The Death Penalty in 2023: Year End Report

• For the first time, a Gallup poll reports that more Americans (50%) believe the death penal­ty is admin­is­tered unfair­ly than fair­ly (47%). 
• Only 5 states (Texas, Florida, Missouri, Oklahoma, and Alabama) exe­cut­ed peo­ple this year, and only 7 states (Alabama, Arizona, California, Florida, Louisiana, North Carolina, and Texas) sen­tenced peo­ple to death. For the first time, the num­ber of exe­cu­tions exceed­ed the num­ber of new death sentences.
• The major­i­ty of states (29) have now either abol­ished the death penal­ty or paused exe­cu­tions by executive action.
• 2023 is the 9^th con­sec­u­tive year with few­er than 30 peo­ple exe­cut­ed (24) and few­er than 50 peo­ple sen­tenced to death (21). 
• Three exon­er­a­tions this year bring the total to 195 in the mod­ern death penalty era. 
• High pro­file inno­cence cas­es in sev­er­al states received intense media atten­tion but found no relief in the courts, rais­ing ques­tions about the ade­qua­cy of state pro­ce­dures and the abil­i­ty of the legal sys­tem to pro­tect innocent people. 
• The United States Supreme Court over­whelm­ing­ly reject­ed peti­tions from death-sen­­tenced pris­on­ers over the increas­ing­ly alarmed dis­sents of Justices Jackson, Kagan, and Sotomayor. 
• Prisoners who were exe­cut­ed spent an aver­age of 23 years in prison, the longest aver­age time since exe­cu­tions resumed in 1976, and were an aver­age age of 54 years old at the time of their exe­cu­tion, the old­est aver­age age since exe­cu­tions resumed in 1976 (tied with 2021).
• The Biden Administration’s Department of Justice secured its first death sen­tence for Robert Bowers, con­vict­ed of killing eleven peo­ple in the Pittsburgh, Pennsylvania Tree of Life Synagogue.

Innocence cas­es dom­i­nat­ed much of the media’s atten­tion on death penal­ty cas­es in 2023. While these pris­on­ers were large­ly unsuc­cess­ful in the courts, there was unprece­dent­ed sup­port for their claims from state leg­is­la­tors, pros­e­cu­tors, judges, and oth­er elect­ed offi­cials, some of whom declared them­selves new­ly dis­il­lu­sioned with use of the death penal­ty in their state. This year is the 9^th con­sec­u­tive year with few­er than 30 peo­ple exe­cut­ed (24) and few­er than 50 peo­ple sen­tenced to death (21, as of December 1). The 23 men and one woman who were exe­cut­ed in 2023 were the old­est aver­age age (tied with 2021) and spent the longest aver­age num­ber of years in prison in the mod­ern death penal­ty era before being exe­cut­ed. As in pre­vi­ous years, most pris­on­ers had sig­nif­i­cant phys­i­cal and men­tal health issues at the time of their exe­cu­tions, some of which can be attrib­uted to the many years they spent in severe iso­la­tion on death row. Continued dif­fi­cul­ties obtain­ing lethal injec­tion drugs led some states to explore new, untest­ed meth­ods of exe­cu­tion or revive pre­vi­ous­ly aban­doned meth­ods. Other states enact­ed or con­tin­ued paus­es on exe­cu­tions while the state’s method of exe­cu­tion was studied.

Before 1972, state offi­cials gen­er­al­ly used the death penal­ty with­out fear of fed­er­al court review. That changed with Furman v. Georgia, when the Supreme Court inval­i­dat­ed all death penal­ty statutes, cit­ing seri­ous con­sti­tu­tion­al con­cerns with the arbi­trari­ness and racial dis­crim­i­na­tion in many state process­es and death sen­tences. After the Court approved the rein­state­ment of the death penal­ty in 1976, the Court assumed a more active role in reg­u­lat­ing states’ use of the death penal­ty. In what Justice Blackmun later called ​“tin­ker­ing with the machin­ery of death,” the Court spent decades scru­ti­niz­ing state laws and pro­ce­dures, inter­pret­ing arcane statu­to­ry pro­vi­sions, clar­i­fy­ing con­sti­tu­tion­al safe­guards, review­ing chal­lenges to meth­ods of exe­cu­tion, and decid­ing cas­es that nar­rowed the appli­ca­tion of the death penal­ty. The Court also inter­vened in extra­or­di­nary cas­es to grant stays of exe­cu­tion and resist­ed state efforts to expand use of the death penalty. 

Now, more than 50 years after Furman was decid­ed, the major­i­ty of the Court appears unwill­ing to con­tin­ue in this role. The Supreme Court grant­ed only one stay of exe­cu­tion, reflect­ing the view of some mem­bers of the Court that prisoners bring ​“last-minute claims that will delay the exe­cu­tion, no mat­ter how ground­less.” The Court grant­ed cer­tio­rari in only four death penal­ty cas­es, all of which per­tained to pro­ce­dur­al issues, and turned away the over­whelm­ing major­i­ty of peti­tions filed by death-sen­­tenced pris­on­ers. Some state offi­cials and leg­is­la­tures may once again feel unre­strained by the risk of judi­cial over­sight or cor­rec­tion; Florida direct­ly flout­ed Supreme Court prece­dent with new leg­is­la­tion mak­ing a non-homi­­cide crime a death-eli­gi­ble offense, while states like Alabama announced plans to use nitro­gen gas in an untest­ed, risky method of execution.

But the piv­ot away from the Supreme Court does not mean there is (or will be) increased use of the death penal­ty. For the first time, more Americans now believe that the death penal­ty is admin­is­tered unfair­ly than fair­ly. The data show that the death penal­ty is increas­ing­ly dis­fa­vored, and the con­tin­ued, years-long decline in its use has lit­tle to do with the Supreme Court. It is, instead, the result of society’s greater under­stand­ing about the fal­li­bil­i­ty of our legal sys­tem and its inabil­i­ty to pro­tect inno­cent peo­ple from exe­cu­tion, the vul­ner­a­bil­i­ties of the peo­ple who are sen­tenced to death, and a recog­ni­tion that the sig­nif­i­cant resources and time nec­es­sary to use the death penal­ty do not deliv­er enough of a return on the public’s invest­ment in terms of safe­ty or deter­rence. These lessons are reflect­ed in chang­ing pub­lic opin­ion polls, jury ver­dicts, state leg­isla­tive and exec­u­tive deci­sions, and charg­ing deci­sions, as this 2023 Year End Report details below. 

The Gallup Crime Survey has asked for opin­ions about the fair­ness of death penal­ty appli­ca­tion in the United States since 2000. For the first time, the October 2023 sur­vey reports that more Americans believe the death penal­ty is applied unfair­ly (50%) than fair­ly (47%). Between 2000 and 2015, 51% — 61% of Americans said they thought cap­i­tal pun­ish­ment was applied fair­ly in the U.S., but this num­ber has been drop­ping since 2016. This year’s 47% rep­re­sents a his­toric low in Gallup’s polling.

Overall sup­port for cap­i­tal pun­ish­ment remains at a five-decade low in the United States. In 2023, the Gallup sur­vey found that 53% of Americans favor the death penal­ty, the low­est num­ber since March 1972, although not a sta­tis­ti­cal­ly sig­nif­i­cant change from the 54% and 55% lev­el of sup­port record­ed over the pre­vi­ous three years. Results from 2019 indi­cate that sup­port for the death penal­ty drops even low­er (36%) when respon­dents are giv­en the option of life with­out parole. When Gallup first asked about the death penal­ty in 1936, 59% of Americans sup­port­ed the death penal­ty for con­vict­ed mur­der­ers. Public sup­port for the death penal­ty peaked in 1994, with 80% of Americans in favor, but has steadi­ly declined since that year. 

Gallup also asked respon­dents whether they believe the death penal­ty is imposed too often, about the right amount, or not enough. 39% of respon­dents said that cap­i­tal pun­ish­ment is not used often enough, while 56% of respon­dents believe it is either imposed too often or about the right amount. There are also par­ti­san dif­fer­ences. 62% of Republicans think that the death penal­ty is not imposed often enough, while 25% say it is imposed about the right amount. 52% of Democrats think that the death penal­ty is imposed too often, while 24% think it is used about the right amount. There is a greater divide among Independents, as 37% think that it is not used enough, 32% think it is used about the right amount, and 26% think it is used too often.

Gallup’s Moral Issues Survey was admin­is­tered in May 2023 against the back­drop of the Tree of Life Synagogue tri­al in Pittsburgh. Gallup report­ed a slight (5%) increase in the num­ber of respon­dents who believe that cap­i­tal pun­ish­ment is moral­ly accept­able, with 60% of indi­vid­u­als respond­ing in the affir­ma­tive. The results of this sur­vey have var­ied over the past two decades, reach­ing a high of 71% in 2006. Gallup reports that 82% of Republicans find the death penal­ty moral­ly accept­able, com­pared to 59% of Independents, and just 40% of Democrats.

Three exon­er­a­tions (John Huffington, Jesse Johnson, and Glynn Simmons) occurred in 2023; col­lec­tive­ly, the three men spent 109 years in prison. Including the pre­vi­ous­ly unrecord­ed exon­er­a­tions of Larry Hudson in 1993 and Joe Cota Morales in 1981, the total num­ber of U.S. death-row exon­er­a­tions since 1973 is 195.

Before leav­ing office, for­mer Maryland Governor Larry Hogan grant­ed death-sen­­tenced pris­on­er John Huffington a full par­don on January 13, 2023 based on evi­dence that con­clu­sive­ly showed his ​“con­vic­tions were in error.” Originally con­vict­ed in 1981, Mr. Huffington, who always main­tained his inno­cence, agreed in 2017 to accept an Alford plea in exchange for a reduced sen­tence which lat­er result­ed in his release. The orig­i­nal case was tried by dis­graced pros­e­cu­tor Joseph Cassilly, who was dis­barred after an inves­ti­ga­tion revealed he had with­held excul­pa­to­ry evi­dence regard­ing the sci­en­tif­ic inac­cu­ra­cy of foren­sic evi­dence in the case.

Jesse Johnson, who has long main­tained his inno­cence, was released from Oregon’s Marion County Jail on September 5, 2023. Deputy dis­trict attor­neys Katie Suver and Matt Kemmy wrote in their motion to dis­miss the case that, ​“Based on the amount of time that has passed and the unavail­abil­i­ty of crit­i­cal evi­dence in this case, the state no longer believes that it can prove the defendant’s guilt to twelve jurors beyond a rea­son­able doubt.” Two years ear­li­er, Mr. Johnson’s con­vic­tion was over­turned by the Oregon Court of Appeals after find­ing he had not received effec­tive rep­re­sen­ta­tion from his defense coun­sel at tri­al. According to Oregon’s Innocence Project, who assist­ed with appeals in 2014, racism on the part of the detec­tive played a role in Mr. Johnson’s wrongful conviction.

48 years after being sen­tenced to death, Glynn Simmons was exon­er­at­ed on September 19, 2023, becom­ing the 11^th per­son exon­er­at­ed in Oklahoma since 1973. During his tri­al, pros­e­cu­tors failed to dis­close that the sur­viv­ing vic­tim iden­ti­fied mul­ti­ple peo­ple in the line-up, not sole­ly Mr. Simmons. Oklahoma District Attorney Vicki Behenna, agree­ing that the orig­i­nal tri­al was unfair, first request­ed that Mr. Simmons’ sen­tence, which had already been reduced to life in prison in 1977, be vacat­ed in July 2023. Ms. Behenna lat­er asked that the case be dis­missed due to the state’s inability to ​“prove beyond a rea­son­able doubt that Simmons was respon­si­ble for Ms. [Carolyn Sue] Rogers’ mur­der” in a new trial.

Although he does not meet DPIC​’s strict cri­te­ria to be includ­ed in its Innocence Database, Barry Jones was freed on June 15, 2023 after serv­ing 29 years for a crime that the Arizona Attorney General agreed he did not com­mit. Mr. Jones was sen­tenced to death in 1995 after being con­vict­ed of mur­der­ing his girlfriend’s four-year-old daugh­ter in 1994. Medical evi­dence that was read­i­ly avail­able at the time of tri­al showed that the child did not sus­tain her fatal inter­nal injuries dur­ing the time she was in Mr. Jones’ care. But this evi­dence was not dis­cov­ered by either his tri­al attor­ney or his state post-con­vic­­tion attor­ney. In 2018, Mr. Jones pre­sent­ed this evi­dence for the first time in fed­er­al court as proof that his state coun­sel had been inef­fec­tive for fail­ing to inves­ti­gate and present med­ical evi­dence that con­tra­dict­ed the prosecution’s time­line. Both the fed­er­al dis­trict court and the Ninth Circuit Court of Appeals agreed he was enti­tled to a new tri­al, but the Supreme Court ruled against him in Shinn v. Ramirez (2022). The deci­sion, how­ev­er, did not bar the Arizona Attorney General’s Office from inde­pen­dent­ly review­ing the case and after doing so, the office agreed to a set­tle­ment agree­ment that had Mr. Jones plead­ing guilty to sec­ond-degree mur­der — for fail­ing to take his girlfriend’s daugh­ter to a hos­pi­tal while she was in his care and already suf­fer­ing from her fatal inter­nal injury — in exchange for which he was released from prison for time served.

The appeals of Areli Escobar, Richard Glossip, Phillip Hancock, Toforest Johnson, and Robert Roberson received unprece­dent­ed pub­lic sup­port from for­mer and cur­rent state officials.

Areli Escobar’s suc­cess­ful appeal to the Supreme Court was the result of Travis County District Attorney Jose Garza’s admis­sion that the con­vic­tion was based on ​“flawed and mis­lead­ing foren­sic evi­dence.” In remand­ing the case for a new tri­al on January 9, 2023, the Court briefly explained its deci­sion was made ​“in light of the con­fes­sion of error by Texas.”

Last year, a bipar­ti­san group of 62 Oklahoma law­mak­ers, includ­ing 45 Republican leg­is­la­tors, pub­licly expressed con­cern about Richard Glossip’s case and asked then Attorney General John O’Connor to sup­port a new evi­den­tiary hear­ing. Mr. Glossip cur­rent­ly has two peti­tions pend­ing at the Supreme Court. The first is on the denial of his inno­cence claim. His sec­ond peti­tion is sup­port­ed by Oklahoma Attorney General Gentner Drummond, who also argued in favor of clemen­cy for Mr. Glossip. The reply he filed with the Court stated, ​“After care­ful con­sid­er­a­tion – includ­ing a thor­ough review by an inde­pen­dent coun­sel – the State came to the con­clu­sion that …ensur­ing that jus­tice is done in this case requires a retri­al.” Both Mr. Glossip and Phillip Hancock, who has long claimed self-defense, received per­son­al sup­port from Republican state leg­is­la­tors Kevin McDugle and J.J. Humphrey, who say they strong­ly sup­port the death penal­ty but believe exe­cu­tions should be paused in Oklahoma because of the sys­tem-wide fail­ures and injus­tices in these cas­es. “[I]f we can’t fix it… then we need to get rid of it,” Rep. McDugle told the PBS Newshour. Mr. Glossip was denied clemen­cy based on a 2 – 2 vote from the Oklahoma Pardon and Parole Board and has since filed suit against the Board. Mr. Hancock received a rec­om­men­da­tion for clemen­cy from the Oklahoma Pardon and Parole Board which, at the time of this writ­ing, is pend­ing in front of the Governor. Reps. McDugle and Humphrey tes­ti­fied in sup­port of Mr. Glossip and Mr. Hancock at their respec­tive clemency hearings.

Among many oth­ers, Toforest Johnson’s case has the sup­port of his orig­i­nal tri­al pros­e­cu­tor, the cur­rent Jefferson County dis­trict attor­ney Danny Carr, for­mer Alabama Attorney General Bill Baxley, state bar pres­i­dents, three of the jurors in his case, and for­mer Alabama Supreme Court Justice Drayton Nabers, all of whom sup­port a new trial. ​“As a life­long defend­er of the death penal­ty, I do not light­ly say what fol­lows: An inno­cent man is trapped on Alabama’s death row,” wrote Mr. Baxley in a March, 2021 Washington Post op-ed. Mr. Johnson’s peti­tion for cer­tio­rari was denied by the Supreme Court on October 2, 2023.

Robert Roberson’s peti­tion to the Supreme Court was sup­port­ed by five retired fed­er­al judges, includ­ing one from Texas, and groups of sci­en­tists, med­ical experts, foren­sic experts, and oth­ers who argued that the Shaken Baby Syndrome the­o­ry relied upon by pros­e­cu­tors to con­vict Mr. Roberson has been sound­ly dis­cred­it­ed. The Supreme Court denied his peti­tion on the same day as Mr. Johnson.

Areli Escobar, Richard Glossip, Toforest Johnson, Rodney Reed, and Robert Roberson, whose cas­es are described above, were among sev­er­al death penal­ty cas­es with cred­i­ble inno­cence claims that received sig­nif­i­cant media atten­tion this year.

On January 13, the spe­cial coun­sel appoint­ed by California Governor Gavin Newsom to con­duct an inves­ti­ga­tion into Kevin Cooper’s inno­cence claim released its report, find­ing that the ​“evi­dence of Cooper’s guilt is exten­sive and con­clu­sive,” while also not­ing that the fair­ness of the tri­al in rela­tion to Mr. Cooper’s race was not assessed. In response, lawyers for Mr. Cooper crit­i­cized the inves­ti­ga­tion as improp­er­ly con­duct­ed and incomplete. ​“Most fun­da­men­tal­ly, we are shocked that the gov­er­nor seem­ing­ly failed to con­duct a thor­ough review of the report that con­tains many mis­state­ments and omis­sions and also ignores the pur­pose of a legit­i­mate inno­cence inves­ti­ga­tion, which is to inde­pen­dent­ly deter­mine whether Mr. Cooper’s con­vic­tion was a prod­uct of pros­e­cu­to­r­i­al mis­con­duct.” Mr. Cooper was con­vict­ed in 1985 and has con­sis­tent­ly main­tained his innocence.

In Missouri, Leonard Taylor con­sis­tent­ly main­tained that he was not in St. Louis at the time of the crime that sent him to death row. Although Mr. Taylor’s attor­neys dis­cov­ered new evi­dence to sub­stan­ti­ate his inno­cence claim, includ­ing sup­port from a foren­sic pathol­o­gist, St. Louis County Prosecuting Attorney Wesley Bell declined to avail him­self of a Missouri law that allows pros­e­cu­tors to reopen pos­si­ble wrong­ful con­vic­tions, say­ing there were no facts ​“to sup­port a cred­i­ble claim of inno­cence” in the case. Mr. Taylor was exe­cut­ed on February 7.

On June 29, Missouri Governor Mike Parson lift­ed the stay of exe­cu­tion for Marcellus Williams, end­ing a six-year pan­el review of his inno­cence claims and main­tain­ing the con­fi­den­tial­i­ty of the panel’s rec­om­men­da­tions. In 2017, for­mer Governor Eric Greitens stayed Mr. Williams’ exe­cu­tion and asked five for­mer judges as a board of inquiry to inves­ti­gate new DNA test­ing results that were unavail­able at the time of his tri­al. A DNA test autho­rized by the Missouri Supreme Court exclud­ed Mr. Williams and matched an unknown per­son, and three sep­a­rate DNA experts con­firmed the find­ings. Gov. Parson explained his deci­sion to end the inquiry in a state­ment, say­ing, ​“We could stall and delay for anoth­er six years, defer­ring jus­tice, leav­ing a victim’s fam­i­ly in lim­bo, and solv­ing noth­ing. This admin­is­tra­tion won’t do that.” No new exe­cu­tion date for Mr. Williams has been set, but in August he sued Gov. Parson for dis­solv­ing the board of inquiry before it com­plet­ed its inves­ti­ga­tion of his innocence claim.

Crosley Green, a for­mer Florida death-sen­­tenced pris­on­er whose con­vic­tion was over­turned in 2018, was denied parole on June 21, 2023 by the Florida Commission on Offender Review. Mr. Green was released from prison in April 2021 fol­low­ing a fed­er­al court’s deter­mi­na­tion that the pros­e­cu­tion had with­held crit­i­cal evi­dence from his defense at tri­al that point­ed to anoth­er shoot­er. Mr. Green has main­tained his inno­cence. After two years of release, he returned to prison ear­li­er this year after the 11^th Circuit Court of Appeals reversed the low­er court’s deci­sion and the U.S. Supreme Court declined to review his appeal in February. The Commission ruled that Mr. Green’s ten­ta­tive parole release date will be in 2054, when he will be 97 years old. 

In the last ten years, just 15 indi­vid­ual clemen­cies have been grant­ed in death penalty cases.

In June, near­ly every death-sen­­tenced pris­on­er in Louisiana filed a request for clemen­cy with the Louisiana Board of Pardons and Committee on Parole short­ly after Governor John Bel Edwards announced his oppo­si­tion to the death penal­ty. After the Board ini­tial­ly declined to con­sid­er the peti­tions with­out review­ing the mer­its of the claims, Governor Edwards used his exec­u­tive author­i­ty to direct the Board to set hear­ings for the pris­on­ers. Twenty clemen­cy hear­ings were there­after sched­uled to begin in October. 

Attorney General (and Governor-elect) Jeff Landry and some state dis­trict attor­neys quick­ly denounced the ​‘rushed’ efforts of the Board to hear the clemen­cy appli­ca­tions and sued to block any appli­ca­tions from mov­ing for­ward. A last-minute legal set­tle­ment result­ed in a reduc­tion in the num­ber of sched­uled clemen­cy hear­ings from 20 to just five. On October 13, the Board admin­is­tra­tive­ly screened the five peti­tions and denied full clemen­cy hear­ings to the appli­cants; on November 8, anoth­er five peti­tions were denied full clemen­cy hear­ings. On November 9, Chief U.S. District Judge Shelly Dick of the Middle District of Louisiana denied a request from the clemen­cy appli­cants for a pre­lim­i­nary injunc­tion, stating, ​“There is no con­sti­tu­tion­al right to a clemen­cy hear­ing, nor is there a right to chal­lenge the Board’s fail­ure to fol­low its own pro­ce­dures.” Governor Edwards will leave office on January 8, 2024 and can­not con­sti­tu­tion­al­ly com­mute any death sen­tence with­out the rec­om­men­da­tion of the Board.

Attorneys for Florida death-sen­­tenced pris­on­ers Darryl Barwick and Michael Zack sep­a­rate­ly peti­tioned the U.S. Supreme Court to con­sid­er whether Florida’s clemen­cy process offered ade­quate due process. Mr. Barwick’s attorneys wrote, ​“For 40 years, the chances of obtain­ing clemen­cy or com­mu­ta­tion of a death sen­tence in Florida is 0%. Not since 1983 has any death-sen­­tenced indi­vid­ual in Florida been grant­ed exec­u­tive clemen­cy.” The Court denied both peti­tions. Mr. Barwick was exe­cut­ed on May 4, and Mr. Zack was exe­cut­ed on October 3.

On November 8, the Oklahoma Pardon and Parole Board nar­row­ly rec­om­mend­ed clemen­cy to Phillip Hancock fol­low­ing an emo­tion­al clemen­cy hear­ing. After fail­ing to act for 22 days, Governor Stitt allowed the exe­cu­tion to go for­ward on November 30. Mr. Hancock was the last per­son exe­cut­ed in 2023.

In Arizona, new­ly elect­ed Governor Katie Hobbs and Attorney General Kris Mayes act­ed almost imme­di­ate­ly upon tak­ing office to order an exam­i­na­tion of the state’s exe­cu­tion pro­ce­dures. On January 20, Governor Hobbs issued an exec­u­tive order appoint­ing a Death Penalty Independent Review Commissioner ​“to review and pro­vide trans­paren­cy into the [Arizona Department of Corrections, Rehabilitation & Reentry’s (ADCRR)] lethal injec­tion drug and gas cham­ber chem­i­cal pro­cure­ment process, exe­cu­tion pro­to­cols, and staffing con­sid­er­a­tions.” Attorney General Mayes filed a motion to with­draw the state’s only pend­ing request for a death war­rant. The governor’s exec­u­tive order noted that ​“Arizona has a his­to­ry of exe­cu­tions that have result­ed in seri­ous ques­tions about ADCRR​’s exe­cu­tion pro­to­cols and lack of trans­paren­cy.” In 2022, the state per­formed three exe­cu­tions, all of which were vis­i­bly prob­lem­at­ic. The order went on to say that ​“a com­pre­hen­sive and inde­pen­dent review” was necessary ​“to ensure these prob­lems are not repeat­ed in future exe­cu­tions.” The actions by the gov­er­nor and attor­ney gen­er­al have halt­ed exe­cu­tions in Arizona until the review is com­plete. 

Governor Josh Shapiro of Pennsylvania announced on February 16 that he would con­tin­ue his predecessor’s mora­to­ri­um on exe­cu­tions. He called upon the leg­is­la­ture to repeal the death penal­ty, saying, ​“The Commonwealth shouldn’t be in the busi­ness of putting peo­ple to death. Period. I believe that in my heart. This is a fun­da­men­tal state­ment of moral­i­ty. Of what’s right and wrong. And I believe Pennsylvania must be on the right side of this issue.” Pennsylvania has exe­cut­ed only three peo­ple in the mod­ern era of the death penal­ty, all of whom waived their appeals and ​“vol­un­teered” for exe­cu­tion. 

In response to con­tin­u­ing dif­fi­cul­ties obtain­ing lethal injec­tion drugs, South Carolina and Idaho passed leg­is­la­tion autho­riz­ing alter­na­tive meth­ods of exe­cu­tion, and Alabama announced its plan to use an untest­ed exe­cu­tion method. 

After the South Carolina Supreme Court ordered the state to dis­close its efforts to obtain lethal injec­tion drugs, the leg­is­la­ture passed a secre­cy law and autho­rized a new lethal injec­tion pro­to­col. The new law, signed in May 2023, con­ceals from the pub­lic the iden­ti­ty of man­u­fac­tur­ers and sup­pli­ers of exe­cu­tion drugs, as well as those on the team respon­si­ble for car­ry­ing out the exe­cu­tion. Republican state offi­cials pre­vi­ous­ly cast blame on the lack of ​‘shield laws’ for the state’s inabil­i­ty to acquire drugs. State offi­cials announced on September 19 that they had obtained a sup­ply of pen­to­bar­bi­tal and intend­ed to use it in a one-drug pro­to­col, rather than using the state’s pre­vi­ous three-drug pro­to­col. Officials in the Department of Corrections admit­ted con­tact­ing more than 1,300 peo­ple in their efforts to obtain exe­cu­tion drugs. Litigation is ongo­ing in the state Supreme Court in a chal­lenge to South Carolina​’s 2021 statute mak­ing elec­tro­cu­tion the default method of exe­cu­tion and autho­riz­ing fir­ing squad as an alter­na­tive method. In 2022, a tri­al court found that both of those meth­ods vio­lat­ed the state’s con­sti­tu­tion­al prohibition against ​“cru­el, unusu­al, and cor­po­ral pun­ish­ments.” 

Alabama released a heav­i­ly redact­ed pro­to­col for using nitro­gen gas in August. While Oklahoma and Mississippi also autho­rize exe­cu­tion by nitro­gen suf­fo­ca­tion, no state has ever used the method, and Alabama was the first to release a pro­to­col. Alongside the release of the pro­to­col, Alabama offi­cials asked the Alabama Supreme Court to autho­rize an exe­cu­tion date for Kenneth Smith, who sur­vived an ear­li­er, botched attempt to exe­cute him in 2022. Governor Kay Ivey has set Mr. Smith’s exe­cu­tion date for January 25, 2024. Mr. Smith’s attor­neys have argued that he should not be used as a ​“test sub­ject” for the new exe­cu­tion method. 

Idaho became the fifth state to autho­rize exe­cu­tions by fir­ing squad. Under the law, which went into effect July 1, 2023, the direc­tor of the Idaho Department of Correction will have up to five days after a death war­rant is issued to deter­mine whether an exe­cu­tion by lethal injec­tion is pos­si­ble. If it is not, the exe­cu­tion will be per­formed by fir­ing squad. Prior to the law’s pas­sage, Idaho had twice delayed exe­cu­tion dates for Gerald Pizzuto, Jr. because lethal injec­tion drugs couldn’t be obtained. 

U.S. District Judge B. Lynn Winmill ruled in favor of Mr. Pizzuto, indef­i­nite­ly paus­ing his March 2023 exe­cu­tion date, and grant­i­ng him a hear­ing on his claim that Idaho vio­lates his con­sti­tu­tion­al right against cru­el and unusu­al pun­ish­ment by repeat­ed­ly sched­ul­ing exe­cu­tion dates while know­ing the state does not have the means to car­ry it out. 

Mr. Pizzuto, who has been on death row since 1986, has faced five exe­cu­tion dates dur­ing his 37 years behind bars, three of which have been set dur­ing the past two years. 

Florida passed two new death penal­ty laws in April which are like­ly to expand the num­ber of peo­ple sen­tenced to death in the state. First, the leg­is­la­ture removed the require­ment that a jury must unan­i­mous­ly agree to impose a death sen­tence. Second, the leg­is­la­ture passed a law that allows the death penal­ty as pun­ish­ment for sex­u­al bat­tery of a child under the age of 12 that does not result in the death of the vic­tim. The sex­u­al bat­tery law is in direct con­flict with U.S. Supreme Court prece­dent under Kennedy v. Louisiana (2008), which struck down a similar law. 

While the Court has nev­er held that a unan­i­mous jury rec­om­men­da­tion is required for a death sen­tence, near­ly every death penal­ty state requires all 12 jurors to agree. Prior to the pas­sage of Florida’s new law this year, only Alabama allowed a non-unan­i­­mous jury to impose a death sen­tence. Florida has now set the low­est thresh­old for the impo­si­tion of death, allow­ing a death sen­tence if at least eight jurors agree. In Alabama, the thresh­old is ten jurors. Opponents of the non-una­n­im­i­­ty bill not­ed that Florida has the high­est num­ber of exon­er­a­tions from death row in the nation, at 30. Most of those exon­er­at­ed were sent to death row by non-unan­i­­mous jury votes. 

The Tennessee leg­is­la­ture passed a law intend­ed to remove pow­er from elect­ed dis­trict attor­neys and pro­vide the unelect­ed attor­ney gen­er­al with greater con­trol over death penal­ty cas­es. It appeared aimed at some new­ly elect­ed dis­trict attor­neys who had expressed con­cerns about the use of the death penal­ty and indi­cat­ed they would be more reluc­tant to pur­sue new death sen­tences. A Shelby County judge struck it down just three months lat­er, find­ing the law uncon­sti­tu­tion­al. An appeal of that deci­sion is pend­ing before the Tennessee Court of Criminal Appeals.

On September 28, 2023, the U.S. District Court for the Western District of Texas ruled that the state can­not exe­cute Scott Panetti, a death row pris­on­er with a decades-long his­to­ry of seri­ous men­tal ill­ness and a diag­no­sis of schiz­o­phre­nia. Despite a state expert con­ced­ing Mr. Panetti’s seri­ous men­tal ill­ness, Texas argued that he is com­pe­tent to face exe­cu­tion because he has ​“some degree” of ratio­nal under­stand­ing. U.S. District Judge Robert Pitman ruled, how­ev­er, that “[Mr.] Panetti is not sane enough to be exe­cut­ed” and that he ​“lack[s] a ratio­nal under­stand­ing of the con­nec­tion between his actions and his death sen­tence.” The deci­sion ends decades of lit­i­ga­tion through Texas state and fed­er­al courts, includ­ing the United States Supreme Court. Judge Pittman explained his decision: ​“There are sev­er­al rea­sons for pro­hibit­ing the exe­cu­tion of the insane, includ­ing the ques­tion­able ret­ribu­tive val­ue of exe­cut­ing an indi­vid­ual so wracked by men­tal ill­ness that he can­not comprehend the ​‘mean­ing and pur­pose of the pun­ish­ment,’ as well as society’s intu­ition that such an execution ​‘sim­ply offends human­i­ty.’ Scott Panetti is one of these individuals.” 

Three state leg­is­la­tures (Arizona, Arkansas, and Texas) pro­posed bills to exempt peo­ple with severe men­tal ill­ness from death penal­ty eli­gi­bil­i­ty. The bills failed in Arizona and Arkansas. The Texas bill passed the House 97 – 48 on April 5, 2023. No action has been tak­en in the Senate, but Texas’ leg­isla­tive ses­sion con­tin­ues into 2024. 

Five years after the Washington Supreme Court struck down the state’s death penal­ty law, Governor Jay Inslee signed leg­is­la­tion to for­mal­ly remove the uncon­sti­tu­tion­al law from the books. Gov. Inslee said the new leg­is­la­tion cod­i­fied the con­cerns that were raised in the court’s deci­sion about the appli­ca­tion of the death penal­ty in Washington: ​“The [court] made clear, and we know this to be true, that the penal­ty has been applied unequal­ly and in a racial­ly insen­si­tive man­ner.” 

The Pennsylvania House Judiciary Committee vot­ed 15 – 10 in favor of a death penal­ty repeal bill on October 31. With 14 Democrats and one Republican vot­ing in favor, the com­mit­tee pas­sage is the first step toward abol­ish­ing the death penal­ty in Pennsylvania, which has not exe­cut­ed any­one since 1999 and has had a mora­to­ri­um on exe­cu­tions since 2015. 

Legislators in twelve dif­fer­ent states and U.S. Congress intro­duced bills to abol­ish the death penal­ty. In September 2023, a bipar­ti­san group of Ohio state house rep­re­sen­ta­tives intro­duced a bill that would abol­ish the death penal­ty and replace it with life in prison with­out parole. The pro­posed leg­is­la­tion came just a few months after Ohio state sen­a­tors intro­duced a sim­i­lar bill. 

Unsuccessful leg­isla­tive efforts to abol­ish the death penal­ty were also seen in Louisiana, fol­low­ing Governor John Bel Edwards’ first pub­lic announce­ment of his oppo­si­tion to cap­i­tal pun­ish­ment. In March, Gov. Edwards expressed his oppo­si­tion in a sem­i­nar at Loyola University in New Orleans: ​“The death penal­ty is so final. When you make a mis­take, you can’t get it back. And we know that mis­takes have been made in sen­tenc­ing peo­ple to death.” He cit­ed his deep reli­gious faith and ​“pro-life” views as the rea­son for his oppo­si­tion and said it was ​“for­tu­itous” that there is a short­age of the drugs required for lethal injec­tion exe­cu­tions. Louisiana has car­ried out just one exe­cu­tion in the past twen­ty years. 

Although the 24 peo­ple exe­cut­ed in 2023 rep­re­sent­ed an increase from last year’s num­ber of 18, this year was the ninth con­sec­u­tive year with few­er than 30 executions. 

As in past years, most of the peo­ple exe­cut­ed in 2023 had sig­nif­i­cant vul­ner­a­bil­i­ties, and many like­ly would not have been sen­tenced to death if tried today. 79% of the peo­ple exe­cut­ed this year had at least one of the fol­low­ing impair­ments: seri­ous men­tal ill­ness; brain injury, devel­op­men­tal brain dam­age, or an IQ in the intel­lec­tu­al­ly dis­abled range; and/​or chron­ic seri­ous child­hood trau­ma, neglect, and/​or abuse. 33% had all three. At least three (Darryl Barwick, Michael Tisius, and Casey McWhorter) were under the age of 20 at the time of their crimes. 

Only five states exe­cut­ed peo­ple this year. Florida and Texas account­ed for more than half (58%) of the year’s total num­ber. Florida’s six exe­cu­tions in 2023 were the high­est num­ber since 2014. Before this year, Florida had not exe­cut­ed any­one since 2019. Governor Ron DeSantis, who is run­ning for President, has sched­uled eight exe­cu­tions since he took office in 2019, bring­ing the total num­ber of exe­cu­tions in Florida since 1976 to 105. With eight exe­cu­tions, Texas main­tained its sta­tus as the state that has con­duct­ed the most exe­cu­tions in 2023 — and over­all since 1976.

Only 41% of the 58 death war­rants issued in 2023 were car­ried out. Four exe­cu­tions were stayed for rea­sons includ­ing men­tal incom­pe­ten­cy, intel­lec­tu­al dis­abil­i­ty, and cred­i­ble inno­cence of the pris­on­ers. Ten exe­cu­tions were halt­ed by guber­na­to­r­i­al reprieve in Ohio, where exe­cu­tions have been on hold since 2019 over con­cerns about its lethal injec­tion pro­to­col. Three were halt­ed in Pennsylvania, which has had a mora­to­ri­um on exe­cu­tions since 2015. One was halt­ed in Arizona after Governor Katie Hobbs announced an inves­ti­ga­tion into the state’s exe­cu­tion pro­to­col. Two pris­on­ers (Henry Skinner in Texas and Michael Webb in Ohio) died while their exe­cu­tion dates were pend­ing. Five dates were stayed to allow time for addi­tion­al court pro­ceed­ings or clemency hearings. 

Oklahoma Attorney General Gentner Drummond react­ed to recent events in his state by request­ing that the Oklahoma Court of Criminal Appeals slow the pace of exe­cu­tions. Prior to AG Drummond’s 2022 elec­tion, Oklahoma had set an unprece­dent­ed 25 exe­cu­tion dates over the course of two years. Attorney General Drummond, who gen­er­al­ly sup­ports the death penal­ty but has advo­cat­ed in favor of death row pris­on­er Richard Glossip, wrote that the com­pressed execution schedule ​“is undu­ly bur­den­ing the Department of Corrections and its per­son­nel” and called it ​“unsus­tain­able in the long run.” In response to Attorney General Drummond’s request, the Oklahoma Court of Criminal Appeals reset the state’s exe­cu­tion sched­ule to per­form one exe­cu­tion approx­i­mate­ly every two months, result­ing in the resched­ul­ing of nine exe­cu­tion dates that had been set for 2023. 

Once again, the major­i­ty of the crimes for which defen­dants were exe­cut­ed involved white vic­tims (79%). Based on racial clas­si­fi­ca­tions from state depart­ments of cor­rec­tions, none of the 15 white defen­dants exe­cut­ed in 2023 were con­vict­ed of killing a per­son of col­or. Nine of the 24 pris­on­ers exe­cut­ed were peo­ple of col­or. Four of the nine (44.4%) were peo­ple of col­or exe­cut­ed for killing white vic­tims. In Texas, peo­ple of col­or were over­rep­re­sent­ed among those exe­cut­ed in 2023. Five of the eight pris­on­ers (62.5%) exe­cut­ed in Texas were peo­ple of color.

The length of time that pris­on­ers spend on death row before being exe­cut­ed has steadi­ly increased. Those exe­cut­ed in 2023 spent an aver­age of near­ly 23 years on death row, the longest aver­age time in the mod­ern era of the death penal­ty. More than half (54%) of the pris­on­ers had been on death row for more than 20 years, in vio­la­tion of inter­na­tion­al human rights norms. Six pris­on­ers were on death row for more than 30 years before being exe­cut­ed this year. 

The dele­te­ri­ous men­tal health effects of sig­nif­i­cant stays on death row are well-known. Researchers and experts have found that extend­ed soli­tary con­fine­ment and the harsh con­di­tions on death row cause men­tal ill­ness in healthy pris­on­ers and exac­er­bate it in those with exist­ing con­di­tions. Legal teams for two exe­cut­ed pris­on­ers (Duane Owen and Johnny Johnson) raised claims that their clients were incom­pe­tent to be exe­cut­ed by rea­son of insan­i­ty. Both men had lengthy his­to­ries of men­tal ill­ness wors­ened by their time on death row. Both pre­sent­ed the opin­ions of men­tal health experts who had thor­ough­ly exam­ined them and believed they met the cri­te­ria for incom­pe­tence: that they did not under­stand their impend­ing exe­cu­tion or the rea­son for it. In both cas­es, courts denied the claims, giv­ing greater weight to the opin­ions of state experts who had engaged in much more cur­so­ry exam­i­na­tions of the men. Similarly, James Barnes was allowed to waive his appeals and ​“vol­un­teer” for exe­cu­tion with­out ever being exam­ined by a men­tal health expert. 

The sig­nif­i­cant changes that have occurred dur­ing the decades that most death-sen­­tenced pris­on­ers have spent in prison almost cer­tain­ly mean that many of them would not be sen­tenced to death if they were pros­e­cut­ed today. Changes in the law, such as the alter­na­tive sen­tence of life with­out parole, the elim­i­na­tion of non-unan­i­­mous death sen­tences in most states, the exclu­sion of peo­ple with intel­lec­tu­al dis­abil­i­ty from death penal­ty eli­gi­bil­i­ty, and changes in the com­mon and sci­en­tif­ic under­stand­ing of men­tal ill­ness and trau­ma and their last­ing effects mean that argu­ments in favor of an alter­na­tive sen­tence are much stronger today than they were in pre­vi­ous years. Theories such as ​“Shaken Baby Syndrome” have been resound­ing­ly debunked, mean­ing that some peo­ple were con­vict­ed of caus­ing deaths that are no longer considered crimes. 

The num­ber of death sen­tences imposed each year has steadi­ly decreased over the last two decades, a strong indi­ca­tion that juries’ atti­tudes about the effec­tive­ness, accu­ra­cy, and moral­i­ty of the death penal­ty have changed. Prosecutors, too, are more cog­nizant of the allo­ca­tion of resources required for cap­i­tal cas­es and less like­ly to seek a death sen­tence. Finally, improve­ments in the qual­i­ty and avail­abil­i­ty of defense rep­re­sen­ta­tion have been proven to sig­nif­i­cant­ly alter the out­comes of cap­i­tal tri­als, espe­cial­ly in sentencing. 

Appellate attor­neys for two peo­ple exe­cut­ed this year (Wesley Ruiz and Michael Tisius) obtained signed affi­davits from jurors stat­ing that they would change their votes or sup­port a dif­fer­ent sen­tence now based on the mit­i­gat­ing evi­dence that new coun­sel pre­sent­ed on appeal. Mr. Tisius’ clemen­cy peti­tion includ­ed state­ments from four jurors and two alter­nates who sup­port­ed a reduced sen­tence. One juror told the New York Times, ​“I feel angry and remorse­ful. I feel that I wronged Michael. … I hat­ed hav­ing a part in somebody dying.” 

Those two cas­es illus­trate some of the crit­i­cal improve­ments that have occurred in the qual­i­ty of defense rep­re­sen­ta­tion. The defense bar invest­ed sig­nif­i­cant time train­ing lawyers to fol­low detailed guid­ance found in the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003). Juries today are more like­ly to be pre­sent­ed with a com­pre­hen­sive biopsy­choso­cial his­to­ry of the defen­dant and a more com­pelling argu­ment for an alter­na­tive sen­tence. By con­trast, Mr. Ruiz and Mr. Tisius were just two of at least sev­en defen­dants exe­cut­ed this year whose juries did not hear sig­nif­i­cant mit­i­gat­ing evi­dence of men­tal ill­ness, child­hood trau­ma, or both. While men­tal ill­ness was once pre­sent­ed as aggra­vat­ing evi­dence – as was true for Robert Fratta, whom pros­e­cu­tors false­ly claimed had Antisocial Personality Disorder to con­vince the jury that he pre­sent­ed an ongo­ing dan­ger to soci­ety – evi­dence of men­tal ill­ness is prop­er­ly pre­sent­ed today as part of the defense’s ​“case for life” to demon­strate a defendant’s diminished culpability. 

Changes in sen­tenc­ing pro­ce­dures could have affect­ed the out­comes of sev­er­al peo­ple exe­cut­ed this year. Seven pris­on­ers (John Balentine, Donald Dillbeck, Arthur Brown, Duane Owen, Jedidiah Murphy, Brent Brewer, and David Renteria) were sen­tenced to death before their states offered the alter­na­tive sen­tence of life with­out parole. Seven pris­on­ers (Amber McLaughlin, Donald Dillbeck, Louis Gaskin, Duane Owen, James Barber, Michael Zack, and Casey McWhorter) were sen­tenced to death after non-unan­i­­mous jury sen­tenc­ing rec­om­men­da­tions. Only Florida and Alabama cur­rent­ly allow death sen­tences to be imposed with­out the agree­ment of all 12 jurors, mak­ing non-una­n­im­i­­ty an out­lier prac­tice among death penalty states. 

The num­ber of peo­ple on death rows across the United States has con­tin­ued to decline from a peak pop­u­la­tion in the year 2000. As of January 1, 2023, there were 2,331 peo­ple on death row.

As of December 1, twen­­ty-one peo­ple had been sen­tenced to death in 2023. Florida imposed the most death sen­tences in the U.S. in 2023, with five. California imposed four. Alabama and Texas imposed three each. Arizona and North Carolina imposed two each. Louisiana imposed a sin­gle new death sen­tence. The fed­er­al gov­ern­ment also secured its first new death sen­tence since 2019. 

For the first time since exe­cu­tions resumed in 1977, the num­ber of exe­cu­tions exceed­ed the num­ber of new death sen­tences. This is fur­ther evi­dence of juries’ grow­ing reluc­tance to impose death sen­tences, and a reflec­tion of the fact that today’s exe­cu­tions are an indi­ca­tor only of past sup­port for the death penalty.

Nine of the defen­dants sen­tenced to death (42.9%) were peo­ple of col­or. Five Latino defen­dants and four Black defen­dants were sen­tenced to death.

At the United States Supreme Court, 2023 saw the con­tin­ued ced­ing of ground to state death penal­ty laws and pro­ce­dures. Last year, the Court rolled back its own prece­dent in Shinn v. Ramirez, hold­ing that defen­dants with inef­fec­tive tri­al and appel­late coun­sel had no right to an evi­den­tiary hear­ing in fed­er­al court — in oth­er words, defen­dants were lim­it­ed to the evi­dence devel­oped by the very lawyers they were chal­leng­ing as inef­fec­tive. The deci­sion, as Justice Sotomayor not­ed in her dissenting opinion, ​“overrule[d] two recent prece­dents” and ​“will leave many peo­ple who were con­vict­ed in vio­la­tion of the Sixth Amendment to face incar­cer­a­tion or even exe­cu­tion with­out any mean­ing­ful chance to vin­di­cate their right to coun­sel.” The major­i­ty opin­ion held that fed­er­al review must be lim­it­ed so as not to encroach on states’ rights and com­plained that fed­er­al habeas review ​“over­rides the State’s sov­er­eign pow­er to enforce soci­etal norms through crim­i­nal law.” This year the Court enforced that point by over­whelm­ing­ly reject­ing the peti­tions of state death-sen­­tenced pris­on­ers and declin­ing to review cas­es that pre­sent­ed major constitutional concerns.

The data show death-sen­­tenced peti­tion­ers con­tin­ue to be large­ly unsuc­cess­ful when seek­ing stays of exe­cu­tion at the Supreme Court. In the 2022 – 23 term, the Court grant­ed just one of 26 stays of exe­cu­tion sought, and has grant­ed none of the eight stays sought dur­ing the first half of the 2023 – 24 term. A recent analy­sis by Bloomberg Law iden­ti­fied 270 emer­gency stay requests filed since 2013 and found that the Court agreed to stay an exe­cu­tion just 11 times in ten years (4%). Several of these stays con­cerned exe­cu­tion pro­to­cols, not chal­lenges to the exe­cu­tion itself. Justice Neil Gorsuch issued clear instruc­tions to the fed­er­al courts in Bucklew v. Precythe (2019), writ­ing that “[c]ourts should police care­ful­ly against attempts to use such chal­lenges as tools to inter­pose unjus­ti­fied delay…[l]ast-minute stays should be the extreme excep­tion, not the norm.” On the oth­er hand, the Court has not hes­i­tat­ed to lift a low­er court’s stay in order to allow an exe­cu­tion to pro­ceed. Bloomberg found that the Court had grant­ed 18 of 21 emer­gency requests by states to vacate stays of exe­cu­tion in the same ten-year peri­od (86%).

In July, the Court denied James Barber’s request for a stay to obtain more infor­ma­tion about Alabama’s botched exe­cu­tions last year, described by DPIC as ​“the year of the botched exe­cu­tion.” Mr. Barber chal­lenged the method in light of the ​“ever-esca­lat­ing lev­els of pain and tor­ture” report­ed by Kenneth Smith and Alan Miller dur­ing the state’s abort­ed attempts to exe­cute them in 2022. Justice Sotomayor wrote in dis­sent that the denial in Mr. Barber’s case was ​“anoth­er trou­bling exam­ple of this Court stymy­ing the devel­op­ment of Eighth Amendment law by push­ing for­ward exe­cu­tions with­out com­plete information…the Eighth Amendment does not tol­er­ate play­ing such games with a man’s life.”

Since the release of the Bloomberg report, the Court grant­ed Texas’ request to lift a low­er court stay for Jedidiah Murphy, issu­ing the deci­sion on its ​“shad­ow dock­et” with no accom­pa­ny­ing opin­ion explain­ing its rea­son­ing. Justices Sotomayor, Jackson, and Kagan dis­sent­ed. Mr. Murphy’s exe­cu­tion had been stayed based on his argu­ment that DNA test­ing could have exon­er­at­ed him of crimes that formed the basis for the jury’s finding of ​“future dan­ger­ous­ness,” a require­ment for death sen­tences in Texas. This deci­sion was the tenth stay lift­ed since Justice Ruth Bader Ginsburg’s death in 2020 — indi­cat­ing the Court’s grow­ing intol­er­ance of stays. Indeed, the Texas Attorney General’s Office echoed Justice Gorsuch by argu­ing that Mr. Murphy had waited ​“until the eleventh hour” to raise a ​“manip­u­la­tive” request for DNA test­ing. Texas exe­cut­ed Mr. Murphy on October 10, the 21^st World Day Against the Death Penalty.

The cas­es the Court did decide hinged large­ly on pro­ce­dure. In Reed v. Goertz, the Court ruled 6 – 3 that Texas pris­on­er Rodney Reed’s request for DNA test­ing could pro­ceed because his civ­il rights claim had been time­ly filed. Though Mr. Reed’s inno­cence case has received sub­stan­tial media atten­tion, the Court ruled only on the inter­pre­ta­tion of a statute regard­ing the tim­ing of the two-year lim­it on fed­er­al claims, hold­ing that the clock begins to run ​“at the end of the state-court lit­i­ga­tion.” Mr. Reed, who is Black, was sen­tenced to death by an all-white Texas jury for the rape and mur­der of a white woman in 1998. Mr. Reed’s request to test the mur­der weapon and addi­tion­al evi­dence, with the hope of iden­ti­fy­ing the true per­pe­tra­tor, now pro­ceeds in state court.

In Escobar v. Texas, the Court issued a two-sen­­tence sum­ma­ry opin­ion revers­ing and remand­ing the case in light of the State’s con­fes­sion of error. Areli Escobar was con­vict­ed in 2011 of the rape and mur­der of a teenage girl in his apart­ment com­plex based almost entire­ly on the Austin Police Department crime lab’s foren­sic test­ing. However, the State per­ma­nent­ly closed the lab in 2016 after an inves­ti­ga­tion by the Texas Forensic Science Commission iden­ti­fied seri­ous con­cerns about the accu­ra­cy of its DNA test­ing. The dis­trict attor­ney’s office sup­port­ed a new tri­al, but the Texas Court of Criminal Appeals denied relief. In its Supreme Court brief, the State wrote in sup­port of Mr. Escobar that based on a ​“com­pre­hen­sive reex­am­i­na­tion” of the record, it was clear that prosecutors ​“had offered flawed and mis­lead­ing foren­sic evi­dence at [his] tri­al and this evi­dence was mate­r­i­al to the out­come of his case in vio­la­tion of clear­ly estab­lished fed­er­al due process law.”

In Cruz v. Arizona, the Court held that its ear­li­er rul­ing in Simmons v. South Carolina (1994) applied retroac­tive­ly. The case was the Court’s sec­ond inter­ven­tion to pre­vent Arizona from cir­cum­vent­ing set­tled law. The Court pre­vi­ous­ly held in Simmons that a defen­dant has the right to inform the jury at sen­tenc­ing that a life sen­tence means life with­out parole. However, Arizona con­sis­tent­ly denied defen­dants that right, disin­gen­u­ous­ly argu­ing to juries that life-sen­­tenced pris­on­ers might receive clemen­cy. The Court reject­ed that argu­ment in Lynch v. Arizona (2016), but the State lat­er denied John Montenegro Cruz the right to renew his appeal on those grounds. The Court ruled 5 – 4 in favor of Mr. Cruz, hold­ing that Arizona had created a ​“catch-22” for defen­dants. This deci­sion result­ed in rare group relief: two sub­se­quent cas­es, Burns v. Arizona and Ovante v. Arizona, grant­ed sum­ma­ry relief to sev­en addi­tion­al defen­dants affect­ed by the deci­sion in Cruz. Experts esti­mate that up to thir­ty Arizona death-sen­­tenced pris­on­ers may be eli­gi­ble for relief, which will like­ly result in new sentencing trials.

This year, the jus­tices issued more dis­sents to denials of cer­tio­rari in death penal­ty cas­es than they did to opin­ions on the mer­its — and these dis­sents uni­form­ly addressed the Court’s fail­ure to uphold its own ear­li­er deci­sions regard­ing the con­sti­tu­tion­al rights of crim­i­nal defen­dants. Justice Sonia Sotomayor, Justice Elena Kagan, and Justice Ketanji Brown Jackson (in her first full year on the bench) stood unit­ed in their crit­i­cism of the Court’s ​“rush[…] to final­i­ty” in cap­i­tal cas­es and cau­tioned that the Court’s deci­sions and indif­fer­ence may embold­en states to dis­re­gard estab­lished Supreme Court prece­dent in the future.

In Brown v. Louisiana, the evi­dence showed that the pros­e­cu­tion with­held a con­fes­sion by David Brown’s co-defen­­dant that nev­er men­tioned Mr. Brown at all, a clear vio­la­tion of Brady v. Maryland (1963). However, the Louisiana Supreme Court found no Brady vio­la­tion, rea­son­ing that the con­fes­sion was not excul­pa­to­ry because it did not point to an alter­na­tive killer and did not explic­it­ly state that Mr. Brown was not involved. After the U.S. Supreme Court declined review, Justice Jackson, joined by Justices Kagan and Sotomayor, wrote in dis­sent that the Court had ​“repeat­ed­ly reversed low­er courts — and Louisiana courts, in par­tic­u­lar — for sim­i­lar refusals to enforce the Fourteenth Amendment’s man­date that favor­able and mate­r­i­al evi­dence in the government’s pos­ses­sion be dis­closed to the defense before tri­al.” Justice Jackson argued that the ​“require­ment that the with­held evi­dence must speak to or rule out the defendant’s par­tic­i­pa­tion in order for it to be favor­able is whol­ly for­eign to our case law.” Finally, she cau­tioned that the rejec­tion of Mr. Brown’s petition ​“should in no way be con­strued as an endorse­ment of the low­er court’s legal reasoning.”

In Clark v. Mississippi, the evi­dence estab­lished that pros­e­cu­tors vio­lat­ed the defendant’s con­sti­tu­tion­al rights by ille­gal­ly strik­ing poten­tial jurors of col­or. Just four years ear­li­er, the Court had decid­ed Flowers v. Mississippi (2019), revers­ing the con­vic­tion and death sen­tence in a case where the same pros­e­cu­tor had struck 41 of 42 Black jurors across six tri­als. The Court ruled in Flowers that the prosecutor’s con­duct vio­lat­ed Batson v. Kentucky (1986), the Court’s land­mark deci­sion for­bid­ding racial dis­crim­i­na­tion in jury selec­tion. Like Curtis Flowers, Tony Clark’s tri­al fea­tured stark racial dis­par­i­ties: 34.5% of the jury pool was Black, but the seat­ed jury had just one Black juror (7%) and eleven white jurors. In total, the State struck 87.5% of Black and just 16.7% of white poten­tial jurors. On appeal, the State pre­sent­ed print­outs of crim­i­nal records for every­one in the area with the same last name as Black prospec­tive jurors to imply that those jurors had lied to the tri­al court about hav­ing no fam­i­ly mem­bers with felony con­vic­tions, but nev­er asked about the records dur­ing voir dire to ver­i­fy that they were even relat­ed. Justice Sotomayor force­ful­ly dis­sent­ed from the majority’s deci­sion not to review the case, joined by Justices Jackson and Kagan:

Apparently Flowers was not clear enough for the Mississippi Supreme Court, how­ev­er. In yet anoth­er death penal­ty case involv­ing a Black defen­dant, that court failed to address not just one but three of the fac­tors Flowers express­ly iden­ti­fied. This was a direct repu­di­a­tion of this Court’s deci­sion. This can only be read as a sig­nal from the Mississippi Supreme Court that it intends to car­ry on with busi­ness as usu­al, no mat­ter what this Court said in Flowers. By allow­ing the same court to make the same mis­takes apply­ing the same stan­dard, this Court acqui­esces in the Mississippi Supreme Court’s non­com­pli­ance. Today, this Court tells the Mississippi Supreme Court that it has called our bluff, and that this Court is unwill­ing to do what is nec­es­sary to defend its own prece­dent. The result is that Flowers will be tooth­less in the very State where it appears to be still so needed.

In Johnson v. Vandergriff, the defense asked the Court to order a hear­ing on Johnny Johnson’s com­pe­tence to be exe­cut­ed based on a psychiatrist’s find­ing that he did not have a ​“ratio­nal under­stand­ing of the link between his crime and his pun­ish­ment.” Mr. Johnson, who suf­fered from schiz­o­phre­nia and had decades of doc­u­ment­ed severe men­tal ill­ness, said that Satan told him that his exe­cu­tion was part of Satan’s plan to destroy the world. Mr. Johnson insisted that ​“he is a vam­pire and able to ​‘rean­i­mate’ his organs,” and that he could ​“enter an animal’s mind…to go on liv­ing after his exe­cu­tion.” Although Mr. Johnson appeared to be a text­book case of incom­pe­tence for exe­cu­tion under Ford v. Wainwright (1986), a major­i­ty of the Court reject­ed his appli­ca­tion and the execution proceeded. ​“The Court today paves the way to exe­cute a man with doc­u­ment­ed men­tal ill­ness before any court mean­ing­ful­ly inves­ti­gates his com­pe­ten­cy to be exe­cut­ed,” Justice Sotomayor wrote in dissent. ​“There is no moral vic­to­ry in exe­cut­ing some­one who believes Satan is killing him to bring about the end of the world… Instead, this Court rush­es to final­i­ty, bypass­ing fun­da­men­tal pro­ce­dur­al and substantive protections.”

The dis­sent­ing jus­tices ques­tioned why the Court did not resolve the cas­es through sum­ma­ry dis­po­si­tion, also referred to as ​“Grant-Vacate-Remand” or GVR, as it had in Escobar, when doing so would have been sim­ple and straight­for­ward. Justice Sotomayor had pre­vi­ous­ly observed in a 2022 dis­sent from denial of cer­tio­rari that the Court ​“appears to be qui­et­ly con­strict­ing its GVR prac­tice” in crim­i­nal cas­es even when the ruling held ​“great stakes for the indi­vid­ual peti­tion­er.” In Clark, Justice Sotomayor wrote that the stark­ness of the mis­con­duct should have made it an ​“easy case” to resolve — the Court could have just vacat­ed the judg­ment and direct­ed the Mississippi Supreme Court to con­duct a prop­er analy­sis — but that ​“appears to be too much for this Court today.” Likewise, in Brown and Johnson, Justices Jackson and Sotomayor wrote that they would have sum­mar­i­ly reversed. In Burns v. Mays, also denied review, the defense lawyer failed to impeach a sur­viv­ing wit­ness who gave con­tra­dic­to­ry tes­ti­mo­ny at each co-defendant’s tri­al; Mr. Burns’ peti­tion argued that the lawyer’s con­duct was inef­fec­tive under Strickland v. Washington (1984). Justice Sotomayor dis­sent­ed that the ​“Court’s fail­ure to act is dis­heart­en­ing because this case reflects the kind of sit­u­a­tion where the Court has pre­vi­ous­ly found sum­ma­ry action appro­pri­ate,” and the ​“need for action is great because Burns faces the ulti­mate and irrev­o­ca­ble penal­ty of death.” As a result, as Justice Sotomayor put it in Clark, when the ​“Court is unwill­ing to take even that mod­est step to pre­serve the force of its own recent precedent…courts through­out the State will take note and know that this Court does not always mean what it says.”

The Court also turned away sev­er­al high-pro­­file inno­cence cas­es this year. As for­mer Justice Antonin Scalia stat­ed in Herrera v. Collins (1993), the Court ​“has nev­er held that the Constitution for­bids the exe­cu­tion of a con­vict­ed defen­dant who has had a full and fair tri­al but is lat­er able to con­vince a habeas court that he is ​‘actu­al­ly’ inno­cent.” The deci­sions of the Court this year indi­cate a reluc­tance to assume a role as the court of last resort for the wrongfully convicted.

In Toforest Johnson’s case, Alabama pros­e­cu­tors flat­ly denied for sev­en­teen years that they had com­pen­sat­ed their star wit­ness until a for­mer employ­ee of the prosecutor’s office told the defense team about a set of ​“con­fi­den­tial reward files” that were nev­er dis­closed. This rev­e­la­tion prompt­ed the State to final­ly admit it had paid $5,000 to the wit­ness, claim­ing that the check to her had been ​“mis­filed.” The wit­ness, Violet Ellison, had approached police after the post­ing of a pub­lic reward offer for the same amount, and tes­ti­fied at tri­al that she over­heard a three-way jail phone call in which a man referred to himself as ​“Toforest” and con­fessed to the crime. Mr. Johnson’s con­vic­tion large­ly rest­ed on Ms. Ellison’s ​“ear­wit­ness” tes­ti­mo­ny even though she had nev­er met Mr. Johnson and over ten eye­wit­ness­es placed him across town at a night­club at the time of the crime. The cur­rent dis­trict attor­ney, the orig­i­nal tri­al pros­e­cu­tor, and three of the orig­i­nal jurors all sup­port a new tri­al for Mr. Johnson. Nevertheless, the Court reject­ed his peti­tion on appeal from denials of relief in Alabama courts.

In Robert Roberson’s case, a robust record of sci­en­tif­ic and med­ical evi­dence pre­sent­ed in state court demon­strat­ed that no mur­der occurred at all. Mr. Roberson was con­vict­ed of killing his daugh­ter, Nikki, based on the now-dis­­­cred­it­ed sci­en­tif­ic theory of ​“Shaken Baby Syndrome.” Experts say that pneu­mo­nia and an acci­den­tal fall caused Nikki’s death, not Mr. Roberson. At least 32 care­givers con­vict­ed based on Shaken Baby Syndrome in the past have been exon­er­at­ed, and even its cre­ator Dr. Norman Guthkelch has dis­avowed the con­di­tion. Dr. Guthkelch called for a review of the cas­es in 2012, writ­ing that he was ​“quite dis­turbed” that what he ​“intend­ed as a friend­ly sug­ges­tion for avoid­ing injury to chil­dren has become an excuse for impris­on­ing inno­cent peo­ple.” When Texas courts denied Mr. Roberson relief, a group of physi­cians, sci­en­tists, and fed­er­al judges sup­port­ed his request for the Supreme Court to review his case. But as in Mr. Johnson’s case, the Court denied review.

The Court’s denial of review in inno­cence cas­es par­al­leled its pro­ce­dur­al deci­sion in Jones v. Hendrix, where it held that fed­er­al pris­on­ers who are actu­al­ly inno­cent are not enti­tled to an oppor­tu­ni­ty to peti­tion the court for release. The peti­tion­er, Marcus DeAngelo Jones, was incar­cer­at­ed based on con­duct that the Court lat­er found did not con­sti­tute a crime. However, when he tried to argue this claim on appeal, he was barred under the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) strict rules lim­it­ing suc­ces­sive peti­tions. The Court held that Mr. Jones had no ​“end-run” around AEDPA even though he was by def­i­n­i­tion inno­cent of the charges. In dis­sent, Justices Sotomayor and Kagan criticized the ​“dis­turb­ing results” of the deci­sion: a ​“pris­on­er who is actu­al­ly inno­cent, impris­oned for con­duct that Congress did not crim­i­nal­ize, is for­ev­er barred…from rais­ing that claim, mere­ly because he pre­vi­ous­ly sought post­con­vic­tion relief. […] By chal­leng­ing his con­vic­tion once before, he for­feit­ed his free­dom.” Though Jones was not a death penal­ty case, its hold­ing fur­ther nar­rows options for death-sen­­tenced pris­on­ers with inno­cence claims. In a sep­a­rate dis­sent, Justice Jackson expressed that she was ​“deeply trou­bled by the con­sti­tu­tion­al impli­ca­tions of the noth­ing-to-see-here approach that the major­i­ty takes with respect to the incar­cer­a­tion of poten­tial legal innocents.”

The Court has yet to announce whether it will review the wide­­ly-report­ed inno­cence case of Richard Glossip, who received the Court’s only stay of exe­cu­tion this year pend­ing the out­come of his peti­tion for cer­tio­rari. Mr. Glossip is in the rare posi­tion of hav­ing the State’s sup­port for his claim of pros­e­cu­to­r­i­al mis­con­duct — but was forced to peti­tion the Supreme Court for relief when the Oklahoma Court of Criminal Appeals denied a joint request for a new tri­al. Evidence shows that pros­e­cu­tors pres­sured Mr. Glossip’s co-defen­­dant Justin Sneed to impli­cate Mr. Glossip and lie on the stand regard­ing the mur­der of motel own­er Barry Van Treese, who had employed both men. The State did not dis­pute that Mr. Sneed blud­geoned Mr. Van Treese to death while high on metham­phet­a­mines, but argued that Mr. Glossip had ordered the killing. Mr. Glossip has received nine exe­cu­tion dates and eaten his ​“last meal” three times. A bipar­ti­san group of 62 Oklahoma leg­is­la­tors sup­ports relief for Mr. Glossip. ​“There has nev­er been an exe­cu­tion in the his­to­ry of this coun­try where the state and the defense agreed that the defen­dant was not afford­ed a fair tri­al,” said Representative Kevin McDugle, a Republican. ​“Oklahoma can­not become the first.”

First used in Trop v. Dulles (1958), the Court’s prac­tice has been to look to state leg­is­la­tures, jury ver­dicts, and oth­er objec­tive cri­te­ria to eval­u­ate whether a pun­ish­ment is cru­el and unusu­al in vio­la­tion of the Eighth Amendment, draw­ing its meaning from ​“the evolv­ing stan­dards of decen­cy that mark the progress of a matur­ing soci­ety.” The Court applied this test to reach land­mark rul­ings in Ford v. Wainwright (1986) (hold­ing the exe­cu­tion of peo­ple with insan­i­ty uncon­sti­tu­tion­al), Roper v. Simmons (2005) (hold­ing the exe­cu­tion of juve­niles uncon­sti­tu­tion­al), Atkins v. Virginia (2002) (hold­ing the exe­cu­tion of peo­ple with intel­lec­tu­al dis­abil­i­ty uncon­sti­tu­tion­al), and Kennedy v. Louisiana (2008) (hold­ing the exe­cu­tion of peo­ple who com­mit non-homi­­cide crimes unconstitutional).

Some jus­tices on the Court have ques­tioned the doc­trine over the years, advo­cat­ing for an ​“orig­i­nal­ist” inter­pre­ta­tion of the Eighth Amendment that rejects only pun­ish­ments that were considered ​“cru­el and unusu­al” when the Constitution was draft­ed. Former Justice Scalia believed that the Eighth Amendment ​“is addressed to always-and-everywhere ​‘cru­el’ pun­ish­ments, such as the rack and the thumb­screw,” but ​“is not a ratch­et, where­by a tem­po­rary con­sen­sus on lenien­cy for a par­tic­u­lar crime fix­es a per­ma­nent con­sti­tu­tion­al max­i­mum.” Justice Thomas has echoed these argu­ments, writing that ​“the Framers did not pro­vide for the con­sti­tu­tion­al­i­ty of a par­tic­u­lar type of pun­ish­ment to turn on a snap­shot of American pub­lic opin­ion tak­en at the moment a case is decid­ed.” Justice Gorsuch, who joined the Court in 2017, endorsed the orig­i­nal­ist approach in Bucklew, writ­ing that cap­i­tal pun­ish­ment is law­ful because it was ​“the stan­dard penal­ty for all seri­ous crimes” at the time of the found­ing and appears in the Constitution. He did not mention the ​“evolv­ing stan­dards of decen­cy” test once in his opin­ion. Justice Gorsuch’s major­i­ty opin­ion gar­nered the votes of four oth­er con­ser­v­a­tives still on the Court, but no oth­er cur­rent mem­ber of the Court except Justice Thomas has direct­ly crit­i­cized the test.

This year in Hamm v. Smith, Alabama appealed to the Supreme Court after low­er courts vacat­ed Joseph Clifton Smith’s death sen­tence, hav­ing found that Mr. Smith had an intel­lec­tu­al dis­abil­i­ty that ren­dered him inel­i­gi­ble for exe­cu­tion under Atkins. Alabama argued in its peti­tion that Atkins’ ​“dubi­ous method­ol­o­gy sub­jects States not to the fixed and objec­tive stric­tures of the Constitution’s orig­i­nal mean­ing but to the ​‘judg­ment’ of oth­er States.” Attorneys General of thir­teen death penal­ty states, includ­ing Texas and Florida, filed an ami­cus brief in sup­port of Alabama in which they advo­cat­ed for a new ​“orig­i­nal­ist” test. They argued that the ​“evolv­ing stan­dards of decen­cy” test is a ​“law­less stan­dard” that ​“can­not be squared with the text, struc­ture, and his­to­ry of the Eighth Amendment,” and ​“States will con­tin­ue to be on the receiv­ing end of fed­er­al over­reach” until the Court impos­es a new stan­dard. The Court has not yet announced whether it will grant cer­tio­rari in Mr. Smith’s case.

In January 2023, Jurijus Kadamovas, a Russian nation­al on U.S. fed­er­al death row, filed a civ­il rights law­suit alleg­ing uncon­sti­tu­tion­al con­di­tions of con­fine­ment. The com­plaint, filed on behalf of Mr. Kadamovas and seek­ing class cer­ti­fi­ca­tion for 37 oth­er indi­vid­u­als incar­cer­at­ed in the United States Penitentiary in Terre Haute, Indiana, alleges that the ​“severe­ly iso­lat­ing” and ​“unre­lent­ing soli­tary con­fine­ment” on death row falls below the stan­dards out­lined by inter­na­tion­al human rights instru­ments regard­ing the treat­ment of pris­on­ers, includ­ing the International Covenant on Civil and Political Rights and the United Nations Standard Minimum Rules for the Treatment of Prisoners. The suit, which was filed by the ACLU of Indiana and nation­al law firm Faegre Drinker Biddle & Reath LLP, argues that this treat­ment is also a vio­la­tion of the U.S. Constitution’s pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment. As of December 2023, Mr. Kadamovas’ law­suit is pend­ing in federal court.

Trial of Sayfullo Saipov Ends in Life Sentence

In January 2023, a fed­er­al jury in the Southern District of New York found Sayfullo Saipov guilty of inten­tion­al­ly killing eight peo­ple in New York City by dri­ving a truck on a bike path in 2017. In March 2023, the same jury con­clud­ed its sen­­tenc­ing-phase delib­er­a­tions with­out com­ing to a unan­i­mous deci­sion. Under fed­er­al law, if the jury in the penal­ty phase of the tri­al can­not come to a unan­i­mous deci­sion, the defen­dant can­not be sen­tenced to death. Mr. Saipov was sen­tenced to eight con­sec­u­tive life sen­tences, two con­cur­rent life sen­tences, and a con­sec­u­tive sen­tence of 260 years in prison for car­ry­ing out an act of ter­ror­ism. At tri­al, nei­ther Mr. Saipov nor his attor­neys con­test­ed his involve­ment in the crime, but argued that a death sen­tence would not bring more justice: ​“It is not nec­es­sary to kill Sayfullo Saipov,” said attor­ney David Patton. ​“It is not nec­es­sary to keep us or any­one else safe. It is not nec­es­sary to do jus­tice. So we are ask­ing you to choose hope over fear, jus­tice over vengeance and, in the end, life over death.”

Trial of Robert Bowers Ends in Death Sentence

In May 2023, Robert Bowers went to tri­al five years after his attack on the Pittsburgh, Pennsylvania Tree of Life Synagogue that result­ed in 11 deaths and many more injuries. Mr. Bowers had offered to plead guilty in exchange for a sen­tence of life with­out the pos­si­bil­i­ty of parole, but the fed­er­al gov­ern­ment reject­ed Mr. Bowers’ offer. Twelve death-qual­i­­fied jurors and six alter­nates were select­ed to hear fed­er­al charges that includ­ed hate-based crimes. During voir dire, pros­e­cu­tors struck all Black, Latinx, and Jewish poten­tial jurors. Victims’ fam­i­ly mem­bers did not agree about whether a death sen­tence should be sought. A 2021 let­ter from sev­en of the nine fam­i­lies who lost a rel­a­tive expressed sup­port for the death penal­ty, while the oth­er fam­i­lies expressed their con­cerns with the incom­pat­i­bil­i­ty of Judaism and cap­i­tal pun­ish­ment. In July 2023, the jury found Mr. Bowers guilty of all 63 fed­er­al charges relat­ed to the syn­a­gogue shoot­ing. Following an eli­gi­bil­i­ty deter­mi­na­tion phase and two hours of delib­er­a­tion, the jury deter­mined that pros­e­cu­tors had met their bur­den by prov­ing that Mr. Bowers had the ​“nec­es­sary intent” to com­mit a crime with spe­cif­ic aggra­vat­ing fac­tors that made him eli­gi­ble for the death penal­ty. Attorneys for Mr. Bowers told jurors about his his­to­ry of men­tal ill­ness and brain impair­ment from child­hood, includ­ing sev­er­al sui­cide attempts and com­mit­ments to psy­chi­atric facil­i­ties before the age of 13, and argued that he was too delu­sion­al to be eli­gi­ble for the death penalty.

On August 1, 2023, the jury unan­i­mous­ly rec­om­mend­ed a sen­tence of death for Mr. Bowers. This is the first new fed­er­al death sen­tence since 2019 and the first secured dur­ing the Biden Administration. Mr. Bowers may face a state tri­al and poten­tial state death sen­tences if the Allegheny County, Pennsylvania District Attorney’s office decides to pros­e­cute him. There is cur­rent­ly a gov­­er­nor-imposed mora­to­ri­um on exe­cu­tions in Pennsylvania.

Since Attorney General Garland took office, the Department of Justice (DOJ) has with­drawn notices of intent to seek the death penal­ty for 32 defen­dants that were ini­tial­ly filed dur­ing President Trump’s admin­is­tra­tion. Capital charges against Mr. Saipov and Mr. Bowers were both autho­rized under Attorney General Barr and pros­e­cut­ed this year by Attorney General Garland. In March 2023, the U.S. Attorney for the District of North Dakota, at the direc­tion of AG Garland, with­drew the notice of intent to seek anoth­er death sen­tence for Alfonso Rodriguez, Jr., who had been con­vict­ed and sen­tenced to death in 2007 for the 2003 kid­nap­ping and mur­der of col­lege stu­dent Dru Sjodin. In September 2021, U.S. District Court Judge Ralph Erickson over­turned Mr. Rodriguez’s death sen­tence because of false tes­ti­mo­ny pre­sent­ed at tri­al, in addi­tion to defense counsel’s fail­ure to intro­duce evi­dence of their client’s post-trau­­mat­ic stress dis­or­der, which may have pre­vent­ed him from enter­ing an insanity defense. 

No new notices of intent to seek a fed­er­al death sen­tence have been autho­rized by AG Garland. In February 2023, the DOJ decid­ed against seek­ing a death sen­tence for Patrick Crusius, who pled guilty to near­ly 50 fed­er­al hate crime charges in the racial­ly moti­vat­ed killing of 23 Latinx peo­ple and injur­ing of 22 oth­ers in an El Paso, Texas Walmart in August 2019. Mr. Crusius intend­ed on plead­ing not guilty to the charges against him before fed­er­al pros­e­cu­tors decid­ed against seek­ing the death penal­ty. Attorneys for the Department of Justice agreed with Mr. Crusius’ defense coun­sel that Mr. Crusius has schizoaf­fec­tive dis­or­der. The men­tal health of a defen­dant is one fac­tor that must be con­sid­ered by fed­er­al pros­e­cu­tors when decid­ing whether to seek a death sen­tence. Pursuant to Mr. Crusius’ plea agree­ment, he received 90 con­sec­u­tive life sen­tences for the 90 charges against him. In July 2023, El Paso District Attorney Bill Hicks announced that he intends to seek a state death sen­tence for Mr. Crusius, who remains in local cus­tody. In 2023, the Department of Justice agreed to the resen­tenc­ing to life with­out parole for Jeffrey Paul, a severe­ly men­tal­ly ill pris­on­er who was fed­er­al­ly sen­tenced to death for his involve­ment in the rob­bery and mur­der of a retired nation­al park employ­ee in 1995.

The Department of Justice is still con­sid­er­ing whether to seek a death sen­tence for Payton Gendron, who is accused of the racial­ly moti­vat­ed killing of 10 Black peo­ple and injury of many oth­ers at the Tops Friendly Supermarket in Buffalo, New York in May 2022. In November 2022, Mr. Gendron pled guilty to 15 state charges, includ­ing ten counts of first-degree mur­der, three counts of attempt­ed sec­ond-degree mur­der as a hate crime, one count of sec­ond-degree crim­i­nal pos­ses­sion of a weapon, and one count of domes­tic ter­ror­ism in the first degree. In February 2023, Mr. Gendron was sen­tenced to the most severe pun­ish­ment in New York state: life in prison with­out parole. New York abol­ished the death penal­ty in 2007.

In July 2023, Congresswoman Ayanna Pressley and Senate Majority Whip Dick Durbin rein­tro­duced the Federal Death Penalty Prohibition Act of 2023. The bicam­er­al leg­is­la­tion would pro­hib­it the use of the death penal­ty at the fed­er­al lev­el and would require the com­mu­ta­tion of all death sen­tences for pris­on­ers cur­rent­ly on fed­er­al death row. Rep. Pressley and Sen. Durbin pre­vi­ous­ly intro­duced leg­is­la­tion in 2019, fol­low­ing then-Attorney General Bill Barr’s announce­ment regard­ing the resump­tion of fed­er­al exe­cu­tions, and in 2021, fol­low­ing the exe­cu­tion spree under President Trump’s admin­is­tra­tion. Both Rep. Pressley and Sen. Durbin have also writ­ten to the Department of Justice and urged AG Merrick Garland to keep the pause on fed­er­al exe­cu­tions in place.

On September 6, 2023, President Biden reject­ed pro­posed con­di­tions for a plea agree­ment with five Guantanamo Bay pris­on­ers accused of aid­ing in the prepa­ra­tion of the 9/​11 ter­ror­ist attacks that would have removed the death penal­ty as a pos­si­ble sen­tence. According to the New York Times, the defen­dants’ plea request includ­ed the con­di­tion that they avoid soli­tary con­fine­ment and receive men­tal health treat­ment to mit­i­gate the effects of the tor­ture they endured at the hands of American agents. President Biden reject­ed this deal, as a spokesper­son for the National Security Council told the press that ​“the President does not believe that accept­ing the joint pol­i­cy prin­ci­ples as a basis for a pre-tri­al agree­ment would be appro­pri­ate in these cir­cum­stances.” The U.S. Department of Defense’s Office of the Convening Authority for the Office of Military Commissions will make the final deci­sion regarding settlement.

On September 21, 2023, Judge Matthew McCall ruled that Ramzi bin al-Shibh, one of the five defen­dants in pre­tri­al cap­i­tal pro­ceed­ings, is men­tal­ly incom­pe­tent to stand tri­al. Mr. bin al-Shibh has been in mil­i­tary cus­tody for 21 years and will remain at Guantanamo as author­i­ties treat his post-trau­­mat­ic stress dis­or­der caused by the ​“enhanced inter­ro­ga­tions” employed by the U.S. gov­ern­ment and its agents. 

In his opin­ion, Judge McCall wrote that Mr. bin al-Shibh is whol­ly focused on his delu­sions and thus incom­pe­tent to stand trial. ​“They dis­rupt his sleep and lead to out­bursts that result in dis­ci­pli­nary con­fine­ment mea­sures. The result is a sleep-deprived accused whose pri­ma­ry focus is on stop­ping attacks, not defend­ing him­self against the charged offens­es.… The fact that Mr. bin al-Shibh under­stands the vital role that his defense coun­sel plays and yet, again and again, he focus­es his counsel’s work on stop­ping his delu­sion­al harass­ment, demon­strates the impair­ment of his abil­i­ty to assist in his defense.”

On August 18, 2023, Judge Lanny Acosta Jr., a mil­i­tary judge over­see­ing the pre­tri­al cap­i­tal pro­ceed­ings of Abd al-Rahim al-Nashiri, a Saudi nation­al who is accused of orga­niz­ing the October 2000 bomb­ing of the U.S.S. Cole, ruled that Mr. al-Nashiri’s con­fes­sions could not be entered in evi­dence at tri­al because they are prod­ucts of tor­ture. Judge Acosta acknowl­edged that exclud­ing this evi­dence may have soci­etal impli­ca­tions, but ​“per­mit­ting the admis­sion of evi­dence obtained by or derived from tor­ture by the same gov­ern­ment that seeks to pros­e­cute and exe­cute the accused may have even greater societal cost.”

Prosecutors argued that Mr. al-Nishiri’s con­fes­sions were vol­un­tary and thus admis­si­ble in court, but the judge disagreed. ​“Even if the 2007 state­ments were not obtained by tor­ture or cru­el, inhu­man, and degrad­ing treat­ment, they were derived from it,” said Judge Acosta (empha­sis in original). 

Defense attor­neys have long argued that the tor­ture and trau­ma endured dur­ing years-long inter­ro­ga­tions at CIA black­sites and Guantanamo Bay have caused per­ma­nent dam­age to all the 9/​11 and U.S.S. Cole defen­dants and should make them inel­i­gi­ble for the death penalty. 

The United States remains a glob­al out­lier in its use of the death penal­ty. The over­all world­wide trend toward abo­li­tion of the death penal­ty in law or prac­tice con­tin­ued in 2023 with devel­op­ments in Malaysia, Kenya, and Ghana. On July 4, Malaysia took a step clos­er to abo­li­tion by elim­i­nat­ing the manda­to­ry death penal­ty for 11 cap­i­tal offens­es; fol­low­ing this reform, sev­en death row pris­on­ers were resen­tenced to a 30 year life impris­on­ment term on November 14. In July, Kenyan President Dr. William Ruto com­mut­ed all death sen­tences imposed pri­or to November 21, 2022 to life sen­tences. On July 25, Ghana joined 28 oth­er African nations in abol­ish­ing the death penal­ty. Uganda is at odds with the trend toward abo­li­tion in sub-Saharan Africa. It passed the Anti-Homosexuality Act 2023 on May 29 that made the death penal­ty a pos­si­ble punishment for ​“aggra­vat­ed homo­sex­u­al­i­ty.” A 20-year-old man has recent­ly been charged under this new law.

Although the geo­graph­ic scope of cap­i­tal pun­ish­ment has nar­rowed, the total num­ber of known exe­cu­tions world­wide increased for the sec­ond year in a row. This year’s increase is attrib­ut­able to a surge in exe­cu­tions by Iran, which has report­ed­ly sur­passed 700 exe­cu­tions for the first time in eight years. Saudi Arabia (at least 121 exe­cu­tions as of November 8) and Somalia (at least 55 exe­cu­tions as of November 30) have the sec­ond and third high­est num­ber of report­ed exe­cu­tions in the world. 

Though the United States has at times joined the inter­na­tion­al com­mu­ni­ty in con­demn­ing the unlaw­ful actions of fel­low reten­tion­ist coun­tries, the crit­i­cism has lim­it­ed impact giv­en the fact that the Inter-American Commission on Human Rights (IACHR)’s pre­cau­tion­ary mea­sures for American death-sen­­tenced pris­on­ers are fre­quent­ly ignored. This year, the IACHR grant­ed pre­cau­tion­ary mea­sures to South Carolina pris­on­er Richard Moore and to Missouri pris­on­er Michael Tisius; Mr. Tisius was exe­cut­ed on June 6.

Secrecy shields much of the infor­ma­tion about the use of cap­i­tal pun­ish­ment in the U.S. and in many reten­tion­ist coun­tries. China, Vietnam, and North Korea clas­si­fy infor­ma­tion relat­ing to the death penal­ty, such as num­ber of death sen­tences and exe­cu­tions, as state secrets. China is esti­mat­ed to exe­cute thou­sands of peo­ple per year, mak­ing it the world’s lead­ing exe­cu­tion­er, and North Korea has exe­cut­ed at least 17 peo­ple this year. In Iran, the Revolutionary Court has report­ed­ly con­vict­ed and sen­tenced to death indi­vid­u­als with­out ade­quate coun­sel in quick, secret tri­als, rou­tine­ly char­ac­ter­ized by human rights advo­cates as unfair and lack­ing due process. 

Ill-treat­­ment of pris­on­ers or tri­als based on infor­ma­tion obtained through tor­ture are pro­hib­it­ed under inter­na­tion­al law. Some coun­tries, includ­ing Iran, Vietnam, and Saudi Arabia, have exe­cut­ed indi­vid­u­als this year despite seri­ous alle­ga­tions of tor­ture. In Vietnam, Le Van Manh was exe­cut­ed amidst numer­ous appeals from the inter­na­tion­al com­mu­ni­ty to spare his life. ​“I am dis­turbed by the exe­cu­tion of Le Van Manh despite calls for clemen­cy, in light of seri­ous doubts about the fair­ness of his tri­al pro­ceed­ings and cred­i­ble alle­ga­tions of tor­ture or ill-treat­­ment to extract a con­fes­sion,” said Mr. Tidball-Binz.

The International Covenant on Civil and Political Rights per­mits the use of the death penalty for ​“the most seri­ous offens­es,” defined as inten­tion­al killing, in reten­tion­ist coun­tries; only two reten­tion­ist coun­tries, Jamaica and Saint Vincent and the Grenadines, fol­low this stan­dard. In 2023, many peo­ple were charged and exe­cut­ed for non-ser­i­ous offens­es, such as drug-relat­ed offens­es and polit­i­cal speech. As of October 10, 305 exe­cu­tions in Iran, or 57%, have been the result of drug-relat­ed charges, mark­ing a dra­mat­ic increase from the pre­vi­ous year’s num­ber of 180 drug-relat­ed exe­cu­tions. Saudi Arabia con­tin­ues to exe­cute peo­ple for drug-relat­ed crimes after resum­ing in November 2022. In the 54^th ses­sion of the UN Human Rights Council, Saudi Arabia led a pro­pos­al to remove para­graphs in a pro­posed res­o­lu­tion con­demn­ing cap­i­tal pun­ish­ment for drug-relat­ed crimes, empha­siz­ing state sov­er­eign­ty in estab­lish­ing appro­pri­ate legal pun­ish­ments; the pro­pos­al was reject­ed. Singapore has noto­ri­ous­ly strict laws on drug pos­ses­sion, pre­scrib­ing the death penal­ty for peo­ple con­vict­ed of traf­fick­ing more than 15 grams of hero­in, 30 grams of cocaine, 250 grams of metham­phet­a­mines, or 500 grams of cannabis. As of July 28, at least four peo­ple were exe­cut­ed for drug-relat­ed offens­es in Singapore. Pakistan has sen­tenced sev­er­al peo­ple to death for shar­ing blas­phe­mous con­tent on social media. Saudi Arabia sen­tenced a retired school­teacher to death for retweet­ing crit­i­cism of the gov­ern­ment on social media. Iran exe­cut­ed at least five pro­test­ers on secu­ri­­ty-relat­ed charges and two for blas­phe­my. In North Korea, nine peo­ple were pub­licly exe­cut­ed for oper­at­ing a beef dis­tri­b­u­tion ring, one ware­house man­ag­er for alleged­ly steal­ing 20,000 dos­es of peni­cillin, and two women for report­ed­ly watch­ing South Korean television programs.

Vulnerable pop­u­la­tions, such as the very poor, peo­ple with seri­ous men­tal impair­ments, and juve­niles, as well as peo­ple from eth­nic, reli­gious, or racial minori­ties, are over­rep­re­sent­ed on death rows across most reten­tion­ist coun­tries. At least three juve­niles are believed to have been exe­cut­ed in Iran, and the Baluch pop­u­la­tion accounts for 21% of all exe­cu­tions and 31% of drug-relat­ed exe­cu­tions in 2023 (as of October 10) despite com­pris­ing only 2 – 5% of Iran’s pop­u­la­tion. 90% of those exe­cut­ed for secu­ri­­ty-relat­ed charges in Iran in the last 13 years were Kurdish (51%), Baluch (28%), and Arab (15%). Despite a 2020 roy­al decree order­ing the imple­men­ta­tion of a 2018 law abol­ish­ing the death penal­ty for juve­niles, at least nine chil­dren in Saudi Arabia face the death penal­ty. In June, Saudi Arabia exe­cut­ed two Bahraini Shi’a on ter­ror­ism-relat­ed charges after what Amnesty International described as a ​“gross­ly unfair tri­al.” These two are among at least 16 exe­cu­tions of Shiites in Saudi Arabia this year.

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The Death Penalty Information Center (DPIC) is a nation­al non-prof­it orga­ni­za­tion whose mis­sion is to serve the media, pol­i­cy­mak­ers, and the gen­er­al pub­lic with data and analy­sis on issues con­cern­ing cap­i­tal pun­ish­ment and the peo­ple it affects. DPIC does not take a posi­tion on the death penal­ty itself but is crit­i­cal of prob­lems in its appli­ca­tion. This report was writ­ten by DPIC’s Executive Director Robin M. Maher and Managing Director Anne Holsinger, with the assis­tance of DPIC staff (Hayley Bedard, Tiana Herring, Dane Lindberg, Nina Motazedi, Leah Roemer, and Rickelle Williams) and interns (Skylar Bates and Isabel Carles). Further sources for facts and quo­ta­tions are avail­able upon request. The Center is fund­ed through the gen­eros­i­ty of indi­vid­ual donors and foun­da­tions, includ­ing the Roderick and Solange MacArthur Justice Center; the Fund for Nonviolence; M. Quinn Delaney; and the Tides Foundation. Funding for DPIC​’s law fel­low posi­tion was pro­vid­ed in part by the UC Berkeley School of Law. The views expressed in this report are those of DPIC and do not nec­es­sar­i­ly reflect the opin­ions of its donors.