The Death Penalty in 2022: Year End Report

Key Findings

• Eighth con­sec­u­tive year with few­er than 30 exe­cu­tions and 50 new death sentences
• Botched exe­cu­tions and pro­to­col errors lead to halts in Alabama and Tennessee
• Executions heav­i­ly con­cen­trat­ed in few juris­dic­tions – more than half in Oklahoma and Texas

Note: In March 2023, DPIC learned of one addi­tion­al death sen­tence that was imposed in 2022: Leo Boatman, a white male defen­dant, was sen­tenced to death on November 9, 2022 in Bradford County, Florida, for the mur­der of Billy Chapman, a white male. Boatman’s death sen­tence brings the total to 21. The text below does not reflect that death sentence.

In a year awash with incen­di­ary polit­i­cal adver­tis­ing that drove the public’s per­cep­tion of ris­ing crime to record highs, pub­lic sup­port for cap­i­tal pun­ish­ment and jury ver­dicts for death remained near fifty-year lows. Defying con­ven­tion­al polit­i­cal wis­dom, near­ly every mea­sure of change — from new death sen­tences imposed and exe­cu­tions con­duct­ed to pub­lic opin­ion polls and elec­tion results — point­ed to the con­tin­u­ing dura­bil­i­ty of the more than 20-year sus­tained decline of the death penal­ty in the United States.

The Gallup crime sur­vey, admin­is­tered in the midst of the midterm elec­tions while the cap­i­tal tri­al for the 2018 mass shoot­ing at Marjory Stoneman Douglas High School in Florida was under­way, found that sup­port for cap­i­tal pun­ish­ment remained with­in one per­cent­age point of the half-cen­tu­ry lows record­ed in 2020 and 2021. The 20 new death sen­tences imposed in 2022 are few­er than in any year before the pan­dem­ic, and just 2 high­er than the record lows of the pri­or two years. With the excep­tion of the pan­dem­ic years of 2020 and 2021, the 18 exe­cu­tions in 2022 are the fewest since 1991.

One by one, states con­tin­ued their move­ment away from the death penal­ty. On December 13, 2022, Oregon Governor Kate Brown announced the com­mu­ta­tion of the cap­i­tal sen­tences of all 17 death-row pris­on­ers and instruct­ed cor­rec­tions offi­cials to begin dis­man­tling the state’s exe­cu­tion cham­ber. The com­mu­ta­tions com­plet­ed what she called the ​“near abo­li­tion” of the death penal­ty by the state leg­is­la­ture in 2019. Thirty-sev­en states — near­ly three-quar­ters of the coun­try — have now abol­ished the death penal­ty or not car­ried out an exe­cu­tion in more than a decade.

For the eighth con­sec­u­tive year, few­er than 30 peo­ple were exe­cut­ed and few­er than 50 peo­ple were sen­tenced to death. The five-year aver­age of new death sen­tences, 26.6 per year, is the low­est in 50 years. The five-year aver­age of exe­cu­tions, 18.6 per year, is the low­est in more than 30 years, a 74% decline over the course of one decade. Death row declined in size for the 21^st con­sec­u­tive year, even before Governor Brown com­mut­ed the sen­tences of the 17 pris­on­ers on Oregon’s death row.

2022 could be called ​“the year of the botched exe­cu­tion” because of the high num­ber of states with failed or bun­gled exe­cu­tions. Seven of the 20 exe­cu­tion attempts were vis­i­bly prob­lem­at­ic — an aston­ish­ing 35% — as a result of exe­cu­tion­er incom­pe­tence, fail­ures to fol­low pro­to­cols, or defects in the pro­to­cols them­selves. On July 28, 2022, exe­cu­tion­ers in Alabama took three hours to set an IV line before putting Joe James Jr. to death, the longest botched lethal injec­tion exe­cu­tion in U.S. his­to­ry. Executions were put on hold in Alabama, Tennessee, Idaho, and South Carolina when the states were unable to fol­low exe­cu­tion pro­to­cols. Idaho sched­uled an exe­cu­tion with­out the drugs to car­ry it out. One exe­cu­tion did not occur in Oklahoma because the state did not have cus­tody of the pris­on­er and had not made arrange­ments for his trans­fer before sched­ul­ing him to be put to death.

Although states per­sist­ed in veil­ing the exe­cu­tion process in secre­cy, what reporters were able to see, and what autop­sies or failed exe­cu­tions revealed, was shock­ing. Witnesses report­ed sig­nif­i­cant prob­lems in all three of Arizona’s exe­cu­tions, includ­ing the ​“sur­re­al” spec­ta­cle of a pos­si­bly inno­cent man assist­ing his exe­cu­tion­ers in find­ing a vein in which to inject the lethal chem­i­cals. An inde­pen­dent autop­sy of Alabama pris­on­er Joe James Jr.‘s body revealed what a reporter who observed those pro­ceed­ings described as ​“car­nage.” The next two exe­cu­tions were called off while in progress because of the exe­cu­tion teams inabil­i­ty to set an IV line. Alabama Governor Kay Ivey called for a pause in future exe­cu­tions and ordered an inter­nal ​“top-to-bot­tom review” of the state’s execution process.

Tennessee Governor Bill Lee stayed the exe­cu­tion of Oscar Smith when, short­ly before it was set to occur, he learned that the exe­cu­tion team had failed to test the chem­i­cals for impu­ri­ties and con­t­a­m­i­na­tion. Citing an ​“over­sight” in exe­cu­tion prepa­ra­tions, he can­celed all pend­ing exe­cu­tions and com­mis­sioned a for­mer fed­er­al pros­e­cu­tor to under­take an inde­pen­dent review of the process.

South Carolina attempt­ed to sched­ule two exe­cu­tions with­out hav­ing a com­plete exe­cu­tion pro­to­col in place. Under state law, if lethal injec­tion is unavail­able, pris­on­ers are forced to choose between elec­tro­cu­tion or fir­ing squad, but the state had no plan for fir­ing squad exe­cu­tions. The state supreme court halt­ed lat­er sched­uled exe­cu­tions to allow a tri­al court to adju­di­cate a chal­lenge to the con­sti­tu­tion­al­i­ty of those meth­ods. After a tri­al on the issue, the court ruled that they vio­lat­ed South Carolina’s con­sti­tu­tion­al pro­hi­bi­tion against ​“cru­el, unusu­al, and corporal punishments.”

A small num­ber of juris­dic­tions that have his­tor­i­cal­ly been the heav­i­est users of cap­i­tal pun­ish­ment car­ried out a major­i­ty of exe­cu­tions and imposed most death sen­tences. Executions were con­cen­trat­ed in a hand­ful of states – Oklahoma, Texas, Alabama, and Arizona – that have his­tor­i­cal­ly been among the most pro­lif­ic exe­cu­tion­ers. But in most states and coun­ties, cul­tur­al and polit­i­cal trends toward crim­i­nal legal reform and racial jus­tice kept the death penal­ty out of favor, even as media and politi­cians esca­lat­ed fears of crime. In the midst of polit­i­cal rhetoric rem­i­nis­cent of the peak death penal­ty years of the 1990s, vot­ers select­ed gov­er­nors in the three states with mora­to­ria on exe­cu­tions. Candidates who said they would not sign death war­rants won in all three. Reform pros­e­cu­tors were elect­ed or re-elect­ed across the coun­try: in Dallas and San Antonio, Texas; Shelby County, Tennessee; Oklahoma County, Oklahoma; and Alameda County, California; among others.

The 18 exe­cu­tions car­ried out this year raised seri­ous con­cerns about the appli­ca­tion of the death penal­ty and the meth­ods used to car­ry it out. Among those exe­cut­ed this year were pris­on­ers with seri­ous men­tal ill­ness, brain dam­age, intel­lec­tu­al dis­abil­i­ty, and strong claims of inno­cence. In most juris­dic­tions, these cas­es would not even be cap­i­tal­ly pros­e­cut­ed today. Two pris­on­ers were exe­cut­ed over the objec­tions of the vic­tims’ fam­i­lies, and two oth­ers were exe­cut­ed despite requests from pros­e­cu­tors to with­draw their death warrants.

The arbi­trari­ness of cap­i­tal pun­ish­ment was evi­dent in sen­tenc­ing deci­sions. Twenty peo­ple were sen­tenced to death in twelve states. Among those sen­tenced to death were at least four with sig­nif­i­cant trau­ma, one with brain dam­age, one who waived his right to coun­sel, and one who waived jury sen­tenc­ing and asked for a death sen­tence. At the same time, sev­er­al high­ly aggra­vat­ed mur­der cas­es result­ed in life sen­tences, includ­ing the 2018 mass shoot­ing at Marjory Stoneman Douglas High School in Florida and a high-pro­file quadru­ple-mur­der in Ohio. The jux­ta­po­si­tion of those cas­es that result­ed in death sen­tences and those that result­ed in life with­out parole belies the myth that the death penal­ty is reserved for the ​“worst of the worst.”

Innocence cas­es attract­ed nation­al atten­tion and sup­port from unlike­ly actors. A bipar­ti­san group of Oklahoma leg­is­la­tors released the find­ings of an inde­pen­dent inves­ti­ga­tion into the case of Richard Glossip. Representative Kevin McDugle, a Republican and self-described sup­port­er of cap­i­tal pun­ish­ment, was so con­vinced by the evi­dence of Glossip’s inno­cence that he vowed, ​“If we put Richard Glossip to death I will fight in this state to abol­ish the death penal­ty sim­ply because the process is not pure. I do believe in the death penal­ty, I believe it needs to be there, but the process to take some­one to death has to be of the high­est integri­ty.” The Texas case of Melissa Lucio sim­i­lar­ly brought togeth­er a bipar­ti­san group of leg­is­la­tors in sup­port of clemen­cy. Both Glossip and Lucio remain on death row; Glossip’s exe­cu­tion was delayed until 2023 by Governor Kevin Stitt, while Lucio’s was delayed indef­i­nite­ly by a rul­ing from the Texas Court of Criminal Appeals.

Two peo­ple – Samuel Randolph IV in Pennsylvania and Marilyn Mulero in Illinois – were exon­er­at­ed, and DPIC’s research found two addi­tion­al old­er exon­er­a­tions, bring­ing the total to 190 peo­ple exon­er­at­ed from death row since 1973. DPIC released its Death Penalty Census, which ana­lyzed the sta­tus of more than 9,700 death sen­tences imposed from 1972 to January 1, 2021. The data reveal that the sin­gle most like­ly out­come of a death sen­tence imposed in the United States is that the sen­tence or con­vic­tion is ulti­mate­ly over­turned and not re-imposed. Nearly half of the sen­tences (49.9%) were reversed as a result of court deci­sions. By com­par­i­son, few­er than one in six (15.7%) death sen­tences end­ed in exe­cu­tion. DPIC’s ongo­ing pros­e­cu­to­r­i­al account­abil­i­ty project iden­ti­fied more than 550 tri­als in which cap­i­tal con­vic­tions or death sen­tences were over­turned or wrong­ful­ly con­vict­ed death-row pris­on­ers exon­er­at­ed as a result of pros­e­cu­to­r­i­al mis­con­duct — more than 5.6% of all death sen­tences imposed in the past fifty years.

As the United States marked 50 years of the mod­ern death penal­ty sys­tem, the arbi­trari­ness and unre­li­a­bil­i­ty that led the Furman court to strike down cap­i­tal pun­ish­ment per­sist. As the sys­temic flaws of the death penal­ty have become clear­er and more pro­nounced, it is being reg­u­lar­ly employed by just a hand­ful of out­lier juris­dic­tions that pur­sue death sen­tences and exe­cu­tions with lit­tle regard for human rights con­cerns, trans­paren­cy, fair­ness, or even their own abil­i­ty to suc­cess­ful­ly car­ry it out.

Key Findings

• Oregon gov­er­nor com­mutes its entire death row
• Oklahoma sched­ules 25 exe­cu­tions over a 29-month peri­od, seek­ing to put to death 58% of its death row
• Kentucky becomes sec­ond state to pass seri­ous men­tal illness exemption
• Three states – Idaho, Florida, and Mississippi – expand secre­cy surrounding executions

Death penal­ty devel­op­ments reflect­ed the split between the grow­ing num­ber of states that have aban­doned the use of cap­i­tal pun­ish­ment in law or prac­tice and the extreme con­duct of a small num­ber of out­lier states and coun­ties that are attempt­ing to car­ry out exe­cu­tions. At both the state and fed­er­al lev­el, leg­is­la­tors grap­pled with the racial injus­tice in the crim­i­nal legal sys­tem. Two states took action to address ques­tions of men­tal health and the death penal­ty. Meanwhile, three states took action to avoid pub­lic over­sight of exe­cu­tions, and a fourth under­took an unprece­dent­ed spree of executions.

Legislation

Reform leg­is­la­tion passed on the state and fed­er­al lev­el, while three states passed laws intend­ed to expand exe­cu­tion secre­cy and reduce pub­lic over­sight of the execution process.

The California leg­is­la­ture and U.S. Congress took action to redress racism in the legal sys­tem. A fed­er­al law, first pro­posed near­ly a cen­tu­ry ago, made lynch­ing a fed­er­al crime. At the sign­ing cer­e­mo­ny, President Biden drew a his­tor­i­cal link between the mur­der of Emmett Till, for whom the bill was named, and the 2020 mur­der of Ahmaud Arbery. ​“Racial hate isn’t an old prob­lem; it’s a per­sis­tent prob­lem,” Biden said.

California enact­ed the Racial Justice Act for All, a mea­sure that retroac­tive­ly applied the state’s 2020 Racial Justice Act to pris­on­ers already sen­tenced to death and oth­ers con­vict­ed of felonies. Effective January 1, 2023, the expand­ed law per­mits death-row pris­on­ers to chal­lenge con­vic­tions obtained or sen­tences imposed ​“on the basis of race, eth­nic­i­ty, or national origin.”

Kentucky became the sec­ond state to pass a seri­ous men­tal ill­ness exemp­tion, bar­ring the death penal­ty for peo­ple diag­nosed as seri­ous­ly men­tal­ly ill. Kentucky pro­vides for a nar­row exemp­tion, requir­ing that a defen­dant had a doc­u­ment­ed diag­no­sis and active symp­toms of men­tal ill­ness at the time of his or her offense. Ohio passed a some­what broad­er seri­ous men­tal ill­ness exemp­tion in 2021. On January 31, 2022, David Sneed — who faced an April 2023 exe­cu­tion date — became the third per­son removed from death row under the statute.

Voters in Alabama over­whelm­ing­ly approved a con­sti­tu­tion­al amend­ment to require the gov­er­nor to pro­vide advance notice to the attor­ney gen­er­al and the victim’s fam­i­ly before grant­i­ng a reprieve or com­mu­ta­tion to any per­son sen­tenced to death. The amend­ment, which had no orga­nized oppo­si­tion, is expect­ed to have lit­tle prac­ti­cal impact: Alabama gov­er­nors have com­mut­ed only one death sen­tence in the past fifty years, and none since 1999.

Idaho, Florida, and Mississippi each passed laws designed to make it eas­i­er for the states to per­form exe­cu­tions by reduc­ing trans­paren­cy in the exe­cu­tion process. New laws in Idaho and Florida will con­ceal from the pub­lic the iden­ti­ty of pro­duc­ers and sup­pli­ers of exe­cu­tion drugs. In both states, pro­po­nents of the bills claimed, with­out evi­dence, that the mea­sures were nec­es­sary to pro­tect drug sup­pli­ers from intim­i­da­tion or harass­ment. Similar unfound­ed claims have been made in oth­er states to jus­ti­fy secre­cy poli­cies. 
 

Idaho’s bill ini­tial­ly failed on a tie vote in com­mit­tee. Historically, that had meant that that a bill was off the table for the remain­der of the leg­isla­tive ses­sion. But in a con­tro­ver­sial par­lia­men­tary deci­sion that devi­at­ed from past leg­isla­tive prac­tice, com­mit­tee chair­man Sen. Todd Lakey ruled that a tie vote is a ​“nul­li­ty” that ​“decides noth­ing” and allowed the com­mit­tee to recon­sid­er the bill. In the first test of source secre­cy after the pas­sage of the bill, the Idaho Department of Corrections called off the sched­uled December 15, 2022 exe­cu­tion of Gerald Pizzuto, Jr. say­ing it was unable to find any source will­ing to sell it exe­cu­tion drugs.
 

Mississippi imple­ment­ed a law giv­ing unprece­dent­ed dis­cre­tion to the Commissioner of Corrections in deter­min­ing the method of exe­cu­tion. Prior to July 1, 2022, the state gave pris­on­ers a choice of lethal injec­tion, elec­tro­cu­tion, fir­ing squad, or nitro­gen hypox­ia. Under the new law, the Commissioner must noti­fy a pris­on­er of which method will be used with­in sev­en days of an exe­cu­tion war­rant being issued. There is no pro­vi­sion for trans­paren­cy regard­ing the Commissioner’s selec­tion of the method, and the law pro­vides no guid­ance on how the method should be selected.

Legislators in fif­teen states and U.S. Congress intro­duced bills to abol­ish the death penal­ty. Repeal bills received seri­ous con­sid­er­a­tion in two states: Utah and Ohio. In Utah, an abo­li­tion bill spon­sored by two Republican law­mak­ers failed in com­mit­tee on a 6 – 5 vote. After the vote, bill spon­sor Rep. V. Lowry Snow said, ​“This is not a mat­ter of if, it is when the time is right, Utah will move for­ward.” A bipar­ti­san repeal bill in Ohio is still pend­ing, after four hear­ings were held in 2021.

Other State Developments

Outgoing Oregon Governor Kate Brown announced on December 13 the com­mu­ta­tion of the death sen­tences of all 17 peo­ple on Oregon’s death row. Governor Brown com­mut­ed the death sen­tences to sen­tences of life with­out parole and ordered the dis­man­tling of the state’s execution chamber.

Challenges to meth­ods of exe­cu­tion remained at the fore­front of death penal­ty lit­i­ga­tion and controversy.

In South Carolina, the exe­cu­tions of Brad Sigmon and Richard Moore were halt­ed in April to allow for a legal chal­lenge to the state’s exe­cu­tion pro­to­cols. The state had first set exe­cu­tions for the men by lethal injec­tion with­out hav­ing a sup­ply of drugs to car­ry them out, then sched­uled exe­cu­tions by elec­tric chair with­out com­ply­ing with a state-law require­ment that they be pro­vid­ed the option to die by fir­ing squad. In Moore’s legal fil­ing, he said, ​“I believe this elec­tion is forc­ing me to choose between two uncon­sti­tu­tion­al meth­ods of exe­cu­tion.” In September, a South Carolina tri­al court issued an injunc­tion against exe­cu­tions by fir­ing squad or elec­tric chair after hear­ing four days of expert tes­ti­mo­ny. Judge Jocelyn Newman found that the meth­ods vio­lat­ed the state constitution’s pro­hi­bi­tion on ​“cru­el, unusu­al, and cor­po­ral pun­ish­ments.” The South Carolina Supreme Court is sched­uled to hear the appeal in the case January 5, 2023.

Governors in two south­ern states put exe­cu­tions on hold after seri­ous prob­lems in car­ry­ing out their lethal-injec­tion pro­to­cols. Tennessee Governor Bill Lee announced on May 2 that he was paus­ing all exe­cu­tions sched­uled for 2022 and order­ing an ​“inde­pen­dent review” of the state’s exe­cu­tion pro­to­col to address a ​“tech­ni­cal over­sight” that led him to halt Oscar Smith’s exe­cu­tion less than a half-hour before it was sched­uled to be car­ried out on April 21, 2022. In a series of arti­cles pub­lished lat­er in May, The Tennessean revealed mis­takes and ques­tion­able con­duct at every step of the lethal-injec­tion process, from the com­pound­ing of the exe­cu­tion drugs by a phar­ma­cy with a prob­lem­at­ic safe­ty his­to­ry, to test­ing pro­ce­dures, to the stor­age and han­dling of the drugs once they were in the pos­ses­sion of the Tennessee Department of Correction (TDOC).
 

In November, Alabama Governor Kay Ivey also halt­ed exe­cu­tions indef­i­nite­ly after the Alabama Department of Corrections (ADOC) botched three con­sec­u­tive exe­cu­tions. ADOC per­son­nel strug­gled for three hours behind a closed cur­tain to estab­lish an IV line to exe­cute Joe James Jr., in the longest botched lethal-injec­tion exe­cu­tion in U.S. his­to­ry. ADOC called off the exe­cu­tions of Alan Miller and Kenneth Smith when it became clear that the exe­cu­tion team would not be able to set an intra­venous exe­cu­tion line before the war­rant expired. Ivey called for a ​“top-to-bot­tom review” of the exe­cu­tion process, but unlike Tennessee’s inde­pen­dent inves­ti­ga­tion, Ivey direct­ed the Department of Corrections to inves­ti­gate its own mistakes.

Florida became the sev­enth state since 2017 to address the con­di­tions of con­fine­ment on death row. The state end­ed its prac­tice of auto­mat­i­cal­ly incar­cer­at­ing all death-sen­tenced pris­on­ers in per­ma­nent soli­tary con­fine­ment. The Florida Department of Corrections agreed to the action as part of a set­tle­ment of a fed­er­al civ­il rights law­suit brought by eight pris­on­ers who alleged that the state’s death-row con­di­tions were ​“extreme, debil­i­tat­ing, and inhu­mane, violate[d] con­tem­po­rary stan­dards of decen­cy, and pose[d] an unrea­son­able risk of seri­ous harm to the health and safe­ty.” Five oth­er states end­ed auto­mat­ic pro­longed soli­tary con­fine­ment for their death rows: Arizona, Louisiana, Pennsylvania, South Carolina, and Virginia (which sub­se­quent­ly abol­ished its death penal­ty). A sixth state, Oklahoma, has not end­ed its prac­tice of keep­ing death-row pris­on­ers in soli­tary con­fine­ment for 23 hours a day, but has imple­ment­ed some oth­er changes, includ­ing elim­i­nat­ing incar­cer­a­tion in win­dow­less cells, per­mit­ting con­tact vis­i­ta­tion, and pro­vid­ing some oppor­tu­ni­ty for outside recreation.

Denials of Meaningful Process

Throughout 2022, the few states that car­ried out exe­cu­tions exhib­it­ed a cal­lous dis­re­gard for fair process and pub­lic or judi­cial over­sight of their actions. The most notable exam­ple was Oklahoma, which sched­uled 25 exe­cu­tions over the course of 29 months. The state court’s exe­cu­tion orders came two weeks after the pris­on­ers filed notice in the U.S. Court of Appeals for the Tenth Circuit that they intend­ed to appeal fed­er­al dis­trict Judge Stephen Friot’s rul­ing uphold­ing the con­sti­tu­tion­al­i­ty of the state’s con­tro­ver­sial exe­cu­tion pro­to­col. Oklahoma began to exe­cute pris­on­ers before the Circuit Court could rule on the pris­on­ers’ appeal. The state pre­vi­ous­ly exe­cut­ed four pris­on­ers while the fed­er­al tri­al on the drug pro­to­col was pend­ing. Among those slat­ed for exe­cu­tion are pris­on­ers with seri­ous men­tal ill­ness, intel­lec­tu­al dis­abil­i­ty, trau­ma, and sig­nif­i­cant claims of inno­cence. Oklahoma exe­cut­ed two seri­ous­ly men­tal­ly ill pris­on­ers with­out judi­cial review of their claims of men­tal incom­pe­ten­cy and sched­uled anoth­er for exe­cu­tion even though he was incar­cer­at­ed in anoth­er juris­dic­tion and the state had not made arrange­ments for trans­fer of custody.

Alabama car­ried out — or attempt­ed to car­ry out — sev­er­al exe­cu­tions in 2022 in vio­la­tion of its own law. When the Alabama leg­is­la­ture autho­rized nitro­gen hypox­ia as a method of exe­cu­tion in 2018, it afford­ed pris­on­ers a nar­row 30-day win­dow in which to des­ig­nate it, rather than lethal injec­tion, as the means by which they would be put to death. Alabama pros­e­cu­tors then select­ed for exe­cu­tion pris­on­ers whom they believed had not des­ig­nat­ed nitro­gen hypox­ia as the method of their execution.

However, as the Alabama fed­er­al dis­trict court and the U.S. Court of Appeals for the Eleventh Circuit found, cor­rec­tions offi­cials ​“chose not to keep a log or list of those inmates who sub­mit­ted an elec­tion form choos­ing nitro­gen hypox­ia” and lost or mis­placed the elec­tion forms sub­mit­ted by some death-row pris­on­ers. Prison guards also col­lect­ed, but did not turn in, forms sub­mit­ted by oth­er pris­on­ers. Further, when it dis­trib­uted the forms, ADOC pro­vid­ed no expla­na­tions of the form or assis­tance in fill­ing it out to pris­on­ers with intel­lec­tu­al impair­ments. In court pro­ceed­ings over poten­tial vio­la­tions of con­demned pris­on­ers rights, the Alabama Attorney General’s office mate­ri­al­ly mis­rep­re­sent­ed the role prison offi­cials played in the des­ig­na­tion process and was sanc­tioned for its misconduct.

Lawyers for Matthew Reeves, an intel­lec­tu­al­ly dis­abled death-row pris­on­er, alleged that he would have opt­ed for exe­cu­tion by nitro­gen gas and that Alabama’s fail­ure to offer him accom­mo­da­tions for his intel­lec­tu­al dis­abil­i­ty vio­lat­ed his rights under the Americans with Disabilities Act (ADA). After review­ing thou­sands of pages of doc­u­ments and con­duct­ing a sev­en-hour hear­ing that includ­ed tes­ti­mo­ny from prison offi­cials and a defense men­tal health expert, the dis­trict court con­clud­ed that Reeves had demon­strat­ed a sub­stan­tial like­li­hood that he would suc­ceed on his ADA claim and issued a pre­lim­i­nary injunc­tion bar­ring the state ​“from exe­cut­ing [Reeves] by any method oth­er than nitro­gen hypox­ia before his [ADA] claim can be decid­ed on its mer­its.” A three-judge pan­el of the Eleventh Circuit unan­i­mous­ly affirmed the dis­trict court but in a 5 – 4 exe­cu­tion night vote on January 27, the U.S. Supreme Court vacat­ed the injunc­tion and Reeves was executed.

Alabama unsuc­cess­ful­ly attempt­ed to exe­cute Alan Miller on September 22 after he chal­lenged the state’s author­i­ty to exe­cute him by lethal injec­tion. Miller alleged that he had des­ig­nat­ed exe­cu­tion by nitro­gen hypox­ia and request­ed a copy of the form, but Alabama prison offi­cials said they had no record of his hav­ing sub­mit­ted the form. Judge R. Austin Huffaker, Jr. of the U.S. District Court for the Middle District of Alabama found that ​“Miller has pre­sent­ed con­sis­tent, cred­i­ble, and uncon­tro­vert­ed direct evi­dence that he sub­mit­ted an elec­tion form in the man­ner he says was announced to him by the [ADOC],” along with ​“cir­cum­stan­tial evi­dence” that ADOC lost or mis­placed his form. Huffaker issued an injunc­tion pro­hibit­ing the state from exe­cut­ing Miller by means oth­er than nitro­gen hypox­ia and the Eleventh Circuit denied Alabama’s motion to vacate the dis­trict court’s rul­ing. In a 5 – 4 vote, the U.S. Supreme Court lift­ed the injunc­tion and allowed the exe­cu­tion to pro­ceed, but Miller’s exe­cu­tion was called off when the exe­cu­tion team was unable to set an IV line.

Defendants in two states brought chal­lenges to the death-penal­ty jury selec­tion process. Both argued that the com­bi­na­tion of the ​“death-qual­i­fi­ca­tion” process — which dis­qual­i­fies poten­tial jurors from serv­ing in a cap­i­tal case because of their expressed oppo­si­tion to the death penal­ty — and dis­cre­tionary jury strikes dis­crim­i­na­to­ri­ly dis­en­fran­chised African American jurors and pro­duced unrep­re­sen­ta­tive juries inca­pable of reflect­ing the views of the community.

In North Carolina, lawyers for Wake County cap­i­tal defen­dant Brandon Hill pre­sent­ed a study by law pro­fes­sors Catherine M. Grosso and Barbara O’Brien that doc­u­ment­ed sta­tis­ti­cal­ly sig­nif­i­cant evi­dence of racial dis­par­i­ties in death-qual­i­fi­ca­tion. The study of eleven years of cap­i­tal pros­e­cu­tions in the coun­ty found that Black poten­tial jurors were removed ​“at 2.16 times the rate of their white coun­ter­parts.” Controlling for jurors who could have been excused for cause on oth­er grounds, they found that oth­er­wise qual­i­fied ​“Black venire mem­bers were removed on this basis at 2.27 times the rate of white venire mem­bers.” The prosecution’s racial­ly dis­parate exer­cise of dis­cre­tionary peremp­to­ry strikes fur­ther dilut­ed Black rep­re­sen­ta­tion on death penal­ty juries. Grosso and O’Brien found that the pros­e­cu­tion peremp­to­ri­ly ​“struck Black poten­tial jurors at 2.04 times the rate it struck white venire mem­bers.” Their research showed that “[t]he cumu­la­tive effect of the death qual­i­fi­ca­tion process and the state’s exer­cise of peremp­to­ry strikes meant that Black poten­tial jurors were removed at almost twice the rate of their rep­re­sen­ta­tion in the pop­u­la­tion of poten­tial jurors,” while white jurors were removed at 0.8 times their rep­re­sen­ta­tion in the general venire.

In Florida, lawyers rep­re­sent­ing Dennis Glover in his cap­i­tal resen­tenc­ing tri­al pre­sent­ed research from crim­i­nal jus­tice pro­fes­sor Dr. Jacinta M. Gau, who reviewed the jury selec­tion prac­tices in the 12 cap­i­tal cas­es tried in Duval County (Jacksonville) from 2010 through 2018. Dr. Gau found that 33.8% of Black poten­tial jurors were exclud­ed by death qual­i­fi­ca­tion, along with 38.0% of oth­er jurors of col­or, while only 15.5% of white jurors were exclud­ed. While Black jurors com­prised 25.9% of the gen­er­al venire, they con­sti­tut­ed 39.3% of those dis­qual­i­fied because of their views against the death penal­ty. Likewise, while oth­er jurors of col­or (Latinx, Asian, or oth­er race) com­prised 8.9% of the over­all jury pool, they con­sti­tut­ed 15.2% of those dis­qual­i­fied because of oppo­si­tion to cap­i­tal pun­ish­ment. By con­trast, white jurors com­prised 65.4% of the entire venire, but only 45.5% of death-qual­i­fi­ca­tion strikes. Again, the prosecutor’s dis­cre­tionary strikes com­pound­ed the racial dis­par­i­ties: ​“ful­ly two thirds of Black women oth­er­wise eli­gi­ble, qual­i­fied, and will­ing to serve were exclud­ed by the com­bi­na­tion of death qual­i­fi­ca­tion and pros­e­cu­tor peremp­to­ry strikes, as were 55% of Black men,” Gau wrote.

Research and Investigations

On June 29, 2022, timed to coin­cide with the fifti­eth anniver­sary of the U.S. Supreme Court’s deci­sion in Furman v. Georgia that ush­ered in the mod­ern era of the U.S. death penal­ty, DPIC released our Death Penalty Census, our effort to iden­ti­fy and doc­u­ment every death sen­tence imposed in the U.S. since Furman. The cen­sus cap­tures more than 9,700 death sen­tences imposed between the Furman rul­ing and January 1, 2021.

The data from the cen­sus doc­u­ment that 49 years into the mod­ern era, the sin­gle most like­ly out­come of a death sen­tence imposed in the United States is by far that the defendant’s con­vic­tion or death sen­tence will be over­turned and not re-imposed. Nearly half of the death sen­tences imposed since 1972 (49.9%) have been reversed as a result of court deci­sions. The next most like­ly out­come (23.9%) is that the sen­tence is still active, and the defen­dant is still on death row. By com­par­i­son, few­er than one in six (15.7%) death sen­tences have end­ed in exe­cu­tion. 7.3% of death sen­tences effec­tive­ly became death-in-prison life sen­tences, as death-row pris­on­ers died before their sen­tence was car­ried out or while their appeals were still pend­ing in the courts. Another 2.9% of sen­tences were decap­i­tal­ized by exec­u­tive grants of clemency.

Our analy­sis of the data con­firmed the increas­ing geo­graph­ic arbi­trari­ness of the U.S. death penal­ty and that it is dis­pro­por­tion­ate­ly car­ried out in a small num­ber of states and coun­ties char­ac­ter­ized by out­lier prac­tices and lack of mean­ing­ful judi­cial process. Fewer than 2.4% of all coun­ties in the U.S. (just 75 coun­ties) account­ed for half of all death sen­tences imposed in state courts since 1972.

Prosecutions in just five coun­ties account­ed for more than 1/​5 of all exe­cu­tions in the U.S., while pros­e­cu­tions in just 2% of U.S. coun­ties account­ed for half of all U.S. exe­cu­tions. 84% of U.S. coun­ties had not had any exe­cu­tions in a half-century.

Just 34 coun­ties — few­er than 1.1% of all the coun­ties in the U.S. — account­ed for half of every­one on death row in U.S. state death rows. 2% of U.S. coun­ties account­ed for 60.8% of all state death-row pris­on­ers. 82.8% of U.S. coun­ties did not have any­one on death row.

Outlier prac­tices dis­pro­por­tion­ate­ly con­tributed to death sen­tences and exe­cu­tions. Counties in Alabama and Florida, which autho­rized non-unan­i­mous death sen­tences, imposed more death sen­tences and had high­er per capi­ta death-sen­tenc­ing rates and cur­rent death-row pop­u­la­tions than oth­er coun­ties of sim­i­lar size. States with the high­est exe­cu­tion rates also tend­ed to have the worst access to mean­ing­ful judi­cial review. More than 100 peo­ple were exe­cut­ed in Texas after U.S. Supreme Court case prece­dent had already estab­lished the uncon­sti­tu­tion­al­i­ty of their death sen­tences. 36.4% of all Florida exe­cu­tions, or 1 in every 2.75 exe­cu­tions, came despite U.S. Supreme Court deci­sions clear­ly estab­lish­ing the uncon­sti­tu­tion­al­i­ty of their death sentences.

Our pros­e­cu­to­r­i­al account­abil­i­ty project, the first results of which were also released on the 50^th anniver­sary of Furman, found that offi­cial mis­con­duct is ram­pant in death penal­ty cas­es. Our research, which is still ongo­ing, iden­ti­fied more than 550 cas­es in which a cap­i­tal con­vic­tion or death sen­tence was over­turned or a death-row pris­on­er was exon­er­at­ed as a result of pros­e­cu­to­r­i­al mis­con­duct. That means that at least 5.6% of all death sen­tences that have been imposed in the United States since 1972 have been reversed because of pros­e­cu­to­r­i­al mis­con­duct or result­ed in a misconduct-related exoneration.

An impor­tant inves­ti­ga­tion by National Public Radio shined a light on one of the less appre­ci­at­ed con­se­quences of cap­i­tal pun­ish­ment: its debil­i­tat­ing impact on the prison per­son­nel who are tasked with car­ry­ing it out. Reporter Chiara Eisner inter­viewed 26 cur­rent or for­mer cor­rec­tions work­ers and oth­ers who had been involved in exe­cu­tions car­ried out by sev­en­teen states and the fed­er­al gov­ern­ment, find­ing that cor­rec­tions per­son­nel who par­tic­i­pate in exe­cut­ing pris­on­ers expe­ri­ence emo­tion­al trau­ma so pro­found that it often changes their views about capital punishment.

“Most of the work­ers NPR inter­viewed report­ed suf­fer­ing seri­ous men­tal and phys­i­cal reper­cus­sions,” Eisner report­ed. ​“But only one per­son said they received any psy­cho­log­i­cal sup­port from the gov­ern­ment to help them cope.” Of all the peo­ple whose work required them to wit­ness exe­cu­tions in 13 states — Virginia, Nevada, Florida, California, Ohio, South Carolina, Arizona, Nebraska, Texas, Alabama, Oregon, South Dakota, and Indiana — none said they still sup­port the death penal­ty, includ­ing those who were in favor of cap­i­tal pun­ish­ment when they start­ed their jobs.

Key Findings

• Eighth con­sec­u­tive year with few­er than 30 exe­cu­tions and 50 new death sentences
• Two states – Oklahoma and Texas – per­formed 56% of the year’s executions
• No coun­ties imposed more than a sin­gle death sentence

For the eighth con­sec­u­tive year, few­er than 50 new death sen­tences were imposed in the United States and few­er than 30 exe­cu­tions were car­ried out. Six states car­ried out exe­cu­tions, while twelve imposed new death sen­tences. With the excep­tion of the pan­dem­ic years of 2020 and 2021, the 20 new death sen­tences — just two above last year’s record low of 18 — were the fewest imposed in any year in the U.S. in the past half-cen­tu­ry. The 18 exe­cu­tions also were few­er than in any pre-pan­dem­ic year since 1991.

Death sen­tences and exe­cu­tions have both fall­en dra­mat­i­cal­ly from their peak usage in the 1990s. Death sen­tences in 2022 were 93.7% below the peak of 315 in 1996. Executions have dropped by 82% since their peak of 98 in 1999. The num­ber of peo­ple on death row across the coun­try also declined for the 21^st con­sec­u­tive year, with resen­tenc­ings to life or less again out­pac­ing the num­ber of new death sen­tences. As of April 1, there were 2,414 peo­ple on death row.

Geographically, the year’s trends were a micro­cosm of the last 50 years of the U.S. death penal­ty. Oklahoma and Texas per­formed more exe­cu­tions than any oth­er states, com­bin­ing for more than half (56%) of the year’s exe­cu­tions. Since 1976, those two states have per­formed about 45% of all exe­cu­tions in the U.S. At a coun­ty lev­el, just 13 coun­ties car­ried out exe­cu­tions, and just two — Oklahoma County, Oklahoma and Maricopa County, Arizona — car­ried out more than a sin­gle exe­cu­tion. Both of those coun­ties are among the 20 most pro­lif­ic exe­cut­ing coun­ties in the last 50 years. Thirteen (65%) of the death sen­tences imposed in 2022 were hand­ed down in the five states with the largest death row pop­u­la­tions – California (2 new sen­tences), Florida (4), Texas (2), Alabama (3), and North Carolina (2), which also are the only states to impose mul­ti­ple death sen­tences dur­ing the year.

Oklahoma County’s four exe­cu­tions in 2022 brought its total to 46 since 1976. It now ranks fourth in the coun­try in the num­ber of exe­cu­tions, and no coun­ty out­side of Texas is respon­si­ble for more. The five most pro­lif­ic exe­cut­ing coun­ties (the oth­ers, all in Texas, are Harris, Dallas, Bexar, and Tarrant) have car­ried out more than one-fifth of all exe­cu­tions in the U.S. in the last fifty years.

People of col­or were again over­rep­re­sent­ed among those exe­cut­ed in 2022, as were cas­es involv­ing white vic­tims. Eight of the 18 pris­on­ers exe­cut­ed were peo­ple of col­or: five were Black, one was Asian, one Native American, and one Latino. Five of the eight peo­ple of col­or (62.5%) were exe­cut­ed for killing white vic­tims (3 Black defen­dants, one Latino, and one Native American). Only one of the 10 white defen­dants (10.0%), Benjamin Cole, was exe­cut­ed for killing a per­son of col­or (Native American), and no one was exe­cut­ed for an inter­ra­cial mur­der of a Black victim.

Twelve states imposed new death sen­tences this year. Florida sen­tenced more peo­ple to death than any oth­er states, with four.

The over­lap between exe­cut­ing states and sen­tenc­ing states illus­trates the con­tin­ued geo­graph­ic nar­row­ing of death penal­ty use. The six states that car­ried out exe­cu­tions in 2022 imposed 41% (9) of the year’s death sen­tences. Every state that per­formed an exe­cu­tion also imposed at least one new death sen­tence this year.

Just 35% of the 51 death war­rants issued for 2022 were actu­al­ly car­ried out. Ten exe­cu­tions were stayed for rea­sons includ­ing men­tal com­pe­ten­cy, intel­lec­tu­al dis­abil­i­ty, and prob­a­ble inno­cence. Seventeen exe­cu­tions were halt­ed by reprieve — 9 in Ohio, where exe­cu­tions have been on hold since 2019 over con­cerns about lethal injec­tion, and 6 in Tennessee, where Governor Bill Lee halt­ed exe­cu­tions this year to review the state’s exe­cu­tion pro­to­cols. Richard Glossip in Oklahoma received two reprieves to allow the Oklahoma Court of Criminal Appeals to review his request for an evi­den­tiary hear­ing on new evi­dence of inno­cence. One pris­on­er died while his death war­rant was pend­ing. One exe­cu­tion date was removed. Two exe­cu­tions, both in Alabama, failed after exe­cu­tion per­son­nel were unable to set IV lines. Two oth­er war­rants expired with­out being car­ried out because the con­demned pris­on­er was not in cus­tody in the state or the state had sched­uled the exe­cu­tion with­out the drugs nec­es­sary to car­ry it out.

Oklahoma’s deci­sion to sched­ule 25 exe­cu­tion dates over a two-year peri­od marked it as an out­lier, even among states that reg­u­lar­ly per­form exe­cu­tions. Only three states have ever exe­cut­ed 25 or more peo­ple in a two-year span — Texas, Oklahoma, and Virginia. If Oklahoma were to car­ry out all 25 exe­cu­tions, it would exe­cute an unprece­dent­ed 58% of its death row in that time period.

Problems with exe­cu­tion meth­ods halt­ed exe­cu­tions in three states, while Ohio con­tin­ued to pause exe­cu­tions for the same rea­son. In South Carolina, the state supreme court stayed the exe­cu­tions of Richard Moore and Brad Sigmon, who were chal­leng­ing the state’s use of the elec­tric chair and fir­ing squad as exe­cu­tion alter­na­tives to lethal injec­tion. In court fil­ings, Moore wrote, ​“I believe this elec­tion is forc­ing me to choose between two uncon­sti­tu­tion­al meth­ods of exe­cu­tion. … Because the Department says I must choose between fir­ing squad or elec­tro­cu­tion or be exe­cut­ed by elec­tro­cu­tion I will elect fir­ing squad.” The state said that it had been unable to obtain lethal-injec­tion drugs, leav­ing elec­tric chair and fir­ing squad as the available methods.

Tennessee Governor Bill Lee halt­ed exe­cu­tions and ordered an inde­pen­dent inves­ti­ga­tion into the state’s exe­cu­tion pro­ce­dures after it was revealed that cor­rec­tions offi­cers had not fol­lowed pro­to­col in prepa­ra­tion for Oscar Smith​’s exe­cu­tion on April 21. Lee called off Smith’s exe­cu­tion less than half an hour before it was set to be car­ried out. Lee empha­sized the impor­tance of an inde­pen­dent, third-par­ty review, appoint­ing a for­mer U.S. Attorney to con­duct the investigation.

Alabama Governor Kay Ivey sim­i­lar­ly paused exe­cu­tions after her state’s string of botched and failed exe­cu­tions. In con­trast to Lee, Ivey made no assur­ances that the ​“top-to-bot­tom review” she ordered would be per­formed by an inde­pen­dent inves­ti­ga­tor. Instead, she blamed the prob­lems on efforts by pris­on­ers and their attor­neys to ensure that each case received thor­ough judicial review.

Ohio Governor Mike DeWine issued nine reprieves cit­ing ​“ongo­ing prob­lems involv­ing the will­ing­ness of phar­ma­ceu­ti­cal sup­pli­ers to pro­vide drugs” for use in exe­cu­tions ​“with­out endan­ger­ing oth­er Ohioans.” Drug man­u­fac­tur­ers had informed the gov­er­nor that they would halt sell­ing med­i­cines to state facil­i­ties if Ohio divert­ed drugs that had been sold for med­ical use and instead used them in executions.

Key Findings

• 190 peo­ple have been exon­er­at­ed from death row since 1973
• Concerns about inno­cence attract­ed unlike­ly spokes­peo­ple, includ­ing Republican state leg­is­la­tors and self-described sup­port­ers of capital punishment
• Exonerations and claims of inno­cence cen­tered on police and prosecutorial misconduct

Exonerations in 2022

Two more for­mer death-row pris­on­ers were in exon­er­at­ed in 2022, includ­ing the third woman wrong­ful­ly con­vict­ed and sen­tenced to death. With DPIC’s ongo­ing research dis­cov­er­ing two addi­tion­al unrecord­ed exon­er­a­tions, the num­ber of U.S. death-row exon­er­a­tions since 1972 rose to 190.

DPIC’s analy­sis of data from the National Registry of Exonerations also found that at least twelve inno­cent peo­ple were exon­er­at­ed in 2021 from wrong­ful mur­der con­vic­tions that involved the wrong­ful pur­suit or threat­ened use of the death penal­ty by police or prosecutors.

Samuel Randolph IV was exon­er­at­ed in April 2022 after being wrong­ful­ly incar­cer­at­ed for 20 years. Randolph is Pennsylvania​’s 11^th death-row exoneree, with five of those exon­er­a­tions occur­ring since 2019. All five of those exon­er­a­tions have involved both offi­cial mis­con­duct and per­jury or false accu­sa­tion. Four of the five have also involved inad­e­quate legal rep­re­sen­ta­tion at trial.

Randolph was sen­tenced to death in 2003 for the mur­ders of two men in a Harrisburg bar in 2001. He had long main­tained his inno­cence, alleg­ing that police and pros­e­cu­tors with­held excul­pa­to­ry evi­dence in the case and selec­tive­ly refused to test DNA evi­dence that could exclude him as the killer. He was rep­re­sent­ed at tri­al by a lawyer who, while run­ning for dis­trict attor­ney in a neigh­bor­ing coun­ty, had failed to inves­ti­gate Randolph’s case. After a com­plete break­down in com­mu­ni­ca­tions between Randolph and appoint­ed coun­sel, his family’s sale of prop­er­ty raised enough mon­ey to hire pri­vate coun­sel. However, the tri­al court refused to grant coun­sel even a three-hour con­tin­u­ance to accom­mo­date a pre­vi­ous­ly sched­uled, unre­lat­ed court appear­ance. Randolph alleged that the court’s rul­ing vio­lat­ed his Sixth Amendment right to be rep­re­sent­ed by coun­sel of choice.

A fed­er­al dis­trict court held a hear­ing on these claims in 2019. In May 2020, it grant­ed Randolph a new tri­al on the Sixth Amendment vio­la­tion, moot­ing the neces­si­ty to address Randolph’s inno­cence claims. In July 2021, the U.S. Court of Appeals for the Third Circuit upheld that rul­ing. Two days after the U.S. Supreme Court declined to review the coun­ty pros­e­cu­tors’ appeal, District Attorney Fran Chardo filed a motion to ter­mi­nate the pros­e­cu­tion of Randolph. Refusing to con­cede Randolph’s inno­cence, Chardo wrote that ​“retri­al is not in the pub­lic inter­est at this time” because “[t]he police affi­ant and the police detec­tive who han­dled the evi­dence col­lec­tion in this case have both died” and “[o]ther wit­ness­es have become unavail­able for other reasons.”

In 2021, while the Dauphin County pros­e­cu­tors’ request for review by the U.S. Supreme Court was pend­ing, Chardo offered Randolph an ​“Alford” plea in which he could con­tin­ue to main­tain his inno­cence but would have to admit that pros­e­cu­tors had suf­fi­cient evi­dence to con­vict. Under the deal, Randolph would be released for time served but his con­vic­tions would remain on his record. ​“I didn’t do this. Innocent peo­ple don’t plead guilty — as bad as I want to go home,” Randolph told Penn Live.

In August 2022, a Cook County, Illinois judge grant­ed a motion filed by State’s Attorney Kim Foxx to dis­miss all charges against Marilyn Mulero, who was framed for the mur­der of an alleged gang mem­ber by dis­graced for­mer Chicago detec­tive Reynaldo Guevara. Mulero’s was one of sev­en cas­es Foxx moved to dis­miss, but the only case in which a defen­dant had been sen­tenced to death. Two addi­tion­al peo­ple framed for mur­der by Guevara have since been exonerated.

Guevara has been accused of fram­ing defen­dants of mur­der in more than 50 cas­es by beat­ing, threat­en­ing, and coerc­ing sus­pects to obtain false con­fes­sions. Thirty-three wrong­ful con­vic­tions tied to Guevara’s mis­con­duct have been over­turned to date, includ­ing death-row exoneree Gabriel Solache in 2017.

Mulero’s case fol­lows the same pat­tern. In 1992, she was inter­ro­gat­ed by Guevara and for­mer Chicago Police Detective Ernest Halvorsen over the course of a 20-hour peri­od, dur­ing which she was denied sleep and access to coun­sel and was threat­ened with the death penal­ty and the loss of her two chil­dren if she did not con­fess. She even­tu­al­ly signed a state­ment pre­pared by the detec­tives con­fess­ing to one of two mur­ders of gang mem­bers who were thought to have been shot in retal­i­a­tion for a pri­or gang killing.

After the tri­al court denied her motion to sup­press the con­fes­sion, Mulero’s court-appoint­ed lawyer advised her to plead guilty, which she did in September 1993. A jury was empan­eled for the sen­tenc­ing phase of tri­al and sen­tenced her to die. In May 1997, the Illinois Supreme Court over­turned her con­vic­tion because her tri­al pros­e­cu­tor improp­er­ly cross-exam­ined her about the sup­pres­sion motion and then argued to the jury that her answers indi­cat­ed a fail­ure to express remorse. She was resen­tenced to life with­out parole in 1998.

Governor J.B. Pritzker com­mut­ed her sen­tence to time served in April 2020, after Mulero had spent 28 years in prison, five of them on death row. She is the third female death-row exoneree in the U.S. since 1973 and the 16^th exoneree from Cook County — the most of any coun­ty in America. At least 14 of the Cook County exon­er­a­tions have involved offi­cial mis­con­duct by police or pros­e­cu­tors, and eight have involved coerced false confessions.

DPIC’s 2021 report, The Innocence Epidemic, explains that Cook County’s then 15 death-row exon­er­a­tions ​“are direct­ly relat­ed to endem­ic police cor­rup­tion, as the noto­ri­ous ​‘Burge Squad,’ oper­at­ing under Chicago Police Commander Jon Burge, and dis­graced Chicago detec­tive Reynaldo Guevara sys­tem­at­i­cal­ly tor­tured or coerced inno­cent sus­pects into con­fess­ing to mur­ders they did not com­mit. Illinois’ high rate of wrong­ful con­vic­tions in death cas­es was a major fac­tor in the state’s 2011 repeal of cap­i­tal pun­ish­ment, as state offi­cials decid­ed there was no way to cor­rect the inac­cu­ra­cy of the state’s death penalty system.”

DPIC also added two California cas­es to its Exoneration List: Eugene Allen, who was wrong­ful­ly con­vict­ed and sen­tenced to death for the mur­der of a prison guard in 1976 and acquit­ted on retri­al in 1981; and Barry Williams, wrong­ful­ly con­vict­ed in 1986 and exon­er­at­ed in 2021 of an alleged­ly gang-relat­ed street shoot­ing in Los Angeles. Official mis­con­duct was present in both of their cases.

All four exonerees are peo­ple of col­or: Randolph, Allen, and Williams are Black; Mulero is Latina. Nearly two-thirds of all U.S. death-row exonerees have been peo­ple of col­or (123 of 190, 64.7%). 54.2% per­cent are Black; 8.9% are Latinx.

DPIC’s review of National Registry of Exonerations data from 2021 once again found that the use or threat of the death penal­ty by police or pros­e­cu­tors led to wrong­ful con­vic­tions in numer­ous oth­er cas­es in which the death penal­ty was not imposed. Of the sev­en wrong­ful cap­i­tal pros­e­cu­tions that result­ed in exon­er­a­tions in 2021, three result­ed in death sen­tences (Sherwood Brown and Eddie Lee Howard in Mississippi and Barry Williams in California.) Juries in three oth­er states sen­tenced oth­er wrong­ful­ly cap­i­tal­ly pros­e­cut­ed defen­dants to life with­out parole — James Allen in Illinois, George Bell in New York, and Devonia Inman in Georgia. In the sev­enth wrong­ful cap­i­tal pros­e­cu­tion, Georgia pros­e­cu­tors secured a mur­der con­vic­tion against Dennis Perry and then used the threat of an immi­nent penal­ty-phase tri­al to coerce him to agree to waive any guilt-phase appeals in exchange for being spared the death penal­ty. In five exon­er­a­tions in non-cap­i­tal mur­der pros­e­cu­tions, wit­ness­es who had pled guilty to avoid the death penal­ty or had been threat­ened with the death penal­ty if they did not coop­er­ate pro­vid­ed false tes­ti­mo­ny that led to wrong­ful murder convictions.

Official mis­con­duct was the lead­ing cause of the wrong­ful con­vic­tions, present in 10 of the 12 exon­er­a­tions. Race was also a sig­nif­i­cant fac­tor: six of the sev­en who were wrong­ful­ly cap­i­tal­ly pros­e­cut­ed — and all three who were sen­tenced to death — are Black; over­all, nine of the exonerees are African American. The exonerees aver­aged 26.5 years between con­vic­tion and exon­er­a­tion, col­lec­tive­ly los­ing more than 300 years to the wrong­ful con­vic­tions. But African-American exonerees aver­aged 27.8 years from con­vic­tion to exon­er­a­tion, near­ly 23% longer than the aver­age of 22.7 years it took to clear white exonerees.

Innocence Claims Prompt Execution Deferrals, Garner Bipartisan Support from Lawmakers

Richard Glossip, who has long main­tained his inno­cence, received two reprieves this year from Oklahoma Governor Kevin Stitt fol­low­ing sig­nif­i­cant find­ings of inno­cence from an inde­pen­dent inves­ti­ga­tion into his case. Stitt issued the first 60-day reprieve in August 2022, push­ing Glossip’s September 2022 exe­cu­tion date to December 2022, to pro­vide time for the Oklahoma Court of Criminal Appeals (OCCA) to deter­mine whether to grant an evi­den­tiary hear­ing to address inno­cence claims. Stitt grant­ed a sec­ond reprieve on November 2, 2022, again ​“to allow time for OCCA to address pend­ing legal pro­ceed­ings,” reset­ting Glossip’s December 2022 exe­cu­tion date to February 2023. Later in November, after the sec­ond reprieve, the OCCA twice denied Glossip’s peti­tions for a hear­ing to review evi­dence on his innocence claims.

In May 2021, 28 Republican and six Democratic Oklahoma leg­is­la­tors called upon Governor Stitt and the Oklahoma Pardon and Parole Board to con­duct an inde­pen­dent inves­ti­ga­tion into Glossip’s case, after his lawyers had uncov­ered new evi­dence sup­port­ing his claims of inno­cence. Glossip was orig­i­nal­ly sen­tenced to death for the 1997 mur­der of Barry Van Treese, his boss at an Oklahoma City motel. The pros­e­cu­tion had no phys­i­cal evi­dence link­ing him to the crime, only the self-serv­ing tes­ti­mo­ny of his co-defen­dant, Justin Sneed, who was able to avoid the death penal­ty by claim­ing that Glossip had hired him to com­mit the crime.

The leg­is­la­tors sub­se­quent­ly com­mis­sioned an inde­pen­dent pro bono inves­ti­ga­tion by the nation­al law firm, Reed Smith, LLP. Days before the release of the law firm’s report, which exposed sig­nif­i­cant evi­dence of gov­ern­ment mis­con­duct and destruc­tion of evi­dence, Oklahoma Attorney General John O’Connor filed a motion to set exe­cu­tion dates for Glossip and 24 oth­er death-row pris­on­ers. On July 1, 2022, the same day that Glossip’s lawyers filed a motion for an evi­den­tiary hear­ing on his inno­cence claim, the state court set the 25 exe­cu­tion dates, sched­ul­ing an exe­cu­tion near­ly every month from August 2022 through December 2024.

Since 2014, Glossip has been sched­uled for exe­cu­tion eight times, and he has been served his last meal three sep­a­rate times. He received a last-minute reprieve from then-Governor Mary Fallin in September 2015 when it was revealed that the state had obtained an incor­rect drug for the exe­cu­tion. Glossip’s case has not only received bipar­ti­san sup­port from state leg­isla­tive offi­cials but has also been exam­ined by the Inter-American Commission of Human Rights (IACHR), which issued a pre­cau­tion­ary mea­sure in favor of Glossip in March 2022. In a press release on the issuance of the pre­cau­tion­ary mea­sure, the IACHR iden­ti­fied Glossip’s 23 years in soli­tary con­fine­ment and the repeat­ed, and often last-minute, post­pone­ment of sched­uled exe­cu­tions as ​“con­di­tions of deten­tion incom­pat­i­ble with inter­na­tion­al human rights standards.”

After the OCCA denied Glossip’s motions to per­mit him to present his new evi­dence of inno­cence in court, State Representative Kevin McDugle (R‑Broken Arrow), who led the call for an inves­ti­ga­tion, authored a blis­ter­ing op-ed in The Oklahoman say­ing: ​“if the [Oklahoma Court of Criminal Appeals] can­not grant a hear­ing on this flim­sy death penal­ty con­vic­tion, my con­fi­dence as a leg­is­la­tor in our state’s judi­cial sys­tem, and its abil­i­ty to make just deci­sions and take respon­si­bil­i­ty for its fail­ures, has been destroyed. … Who will take respon­si­bil­i­ty for this trav­es­ty? Where is the back­bone that will stand for jus­tice? The mem­bers of the Oklahoma Court of Criminal Appeals have let us all down. I pray new lead­er­ship in the offices of the attor­ney gen­er­al and Oklahoma County dis­trict attor­ney find the strength to do what is need­ed to right this ter­ri­ble wrong. We can­not kill an innocent man!”

The inno­cence case of Texas death-row pris­on­er Melissa Lucio has also been the sub­ject of inter­na­tion­al atten­tion and bipar­ti­san leg­isla­tive action. Lucio was sen­tenced to death in 2008 on charges that she alleged­ly beat her two-year-old daugh­ter, Mariah, to death. Lucio’s lawyers, with the sup­port of expert tes­ti­mo­ny, have pre­sent­ed expert affi­davits that Mariah was not mur­dered at all, but like­ly died from head trau­ma fol­low­ing an acci­den­tal fall two days pri­or to her death. The vic­tim of phys­i­cal, emo­tion­al, and sex­u­al abuse from a young age, Lucio has been diag­nosed with PTSD, bat­tered woman syn­drome, and depres­sion, and has intel­lec­tu­al impair­ments, all of which, foren­sic and domes­tic abuse experts say, made her more vul­ner­a­ble to coer­cive inter­ro­ga­tion. After five hours of aggres­sive ques­tion­ing by police on the night of Mariah’s death, Lucio acqui­esced to police pres­sure, say­ing, ​“I guess I did it.”

In July 2019, a pan­el of the U.S. Court of Appeals for the Fifth Circuit over­turned Lucio’s con­vic­tion, one of only two times the court had grant­ed relief in more than 150 appeals of Texas death sen­tences imposed this cen­tu­ry. However, in February 2021, the full Circuit vot­ed 10 – 7 to recon­sid­er that opin­ion and rein­stat­ed her con­vic­tion and death sen­tence. Supported by ami­cus briefs filed by a broad coali­tion of advo­cates for vic­tims of domes­tic and gen­der-based vio­lence, for­mer pros­e­cu­tors, legal schol­ars, and inno­cence orga­ni­za­tions, Lucio sought review in the U.S. Supreme Court. However, in October 2021, the U.S. Supreme Court denied review of Lucio’s case.

Texas then sched­uled Lucio’s exe­cu­tion for April 27, 2022. In response, Lucio filed a motion to vacate the death sen­tence and remove the judge and dis­trict attor­ney in her case because of con­flicts of inter­est stem­ming from their employ­ment of key mem­bers of Lucio’s orig­i­nal defense team.

In February, the IACHR grant­ed Lucio a pre­cau­tion­ary mea­sure ask­ing the state to refrain from exe­cu­tion until her case is reviewed and to ensure deten­tion con­di­tions align with inter­na­tion­al human rights stan­dards. Lucio, who has spent 14 years in soli­tary con­fine­ment, is housed in a con­crete room the size of a park­ing space in a build­ing con­tain­ing female pris­on­ers who suf­fer from extreme men­tal ill­ness. Lucio ​“hears scream­ing, curs­ing, bang­ing, and slam­ming doors through­out the prison,” and is fre­quent­ly exposed to ​“air­borne chem­i­cal agents, which are used to sub­due pris­on­ers who are deemed to be act­ing out,” accord­ing to her peti­tion.

In March, near­ly 90 mem­bers of the Texas House of Representatives from across the polit­i­cal spec­trum, led by Rep. Jeff Leach (R­-Plano) issued a call for the Texas Board of Pardons and Paroles and Governor Greg Abbott to grant clemen­cy to Lucio. Her clemen­cy peti­tion includ­ed state­ments of sup­port from jurors, foren­sic and med­ical experts, anti-domes­tic vio­lence activists, reli­gious lead­ers, exonerees, and Lucio’s sib­lings and chil­dren. In a heat­ed leg­isla­tive hear­ing, Leach and oth­er leg­is­la­tors pressed Cameron County District Attorney Luis Saenz to with­draw Lucio’s death war­rant. He ulti­mate­ly agreed to do so if the Texas Court of Criminal Appeals (TCCA) did not first issue a stay.

Days before the sched­uled exe­cu­tion, as the state Board of Pardons and Paroles was set to con­sid­er Lucio’s clemen­cy peti­tion, the TCCA stayed Lucio’s exe­cu­tion and grant­ed her review of four issues: that pros­e­cu­tors obtained her con­vic­tion using false tes­ti­mo­ny, that the jury’s expo­sure to pre­vi­ous­ly unavail­able sci­en­tif­ic evi­dence would have result­ed in her acquit­tal, that she is in fact inno­cent, and that pros­e­cu­tors sup­pressed favor­able evi­dence that was mate­r­i­al to the out­come of her tri­al. The court grant­ed the stay ​“pend­ing res­o­lu­tion of the remanded claims.”

Clemency

On December 13, Oregon Governor Kate Brown announced she would grant clemen­cy to all 17 peo­ple on the state’s death row. ​“I have long believed that jus­tice is not advanced by tak­ing a life, and the state should not be in the busi­ness of exe­cut­ing peo­ple — even if a ter­ri­ble crime placed them in prison,” Brown said. She described her action as ​“con­sis­tent with the near abo­li­tion of the death penal­ty” by the state leg­is­la­ture in 2019, when it enact­ed a new law that sig­nif­i­cant­ly lim­it­ed the cir­cum­stances in which the death penal­ty could be applied. The Oregon Supreme Court then declared that the use of the death penal­ty against those whose crimes were no longer sub­ject to cap­i­tal pun­ish­ment vio­lat­ed the Oregon con­sti­tu­tion’s pro­hi­bi­tion against dis­pro­por­tion­ate pun­ish­ment, a rul­ing that experts said would effec­tive­ly clear death row. Brown’s blan­ket com­mu­ta­tion was the sev­enth time in the last 50 years that a gov­er­nor had com­mut­ed all of a state’s death sen­tences. Governor Mark Hatfield also com­mut­ed the sen­tences of all of Oregon’s death-row pris­on­ers after vot­ers passed a statewide ref­er­en­dum abol­ish­ing cap­i­tal pun­ish­ment in 1964.

The case of ter­mi­nal­ly ill death-row pris­on­er Gerald Pizzuto Jr., put the Idaho gov­er­nor and par­dons board at odds, forc­ing the state supreme court to inter­vene in the mat­ter. Pizzuto, who expe­ri­enced a trau­mat­ic child­hood char­ac­ter­ized by chron­ic severe phys­i­cal and sex­u­al abuse, suf­fers from late-stage blad­der can­cer, chron­ic heart and coro­nary artery dis­ease, coro­nary obstruc­tive pul­monary dis­ease (COPD), and Type 2 dia­betes with relat­ed nerve dam­age to his legs and feet. In December 2021, the Idaho Commission of Pardons and Parole vot­ed 4 – 3 to rec­om­mend clemen­cy for Pizzuto. The fol­low­ing day, Governor Brad Little reject­ed the rec­om­men­da­tion, lead­ing to a legal bat­tle over his con­sti­tu­tion­al author­i­ty to do so.

An Idaho tri­al court ruled on February 4, 2022 that Little did not have the pow­er to reject the board’s clemen­cy rul­ing and vacat­ed Pizzuto’s death sen­tence, only to have it lat­er rein­stat­ed by the Idaho Supreme Court in an August 23 rul­ing. Prosecutors then sought and obtained a new death war­rant, set­ting Pizzuto’s exe­cu­tion for December 15. On November 30, the Director of the Idaho Department of Corrections pro­vid­ed notice that the state was unable to obtain the lethal drugs nec­es­sary to car­ry out the exe­cu­tion, and the state attor­ney general’s office noti­fied the court that the state would allow Pizzuto’s death war­rant to expire.

Resentencing of Pervis Payne

After decades of lit­i­ga­tion, Tennessee death-row pris­on­er Pervis Payne, who has long main­tained his inno­cence, was found to be inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty and in January 2022 was resen­tenced to two con­cur­rent life sen­tences. Payne, who has been in prison for 34 years, will be eli­gi­ble to apply for parole in five years. Shelby County District Attorney Amy Weirich, who had opposed DNA test­ing of evi­dence Payne said could prove his inno­cence and had fought grant­i­ng him a hear­ing to prove his inel­i­gi­bil­i­ty for the death penal­ty, lat­er con­ced­ed that he was intel­lec­tu­al­ly dis­abled. However, she argued to the court that he should be resen­tenced to two con­sec­u­tive life sen­tences, effec­tive­ly con­demn­ing him to death in prison.

International bod­ies have rou­tine­ly encour­aged the sus­pen­sion and abo­li­tion of death sen­tences for those with psy­choso­cial and intel­lec­tu­al dis­abil­i­ties, as not­ed by both the United Nations Human Rights Committee and the Committee on the Rights of Persons with Disabilities. Although the 2002 U.S. Supreme Court case Atkins v. Virginia estab­lished the uncon­sti­tu­tion­al­i­ty of exe­cut­ing peo­ple with intel­lec­tu­al dis­abil­i­ty, many states, includ­ing Tennessee, have been slow to imple­ment the exemp­tion retroac­tive­ly. Scheduled for exe­cu­tion in December 2020, Payne received a reprieve because of the COVID-19 pan­dem­ic. The Tennessee leg­is­la­ture sub­se­quent­ly passed new leg­is­la­tion that went into effect in May 2021 that allowed Payne, whose IQ scores place him with­in the intel­lec­tu­al­ly dis­abled range, to peti­tion the court to vacate his death sen­tence.

Payne, who is Black, was con­vict­ed and sen­tenced to death in 1987 for the mur­ders of a white 28-year-old woman and her 2‑year-old daugh­ter. In a tri­al marred by pros­e­cu­to­r­i­al mis­con­duct and racial bias, pros­e­cu­tors alleged with­out evi­dence that Payne — a pastor’s son with no pri­or crim­i­nal record, no his­to­ry of drug use, and no his­to­ry of vio­lence — had been high on drugs and com­mit­ted the mur­der after the vic­tim rebuffed his sex­u­al advances. After a 2019 court order com­pelled the state to pro­vide the defense access to evi­dence, DNA test­ing iden­ti­fied the DNA of the two vic­tims and an unknown male on the han­dle and blade of the knife used. Payne’s DNA was found only on a por­tion of the knife that was con­sis­tent with his account of how he had tried to assist the victims.

Key Findings

• Significant prob­lems in exe­cu­tions and attempt­ed exe­cu­tions marked 2022 as the year of the botched execution
• 72% of pris­on­ers exe­cut­ed in 2022 had evi­dence of a significant impairment
• Half of those exe­cut­ed had spent 20 years or more on death row, in vio­la­tion of inter­na­tion­al human rights norms

Alongside the sys­temic prob­lems that have become com­mon­place in U.S. exe­cu­tions ­— vul­ner­a­ble defen­dants, claims of inno­cence, inad­e­quate defense, and denial of mean­ing­ful judi­cial review — 2022 fea­tured a shock­ing num­ber of botched and failed exe­cu­tions. In what could be cat­e­go­rized as ​“The Year of the Botched Execution,” sig­nif­i­cant prob­lems were report­ed in all three of Arizona​’s exe­cu­tions, and Alabama​’s exe­cu­tions went so wrong that Governor Kay Ivey paused all exe­cu­tions and ordered a ​“top-to-bot­tom review” after one exe­cu­tion result­ed in ​“car­nage” and the remain­ing two had to be called off when exe­cu­tion per­son­nel repeat­ed­ly failed to estab­lish an IV line.

Several states sched­uled exe­cu­tions in vio­la­tion of their own pro­to­cols, with­out the means to car­ry them out, or with­out mak­ing arrange­ments to obtain cus­tody of a per­son incar­cer­at­ed in anoth­er juris­dic­tion. A South Carolina tri­al court struck down that state’s attempt­ed use of the elec­tric chair and fir­ing squad as alter­na­tives to lethal injec­tion, and Tennessee Governor Bill Lee halt­ed all exe­cu­tions in his state and appoint­ed an inde­pen­dent coun­sel to inves­ti­gate major fail­ures by cor­rec­tions offi­cials to com­ply with the state’s execution protocol.

As in past years, the vast major­i­ty of those exe­cut­ed in 2022 were indi­vid­u­als with sig­nif­i­cant vul­ner­a­bil­i­ties. At least 13 of the 18 peo­ple exe­cut­ed in 2022 had one or more of the fol­low­ing impair­ments: seri­ous men­tal ill­ness (8); brain injury, devel­op­men­tal brain dam­age, or an IQ in the intel­lec­tu­al­ly dis­abled range (5); and/​or chron­ic seri­ous child­hood trau­ma, neglect, and/​or abuse (12). Three pris­on­ers were exe­cut­ed for crimes com­mit­ted in their teens: Matthew Reeves and Gilbert Postelle were 18 at the time of their crimes; Kevin Johnson was 19. At least four of the peo­ple exe­cut­ed this year were mil­i­tary vet­er­ans: John Ramirez, Benjamin Cole, Richard Fairchild, and Thomas Loden Jr.

The peo­ple exe­cut­ed in 2022 reflect­ed the aging death-row pop­u­la­tion in the U.S. Six of the 18 peo­ple exe­cut­ed were age 60 or old­er. Carl Buntion, who was 78 years old when he was exe­cut­ed in Texas, was the third-old­est per­son ever exe­cut­ed in the United States. Five had sig­nif­i­cant phys­i­cal dis­abil­i­ties, includ­ing Clarence Dixon, who was blind, and Frank Atwood, who used a wheel­chair as a result of a degen­er­a­tive spinal con­di­tion. Half (9) of those exe­cut­ed in 2022 had spent at least 20 years on death row, a peri­od of time that has been rec­og­nized by inter­na­tion­al human rights bod­ies as con­sti­tut­ing ​“exces­sive and inhu­man” pun­ish­ment, in vio­la­tion of U.S. human rights oblig­a­tions. Though these lengthy stays on death row are often the result of legal­ly nec­es­sary appeals, the iso­la­tion, poor access to health­care, and harsh con­di­tions exac­er­bate pris­on­ers’ phys­i­cal and men­tal health conditions.

Donald Grant was exe­cut­ed in Oklahoma on January 27 using a lethal-injec­tion pro­to­col that, at the time, was still under review by a fed­er­al court. He would be the first of four peo­ple exe­cut­ed in 2022 who were con­vict­ed in Oklahoma County, rais­ing the county’s exe­cu­tion total to 46, the fourth most of any U.S. coun­ty in the past half-cen­tu­ry. Grant’s lawyers had asked the Oklahoma Pardon and Parole Board to com­mute his death sen­tence, cit­ing his diag­no­sis with schiz­o­phre­nia and his brain dam­age. ​“Executing some­one as men­tal­ly ill and brain dam­aged as Donald Grant is out of step with evolv­ing stan­dards of decen­cy,” they argued at his clemen­cy hear­ing. The board vot­ed 4 – 1 to deny commutation.

Matthew Reeves, the sec­ond pris­on­er exe­cut­ed in 2022, raised claims that he was inel­i­gi­ble for exe­cu­tion because he was intel­lec­tu­al­ly dis­abled and that Alabama had vio­lat­ed the Americans with Disabilities Act (ADA) by fail­ing to offer him accom­mo­da­tions for his dis­abil­i­ty in order to allow him to select his method of exe­cu­tion. A fed­er­al appeals court had over­turned Reeves’ death sen­tence in part because his tri­al lawyer failed to present expert tes­ti­mo­ny on his intel­lec­tu­al dis­abil­i­ty, but the U.S. Supreme Court, vot­ing along par­ti­san lines, reversed that deci­sion in 2021. The Court also reject­ed, in a 5 – 4 deci­sion issued 1½ hours after his exe­cu­tion was sched­uled to begin, a claim that the state had vio­lat­ed Reeves’ rights under the ADA when it dis­trib­uted a form to death-row pris­on­ers requir­ing them to choose between lethal injec­tion and nitro­gen hypox­ia. The form required an 11^th-grade read­ing lev­el to under­stand. However, Reeves, who had an IQ in the upper 60s to low 70s and read at a first-grade lev­el, was offered no assis­tance in com­plet­ing the form. When Reeves did not fill out the form, pros­e­cu­tors sought and obtained a death war­rant sched­ul­ing his exe­cu­tion by lethal injec­tion. No one who elect­ed nitro­gen suf­fo­ca­tion was sched­uled for exe­cu­tion. A fed­er­al dis­trict court issued an injunc­tion, find­ing that Reeves had demon­strat­ed sub­stan­tial like­li­hood of suc­cess on the mer­its of his claim, and the U.S. Court of Appeals for the Eleventh Circuit upheld the injunc­tion. Five jus­tices on the U.S. Supreme Court vot­ed to lift the injunc­tion, allow­ing Alabama to execute Reeves.

Gilbert Postelle was 18 years old, intel­lec­tu­al­ly impaired, men­tal­ly ill, and addict­ed to metham­phet­a­mines when, at the direc­tion of his men­tal­ly ill father, he, his broth­er, and a fourth man par­tic­i­pat­ed in the fatal shoot­ings of four peo­ple. His father delu­sion­al­ly believed that one of the men had been respon­si­ble for a motor­cy­cle acci­dent that had left the father seri­ous­ly brain dam­aged. Postelle was sen­tenced to death for two of the shoot­ings — the only per­son sen­tenced to death for the killings. His father was found incom­pe­tent to stand tri­al, and the oth­ers received life sen­tences. Oklahoma exe­cut­ed Postelle on February 17, just 11 days before a fed­er­al judge began hear­ing evi­dence on the con­sti­tu­tion­al­i­ty of the state’s execution protocol.

Carl Buntion was Texas’ old­est death-row pris­on­er and, just days before his sched­uled April 21 exe­cu­tion, had been tak­en to the hos­pi­tal suf­fer­ing from pneu­mo­nia and blood in his urine. In his clemen­cy peti­tion, which was denied on April 19, his lawyers wrote, ​“Mr. Buntion is a frail, elder­ly man who requires spe­cial­ized care to per­form basic func­tions. He is not a threat to any­one in prison and will not be a threat to any­one in prison if his sen­tence is reduced to a less­er penal­ty.” Counsel not­ed that Buntion ​“ha[d] been cit­ed for only three dis­ci­pli­nary infrac­tions” in his 31 years on death row, ​“and [had] not been cit­ed for any infrac­tion what­so­ev­er for the last twen­ty-three years.” They argued that his death sen­tence had been based on a pre­dic­tion of future dan­ger­ous­ness that had proven false over his three decades of incarceration.

Missouri exe­cut­ed Carman Deck after his death sen­tence had been over­turned three sep­a­rate times. In the decade between his ini­tial death sen­tence and his third sen­tenc­ing hear­ing in 2008, sev­er­al mit­i­ga­tion wit­ness­es had died or could no longer be locat­ed. That delay, a fed­er­al dis­trict judge ruled, ​“pre­vent­ed the jury from ade­quate­ly con­sid­er­ing com­pas­sion­ate or mit­i­gat­ing fac­tors that might have war­rant­ed mer­cy.” He was grant­ed relief for the third time in 2017. On appeal, a three-judge pan­el of the U.S. Court of Appeals for the Eighth Circuit reversed that rul­ing on a tech­ni­cal­i­ty, hold­ing that Deck’s claim was pro­ce­du­ral­ly default­ed because his post-con­vic­tion lawyer had failed to raise the issue in state court. It fur­ther ruled that because the law on the issue had not been set­tled at the time of Deck’s resen­tenc­ing, post-con­vic­tion counsel’s fail­ure to raise the issue was not inef­fec­tive, and Deck there­fore could not estab­lish grounds to excuse the pro­ce­dur­al default. In a stay appli­ca­tion that was denied by the U.S. Supreme Court, Deck’s lawyers argued that “[a] state should not be allowed to repeat­ed­ly attempt to obtain a death sen­tence, bun­gle the process, and then claim vic­to­ry when no one is left to show up for the defen­dant at the mit­i­ga­tion phase.” Deck’s peti­tion seek­ing review of his case called the sit­u­a­tion ​“an egre­gious exam­ple of what hap­pens when the state repeat­ed­ly vio­lates the rights of a cap­i­tal defen­dant. The state’s ear­li­er fail­ures direct­ly pre­vent­ed Mr. Deck from pre­sent­ing a com­pelling mit­i­ga­tion case at his third resentencing.”

On May 11, Arizona exe­cut­ed Clarence Dixon, a severe­ly men­tal­ly ill man. In 1978, then-Maricopa County Superior Court Judge Sandra Day O’Connor, lat­er a Justice of the U.S. Supreme Court, had found Dixon not guilty by rea­son of insan­i­ty on unre­lat­ed charges. Judge O’Connor had direct­ed Maricopa County pros­e­cu­tors to make arrange­ments for Dixon’s con­tin­ued cus­tody until civ­il com­mit­ment pro­ceed­ings, which were sched­uled to start with­in ten days, could begin. Instead, Dixon was released, and two days lat­er com­mit­ted the offense for which he was exe­cut­ed. Dixon was not con­nect­ed to the mur­der for two decades, and at his 2008 cap­i­tal tri­al, he was per­mit­ted to fire his court-appoint­ed attor­neys and rep­re­sent him­self. At tri­al, Dixon pre­sent­ed a con­vo­lut­ed defense based upon his delu­sion­al belief that the charges against him were fueled by a gov­ern­ment con­spir­a­cy. Despite counsel’s pre­sen­ta­tion of evi­dence that Dixon suf­fered from para­noid schiz­o­phre­nia, with accom­pa­ny­ing audi­to­ry and visu­al hal­lu­ci­na­tions and delu­sion­al think­ing, and was now blind, a judge found him com­pe­tent to be executed.

Dixon’s lawyers also chal­lenged Arizona’s exe­cu­tion process and the drugs it intend­ed to use in the state’s first exe­cu­tion attempt since the botched two-hour exe­cu­tion of Joseph Wood on July 23, 2014. In court pro­ceed­ings in advance of the exe­cu­tion, assis­tant fed­er­al defend­er Jennifer Moreno argued that “[t]he state has had near­ly a year to demon­strate that it will not be car­ry­ing out exe­cu­tions with expired drugs but has failed to do so.” Describing Dixon as ​“a severe­ly men­tal­ly ill, visu­al­ly dis­abled, and phys­i­cal­ly frail mem­ber of the Navajo Nation,” which oppos­es cap­i­tal pun­ish­ment, she said his exe­cu­tion would be ​“uncon­scionable.”

After an exe­cu­tion experts said was botched, wit­ness­es described how Department of Corrections per­son­nel failed for 25 min­utes to set an intra­venous line in his arms before per­form­ing a bloody and appar­ent­ly unau­tho­rized ​“cut­down“ pro­ce­dure to insert the IV line into a vein in his groin. Defense lawyers said that the prob­lems were exac­er­bat­ed by the lack of trans­paren­cy about Arizona exe­cu­tions. Dixon’s lawyer, assis­tant fed­er­al pub­lic defend­er Amanda Bass, said “[s]ince Arizona keeps secret the qual­i­fi­ca­tions of its exe­cu­tion­ers, we don’t know whether the fail­ure to set two periph­er­al lines in Mr. Dixon’s arms was due to incom­pe­tence, which result­ed in the unnec­es­sar­i­ly painful and inva­sive set­ting of a femoral line.”

Less than a month lat­er, on June 8, Arizona exe­cut­ed Frank Atwood, who main­tained his inno­cence in the 1984 kid­nap­ping and mur­der of Vicki Hoskinson. In 2021, Atwood’s lawyers had dis­cov­ered an FBI memo about an anony­mous call the Bureau had received report­ing that, after her dis­ap­pear­ance, Hoskinson had been seen in a vehi­cle con­nect­ed to an alter­na­tive sus­pect. A fed­er­al appeals court denied him a hear­ing on his claims of inno­cence and that the pros­e­cu­tion had uncon­sti­tu­tion­al­ly with­held excul­pa­to­ry evi­dence from the defense.

In what Arizona Republic reporter Jimmy Jenkins called a ​“sur­re­al spec­ta­cle,” Atwood helped prison offi­cials find a suit­able vein for the IV line dur­ing his exe­cu­tion. Jenkins wrote, ​“I have looked behind the cur­tain of cap­i­tal pun­ish­ment and seen it for what it tru­ly is: a frail old man lift­ed from a wheel­chair onto a hand­i­cap acces­si­ble lethal injec­tion gur­ney; ner­vous hands and per­spir­ing faces try­ing to find a vein; nee­dles punc­tur­ing skin; liq­uid drugs flood­ing a man’s exis­tence and drown­ing it out.” When the exe­cu­tion team was strug­gling to set the IV line, Atwood first sug­gest­ed they try his right arm, then his hand, stop­ping them from their stat­ed inten­tion to estab­lish an IV line in his femoral vein as they had done in Dixon’s execution.

Continuing the series of botched exe­cu­tions, Alabama killed Joe James Jr. on July 28 over the stren­u­ous oppo­si­tion of the victim’s fam­i­ly. The daugh­ters and broth­er of mur­der vic­tim Faith Hall urged Governor Kay Ivey to halt James’ exe­cu­tion. Helvetius Hall, Faith’s broth­er, said, ​“Taking [James’] life is not going to bring Faith back. It ain’t going to make no clo­sure for us.”

James was rep­re­sent­ing him­self at the time of his exe­cu­tion. His exe­cu­tion began with an unex­plained three-hour delay, which Alabama Department of Corrections (ADOC) offi­cials lat­er oblique­ly indi­cat­ed involved dif­fi­cul­ties set­ting an IV line. While media wit­ness­es were wait­ing for the exe­cu­tion, cor­rec­tions offi­cials sub­ject­ed two female jour­nal­ists, both of whom had pre­vi­ous­ly wit­nessed mul­ti­ple exe­cu­tions, to embar­rass­ing dress code inspec­tions. AL​.com reporter Ivana Hrynkiw was told that her skirt, which she had worn to wit­ness three pre­vi­ous exe­cu­tions, was ​“too short.” After chang­ing into cloth­ing bor­rowed from a cam­era­man from anoth­er media out­let, she was then told she couldn’t wear open-toed shoes because they were ​“too reveal­ing,” so she retrieved a pair of sneak­ers from her car. Hrynkiw’s employ­er, the Alabama Media Group, sent a for­mal com­plaint the next day, call­ing ADOC’s con­duct ​“sex­ist and an egre­gious breach of professional conduct.”

The cloth­ing inspec­tions divert­ed atten­tion from the state’s repeat­ed fail­ures to set an IV line, as a lat­er pri­vate autop­sy revealed. In the words of Atlantic writer Elizabeth Bruenig, who had facil­i­tat­ed and wit­nessed the pri­vate autop­sy, “[s]omething ter­ri­ble had been done to James while he was strapped to a gur­ney behind closed doors with­out so much as a lawyer present to protest his treat­ment or an advo­cate to observe it.” Bruenig wrote of ​“car­nage” on James’ body, that his ​“hands and wrists had been burst by nee­dles, in every place one can bend or flex” dur­ing what she called a ​“lengthy and painful death.” When the exe­cu­tion cham­ber cur­tains were opened three hours after the sched­uled start of James’ exe­cu­tion, he was motion­less and non-respon­sive. Anesthesiologist Joel Zivot, who wit­nessed the pri­vate autop­sy, not­ed that there were punc­ture wounds, accom­pa­nied by bruis­es, through­out James’ arms, and bruis­ing around the knuck­les and wrists that sug­gest­ed that exe­cu­tion team mem­bers tried and failed to insert IV lines in those loca­tions. They also found punc­ture wounds in James’ mus­cu­la­ture, ​“not in the anatom­i­cal vicin­i­ty of a known vein.” ​“It is pos­si­ble that this just rep­re­sents gross incom­pe­tence, or some, or one, or more of these punc­tures were actu­al­ly intra­mus­cu­lar injec­tions,” Zivot wrote, not­ing that such an injec­tion ​“in this set­ting would only be used to deliv­er a sedating medication.”

James’ exe­cu­tion was the longest botched lethal-injec­tion exe­cu­tion in the 40-year his­to­ry of that exe­cu­tion method. ADOC denied hav­ing sedat­ed James and Commissioner John Hamm insist­ed that ​“noth­ing out of the ordi­nary” had occurred dur­ing the three-hour peri­od between the sched­uled start of the exe­cu­tion and the time the exe­cu­tion cur­tain opened. 
 

Texas’ exe­cu­tion of Kosoul Chanthakoummane on August 17 also took place over the objec­tions of the victim’s fam­i­ly. Joe Walker, whose daugh­ter, Sarah, was mur­dered, said of Chanthakoummane, ​“I don’t have any hate towards him at all. I don’t want him put to death.” Chanthakoummane’s con­vic­tion relied on mul­ti­ple forms of dis­cred­it­ed foren­sic evi­dence, includ­ing noto­ri­ous­ly unre­li­able bite mark evi­dence and hyp­not­i­cal­ly enhanced eye­wit­ness tes­ti­mo­ny. Chanthakoummane, the son of Laotian refugees who escaped to the United States dur­ing the Vietnam war, had long main­tained his inno­cence. Prosecutors said his DNA had been found under Walker’s fin­ger­nails and in var­i­ous loca­tions through­out the house, but defense lawyers argued that the DNA tes­ti­mo­ny pur­port­ing to iden­ti­fy him as the assailant was statistically flawed.

On July 6, Oklahoma set 25 exe­cu­tion dates, sched­ul­ing an exe­cu­tion near­ly every month from August 2022 to December 2024. The first per­son exe­cut­ed as part of Oklahoma’s unprece­dent­ed exe­cu­tion spree was James Coddington. Coddington took full respon­si­bil­i­ty and expressed deep remorse for the addic­tion-dri­ven mur­der of his friend, Albert Hale. At his clemen­cy hear­ing, he gave an emo­tion­al state­ment to the board, say­ing, ​“I can’t apol­o­gize enough for what I did.” After hear­ing Coddington’s plea, as well as evi­dence of his trau­mat­ic upbring­ing and life­long bat­tle with addic­tion, the Oklahoma Pardon and Parole Board rec­om­mend­ed clemen­cy by a 3 – 2 vote. Governor Kevin Stitt reject­ed the board’s rec­om­men­da­tion and Coddington was exe­cut­ed on August 25.

With no appar­ent review of or changes to its exe­cu­tion pro­to­col fol­low­ing the botched exe­cu­tion of Joe James Jr., Alabama pro­ceed­ed with the lethal-injec­tion exe­cu­tion of Alan Miller on September 22. Miller chal­lenged his exe­cu­tion on the grounds that he had time­ly des­ig­nat­ed nitro­gen hypox­ia as the method of his exe­cu­tion but that ADOC per­son­nel had lost his des­ig­na­tion form. In court pro­ceed­ings on that chal­lenge, state pros­e­cu­tors inti­mat­ed that ADOC could exe­cute him by lethal gas. However, when the fed­er­al dis­trict court set a firm dead­line to declare if ADOC was pre­pared to pro­ceed with lethal gas, ADOC said it could not do so. On September 19, 2022, the dis­trict court issued a pre­lim­i­nary injunc­tion enjoin­ing Alabama from exe­cut­ing Miller ​“by any method oth­er than nitro­gen hypox­ia.” On the after­noon of his sched­uled exe­cu­tion, a divid­ed pan­el of the U.S. Court of Appeals for the Eleventh Circuit denied the state’s motion to set aside the injunc­tion. At about 9:15 p.m. Central Time, the U.S. Supreme Court issued a 5 – 4 rul­ing that vacat­ed the injunc­tion, leav­ing Alabama approx­i­mate­ly 2½ hours to car­ry out the exe­cu­tion before the warrant expired.

Prison offi­cials report­ed­ly attempt­ed as many as 18 times to estab­lish an IV line before call­ing off Miller’s exe­cu­tion short­ly before mid­night, when the exe­cu­tion war­rant would expire. ADOC Commissioner Hamm blamed the fail­ure on ​“time con­straints result­ing from the late­ness of the court pro­ceed­ings.” He said, ​“the exe­cu­tion was called off once it was deter­mined the con­demned inmate’s veins could not be accessed in accor­dance with our pro­to­col before the expi­ra­tion of the death war­rant.” After the exe­cu­tion, a fed­er­al judge grant­ed a request from Miller’s lawyers to take pho­tos and video of Miller to pre­serve all ADOC records relat­ed to the exe­cu­tion to doc­u­ment what had tran­spired and the injuries Miller sus­tained in the attempt­ed exe­cu­tion. On November 28, the state set­tled Miller’s method-of-exe­cu­tion chal­lenge, agree­ing that it would no longer attempt to exe­cute him by lethal injec­tion and that any future exe­cu­tion attempt would be by means of nitrogen hypoxia.

Less than two months lat­er, a sec­ond Alabama exe­cu­tion was called off after offi­cials spent an hour fail­ing to set IV lines dur­ing the attempt­ed lethal injec­tion of Kenneth Smith on November 17. The exe­cu­tion was already con­tro­ver­sial because the tri­al court over­rode the jury’s 11 – 1 vote for life under a since-repealed pro­vi­sion of Alabama law. According to Andy Johnson, a lawyer for Smith, the state strapped Smith to a gur­ney for approx­i­mate­ly four hours while his motion to stay his exe­cu­tion was pend­ing, was grant­ed by the U.S. Court of Appeals for the Eleventh Circuit, and then was lift­ed by the U.S. Supreme Court. As in Miller’s case, Smith’s lawyers imme­di­ate­ly filed requests to pre­serve evi­dence from the exe­cu­tion attempt. Five days after the state’s failed attempt to exe­cute Smith, Alabama Governor Kay Ivey halt­ed exe­cu­tions in the state, order­ing ADOC to under­take a ​“top-to-bot­tom review” of the execution protocol.

Two exe­cu­tions were car­ried out over the objec­tions of local pros­e­cu­tors. Texas exe­cut­ed John Ramirez on October 5 after the Texas Court of Criminal Appeals (TCCA), with­out rul­ing on the mer­its, reject­ed the request of Nueces County District Attorney Mark Gonzalez to with­draw the death war­rant. Gonzalez’s office had filed a motion, grant­ed by the coun­ty tri­al court on April 12, to set an exe­cu­tion date for Ramirez. Two days lat­er, Gonzalez, a for­mer defense attor­ney who was elect­ed in 2016 on a plat­form of crim­i­nal jus­tice reform, attempt­ed to with­draw the war­rant. Stating his ​“firm belief that the death penal­ty is uneth­i­cal and should not be imposed on Mr. Ramirez or any oth­er per­son while the under­signed occu­pies the office in ques­tion,” Gonzalez told the court that “[t]he Assistant District Attorney who most recent­ly moved for an exe­cu­tion date in this cause was not aware of my desire in this mat­ter and did not con­sult me pri­or to mov­ing for an exe­cu­tion date.” The tri­al judge denied Gonzalez’s motion on June 21, say­ing ​“I’m not sure that I have the pow­er to do so.”

The tri­al court’s view in Ramirez’s case diverged sharply from the under­stand­ing of the law expressed by sev­er­al dozen Texas leg­is­la­tors and Cameron County District Attorney Luis Saenz dur­ing April 14, 2022 leg­isla­tive hear­ings relat­ing to the sched­uled exe­cu­tion of Melissa Lucio. During those hear­ings, described by reporters as ​“heat­ed,” leg­is­la­tors pressed Saenz to with­draw Lucio’s death war­rant, cit­ing evi­dence of prob­a­ble inno­cence and police mis­con­duct. Saenz agreed with the leg­is­la­tors that he had the pow­er to with­draw the war­rant and even­tu­al­ly agreed that he would do so if the TCCA did not issue a stay. The point became moot when the court halt­ed Lucio’s exe­cu­tion and direct­ed that an evi­den­tiary hear­ing be con­duct­ed on her innocence claims.

Missouri also exe­cut­ed a pris­on­er over the objec­tions of a pros­e­cu­tor. In 2021, Kevin Johnson​’s defense team had request­ed that the St. Louis County Conviction and Incident Review Unit (CIRU) eval­u­ate Johnson’s case. Because of a con­flict of inter­est in the CIRU, the tri­al court appoint­ed E.E. Keenan as a spe­cial pros­e­cu­tor. Keenan’s inves­ti­ga­tion of the case found racial dis­par­i­ties in deci­sions to seek the death penal­ty by for­mer coun­ty pros­e­cut­ing attor­ney Robert McCulloch, as well as ​“delib­er­ate” exclu­sion of Black jurors from Johnson’s jury. Special pros­e­cu­tor Keenan then asked the tri­al court to stay Johnson’s exe­cu­tion and vacate his death sen­tence. The court denied his motion and both Johnson and the spe­cial pros­e­cu­tor appealed. The Missouri Supreme Court heard argu­ment in Johnson’s case less than 36 hours before his exe­cu­tion was sched­uled to begin and ruled against Johnson. The U.S. Supreme Court then declined to review the case, allow­ing the exe­cu­tion to pro­ceed. On November 29, Johnson was executed.

Oklahoma con­tin­ued its exe­cu­tion spree with the October 20 exe­cu­tion of Benjamin Cole. Cole had schiz­o­phre­nia and brain dam­age, and his lawyers, who described Cole as often ​“cata­ton­ic,” said prison guards who had dai­ly inter­ac­tions with him ​“con­firm that he can­not com­mu­ni­cate or take care of his most basic hygiene.” Counsel sought a hear­ing on his men­tal com­pe­ten­cy to be exe­cut­ed, argu­ing that he did not under­stand the rea­son for his impend­ing exe­cu­tion. A judge denied counsel’s request for a com­pe­ten­cy hear­ing. In Cole’s clemen­cy peti­tion, his legal team wrote, ​“Benjamin Cole today is a frail, 57-year-old man with a dam­aged and dete­ri­o­rat­ing brain, suf­fer­ing from pro­gres­sive and severe men­tal ill­ness who pos­es no threat to any­one in any way.”

Significant men­tal health issues were also raised in Texas’ November 9 exe­cu­tion of Tracy Beatty. Defense lawyers had argued that Texas’ refusal to uncuff Beatty so that a psy­chi­a­trist and a neu­ropsy­chol­o­gist could admin­is­ter test­ing to assess brain impair­ments con­sti­tut­ed unlaw­ful state inter­fer­ence with ser­vices Congress has autho­rized be made avail­able to fed­er­al coun­sel rep­re­sent­ing death-row pris­on­ers in clemen­cy and oth­er poten­tial cap­i­tal post-con­vic­tion pro­ceed­ings. Beatty was diag­nosed with para­noid schiz­o­phre­nia and expe­ri­enced hal­lu­ci­na­tions and delu­sions. The Texas state and fed­er­al courts and the U.S. Supreme Court declined to stay his exe­cu­tion to per­mit the test­ing to occur, reward­ing Texas’ refusal to grant access to com­pre­hen­sive men­tal health eval­u­a­tions. Beatty was exe­cut­ed with­out any judi­cial con­sid­er­a­tion of the extent of his dete­ri­o­rat­ed men­tal con­di­tion and its impact on his mental incompetency.

Stephen Barbee, whose exe­cu­tion had been stayed due to a reli­gious free­dom claim in 2021, was exe­cut­ed in Texas on November 16 for the mur­ders of his ex-girl­friend Lisa Underwood and her son. No DNA or foren­sic evi­dence con­nect­ed Barbee to the mur­ders, though a local med­ical exam­in­er, Dr. Marc Krouse, tes­ti­fied that Barbee had killed Underwood by apply­ing between 100 and 400 pounds of force to her throat for a peri­od of 5 to 7 minutes.

Barbee had sought judi­cial review of his attorney’s uni­lat­er­al deci­sion to con­cede his guilt with­out his con­sent, in vio­la­tion of his con­sti­tu­tion­al rights. He also request­ed a new tri­al because new­ly dis­cov­ered evi­dence showed that Krouse had been sus­pend­ed from per­form­ing autop­sy exam­i­na­tions on homi­cide cas­es because of a pat­tern of errors and neg­li­gent prac­tices and that his foren­sic tes­ti­mo­ny con­cern­ing the cause of Underwood’s death was false. An audit of Krouse’s autop­sies con­duct­ed by the Tarrant County Medical Examiner’s Office revealed that Krouse ​“had made 59 mis­takes dur­ing the autop­sies of 40 murder victims.”

In its third botched exe­cu­tion of the year, Arizona exe­cut­ed Murray Hooper. Though Hooper had been on death row for near­ly forty years, the pros­e­cu­tion revealed new infor­ma­tion in the lead-up to Hooper’s clemen­cy hear­ing that sup­port­ed his inno­cence claim and called into ques­tion the tes­ti­mo­ny of a key wit­ness. That infor­ma­tion was nev­er heard in court. Hooper also unsuc­cess­ful­ly sought DNA and fin­ger­print test­ing of evi­dence from his case, cit­ing a recent Arizona law that expand­ed access to mod­ern foren­sic test­ing in old cas­es. At Hooper’s November 16 exe­cu­tion, cor­rec­tions offi­cials once again strug­gled to insert an IV. After ques­tion­ing what was tak­ing the exe­cu­tion team so long to set an IV line, Hooper report­ed­ly turned to the wit­ness­es and asked, ​“Can you believe this?” Executioners even­tu­al­ly resort­ed to insert­ing the IV in Hooper’s femoral vein in the groin area.

On November 17, Oklahoma exe­cut­ed Richard Fairchild, a mil­i­tary vet­er­an with seri­ous men­tal ill­ness and brain dam­age. Fairchild sus­tained sev­er­al trau­mat­ic head injuries dur­ing his youth, both from his abu­sive father and from par­tic­i­pat­ing in box­ing as a teenag­er. His med­ical and mil­i­tary records indi­cate an addi­tion­al five head injuries as an adult. A psychiatrist’s eval­u­a­tion before his tri­al not­ed ​“severe organ­ic brain syn­drome,” but his tri­al lawyer did not ques­tion the psy­chi­a­trist about it dur­ing the tri­al and explained Fairchild’s crime sole­ly as a result of sub­stance abuse. Fairchild’s clemen­cy peti­tion includ­ed an affi­davit from one of his jurors indi­cat­ing that she would not have vot­ed for death if she had known about Fairchild’s brain damage.

Mississippi car­ried out the final exe­cu­tion of the year on December 14, when it exe­cut­ed Thomas Loden Jr. Loden had expe­ri­enced phys­i­cal and sex­u­al abuse dur­ing child­hood, and had attempt­ed sui­cide five times. He was a Marine vet­er­an who received numer­ous awards and medals for his ser­vice, but who devel­oped PTSD as a result of his com­bat expe­ri­ence in the Gulf War. Loden was the fourth mil­i­tary vet­er­an exe­cut­ed in 2022. A pub­lic opin­ion poll released in February 2022 found that 61% of respon­dents opposed the exe­cu­tion of vet­er­ans with PTSD, sug­gest­ing that, if Loden’s tri­al attor­neys had appro­pri­ate­ly inves­ti­gat­ed and pre­sent­ed the mit­i­gat­ing evi­dence in his case, he might have been spared a death sentence.

Key Findings

• Support for cap­i­tal pun­ish­ment remained near his­toric lows amidst ris­ing per­cep­tions of crime
• Large majori­ties of Americans oppose exe­cut­ing peo­ple with men­tal ill­ness, brain dam­age, or intel­lec­tu­al dis­abil­i­ty, or vet­er­ans with PTSD
• Midterm elec­tions favored reform pros­e­cu­tors and guber­na­to­r­i­al can­di­dates sup­port­ing con­tin­u­a­tion of mora­to­ria on executions

Support for cap­i­tal pun­ish­ment in the United States remained near half-cen­tu­ry lows in 2022 despite record-high per­cep­tion that local crime has increased. The results of the 2022 mid-term elec­tion showed gains for can­di­dates favor­ing reform of the crim­i­nal legal sys­tem in the face of an avalanche of dark mon­ey spend­ing attempt­ing to por­tray them as dan­ger­ous­ly soft on crime. 
 

Gallup​’s 2022 Crime Survey, admin­is­tered between October 3 – 20, 2022 against the back­drop of the Parkland school shoot­ing tri­al, report­ed sup­port for cap­i­tal pun­ish­ment held steady at 55%, one per­cent­age point above the 50-year low of 54% in 2021. According to Gallup, sup­port for cap­i­tal pun­ish­ment has remained between 54 – 56% for each of the past six years. 42% of respon­dents told Gallup they oppose the death penal­ty, one per­cent­age point below 2021’s 50-year high.

Support for cap­i­tal pun­ish­ment, which his­tor­i­cal­ly had tracked Americans’ fear of crime, did not mate­ri­al­ly rise despite the largest increase in fifty years in the num­ber of U.S. adults who report­ed that crime is up in the area in which they live. The spike in per­ceived crime was fueled pri­mar­i­ly by a surge in fear among those iden­ti­fy­ing as Republicans, whose per­cep­tion that local crime is ris­ing increased from 38% in the final year of the Trump pres­i­den­cy to 73% at the approach of the first midterm elec­tions of the Biden admin­is­tra­tion. Yet in that same two-year peri­od, Gallup found that Republican sup­port for cap­i­tal pun­ish­ment fell from 82% to 77%. Nationally, 56% of Americans told Gallup that local crime was up.

An October 31, 2022 Pew Research poll not­ed the dis­con­nect between crime data and Americans’ per­cep­tion of crime after being exposed to a tsuna­mi of par­ti­san midterm elec­tion adver­tis­ing that false­ly blamed Democrats and reform pros­e­cu­tors for a rise in vio­lent crime dur­ing the COVID pan­dem­ic. Pew not­ed that, in fact, “[a]nnual gov­ern­ment sur­veys from the Bureau of Justice Statistics show no recent increase in the U.S. vio­lent crime rate.” Although mur­der rates have ​“risen sig­nif­i­cant­ly dur­ing the pan­dem­ic” and the ​“rough­ly 30% increase in the U.S. mur­der rate between 2019 and 2020 [was] one of the largest year-over-year increas­es ever record­ed,” Pew report­ed that ​“the rate remained well below past highs, and mur­der remains the least com­mon type of vio­lent crime overall.”

DPIC reviewed the 2020 mur­der data com­piled by the cen­ter-left think tank The Third Way for its March 2022 report, The Red State Murder Problem. DPIC com­pared the data to states’ death-penal­ty sta­tus and his­toric usage of cap­i­tal pun­ish­ment. That analy­sis found that pan­dem­ic mur­der rates gen­er­al­ly cor­re­lat­ed not just with the pres­ence or absence of the death penal­ty in a state but with the state’s gen­er­al lev­el of death-penal­ty usage. Murder rates in the most­ly high death-penal­ty usage, high pan­dem­ic-mur­der-rate states ranged from rough­ly triple to 23 times high­er than in the most­ly no death penal­ty, low pandemic-murder-rate states.

Gallup​’s 2022 Values and Beliefs Survey, admin­is­tered from May 2 – 22, 2022 and released in June 2022, showed that Americans’ sup­port for cap­i­tal pun­ish­ment mir­rors their views of its moral accept­abil­i­ty. Gallup found that 55% of Americans regard­ed the death penal­ty as moral­ly accept­able, frac­tion­al­ly above the record low of 54% in the organization’s 2020 sur­vey. The num­ber matched the 55% lev­el of accept­abil­i­ty report­ed in the 2021 Values and Beliefs survey.

Public sup­port for cap­i­tal pun­ish­ment varies con­sid­er­ably depend­ing upon the ques­tion that is asked. Gallup peri­od­i­cal­ly asks respon­dents to choose whether the death penal­ty or life with­out pos­si­bil­i­ty of parole ​“is the bet­ter penal­ty for mur­der.” The last time Gallup asked that ques­tion, in 2019, 60% per­cent of Americans chose the life-sen­tenc­ing option, while only 36% favored the death penalty.

A poll by Rasmussen Reports found even less sup­port for cap­i­tal pun­ish­ment than report­ed by Gallup. The Rasmussen poll, con­duct­ed in a tele­phone and online sur­vey October 16 – 17, 2022 and released November 10, 2022, found that few­er than half of American adults now sup­port the death penal­ty. Asked ​“Do you favor or oppose the death penal­ty?” 46% of respon­dents said they favored cap­i­tal pun­ish­ment. Twenty-eight per­cent of respon­dents told Rasmussen they oppose the death penal­ty and 26% said they weren’t sure.

The sur­vey record­ed a con­tin­u­ing decline in expressed sup­port for cap­i­tal pun­ish­ment. Those say­ing they favored the death penal­ty fell by 17 per­cent­age points from the 63% who favored cap­i­tal pun­ish­ment in Rasmussen’s June 2011 nation­al sur­vey. Death penal­ty sup­port also fell by three per­cent­age points from July 2019, when 49% of respon­dents told Rasmussen they favored the death penal­ty.
 

A poll released in February 2022 by the Justice Research Group found that Americans’ sup­port for the death penal­ty was even low­er when asked about the class­es of defen­dants who are most fre­quent­ly sub­ject to the pun­ish­ment. Democrats, Republicans, and Independents by mar­gins of more than 30 per­cent­age points opposed the use of the death penal­ty against peo­ple with severe men­tal ill­ness, brain dam­age, or intel­lec­tu­al impair­ments, and against vet­er­ans with PTSD. The poll found plu­ral­i­ties of each group opposed to seek­ing the death penal­ty against vic­tims of severe abuse, and Americans near­ly even­ly split on the pro­pri­ety of the death penal­ty for ado­les­cent offend­ers between the ages of 18 and 21.

The lev­el of sup­port for cap­i­tal pun­ish­ment mir­rored recent years even in polls admin­is­tered at the height of the American mid-term elec­tions dur­ing a bar­rage of adver­tis­ing that attempt­ed to stoke vot­ers’ fear of violent crime.

Election Results

Despite mas­sive spe­cial inter­est cam­paign spend­ing, elec­tion results at the state and local lev­els reflect­ed con­tin­ued pub­lic sup­port for offi­cials com­mit­ted to crim­i­nal legal sys­tem reform — includ­ing poli­cies that could sig­nif­i­cant­ly reduce the use of the death penalty.

Governors were up for elec­tion in the three states that had offi­cial­ly declared mora­to­ria on exe­cu­tions: California, Oregon, and Pennsylvania. In each of these states, guber­na­to­r­i­al elec­tion results ensure that the mora­to­ria will con­tin­ue. Governor Gavin Newsom, who announced a mora­to­ri­um on exe­cu­tions in 2019 and deci­sive­ly defeat­ed a recall effort in 2021, eas­i­ly won re-elec­tion in California. Governor-elect Tina Kotek, the for­mer Speaker of the Oregon House of Representatives, has promised to extend the state’s exist­ing mora­to­ri­um on exe­cu­tions. Pennsylvania’s next gov­er­nor, Attorney General Josh Shapiro, has also pledged not to sign exe­cu­tion war­rants while in office. Ohio, a state with­out a for­mal mora­to­ri­um, re-elect­ed Governor Mike DeWine, who has issued a series of reprieves to death row pris­on­ers based on obsta­cles to the state’s pro­vi­sion of execution drugs.

Governorships changed hands in two key death-penal­ty states. Nevada​’s Democratic Governor Steve Sisolak, who helped scut­tle a bill to abol­ish the state’s death penal­ty fear­ing it might hurt his re-elec­tion chances, was defeat­ed any­way by Republican Joe Lombardo, the Sheriff of Clark County, the state’s most active death-penal­ty juris­dic­tion. The elec­tion effec­tive­ly fore­clos­es death-penal­ty repeal in the state for the fore­see­able future. In Arizona, Democrat Katie Hobbs won the race to replace term-lim­it­ed Republican Doug Ducey, defeat­ing Republican elec­tion denier, Kari Lake. Also in Arizona, Democrat Kris Mayes, who sup­ports the death penal­ty but was crit­i­cal of the state’s exe­cu­tion botch­es, expen­di­ture of funds to pur­chase cyanide com­pounds for pos­si­ble gas cham­ber exe­cu­tions, and aggres­sive pur­suit of death war­rants, led Republican elec­tion denier Abraham Hamadeh — pend­ing a recount — in the race to replace Attorney General Mark Brnovich.

Prosecutors cam­paign­ing on a com­mit­ment to crim­i­nal legal sys­tem reform were elect­ed in sev­er­al coun­ties that have pre­vi­ous­ly pro­duced a dis­pro­por­tion­ate amount of death sen­tences and exe­cu­tions. These vic­to­ries occurred despite con­sis­tent mes­sag­ing tar­get­ed at fear of vio­lent crime and polit­i­cal attacks against some sit­ting reform pros­e­cu­tors.
 

Voters oust­ed long-time Shelby County, Tennessee pros­e­cu­tor Amy Weirich in favor of Steve Mulroy, a University of Memphis law pro­fes­sor and for­mer coun­ty com­mis­sion­er and fed­er­al civ­il rights pros­e­cu­tor. Weirich, who head­ed an office that rep­re­sent­ed 13% of Tennessee’s pop­u­la­tion but was respon­si­ble for one-third of all death sen­tences in the state, sought re-elec­tion based on what her cam­paign tout­ed as her ​“tough on crime” poli­cies. She faced back­lash from com­mu­ni­ty activists for her efforts to pre­vent Shelby County death-row pris­on­er Pervis Payne from obtain­ing DNA test­ing for his inno­cence claim and for oppos­ing efforts to over­turn Payne’s uncon­sti­tu­tion­al death sen­tence because of his intellectual disability.

Oklahoma County, Oklahoma elect­ed Vicki Behenna, the for­mer exec­u­tive direc­tor of the Oklahoma Innocence Project, to serve as its top pros­e­cu­tor. Behenna will take the pros­e­cu­to­r­i­al reins in a coun­ty that has imposed more death sen­tences over the past fifty years than any oth­er coun­ty its size (pop­u­la­tion between 750,000 – 1,000,000), imposed more death sen­tences in the past decade than any oth­er coun­ty with a pop­u­la­tion under 2.25 mil­lion peo­ple, and car­ried out more than 2.5 times the num­ber of exe­cu­tions of any oth­er com­pa­ra­bly sized coun­ty. The Oklahoma County District Attorney’s office has a long his­to­ry of pros­e­cu­to­r­i­al mis­con­duct, with at least eleven death sen­tences reversed or death-row pris­on­ers exon­er­at­ed because of mis­con­duct. Only three coun­ties in the U.S. have had more wrong­ful­ly con­vict­ed death-row pris­on­ers exon­er­at­ed than Oklahoma County, with the inno­cence issues in the cas­es of Julius Jones and Richard Glossip still unre­solved. 
 

Mulroy and Behenna have not pledged to nev­er seek the death penal­ty but are replac­ing aggres­sive­ly pro-cap­i­tal pun­ish­ment pros­e­cu­tors in coun­ties that have been dis­pro­por­tion­ate dri­vers of death sentencing.

In Alameda County, California, civ­il rights attor­ney Pamela Price won the dis­trict attorney’s race. Price, a for­mer defense attor­ney, will be the first Black woman to serve in the role. She cam­paigned on promis­es to right past wrongs, includ­ing seek­ing resen­tenc­ing for all 41 peo­ple cur­rent­ly on death row from Alameda County and those sen­tenced to life with­out parole. Price’s elec­tion was seen as a test of the dura­bil­i­ty of pros­e­cu­to­r­i­al reform after the recall of San Francisco District Attorney Chesa Boudin. Price’s elec­tion rein­forced the mes­sage sent by the failed attempt to recall Los Angeles District Attorney George Gascón, that California vot­ers remain recep­tive to pros­e­cu­to­r­i­al reform.
 

Reform pros­e­cu­tors John Creuzot (Dallas) and Joe Gonzales (San Antonio) were re-elect­ed in Texas, despite oppo­nents’ con­cert­ed efforts to attack their reform ini­tia­tives. Elsewhere in Texas, Fort Bend’s reform D.A. Brian Middleton was re-elect­ed with­out oppo­si­tion and reformer Kelly Higgins won the District Attorney elec­tion in Hays County.

Incumbent pros­e­cu­tors who have signed a pledge to work to end the death penal­ty were re-elect­ed in Durham and Buncombe coun­ties in North Carolina (Democrats Satana Deberry and Todd Williams); St. Louis County, Missouri (Democrat Wesley Bell), and Salt Lake County, Utah (Republican Sam Gill). County Attorney David Leavitt, who sup­port­ed a bill to abol­ish the state’s death penal­ty, faced attacks based upon QAnon con­spir­a­cy the­o­ries, and was defeat­ed in the Republican pri­ma­ry elec­tion in Utah County.

Key Findings

• The 20 death sen­tences imposed in 2022 were few­er than in any year pri­or to the pandemic
• No coun­ty imposed more than one new death sen­tence in 2022
• The life sen­tence imposed in the Parkland School shoot­ing and oth­er mul­ti­ple-vic­tim cas­es high­light­ed the dis­pro­por­tion­al­i­ty of cap­i­tal mur­der ver­dicts in 2022

Twenty death sen­tences were imposed in 2022, two more than the record lows in the pan­dem­ic years of 2020 and 2021, but few­er by far than in any pre-pan­dem­ic year in the mod­ern era of the death penal­ty. Death ver­dicts were con­cen­trat­ed in his­tor­i­cal­ly high-sen­tenc­ing states, although four states imposed their first death sen­tences since the begin­ning of the pan­dem­ic. Life sen­tences in the Parkland school shoot­ing case and oth­er sig­nif­i­cant mul­ti-vic­tim cas­es demon­strat­ed the dis­pro­por­tion­al­i­ty of many of the death sen­tences imposed in 2022. Those death sen­tences also dis­pro­por­tion­al­ly involved cas­es with the most vul­ner­a­ble defen­dants or the great­est defects in legal process.

The 2022 death sen­tences includ­ed at least four defen­dants who expe­ri­enced men­tal health issues result­ing from chron­ic expo­sure to child­hood trau­ma, two who were per­mit­ted to waive impor­tant tri­al rights and then asked for the death penal­ty, one with brain dam­age exac­er­bat­ed by chem­i­cal depen­dence and sub­stance abuse dis­or­der, one with an IQ in the intel­lec­tu­al­ly dis­abled range who had a one-day sen­tenc­ing tri­al, and one mil­i­tary vet­er­an. One pris­on­er, Ricky Dubose in Georgia, died by sui­cide ten days after being sen­tenced to death. Seven death sen­tences were imposed in cas­es in which law enforce­ment or cor­rec­tions offi­cers were vic­tims, includ­ing the first Sikh deputy in Texas.

Nineteen men and one woman, Taylor Parker (Texas), were sen­tenced to death.

Florida imposed the most death sen­tences in the U.S. in 2022 with four. Alabama imposed three, and California, North Carolina and Texas each imposed two. These states, which also cur­rent­ly have the five largest death rows in the U.S., were the only states to impose mul­ti­ple death sen­tences. Seven oth­er states — Arizona, Georgia, Louisiana, Mississippi, Missouri, Oklahoma, and Pennsylvania — imposed a sin­gle death sen­tence each.
 

Harris County, Texas defen­dant Robert Solis fired his lawyers and rep­re­sent­ed him­self in his tri­al for the mur­der of the county’s first Sikh sheriff’s deputy. In the penal­ty phase, he asked the jury to sen­tence him to death. After only 35 min­utes of delib­er­a­tion, the jury sen­tenced him to death.

William Roberts was sen­tenced to death in Lake County, Florida after also vol­un­teer­ing for the death penal­ty. Roberts waived a jury tri­al, tried to rep­re­sent him­self in court, refused to attend parts of the tri­al, would not per­mit his coun­sel to present mit­i­gat­ing evi­dence, and asked the judge to sen­tence him to death.

In Louisiana, Kevin Daigle was for­mal­ly sen­tenced to death in Calcasieu Parish for the mur­der of a state troop­er in 2015. His tri­al was ini­tial­ly delayed when the tri­al judge, who had a long­time work­ing and social media rela­tion­ship with the victim’s wid­ow — a court employ­ee who was sched­uled to be a pros­e­cu­tion penal­ty-phase wit­ness — refused to recuse him­self from the case. After false­ly deny­ing in a writ­ten opin­ion that he had social media con­tact with the wit­ness, the judge lat­er admit­ted to the rela­tion­ship under oath. The Louisiana Supreme Court sub­se­quent­ly ordered that a new judge be des­ig­nat­ed to han­dle the case. Daigle was con­vict­ed in 2019, and the jury at that tri­al rec­om­mend­ed the death penal­ty. However, dur­ing post-tri­al motions, the pros­e­cu­tion and defense agreed that one of the jurors had been improp­er­ly impan­eled and that the death ver­dict should be vacat­ed. Daigle, who suf­fers from brain dam­age, chem­i­cal addic­tion and sub­stance abuse, and has a his­to­ry of child­hood trau­ma, was again sen­tenced to death this year.

Jimmy Spencer was sen­tenced to death in Alabama despite sig­nif­i­cant evi­dence that he was inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. His lawyers filed a motion pre­tri­al to bar the death penal­ty, pre­sent­ing an IQ score of 56 (far below the 70 – 75 IQ range con­sid­ered indica­tive of intel­lec­tu­al dis­abil­i­ty), school records that showed he failed mul­ti­ple grades and was placed in spe­cial edu­ca­tion, and evi­dence that he can­not read or write. A prison IQ test placed Spencer’s IQ at 73. The judge denied Spencer’s motion and allowed the case to pro­ceed as a cap­i­tal tri­al. Spencer’s penal­ty phase was tried in a sin­gle day, with his defense coun­sel pre­sent­ing a mit­i­ga­tion inves­ti­ga­tor as the only live wit­ness. The jury took just 40 min­utes to return a death sentence.

Eleven death sen­tences (55%) were imposed on defen­dants of col­or. Eight Black defen­dants and three Latino defen­dants were sen­tenced to death. Most cas­es involved defen­dants and vic­tims of the same race, but one Black defen­dant was sen­tenced to death for the mur­der of a white woman and one white defen­dant was sen­tenced to death for the mur­der of his bira­cial daugh­ter. At least four cas­es involved mul­ti­ple vic­tims of different races.

For the first time in nine years, a Missouri jury rec­om­mend­ed a death sen­tence, but St. Charles County Judge Daniel Pelikan exer­cised his author­i­ty ​“to reduce the pun­ish­ment [rec­om­mend­ed by the jury] with­in the statu­to­ry lim­its pre­scribed for the offense if it finds that the pun­ish­ment is exces­sive.” In 2017, Marvin Rice had been sen­tenced to death by a judge after his jury vot­ed 11 – 1 for a life sen­tence. Under Missouri law, a non-unan­i­mous sen­tenc­ing rec­om­men­da­tion is con­sid­ered a hung jury, trig­ger­ing a statu­to­ry pro­vi­sion that allows the tri­al judge to inde­pen­dent­ly impose sen­tence. The Missouri Supreme Court over­turned that death sen­tence because the pros­e­cu­tor had improp­er­ly com­ment­ed on Rice’s deci­sion not to tes­ti­fy, vio­lat­ing his Fifth Amendment right. Judge Pelikan report­ed­ly con­sid­ered the 2017 jury’s deci­sion in choos­ing to sen­tence Rice to life. Later in the year, Missouri sen­tenced Richard Emery to death, mark­ing the first time since 2013 that a Missouri jury and judge agreed to impose a death sentence.

As pan­dem­ic restric­tions eased and courts began to re-open, five states imposed their first death sen­tences since the start of the pan­dem­ic: Georgia, Louisiana, Missouri, North Carolina, and Pennsylvania.

Notable Cases in Which Death Sentences Were Rejected

A num­ber of cas­es that result­ed in life sen­tences in 2022 pro­vid­ed evi­dence of the con­tin­u­ing arbi­trari­ness and dis­pro­por­tion­al­i­ty of capital punishment.

In October, a Florida jury rec­om­mend­ed a sen­tence of life with­out parole for Nikolas Cruz, the man con­vict­ed of killing 17 peo­ple in a mass shoot­ing at Marjory Stoneman Douglas High School. Prosecutors had reject­ed a defense offer in 2019 for Cruz to plead guilty and be sen­tenced to 34 con­sec­u­tive life sen­tences. They remained adamant in their desire to pur­sue a death sen­tence in 2021 after Cruz plead­ed guilty to 17 counts of mur­der and 17 counts of attempt­ed mur­der. After a six-month sen­tenc­ing tri­al marked by delays and a chaot­ic jury selec­tion process, three jurors found that the mit­i­gat­ing evi­dence out­weighed the aggra­vat­ing evi­dence. As in the vast major­i­ty of U.S. states, Florida law requires a unan­i­mous jury vote to impose a death sen­tence, and Cruz was sen­tenced to life with­out parole. The ver­dict was rem­i­nis­cent of the out­come in the Aurora, Colorado movie the­ater mass shoot­ing case in 2015, in which three jurors found that the evi­dence of James Holmes’ seri­ous men­tal ill­ness war­rant­ed a life ver­dict. Twelve peo­ple were killed and dozens wound­ed in that shooting.

Cuyahoga County (Cleveland), Ohio pros­e­cu­tors sought the death penal­ty for Armond Johnson, who was con­vict­ed of mur­der­ing four peo­ple, includ­ing two chil­dren. Though pros­e­cu­tor Michael O’Malley said, ​“His cal­lous actions demand that he face the ulti­mate pun­ish­ment,” the jury found that the aggra­vat­ing cir­cum­stances in the case did not out­weigh Johnson’s mit­i­gat­ing cir­cum­stances. Johnson’s lawyers pre­sent­ed evi­dence of his men­tal ill­ness and the chron­ic neglect, trau­ma, and extreme pover­ty to which he was con­stant­ly sub­ject­ed through­out his child­hood. Johnson was sen­tenced to life with­out parole. The case was the sec­ond time in 2022 in which a Cuyahoga County jury reject­ed a death sen­tence – in February, a life sen­tence was imposed in the cap­i­tal tri­al of Kodi Gibson.

Also in Ohio, pros­e­cu­tors reached a deal to take the death penal­ty off the table in the cap­i­tal pros­e­cu­tion of George Wagner IV in the so-called ​“Pike County mas­sacre.” Wagner and his fam­i­ly mem­bers were charged with the mur­ders in sev­er­al dif­fer­ent loca­tions of eight mem­bers of the Rhoden fam­i­ly. The mur­ders result­ed in the largest and most expen­sive homi­cide inves­ti­ga­tion in Ohio his­to­ry. After a 13-week cap­i­tal tri­al, George Wagner was con­vict­ed of 8 counts of mur­der on November 30. However, he will for­mal­ly be sen­tenced to life on December 19 pur­suant to a plea deal between pros­e­cu­tors and Wagner’s broth­er Jake, in which Jake plead­ed guilty and agreed to tes­ti­fy against his oth­er fam­i­ly mem­bers if the death penal­ty was not imposed against them. Their father, Billy Wagner, faces a cap­i­tal tri­al in 2023, but also will not be sen­tenced to death pur­suant to the plea deal.

On August 19, the eighth anniver­sary of the mur­der of jour­nal­ist James Foley, a U.S. fed­er­al dis­trict judge in Virginia imposed eight life sen­tences on Islamic State mil­i­tant El Shafee Elsheikh. Elsheikh, one of the so-called ​“ISIS Beatles,” was con­vict­ed of mur­der­ing Foley, jour­nal­ist Steven Sotloff, and human­i­tar­i­an work­ers Peter Kassig and Kayla Mueller, who were kid­napped and held hostage in Iraq. Federal pros­e­cu­tors dropped pur­suit of the death penal­ty in order to secure British coop­er­a­tion in the inves­ti­ga­tion of Elsheikh and his co-defen­dant, Alexanda Kotey, both of whom grew up in Britain. Kotey was sen­tenced to life in 2021. Diane Foley, the moth­er of James Foley and a lead­ing advo­cate for Americans held hostage abroad, hailed the life sen­tence as ​“a huge vic­to­ry” and ​“a very impor­tant deter­rent.” She told Fox News that she con­sid­ered a life sen­tence ​“a much more just sen­tence” than the death penal­ty. ​“These young men will have to spend the rest of their lives think­ing about what they did and why they’ve lost their free­dom, coun­try, and fam­i­ly,” she said.

Key Findings

• The U.S. Supreme Court con­tin­ued to with­draw the fed­er­al courts from reg­u­la­tion of death-penal­ty cas­es, lim­it­ing access to fed­er­al habeas cor­pus review for death-row pris­on­ers, vacat­ing low­er court rul­ings that had halt­ed exe­cu­tions, and declin­ing to review death-penal­ty cas­es that pre­sent­ed seri­ous constitutional issues
• The Court’s con­tro­ver­sial rul­ing in Shinn v. Ramirez ele­vat­ed con­cerns for ​“state’s rights” and the final­i­ty of state court judg­ments over issues of exe­cut­ing the inno­cent, inel­i­gi­bil­i­ty for the death penal­ty, and redress­ing defec­tive state-court process
• Justice Ketanji Brown Jackson became the first Black woman and first pub­lic defend­er to serve on the U.S. Supreme Court

The U.S. Supreme Court con­tin­ued its efforts through­out 2022 to weak­en or with­draw fed­er­al-court reg­u­la­tion of death-penal­ty cas­es. Those efforts were man­i­fest both in court deci­sions severe­ly lim­it­ing pris­on­ers’ access to fed­er­al habeas cor­pus review to devel­op evi­dence of inno­cence, inel­i­gi­bil­i­ty for the death penal­ty, or con­sti­tu­tion­al vio­la­tions at tri­al or sen­tenc­ing and in refusals to review death-penal­ty issues that pre­sent­ed sig­nif­i­cant claims of constitutional violations.

The Court also con­tin­ued its pat­tern of sum­mar­i­ly inter­ven­ing to per­mit exe­cu­tions in cas­es in which the low­er fed­er­al courts had issued injunc­tions or stays of exe­cu­tion nec­es­sary to adju­di­cate sig­nif­i­cant legal issues and in uni­form­ly deny­ing defense appli­ca­tions for stays of exe­cu­tion. Since the death of Justice Ruth Bader Ginsburg and the retire­ment of Justice Anthony Kennedy, the Court has not grant­ed a sin­gle stay of exe­cu­tion con­cern­ing the con­sti­tu­tion­al­i­ty of a death-row prisoner’s con­vic­tion or sen­tence. The only exe­cu­tion stays it has grant­ed have been in cas­es impli­cat­ing the extent to which a reli­gious fig­ure may pro­vide spir­i­tu­al com­fort to a pris­on­er in the death cham­ber dur­ing his or her execution.

2022 also saw the retire­ment of Justice Stephen Breyer, the Court’s most per­sis­tent death-penal­ty skep­tic and the his­toric con­fir­ma­tion of Justice Ketanji Brown Jackson, the first African American woman and first fed­er­al pub­lic defend­er to serve as a jus­tice on the Court.

The Court’s most sig­nif­i­cant death-penal­ty rul­ing of 2022 came in the con­sol­i­dat­ed cas­es of Shinn v. Ramirez and Shinn v. Jones, with a deci­sion that severe­ly lim­it­ed access to the fed­er­al courts for state pris­on­ers who had been pro­vid­ed a suc­ces­sion of inef­fec­tive lawyers in state court. David Ramirez and Barry Jones had been sen­tenced to death in sep­a­rate pro­ceed­ings in Arizona, and each argued dur­ing fed­er­al habeas review that they were enti­tled to present evi­dence of their counsel’s inef­fec­tive­ness for the first time in fed­er­al court because their state post-con­vic­tion coun­sel had also pro­vid­ed them inef­fec­tive rep­re­sen­ta­tion in fail­ing to inves­ti­gate and raise that issue.

Jones argued that tri­al and post-con­vic­tion coun­sel had both failed to devel­op evi­dence of his inno­cence. Ramirez argued that tri­al and post-con­vic­tion coun­sel had both failed to devel­op mit­i­gat­ing evi­dence that could have result­ed in a life sen­tence and evi­dence of his intel­lec­tu­al dis­abil­i­ty that could have estab­lished his con­sti­tu­tion­al inel­i­gi­bil­i­ty for the death penal­ty. In 2012, a 7 – 2 major­i­ty of the Court had ruled in Martinez v. Ryan that state pris­on­ers could chal­lenge the inef­fec­tive­ness of tri­al coun­sel in fed­er­al habeas court for the first time if they had been denied effec­tive assis­tance of coun­sel in state post-con­vic­tion pro­ceed­ings. Consistent with the rul­ings of every fed­er­al appeals court that had pre­vi­ous­ly inter­pret­ed Martinez, the U.S. Court of Appeals for the Ninth Circuit ruled that a fed­er­al evi­den­tiary forum was avail­able to the peti­tion­ers on the claim of tri­al counsel’s inef­fec­tive­ness, once they had shown post-con­vic­tion counsel’s inef­fec­tive­ness in fail­ing to raise the issue in state court. The Ninth Circuit affirmed a dis­trict court find­ing that Jones had been pro­vid­ed seri­al­ly inef­fec­tive rep­re­sen­ta­tion con­cern­ing his inno­cence, and upheld the low­er court rul­ing vacat­ing his con­vic­tion and grant­i­ng him a new tri­al. In Ramirez’s case, the Circuit Court ordered an evi­den­tiary hear­ing to deter­mine the mer­its of his tri­al inef­fec­tive­ness claim. Arizona filed a com­bined peti­tion for cer­tio­rari ask­ing the Supreme Court to joint­ly review the case and reverse the Circuit’s rulings.

Writing for the con­ser­v­a­tive major­i­ty in Ramirez and Jones, Justice Clarence Thomas called fed­er­al judi­cial inter­ven­tion to over­turn a state prisoner’s con­vic­tion and sen­tence an ​“intru[sion] on state sov­er­eign­ty … [that] over­rides the State’s sov­er­eign pow­er to enforce soci­etal norms through crim­i­nal law.” Although Martinez per­mit­ted a habeas peti­tion­er to raise a claim of tri­al counsel’s inef­fec­tive­ness that state post-con­vic­tion coun­sel had failed to inves­ti­gate and present, Thomas wrote: ​“a fed­er­al habeas court may not con­duct an evi­den­tiary hear­ing or oth­er­wise con­sid­er evi­dence beyond the state-court record based on inef­fec­tive assis­tance of state post­con­vic­tion coun­sel.” Joined by Justice Stephen Breyer and Elana Kagan, Justice Sonia Sotomayor issued a scathing dis­sent describ­ing the deci­sion ​“per­verse” and ​“illog­i­cal.” The rul­ing, she wrote, ​“evis­cer­ates” con­trol­ling case prece­dent and ​“mis­char­ac­ter­izes” oth­er deci­sions of the Court. ​“The Court,” Sotomayor said, ​“arro­gates pow­er from Congress[,] … improp­er­ly recon­fig­ures the bal­ance Congress struck in the [habeas amend­ments] between state inter­ests and indi­vid­ual con­sti­tu­tion­al rights,” and ​“gives short shrift to the egre­gious break­downs of the adver­sar­i­al sys­tem that occurred in these cas­es, break­downs of the type that fed­er­al habeas review exists to cor­rect.” The deci­sion, she cau­tioned, would ​“doom many mer­i­to­ri­ous tri­al-inef­fec­tive­ness claims” that oth­er­wise would result in relief.

The deci­sion also pro­duced harsh reac­tions from legal schol­ars, who blast­ed it as ​“night­mar­ish” and ​“an abomination.”

The Court fur­ther lim­it­ed access to fed­er­al review in Shoop v. Twyford, nar­row­ing the cir­cum­stances in which a habeas peti­tion­er can obtain the assis­tance of a fed­er­al court in devel­op­ing evi­dence. Ohio death-row pris­on­er Raymond Twyford​’s habeas coun­sel sought to devel­op evi­dence to sup­port a claim that his lawyer at tri­al had been inef­fec­tive in fail­ing to inves­ti­gate or devel­op evi­dence of neu­ro­log­i­cal impair­ments he suf­fered after a failed sui­cide attempt when he was 13 years old. During fed­er­al habeas review, coun­sel asked the court for an order to trans­port Twyford to a med­ical facil­i­ty for neu­ro­log­i­cal imag­ing as part of their inves­ti­ga­tion into his men­tal com­pe­ten­cy and his tri­al counsel’s inef­fec­tive­ness. The dis­trict court grant­ed Twyford’s motion, and Ohio pros­e­cu­tors appealed. The U.S. Court of Appeals for the Sixth Circuit agreed with Twyford that the dis­trict court had juris­dic­tion to issue the trans­port order. Rather than answer that ques­tion, the Supreme Court instead held that the trans­porta­tion order had been inap­pro­pri­ate because Twyford did not make a spe­cif­ic show­ing that the evi­dence would be admis­si­ble under the restric­tions imposed by the Anti-Terrorism and Effective Death Penalty Act (AEDPA).

The Supreme Court’s most sig­nif­i­cant sub­stan­tive death penal­ty rul­ing in 2022 was its March 4 deci­sion in United States v. Tsarnaev, reim­pos­ing the death penal­ty on fed­er­al death row pris­on­er Dzhokhar Tsarnaev for his role in the Boston Marathon bomb­ing. The U.S. Court of Appeals for the First Circuit had over­turned Tsarnaev’s death sen­tence, hold­ing that the tri­al judge had improp­er­ly pre­vent­ed Tsarnaev’s lawyers from ques­tion­ing jurors about the nature of their expo­sure to pre­tri­al pub­lic­i­ty and uncon­sti­tu­tion­al­ly exclud­ed mit­i­gat­ing evi­dence of a mur­der com­mit­ted by Tsarnaev’s vio­lent, rad­i­cal­ized old­er broth­er that Tsarnaev argued would show that he had act­ed under his brother’s dom­i­nat­ing influ­ence. In a 6 – 3 par­ti­san-line rul­ing, Justice Thomas reversed the Circuit Court, assert­ing that tri­al court had not abused the broad dis­cre­tion afford­ed dis­trict court judges in ques­tion­ing jurors and in admitting evidence.

******

In Nance v. Ward, the Court faced a nar­row pro­ce­dur­al ques­tion about the man­ner in which death-row pris­on­er Michael Nance should have chal­lenged the con­sti­tu­tion­al­i­ty of Georgia​’s method of exe­cu­tion. Historically, such chal­lenges — which do not con­test the con­sti­tu­tion­al­i­ty of the death sen­tence itself — have been brought under the fed­er­al civ­il rights act, and that is what Nance did. However, recent U.S. Supreme Court case prece­dent requires pris­on­ers to offer an alter­na­tive method for their own exe­cu­tion before they may chal­lenge the state’s intend­ed method, and Georgia argued that the des­ig­na­tion of any method oth­er than lethal injec­tion — the sole method autho­rized under its state law — con­sti­tut­ed a chal­lenge to the prisoner’s under­ly­ing sen­tence that must be brought under the habeas cor­pus statute. If that were the case, every pris­on­er whose habeas cor­pus peti­tion had been denied before the issuance of a death war­rant would be time barred from chal­leng­ing the execution method.

Nance suf­fers from a med­ical con­di­tion that has so com­pro­mised his veins that the only way to per­form an exe­cu­tion by lethal injec­tion would be by cut­ting into his his neck to insert an intra­venous line. So instead of lethal injec­tion, he des­ig­nat­ed fir­ing squad as his des­ig­nat­ed alternative method.

In a 5 – 4 deci­sion in which Chief Justice John Roberts and Justice Brett Kavanaugh joined the Court’s three lib­er­al jus­tices, the Court ruled in Nance’s favor, retain­ing a sin­gle pro­ce­dur­al mech­a­nism for method-of-exe­cu­tion chal­lenges. Writing for the Court, Justice Kagan not­ed that to do oth­er­wise would per­mit a state to avoid chal­lenges to the con­sti­tu­tion­al­i­ty of its exe­cu­tion pro­to­col, no mat­ter how bla­tant­ly tor­tu­ous, by des­ig­nat­ing it as the only legal­ly autho­rized method of execution.

In Ramirez v. Collier, the Court stayed the exe­cu­tion of John Ramirez in September 2021 to con­sid­er his chal­lenge to Texas’ refusal to per­mit his pas­tor to be present in the exe­cu­tion cham­ber, lay hands on him, and pray out loud dur­ing his exe­cu­tion. Although Texas sub­se­quent­ly agreed to allow his spir­i­tu­al advi­sor in the exe­cu­tion cham­ber, it denied Ramirez’s requests for phys­i­cal touch and audi­ble prayer. In an 8 – 1 deci­sion, the Court found that Ramirez was like­ly to suc­ceed on his reli­gious rights claim and returned the case to the low­er courts to ful­ly adju­di­cate his claim. Texas and Ramirez came to an agree­ment on what his pas­tor was per­mit­ted to do in the exe­cu­tion cham­ber and he was exe­cut­ed October 5.

In 2022, the Court denied every appli­ca­tion for a stay of exe­cu­tion filed by a death-row pris­on­er and inter­vened in mul­ti­ple cas­es to vacate stays of exe­cu­tion or injunc­tions issued by the low­er federal courts.

Matthew Reeves, an intel­lec­tu­al­ly dis­abled death-row pris­on­er in Alabama, chal­lenged his exe­cu­tion by lethal injec­tion argu­ing that he would have des­ig­nat­ed exe­cu­tion by nitro­gen hypox­ia but for the Alabama Department of Corrections’ fail­ure to explain a form ADOC had dis­trib­uted requir­ing pris­on­ers to elect a method of exe­cu­tion. That fail­ure, he argued vio­lat­ed his rights under the Americans with Disabilities Act. The U.S. District Court for the Middle District of Alabama deter­mined that Reeves was like­ly to pre­vail on his claim and grant­ed him a pre­lim­i­nary injunc­tion on January 7, 2022 bar­ring Alabama from exe­cut­ing him ​“by any method oth­er than nitro­gen hypox­ia before his [Americans with Disabilities Act] claim can be decid­ed on its mer­its.” The U.S. Court of Appeals for the Eleventh Circuit unan­i­mous­ly affirmed that injunc­tion on January 26, just one day before his sched­uled exe­cu­tion. In a 5 – 4 rul­ing issued after the exe­cu­tion was sched­uled to begin, the Court vacat­ed the injunc­tion and Reeves was exe­cut­ed. Justice Amy Coney Barrett and the three lib­er­al jus­tices vot­ed to leave the injunc­tion in place.

In a dis­sent­ing opin­ion joined by Justices Breyer and Sotomayor, Justice Kagan wrote: ​“Four judges on two courts have decid­ed — after exten­sive record devel­op­ment, brief­ing, and argu­ment — that Matthew Reeves’ exe­cu­tion should not pro­ceed as sched­uled tonight. The law demands that we give their con­clu­sions def­er­ence. But the Court today dis­re­gards the well-sup­port­ed find­ings made below, con­sign­ing Reeves to a method of exe­cu­tion he would not have cho­sen if prop­er­ly informed of the alternatives.”

The Court also issued after-hours orders vacat­ing stays or injunc­tions pend­ing fur­ther lit­i­ga­tion in two oth­er cas­es, clear­ing the path for Alabama to attempt the failed exe­cu­tions of Alan Miller and Kenneth Smith. On September 19, the dis­trict court issued a pre­lim­i­nary injunc­tion enjoin­ing Alabama from exe­cut­ing Miller ​“by any method oth­er than nitro­gen hypox­ia.” The Court found that ​“Miller has pre­sent­ed con­sis­tent, cred­i­ble, and uncon­tro­vert­ed direct evi­dence that he sub­mit­ted an elec­tion form in the man­ner he says was announced to him by the [ADOC]” along with ​“cir­cum­stan­tial evi­dence” that ADOC lost or mis­placed his form. A divid­ed pan­el of the U.S. Court of Appeals for the Eleventh Circuit upheld the injunc­tion on the after­noon of Miller’s exe­cu­tion. At about 9:15 p.m. Central Time, the U.S. Supreme Court vacat­ed the injunc­tion, leav­ing Alabama approx­i­mate­ly 2½ hours to car­ry out the exe­cu­tion before the war­rant expired. Justice Jackson joined Justices Sotomayor, Kagan, and Barrett in dis­sent. The U.S. Court of Appeals for the Eleventh Circuit grant­ed Smith a stay of exe­cu­tion on November 17, 2022, the day he was sched­uled to be put to death. In a 6 – 3 par­ty-line vote, the Court vacat­ed the stay.

This term also intro­duced a new voice to the Court, with the his­toric June 30 con­fir­ma­tion of Ketanji Brown Jackson as an Associate Justice of the U.S. Supreme Court. Justice Jackson fills the judi­cial spot on the Court left vacant by the retire­ment of Justice Breyer, for whom she pre­vi­ous­ly clerked. Justice Jackson is the first for­mer fed­er­al pub­lic defend­er to serve on the Court, the first jus­tice since Thurgood Marshall to have sig­nif­i­cant expe­ri­ence rep­re­sent­ing indi­gent crim­i­nal defen­dants, and the first Black woman to serve as a jus­tice in the Court’s history.

Justice Jackson issued her first writ­ten opin­ion as a mem­ber of the Supreme Court in dis­sent­ing from the Court’s denial of cer­tio­rari review in Chinn v. Shoop, death-row pris­on­er Davel Chinn​’s appeal of the Ohio fed­er­al courts’ denial of his claim that pros­e­cu­tors uncon­sti­tu­tion­al­ly with­held evi­dence favor­able to the defense. Both the Ohio fed­er­al dis­trict court and the U.S. Court of Appeals for the Sixth Circuit agreed that the pros­e­cu­tion had improp­er­ly with­held the evi­dence from the defense, but they denied relief on his claim assert­ing that the with­held evi­dence had not been mate­r­i­al to his conviction.

The Supreme Court declined to review the case, but Justice Jackson, joined by Justice Sotomayor, dis­sent­ed, writing:

“There is no dis­pute that, dur­ing the cap­i­tal tri­al of peti­tion­er Davel Chinn, the State sup­pressed excul­pa­to­ry evi­dence indi­cat­ing that the State’s key wit­ness, Marvin Washington, had an intel­lec­tu­al dis­abil­i­ty that may have affect­ed Washington’s abil­i­ty to remem­ber, per­ceive fact from fic­tion, and tes­ti­fy accu­rate­ly. When affirm­ing on direct appeal, the Ohio Supreme Court said “[i]f the jury accept­ed Washington’s tes­ti­mo­ny, the jury was cer­tain to con­vict [Chinn], but if the jury did not believe Washington, it was cer­tain to acquit [Chinn] of all charges.” Similarly, the Ohio Court of Appeals said that Washington was the ​“key” and ​“main” wit­ness against Chinn. Yet, when con­front­ed dur­ing state post­con­vic­tion pro­ceed­ings with the State’s sup­pres­sion of evi­dence that would have sub­stan­tial­ly impeached this key wit­ness, the Ohio courts sud­den­ly con­clud­ed that evi­dence was not ​“mate­r­i­al” enough to have affect­ed the trial.”

Saying that the low­er fed­er­al courts had applied the wrong legal stan­dard in uphold­ing the state court’s rul­ing, Jackson wrote: ​“Because Chinn’s life is on the line, and giv­en the sub­stan­tial like­li­hood that the sup­pressed records would have changed the out­come at tri­al based on the Ohio courts’ own rep­re­sen­ta­tions, I would sum­mar­i­ly reverse to ensure that the Sixth Circuit con­ducts its mate­ri­al­i­ty analy­sis under the proper standard.”

The Court’s refusal to review the Chinn case illus­trates anoth­er trend in the Court’s deci­sions in 2022, repeat­ed­ly deny­ing cer­tio­rari review in death-penal­ty cas­es in which state and fed­er­al court had denied relief on sig­nif­i­cant con­sti­tu­tion­al claims. Those cas­es include that of Texas death-row pris­on­er Andre Thomas, a severe­ly men­tal­ly ill Black man con­vict­ed of mur­der­ing his wife, who was a white woman, her daugh­ter from a pre­vi­ous rela­tion­ship, who was white, and their son, who was bira­cial. Thomas chal­lenged his con­vic­tion and sen­tence because his tri­al lawyer agreed to impan­el three jurors who expressed clear bias against inter­ra­cial mar­riage or thought inter­ra­cial cou­ples should not have chil­dren, with­out so much as ask­ing them any ques­tions about their bias­es. The Court vot­ed 6 – 3 to deny certiorari.

The Court also refused to review a sig­nif­i­cant con­sti­tu­tion­al ques­tion raised by Rodney Young, who was sen­tenced to death in Georgia despite agree­ment by men­tal health experts that he met the med­ical require­ments for intel­lec­tu­al dis­abil­i­ty. For med­ical pur­pos­es, proof of the dis­or­der requires a diag­no­sis to a rea­son­able degree of med­ical cer­tain­ty. But Georgia requires cap­i­tal defen­dants and death-row pris­on­ers to prove intel­lec­tu­al dis­abil­i­ty beyond a rea­son­able doubt before they can be inel­i­gi­ble for the death penal­ty. No oth­er state has such an extreme require­ment, and no one con­vict­ed of com­mit­ting a mur­der in Georgia has ever been able to meet that stan­dard. But despite the extreme out­lier sta­tus of Georgia’s rule, the Court denied cer­tio­rari review for Young.

The Court’s refusal to grant a stay of exe­cu­tion to Missouri death-row pris­on­er Kevin Johnson also raised ques­tions regard­ing its com­mit­ment to fair process and the enforce­ment of con­sti­tu­tion­al pro­tec­tions against racial bias. A spe­cial pros­e­cu­tor appoint­ed by a St. Louis County tri­al court had found that Johnson’s death sen­tence was a prod­uct of dis­crim­i­na­to­ry pros­e­cu­to­r­i­al prac­tices by for­mer coun­ty pros­e­cu­tor Robert McCullough. Based on those find­ings, the spe­cial pros­e­cu­tor sought to stay Johnson’s exe­cu­tion and over­turn his death sen­tence under a Missouri statute that man­dat­ed an evi­den­tiary hear­ing when the pros­e­cu­tion pre­sent­ed evi­dence of prej­u­di­cial con­sti­tu­tion­al error. The tri­al court nev­er­the­less refused to stay Johnson’s exe­cu­tion. Scheduling oral argu­ment in his case for the day before the exe­cu­tion was set to take place, the Missouri Supreme Court also declined to grant a stay, with­out rul­ing on the mer­its of the spe­cial prosecutor’s asser­tions. The U.S. Supreme Court then declined to stay Johnson’s exe­cu­tion to per­mit him to have his day in court on the dis­crim­i­na­tion claims, and he was exe­cut­ed November 29.

In a dis­sent issued the day after Johnson’s exe­cu­tion and joined by Justice Sotomayor, Justice Jackson wrote that the Missouri Supreme Court had ​“flout­ed the plain lan­guage” of the state law that required an evi­den­tiary hear­ing when a pros­e­cu­tor seeks to vacate a con­vic­tion based upon evi­dence ​“demon­strat­ing a ​‘con­sti­tu­tion­al error at the orig­i­nal tri­al … that under­mines the con­fi­dence in the judg­ment.’” Johnson’s exe­cu­tion, Jackson wrote, ​“irrev­o­ca­bly moot­ed our con­sid­er­a­tion of his due process claim, and Missouri would have suf­fered no dis­cernible harm if a stay had issued, as a State has no legit­i­mate inter­est in car­ry­ing out an exe­cu­tion con­trary to [its laws] or due process.” As a result, ​“new evi­dence relat­ing to the tri­al prosecutor’s racial­ly biased prac­tices and racial­ly insen­si­tive remarks … will not be con­sid­ered on the mer­its by any court, much less the one that was sup­posed to base its con­clu­sions about the valid­i­ty of Johnson’s con­vic­tion on all such evi­dence, per the statutory mandate.”

Several oth­er cap­i­tal cas­es that are await­ing Supreme Court deci­sion at the end of 2022 may serve as bell­wethers on how far the Court is will­ing to go to lim­it defen­dants’ access to federal review.

In November, the Supreme Court heard argu­ment in Cruz v. Arizona, a case in which the Arizona courts had refused John Cruz​’s request to instruct his jury that he would not be eli­gi­ble for parole if spared a death sen­tence. Although the Supreme Court ruled in Simmons v. South Carolina in 1994 that a defen­dant has a due process right to inform a cap­i­tal sen­tenc­ing jury of his or her parole inel­i­gi­bil­i­ty if future dan­ger­ous­ness has been placed in issue, Arizona courts rou­tine­ly pro­hib­it­ed cap­i­tal defen­dants from inform­ing their juries of that fact. State courts jus­ti­fied this prac­tice on the grounds that the gov­er­nor could grant clemen­cy to a defen­dant who was oth­er­wise sen­tenced to life with­out parole, so tech­ni­cal­ly a sen­tence of life with­out parole was not absolute. In 2016, in Lynch v. Arizona, the Supreme Court sum­mar­i­ly reversed Arizona’s inter­pre­ta­tion of the law, find­ing it flat­ly con­trary to Simmons.

After Lynch, Cruz tried to again present his claim to Arizona’s courts, cit­ing Lynch as a new case that changed Arizona law. However, the state court, depart­ing from pri­or prece­dent that con­sid­er such deci­sions to con­sti­tute a change in the law, ruled that Cruz’s claim was pro­ce­du­ral­ly barred because Lynch sim­ply reaf­firmed pri­or law. The ques­tion before the Supreme Court is whether the state court’s pro­ce­dur­al rul­ing is an ade­quate and inde­pen­dent ground for its judgement.

The Court also heard argu­ment in Reed v. Goertz in October, an appeal by Texas death-row pris­on­er Rodney Reed seek­ing DNA test­ing of evi­dence that he argues can prove his inno­cence. Reed’s case has drawn inter­na­tion­al atten­tion because of the strength of his inno­cence claim, but his Supreme Court case turns on the very nar­row ques­tion of what event start­ed the clock on his dead­line to raise his claim in fed­er­al court, after Texas denied his request to test the addi­tion­al DNA evi­dence. During his fed­er­al appeals, the U.S. Court of Appeals for the Fifth Circuit ruled that Reed was required to file his fed­er­al civ­il rights law­suit with­in two years of the date the state tri­al court denied his request for DNA test­ing, even though his appeal of that deci­sion was still pend­ing in state court. By the time the case reached the Supreme Court, Texas Solicitor General Judd Stone had backed down from this posi­tion, and instead argued that Reed’s time clock began to run ​“no lat­er than” when the Texas Court of Criminal Appeals (TCCA) denied his ini­tial appeal. Reed argued that the time clock did not begin to run until his appeal was final — includ­ing con­sid­er­a­tion of any peti­tion for recon­sid­er­a­tion of his case. His fed­er­al civ­il rights action was filed more than two years after the Texas Court of Criminal Appeals denied his appeal, but with­in two years after its denial of his request for recon­sid­er­a­tion brought the appel­late process to a close. Reed’s inter­pre­ta­tion is also the cur­rent rule in the U.S. Court of Appeals for the Eleventh Circuit, cre­at­ing a con­flict between the Fifth and Eleventh Circuits that the Court’s deci­sion in this case will resolve.

“For us as a Christian nation, the notion of ​‘thou shall not kill’ still pre­vails.” — Papua New Guinea Prime Minister James Marape, announc­ing the abo­li­tion of the coun­try’s death penalty

“It is an irre­versible pun­ish­ment that does not allow for cor­rec­tion; is waste­ful of tax­pay­er dol­lars; does not make com­mu­ni­ties safer; and can­not be and nev­er has been admin­is­tered fair­ly and equi­tably.” — Oregon Governor Kate Brown, announc­ing the com­mu­ta­tion of all 17 of the state’s death sen­tences
 

“Tonight, the State of Missouri killed Kevin Johnson. … Make no mis­take about it, Missouri cap­i­tal­ly pros­e­cut­ed, sen­tenced to death, and killed Kevin because he is Black. … The law is sup­posed to pun­ish peo­ple for what they do, not who they are. Yet, Missouri killed Kevin because of the col­or of his skin. Shame on all of them.” — Assistant Federal Defender Shawn Nolan on the exe­cu­tion of Kevin Johnson, despite a court-appoint­ed spe­cial prosecutor’s efforts to vacate his death sen­tence because of racial dis­crim­i­na­tion by the St. Louis County District Attorney’s Office

“We can­not be a state that… val­ues the sanc­ti­ty of life, and, at the same time, think that we can have a sys­tem of jus­tice that resorts to death.” — Brett Farley, State Coordinator, Oklahoma Conservatives Concerned About the Death Penalty, for­mer Communications Director of the Oklahoma Republican Party

“There was more than one casu­al­ty. More peo­ple are involved than any­one under­stands.” — Perrin Damon, for­mer Oregon Department of Corrections spokesper­son, on the impact of exe­cu­tions on corrections personnel

“It’s clear that lethal injec­tion cre­ates a cir­cus of suf­fer­ing. … I don’t know why they are so bad at this. But it seems they are try­ing to hide a pat­tern of dan­ger­ous, cru­el, incom­pe­tence.” — Emory University Anesthesiologist Joel Zivot on 2022 execution failures

“What’s tak­ing so long? … Can you believe this?” — Arizona death-row pris­on­er Murray Hooper, as cor­rec­tions per­son­nel failed to set an intra­venous exe­cu­tion line and ulti­mate­ly insert­ed a catheter into his femoral vein near his groin

“We pol­i­cy­mak­ers have an oblig­a­tion and oppor­tu­ni­ty to speak out when there is injus­tice. Here, in the case of Melissa Lucio, there is clear injus­tice.” — Texas State Representative Lacey Hull (R‑138) in ref­er­ence to Melissa Lucio’s exe­cu­tion that was sched­uled for April 27, 2022, which has since been stayed

”The opin­ion leaves inno­cent peo­ple in the night­mar­ish posi­tion of hav­ing no court to go to for jus­tice.” — Innocence Project Executive Director Christina Swarns on the impli­ca­tions of the U.S. Supreme Court’s deci­sion in Shinn v. Ramirez

Click HERE to down­load 2022 Execution Data as an Excel File.
 

Click HERE to down­load 2022 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.