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.