DPIC 2022 Mid-Year Review: Geographic Isolation of Death Penalty Continues Amidst Eight-Year Trend of Minimal Use

Long-term trends con­tin­ued in the first half of 2022, with new death sen­tences and exe­cu­tions both on pace for con­tin­ued his­toric lows. Use of the death penal­ty was con­fined to a small num­ber of states that have his­tor­i­cal­ly been heavy users of cap­i­tal pun­ish­ment. The unavail­abil­i­ty of exe­cu­tion drugs and the inabil­i­ty of states to com­pe­tent­ly car­ry out exe­cu­tions con­tin­ued to shape exe­cu­tions and poli­cies across the coun­try, as pris­on­ers con­tin­ued to chal­lenge lethal-injec­tion pro­to­cols and states halt­ed sched­uled exe­cu­tions. At the same time, a small num­ber of states under­took steps to ramp up future exe­cu­tions, three states passed new laws to cre­ate more secre­cy and give more con­trol over exe­cu­tion meth­ods to state cor­rec­tions offi­cials, and the con­ser­v­a­tive super­ma­jor­i­ty on the U.S. Supreme Court con­tin­ued to erode access to the courts and enforce­ment of constitutional rights.

Even with the reopen­ing of courts pre­vi­ous­ly shut­tered because of the pan­dem­ic, the pace of new death sen­tences in the first half of 2022 remained near record lows. DPIC has iden­ti­fied at least sev­en death sen­tences that were imposed in five states from January through June 2022, a pace below even the record sen­tenc­ing lows set dur­ing the pan­dem­ic years of 2020 and 2021. Even with a sig­nif­i­cant surge of unan­tic­i­pat­ed death sen­tences in the sec­ond half of the year, the U.S. will almost cer­tain­ly record its eighth con­sec­u­tive year with few­er than 50 death sen­tences, more than 85% below the peak sen­tenc­ing years of the mid 1990s.

Five of the sev­en defen­dants sen­tenced to death in the first half of 2022 are peo­ple of col­or: three are Black and two are Latinx. Two are white. All three Black defen­dants sen­tenced to death in the first half of the year were con­vict­ed of killing Black vic­tims. Four of the year’s death sen­tences were imposed for the mur­ders of police or correctional officers.

Ricky Dubose, who was sen­tenced to death in Putnam County, Georgia on June 16 for the mur­ders of two cor­rec­tion­al offi­cers dur­ing an attempt­ed escape, was found dead in his cell ten days lat­er of an apparent suicide.

On May 23, a St. Charles County, Missouri tri­al judge reject­ed the state’s first jury rec­om­men­da­tion for a death sen­tence in nine years and instead re-sen­tenced for­mer death-row pris­on­er Marvin D. Rice to life with­out parole. The tri­al judge at Rice’s first tri­al in 2017 had sen­tenced him to death under Missouri’s con­tro­ver­sial ​“hung jury” sen­tenc­ing pro­vi­sions after a sin­gle juror vote for death had pre­vent­ed an oth­er­wise unan­i­mous jury from impos­ing a life sen­tence. Judge Daniel Pelikan con­sid­ered the pri­or jury vote in impos­ing sen­tence, and found that the mit­i­gat­ing evi­dence in the case sub­stan­tial­ly out­weighed the prosecution’s aggravating evidence. 

Nine states sched­uled a total of 23 exe­cu­tions for the first half of 2022. Seven exe­cu­tions in five states were car­ried out, putting the nation on pace for its eighth con­sec­u­tive year with few­er than 30 exe­cu­tions. Arizona and Oklahoma each exe­cut­ed two peo­ple. Alabama, Missouri, and Texas each executed one.

Ten active exe­cu­tion dates — five in Oklahoma, four in Texas, and one in Alabama — are pend­ing at the start of the year’s sec­ond half. On June 6, Oklahoma fed­er­al dis­trict court Judge Stephen Friot denied a chal­lenge 28 death-row pris­on­ers had brought to the state’s lethal-injec­tion pro­to­col and, just four days lat­er, Oklahoma Attorney John O’Connor filed a motion in the Oklahoma Court of Criminal Appeals request­ing the court to set 25 exe­cu­tion dates over a two-year peri­od begin­ning in August 2022. On July 1, the court set 25 exe­cu­tion dates, five for 2022 and 20 for subsequent years.

Oklahoma exe­cut­ed Donald Grant on January 27. His was the third exe­cu­tion car­ried out by the state while the pris­on­ers’ lethal-injec­tion pro­to­col law­suit was pend­ing in fed­er­al court. Grant’s attor­neys argued that he should not be exe­cut­ed because he was seri­ous­ly men­tal­ly ill and had brain dam­age. ​“Executing some­one as men­tal­ly ill and brain dam­aged as Donald Grant is out of step with evolv­ing stan­dards of decen­cy,” his lawyers told the Oklahoma Board of Pardons and Parole.

Just hours after Oklahoma exe­cut­ed Grant, Alabama exe­cut­ed Matthew Reeves, an intel­lec­tu­al­ly dis­abled pris­on­er whose attor­neys argued that the state had vio­lat­ed the Americans with Disabilities Act. Reeves had been giv­en a form to choose between the state’s default exe­cu­tion method of lethal injec­tion and its new, untest­ed method of nitro­gen hypox­ia. The form required an 11^th grade read­ing lev­el, but the state offered no accom­mo­da­tions for pris­on­ers like Reeves, who had an IQ in the upper 60s to low 70s. Because he did not fill out the form, the state sought an exe­cu­tion date for him. Alabama does not have a pro­to­col in place for nitro­gen hypox­ia, so pris­on­ers who opt­ed in to the new method have not received exe­cu­tion dates. A fed­er­al dis­trict court issued an injunc­tion block­ing Reeves’ exe­cu­tion, but the U.S. Supreme Court, in a 5 – 4 opin­ion issued after Reeves’ exe­cu­tion had been sched­uled to begin, lift­ed the injunc­tion and allowed him to be executed.

Gilbert Postelle was exe­cut­ed on February 17. 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. He was the only one of the four per­pe­tra­tors sen­tenced to death – his father was found incom­pe­tent to stand tri­al and the oth­ers received life sen­tences. His exe­cu­tion reflects a con­tin­u­ing trend in the U.S. in which states and the fed­er­al gov­ern­ment have put to death vul­ner­a­ble, less cul­pa­ble defen­dants who are inel­i­gi­ble or bare­ly eli­gi­ble for the death penalty.

Postelle was the fourth and final per­son exe­cut­ed as part of a sched­uled five-month, sev­en-per­son exe­cu­tion spree that Oklahoma announced after a six-year hia­tus prompt­ed by a string of botched exe­cu­tions. His exe­cu­tion took place just 11 days before a fed­er­al judge began hear­ing evi­dence on the con­sti­tu­tion­al­i­ty of the state’s lethal-injec­tion pro­to­col in a tri­al that was sched­uled before the exe­cu­tion spree began.

With the exe­cu­tions of Grant and Postelle, Oklahoma County has car­ried out 44 exe­cu­tions. It is one of just five coun­ties – along with Harris County (Houston), Dallas County, Bexar County (San Antonio), and Tarrant County (Fort Worth) in Texas – respon­si­ble for one-fifth of all U.S. exe­cu­tions since 1976.

Texas exe­cut­ed its old­est death-row pris­on­er, 78-year-old Carl Buntion, on April 21. 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 that ​“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.”

Missouri pris­on­er Carman Deck was exe­cut­ed on May 3. Each of Deck’s three death sen­tences (all for the same crime) were over­turned — once by the U.S. Supreme Court — as a result of prej­u­di­cial con­sti­tu­tion­al vio­la­tions in his tri­als. Nonetheless, Missouri pro­ceed­ed with his exe­cu­tion because a pro­ce­dur­al tech­ni­cal­i­ty over­turned his third grant of relief, block­ing him from pre­sent­ing his claim that crit­i­cal mit­i­gat­ing evi­dence call­ing for a sen­tence less than death had become unavail­able due to the long delays between his first, sec­ond, and third tri­als. In a stay appli­ca­tion, his attor­neys wrote, “[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.”

In May, Arizona resumed exe­cu­tions after a near­ly eight-year hia­tus fol­low­ing the botched two-hour exe­cu­tion of Joseph Wood on July 23, 2014. The state exe­cut­ed Clarence Dixon, who had been allowed to rep­re­sent him­self at his cap­i­tal tri­al, despite hav­ing been found legal­ly insane in an ear­li­er tri­al for an unre­lat­ed assault. At a hear­ing on his men­tal com­pe­ten­cy to be exe­cut­ed, his lawyers pre­sent­ed evi­dence that he has schiz­o­phre­nia with accom­pa­ny­ing audi­to­ry and visu­al hal­lu­ci­na­tions and delu­sion­al think­ing. The Navajo Nation, of which Dixon was a mem­ber, opposed his execution.

Dixon’s May 11 exe­cu­tion was char­ac­ter­ized by experts as botched. Personnel attempt­ed for 25 min­utes to set an intra­venous line in Dixon’s arms, then resort­ed to a bloody and appar­ent­ly unau­tho­rized ​“cut­down” pro­ce­dure to insert the IV line in his groin.

The exe­cu­tion team again had dif­fi­cul­ties set­ting an IV line a month lat­er in the June 8 exe­cu­tion of Frank Atwood. Jimmy Jenkins, a reporter at the Arizona Republic, described the ​“sur­re­al spec­ta­cle” of Atwood assist­ing exe­cu­tion­ers in find­ing a vein to inject the drugs that would kill him.

Atwood main­tained his inno­cence, and sought a hear­ing to present new evi­dence sup­port­ing his claims. He also chal­lenged the con­sti­tu­tion­al­i­ty of Arizona’s exe­cu­tion pro­to­col, argu­ing that the lethal-injec­tion pro­ce­dure would cause him excru­ci­at­ing pain due to a spinal condition.

Courts or gov­er­nors put sched­uled exe­cu­tions on hold in a num­ber of states. Ohio Gov. Mike DeWine issued a series of nine reprieves of exe­cu­tions set for 2022 in response to ​“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.

On April 21, Tennessee Governor Bill Lee issued a reprieve halt­ing Oscar Franklin Smith’s exe­cu­tion less than a half-hour before it was sched­uled to be car­ried out, after learn­ing that cor­rec­tions offi­cials had failed to test exe­cu­tion drugs for bac­te­r­i­al endo­tox­ins. Court doc­u­ments lat­er revealed wide­spread non-com­pli­ance by Tennessee exe­cu­tion per­son­nel with many pro­vi­sions in the state’s exe­cu­tion pro­to­col. On May 2, Lee announced that Tennessee would not go for­ward with any of the exe­cu­tions sched­uled in the state in the sec­ond half of 2022 and that the state had retained for­mer U.S. Attorney Ed Stanton to con­duct an inde­pen­dent review of Tennessee’s exe­cu­tion process. Executions are expect­ed to remain on hold for the dura­tion of that inves­ti­ga­tion and while court chal­lenges to any revi­sion of the state’s exe­cu­tion pro­to­col are being litigated.

The South Carolina Supreme Court for the third time halt­ed exe­cu­tions to resolve ques­tions con­cern­ing the state’s com­pli­ance with its exe­cu­tion pro­to­col. The Georgia state courts stayed the exe­cu­tion of Virgil Presnell after his lawyers argued that the state attor­ney general’s office had secured his death war­rant in vio­la­tion of an agree­ment not to sched­ule exe­cu­tions until six months after Georgia had resumed nor­mal vis­i­ta­tion at state pris­ons and a COVID vac­cine had become ​“read­i­ly avail­able to all mem­bers of the public.”

Samuel Randolph was exon­er­at­ed from Pennsylvania’s death row. On April 6, 2022, two days after the U.S. Supreme Court had declined to review the coun­ty pros­e­cu­tors’ appeal of a fed­er­al court rul­ing grant­i­ng Randolph a new tri­al, District Attorney Fran Chardo filed a motion to enter an order of nolle pros­e­qui ter­mi­nat­ing the pros­e­cu­tion of Mr. Randolph. Randolph’s con­vic­tion had been over­turned by a fed­er­al dis­trict court near­ly two years ear­li­er because Randolph’s tri­al court had vio­lat­ed his Sixth Amendment right to be rep­re­sent­ed by coun­sel of choice by pre­vent­ing coun­sel retained by Randolph’s fam­i­ly from enter­ing his appear­ance in the case and forc­ing him to go to tri­al with an unpre­pared court-appoint­ed lawyer with whom he had an ​“absolute[,] com­plete break­down of com­mu­ni­ca­tion.” Dauphin County pros­e­cu­tors appealed the deci­sion to the U.S. Court of Appeals for the Third Circuit, which affirmed the low­er court’s rul­ing, and the U.S. Supreme Court, which denied review. 

In DPIC’s research for the Death Penalty Census, two addi­tion­al exon­er­a­tions were uncov­ered, bring­ing the total num­ber of death-row exon­er­a­tions to 189.

Pennsylvania posthu­mous­ly exon­er­at­ed Alexander McClay Williams, a Black teenag­er who was exe­cut­ed in 1931 on false charges that he had mur­dered a white woman. Williams was just 16 when he was killed in the elec­tric chair, mak­ing him the youngest per­son ever exe­cut­ed in Pennsylvania. The court action was the cul­mi­na­tion of years of effort by Williams’ fam­i­ly and Sam Lemon, the great-grand­son of his tri­al lawyer, to clear the teen of the mur­der of his school matron, Vida Robare. Robare had actu­al­ly been mur­dered by her abu­sive ex-hus­band short­ly after she had obtained a divorce from him on grounds of ​“extreme cru­el­ty.” Williams was rep­re­sent­ed at tri­al by William Ridley, the first African American admit­ted to the Bar of Delaware County. Ridley was pro­vid­ed just $10 to inves­ti­gate and defend the case. An all-white jury con­vict­ed and con­demned Williams based upon a con­fes­sion coerced by police, after pros­e­cu­tors with­held excul­pa­to­ry evi­dence. The entire tri­al took less than a day. He was exe­cut­ed with­out an appeal. Delaware County District Attorney Jack Stollsteimer said, ​“We can­not rewrite his­to­ry to erase the egre­gious wrongs of our fore­bear­ers. However, when, as here, jus­tice can be served by pub­licly acknowl­edg­ing such a wrong, we must seize that opportunity.”

In the first half of 2022, two peo­ple with strong inno­cence claims received sig­nif­i­cant nationwide attention.

Texas set an exe­cu­tion date of April 27 for Melissa Lucio, a bat­tered woman who was sen­tenced to death for what may have been an acci­den­tal fall that killed her two-year-old daugh­ter. A bipar­ti­san group of near­ly 90 mem­bers of the Texas House of Representatives called on Governor Greg Abbott to grant clemen­cy to Lucio. ​“The sys­tem lit­er­al­ly failed Melissa Lucio at every sin­gle turn,” Rep. Jeff Leach (R – Plano), the chair of the House’s Criminal Justice Reform Caucus, said at a news con­fer­ence. ​“As a con­ser­v­a­tive Republican myself, who has long been a sup­port­er of the death penal­ty in the most heinous cas­es, I have nev­er seen a more trou­bling case.” Just two days before the exe­cu­tion date, the Texas Court of Criminal Appeals stayed Lucio’s exe­cu­tion and direct­ed the tri­al court to con­duct a hear­ing on the evi­dence of her innocence.

Oklahoma death-row pris­on­er Richard Glossip also received sup­port from state leg­is­la­tors, who released an inde­pen­dent review of his case. ​“We’ve got an indi­vid­ual sit­ting on death row that’s been there 25 years and I believe he’s total­ly inno­cent,” Oklahoma Rep. Kevin McDugle (R – Broken Arrow) said at a press con­fer­ence on June 15. The 343-page report includes the rev­e­la­tion that the dis­trict attorney’s office told police to destroy a box of evi­dence before Glossip’s sec­ond tri­al. Records indi­cate the box includ­ed finan­cial records, duct tape, and a show­er cur­tain from the crime scene. Glossip has faced three exe­cu­tion dates, one of which was halt­ed at the last minute because the state had obtained the wrong drug for his exe­cu­tion. He is the sec­ond of 25 pris­on­ers for whom the Oklahoma Attorney General request­ed exe­cu­tion dates. ​“Given the thor­ough­ness of the inves­ti­ga­tion and report, and the seri­ous­ness of the con­cerns it rais­es, it would be pre­ma­ture for this Court to set a date for Mr. Glossip’s exe­cu­tion,” Glossip’s attor­neys said in their objec­tion to set­ting an exe­cu­tion date. Despite these objec­tions, Glossip’s exe­cu­tion has been sched­uled for September 22, 2022. 

Action and inac­tion by the con­ser­v­a­tive super­ma­jor­i­ty of the U.S. Supreme Court in the first half of 2022 con­tin­ued to erode judi­cial enforce­ment of con­sti­tu­tion­al pro­tec­tions in death penal­ty cas­es. Since the retire­ment of Justice Anthony Kennedy and death of Justice Ruth Bader Ginsburg, the Court has not ruled in favor of a death-row pris­on­er or stayed any exe­cu­tion on any issue relat­ed to the con­sti­tu­tion­al­i­ty of a cap­i­tal con­vic­tion or death sentence. 

In a par­ti­san 6 – 3 deci­sion authored by Justice Clarence Thomas on May 23, the Court, in the con­sol­i­dat­ed cas­es of Shinn v. Martinez Ramirez and Shinn v. Jones, judi­cial­ly rewrote the fed­er­al habeas cor­pus statute to deny two Arizona death-row pris­on­ers access to the fed­er­al courts to present evi­dence that their inef­fec­tive state court coun­sel had failed to devel­op. Calling fed­er­al court inter­ven­tion to pre­vent an uncon­sti­tu­tion­al con­vic­tion or exe­cu­tion an ​“intru­sion … [on] the State’s sov­er­eign pow­er to enforce ​‘soci­etal norms through crim­i­nal law,’” Thomas ruled that 1990s amend­ments to the fed­er­al habeas cor­pus law per­mit state pris­on­ers who were pro­vid­ed inef­fec­tive rep­re­sen­ta­tion at tri­al and in state post-con­vic­tion pro­ceed­ings to argue that their coun­sel were inef­fec­tive but bar them from pre­sent­ing evi­dence of that inef­fec­tive­ness that com­pe­tent lawyers had dis­cov­ered once the case had reached fed­er­al court. Barry Jones’ state court lawyers had failed to inves­ti­gate avail­able evi­dence that he was inno­cent and David Martinez Ramirez’s state court lawyers had failed to inves­ti­gate evi­dence of intel­lec­tu­al dis­abil­i­ty that could have led a jury to spare his life. 

Justice Sonia Sotomayor issued a scathing dis­sent, joined by Justices Stephen Breyer and Elena Kagan. She described the deci­sion as ​“per­verse” and ​“illog­i­cal,” writ­ing that it ​“evis­cer­ates” con­trol­ling case prece­dent and ​“mis­char­ac­ter­izes” oth­er deci­sions of the Court. ​“The Court,” she wrote, ​“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.”

On June 13, the Court refused to review a deci­sion of the Texas Court of Criminal Appeals (TCCA) that for the sec­ond time had denied relief to Terence Andrus on his claim that his court-appoint­ed lawyer had failed to inves­ti­gate and present to his sen­tenc­ing jury a ​“tidal wave” of avail­able mit­i­gat­ing evi­dence. In June 2020, a 6 – 3 major­i­ty of the Court had reversed the TCCA’s pri­or deci­sion deny­ing relief, find­ing that coun­sel had unrea­son­ably failed to inves­ti­gate ​“abun­dant,” ​“com­pelling,” and ​“pow­er­ful mit­i­gat­ing evi­dence” that could have been pre­sent­ed to the jury to spare Andrus’ life. The Court remand­ed the case to the state court to recon­sid­er whether this fail­ure had been prej­u­di­cial. The TCCA respond­ed with a 5 – 4 deci­sion that ​“reiterate[d] … to the extent our hold­ing was not clear … that we decid­ed the issue of prej­u­dice when the case was orig­i­nal­ly before us.” 

Justice Sotomayor, joined by Justices Breyer and Kagan, dis­sent­ed, writ­ing that ​“Andrus’ case cries out for inter­ven­tion, and it is par­tic­u­lar­ly vital that this Court act when nec­es­sary to pro­tect against defi­ance of its prece­dents.” Sotomayor also stat­ed that by deny­ing cer­tio­rari, the Court is per­mit­ting ​“defi­ance of ver­ti­cal stare deci­sis,” which ​“sub­stan­tial­ly erodes con­fi­dence in the func­tion­ing of the legal system.” 

The Court on June 30 also refused to review anoth­er Texas case involv­ing glar­ing inef­fec­tive­ness of penal­ty-phase coun­sel for Anibal Canales to inves­ti­gate and present mit­i­gat­ing evi­dence. In dis­sent, Justice Sotomayor not­ed that ​“The mit­i­gat­ing evi­dence put on by Canales’ coun­sel was so thin that the pros­e­cu­tor remarked in clos­ing that it was ​‘an incred­i­bly sad trib­ute that when a man’s life is on the line, about the only good thing we can say about him is he’s a good artist.’” Sotomayor wrote: ​“The legal errors … below, involv­ing life-or-death stakes, are so clear that I would summarily reverse.”

On June 21, the first busi­ness day after the 20^th anniver­sary of the Court’s land­mark rul­ing in Atkins v. Virginia pro­hibit­ing the use of cap­i­tal pun­ish­ment against indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty, the Court let stand a Florida case that cre­at­ed a pro­ce­dur­al loop­hole that allows those exe­cu­tions to con­tin­ue. In a one-line rul­ing, the Court sum­mar­i­ly denied a peti­tion for writ of cer­tio­rari filed on behalf of death-row pris­on­er Joe Nixon, declin­ing to review the state’s refusal to apply to his case the Supreme Court’s 2014 rul­ing in Hall v. Florida that had struck down the uncon­sti­tu­tion­al­ly harsh cri­te­ria the Florida courts had pre­vi­ous­ly used to deny his intel­lec­tu­al dis­abil­i­ty claim. The Court on February 28 had declined to dis­turb a case in which intel­lec­tu­al­ly dis­abled death-row pris­on­er Rodney Young had chal­lenged Georgia’s unique­ly harsh require­ment that the defen­dant must prove his or her intel­lec­tu­al dis­abil­i­ty beyond a rea­son­able doubt. Then, on June 30, the Court refused to hear the case of Ohio death-row pris­on­er Danny Hill, whose claim of intel­lec­tu­al dis­abil­i­ty had been denied despite what the three lib­er­al jus­tices described in dis­sent as ​“a moun­tain of record evi­dence” estab­lish­ing his inel­i­gi­bil­i­ty for the death penalty.

June 30 also marked the offi­cial retire­ment of Justice Stephen Breyer, a death-penal­ty skep­tic who con­tin­ued to his final days on the Court to urge the jus­tices to recon­sid­er the con­sti­tu­tion­al­i­ty of cap­i­tal pun­ish­ment. He was replaced on the Court by Justice Ketanji Brown Jackson, the first African-American woman and first for­mer fed­er­al pub­lic defend­er to serve on the Court.

New laws expand­ed secre­cy poli­cies in two states, while anoth­er state passed a law bar­ring the death penal­ty for peo­ple with seri­ous mental illness.

State leg­is­la­tures in Idaho and Florida passed secre­cy bills to con­ceal from the pub­lic the iden­ti­ty of exe­cu­tion drug sup­pli­ers. Supporters of the bills said the secre­cy laws were nec­es­sary for the states to con­tin­ue with exe­cu­tions, since phar­ma­cies and drug sup­pli­ers have refused to pub­licly sup­ply drugs for exe­cu­tions. Opponents includ­ed the ACLU, media and first amend­ment orga­ni­za­tions who said the laws would cur­tail pub­lic over­sight of executions.

Mississippi also passed a law intend­ed to remove obsta­cles to exe­cu­tions. The new law gives the Commissioner of Corrections unprece­dent­ed dis­cre­tion in deter­min­ing how pris­on­ers will be exe­cut­ed. The state’s pre­vi­ous pol­i­cy allowed pris­on­ers to elect which method would be used for their exe­cu­tion. The new law places that deci­sion in the hands of the Commissioner of Corrections, who must inform the pris­on­er of the method to be used with­in sev­en days of receiv­ing an exe­cu­tion war­rant. The law does not tell the com­mis­sion­er how to deter­mine which method to be used and pro­vides no trans­paren­cy regard­ing how that choice is made.

Kentucky became the sec­ond state, along with Ohio, to bar the death penal­ty for peo­ple with seri­ous men­tal ill­ness. The bipar­ti­san bill pro­hibits the death penal­ty for defen­dants with a pri­or diag­no­sis of four seri­ous men­tal health dis­or­ders: schiz­o­phre­nia, schizoaf­fec­tive dis­or­der, bipo­lar dis­or­der, and/​or delu­sion­al dis­or­der, but does not apply to peo­ple already on death row. Defendants who qual­i­fy under the mea­sure can still be tried and con­vict­ed, but will face a max­i­mum sen­tence of life without parole.

On the fed­er­al lev­el, President Joe Biden signed his­toric leg­is­la­tion mak­ing lynch­ing a fed­er­al crime. The law had been pro­posed more than 100 years ear­li­er. ​“From the bul­lets in the back of Ahmaud Arbery to count­less oth­er acts of vio­lence — count­less vic­tims known and unknown — the same racial hatred that drove the mob to hang a noose brought that mob car­ry­ing torch­es out of the fields of Charlottesville just a few years ago,” Biden said. ​“Racial hate isn’t an old prob­lem; it’s a per­sis­tent prob­lem. A per­sis­tent prob­lem. And I know many of the civ­il rights lead­ers here know, and you heard me say it a hun­dred times: Hate nev­er goes away; it only hides. It hides under the rocks. And giv­en just a lit­tle bit of oxy­gen, it comes roar­ing back out, scream­ing. But what stops it is all of us, not a few. All of us have to stop it.”

For more on the his­tor­i­cal rela­tion­ship between lynch­ing and the death penal­ty, see DPIC’s November 2020 report, Enduring Injustice: the Persistence of Race Discrimination in the U.S. Death Penalty.