DPIC 2021 MID-YEAR REVIEW: Virginia’s Historic Death Penalty Abolition Accompanies Continuing Record-Low Death Penalty Usage in First Half of Year

The first half of 2021 spot­light­ed two con­tin­u­ing death-penal­ty trends in the United States: the con­tin­u­ing ero­sion of cap­i­tal pun­ish­ment in law and prac­tice across the coun­try; and the extreme and often law­less con­duct of the few juris­dic­tions that have attempt­ed to car­ry out exe­cu­tions this year. The year began with three exe­cu­tions that con­clud­ed the Trump administration’s unpar­al­leled spree of 13 fed­er­al civil­ian exe­cu­tions in six months and two days, and saw state attempts to revive grue­some, dis­used exe­cu­tion meth­ods and to intro­duce nev­er-before-tried ways of putting pris­on­ers to death. At the same time, the first half of 2021 fea­tured the his­toric abo­li­tion of cap­i­tal pun­ish­ment in the for­mer home of the Confederacy and his­tor­i­cal­ly low num­bers of both exe­cu­tions and new death sentences. 

Virginia’s abo­li­tion of the death penal­ty was sig­nif­i­cant both his­tor­i­cal­ly and sym­bol­i­cal­ly. Its repeal of cap­i­tal pun­ish­ment was the first time a Deep South state whose death penal­ty was close­ly tied to a his­to­ry of slav­ery, lynch­ing, and Jim Crow seg­re­ga­tion had aban­doned the pun­ish­ment. Virginia was the 23^rd state to abol­ish the death penal­ty and, with for­mal mora­to­ria on exe­cu­tions in place in three states, meant that a major­i­ty of states either did not autho­rize the death penal­ty or had a for­mal pol­i­cy against car­ry­ing it out. 

Five peo­ple were exe­cut­ed in the first half of the year — three by the fed­er­al gov­ern­ment and two by the state of Texas. Only four new death sen­tences were imposed, a rate of sen­tenc­ing unmatched since the death penal­ty resumed in the U.S. in the 1970s. The low num­bers were once again unques­tion­ably affect­ed by the pan­dem­ic, but sig­naled that 2021 will be the sev­enth con­sec­u­tive year of few­er that 30 exe­cu­tions and few­er than 50 new death sen­tences in the U.S.

The states of Arizona and South Carolina moved for­ward with plans to car­ry out exe­cu­tions using exe­cu­tion meth­ods that have been aban­doned in most of the coun­try due to their bru­tal­i­ty. Arizona announced that it had ​“refur­bished” its gas cham­ber to exe­cute pris­on­ers with cyanide gas, the same sub­stance used by the Nazis to mur­der more than a mil­lion peo­ple dur­ing the Holocaust. One day before the tenth anniver­sary of the state’s last exe­cu­tion, the South Carolina leg­is­la­ture passed a law allow­ing the state to per­form exe­cu­tions using the elec­tric chair or fir­ing squad. Alabama announced that it was near­ly ready to per­form exe­cu­tions using nitro­gen hypox­ia, a new, untried method in which the pris­on­er dies of asphyx­i­a­tion from breath­ing pure nitrogen.

The exe­cut­ing states also dis­played remark­able incom­pe­tence, with South Carolina set­ting four exe­cu­tion dates it was inca­pable of law­ful­ly car­ry­ing out; Arizona test­ing the air-tight­ness of its exe­cu­tion cham­ber by pass­ing a can­dle flame across its seals; Nevada obtain­ing drugs online in prob­a­ble vio­la­tion of state and fed­er­al law and despite advance notice that the drugs could not be used for exe­cu­tions; and Texas for­get­ting to bring assem­bled reporters into the prison to wit­ness an execution.

In keep­ing with recent trends in the impo­si­tion of death sen­tences, just four peo­ple were sen­tenced to death in the first six months of 2021. The ongo­ing effects of the pan­dem­ic unques­tion­ably con­tributed to this record-low num­ber, as cap­i­tal tri­als require lengthy prepa­ra­tion and sig­nif­i­cant­ly more exten­sive jury selec­tion and may be slow­er to resume than oth­er legal proceedings.

Even as the num­ber of death sen­tences shrank, the few that were imposed con­tin­ued to dis­play hall­marks of sys­temic prob­lems in the appli­ca­tion of the death penalty.

• Michael Anthony Powell was sen­tenced to death in Alabama by a jury that vot­ed 11 – 1 for death. Alabama is the only state that allows death sen­tences to be imposed when a jury does not unan­i­mous­ly rec­om­mend a death sentence.
• Aubrey Trail waived his right to jury sen­tenc­ing and was sen­tenced to death in Nebraska by a three-judge panel.
• Adrian Ortiz, who was sen­tenced to death in California, was 19 at the time of his crime. Neuroscience experts have argued that, because the brain is not ful­ly devel­oped until a person’s mid-twen­ties, defen­dants under 21 should be exempt from the death penal­ty, just as juveniles are.
• Billy Wells, who was sen­tenced to death in Florida, report­ed­ly told pros­e­cu­tors that he wished to be executed.

Executions, like death sen­tences, were at his­toric lows in the first half of 2021. Five peo­ple have been exe­cut­ed in the U.S. so far this year — three of them by the fed­er­al gov­ern­ment and two by the state of Texas. As the out­go­ing Trump admin­is­tra­tion rushed to car­ry out exe­cu­tions, three peo­ple were exe­cut­ed in January 2021, less than one week before the Inauguration of President Biden, who ran on a plat­form of work­ing to end the fed­er­al death penal­ty. The three cas­es that result­ed in fed­er­al exe­cu­tions were deeply troubling.

Lisa Montgomery became the first woman exe­cut­ed by the fed­er­al gov­ern­ment in the mod­ern era of the death penal­ty when she was killed on January 13. More than 1,000 advo­cates, includ­ing cur­rent and for­mer pros­e­cu­tors, activists fight­ing sex traf­fick­ing and domes­tic vio­lence, and men­tal health orga­ni­za­tions, joined calls to halt Montgomery’s exe­cu­tion. Montgomery was severe­ly men­tal­ly ill as a result of the extreme phys­i­cal and sex­u­al abuse she expe­ri­enced as a child. Montgomery was relent­less­ly beat­en, raped by her step­fa­ther, and sex­u­al­ly traf­ficked by her moth­er. Four sep­a­rate courts grant­ed Montgomery stays of exe­cu­tion as a result of ques­tions about her men­tal com­pe­ten­cy to be exe­cut­ed and the legal­i­ty of the pro­ce­dures used to set her exe­cu­tion date. In a series of last-minute rul­ings, the U.S. Supreme Court sum­mar­i­ly vacat­ed two of her stays of exe­cu­tion and denied attempts to rein­state two oth­ers. Though Montgomery’s exe­cu­tion notice expired at mid­night on January 12, the Bureau of Prisons issued a new notice in the ear­ly hours of January 13 and exe­cut­ed her at 1:31 am.

The fol­low­ing day, the fed­er­al gov­ern­ment exe­cut­ed Corey Johnson. Johnson was denied an evi­den­tiary hear­ing on his claim that he was intel­lec­tu­al­ly dis­abled and there­fore inel­i­gi­ble for the death penal­ty. He was the sec­ond fed­er­al pris­on­er with such a claim who was exe­cut­ed dur­ing the fed­er­al government’s six-month exe­cu­tion spree. (The first was Alfred Bourgeois, exe­cut­ed on December 12, 2020.)

Dustin Higgs was exe­cut­ed on January 16. He was sen­tenced to death based on the tes­ti­mo­ny of a co-defen­dant who received a sig­nif­i­cant deal in exchange for his tes­ti­mo­ny. A third co-defen­dant, the undis­put­ed trig­ger­per­son in the crime, was sen­tenced to life in prison. Higgs main­tained that he did not orches­trate the crime, as alleged by pros­e­cu­tors. The only evi­dence for pros­e­cu­tors’ the­o­ry of the crime was the self-inter­est­ed tes­ti­mo­ny of his co-defendant.

Prior to the exe­cu­tions, Johnson and Higgs both con­tract­ed the coro­n­avirus dur­ing an out­break on fed­er­al death row that was sparked by the pres­ence of numer­ous out­side per­son­nel dur­ing the sum­mer 2020 fed­er­al exe­cu­tions. Montgomery’s exe­cu­tion was stayed after her attor­neys con­tract­ed the virus as a result of trav­el­ing to meet with her about her impending execution.

The fed­er­al exe­cu­tions were unprece­dent­ed for numer­ous rea­sons. The exe­cu­tions like­ly sparked coro­n­avirus out­breaks not only on death row, but in the Terre Haute, Indiana com­mu­ni­ty. Public health offi­cials warned against per­form­ing exe­cu­tions dur­ing a glob­al pan­dem­ic — a warn­ing that every U.S. state observed by putting exe­cu­tions on hold, at least tem­porar­i­ly. The 13 fed­er­al exe­cu­tions between July 2020 and January 2021 were the most con­sec­u­tive exe­cu­tions car­ried out by a sin­gle juris­dic­tion, and the six exe­cu­tions con­duct­ed fol­low­ing the Trump administration’s elec­toral defeat in November 2020 were the most exe­cu­tions dur­ing a pres­i­den­tial tran­si­tion peri­od in United States his­to­ry. That spree took place at the same time the coun­try expe­ri­enced the longest peri­od in 40 years with­out any state car­ry­ing out an exe­cu­tion, a hia­tus of 315 days.

With the May 19, 2021 exe­cu­tion of Quintin Jones, Texas became the first state to resume exe­cu­tions. Jones was exe­cut­ed with­out media wit­ness­es present, in what the Texas Department of Criminal Justice called a ​“mis­com­mu­ni­ca­tion” but one state leg­is­la­tor char­ac­ter­ized as ​“unfath­omable.” It was the first time in the 571 exe­cu­tions car­ried out in Texas that media were not present. 

On June 30, Texas exe­cut­ed John Hummel, an hon­or­ably dis­charged Marine who suf­fered from Posttraumatic Stress Disorder (PTSD). Hummel had come with­in two days of exe­cu­tion in March 2020, when the Texas Court of Criminal Appeals issued a stay because of health con­cerns relat­ed to the COVID-19 pandemic.

After Hummel was exe­cut­ed, six exe­cu­tion dates were pend­ing in the U.S. for the sec­ond half of the year. Four of those are sched­uled in Texas. The fifth is in Nevada, where Zane Floyd is sched­uled to be exe­cut­ed dur­ing the week of July 26. A sixth is sched­uled in Missouri, where Ernest Johnson faces exe­cu­tion on October 5.

Nevada has not car­ried out an exe­cu­tion since 2006 and lit­i­ga­tion chal­leng­ing the state’s exe­cu­tion pro­to­col is ongo­ing. Noting Nevada’s delay in dis­clos­ing its nev­er-before-used drug com­bi­na­tion, a fed­er­al dis­trict court has issued a three-month stay of exe­cu­tion. The drug man­u­fac­tur­er Hikma Pharmaceuticals has sent the state a cease-and-desist let­ter demand­ing that its drugs be returned and accus­ing the state of ​“sur­rep­ti­tious­ly” obtain­ing them in vio­la­tion of state and federal law. 

Missouri sched­uled Ernest Johnson​’s exe­cu­tion despite strong evi­dence that he is intel­lec­tu­al­ly dis­abled and there­fore inel­i­gi­ble for the death penal­ty. Johnson also has epilep­sy from a brain tumor, lesions, and scar­ring in the brain that his experts say cre­ate a sub­stan­tial risk of seizures and extreme pain if he is exe­cut­ed by lethal injec­tion with pen­to­bar­bi­tal. However, the U.S. Supreme Court declined to review his chal­lenge that Missouri’s lethal-injec­tion process con­sti­tutes a cru­el and unusu­al method of exe­cu­tion for a per­son with his medical condition.

One per­son, Eddie Lee Howard, was exon­er­at­ed from death row in the first half of 2021. Howard, who is Black, was con­vict­ed and sen­tenced to death in Mississippi in 1994 for the alleged rape and mur­der of an 84-year-old white woman. His con­vic­tion was over­turned in 1997 and he was grant­ed a new tri­al. At his sec­ond tri­al, in 2000, pros­e­cu­tors pre­sent­ed unre­li­able bite-mark evi­dence, despite the fact that the victim’s autop­sy report made no men­tion of bite marks. Later DNA test­ing exclud­ed Howard as the source of DNA on the knife used by the murderer. 

DPIC also added eleven pre­vi­ous­ly unrecord­ed exon­er­a­tions to the Exoneration List this year. While con­duct­ing research for the February 2021 report, The Innocence Epidemic, DPIC dis­cov­ered eleven cas­es that meet the cri­te­ria for inclu­sion as death-row exon­er­a­tions, bring­ing the total num­ber of exon­er­a­tions to 185. There has been one exon­er­a­tion for every 8.3 exe­cu­tions in the mod­ern era of the death penalty.

A fed­er­al jury ver­dict high­light­ed one of under­ap­pre­ci­at­ed costs of the death penal­ty — tax­pay­er lia­bil­i­ty for wrong­ful cap­i­tal pros­e­cu­tions. In a case the late Justice Antonin Scalia had tout­ed as a jus­ti­fi­ca­tion for cap­i­tal pun­ish­ment, a North Carolina fed­er­al jury award­ed intel­lec­tu­al­ly dis­abled death-row exonerees Henry McCollum and Leon Brown $75 mil­lion for the police mis­con­duct that sent them to death row.

Virginia became the 23^rd state to abol­ish the death penal­ty. When the three states with mora­to­ria on exe­cu­tions are includ­ed, a major­i­ty of U.S. states have aban­doned cap­i­tal pun­ish­ment. Virginia’s abo­li­tion is par­tic­u­lar­ly notable, as it has exe­cut­ed more peo­ple in its his­to­ry than any oth­er state and is sec­ond only to Texas in exe­cu­tions per­formed in the mod­ern era. It is also the first state in the South, and the first for­mer Confederate state, to abol­ish the death penal­ty. Legislators and Governor Ralph Northam empha­sized the racial dis­par­i­ties in Virginia’s use of the death penal­ty as a major rea­son for abolition. 

Three states took steps to per­form exe­cu­tions by imple­ment­ing exe­cu­tion meth­ods oth­er than lethal injec­tion. Arizona sparked inter­na­tion­al out­rage when it revealed in court doc­u­ments that it had spent more than $2,000 to ​“refur­bish” its gas cham­ber and pur­chase the ingre­di­ents for cyanide gas, which was used by the Nazis to mur­der more than one mil­lion men, women, and chil­dren dur­ing the Holocaust. It also drew ridicule when it test­ed the cham­ber for air­tight­ness by pass­ing the flame of a can­dle slow­ly near the seals of the chamber. 

The dis­clo­sures about Arizona’s pos­si­ble use of the gas cham­ber came on the heels of anoth­er admin­is­tra­tive deba­cle, as Department of Corrections offi­cials spent $1.5 mil­lion to obtain lethal injec­tion drugs. The Arizona Attorney General’s office then sought a brief­ing sched­ule to set exe­cu­tion dates in the Fall of 2021 based upon a rep­re­sen­ta­tion that the drugs had a shelf life of 90 days. When, as death-row pris­on­ers had cau­tioned, the shelf life turned out to be only 45 days, pros­e­cu­tors respond­ed by ask­ing the Arizona Supreme Court to reward their mis­take by short­en­ing the brief­ing sched­ule and the time frame for judi­cial review so exe­cu­tions could go for­ward before the drugs expired. 

South Carolina, which last car­ried out an exe­cu­tion in 2011, passed a law autho­riz­ing elec­tro­cu­tion as the default method of exe­cu­tion, with lethal injec­tion or fir­ing squad avail­able as alter­na­tives. The state rapid­ly set two exe­cu­tion dates for June 2021, but the exe­cu­tions were stayed by the South Carolina Supreme Court, which found that attempt­ing to exe­cute the men by elec­tro­cu­tion with­out offer­ing them the alter­na­tive of lethal injec­tion or fir­ing squad vio­lat­ed the ​“statu­to­ry right of inmates to elect the man­ner of their exe­cu­tion.” It also not­ed that the state had not devel­oped a pro­to­col for exe­cu­tions by fir­ing squad and barred the state from set­ting fur­ther exe­cu­tion dates until such a pro­to­col is developed. 

The two stays were not the first time in 2021 South Carolina had sched­uled exe­cu­tions it could not law­ful­ly car­ry out. The state sought to exe­cute the same men before adopt­ing the new law, sched­ul­ing one exe­cu­tion for February and anoth­er for May. However, those exe­cu­tions were halt­ed for being ​“cur­rent­ly impos­si­ble” to car­ry out because the state lacked the drugs to do so. Directed by the court ​“not to issue anoth­er exe­cu­tion notice … until the State noti­fies this Court that the Department of Corrections has the abil­i­ty to car­ry out the exe­cu­tion by lethal injec­tion, that the peti­tion­er has made an elec­tion to be elec­tro­cut­ed, or that there has been some change in the law which will allow the exe­cu­tion to take place,” pros­e­cu­tors then sought a sec­ond time to car­ry out the exe­cu­tions with­out the prop­er pro­to­cols in place.

Alabama said in June 8 court fil­ings that it ​“is near­ing com­ple­tion of the ini­tial phys­i­cal build for the nitro­gen hypox­ia sys­tem and its safe­ty mea­sures.” No state has used nitro­gen hypox­ia, an exe­cu­tion method in which the pris­on­er would breathe pure nitro­gen, depriv­ing his or her body of oxy­gen and caus­ing asphyx­i­a­tion. Its pro­po­nents argue it is a more humane method of exe­cu­tion, but it can­not eth­i­cal­ly be test­ed. Oklahoma and Mississippi also autho­rize the method, though nei­ther has announced efforts to imple­ment it. Alabama declined to dis­close any details of its plans, or how it was able to obtain the mate­ri­als for the new method.

In Nevada, a leg­isla­tive effort to repeal the state’s death penal­ty passed the State Assembly but, despite strong sup­port in the cham­ber, did not receive a com­mit­tee hear­ing or a vote in the State Senate. Repeal pro­po­nents ques­tioned the role of Senate Majority Leader Nicole Cannizzaro and Senate Judiciary Committee Chair Melanie Scheible — both of whom work as pros­e­cu­tors in the Clark County District Attorney’s office — in block­ing Senate con­sid­er­a­tion of the bill. Their boss, Clark County District Attorney Scott Wolfson, was the lead wit­ness against the bill in the House Judiciary Committee. Following House pas­sage of the mea­sure, he announced his inten­tion to seek an exe­cu­tion date for Zane Floyd, but claimed the tim­ing was coincidental. 

On June 10, the Nevada Department of Corrections (NVDOC) indi­cat­ed that it intend­ed to exe­cute Floyd with a three- or four-drug com­bi­na­tion that has nev­er been used before to put a pris­on­er to death. NVDOC said its exe­cu­tion cock­tail would be drawn from six pos­si­ble drugs, includ­ing fen­tanyl and ket­a­mine. Hikma Phamaceuticals, a mak­er of ket­a­mine, then sent a cease-and-desist let­ter to Nevada Attorney General Aaron Ford threat­en­ing to sue the state for ille­gal­ly obtain­ing its drug. Shortly after­wards, a fed­er­al dis­trict court stayed Floyd’s exe­cu­tion for three months say­ing the state’s late dis­clo­sure of its pro­to­col did not pro­vide suf­fi­cient time to deter­mine the con­sti­tu­tion­al­i­ty of the untest­ed drug combination. 

The 2021 pro­to­col was not the first time Nevada had attempt­ed to employ an untest­ed drug com­bi­na­tion to exe­cute a pris­on­er. In 2017, the state adopt­ed an untried three-drug pro­to­col of diazepam, fen­tanyl, and cisatracuri­um to exe­cute Scott Dozier. A state court judge halt­ed Dozier’s exe­cu­tion, issu­ing an injunc­tion based on its find­ing that NVDOC had obtained drugs pro­duced by Alvogen, Inc. ​“by sub­terfuge” and pro­hibit­ing the state from using Alvogen’s drugs.

Idaho​’s unsuc­cess­ful attempt to exe­cute Gerald Pizzuto, Jr. also high­light­ed the ques­tion­able lengths to which state pros­e­cu­tors have gone to put pris­on­ers to death. Prosecutors obtained a death war­rant to exe­cute Pizzuto on June 2, despite know­ing he has been in hos­pice care con­fined to a wheel­chair for more than a year, suf­fer­ing from late-stage blad­der can­cer, chron­ic heart and coro­nary artery dis­ease, coro­nary obstruc­tive pul­monary dis­ease, and Type 2 dia­betes with relat­ed nerve dam­age to his legs and feet. Pizzuto has had two heart attacks and has had four stents implant­ed around his heart. A state tri­al judge stayed Pizzuto’s exe­cu­tion to per­mit the state par­dons board to review his peti­tion for clemency.

Pizzuto’s death sen­tence is also taint­ed by pros­e­cu­to­r­i­al and judi­cial mis­con­duct. Evidence that was with­held from the defense at the time of tri­al revealed that his pros­e­cu­tor, his tri­al judge, and the co-defendant’s coun­sel met secret­ly to bro­ker a deal in which the co-defen­dant would tes­ti­fy against Pizzuto in exchange for a lenient sen­tence. The pros­e­cu­tion then delib­er­ate­ly elicit­ed false tes­ti­mo­ny from the co-defen­dant — which the judge knew to be per­ju­ri­ous — that he expect­ed to be sen­tenced to life in prison for his role in the murder. 

At the fed­er­al lev­el, the Biden admin­is­tra­tion frus­trat­ed death-penal­ty oppo­nents by fail­ing to set any pol­i­cy on whether the admin­is­tra­tion would pur­sue new cap­i­tal pros­e­cu­tions, defend death sen­tences that already had been imposed, or com­mute exist­ing fed­er­al death sen­tences to pre­vent a future pres­i­dent from car­ry­ing out addi­tion­al exe­cu­tions. In appar­ent con­tra­dic­tion of Biden’s cam­paign pledge to work to end the death penal­ty, the Department of Justice filed a brief in the U.S. Supreme Court seek­ing rein­state­ment of the death penal­ty against Dzhokhar Tsarnaev, whose death sen­tence in the Boston Marathon bomb­ing had been over­turned by a fed­er­al appeals court. 

The White House press office said the action did not con­sti­tute a retreat from the President’s cam­paign pledge, say­ing the Justice Department had ​“inde­pen­dence regard­ing such deci­sions.” In an email to reporters on June 15, Deputy White House Press Secretary Andrew Bates wrote, ​“President Biden has made clear that he has deep con­cerns about whether cap­i­tal pun­ish­ment is con­sis­tent with the val­ues that are fun­da­men­tal to our sense of jus­tice and fair­ness. … The President believes the Department should return to its pri­or prac­tice, and not car­ry out executions.”

One week lat­er, U.S. Attorney General Merrick Garland said he is review­ing the Department’s poli­cies on the fed­er­al death penal­ty and would issue a pol­i­cy state­ment ​“soon.”