One Execution, One Reprieve: Scheduled Executions of Oldest Death-Row Prisoners in Texas and Tennessee Illustrate Aging of Death Row

In a coincidence that brought attention to the aging of death row across the United States, the oldest death-row prisoners in Tennessee and Texas faced execution in their respective states on April 21, 2022. After the U.S. Supreme Court denied stays of execution for both prisoners, their cases took different paths.

Oscar Franklin Smith, a 71-year-old who spent 22 years on death row in Tennessee, was notified while receiving communion that he had received a reprieve. Carl Wayne Buntion (pictured), a 78-year-old who spent 31 years on death row in Texas and who just days before had been taken to the hospital suffering from pneumonia and blood in his urine, was executed.

Buntion had sought to halt his execution on grounds that his death sentence was predicated upon a false prediction that he would pose a continuing threat if spared the death penalty. His clemency petition, which was denied April 19, argued the “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.” In his 31 years sentenced to death, “he has been cited for only three disciplinary infractions,” the petition said, “and he has not been cited for any infraction whatsoever for the last twenty-three years.”

He had also argued that the three decades he spent on death row, twenty of which were in solitary confinement, amounted to cruel and unusual punishment that disentitled Texas to take his life. When the U.S. Supreme Court declined to review his case in October 2021, Justice Stephen Breyer wrote that a prisoner’s excessive time on death row “undermines the death penalty’s penological rationale” and “is in and of itself … especially cruel because it ‘subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.’” The Court, without dissent, denied Buntion a stay of execution hours before his execution. In response to that application, Breyer noted that Buntion had “suffered under such conditions for decades. When efforts to administer the death penalty produce results such as this,” he wrote, “it raises serious questions about whether that practice complies with the Constitution’s prohibition against cruel and unusual punishment.”

Smith had filed a petition for an original writ of habeas corpus in the U.S. Supreme Court on April 20, 2022 seeking review of his case after the lower federal courts had refused to consider evidence from newly available touch DNA technology that an unknown male’s DNA — and not Smith’s — had been found on a weapon used in the murders. The Court unanimously denied his petition and the accompanying motion to stay his execution three hours before his execution was scheduled to begin. At 5:35 p.m. Central, less than a half-hour before his execution, Tennessee Governor Bill Lee issued a statement that “[d]ue to an oversight in preparation for lethal injection, the scheduled execution of Oscar Smith will not move forward tonight.” Lee granted a temporary reprieve until June 1, 2022 “while we address Tennessee Department of Correction protocol.” No further information about the execution “oversight” was released.

Assistant federal defender Kelley Henry released a statement saying Governor Lee “did the right thing” by stopping the execution, which she said “would certainly have been torturous to Mr. Smith.” Henry called for “[a] full investigation by an independent entity” and a halt to further executions in Tennessee “until such time as we can answer the questions as to what happened.”

At the time of his execution, Buntion suffered from numerous medical conditions including arthritis, vertigo, hepatitis, sciatic nerve pain that made it difficult for him to walk, and cirrhosis. Prisoners facing execution despite similar deteriorating medical conditions have become increasingly common as the average age of death-row prisoners continues to rise across the United States.

Attempts to Execute Elderly and Infirm Death-Row Prisoners

According to the U.S. Department of Justice Bureau of Justice Statistics, at the end of 1999, death-sentenced prisoners in the United States had been incarcerated for an average of 7.7 years. Their average age at that time was 37 and only 2.3% of the death-row population was age 60 or older. By December 2020, the average length of time a prisoner had been on death row had increased to 19.4 years, their average age had climbed to 53, and 24.2% of the nation’s death-row prisoners were age 60 or older.

The aging of death row was reflected in state execution practices. On April 19, 2018, Alabama executed 83-year-old Walter Moody, the oldest person and only octogenarian put to death in the United States since executions resumed in 1977. On December 9, 2021, Oklahoma executed 79-year-old Bigler Stouffer, its oldest death-row-prisoner and the oldest person to be executed in that state. James Frazier, Ohio’s oldest death-row prisoner, was scheduled to be executed October 20, 2021, before dying of COVID on November 19, 2020. He suffered from dementia following a series of strokes, could not walk, and required the assistance of aides to complete daily tasks. His lawyers had filed a petition to bar his execution on grounds of mental incompetency.

Ohio botched the execution of terminally ill death-row prisoner Alva Campbell in November 2017, calling it off after failing for more than an hour and a half to find a suitable vein in which the insert the intravenous execution line. The 69-year-old Campbell was afflicted with lung cancer, chronic obstructive pulmonary disease, respiratory failure, prostate cancer, and severe pneumonia; had a colostomy bag outside his body, needed oxygen treatments four times a day, and required a walker for even limited mobility. He died less than four months later.

Alabama death-row prisoner Doyle Lee Hamm was suffering from hepatitis C and terminal cranial and lymphatic cancer and had received radiation treatment and chemotherapy that, along with a prior history of drug use rendered his veins unusable for lethal injection. He was scheduled for surgery to remove a cancerous lesion on December 13, 2017, but Alabama prison officials cancelled the surgery and instead scheduled his execution for February 22, 2018. Alabama botched the attempted execution, failing for more than two-and-a-half hours to set an intravenous execution line. Hamm died in November 2021 at age 64.

Alabama also attempted to execute Vernon Madison in 2016, who suffered from vascular dementia as a result of several strokes that left him legally blind, incontinent, unable to walk independently, and without memory of the offense for which he was sentenced to death or an understanding of why he was to be executed. After several trips to the U.S. Supreme Court, his case was remanded for a hearing on whether he was competent to be executed. Because of his medical condition, that hearing never occurred, and he died on death row in February 2020 at age 69.

Idaho death-row prisoner Gerald Pizzuto, Jr. was 64 years old and suffering from advanced 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 and was in hospice care when a warrant was issued for his execution in 2021. The Idaho pardons commission recommended commuting his death sentence and Governor Brad Little rejected the recommendation, triggering ongoing litigation over which entity has final authority over clemency.

The aging of death row raises humanitarian issues, separate and apart from the risk of botched executions and mental incompetency. Speaking to the Associated Press in 2018 about the aging of death row, DPIC Executive Director Robert Dunham noted that, while many of the prisoners facing execution have been convicted of terrible crimes, the public is “torn between wanting to punish [them] severely and the belief it is beneath us as a nation to kill a frail person who is already dying. It’s a challenge to our morality and our sense of humanity,” Dunham said.