorious cases.

The exe­cu­tions of Lisa Montgomery, Corey Johnson, and Dustin Higgs in January 2021 con­clud­ed an unprece­dent­ed thir­teen-exe­cu­tion spree under­tak­en by the fed­er­al gov­ern­ment. In per­form­ing the exe­cu­tions, the Trump admin­is­tra­tion devi­at­ed dra­mat­i­cal­ly from his­tor­i­cal norms and prac­tices. The six exe­cu­tions between the November 3, 2020 elec­tion and the January 20, 2021 inau­gu­ra­tion were the most in U.S. his­to­ry dur­ing a pres­i­den­tial tran­si­tion peri­od. The exe­cu­tions were per­formed dur­ing the worst pan­dem­ic in more than a cen­tu­ry, flout­ing pub­lic health safe­guards that led every U.S. state to pause exe­cu­tions. All 13 fed­er­al exe­cu­tions took place dur­ing the longest pause between state exe­cu­tions in more than forty years.

Throughout the fed­er­al exe­cu­tion spree, the con­duct of the DOJ and the U.S. Supreme Court ran counter to both long-estab­lished norms and recent nation­al trends. While death sen­tences and exe­cu­tions hov­ered near his­toric lows for the sev­enth con­sec­u­tive year, and pub­lic sup­port for the death penal­ty remained at its low­est lev­el in half a cen­tu­ry, the Department of Justice per­formed the most fed­er­al civil­ian exe­cu­tions in any sin­gle year since 1896. Among those exe­cut­ed were two peo­ple accused of mur­ders com­mit­ted in their teens, two pris­on­ers with strong evi­dence of intel­lec­tu­al dis­abil­i­ty, two severe­ly men­tal­ly ill pris­on­ers, one pris­on­er who undis­put­ed­ly was not the trig­ger­man, and two pris­on­ers who had con­tract­ed COVID-19 in the weeks lead­ing up to their executions. 

The Supreme Court inter­vened to lift stays and injunc­tions imposed by low­er courts, fore­clos­ing oppor­tu­ni­ties for judi­cial review of weighty claims of intel­lec­tu­al dis­abil­i­ty, com­pe­ten­cy to be exe­cut­ed, and chal­lenges to the fed­er­al government’s exe­cu­tion pro­to­col that the low­er fed­er­al courts had found were like­ly to suc­ceed. Four of the exe­cu­tions took place after the mid­night expi­ra­tion of the pris­on­ers’ exe­cu­tion war­rants, because the Supreme Court act­ed to lift low­er court stays late at night. In those exe­cu­tions, the Federal Bureau of Prisons issued unprece­dent­ed and legal­ly sus­pect same-day exe­cu­tion notices and pro­ceed­ed to exe­cute the pris­on­ers with­in a few hours.

On June 30, Attorney General Merrick Garland announced a for­mal pause on all fed­er­al exe­cu­tions while the Department of Justice under­took a review of changes in exec­u­tive branch death-penal­ty poli­cies imple­ment­ed under the Trump DOJ. The announce­ment marked the Biden administration’s offi­cial depar­ture from the out­lier prac­tices of the Trump admin­is­tra­tion. ​“The Department of Justice must ensure that every­one in the fed­er­al crim­i­nal jus­tice sys­tem is not only afford­ed the rights guar­an­teed by the Constitution and laws of the United States, but is also treat­ed fair­ly and humane­ly. That oblig­a­tion has spe­cial force in cap­i­tal cas­es,” Garland wrote. The mem­o­ran­dum did not address the administration’s pol­i­cy on con­tin­u­ing to seek new death sen­tences or oppose appeals filed by cur­rent death-row prisoners. 

In the months after the announce­ment, the DOJ with­drew a num­ber of notices of intent to seek the death penal­ty that had been filed under the pre­vi­ous admin­is­tra­tion. However, DOJ con­tin­ued to defend pre­vi­ous­ly imposed death sen­tences, and its actions in the cas­es of Dylann Roof and Dzhokhar Tsarnaev showed a will­ing­ness to do so aggres­sive­ly, at least in the most nation­al­ly promi­nent fed­er­al cas­es. In August, the U.S. Court of Appeals for the Fourth Circuit affirmed Roof’s fed­er­al-court con­vic­tions and death sen­tences for the racial­ly moti­vat­ed mur­ders of nine parish­ioners in an his­toric Charleston, South Carolina African-American church in 2017. The DOJ had defend­ed Roof’s con­vic­tions and death sen­tences at the Fourth Circuit. In October, the U.S. Supreme Court heard oral argu­ment in the case of Dzhokhar Tsarnaev, who was con­vict­ed of the 2013 Boston Marathon bomb­ing. In 2020, the U.S. Court of Appeals for the First Circuit had vacat­ed Tsarnaev’s con­vic­tion, but the DOJ opt­ed to con­tin­ue the Trump administration’s appeal of that deci­sion and argue in favor of rein­stat­ing the death sentence.

A White House spokesper­son dis­as­so­ci­at­ed the President from the DOJ’s Tsarnaev appeal, cit­ing the Justice Department’s ​“inde­pen­dence regard­ing such deci­sions.” In an email to reporters on June 15, Deputy White House Press Secretary Andrew Bates wrote, ​“President Biden has made clear that he has deep con­cerns about whether cap­i­tal pun­ish­ment is con­sis­tent with the val­ues that are fun­da­men­tal to our sense of jus­tice and fair­ness. … The President believes the Department should return to its pri­or prac­tice, and not car­ry out executions.”

Legislation to abol­ish the fed­er­al death penal­ty was intro­duced in the U.S. Congress, and leg­is­la­tors in both the House and the Senate wrote let­ters to Attorney General Garland urg­ing him to stop seek­ing death sen­tences and asked President Biden to use his exec­u­tive pow­er to com­mute fed­er­al death row. The White House offered no sub­stan­tive com­ment on either request.

Key Findings

• Seventh con­sec­u­tive year with few­er than 50 new death sen­tences and 30 executions
• Use of the death penal­ty is increas­ing­ly geo­graph­i­cal­ly con­cen­trat­ed: three states account­ed for major­i­ty of exe­cu­tions and death sentences
• Just five coun­ties now account for more than 20% of all U.S. executions

The com­bined impact of the con­tin­u­ing COVID pan­dem­ic and dwin­dling sup­port for cap­i­tal pun­ish­ment made 2021 the sev­enth con­sec­u­tive year with few­er than 30 exe­cu­tions and 50 new death sen­tences in the United States. The 11 exe­cu­tions car­ried out dur­ing the year were the fewest since 1988, and the eight state exe­cu­tions were the sec­ond fewest since 1983, one more than the 37-year low of sev­en state exe­cu­tions in 2020. The num­ber of new death sen­tences tied last year’s record low, with just 18 imposed across the country.

Just five states and the fed­er­al gov­ern­ment con­duct­ed exe­cu­tions in 2021. Texas and the U.S. gov­ern­ment each exe­cut­ed three peo­ple, Oklahoma exe­cut­ed two, and three addi­tion­al states — Alabama, Mississippi, and Missouri — each exe­cut­ed one person. 

Racial dis­par­i­ties in exe­cu­tions and new death sen­tences per­sist­ed in 2021, as six of the eleven peo­ple exe­cut­ed were Black (54.5%). Half of the Black pris­on­ers exe­cut­ed were put to death for inter­ra­cial mur­ders, but every white pris­on­er was exe­cut­ed for the mur­der of a white vic­tim. The major­i­ty (61.1%) of peo­ple sen­tenced to death in 2021 were either Black or Latinx. No white defen­dant was sen­tenced to death in tri­al pro­ceed­ings that did not involve any white victim.

Seven states imposed new death sen­tences in 2021. Oklahoma and Alabama each hand­ed down four new sen­tences, although no jury in Alabama unan­i­mous­ly rec­om­mend­ed the death penal­ty. California and Texas each imposed three death sen­tences. Florida imposed two. Two states – Nebraska and Tennessee — imposed one death sen­tence each. Only two U.S. coun­ties — Los Angeles County, California and Oklahoma County, Oklahoma — were respon­si­ble for more than a sin­gle death sen­tence. The two sen­tences imposed in Los Angeles both result­ed from jury ver­dicts hand­ed down before the coun­ty elect­ed reform pros­e­cu­tor George Gascón, who has pledged not to seek the death penal­ty. The final judi­cial sen­tenc­ings in those cas­es had been delayed by the pan­dem­ic. One death sen­tence in Florida was also the result of pan­dem­ic-delayed court pro­ceed­ings, after a jury rec­om­mend­ed a death sen­tence in 2019.

Notably, there were no death sen­tences in many for­mer­ly heavy-use death-penal­ty coun­ties, includ­ing Harris County, Texas; Philadelphia County, Pennsylvania; and Duval County, Florida. The elec­tion of reform pros­e­cu­tors in those and oth­er coun­ties across the coun­try has con­tributed sig­nif­i­cant­ly to the con­tin­u­ing low num­ber of new death sentences.

The states respon­si­ble for the year’s exe­cu­tions were, in large part, also respon­si­ble for the new death sen­tences. Alabama, Texas, and Oklahoma col­lec­tive­ly account­ed for 54.5% of the year’s exe­cu­tions and 61.1% of the year’s new death sen­tences. Oklahoma has sur­passed Virginia as the state with the sec­ond-most exe­cu­tions since 1976. 

At the coun­ty lev­el, five U.S. coun­ties (Harris, Dallas, Tarrant, and Bexar coun­ties in Texas and Oklahoma County, Oklahoma) now account for 20% of all exe­cu­tions in the U.S. since 1976. Oklahoma County, one of only two U.S. coun­ties to impose more than one death sen­tence in 2021, has per­formed more exe­cu­tions than any coun­ty out­side of Texas. With 42 exe­cu­tions, it has car­ried out more than twice the num­ber of exe­cu­tions of the next-high­est coun­ty (St. Louis County, Missouri, with 19).

Fewer than one quar­ter of the exe­cu­tions sched­uled in 2021 were car­ried out. Of the 45 exe­cu­tion dates that were set, 11 (24.4%) result­ed in exe­cu­tions. One per­son, Julius Jones, received a com­mu­ta­tion of his death sen­tence. One per­son with an exe­cu­tion date this year, James Frazier of Ohio, died on death row. Frazier, Ohio’s old­est death-row pris­on­er, was one of at least 136 Ohio pris­on­ers to die of COVID-19 since the pan­dem­ic began. Governor Mike DeWine grant­ed reprieves to an addi­tion­al nine Ohio pris­on­ers, cit­ing prob­lems with Ohio’s lethal-injec­tion pro­to­col and the risk to the state’s access to ther­a­peu­tic med­i­cines if the state divert­ed drugs intend­ed for pub­lic health pur­pos­es for use in exe­cu­tions. One reprieve was grant­ed in Pennsylvania, where Governor Tom Wolf has imposed a mora­to­ri­um on executions.

One-third of all sched­uled exe­cu­tions (15 of 45) were stayed by the courts. Three pris­on­ers in Texas received stays to allow time for con­sid­er­a­tion of their claims of intel­lec­tu­al dis­abil­i­ty. Another two, also in Texas, were grant­ed stays while the U.S. Supreme Court con­sid­ers whether Texas’ exe­cu­tion poli­cies vio­late pris­on­ers’ reli­gious lib­er­ty. Executions in Nevada and South Carolina were stayed over con­cerns about meth­ods of exe­cu­tion. An Idaho court stayed the exe­cu­tion of ter­mi­nal­ly ill pris­on­er Gerald Pizzuto so the state par­dons board could con­sid­er his appli­ca­tion for clemency.

Seven addi­tion­al death war­rants were removed, with­drawn, vacat­ed, or rescheduled.

Though few juris­dic­tions per­formed or even sched­uled exe­cu­tions in 2021, those that did under­took extreme mea­sures that demon­strat­ed a lack of con­cern for due process and a cav­a­lier inat­ten­tive­ness to exe­cu­tion prepa­ra­tion. South Carolina twice attempt­ed to sched­ule exe­cu­tions with­out obtain­ing exe­cu­tion drugs or estab­lish­ing a legal­ly required pro­to­col for exe­cu­tions by fir­ing squad. Oklahoma set sev­en exe­cu­tion dates despite a pend­ing tri­al on the con­sti­tu­tion­al­i­ty of the state’s lethal-injec­tion pro­to­col and a pri­or rep­re­sen­ta­tion by the state attor­ney gen­er­al that the state would not seek exe­cu­tion dates until the lethal-injec­tion issues were resolved.

Arizona pros­e­cu­tors attempt­ed to resume exe­cu­tions by ask­ing the Arizona Supreme Court to set expe­dit­ed fil­ing dead­lines in advance of issu­ing exe­cu­tion war­rants for two pris­on­ers. These lim­i­ta­tions would require pris­on­ers to present and courts to resolve chal­lenges to Arizona’s lethal-injec­tion pro­to­col and oth­er legal issues with­in the 90-day win­dow before the pen­to­bar­bi­tal the state had spent $1.5 mil­lion to obtain went bad. The com­pressed sched­ule was nec­es­sary, they argued, so the state could obtain death war­rants, have the drug man­u­fac­tured by a com­pound­ing phar­ma­cy, get the drug test­ed, and car­ry out each exe­cu­tion before the drug lost its poten­cy. The pris­on­ers object­ed that Arizona had mis­rep­re­sent­ed the shelf life of the com­pound­ed drug, cit­ing med­ical jour­nals and sci­en­tif­ic experts who said com­pound­ed pen­to­bar­bi­tal los­es poten­cy after 45 days. In response, pros­e­cu­tors admit­ted their mis­take and asked the court to lim­it the time for judi­cial review even fur­ther so the exe­cu­tions could move for­ward — a pro­pos­al that would give the pris­on­ers just four days to respond to a motion to set an exe­cu­tion date. The Arizona Supreme Court then vacat­ed the brief­ing sched­ule, requir­ing pros­e­cu­tors to con­duct ​“spe­cial­ized test­ing to deter­mine a beyond-use date for com­pound­ed dos­es of the drug” before renew­ing its scheduling motion.

In May, Idaho sched­uled the exe­cu­tion of a hos­pice-bound ter­mi­nal­ly ill pris­on­er while his peti­tion for a hear­ing before the Idaho Commission of Pardons and Parole was pend­ing. After the com­mis­sion agreed to hear the case and set a November hear­ing date, the tri­al court grant­ed a stay ​“until the con­clu­sion of the com­mu­ta­tion pro­ceed­ings.” Nevada also pre­ma­ture­ly set an exe­cu­tion date for Zane Floyd, which was stayed because the state failed to dis­close the drugs it intend­ed to use in its nev­er-before-tried exe­cu­tion pro­to­col in suf­fi­cient time for the court to review the con­sti­tu­tion­al­i­ty of the pro­to­col. Drug man­u­fac­tur­er Hikma Pharmaceuticals threat­ened to sue the state for ille­gal­ly obtain­ing its drugs for use in the exe­cu­tion. Courts had pre­vi­ous­ly blocked Nevada’s attempt to exe­cute Scott Dozier with drugs the court said had been pur­chased in ​“bad faith” through ​“sub­terfuge.” Advocates for the repeal of the state’s death penal­ty ques­tioned the tim­ing of the exe­cu­tion war­rant, which pros­e­cu­tors request­ed while the state leg­is­la­ture was con­sid­er­ing an abolition bill.

Key Findings

• Two more death-row pris­on­ers exon­er­at­ed in 2021, and DPIC review of death sen­tences imposed since 1972 revealed 11 addi­tion­al exon­er­a­tions, bring­ing to 186 the num­ber of death-row exonerees since 1973 
• Since 1973, one wrong­ful­ly con­vict­ed death-row pris­on­er has been exon­er­at­ed for every 8.3 executions
• States and coun­ties paid out close to $100 mil­lion in pay­ments for wrong­ful capital convictions
• Julius Jones and Pervis Payne released from death row in 2021 but still face life in prison

Exonerations in 2021

The public’s under­stand­ing of the grave dan­gers of wrong­ful cap­i­tal con­vic­tions and death sen­tences deep­ened in 2021 as two inno­cent pris­on­ers were exon­er­at­ed more than 25 years after being wrong­ful­ly sen­tenced to die, and a mul­ti-year Death Penalty Information Center review of more than 9,600 death sen­tences imposed since 1972 dis­cov­ered 11 pre­vi­ous­ly unre­port­ed death-row exon­er­a­tions. The now 186 death-row exon­er­a­tions since 1973 revealed that the American death-penal­ty sys­tem is even more fright­en­ing­ly unre­li­able than was pre­vi­ous­ly under­stood. The data now show that one per­son wrong­ful­ly con­vict­ed and con­demned to die has been exon­er­at­ed for every 8.3 pris­on­ers who have been executed.

DPIC’s February 2021 spe­cial report, The Innocence Epidemic, ana­lyzed the fac­tors con­tribut­ing to those wrong­ful cap­i­tal con­vic­tions and the exon­er­a­tion process. The report found that wrong­ful cap­i­tal con­vic­tions can­not be dis­missed as mere acci­den­tal fail­ures of the jus­tice sys­tem. Instead, most involve a com­bi­na­tion of police or pros­e­cu­to­r­i­al mis­con­duct and per­jury or false accu­sa­tion. The data fur­ther showed that inno­cent Black defen­dants were more like­ly to be wrong­ful­ly con­vict­ed and con­demned and were more like­ly to spend more time impris­oned before being exon­er­at­ed. The report also found that wrong­ful cap­i­tal con­vic­tions occurred all over the coun­try, but were most like­ly in out­lier coun­ties that most aggres­sive­ly pur­sued death sen­tences and in states with out­lier sen­tenc­ing prac­tices such as non-unan­i­mous jury rec­om­men­da­tions for death and judi­cial over­ride of jury rec­om­men­da­tions for life. 

Both death-row exon­er­a­tions in 2021 involved cas­es from Mississippi, and both involved false forensic testimony. 

Eddie Lee Howard, Jr., con­vict­ed and sen­tenced to death based on the false foren­sic tes­ti­mo­ny of a since dis­graced pros­e­cu­tion expert wit­ness, was exon­er­at­ed in January 2021. He was the sixth death-row pris­on­er exon­er­at­ed in Mississippi since 1973.

Howard spent 26 years on death row on charges that he mur­dered and alleged­ly raped an 84-year-old white woman. He was first con­vict­ed and sen­tenced to death in 1994 in a tri­al in which he rep­re­sent­ed him­self. The Mississippi Supreme Court over­turned that con­vic­tion in 1997 and ordered a new tri­al. He was con­vict­ed and sen­tenced to death again in a retri­al in 2000 at which foren­sic odon­tol­o­gist Dr. Michael West tes­ti­fied that Howard was the source of bite marks he claimed to have found on the victim’s body dur­ing a post-autop­sy, post-exhuma­tion exam­i­na­tion of her body. The ini­tial autop­sy report did not men­tion bite marks but claimed that the vic­tim had been beat­en, stran­gled, stabbed, and raped. 

During post-con­vic­tion evi­den­tiary hear­ings in 2016, Howard’s lawyers pre­sent­ed DNA evi­dence that evis­cer­at­ed the prosecution’s false foren­sic tes­ti­mo­ny. DNA test­ing showed no evi­dence of semen or male DNA on the victim’s cloth­ing, bed­sheets, or body and no male DNA on the loca­tions on the victim’s body where she sup­pos­ed­ly had been bit­ten. None of the blood or oth­er items test­ed con­tained Howard’s DNA. Male DNA found on the knife used by the mur­der­er exclud­ed Howard as the source.

Howard was rep­re­sent­ed by lawyers from the Mississippi Innocence Project and the nation­al Innocence Project. ​“I want to say many thanks to the many peo­ple who are respon­si­ble for help­ing to make my dream of free­dom a real­i­ty,” said Howard after his exon­er­a­tion. ​“I thank you with all my heart, because with­out your hard work on my behalf, I would still be con­fined in that ter­ri­ble place called the Mississippi Department of Corrections, on death row, wait­ing to be executed.”

In August 2021, Sherwood Brown was exon­er­at­ed of a triple mur­der that sent him to Mississippi’s death row in 1995.

Brown was sen­tenced to death for the mur­der of 13-year-old Evangela Boyd and received two life sen­tences for the mur­ders of her moth­er and grand­moth­er. His con­vic­tions and death sen­tence rest­ed in sub­stan­tial part on false expert foren­sic tes­ti­mo­ny, as well as the per­jured tes­ti­mo­ny of a jail­house infor­mant. The infor­mant was fac­ing seri­ous charges for car theft when he claimed Brown had con­fessed to the mur­ders. Prosecutors argued that blood found on the sole of one of Brown’s shoes came from the vic­tims, and two foren­sic bitemark ana­lysts false­ly claimed that a cut on Brown’s wrist was a bitemark that matched the girl’s bite pattern. 

DNA evi­dence lat­er con­tra­dict­ed the prosecution’s nar­ra­tive. The evi­dence showed that bloody foot­prints in and around the mur­der scene con­tained only female DNA and the blood spot on Brown’s shoe con­tained only male DNA. DNA test­ing on a swab of Boyd’s sali­va did not con­tain Brown’s DNA, refut­ing the claim that she had bit­ten Brown. DNA tests on the sex­u­al assault kit col­lect­ed dur­ing the autop­sy found no DNA from Brown but showed that Evangela Boyd’s pubic hair and her bra con­tained DNA from uniden­ti­fied males. A foren­sic sci­en­tist from the Mississippi Crime Laboratory found that none of the hair evi­dence recov­ered from the cloth­ing and bod­ies of the vic­tims had any micro­scop­ic char­ac­ter­is­tics sim­i­lar to Brown’s hair. A crime lab fin­ger­print ana­lyst also found that none of the fin­ger­prints found at the scene belonged to Brown.

Based on this evi­dence, the Mississippi Supreme Court over­turned Brown’s con­vic­tion and death sen­tence in October 2017. However, Brown remained in cus­tody fac­ing pos­si­ble cap­i­tal retri­al as pros­e­cu­tors attempt­ed to build anoth­er case against him. With Brown in coun­ty pre­tri­al cus­tody, four more lab­o­ra­to­ries test­ed the DNA evi­dence over the course of three more years. Each came back with the same results. ​“Every time, there was noth­ing incrim­i­nat­ing Sherwood,” said one of Brown’s attor­neys after his exon­er­a­tion. ​“The state was try­ing to find some­thing to incrim­i­nate Sherwood, but every time they did, it kind of stumped them deeper.”

Finally, on August 24, Mississippi Circuit Court Judge Jimmy McClure grant­ed a pros­e­cu­tion motion to dis­miss charges against Brown. He was released lat­er that day after hav­ing spent 26 years on death row or fac­ing the prospects of a capital retrial.

Court Decisions in Potential Exoneration Cases

More than thir­ty years after a Florida judge sen­tenced him to death fol­low­ing an 8 – 4 sen­tenc­ing rec­om­men­da­tion by an all-white jury, Crosley Green was freed in April 2021. Citing Green’s age and health risks relat­ed to con­tin­ued incar­cer­a­tion dur­ing the pan­dem­ic, a judge of the U.S. District Court for the Middle District of Florida ordered Green’s imme­di­ate release while a fed­er­al appeals court con­sid­ers pros­e­cu­tors’ appeal of the dis­trict court’s July 2018 deci­sion over­turn­ing his conviction.

Green, who is Black, was con­vict­ed and sen­tenced to death in 1990 for the 1989 mur­der of Charles ​“Chip” Flynn. No phys­i­cal evi­dence linked him to the crime, and the one wit­ness to the crime was the victim’s ex-girl­friend, who first respon­ders ini­tial­ly iden­ti­fied as the like­ly per­pe­tra­tor. The two police offi­cers who respond­ed to the crime scene told pros­e­cu­tors they believed the ex-girl­friend had killed Flynn, but pros­e­cu­tors with­held their notes from Green’s defense team, deny­ing him access to poten­tial­ly excul­pa­to­ry evi­dence. All three wit­ness­es who tes­ti­fied that Green had con­fessed to the mur­der lat­er recant­ed their state­ments, say­ing they had been coerced by pros­e­cu­tors. In 2007, the tri­al court over­turned Green’s death sen­tence. The court found that tri­al coun­sel had failed to inves­ti­gate court records that would have dis­proven the prosecution’s claim that Green had a pre­vi­ous con­vic­tion in New York for a crime of vio­lence. The Florida Supreme Court upheld that rul­ing in 2008 and Green was resen­tenced to life before being released this year.

The Texas Court of Criminal Appeals (TCCA) in September 2021 vacat­ed the con­vic­tion of death-row pris­on­er Clinton Young, whose pros­e­cu­tor was also on the pay­roll of the judge who presided over the tri­al and decid­ed his tri­al court appeals. In grant­i­ng Young’s peti­tion for a new tri­al, the TCCA wrote: ​“Judicial and pros­e­cu­to­r­i­al mis­con­duct — in the form of an undis­closed employ­ment rela­tion­ship between the tri­al judge and the pros­e­cu­tor appear­ing before him — taint­ed Applicant’s entire pro­ceed­ing from the out­set. … The evi­dence pre­sent­ed in this case sup­ports only one legal con­clu­sion: that Applicant was deprived of his due process rights to a fair tri­al and an impartial judge.”

Young was con­vict­ed and sen­tenced to death by a Midland County jury in 2003 on charges that he had mur­dered two men for use of their vehi­cles dur­ing a 48-hour crime spree. He has long said he was framed for the mur­ders. Assistant District Attorney Ralph Petty was one of the pros­e­cu­tors in Young’s case, while at the same time serv­ing as a paid law clerk to state District Court Judge John Hyde. In that dual role, Petty con­duct­ed research and made legal rec­om­men­da­tions to the court on the same motions the pros­e­cu­tion had filed or were oppos­ing in the case. Neither Petty, nor Hyde, nor the Midland County District Attorney’s office dis­closed this con­flict to the defense. Petty has since been barred from the con­tin­ued prac­tice of law.

After being direct­ed by the Texas Court of Criminal Appeals (TCCA) to review Rodney Reed​’s claim that he was inno­cent of the 1996 mur­der of Stacey Stites, a Texas dis­trict court judge rec­om­mend­ed that Reed​’s con­vic­tion be upheld. In a November 1, 2021 deci­sion, Bastrop County District Court Judge J.D. Langley issued rec­om­men­da­tions and find­ings of fact that cred­it­ed every pros­e­cu­tion wit­ness over every wit­ness pre­sent­ed by Reed’s defense counsel. 

The TCCA had stayed Reed’s exe­cu­tion on November 15, 2019, less than one week before he was sched­uled to be put to death and returned his case to the Bastrop County dis­trict court to review Reed’s claims that pros­e­cu­tors pre­sent­ed false tes­ti­mo­ny and sup­pressed excul­pa­to­ry evi­dence and that Reed is actu­al­ly inno­cent. The appeals court retained juris­dic­tion over the case and direct­ed the tri­al court to make rec­om­men­da­tions on how it should rule in the case.

During a ten-day evi­den­tiary hear­ing, Reed’s lawyers pre­sent­ed evi­dence that Reed, who is Black, was hav­ing an affair with Stites, who is white; that Stites was actu­al­ly mur­dered by her abu­sive fiancé, Jimmy Fennell; and that Fennell, who at that time was a police offi­cer in Giddings, Texas, had framed Reed for the mur­der. Numerous wit­ness­es tes­ti­fied that they had seen Stites togeth­er with Reed on pri­or occa­sions, heard Fennell threat­en to kill her if she cheat­ed on him, and heard Fennell admit to the killing. Two foren­sics experts tes­ti­fied that Stites died hours ear­li­er than the pros­e­cu­tion had claimed, at a time that Fennell had said she was with him. Fennell took the stand and denied that he had com­mit­ted the killing.

Langley accept­ed Fennell’s tes­ti­mo­ny on every dis­put­ed issue over the con­trary tes­ti­mo­ny of a dozen sep­a­rate defense wit­ness­es. The court also reject­ed Reed’s chal­lenges that pros­e­cu­tors pre­sent­ed false foren­sic tes­ti­mo­ny, cred­it­ing the tri­al tes­ti­mo­ny of the prosecution’s local foren­sic exam­in­ers over that of Reed’s nation­al­ly known foren­sic experts. The coun­ty court trans­mit­ted its find­ings and rec­om­men­da­tions to the TCCA, which will con­sid­er Judge Langley’s rec­om­men­da­tion, but make its own final rul­ing. Reed’s lawyers con­tin­ue to pur­sue relief, cit­ing the unre­li­a­bil­i­ty of the evi­dence against Reed, as well as racial bias dur­ing his trial.

Wrongful Capital Prosecutions

Dennis Perry was exon­er­at­ed this year of the racial­ly moti­vat­ed mur­ders of a dea­con and his wife in a Black church in Georgia in 1985. His case was one of at least four death-penal­ty pros­e­cu­tions involv­ing mis­con­duct by Brunswick Judicial Circuit Assistant District Attorney John B. Johnson III. Johnson obtained death sen­tences against death-row exonerees Larry Jenkins and Larry Lee, as well as Jimmy Meders, whose death sen­tence was com­mut­ed in 2020.

Johnson had cap­i­tal­ly pros­e­cut­ed Perry even after the lead inves­ti­ga­tors in the case had deter­mined he could not have been at the church at the time of the mur­ders. Johnson pre­sent­ed tes­ti­mo­ny from the moth­er of Perry’s ex-girl­friend, claim­ing he had told her he planned to kill one of the vic­tims. Johnson with­held evi­dence from the defense that the wit­ness was to receive $12,000 in reward mon­ey for her tes­ti­mo­ny. New DNA evi­dence impli­cat­ed an alter­nate sus­pect, an alleged white suprema­cist who an Atlanta Journal-Constitution inves­ti­ga­tion showed had bragged that he had ​“killed two ni****rs“ and had man­u­fac­tured a false ali­bi for the murders.

When he stood with his defense team on the steps of the Brunswick, Georgia cour­t­house after a tri­al judge dis­missed all charges against him, Perry was a free man. 

In November 2021, a Missouri judge released Kevin Strickland from prison more than 42 years after his wrong­ful cap­i­tal mur­der con­vic­tion in June 1979. No phys­i­cal evi­dence linked Strickland to the 1978 Kansas City triple mur­ders for which he was con­vict­ed; two oth­er men con­vict­ed of the killings lat­er named oth­er par­tic­i­pants in the offense but said Strickland was not involved; and the lone eye­wit­ness who tes­ti­fied against him said she had been pres­sured by police to false­ly implicate Strickland. 

Strickland ini­tial­ly reject­ed a plea deal in his case and faced a pos­si­ble death sen­tence, believ­ing the sys­tem would acquit him. At an inno­cence hear­ing autho­rized by a new Missouri law, he tes­ti­fied, ​“I wasn’t about to plead guilty to a crime I had absolute­ly noth­ing to do with. Wasn’t going to do it … at 18 years old, and I knew the sys­tem worked, so I knew that I would be vin­di­cat­ed, I wouldn’t be found guilty of a crime I did not com­mit. I would not take a plea deal and admit to some­thing I did not do.” Strickland, who is Black, was cap­i­tal­ly tried twice for the mur­ders. The jury in his first tri­al dead­locked at 11 – 1 for con­vic­tion, with the only Black juror hold­ing out for acquit­tal. Strickland was con­vict­ed of one count of cap­i­tal mur­der and two counts of sec­ond-degree mur­der by an all-white jury in his sec­ond tri­al. After he was con­vict­ed, the pros­e­cu­tion with­drew the death penal­ty from his case. 

Speaking to reporters out­side the Western Missouri Correctional Center fol­low­ing his release, Strickland — now 62 and in a wheel­chair fol­low­ing sev­er­al heart attacks — said he was attempt­ing to process a range of emo­tions. ​“I’m not nec­es­sar­i­ly angry. It’s a lot,” he said. ​“Joy, sor­row, fear. I am try­ing to fig­ure out how to put them togeth­er.” He said he would like to become involved in efforts to reform the crim­i­nal legal sys­tem to ​“keep this from hap­pen­ing to someone else.”

2021 Payouts Expose the Collateral Costs of Wrongful Capital Convictions

Taxpayer pay­outs in 2021 from police and pros­e­cu­to­r­i­al mis­con­duct asso­ci­at­ed with the wrong­ful use or threat­ened use of the death penal­ty exposed a pre­vi­ous­ly hid­den col­lat­er­al cost of cap­i­tal pun­ish­ment: the cost of lia­bil­i­ty. In 2021, mul­ti­ple death-row exonerees won law­suits against or received com­pen­sa­tion awards from juris­dic­tions that wrong­ful­ly sen­tenced them to death, and mul­ti­ple exonerees have law­suits still pend­ing against the juris­dic­tions and var­i­ous offi­cials involved in their wrongful convictions.

In May 2021, half-broth­ers Henry McCollum and Leon Brown were each award­ed $31 mil­lion, $1 mil­lion for each year they spent in prison in North Carolina, plus an addi­tion­al $13 mil­lion in puni­tive dam­ages. McCollum and Brown were 19 and 15, respec­tive­ly, when they were arrest­ed in 1983 on charges of rap­ing and mur­der­ing 11-year-old Sabrina Buie. They were coerced into con­fess­ing, and police fab­ri­cat­ed evi­dence against them while sup­press­ing or ignor­ing evi­dence of their inno­cence. In 2014, they were exon­er­at­ed after DNA evi­dence impli­cat­ed Roscoe Artis, who has been con­vict­ed of a sim­i­lar crime. McCollum and Brown’s youth and intel­lec­tu­al dis­abil­i­ties made them par­tic­u­lar­ly vul­ner­a­ble to manip­u­la­tion and coer­cion by police.

In August 2021, the Ohio Controlling Board vot­ed unan­i­mous­ly to award Cleveland death-row exoneree Joe D’Ambrosio $1 mil­lion in com­pen­sa­tion from the state’s wrong­ful impris­on­ment fund for his wrong­ful con­vic­tions. D’Ambrosio was con­vict­ed of bur­glary, kid­nap­ing, felony mur­der, and the aggra­vat­ed mur­der of teenag­er Tony Klann in 1989. 

In ear­ly September 2021, for­mer death-row pris­on­er Robert Miller reached a $2 mil­lion set­tle­ment with Oklahoma City for his wrong­ful con­vic­tion and death sen­tence for the rape and mur­der of two elder­ly women in Oklahoma County in 1988.

Both D’Ambrosio and Miller were tried and con­vict­ed in coun­ties with long his­to­ries of pros­e­cu­to­r­i­al mis­con­duct and high rates of wrong­ful cap­i­tal con­vic­tions. The com­pen­sa­tion comes more than a decade after each was released from incarceration.

Multiple law­suits brought by oth­er death-row exonerees and exonerees who were threat­ened with the death penal­ty dur­ing their pros­e­cu­tions are pend­ing across the coun­try. Former Mississippi death-row pris­on­er Curtis Flowers, who was exon­er­at­ed in 2020, is suing the offi­cials whose mis­con­duct led to his arrest and repeat­ed wrong­ful con­vic­tions. Flowers was tried six times and spent 23 years wrong­ful­ly incar­cer­at­ed for a quadru­ple mur­der in a white-owned fur­ni­ture store in Winona, Mississippi.

Florida death-row exoneree Robert DuBoise is suing the City of Tampa, four Tampa police offi­cers, and the foren­sic odon­tol­o­gist who false­ly tes­ti­fied against him, alleg­ing that they fab­ri­cat­ed evi­dence that led to his wrong­ful con­vic­tion and death sen­tence. DuBoise was exon­er­at­ed in August 2020 after a Conviction Integrity Unit reviewed his case and new DNA evi­dence exclud­ed him as the per­pe­tra­tor of the rape and mur­der for which he was wrong­ful­ly con­vict­ed and sen­tenced to death 37 years ear­li­er. DuBoise’s con­vic­tion was based on junk-sci­ence bite-mark evi­dence and false tes­ti­mo­ny from a prison informant.

In May 2021, Pennsylvania exoneree Theophalis Wilson filed a civ­il rights suit against Philadelphia fol­low­ing dis­cov­ery by the Philadelphia District Attorney’s Conviction Integrity Unit that the prosecution’s lead wit­ness had false­ly tes­ti­fied against Wilson after homi­cide detec­tives threat­ened him with the death penal­ty. The Philadelphia Inquirer report­ed in June that the City of Philadelphia had paid $34 mil­lion since 2018 to six exonerees who had been wrong­ful­ly pros­e­cut­ed for mur­der, and that 20 more peo­ple, includ­ing mul­ti­ple death row exonerees, had either filed law­suits or are with­in the statute of lim­i­ta­tions to do so. On November 23, the U.S. Court of Appeals for the Third Circuit ruled in favor of for­mer Philadelphia death-row pris­on­er Jimmy Dennis, who plead­ed no con­test to a mur­der he did not com­mit so that he could obtain his release from prison and avoid a pos­si­ble cap­i­tal retri­al, that the police offi­cers who with­held excul­pa­to­ry evi­dence and plant­ed evi­dence against him in his cap­i­tal tri­al were not pro­tect­ed by qual­i­fied immu­ni­ty for their actions. 

Innocent, Spared Execution, But Now Sentenced to Life In Prison

Two nation­al­ly known pris­on­ers with sig­nif­i­cant inno­cence claims, Julius Jones and Pervis Payne, were removed from death row in 2021 but remain impris­oned for life. On November 18, Oklahoma Governor Kevin Stitt com­mut­ed Jones’ death sen­tence to life with­out parole. That same day, the Shelby County District Attorney’s office con­ced­ed that Payne is intel­lec­tu­al­ly dis­abled and inel­i­gi­ble for the death penal­ty. The tri­al court vacat­ed his death sen­tence and removed him from death row on November 23.

Pervis Payne was con­vict­ed and sen­tenced to death in Memphis, Tennessee in 1988 on charges that he mur­dered Charisse Christopher and her 2‑year-old daugh­ter, Lacie, and seri­ous­ly wound­ed her 3‑year-old son, Nicholas. He was pros­e­cut­ed by the Shelby County District Attorney’s office in a coun­ty that had the most known lynch­ings in the state of Tennessee and was respon­si­ble for near­ly half of its death sen­tences. A July 2017 report by Harvard University’s Fair Punishment Project, The Recidivists: New Report on Rates of Prosecutorial Misconduct, high­light­ed Shelby County District Attorney Amy Weirich for with­hold­ing key evi­dence from the defense and mak­ing improper arguments.

The inves­ti­ga­tion and pros­e­cu­tion of Payne’s case was repeat­ed­ly infect­ed by racial bias. Payne told his sis­ter that while police were inter­ro­gat­ing him, they said to him: ​“you think you black now, wait until we fry you.” In a tri­al taint­ed by pros­e­cu­to­r­i­al mis­con­duct, coun­ty pros­e­cu­tors assert­ed with­out evi­dence that Payne, a young Black man, was on drugs and stabbed a white woman to death because she spurned his sexual advances. 

Payne, the son of a min­is­ter, did not use drugs, and police refused his mother’s request to con­duct a blood test to prove he had no drugs in his sys­tem. Prosecutors also false­ly assert­ed that Payne had sex­u­al­ly assault­ed 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. DNA test­ing of evi­dence that had been with­held from the defense for decades found the pres­ence of an uniden­ti­fied male’s DNA on the han­dle of the mur­der weapon. The test­ing found Payne’s DNA on the hilt of the knife, but not on the han­dle or any oth­er loca­tion the killer’s hands would have been expect­ed to touch while stab­bing the vic­tims more than 85 times. 

The vic­tims lived in an apart­ment across the hall­way from Payne’s girl­friend. He has long main­tained that he heard cries from the apart­ment and entered it to inves­ti­gate. His lawyers said that evi­dence sup­ports his tes­ti­mo­ny that he had touched the knife while try­ing to help the vic­tims after the attack. Hearing police sirens, he then fled, fear­ing he would be con­sid­ered a suspect.

For near­ly two decades, pros­e­cu­tors tried to exe­cute Payne with­out any judi­cial review of his claim that he was inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. He was sched­uled to be exe­cut­ed on December 3, 2020 but received a tem­po­rary reprieve from Governor Bill Lee based on coro­n­avirus con­cerns. Responding to Payne’s case, the Tennessee leg­is­la­ture then amend­ed the state’s post-con­vic­tion law to redress a flaw in the statute that had pre­vent­ed death-row pris­on­ers from pre­sent­ing their intel­lec­tu­al dis­abil­i­ty claims to Tennessee’s courts. Payne became the first per­son to seek review under the new law, forc­ing pros­e­cu­tors to final­ly address the issue. With a December 13 hear­ing date loom­ing on Payne’s claim, the Shelby County District Attorney’s office con­ced­ed that he was inel­i­gi­ble for the death penalty. 

Payne’s lawyers vowed to con­tin­ue the fight to exon­er­ate him. ​“Our proof that Pervis is intel­lec­tu­al­ly dis­abled is unas­sail­able, and his death sen­tence is uncon­sti­tu­tion­al,” said assis­tant fed­er­al defend­er Kelley Henry, Payne’s lead coun­sel. ​“The state did the right thing today by not con­tin­u­ing on with need­less lit­i­ga­tion. … We how­ev­er will not stop until we have uncov­ered the proof which will exon­er­ate Pervis and release him from prison.”

Julius Jones also was con­vict­ed and sen­tenced to death in a racial­ly charged case tried by a prosecutor’s office noto­ri­ous for mis­con­duct. Jones, who is Black, was pros­e­cut­ed by Oklahoma County District Attorney ​“Cowboy Bob” Macy, who sent 54 peo­ple to death row dur­ing his 21 years as district attorney.

Macy was fea­tured among the rogue’s gallery of America’s Top Five Deadliest Prosecutors in a June 2016 report by the Fair Punishment Project. At that time, courts had found pros­e­cu­to­r­i­al mis­con­duct in approx­i­mate­ly one-third of Macy’s death penal­ty cas­es and had reversed near­ly half of his death sen­tences. DPIC’s February 2021 spe­cial report, The Innocence Epidemic, found that the five death-row exon­er­a­tions in Oklahoma County — all a prod­uct of offi­cial mis­con­duct and/​or false accu­sa­tion — were the fourth most of any coun­ty in the U.S.

Jones was con­vict­ed and sen­tenced to death by a near­ly all-white jury for the 1999 killing of Paul Howell, a promi­nent white busi­ness­man. In his com­mu­ta­tion appli­ca­tion, Jones wrote that ​“while being trans­ferred from an Oklahoma City police car to an Edmond police car, an offi­cer removed my hand­cuffs and said; ​‘Run n****r. I dare you, run.’” In a June 2019 sworn affi­davit, one of the jurors in Jones’ case said she over­heard anoth­er juror say, dur­ing a break, ​“some­thing to the effect of, ​‘They just need to take this n****r and shoot him, and take him and bury him under­neath the jail.”

Jones and his fam­i­ly have long said he was at home with them play­ing Monopoly at the time of the mur­der. However, his court-appoint­ed tri­al lawyers failed to call any ali­bi wit­ness­es, did not cross-exam­ine his co-defen­dant, Christopher Jordan, and did not call Jones to tes­ti­fy on his own behalf. An eye­wit­ness descrip­tion of the shoot­er matched Jordan’s appear­ance, not Jones’. Jordan made a deal with pros­e­cu­tors to tes­ti­fy against Jones and served 15 years. 

At a clemen­cy hear­ing before the Oklahoma Pardon and Parole Board, one of Jones’ lawyers pre­sent­ed the board with addi­tion­al evi­dence: tes­ti­mo­ny from Roderick Wesley. Wesley said that while in prison, Jordan con­fessed that he had killed a man and that some­one else was doing time on death row for his crime. Jones’ pros­e­cu­tors asked the Board to dis­re­gard Wesley’s tes­ti­mo­ny because of his crim­i­nal record. Noting the irony, Jones’ lawyer point­ed out that while the pros­e­cu­tion assert­ed that defense wit­ness­es with felony con­vic­tions are not believ­able, it ​“at the same time has asked you to cred­it the tes­ti­mo­ny of its cen­tral wit­ness­es, all of whom were con­vict­ed felons and informants themselves.”

The Oklahoma Pardon and Parole Board twice rec­om­mend­ed that Jones’ sen­tence be reduced to life with the pos­si­bil­i­ty of parole, based on evi­dence of Jones’ inno­cence. On September 13, and again on November 1, the board vot­ed 3 – 1 to rec­om­mend clemen­cy. On November 18, 2021, four hours before Jones’ exe­cu­tion was to be car­ried out, Governor Stitt com­mut­ed Jones’ sen­tence to life in prison with­out the pos­si­bil­i­ty of parole. Stitt issued the com­mu­ta­tion ​“on the con­di­tion that [Jones] shall nev­er again be eli­gi­ble to apply for, be con­sid­ered for, or receive any addi­tion­al com­mu­ta­tion, par­don, or parole.” 

Key Findings

• Ten of the eleven peo­ple exe­cut­ed in 2021 had evi­dence of a significant impairment
• Groundbreaking study found one of every sev­en exe­cu­tions involved a defen­dant who raised claims that the Supreme Court has said would require revers­ing their con­vic­tions or death sentences
• Texas per­forms exe­cu­tion with no media witnesses present
• Oklahoma sched­ules exe­cu­tion spree despite pend­ing legal chal­lenge to con­sti­tu­tion­al­i­ty of execution method

Though there were few­er exe­cu­tions in 2021 than in any year since 1988, the exe­cu­tions that were car­ried out high­light­ed seri­ous sys­temic issues con­cern­ing who is exe­cut­ed, how they are exe­cut­ed, and the legal process lead­ing up to executions. 

As in past years, the eleven peo­ple exe­cut­ed in 2021 rep­re­sent­ed the most vul­ner­a­ble or impaired pris­on­ers, rather than the ​“worst of the worst.” All but one pris­on­er exe­cut­ed this year had evi­dence of one or more of the fol­low­ing sig­nif­i­cant impair­ments: seri­ous men­tal ill­ness (5); brain injury, devel­op­men­tal brain dam­age, or an IQ in the intel­lec­tu­al­ly dis­abled range (8); chron­ic seri­ous child­hood trau­ma, neglect, and/​or abuse (9). In addi­tion, Quintin Jones was exe­cut­ed in Texas for a crime he com­mit­ted at age 20, plac­ing him 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.

Compounding doubt about the reli­a­bil­i­ty of the judi­cial process to cor­rect con­sti­tu­tion­al errors, a ground­break­ing new study found that at least 228 peo­ple exe­cut­ed in the mod­ern era — or more than one in every sev­en exe­cu­tions — were put to death despite rais­ing legal claims that the Supreme Court has said would require revers­ing their con­vic­tions or death sen­tences. Some of these pris­on­ers were ​“right too soon,” rais­ing mer­i­to­ri­ous claims before the Supreme Court had ruled on the issue. However, most of the pris­on­ers were exe­cut­ed after the Supreme Court had estab­lished the basis for relief, when the low­er state and fed­er­al courts refused to enforce the Supreme Court’s rul­ings and the Court declined to intervene.

The exe­cu­tion pro­ce­dure itself raised sig­nif­i­cant con­cerns in mul­ti­ple states, as Texas per­formed an exe­cu­tion with­out media wit­ness­es present and Oklahoma began an exe­cu­tion spree, despite ongo­ing legal chal­lenges to its lethal-injec­tion pro­to­col and a botched exe­cu­tion. The year’s exe­cu­tions also pre­sent­ed ques­tions of inno­cence, com­pe­ten­cy to be exe­cut­ed, and exe­cu­tions car­ried out against the wish­es of the victim’s fam­i­ly. The first three exe­cu­tions of the year were the final exe­cu­tions car­ried out by the Trump admin­is­tra­tion. In addi­tion to the aber­rant prac­tices dis­cussed at greater length in the Federal Death Penalty sec­tion, the three pris­on­ers exe­cut­ed in January — Lisa Montgomery, Corey Johnson, and Dustin Higgs — each pre­sent­ed case-spe­cif­ic rea­sons why their exe­cu­tions would be inappropriate.

Lisa Montgomery, the first woman exe­cut­ed by the fed­er­al gov­ern­ment in 67 years, had been the vic­tim of life­long sex­u­al and phys­i­cal abuse, includ­ing being sex­u­al­ly traf­ficked by her moth­er. The con­di­tions of her pre-exe­cu­tion incar­cer­a­tion, includ­ing being denied under­cloth­ing while being watched by male pris­on­er guards, reca­pit­u­lat­ed her pri­or sex­u­al vic­tim­iza­tions, exac­er­bat­ing her already severe men­tal ill­ness. As she decom­pen­sat­ed under the stress of the death war­rant, Montgomery’s lawyers filed motions for a com­pe­ten­cy hear­ing, argu­ing that her ​“dete­ri­o­rat­ing men­tal con­di­tion results in her inabil­i­ty ratio­nal­ly to under­stand she will be exe­cut­ed, why she will be exe­cut­ed, or even where she is. Under such cir­cum­stances, her exe­cu­tion would vio­late the Eighth Amendment.” Montgomery received four sep­a­rate stays of exe­cu­tion from fed­er­al courts. The stays were meant to pro­vide time for the courts to con­sid­er whether the fed­er­al gov­ern­ment had vio­lat­ed fed­er­al law in the way it set her exe­cu­tion date and to hold a hear­ing on her men­tal com­pe­ten­cy. Two of these stays remained in effect at the time of Montgomery’s sched­uled exe­cu­tion. But, with­out issu­ing any expla­na­tion of its rea­son­ing, the U.S. Supreme Court lift­ed the stays hours after Montgomery’s exe­cu­tion had been sched­uled to take place. After the orig­i­nal notice of exe­cu­tion war­rant expired at mid­night on January 12, the Bureau of Prisons issued a new notice sched­ul­ing her imme­di­ate exe­cu­tion on January 13 and pro­ceed­ed to exe­cute her at 1:31 a.m.

The fol­low­ing day, the fed­er­al gov­ern­ment exe­cut­ed Corey Johnson with­out any judi­cial review of his claim that he was inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. He was the sec­ond intel­lec­tu­al­ly dis­abled per­son put to death in the 2020­ – 2021 fed­er­al exe­cu­tion spree to be denied an oppor­tu­ni­ty to present evi­dence of dis­abil­i­ty. Judge James A. Wynn, dis­sent­ing from the U.S. Court of Appeals for the Fourth Circuit’s 8 – 7 denial of Johnson’s request for an evi­den­tiary hear­ing, wrote, ​“Corey Johnson is an intel­lec­tu­al­ly dis­abled death row inmate who is sched­uled to be exe­cut­ed lat­er today.” Newly avail­able evi­dence, he wrote ​“con­vinc­ing­ly demon­strates … that he is intel­lec­tu­al­ly dis­abled under cur­rent diag­nos­tic stan­dards. But no court has ever con­sid­ered such evi­dence. If Johnson’s death sen­tence is car­ried out today, the United States will exe­cute an intel­lec­tu­al­ly dis­abled per­son, which is unconstitutional.”

Dustin Higgs, the final pris­on­er exe­cut­ed in the fed­er­al exe­cu­tion spree, was put to death just four days before the inau­gu­ra­tion of President Biden, who had expressed oppo­si­tion to cap­i­tal pun­ish­ment. Higgs was the sixth per­son put to death dur­ing the tran­si­tion peri­od between for­mer President Trump’s elec­tion defeat and Biden’s inau­gu­ra­tion — the most tran­si­tion-peri­od exe­cu­tions in American pres­i­den­tial his­to­ry. Higgs was sen­tenced to death based on the incen­tivized tes­ti­mo­ny of a co-defen­dant who received a sub­stan­tial­ly reduced sen­tence in exchange for his tes­ti­mo­ny. A third co-defen­dant, the undis­put­ed trig­ger­per­son in the crime, was sen­tenced to life in prison. Higgs main­tained that he did not orches­trate the crime, as alleged by pros­e­cu­tors. The only evi­dence for pros­e­cu­tors’ the­o­ry of the crime was the self-inter­est­ed tes­ti­mo­ny of his co-defendant.

When Texas resumed exe­cu­tions on May 19, 2021, it end­ed a 315-day hia­tus in state exe­cu­tions, the longest such gap in 40 years. Quintin Jones was put to death for the mur­der of Berthena Bryant, whose fam­i­ly opposed the exe­cu­tion. Bryant’s sis­ter, Mattie Long, asked Governor Greg Abbott to spare Jones’ life, say­ing he had reformed his life and become a pos­i­tive influ­ence in the lives of oth­ers. Jones also sought a hear­ing on claims of intel­lec­tu­al dis­abil­i­ty. His IQ scores placed him in the bor­der­line range of intel­lec­tu­al func­tion­ing, but his first state appeals lawyer could not devel­op the issue, because, at the time of the appeal, the Texas courts were apply­ing an uncon­sti­tu­tion­al­ly harsh def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty. In seek­ing the hear­ing, Jones argued he should have an oppor­tu­ni­ty to have the issue decid­ed based upon the cur­rent clin­i­cal diag­nos­tic cri­te­ria for intellectual disability.

In a fail­ure that Texas Representative Jeff Leach called ​“unfath­omable,” Texas exe­cut­ed Jones with­out any media wit­ness­es in atten­dance. It was the first time in the 572 exe­cu­tions Texas had car­ried out since 1976 that no media wit­ness­es were able to serve as the public’s eyes on the state’s use of the death penal­ty. The Texas Department of Criminal Justice char­ac­ter­ized the error as a ​“mis­com­mu­ni­ca­tion” that result­ed from ​“a num­ber of new per­son­nel” who were part of the exe­cu­tion team. In a state­ment, the Associated Press empha­sized the impor­tance of media wit­ness­es, say­ing its reporters have, in recent years, wit­nessed and revealed to the pub­lic botched or prob­lem­at­ic exe­cu­tions in Alabama, Arizona, Oklahoma, and Ohio.

John Hummel, an hon­or­ably dis­charged for­mer Marine who expe­ri­enced trau­ma dur­ing his mil­i­tary ser­vice, was exe­cut­ed in Texas on June 30. His court-appoint­ed tri­al coun­sel, Larry Moore, failed both to present mit­i­gat­ing evi­dence con­cern­ing Hummel’s ser­vice and its effects on his men­tal health and to rebut tes­ti­mo­ny by pros­e­cu­tion wit­ness­es who den­i­grat­ed Hummel’s time in the ser­vice. Moore sub­se­quent­ly went to work for the Tarrant County District Attorney’s office while that office defend­ed Hummel’s con­vic­tion and death sen­tence on appeal, filed motions to set his exe­cu­tion dates, and worked to have him exe­cut­ed. Hummel’s appel­late lawyer, Michael Mowla, argued that Moore’s employ­ment by the DA’s office pre­sent­ed a con­flict of inter­est. State pros­e­cu­tors argued that Moore had not been direct­ly involved in its work on Hummel’s case but, Mowla wrote, Moore’s appeals had alleged that Moore had pro­vid­ed inef­fec­tive rep­re­sen­ta­tion and, “[c]onsciously or not, Larry Moore and the Tarrant County District Attorney’s Office stand to ben­e­fit by has­ten­ing Hummel’s execution.”

Texas exe­cut­ed Rick Rhoades on September 28 while his lawyers were attempt­ing to inves­ti­gate whether pros­e­cu­tors had uncon­sti­tu­tion­al­ly exclud­ed jurors of col­or from serv­ing on his case. Texas coun­ty, state, and fed­er­al courts denied Rhoades’ requests to pro­duce juror records and stay his exe­cu­tion to pro­vide time to lit­i­gate that claim. Like many oth­er death-row pris­on­ers, Rhoades expe­ri­enced severe child­hood trau­ma, which his attor­neys said caused brain dam­age that impaired his judg­ment and impulse con­trol. Rhoades was the first per­son exe­cut­ed in Texas after the U.S. Supreme Court agreed to hear John Henry Ramirez​’s chal­lenge to the state’s exe­cu­tion pro­to­col, which alleged that the state would vio­late his reli­gious lib­er­ty by bar­ring his pas­tor from lay­ing hands on him or pray­ing aloud dur­ing his exe­cu­tion. Rhoades did not seek a stay on reli­gious lib­er­ty grounds, pro­vid­ing a coun­ter­point to pros­e­cu­tors’ con­tentions that death-row pris­on­ers were sim­ply fil­ing such claims for ​“strate­gic delay.”

The next two exe­cu­tions, those of Ernest Johnson in Missouri and Willie B. Smith III in Alabama, demon­strat­ed the dif­fi­cul­ties pris­on­ers face in advanc­ing claims of intel­lec­tu­al dis­abil­i­ty. Despite the U.S. Supreme Court’s 2002 rul­ing in Atkins v. Virginia that it is uncon­sti­tu­tion­al to exe­cute a per­son with intel­lec­tu­al dis­abil­i­ty, the two states pro­ceed­ed with the exe­cu­tions of men with strong evi­dence that they were intel­lec­tu­al­ly dis­abled. The Missouri Supreme Court applied med­ical­ly unsound cri­te­ria in deter­min­ing that Johnson was not intel­lec­tu­al­ly dis­abled and refused his attor­neys’ motion for a rehear­ing to apply cur­rent diag­nos­tic cri­te­ria. In Smith’s case, a fed­er­al court agreed that he was intel­lec­tu­al­ly dis­abled, but refused to retroac­tive­ly apply two U.S. Supreme Court deci­sions that struck down rigid and unsci­en­tif­ic stan­dards like those Alabama’s courts had used to deny his claim. The U.S. Court of Appeals for the Eighth Circuit acknowl­edged that Smith’s exe­cu­tion was pure­ly ​“a mat­ter of tim­ing”: if he had been tried today, he would not be eli­gi­ble for the death penal­ty. Smith’s appeal lawyers also filed a claim that the state had vio­lat­ed the Americans with Disabilities Act by deny­ing him accom­mo­da­tions in des­ig­nat­ing a method of exe­cu­tion. If Smith had under­stood that he would be exe­cut­ed by lethal injec­tion unless he des­ig­nat­ed anoth­er method, they argued, he would have select­ed exe­cu­tion by nitrogen hypoxia.

Oklahoma resumed exe­cu­tions in 2021 after a six-year hia­tus in the midst of fed­er­al lit­i­ga­tion on the con­sti­tu­tion­al­i­ty of the state’s lethal-injec­tion pro­to­col. Oklahoma’s Attorney General and the fed­er­al judge over­see­ing the lit­i­ga­tion had promised death row pris­on­ers that no exe­cu­tions would be sought before the con­sti­tu­tion­al­i­ty of the exe­cu­tion process had been resolved. Nevertheless, with a pend­ing February 2022 tri­al date in the fed­er­al law­suit, the state issued sev­en death war­rants, set­ting exe­cu­tion dates over a five-month peri­od span­ning October 2021 to March 2022. The state assert­ed that the pris­on­ers for whom dates were set had no legal grounds to chal­lenge the state’s exe­cu­tion process because they had not iden­ti­fied an alter­na­tive method by which they could be exe­cut­ed. The fed­er­al dis­trict court agreed and dis­missed them from the lit­i­ga­tion, but the U.S. Court of Appeals for the Tenth Circuit rein­stat­ed them to the law­suit on October 18. 

The pris­on­ers sought to enjoin their exe­cu­tions until the fed­er­al tri­al was resolved, but the dis­trict court denied their motion. The Tenth Circuit reversed and issued a stay, cit­ing the inequity of exe­cut­ing pris­on­ers using a method suf­fi­cient­ly prob­lem­at­ic that a court had ordered a tri­al on its con­sti­tu­tion­al­i­ty. Prosecutors appealed, and just hours before John Grant​’s sched­uled exe­cu­tion on October 28, the U.S. Supreme Court, with­out explain­ing its rea­son­ing, inter­vened to lift the stay. 

Media eye­wit­ness­es at Grant’s exe­cu­tion report­ed that he con­vulsed ​“about two dozen times” after mida­zo­lam — the con­tro­ver­sial first drug in the exe­cu­tion pro­to­col — was admin­is­tered. Sean Murphy of the Associated Press said at a post-exe­cu­tion news con­fer­ence that, after about two dozen full-body con­vul­sions, Grant ​“began to vom­it, which cov­ered his face, then began to run down his neck and the side of his face.” Grant, he said, con­vulsed and vom­it­ed again. Another media wit­ness, Oklahoma City Fox tele­vi­sion anchor Dan Snyder, said that med­ical staff had to wipe away vom­it mul­ti­ple times dur­ing the exe­cu­tion. Contrary to the wit­ness­es’ descrip­tions, Oklahoma Department of Corrections (DOC) com­mu­ni­ca­tions direc­tor Justin Wolf claimed that the exe­cu­tion had been car­ried out ​“with­out com­pli­ca­tion.” DOC direc­tor Scott Crow called wit­ness accounts ​“embell­ished,” adding that the state did not intend to change its exe­cu­tion pro­to­col as a result of Grant’s execution.

Mississippi also resumed exe­cu­tions in 2021 after a long hia­tus. In its first exe­cu­tion since 2012, Mississippi on November 17 exe­cut­ed David Cox, who had waived his appeals and ​“vol­un­teered” to be put to death. Cox was at least the 150^th vol­un­teer exe­cut­ed in the mod­ern era of the death penal­ty. Ten per­cent of all U.S. exe­cu­tions since the 1970s have involved vol­un­teers, who com­prised four of the first five pris­on­ers exe­cut­ed after the Supreme Court upheld the con­sti­tu­tion­al­i­ty of cap­i­tal pun­ish­ment in 1976, and were the first pris­on­ers to be exe­cut­ed in 15 states and by the fed­er­al gov­ern­ment. Cox’s exe­cu­tion marked the sixth time a state restart­ed exe­cu­tions after a pause of between five and 21 years by acced­ing to the wish­es of a volunteer.

The final exe­cu­tion of the year, that of Bigler ​“Bud” Stouffer in Oklahoma, took place despite the Oklahoma Pardon and Parole Board’s rec­om­men­da­tion that his sen­tence be com­mut­ed to life with­out parole. Board mem­bers expressed con­cerns about the botched exe­cu­tion of John Grant. Larry Morris, one of the three board mem­bers who vot­ed for clemen­cy, said, ​“I don’t think that any humane soci­ety ought to be exe­cut­ing peo­ple that way until we fig­ure out how to do it right.”

In addi­tion to the prob­lem­at­ic exe­cu­tions car­ried out in 2021, a ground­break­ing new study found that near­ly 15% of all exe­cu­tions between the 1970s and June 30, 2021 — or more than one in sev­en — involved cas­es in which U.S. Supreme Court caselaw now clear­ly estab­lish­es the uncon­sti­tu­tion­al­i­ty of the con­vic­tion or death sen­tence. In Dead Right: A Cautionary Capital Punishment Tale, pub­lished in the Fall 2021 issue of the Columbia Human Rights Law Review, Cornell Law School pro­fes­sors Joseph Margulies, John Blume, and Sheri Johnson report­ed that 228 exe­cut­ed pris­on­ers ​“had claims in their case that today would ren­der their execution unconstitutional.” 

These exe­cu­tions fell into two major cat­e­gories: (1) peo­ple who were exe­cut­ed before the Supreme Court cat­e­gor­i­cal­ly barred apply­ing the death penal­ty against defen­dants who shared their char­ac­ter­is­tics; and (2) peo­ple who were exe­cut­ed despite rais­ing claims the Supreme Court has clear­ly said estab­lish the uncon­sti­tu­tion­al­i­ty of their con­vic­tions or death sen­tences. In the first cat­e­go­ry, the researchers found 22 peo­ple who were younger than age 18 at the time of the offense who were exe­cut­ed before the Supreme Court lim­it­ed the death penal­ty to offend­ers 18 or old­er in Roper v. Simmons in 2005. They also iden­ti­fied at least 42 peo­ple with intel­lec­tu­al dis­abil­i­ty who were exe­cut­ed before the U.S. Supreme Court struck down the use of cap­i­tal pun­ish­ment against those with intel­lec­tu­al dis­abil­i­ty in 2002. In the sec­ond, larg­er cat­e­go­ry, they iden­ti­fied 173 indi­vid­u­als who pre­sent­ed claims that the U.S. Supreme has rec­og­nized clear­ly estab­lish the uncon­sti­tu­tion­al­i­ty of their con­vic­tions or death sen­tences. Those 173 includ­ed 170 peo­ple who were exe­cut­ed after the Supreme Court had estab­lished the basis for relief in their cas­es when the low­er state and fed­er­al courts refused to enforce the con­trol­ling Supreme Court caselaw and the Supreme Court refused to inter­vene. Subtracting the indi­vid­u­als who fell into mul­ti­ple cat­e­gories, the pro­fes­sors found 228 exe­cut­ed pris­on­ers who were ​“right too soon.”

The worst offend­ers were the states of Texas, in which ​“at least 108 peo­ple were exe­cut­ed after the Supreme Court had already estab­lished the rel­e­vant basis for relief,” and Florida, which has exe­cut­ed at least 36 pris­on­ers despite Supreme Court deci­sions clear­ly estab­lish­ing the uncon­sti­tu­tion­al­i­ty of the indi­vid­u­als’ death sen­tences. That amounts to 36.4% of all Florida exe­cu­tions (1 in every 2.75 exe­cu­tions) and 18.8% of all Texas exe­cu­tions (1 in every 5.3 executions). 

The 2021 exe­cu­tions also demon­strat­ed the con­tin­u­ing geo­graph­ic arbi­trari­ness of the death penal­ty. Just five U.S. coun­ties — Harris, Dallas, Tarrant, and Bexar in Texas and Oklahoma County in Oklahoma — have account­ed for 20.9% of all U.S. exe­cu­tions since the 1970s. With two exe­cu­tions in cas­es from Tarrant County in 2021 and one each from Harris and Oklahoma coun­ties, these out­liers account­ed for 36.4% of the year’s executions.

Key Findings

• Three peo­ple with strong evi­dence of intel­lec­tu­al dis­abil­i­ty were exe­cut­ed in 2021
• Courts in Missouri and Texas used med­ical­ly inap­pro­pri­ate and uncon­sti­tu­tion­al­ly restric­tive def­i­n­i­tions of intel­lec­tu­al dis­abil­i­ty to deny pris­on­ers’ claims
• At least four peo­ple were removed from death row due to claims of intellectual disability

2021 was a dead­ly year for death-row pris­on­ers with intel­lec­tu­al dis­abil­i­ty. At least sev­en intel­lec­tu­al­ly dis­abled pris­on­ers faced death war­rants at some point in 2021. Three were exe­cut­ed; three came with­in eight days of being put to death before their exe­cu­tions were stayed; and one faces exe­cu­tion in January 2022. A U.S. Supreme Court seem­ing­ly devot­ed to under­min­ing the con­sti­tu­tion­al pro­tec­tions afford­ed by Atkins v. Virginia denied stays of exe­cu­tion or vacat­ed grants of penal­ty relief for four intel­lec­tu­al­ly dis­abled men and refused to review the case of anoth­er even though pros­e­cu­tors agreed he was inel­i­gi­ble for execution.

The year began with the exe­cu­tion of Corey Johnson, who was put to death by the fed­er­al gov­ern­ment on January 14, 2021 with­out judi­cial review of his strong evi­dence of intel­lec­tu­al dis­abil­i­ty. He was the sec­ond intel­lec­tu­al­ly dis­abled per­son exe­cut­ed in the fed­er­al government’s 2020 – 2021 exe­cu­tion spree, fol­low­ing by one month the December 11, 2020 exe­cu­tion of Alfred Bourgeois.

Missouri exe­cut­ed Ernest Johnson on October 5 after apply­ing a med­ical­ly inap­pro­pri­ate and uncon­sti­tu­tion­al­ly restric­tive def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty to deny his chal­lenge to his death sentence. 

Barely two weeks lat­er, Alabama exe­cut­ed Willie B. Smith III on October 21 despite a fed­er­al appeals court’s acknowl­edge­ment that he met the clin­i­cal cri­te­ria for intel­lec­tu­al dis­abil­i­ty. Saying if he had been tried today, Smith would be inel­i­gi­ble for the death penal­ty, the U.S. Court of Appeals for the Eleventh Circuit refused to retroac­tive­ly apply two U.S. Supreme Court deci­sions that demon­strat­ed the uncon­sti­tu­tion­al­i­ty of Alabama’s rejec­tion of his intel­lec­tu­al disability claim.

On July 2, in a rul­ing ren­dered along par­ti­san lines with­out ben­e­fit of oral argu­ment, the United States Supreme Court over­turned a fed­er­al appeals court deci­sion that had vacat­ed the death sen­tence imposed on Alabama death-row pris­on­er Matthew Reeves, whose tri­al lawyers had failed to obtain expert assis­tance to present evi­dence of his intel­lec­tu­al dis­abil­i­ty. Alabama has sched­uled Reeves’ exe­cu­tion for January 27, 2022.

In a November 1 rul­ing that pro­voked a sharp dis­sent from the Court’s lib­er­al minor­i­ty, the U.S. Supreme Court declined to review the case of fed­er­al death-row pris­on­er Wesley Coonce, whom pros­e­cu­tors and defense lawyers agreed is not eli­gi­ble for the death penal­ty. Coonce became intel­lec­tu­al­ly dis­abled at age 20 after sus­tain­ing a trau­mat­ic brain injury that caused bleed­ing around his brain and tem­porar­i­ly left him comatose. Intellectual dis­abil­i­ty is a devel­op­men­tal dis­or­der that requires onset ​“dur­ing the devel­op­men­tal peri­od,” which his­tor­i­cal­ly had been defined as age 22. When Coonce was tried, how­ev­er, the diag­nos­tic cri­te­ria employed by the American Association on Intellectual and Developmental Disability (AAIDD) required that the dis­or­der man­i­fest before age 18. Because of that, the tri­al court and the U.S. Court of Appeals for the Eighth Circuit refused to con­sid­er his evi­dence of intel­lec­tu­al dis­abil­i­ty. While his peti­tion for review was pend­ing in the Supreme Court, the AAIDD revised its age-of-onset cri­te­ri­on to return to age 22. Dissenting, Justice Sotomayor wrote: ​“To my knowl­edge, the Court has nev­er before denied a [request to grant cer­tio­rari, vacate the low­er court’s deci­sion, and remand the case to a low­er court for fur­ther review] in a cap­i­tal case where both par­ties have request­ed it, let alone where a new devel­op­ment has cast the deci­sion below into such doubt.”

Several state supreme courts have also tak­en steps to under­mine or evade Atkins’ con­sti­tu­tion­al pro­hi­bi­tion on exe­cut­ing indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty. On June 1, the Georgia Supreme Court denied a con­sti­tu­tion­al chal­lenge by Rodney Young to the state’s harsh­est-in-the-nation statu­to­ry require­ment that a cap­i­tal defen­dant must prove beyond a rea­son­able doubt that he or she is intel­lec­tu­al­ly dis­abled before being declared inel­i­gi­ble for the death penal­ty. Under the beyond-a-rea­son­able-doubt stan­dard, no Georgia jury has ever found a defen­dant charged with an inten­tion­al killing to be intellectually disabled.

On March 18, the Oklahoma Court of Criminal Appeals upheld Alton Nolen​’s death sen­tence against a chal­lenge that he was inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. Viewing the evi­dence in the light most favor­able to the pros­e­cu­tion, the court held that the jury was enti­tled to cred­it the tes­ti­mo­ny of the prosecution’s expert wit­ness, who did not admin­is­ter any tests of intel­lec­tu­al or adap­tive func­tion­ing but crit­i­cized the defense experts’ test­ing method­ol­o­gy and conclusions. 

Texas state courts also applied med­ical­ly inap­pro­pri­ate and uncon­sti­tu­tion­al­ly restric­tive def­i­n­i­tions of intel­lec­tu­al dis­abil­i­ty to deny claims by Blaine Milam, Edward Busby, and Ramiro Ibarra that they were inel­i­gi­ble for the death penal­ty. Milam and Busby came with­in a week of exe­cu­tion before the Texas Court of Criminal Appeals (TCCA) stayed their exe­cu­tions (January 15 and February 3, respec­tive­ly) and ordered that their claims be prop­er­ly reviewed. Ibarra received a stay from the appeals court on sim­i­lar grounds on February 24, eight days before his sched­uled exe­cu­tion. The TCCA pre­vi­ous­ly reversed Charles Brownlow’s death sen­tence, say­ing that the state courts had applied an uncon­sti­tu­tion­al def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty to reject his claim. On remand, the Kaufman County District Attorney’s office on January 22 con­ced­ed that Brownlow is intellectually disabled. 

Pervis Payne was one of 14 Tennessee death-row pris­on­ers with active death sen­tences who could not obtain judi­cial review of their intel­lec­tu­al dis­abil­i­ty claims because of defects in the state post-con­vic­tion review sys­tem. He was sched­uled to be exe­cut­ed on December 3, 2020 but received a tem­po­rary reprieve because of coro­n­avirus con­cerns on November 6, 2020. The Tennessee leg­is­la­ture sub­se­quent­ly amend­ed the state post-con­vic­tion process to make review avail­able. The Shelby County District Attorney’s office, which for near­ly two decades after Atkins had attempt­ed to exe­cute him, con­ced­ed in November 2021 that he is inel­i­gi­ble for the death penal­ty. His death sen­tences were vacat­ed on November 23. He had been on death row for 33 years.

On August 31, Los Angeles pros­e­cu­tors agreed that Stanley Davis, who was sen­tenced to death in 1989 for a dou­ble mur­der that occurred in 1985, was intel­lec­tu­al­ly dis­abled, bring­ing to end what District Attorney George Gascón char­ac­ter­ized as ​“more than 30 years of cost­ly lit­i­ga­tion.” In Florida, a Marion County judge accept­ed a stip­u­la­tion that Sonny Boy Oats, who had been on death row for more than 40 years, was inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. Thirty years ear­li­er, dur­ing a hear­ing to vacate his death sen­tence because his tri­al coun­sel had failed to inves­ti­gate and present evi­dence of what was then known as men­tal retar­da­tion, pros­e­cu­tors had con­ced­ed that Oats met the diag­nos­tic cri­te­ria for intel­lec­tu­al dis­abil­i­ty. The tri­al court nonethe­less denied Oats’ inef­fec­tive­ness claim. After Atkins was decid­ed in 2002, Oats again sought to over­turn his death sen­tence, but the tri­al court refused to con­sid­er Oats’ evi­dence from the 1990 hear­ing. In 2015, not­ing that ​“expert after expert con­sis­tent­ly rec­og­nized that Oats has an intel­lec­tu­al dis­abil­i­ty,” the Florida Supreme Court ordered a new evi­den­tiary hear­ing on the issue. In February 2020, pros­e­cu­tors again agreed that Oats is intel­lec­tu­al­ly dis­abled, but because of the COVID pan­dem­ic, it took until April 2, 2021 for Oats to be resen­tenced to life.

In a con­test­ed case, the U.S. Court of Appeals for the Eighth Circuit on August 13 affirmed an Arkansas dis­trict court deci­sion that grant­ed Alvin Jackson relief under Atkins. The appeals court denied Arkansas pros­e­cu­tors’ motion for rear­gu­ment on October 20. 

Key Findings

• Eighteen new death sen­tences imposed, tying a record low
• Just sev­en states imposed death sentences
• Five death sen­tences hand­ed down with­out a unan­i­mous jury vote
• Majority of defen­dants sen­tenced to death were peo­ple of col­or, but major­i­ty of vic­tims in under­ly­ing cas­es were white

The eigh­teen death sen­tences imposed in 2021 again dis­pro­por­tion­al­ly involved cas­es that lacked key tri­al pro­tec­tions or class­es of the most vul­ner­a­ble defen­dants. They includ­ed three pris­on­ers sen­tenced by non-unan­i­mous juries, two who waived jury sen­tenc­ing, and anoth­er who expressed a desire to be exe­cut­ed. As in past years, they were con­cen­trat­ed in a small num­ber of high-use states. Though the year’s sen­tenc­ing num­bers were arti­fi­cial­ly reduced as a result of ongo­ing pan­dem­ic-induced court clo­sures and tri­al delays, the record-low num­ber of new death sen­tences also unques­tion­ably reflect­ed declin­ing pub­lic sup­port for cap­i­tal pun­ish­ment and the poli­cies of reform pros­e­cu­tors who have cho­sen not to pur­sue the death penalty.

Oklahoma and Alabama led the coun­try in death sen­tences in 2021, with four each. California and Texas each imposed three. At the coun­ty lev­el, only two U.S. coun­ties imposed more than one death sen­tence: Oklahoma County, Oklahoma and Los Angeles County, California each imposed two.

Alabama’s 2021 death sen­tences were par­tic­u­lar­ly prob­lem­at­ic. Alabama is the only state that allows the tri­al court to impose the death penal­ty based upon a non-unan­i­mous jury rec­om­men­da­tion for death and no Alabama jury issued a unan­i­mous death rec­om­men­da­tion in 2021. Instead, three death sen­tences fol­lowed non-unan­i­mous jury rec­om­men­da­tions for death and the defen­dant waived his right to a jury sen­tenc­ing in the fourth case. The tri­al court sen­tenced Michael Dale Iervolino to death after 10 jurors — the statu­to­ry min­i­mum for a death sen­tence — rec­om­mend­ed the death penal­ty. The juries in the oth­er two cas­es with jury rec­om­men­da­tions each had a sin­gle juror vote for life.

In Nebraska, Aubrey Trail was sen­tenced to death under the state’s three-judge sen­tenc­ing statute. A sec­ond three-judge pan­el divid­ed 2 – 1 for death for his code­fen­dant, Bailey Boswell. Because Nebraska law man­dates a life sen­tence after a non-unan­i­mous sen­tenc­ing vote, Boswell nar­row­ly avoid­ed becom­ing the first woman ever sen­tenced to death in Nebraska.

Florida defen­dant Billy Wells plead­ed guilty to a prison mur­der and told pros­e­cu­tors and the court that he want­ed to be exe­cut­ed. The court sen­tenced him to death in May. Wells had pre­vi­ous­ly sought to be exe­cut­ed for pri­or mur­ders com­mit­ted in 2003. However, pros­e­cu­tors, doubt­ing his men­tal com­pe­ten­cy, ulti­mate­ly accept­ed a guilty plea for five life sentences.

At least one defen­dant was sen­tenced to death who was under age 21 at the time of the crime. Adrian Ortiz was sen­tenced to death in California for a crime com­mit­ted when he was 19.

The major­i­ty of defen­dants sen­tenced to death in 2021 were peo­ple of col­or — six (33.3%) were Black and four (22.2%) were Latino. More than three quar­ters of the cas­es (14, 77.8%) involved at least one white vic­tim and thir­teen (72.2%) involved only white vic­tims. Five of the six death sen­tences imposed on Black defen­dants (83.3%) were for inter­ra­cial mur­ders, four involv­ing only white vic­tims. Three of the four death sen­tences imposed on Latinx defen­dants (75%) involved inter­ra­cial killings. No white defen­dant was sen­tenced to death for any mur­der that did not involve at least one white victim.

Key Findings

• Public sup­port for the death penal­ty is at a half-century low
• Despite dif­fer­ences between polling meth­ods and ques­tions, an index of death penal­ty pub­lic opin­ion polls shows a con­sis­tent down­ward trend in public support
• Polls in California, Virginia, Ohio, Nevada, and Utah show decreased pub­lic sup­port in states in which death penal­ty repeal has been or is being considered
• Polls in Texas and Oklahoma show an ero­sion of pub­lic sup­port in states that lead the nation in executions

Public opin­ion polls and an his­tor­i­cal index of polling on cap­i­tal pun­ish­ment found that sup­port for the death penal­ty in the United States was the low­est it has been in a half-cen­tu­ry. While major polling orga­ni­za­tions dif­fered on the most appro­pri­ate polling method to mea­sure views about cap­i­tal pun­ish­ment, they agreed that their poll results reflect a sus­tained ero­sion of pub­lic sup­port for the death penal­ty. An index of near­ly 600 death-penal­ty pub­lic opin­ion sur­veys con­duct­ed over the course of 75 years indi­cat­ed that pub­lic sup­port for cap­i­tal pun­ish­ment has steadi­ly declined since the 1990s and was low­er in 2021 than at any time since 1966. Local polling in states con­sid­er­ing abo­li­tion found sig­nif­i­cant pub­lic sup­port for replac­ing the death penal­ty with non-cap­i­tal alter­na­tives, while sup­port in states that most aggres­sive­ly apply the death penal­ty was eroding.

The 2021 Gallup poll mea­sured pub­lic sup­port for the death penal­ty at a half-cen­tu­ry low, with 54% of respon­dents to the organization’s annu­al crime sur­vey say­ing that they were ​“in favor of the death penal­ty for a per­son con­vict­ed of mur­der.” The fig­ure was the low­est since 50% of respon­dents in March 1972 told Gallup they favored the death penal­ty and matched the record-low 54% of Americans in the May 2020 Gallup Values and Beliefs Poll who said the death penal­ty was ​“moral­ly accept­able.” Gallup described the results as ​“essen­tial­ly unchanged from read­ings over the past four years.” Support was mar­gin­al­ly low­er than the 55% report­ed in October 2017 and 2020, and two per­cent­age points low­er than in October 2018 and 2019.

Support for cap­i­tal pun­ish­ment has declined 26 per­cent­age points from the high of 80% report­ed in Gallup’s September 1994 crime survey.

Forty-three per­cent of respon­dents told Gallup that they were opposed to the death penal­ty as a pun­ish­ment for mur­der, match­ing the respons­es report­ed in the 2020 death penal­ty poll. Opposition to cap­i­tal pun­ish­ment was at its high­est in 55 years, since 47% of Americans expressed oppo­si­tion to cap­i­tal pun­ish­ment in the May 1966 Gallup sur­vey. The num­ber was mar­gin­al­ly high­er than the 42% lev­el of oppo­si­tion report­ed in 2019 and two per­cent­age points high­er than in 2017 and 2018.

A poll con­duct­ed in April 2021 by the Pew Research Center also report­ed a decline in pub­lic sup­port for the death penal­ty. However, because of changes in its polling meth­ods, Pew’s report­ed lev­el of death-penal­ty pub­lic sup­port was high­er than Gallup’s. In a Pew phone sur­vey in August 2020, 52% of adults said that they favored the death penal­ty, while 65% of online respon­dents favored the death penal­ty. Saying that ​“sur­vey ques­tions that ask about sen­si­tive or con­tro­ver­sial top­ics — and views of the death penal­ty may be one such top­ic — may be more like­ly to elic­it dif­fer­ent respons­es across modes,” Pew shift­ed to exclu­sive reliance on online polling in 2021. Its online polling found that 60% of respon­dents said they favored the death penal­ty for per­sons con­vict­ed of mur­der, a five per­cent­age-point decline from the lev­els of sup­port report­ed by online respon­dents in August 2020 and September 2019.

An over­whelm­ing num­ber of Pew’s online respon­dents acknowl­edged seri­ous prob­lems with the admin­is­tra­tion of the death penal­ty. 78% agreed that “[t]here is some risk that an inno­cent per­son will be put to death,” while only 21% respond­ed that “[t]here are ade­quate safe­guards to ensure that no inno­cent per­son will be put to death.” ​“Only 30% of death penal­ty sup­port­ers — and just 6% of oppo­nents — say ade­quate safe­guards exist to pre­vent inno­cent peo­ple from being exe­cut­ed,” Pew said. Respondents also dis­agreed with the asser­tion that cap­i­tal pun­ish­ment con­tributes to pub­lic safe­ty. 63% of online respon­dents told Pew that ​“the death penal­ty does not deter peo­ple from com­mit­ting seri­ous crimes,” com­pared to 35% who said they believed the death penal­ty was a deter­rent. 56% also said that ​“Black peo­ple are more like­ly than White peo­ple to be sen­tenced to death for com­mit­ting similar crimes.”

The trends not­ed in the Gallup and Pew polls were reflect­ed in an index of death-penal­ty pub­lic opin­ion that tracked respons­es to 595 opin­ion sur­veys on cap­i­tal pun­ish­ment that were admin­is­tered between 1935 and May 2021. The analy­sis, con­duct­ed by University of North Carolina polit­i­cal sci­ence pro­fes­sor Frank R. Baumgartner, found that American sup­port for the death penal­ty has fall­en pre­cip­i­tous­ly since the late 1990s and is now at its low­est point since 1966.

Local polls released in 2021 in states con­sid­er­ing abo­li­tion of cap­i­tal pun­ish­ment showed sub­stan­tial and increas­ing­ly bipar­ti­san sup­port for repeal­ing the death penal­ty and replac­ing it with non-cap­i­tal alter­na­tives. Shortly before the Virginia leg­is­la­ture vot­ed to abol­ish the death penal­ty, a poll by the Wason Center for Civic Leadership at Christopher Newport University found that a major­i­ty of Virginians sup­port­ed repeal­ing the death penal­ty, includ­ing 36% of Republican poll respondents. 

An online poll of Ohio reg­is­tered vot­ers, released in January 2021, found that 54% pre­ferred some form of life in prison to the death penal­ty (34%) as the pun­ish­ment for mur­der. After being pro­vid­ed infor­ma­tion on inno­cence, costs, and oth­er issues, 59% favored replac­ing the death penal­ty with life with­out parole. Given that infor­ma­tion, majori­ties of Republicans (53%) and Democrats (70%) sup­port­ed elim­i­nat­ing cap­i­tal pun­ish­ment in favor of life sen­tences, while sig­nif­i­cant­ly more Independents sup­port­ed replace­ment (48%) than opposed it (29%).

A poll of Nevada vot­ers found that 49% of Nevadans favored replac­ing the state’s death penal­ty with life with­out parole, com­pared with 46% who would keep cap­i­tal pun­ish­ment. When asked to choose between the death penal­ty and a vari­ety of non-cap­i­tal sen­tences as the appro­pri­ate pun­ish­ment for those who com­mit first-degree mur­der, only 36% of Nevadans favored the death penalty.

In a May 2021 poll of California reg­is­tered vot­ers, a 44% plu­ral­i­ty indi­cat­ed they would vote for a state con­sti­tu­tion­al amend­ment repeal­ing the death penal­ty, while 35% said would vote against repeal. Twenty-one per­cent were unde­cid­ed. In Utah, 40% of respon­dents told that ​“Utah law­mak­ers will con­sid­er a bill to do away with the death penal­ty as a sen­tenc­ing option in future cas­es” with­out being offered a choice of replace­ment sen­tenc­ing alter­na­tives said they would sup­port ​“elim­i­nat­ing the death penal­ty.” Fifty-one per­cent of respon­dents said they would oppose elim­i­nat­ing the state’s death penal­ty, a dras­tic dif­fer­ence from a 2010 poll in which 79% of Utahns said they favored the death penalty. 

Other polls indi­cat­ed that pub­lic sup­port for cap­i­tal pun­ish­ment is declin­ing, even in tra­di­tion­al strong­holds of the death penal­ty. An October 2021 poll of Oklahomans found that 64% of poll respon­dents said they sup­port­ed the death penal­ty. While sup­port remained sub­stan­tial, it was down sig­nif­i­cant­ly from old­er polls show­ing 68% (2015) and 74% (2014) sup­port. A University of Texas/​Texas Tribune online poll of reg­is­tered Texas vot­ers found that 63% say they favor keep­ing the death penal­ty for peo­ple con­vict­ed of vio­lent crimes, the low­est lev­el of sup­port in the poll’s 11-year his­to­ry. Support was down from 75% in February 2015 and 78% when the poll began in 2010. 

A sep­a­rate Public Policy Polling sur­vey of Dallas, Texas vot­ers found that three-quar­ters of respon­dents pre­ferred some form of life sen­tence for first-degree mur­der con­vic­tions, and only 14% pre­ferred the death penal­ty. Twelve per­cent of respon­dents were undecided.

State and local vot­ers also stayed the course on efforts to roll back crim­i­nal legal reform. In a pri­ma­ry elec­tion wide­ly con­sid­ered a ref­er­en­dum on reform pros­e­cu­tors, incum­bent Philadelphia District Attorney Larry Krasner eas­i­ly defeat­ed for­mer Philadelphia homi­cide pros­e­cu­tor Carlos Vega.

Four Utah dis­trict attor­neys — two Democrats and two Republicans who col­lec­tive­ly rep­re­sent 57% of the state’s pop­u­la­tion — announced in September their sup­port for leg­isla­tive efforts to repeal and replace the state’s death penal­ty. ​“Pretending that the death penal­ty will some­how curb crime is sim­ply a lie,” Utah County Attorney David Leavitt, a Republican, said in an announce­ment that his office will no longer seek the death penal­ty. The coun­ty com­mis­sion­ers in Utah County vot­ed to rec­om­mend that the leg­is­la­ture replace the death penal­ty with non-capital alternatives.

Criminal jus­tice reform­ers faced con­cert­ed par­ti­san attempts to remove them from office in California. Voters over­whelm­ing­ly reject­ed efforts to recall California Governor Gavin Newsom, who had imposed a mora­to­ri­um on exe­cu­tions in the state. Newsom defeat­ed the recall by 3 mil­lion votes, with 61.9% of vot­ers cast­ing bal­lots to retain him. Efforts to recall Los Angeles’s reform District Attorney George Gascón also failed, as recall pro­po­nents fell far short of the num­ber of sig­na­tures nec­es­sary to place the issue on the bal­lot. Those seek­ing to recall San Francisco District Attorney Chesa Boudin failed in a first attempt to obtain suf­fi­cient sig­na­tures to force a recall elec­tion but suc­ceed­ed in a sec­ond attempt. The recall elec­tion is sched­uled for June 7, 2022. In December, oppo­nents of Gascón launched a sec­ond effort to put the recall on the ballot. 

Key Findings

• Death penal­ty cas­es in 2021 revealed the poten­tial­ly trans­for­ma­tive impact of Justice Kennedy’s retire­ment and Justice Ginsburg’s death, con­tribut­ing to a cri­sis of legitimacy
• The new­ly con­sti­tut­ed Court demon­strates active hos­til­i­ty to death penal­ty cas­es, deny­ing or lift­ing every stay of exe­cu­tion request­ed on oth­er than religious grounds
• The fed­er­al exe­cu­tion spree end­ed as it began, with the Court over­turn­ing low­er court rul­ings to pave the way for executions

The United States Supreme Court’s deci­sions in death penal­ty cas­es in 2021 raised ques­tions about the court’s com­mit­ment to the rule of law and its insti­tu­tion­al role as a neu­tral arbiter of con­sti­tu­tion­al ques­tions. Its appar­ent­ly result-ori­ent­ed, con­sis­tent­ly anti-defen­dant actions revealed the poten­tial­ly trans­for­ma­tive impact of Justice Anthony Kennedy’s retire­ment and Justice Ruth Bader Ginsburg’s death on the Court’s death penalty jurisprudence. 

The year began as 2020 end­ed, with the Court active­ly inter­ven­ing to over­turn low­er court rul­ings to allow the exe­cu­tions of fed­er­al death-row pris­on­ers. The Court’s actions in the fed­er­al cas­es and sub­se­quent state cas­es demon­strat­ed deep hos­til­i­ty to stays of exe­cu­tions based on any grounds oth­er than the exer­cise of reli­gion in the exe­cu­tion cham­ber. And even in those cas­es, the Court expressed skep­ti­cism about the gen­uine­ness of pris­on­ers’ reli­gious beliefs that was absent from its review of reli­gious lib­er­ty issues in other contexts.

The Court uni­form­ly declined to review cas­es in which death-row pris­on­ers had been denied relief from their con­vic­tions and death sen­tences, even when pros­e­cu­tors agreed with the pris­on­er’s claim. On the oth­er hand, it accept­ed for review cas­es in which the law appeared set­tled and there were no dis­putes among state courts or the fed­er­al cir­cuits, but death-row pris­on­ers had won relief. It also took action on cas­es relat­ed to reli­gious activ­i­ty with­in the exe­cu­tion cham­ber that would not affect whether a pris­on­er would be exe­cut­ed, only the degree to which states must per­mit the exer­cise of reli­gion in the moments before the prisoner’s death.

Cases that are cur­rent­ly pend­ing before the Court may affect impor­tant prece­dent on pre­vi­ous­ly set­tled issues relat­ing to jury selec­tion and the con­sid­er­a­tion of mit­i­gat­ing evi­dence, estab­lish the bounds of reli­gious rights at the time of exe­cu­tion, and deter­mine the degree to which pris­on­ers who have been denied the effec­tive assis­tance of coun­sel through­out both their tri­als and state post-con­vic­tion appeals will have access to fed­er­al judi­cial review of their lawyers’ failures.

The Court’s actions enabled the last three fed­er­al exe­cu­tions to pro­ceed in the face of sub­stan­tial legal chal­lenges, a pat­tern that was evi­dent through­out the fed­er­al government’s 2020 – 21 exe­cu­tion spree. On January 13, 2021, the Court paved the way for Lisa Montgomery to be the first per­son exe­cut­ed in 2021 and the first woman exe­cut­ed by the fed­er­al gov­ern­ment in 67 years. In sum­ma­ry orders, the Court vacat­ed two stays of exe­cu­tion imposed by the District of Columbia and Seventh Circuit fed­er­al appeals courts. The day after Montgomery’s exe­cu­tion, in an order issued four hours after Corey Johnson was sched­uled to be exe­cut­ed, the Supreme Court denied Johnson’s request for a stay of exe­cu­tion to per­mit him to lit­i­gate his intel­lec­tu­al disability claim. 

On January 16, the Court took the almost unheard-of step of grant­i­ng a peti­tion for a writ of cer­tio­rari before judg­ment to ensure that Dustin Higgs’ exe­cu­tion went for­ward. The Court also vacat­ed a stay of exe­cu­tion that would have per­mit­ted a fed­er­al appeals court to con­sid­er unre­solved issues regard­ing the legal­i­ty of Higgs’ exe­cu­tion date. It was the 17^th time dur­ing the fed­er­al exe­cu­tion spree that the U.S. Supreme Court or a fed­er­al appeals courts had lift­ed a stay of exe­cu­tion or vacat­ed an injunc­tion that would have allowed the low­er courts to address con­test­ed issues in a prisoner’s case.

In dis­sents from the Court’s deci­sion in Higgs’ case, Justices Stephen Breyer and Sonia Sotomayor sum­ma­rized and crit­i­cized the Court’s pat­tern of result-ori­ent­ed deci­sion-mak­ing through­out the course of the exe­cu­tions. Justice Breyer not­ed that the Court had sided with the gov­ern­ment on every con­test­ed issue dur­ing that peri­od. Justice Sotomayor wrote that “[o]ver the past six months, this Court has repeat­ed­ly side­stepped its usu­al delib­er­a­tive process­es, often at the Government’s request, allow­ing it to push for­ward with an unprece­dent­ed, break­neck timetable of exe­cu­tions.” She reviewed the sub­stan­tial claims raised by the fed­er­al death-row pris­on­ers about statu­to­ry inter­pre­ta­tion, the fed­er­al exe­cu­tion pro­to­col, men­tal incom­pe­tence, and intel­lec­tu­al dis­abil­i­ty, and she con­clud­ed that ​“the Court has allowed the United States to exe­cute thir­teen peo­ple in six months under a statu­to­ry scheme and reg­u­la­to­ry pro­to­col that have received inad­e­quate scruti­ny, with­out resolv­ing the seri­ous claims the con­demned individuals raised.”

In a rul­ing rem­i­nis­cent of its activism in the fed­er­al exe­cu­tions cas­es, the Court lift­ed a stay that would have halt­ed the exe­cu­tion of Oklahoma death row pris­on­er John Grant. Oklahoma sched­uled Grant’s exe­cu­tion to occur in advance of a fed­er­al tri­al on the con­sti­tu­tion­al­i­ty of its exe­cu­tion pro­to­col. The U.S. Court of Appeals for the Tenth Circuit grant­ed a stay of exe­cu­tion, cit­ing the unac­cept­able risk that Oklahoma death row pris­on­ers would be ​“unable to present what may be a viable Eighth Amendment claim to the fed­er­al courts before they are exe­cut­ed using the method they have chal­lenged.” After the Supreme Court lift­ed the Tenth Circuit’s stay, Grant was exe­cut­ed using the pro­to­col that he argued would inflict cru­el and unusu­al pun­ish­ment. Media wit­ness­es report­ed that Grant con­vulsed more than two dozen times over a fif­teen-minute peri­od and vom­it­ed sev­er­al times before dying.

The Court’s hos­til­i­ty to judi­cial review that would enforce death-row pris­on­ers’ rights not to be uncon­sti­tu­tion­al­ly exe­cut­ed was evi­dent in a series of cas­es involv­ing intel­lec­tu­al dis­abil­i­ty. After deny­ing stays of exe­cu­tion ear­ly in the year that would have allowed Corey Johnson and Alabama death-row pris­on­er Willie B. Smith to have courts, for the first time, assess their claims of intel­lec­tu­al dis­abil­i­ty using clin­i­cal­ly and con­sti­tu­tion­al­ly appro­pri­ate stan­dards, the jus­tices declined to review the case of fed­er­al death row pris­on­er Wesley Coonce. Prosecutors and defense lawyers agreed that, apply­ing the most recent clin­i­cal def­i­n­i­tion of intel­lec­tu­al dis­abil­i­ty accept­ed by the med­ical com­mu­ni­ty, Coonce was intel­lec­tu­al­ly dis­abled and not eli­gi­ble for the death penal­ty. The par­ties joint­ly request­ed that the Court vacate his death sen­tence and return his case to a Missouri fed­er­al court to eval­u­ate his intel­lec­tu­al dis­abil­i­ty claim using the cur­rent diag­nos­tic cri­te­ria. Despite the par­ties’ agree­ment that Coonce is inel­i­gi­ble to be exe­cut­ed, the Court refused to pro­vide him the pro­ce­dur­al mech­a­nism to have a court rec­og­nize this fact.

Expressing increduli­ty, Justice Sotomayor wrote in dis­sent: ​“To my knowl­edge, the Court has nev­er before denied a [request to grant cer­tio­rari, vacate the low­er court’s deci­sion, and remand the case to a low­er court for fur­ther review] in a cap­i­tal case where both par­ties have request­ed it, let alone where a new devel­op­ment has cast the deci­sion below into such doubt.” The Court, she wrote, ​“has an oblig­a­tion to pro­tect our Constitution’s man­dates.” Its fail­ure to grant the par­ties’ joint request, she said, ​“falls short of ful­fill­ing that obligation today.”

The Court also inter­vened to stay or over­turn mer­its rul­ings in favor of sev­er­al death-sen­tenced pris­on­ers. In March 2021, the Court reversed a fed­er­al appeals court’s grant of relief to Tennessee pris­on­er Anthony Dugard Hines. Hines’ coun­sel failed to inves­ti­gate and present evi­dence to the jury that a key pros­e­cu­tion wit­ness was a poten­tial alter­nate sus­pect in the mur­der. In May 2021, the jus­tices grant­ed a motion filed by Oklahoma pros­e­cu­tors to stay enforce­ment of a state appeals court rul­ing that had applied the Court’s land­mark trib­al sov­er­eign­ty deci­sion in McGirt v. Oklahoma to void the state con­vic­tion of death-row pris­on­er Shaun Michael Bosse for mur­ders that took place on trib­al lands. In July 2021, the Court reversed the deci­sion of a fed­er­al appeals court that had vacat­ed the death sen­tence imposed on Matthew Reeves, whose tri­al lawyers had failed to obtain expert assis­tance to present evi­dence of his intel­lec­tu­al dis­abil­i­ty. Justice Sotomayor respect­ful­ly dis­sent­ed, writ­ing, ​“Today’s deci­sion con­tin­ues a trou­bling trend in which this Court strains to reverse sum­mar­i­ly any grants of relief to those fac­ing exe­cu­tion. … In essence, the Court turns ​‘def­er­ence’ into a rule that fed­er­al habeas relief is nev­er avail­able to those facing execution.”

Raising ques­tions about the prin­ci­ple that the Supreme Court is not in the busi­ness of ​“error cor­rec­tion,” the Court also agreed to hear three oth­er death penal­ty cas­es that did not appear to involve dis­put­ed issues of law. These cas­es, all decid­ed in favor of the pris­on­ers in the courts below, have poten­tial­ly broad impli­ca­tions for the future of the death penalty. 

On March 22, 2021, the Court agreed to review the deci­sion of the United States Court of Appeals for the First Circuit that over­turned the death sen­tences imposed on Dzhokhar Tsarnaev for his involve­ment in the April 2013 Boston Marathon bomb­ing. The Court heard argu­ment in the case on October 13, 2021. The First Circuit held that the tri­al court had improp­er­ly pre­vent­ed defense lawyers from inter­view­ing prospec­tive jurors about the con­tent of the exten­sive pre­tri­al pub­lic­i­ty to which they had been exposed. Additionally, it deter­mined that the tri­al court had uncon­sti­tu­tion­al­ly exclud­ed mit­i­gat­ing evi­dence that the defense claimed was cen­tral to its efforts to demon­strate that Tsarnaev had act­ed under the dom­i­neer­ing influ­ence of his old­er broth­er, Tamerlan. 

The Court’s rul­ing on the issue could have broad impact on par­ties’ abil­i­ty to assess juror bias in high-pro­file civ­il and crim­i­nal cas­es that attract broad media cov­er­age, as well as in the pre­sen­ta­tion of evi­dence that courts have long accept­ed as mit­i­gat­ing in cap­i­tal cas­es. As for its impact on the Tsarnaev case itself, If the Court rules in favor of fed­er­al pros­e­cu­tors, the case will be returned to the appeals court to resolve oth­er issues that were not pre­vi­ous­ly decid­ed. Those issues include whether the impan­el­ing of two jurors who wrote deroga­to­ry social media posts about Tsarnaev vio­lat­ed his con­sti­tu­tion­al right to an impartial jury.

On December 8, 2021, the Court heard oral argu­ments in Shinn v. Ramirez and Jones, Arizona pros­e­cu­tors’ chal­lenge to fed­er­al appel­late court rul­ings in favor of Arizona death-row pris­on­ers Barry Jones and David Ramirez. Jones and Ramirez argued that Arizona pro­vid­ed inef­fec­tive tri­al and post-con­vic­tion lawyers who unrea­son­ably failed to ade­quate­ly inves­ti­gate and present crit­i­cal issues: Jones’ evi­dence of inno­cence and Ramirez’s evi­dence of intel­lec­tu­al dis­abil­i­ty and mit­i­gat­ing evi­dence of child­hood abuse and neglect. In both cas­es, cru­cial evi­dence was not dis­cov­ered and pre­sent­ed until Jones and Ramirez reached fed­er­al court and were pro­vid­ed com­pe­tent rep­re­sen­ta­tion in their fed­er­al habeas cor­pus pro­ceed­ings. Consistent with the rul­ings of every oth­er fed­er­al appeals court that had addressed the issue, the U.S. Court of Appeals for the Ninth Circuit allowed the new evi­dence to be con­sid­ered in deter­min­ing whether Jones’ and Ramirez’s tri­al coun­sel were con­sti­tu­tion­al­ly inef­fec­tive. Jones’ con­vic­tion was vacat­ed based on the new evi­dence, and Ramirez’s case was set for an evi­den­tiary hear­ing in fed­er­al district court. 

Arizona has asked the Supreme Court to inter­vene to lim­it the evi­dence that can be con­sid­ered in such cas­es to the evi­dence that the pri­or inef­fec­tive lawyers pre­sent­ed — or, more appro­pri­ate­ly, failed to present — in state court: a lim­i­ta­tion that sev­er­al of the jus­tices sug­gest­ed at oral argu­ment would leave habeas peti­tion­ers with the hol­low right of pre­sent­ing claims with no evi­dence. If the Court rules in favor of Arizona, death-row pris­on­ers who had already been denied effec­tive rep­re­sen­ta­tion at tri­al and in state post-con­vic­tion appeals would also be denied mean­ing­ful access to the fed­er­al courts to enforce their right to effec­tive rep­re­sen­ta­tion at trial.

While deny­ing stays of exe­cu­tion on all oth­er grounds in 2021, the Court twice grant­ed stays based on dis­putes over the exer­cise of reli­gion in the death cham­ber. On February 11, 2021, four hours after Alabama was sched­uled to exe­cute Willie B. Smith, the Court let stand a fed­er­al appeals court injunc­tion bar­ring his exe­cu­tion from going for­ward unless the state per­mit­ted Smith’s pas­tor to be present to pro­vide him reli­gious com­fort in the exe­cu­tion cham­ber. However, that same day, the Court also issued an order vacat­ing a stay of exe­cu­tion that the Eleventh Circuit had grant­ed on a sep­a­rate claim that Alabama had vio­lat­ed Smith’s rights under the Americans with Disabilities Act by fail­ing to make accom­mo­da­tions for his intel­lec­tu­al dis­abil­i­ty in his selec­tion of the method of exe­cu­tion. After reach­ing a set­tle­ment on the reli­gious rights issue, Alabama resched­uled Smith’s exe­cu­tion and Smith was exe­cut­ed on October 21, 2021. 

In September, the Court grant­ed cer­tio­rari in the case of Texas death-row pris­on­er John Henry Ramirez and stayed his exe­cu­tion. Ramirez argued that the state’s refusal to allow his pas­tor to ​“lay hands” on him or pray audi­bly dur­ing his exe­cu­tion vio­lates the fed­er­al Religious Land Use and Institutionalized Persons Act (RLUIPA) and his First Amendment right to the free exer­cise of reli­gion. Ramirez’s case will be the first chal­lenge to restric­tions on reli­gious lib­er­ty in the exe­cu­tion cham­ber to be decid­ed by the Supreme Court after full brief­ing and argu­ment. The case was argued on November 9, 2021 and remains under consideration.

“There is no place today for the death penal­ty in this com­mon­wealth, in the South, or in this nation.” — Governor Ralph Northam, sign­ing his­toric leg­is­la­tion mak­ing Virginia the 23^rd U.S. state and the first in the South to abol­ish capital punishment

“I recall the look on his face. I recall the smell of his body. I recall me being a part of cook­ing [him] to death. … I won­der whether God will ever for­give me now.” — Former South Carolina cor­rec­tions offi­cer Terry Bracey on his role in car­ry­ing out executions.

“The fact of the mat­ter is that these death sen­tences are not about jus­tice. They are about who has insti­tu­tion­al pow­er and who doesn’t. Like slav­ery and lynch­ing did before it, the death penal­ty per­pet­u­ates cycles of trau­ma, vio­lence and state-sanc­tioned mur­der in Black and brown com­mu­ni­ties.” — Representatives Cori Bush (MO-01) and Emanuel Cleaver (MO-05) urg­ing Missouri Governor Michael L. Parson to grant clemen­cy to intel­lec­tu­al­ly dis­abled death-row pris­on­er Ernest Johnson

“Pretending that the death penal­ty will some­how curb crime is sim­ply a lie. … What I have wit­nessed and expe­ri­enced since decid­ing to seek the death penal­ty is that regard­less of the crime, seek­ing the death penal­ty does NOT pro­mote our safe­ty.” — Utah County Attorney David O. Leavitt, announc­ing that his office will no longer seek the death penalty.

“Today’s deci­sion con­tin­ues a trou­bling trend in which this Court strains to reverse sum­mar­i­ly any grants of relief to those fac­ing exe­cu­tion. … In essence, the Court turns ​“def­er­ence” into a rule that fed­er­al habeas relief is nev­er avail­able to those fac­ing exe­cu­tion. I respect­ful­ly dis­sent.” — Justice Sonia Sotomayor, dis­sent­ing from the Supreme Court’s rever­sal of an appeals court deci­sion over­turn­ing the death sen­tence of Alabama death-row pris­on­er Matthew Reeves, whose tri­al lawyers had failed to obtain expert assis­tance to present evidence

“The craven blood­lust of a failed admin­is­tra­tion was on full dis­play tonight. Everyone who par­tic­i­pat­ed in the exe­cu­tion of Lisa Montgomery should feel shame.” — Assistant Federal Defender Kelley Henry, react­ing to the exe­cu­tion of her severe­ly men­tal­ly ill client, Lisa Montgomery

“After a thor­ough exam­i­na­tion, the Committee has deter­mined that the death penal­ty as cre­at­ed and enforced in California has not and can­not ensure jus­tice and fair­ness for all Californians.” — The California Committee on Revision of the Penal Code’s November 2021 Death Penalty Report

“Inmate Grant’s exe­cu­tion was car­ried out in accor­dance with Oklahoma Department of Corrections’ pro­to­cols and with­out com­pli­ca­tion.” — Oklahoma Department of Corrections com­mu­ni­ca­tions direc­tor Justin Wolf fol­low­ing the October 28 exe­cu­tion of John Grant, in which media wit­ness­es report­ed that Grant had more than two dozen full-body con­vul­sions and vom­it­ed sev­er­al times over a fif­teen-minute peri­od before being pro­nounced uncon­scious.

Click HERE to down­load 2021 Execution Data as an Excel File.

Click HERE to down­load 2021 Sentencing Data as an Excel File.

The Death Penalty Information Center is a non-prof­it orga­ni­za­tion serv­ing the media and the pub­lic with infor­ma­tion and analy­sis on cap­i­tal pun­ish­ment. The Center pro­vides in-depth reports, con­ducts brief­in­gs for jour­nal­ists, pro­motes informed dis­cus­sion, and serves as a resource to those work­ing on this issue. DPIC’s Executive Director Robert Dunham and Managing Director Anne Holsinger wrote this report with assis­tance from DPIC’s staff. Further sources for facts and quo­ta­tions are avail­able upon request. The Center is fund­ed through the gen­eros­i­ty of indi­vid­ual donors and foun­da­tions, includ­ing the MacArthur Justice Center, the Open Society Foundations, the Tides Foundation, M. Quinn Delaney, and the Fund for Nonviolence. Funding for DPIC’s law fel­low posi­tion was pro­vid­ed in part by the Georgetown University Law Center. The views expressed in this report are those of DPIC and do not nec­es­sar­i­ly reflect the opin­ions of its donors.