DPIC Analysis — At Least 1,300 Prisoners are on U.S. Death Rows in Violation of U.S. Human Rights Obligations

At least 1,300 pris­on­ers have been incar­cer­at­ed on U.S. death rows for more than two decades, in vio­la­tion of U.S. human rights oblig­a­tions, a Death Penalty Information Center analy­sis of death-row demo­graph­ic data has found. The num­ber rep­re­sents more than half of all U.S. death-row pris­on­ers as of January 1, 2020. Nearly one third of the pris­on­ers whose extend­ed incar­cer­a­tions on death row vio­late their human rights are fac­ing exe­cu­tion in California. Nearly 200 more con­demned pris­on­ers were exe­cut­ed 20 or more years after hav­ing been sen­tenced to death, also in vio­la­tion of U.S. human rights obligations.

Thirteen of the 169 men and women exon­er­at­ed from wrong­ful cap­i­tal mur­der con­vic­tions since 1973 also had spent two decades or more on death row.

In 2018, the Inter-American Commission on Human Rights (IACHR) ruled that “[t]he very fact of spend­ing 20 years on death row is … exces­sive and inhu­man” pun­ish­ment, in vio­la­tion of the American Declaration of the Rights and Duties of Man (American Declaration). Subsequently, in April 2020, the IACHR — the body of the Organization of American States (OAS) that reviews poten­tial breach­es of human rights by mem­ber nations in the Western Hemisphere — returned to the issue in Sequoyah v. United States, and found that California’s 27-year impris­on­ment of Nvwtohiyada Idehesdi Sequoyah (for­mer­ly Billy Ray Waldon) on death row vio­lat­ed U.S. human rights obligations.

The IACHR held the United States respon­si­ble for vio­lat­ing Sequoyah’s ​“right to humane treat­ment,” say­ing his extend­ed incar­cer­a­tion under threat of death con­sti­tut­ed ​“cru­el, infa­mous or unusu­al pun­ish­ment” under the American Declaration. It fur­ther ruled that his exe­cu­tion after such a lengthy peri­od on death row would con­sti­tute an addi­tion­al human rights vio­la­tion and rec­om­mend­ed as a rem­e­dy that his death sen­tence be com­mut­ed to life imprisonment.

Following the IACHR’s deci­sion in Sequoyah, DPIC con­duct­ed a review of data relat­ed to cur­rent and exe­cut­ed death-row pris­on­ers to assess the breadth of the nation’s human rights vio­la­tion. DPIC found that 1,344 cur­rent pris­on­ers on 26 state, fed­er­al gov­ern­ment, or U.S. mil­i­tary death rows have been incar­cer­at­ed fac­ing exe­cu­tion for more than 20 years. With 2,620 pris­on­ers on death row in the United States or still in jeop­ardy of death on retri­al or resen­tenc­ing on January 1, 2020, that means more than half (51.3%) of those fac­ing exe­cu­tion in the United States are on death row in vio­la­tion of their human rights. An addi­tion­al 191 pris­on­ers have been exe­cut­ed by 20 states 20 or more years after hav­ing been first sen­tenced to death. 

These two cat­e­gories of pris­on­ers account­ed for 1,535 death-penal­ty-relat­ed human rights vio­la­tions by 26 U.S. states, the fed­er­al gov­ern­ment, and the U.S. military.

With 429 pris­on­ers on death row for more than two decades as of January 1, 2020, California was respon­si­ble for 31.9% of the human rights vio­la­tions relat­ing to the dura­tion of cur­rent pris­on­ers’ con­fine­ment on death row. Florida – whose death-penal­ty statute has been struck down as uncon­sti­tu­tion­al four dif­fer­ent times — was next with 192 pris­on­ers who had been on death row twen­ty or more years, fol­lowed by North Carolina with 95, Pennsylvania with 75, Texas with 74, and Alabama and Ohio with 71 each.

Florida has exe­cut­ed 34 pris­on­ers who had been on death row for 20 or more years, the most in the nation. Texas was next with 31, fol­lowed by Georgia with 28 and Alabama with 20.

On April 22, 2020, the Inter-American Commission on Human Rights ruled in Sequoyah v. United States that the United States had vio­lat­ed its oblig­a­tions to California death-row pris­on­er Nvwtohiyada Idehesdi Sequoyah (Billy Ray Waldon, pic­tured) under the American Declaration of the Rights and Duties of Man by fail­ing to resolve his case more than 27 years after he was first sen­tenced to death. That fail­ure, the Commission found, vio­lat­ed his ​“right of access to jus­tice” under Articles 18 and 24 of the American Declaration. 

In addi­tion to that pro­ce­dur­al vio­la­tion, the IACHR found that the peri­od for which Mr. Sequoyah has been impris­oned on death row fac­ing the pos­si­bil­i­ty of exe­cu­tion ​“great­ly exceeds the length of time that oth­er inter­na­tion­al and domes­tic courts have char­ac­ter­ized as cru­el, inhu­man and degrad­ing treat­ment.” The IACHR wrote, “[t]he very fact of spend­ing 27 years on death row is, by any account, exces­sive and inhu­man, and is aggra­vat­ed by the pro­longed expec­ta­tion that the death sen­tence could be exe­cut­ed. Consequently, the United States is respon­si­ble for vio­lat­ing, to the detri­ment of Mr. Sequoyah, the right to humane treat­ment, and to receive cru­el, infa­mous or unusu­al pun­ish­ment estab­lished by the American Declaration.” 

Previously, in 2018, the Inter-American Commission had found that in the case of Russell Bucklew — exe­cut­ed by Missouri the fol­low­ing year — that spend­ing 20 years on death row was ​“exces­sive and inhuman.”

The IACHR rul­ing also declared that, after hav­ing sub­ject­ed Mr. Sequoyah to the extend­ed ​“depri­va­tion of lib­er­ty on death row, [his] even­tu­al exe­cu­tion [would con­sti­tute] … a vio­la­tion of the right to pro­tec­tion against cru­el, infa­mous or unusu­al pun­ish­ment. … [T]he IACHR con­cludes that the exe­cu­tion of Mr. Sequoyah would con­sti­tute a seri­ous vio­la­tion of his right to life estab­lished in Article[ ] I of the American Declaration.”

The IACHR also found case-spe­cif­ic human rights vio­la­tions inde­pen­dent of the length of time Mr. Sequoyah has been con­fined on California’s death row. Those includ­ed the California courts’ deci­sions per­mit­ting Mr. Sequoyah to waive coun­sel and rep­re­sent him­self, despite sub­stan­tial evi­dence that men­tal ill­ness left him incom­pe­tent to do so. The Commission wrote:

[A] height­ened and rig­or­ous scruti­ny must be applied when decid­ing whether an accused is able to ade­quate­ly and effec­tive­ly rep­re­sent him­self or her­self in a death penal­ty case. A motion for self-rep­re­sen­ta­tion can­not be grant­ed when there are impor­tant doubts as to the capac­i­ty of the accused to ade­quate­ly and effec­tive­ly rep­re­sent him­self or her­self in a case in which his/​her life is at stake. Therefore, the IACHR finds that the lack of rig­or­ous scruti­ny at the time of decid­ing on the motion for self-rep­re­sen­ta­tion amounts to a vio­la­tion of the right to a fair tri­al and to due process of law.

Mr. Sequoyah had been dis­charged from the Navy in 1984 as a result of his men­tal ill­ness, after hav­ing been diag­nosed with ​“major depres­sion with psy­chosis,” para­noia, and a thought dis­or­der. He ​“was hav­ing audi­to­ry hal­lu­ci­na­tions [includ­ing] … hear­ing voic­es in dif­fer­ent lan­guages [that were] telling him to hurt him­self or hurt some­one else.” His cap­i­tal tri­al and death sen­tence, the IACHR found, vio­lat­ed the right of every per­son with men­tal dis­abil­i­ties not to be sub­ject­ed to the death penal­ty and con­sti­tut­ed cru­el, infa­mous or unusu­al pun­ish­ment for that additional reason. 

The IACHR con­clud­ed that the United States was respon­si­ble for vio­la­tions of five sep­a­rate Articles of the American Declaration. It rec­om­mend­ed that Sequoyah be grant­ed ​“effec­tive relief,” includ­ing that ​“his death sen­tence be com­mut­ed.” The com­mis­sion also rec­om­mend­ed that the U.S. ​“review its laws, pro­ce­dures, and practices” 

• to ensure com­pli­ance with the American Declaration of Human Rights, in par­tic­u­lar ​“that no one with a men­tal or intel­lec­tu­al dis­abil­i­ty at the time of the com­mis­sion of the crime or exe­cu­tion of the death sen­tence receives the death penal­ty or is executed”; 
• to ensure that a ​“more rig­or­ous stan­dard is applied when assess­ing a defen­dan­t’s com­pe­tence to self-rep­re­sent in death penal­ty cas­es”; and
• “to ensure that death penal­ty con­vic­tion and post-con­vic­tion pro­ceed­ings ful­ly com­ply with the right to be tried with­out undue delay.”

Finally, the Commission rec­om­mend­ed that the United States ​“adopt a mora­to­ri­um on exe­cu­tions of per­sons sen­tenced to death.”

DPIC also ana­lyzed how many pris­on­ers have been on death row a quar­ter cen­tu­ry or more or were exe­cut­ed fol­low­ing 25+ years on death row. That analy­sis found that, as of June 1, 2020, 769 pris­on­ers with active death sen­tences have been on the death rows of 24 states, the fed­er­al gov­ern­ment, or the U.S. mil­i­tary for more than a quar­ter cen­tu­ry in vio­la­tion of their human rights. DPIC found that anoth­er 61 had been put to death in 14 states in vio­la­tion of inter­na­tion­al human rights norms, after hav­ing spent 25 years or more facing execution.

California again dis­pro­por­tion­ate­ly account­ed for these human rights vio­la­tions (34.9%), with 268 pris­on­ers on death row for more than a quar­ter cen­tu­ry. Florida accounts for anoth­er 139 human rights vio­la­tions — 16.7% of the nation­al total — with 125 cur­rent pris­on­ers who have been on death row 25 years or more and 14 exe­cu­tions of pris­on­ers who had served at least 25 years on death row.

Those states are fol­lowed by Ohio with 47 human rights vio­la­tions, Pennsylvania and Nevada with 46 each, North Carolina with 44 and Texas with 40. 

Nineteen pris­on­ers have been on death row for more than four decades. 315 oth­ers have been on death row between 30 and 40 years. At least 26 pris­on­ers who were lat­er exe­cut­ed had been on death row for more than three decades before they were put to death. 

DPIC reviewed its data­base of 169 death-row exon­er­a­tions to deter­mine how many of the exonerees had been vic­tims of this form of U.S. human rights vio­la­tion. In 30 cas­es, it took 20 or more years for a wrong­ful­ly con­vict­ed for­mer death-row pris­on­er to be exon­er­at­ed. However, in many of those cas­es, the exon­er­a­tion was a mul­ti-step process in which the exoneree’s death sen­tence was over­turned years before he or she was released or finally exonerated. 

DPIC has iden­ti­fied 13 cas­es from 12 states in which exonerees spent 20 or more years on death row, in vio­la­tion of their human rights. The states com­mit­ting those vio­la­tions were Alabama, Arizona, California, Georgia, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Ohio, Pennsylvania, and Tennessee.

Three of the exonerees — Paul Browning in Nevada, Henry McCollum in North Carolina, and Glenn Ford in Louisiana — had been on death row 30 years or more before they were exonerated.

The DPIC analy­sis sig­nif­i­cant­ly under­states the mag­ni­tude of U.S. human rights vio­la­tions aris­ing from lengthy con­fine­ment under sen­tence of death. DPIC reviewed the por­tions of its death-penal­ty data­base relat­ing to the 2,620 pris­on­ers on death row as of January 1, 2020, the 1518 U.S. exe­cu­tions since 1977, and the 169 death-row exon­er­a­tions since 1973. The data reviewed did not include for­mer death row pris­on­ers who spent 20 or more years on death row before being resen­tenced to life or less or hav­ing their death sen­tences com­mut­ed; or those who died in cus­tody after 20 years or more con­fine­ment on death row. 

The infor­ma­tion DPIC reviewed in deter­min­ing the scope of the U.S. human rights vio­la­tion is part of a larg­er data­base it is com­pil­ing for its Death Row Census of all per­sons sen­tenced to death in the United States since 1972. The first phase of this mul­ti-year project, which will con­tain infor­ma­tion on the sta­tus of more than 9,400 death sen­tences imposed across the coun­try since the U.S. Supreme Court struck down exist­ing cap­i­tal pun­ish­ment statutes in June 1972, is expect­ed to be com­plet­ed this summer. 

DPIC takes no posi­tion on cap­i­tal pun­ish­ment itself but is crit­i­cal of the man­ner in which it is applied.

— Analysis by Robert Dunham with the assis­tance of data fel­lows Patrick Geiger and Steven Czarnecki. Tableau visu­al­iza­tions by Steven Czarnecki.

Updated 6/​23/​20 to cor­rect typo­graph­i­cal errors in col­umn of table list­ing exe­cu­tions after 20 years on death row.