DPIC MID-YEAR REVIEW: Pandemic and Continuing Historic Decline Produce Record-Low Death Penalty Use in First Half of 2020

The com­bi­na­tion of the effects of the coro­n­avirus pan­dem­ic and the con­tin­u­ing broad nation­al decline in the use of cap­i­tal pun­ish­ment pro­duced his­tor­i­cal­ly low num­bers of new death sen­tences and exe­cu­tions in the first half of 2020. 

Even before the pan­dem­ic, the U.S. was poised for its sixth con­sec­u­tive year with 50 or few­er new death sen­tences and 30 or few­er exe­cu­tions. At the mid­point of 2020, there had been 13 new death sen­tences, imposed in sev­en states, and six exe­cu­tions car­ried out by five his­tor­i­cal­ly high-exe­cu­tion states. Florida (4), California (3), and Texas had imposed mul­ti­ple new death sen­tences, but only Texas (with 2) had car­ried out more than one execution.

Colorado became the 22^nd U.S. state to abol­ish the death penal­ty, and Governor Jared Polis com­mut­ed the death-sen­tences of the three pris­on­ers remain­ing on the state’s death row. Louisiana and Utah joined the list of twelve death-penal­ty states that have not car­ried out an exe­cu­tion for more than a decade. Two more death-row pris­on­ers were exon­er­at­ed, and courts issued orders set­ting the stage for anoth­er, bring­ing to 169 the num­ber of peo­ple in the U.S. exon­er­at­ed from wrong­ful con­vic­tions and death sen­tences since 1973.

As the U.S. Supreme Court refused to inter­cede in the fed­er­al government’s sec­ond attempt to resume fed­er­al exe­cu­tions, pub­lic sup­port for the death penal­ty con­tin­ued to decline. A May 2020 nation­al Gallup poll found a record-low per­cent­age of U.S. adults now believe that the death penal­ty is a moral­ly acceptable punishment.

State courts con­tin­ued to have a major impact on the course of cap­i­tal pun­ish­ment. In a deci­sion with ram­i­fi­ca­tions for more than 140 death penal­ty cas­es, the North Carolina Supreme Court struck down a leg­isla­tive attempt to retroac­tive­ly repeal the state’s Racial Justice Act. At the same time, new appointees to the Florida Supreme Court over­turned estab­lished pro­ce­dur­al safe­guards in three death penal­ty cas­es, includ­ing aban­don­ing case prece­dent that required a unan­i­mous jury rec­om­men­da­tion for death before a tri­al judge could impose the death penal­ty. The court’s deci­sion in State v. Poole could retroac­tive­ly reim­pose dozens of death sen­tences that pre­vi­ous­ly had been overturned. 

2016 through 2019 pro­duced four of the five low­est death-sen­tenc­ing years in the U.S. since the Supreme Court struck down exist­ing death-penal­ty statutes in Furman v. Georgia in 1972. With new death sen­tences already near his­toric lows and most cap­i­tal tri­als and sen­tenc­ings now sus­pend­ed or delayed, 2020 is expect­ed to pro­duce the fewest death sen­tences of any year in the mod­ern his­to­ry of the U.S. death penalty.

Prior to the coro­n­avirus pan­dem­ic, rel­a­tive­ly few cap­i­tal tri­als were under­way across the coun­try. Since the pan­dem­ic struck, defense teams have been unable to safe­ly and mean­ing­ful­ly inves­ti­gate and pre­pare their cas­es, and the poten­tial­ly life-threat­en­ing risks to wit­ness­es, jurors, defense and pros­e­cu­tion lawyers and inves­ti­ga­tors, court per­son­nel, and their fam­i­lies and com­mu­ni­ties have led to the sus­pen­sion or post­pone­ment of most capital trials:

• In Florida, the tri­al of accused Parkland school shoot­er Nikolas Cruz has been postponed indefinitely.
• An Ohio court sus­pend­ed the death-penal­ty tri­al of Stanley Ford, charged with arson and mur­der in fires that killed nine peo­ple, includ­ing five chil­dren, then declared a mis­tri­al two months lat­er when jurors object­ed to return­ing for an expect­ed three to four weeks of additional testimony.
• A Kentucky judge pushed back the start of the high-pro­file tri­al of Justin Smith, accused of the 2015 mur­der of a University of Kentucky stu­dent, until at least May 2021. 
• After heavy crit­i­cism for con­tin­u­ing to pur­sue cap­i­tal charges against Marco Garcia-Bravo even after the Colorado leg­is­la­ture had prospec­tive­ly abol­ished the death penal­ty, pros­e­cu­tors even­tu­al­ly dropped the death penal­ty in April fol­low­ing the post­pone­ment of jury selec­tion until at least July 17.
• In Nebraska, the penal­ty-phase hear­ing in the cap­i­tal pros­e­cu­tion of Aubrey Trail, orig­i­nal­ly sched­uled before a three-judge pan­el for June 23 – 26, was delayed until December 15. 

Only two death sen­tences have been imposed since the pan­dem­ic began shut­ting down courts in mid-March. Neither of those sen­tences — a tri­al before a three-judge pan­el in Ohio and a California tri­al court’s accep­tance of a jury ver­dict issued in January — involved new jury action, nor did the last sen­tences imposed pri­or to the pandemic.

The last death sen­tences imposed before the wide­spread court clo­sures were hand­ed down by a Florida tri­al judge on March 13, who sen­tenced Jesse Bell and Barry Noetzel to death after they pled guilty and were per­mit­ted to waive their rights to coun­sel and a jury sen­tenc­ing. The next new death sen­tence came on May 18, when an Ohio three-judge pan­el sen­tenced Joel Drain to death. Drain had waived his right to a jury tri­al and sen­tence, pre­sent­ed no guilt defense and refused to present mit­i­gat­ing evi­dence in the penal­ty-phase of his tri­al. The 66 days between those two death sen­tences was the longest the United States had gone with­out a new death sen­tence since 1973.

The few death sen­tences imposed in the first half of 2020 add fuel to long-stand­ing crit­i­cisms of the arbi­trari­ness and unre­li­a­bil­i­ty of death-penal­ty pro­ceed­ings and whose lives mat­ter most in the admin­is­tra­tion of U.S. crim­i­nal laws. In near­ly one-third of the cas­es (4 of 13), defen­dants had waived their rights to legal rep­re­sen­ta­tion, and/​or their rights to jury tri­al or sen­tenc­ing, con­tin­u­ing a dis­turb­ing pat­tern of death sen­tences result­ing from the worst of the worst legal process. 

Race remained an issue. Eight of the new death sen­tences were in cas­es involved only white vic­tims; none involved only Black vic­tims. Seven death sen­tences were imposed for killing a sin­gle white vic­tim and anoth­er was imposed for the mur­der of one Latina vic­tim. No death sen­tences were imposed for a sin­gle-vic­tim killing of a Black vic­tim. The two death sen­tences imposed for inter­ra­cial killings involved Black defendants. 

“Golden State Killer” Joseph DeAngelo, Jr. plead­ed guilty to 13 mur­ders and admit­ted to dozens of rapes and more than 150 crimes involv­ing 48 vic­tims in exchange for 11 life sen­tences. The plea deal spared DeAngelo the death penal­ty, one year after California pros­e­cu­tors had called a press con­fer­ence using his case to blast Governor Gavin Newsom’s dec­la­ra­tion of a mora­to­ri­um on exe­cu­tions as a ​“slap in the face” of mur­der vic­tims’ fam­i­lies. The deal raised recur­ring ques­tions of the arbi­trari­ness and lack of pro­por­tion­al­i­ty in cap­i­tal charg­ing and sentencing.

Midway through 2020, it appears that U.S. states are like­ly to car­ry out few­er exe­cu­tions than in any year since 1991, when there were 14 exe­cu­tions. Of the 54 exe­cu­tions dates set for 2020, six exe­cu­tions have been car­ried out, with nine sched­uled exe­cu­tions still pend­ing. The few juris­dic­tions that are attempt­ing to car­ry out exe­cu­tions are out­liers in both their crim­i­nal jus­tice and pub­lic health poli­cies, pri­or­i­tiz­ing imme­di­ate­ly exe­cut­ing pris­on­ers over pub­lic health and safe­ty con­cerns and fair judi­cial process. Eight exe­cu­tions have been stayed or resched­uled as a result of the COVID-19 pandemic.

The year’s exe­cu­tions also have high­light­ed con­tin­u­ing trou­ble spots in the U.S. death penal­ty. All six men exe­cut­ed this year had men­tal ill­ness (2), low IQ or brain dam­age (3), and/​or severe child­hood trau­ma or abuse (4). The six cas­es that result­ed in exe­cu­tions so far this year have also fea­tured sys­temic flaws, includ­ing inef­fec­tive rep­re­sen­ta­tion, denial of DNA test­ing, cur­tailed legal process, oppo­si­tion by vic­tims’ fam­i­lies, and claims of innocence. 

• John Gardner was exe­cut­ed in Texas after the Supreme Court refused to hear a claim of inef­fec­tive assis­tance of counsel.
• Donnie Lance was exe­cut­ed in Georgia over the clemen­cy pleas of the chil­dren he and the vic­tim shared. Lance main­tained his inno­cence in the mur­der of his ex-wife and her boyfriend, but he was the third con­sec­u­tive Georgia pris­on­er to be exe­cut­ed after being denied poten­tial­ly excul­pa­to­ry DNA test­ing.
• Abel Ochoa was exe­cut­ed in Texas after unsuc­cess­ful­ly seek­ing a stay of exe­cu­tion alleg­ing that Texas uncon­sti­tu­tion­al­ly inter­fered in the clemen­cy pro­ceed­ings in his case by pre­vent­ing him from sub­mit­ting evi­dence in sup­port of his clemency application.
• Nicholas Sutton was exe­cut­ed in Tennessee. His clemen­cy peti­tion was sup­port­ed by mem­bers of the vic­tims’ fam­i­lies, five jurors who sen­tenced him to death, and mul­ti­ple cor­rec­tions offi­cers who not only tes­ti­fied to Sutton’s reha­bil­i­ta­tion, but shared sto­ries of inci­dents in which he had put him­self in dan­ger to save their lives.
• Nathaniel Woods was exe­cut­ed in Alabama despite pros­e­cu­tors’ acknowl­edge­ment that his co-defen­dant was the shoot­er in the under­ly­ing crime. His con­vic­tion was taint­ed by alle­ga­tions of racism, police cor­rup­tion, intim­i­da­tion of wit­ness­es, and inad­e­quate rep­re­sen­ta­tion. He was sen­tenced to death by a non-unanimous jury.
• Walter Barton was exe­cut­ed in Missouri, becom­ing the first per­son exe­cut­ed dur­ing the COVID-19 pan­dem­ic. Barton’s defense team obtained affi­davits from three jurors that ​“com­pelling” new expert analy­sis con­tra­dict­ing the junk sci­ence used to con­vict Barton would have made them recon­sid­er their votes at his trial. 

Two more inno­cent men who were wrong­ful­ly con­vict­ed and sen­tenced to death – Paul Browning and Walter Ogrod – were exon­er­at­ed, the nation’s 168^th and 169^th death-row exon­er­a­tions since 1973. Both exon­er­a­tions occurred more than two decades after the wrong­ful con­vic­tions. The Pennsylvania Supreme Court also put in motion the July 1, 2020 exon­er­a­tion of Pennsylvania death-row pris­on­er Kareem Johnson when it ruled on May 19 that his repros­e­cu­tion would vio­late the state’s dou­ble jeopardy protections.

Paul Browning

Paul Browning was con­vict­ed and sen­tenced to death in 1986 for the rob­bery and mur­der of a Las Vegas jew­el­er. Browning was rep­re­sent­ed at tri­al by a lawyer who had been prac­tic­ing crim­i­nal defense for less than a year and failed to inter­view the police who respond­ed to the scene, exam­ine the evi­dence against Browning, or inves­ti­gate the crime. In his post-con­vic­tion appeal, Browning pre­sent­ed evi­dence that police and pros­e­cu­tors had with­held evi­dence of a bloody foot­print found at the scene that did not match Browning’s shoes or foot size, mis­rep­re­sent­ed blood evi­dence in the case, manip­u­lat­ed eye­wit­ness tes­ti­mo­ny, failed to dis­close ben­e­fits it offered to a key wit­ness who may have com­mit­ted the mur­der and framed Browning, and that the stab wounds suf­fered by the vic­tim were incon­sis­tent with wounds that would have been pro­duced by the knife pros­e­cu­tors claimed Browning had used to com­mit the killing. Browning also argued that a min­i­mal­ly com­pe­tent defense inves­ti­ga­tion would have revealed the flaws in the prosecution’s evi­dence and the fal­si­ty of the rep­re­sen­ta­tions the pros­e­cu­tion had made to the jury. A white wit­ness who worked near the crime scene told police she had seen a man run by after the mur­der and thought it could have been Browning, but when police asked if she could be ​“more sure” about whom she had seen, she said, ​“No, I wouldn’t think so. No … They all look the same, and that’s just what I think when I see a black per­son, that they all look the same.” At tri­al, though, she unhesi­tat­ing­ly tes­ti­fied that Browning was the man she had seen.

In 2017, the U.S. Court of Appeals for the Ninth Circuit over­turned Browning’s con­vic­tion. Then, in March 2019, Clark County District Judge Douglas Herndon ­dis­missed the charges against him, say­ing the deaths of key wit­ness­es made it impos­si­ble for him to receive a fair tri­al. The Nevada Supreme Court affirmed Judge Herndon’s deci­sion on January 24, 2020.

Walter Ogrod

Twenty-eight years after Philadelphia pros­e­cu­tors first sought to take his life for the mur­der of four-year-old Barbara Jean Horn, Walter Ogrod was exon­er­at­ed from Pennsylvania’s death row. Ogrod has con­sis­tent­ly main­tained his inno­cence in the 1988 mur­der of four-year-old Barbara Jean Horn. His first tri­al end­ed in a mis­tri­al when one of the 12 jurors who had vot­ed to acquit changed his mind. Before his sec­ond tri­al, pros­e­cu­tors engaged the assis­tance of John Hall, a noto­ri­ous jail­house infor­mant whom they nick­named ​“the Monsignor,” who worked with anoth­er infor­mant to fab­ri­cate a con­fes­sion from Ogrod. That tes­ti­mo­ny, along with a false con­fes­sion elicit­ed after 14 hours of inter­ro­ga­tion by homi­cide detec­tives who had coerced false con­fes­sions in sev­er­al oth­er cas­es, sent Ogrod to death row.

At the June 5 hear­ing, Philadelphia Assistant District Attorney Carrie Wood offered an emo­tion­al apol­o­gy for the mis­han­dling of the case. ​“First, I must turn to Mr. Ogrod and his fam­i­ly and friends,” Wood said. ​“I am sor­ry it took 28 years for us to lis­ten to what Barbara Jean was try­ing to tell us…. That you are inno­cent… And that we not only stole 28 years of your life, but that we threat­ened to exe­cute you based on falsehoods.”

She then addressed Horn’s moth­er, say­ing, ​“This office has not told you the truth about what hap­pened to your lit­tle girl so many years ago. The truth is painful, and ter­ri­ble, but it is what you deserved to hear from this office. And we did not do that. And I am so sor­ry. One of the most dif­fi­cult things for me is not being able to tell you who did this to Barbara Jean. I can’t imag­ine the pain of think­ing a chap­ter of your life has been closed only for it to reopen with unanswered questions.”

Finally, Wood apol­o­gized to the peo­ple of Philadelphia. ​“The errors made in this case made the streets less safe and I fear that the true per­pe­tra­tor in this case, hav­ing been left on the streets, may have brought harm to oth­ers,” she said. ​“That is the impact of … wrong­ful con­vic­tions on our com­mu­ni­ty. And for that, this office must apol­o­gize. And we must do better.”

Colorado became the 22^nd U.S. state to abol­ish the death penal­ty. Two states – Louisiana and Utah – reached ten years with no exe­cu­tions. With those three events, 34 states – more than two thirds of the nation – have either abol­ished the death penal­ty or not per­formed an exe­cu­tion in at least a decade.

Public opin­ion polls in the first half of 2020 doc­u­ment­ed con­tin­ued declin­ing sup­port for cap­i­tal pun­ish­ment. According to the 2020 Gallup Values and Beliefs poll, released on June 23, 2020, 54% of U.S. adults — a record low — now say the death penal­ty is moral­ly accept­able. That num­ber, the low­est in the 20-year his­to­ry of the poll, reflects a six-per­cent­age-point decline over the course of the last year and is 17 per­cent­age points below the 71% of respon­dents in 2006 who said that the death penal­ty was moral­ly accept­able. A record-high 40% of Americans told Gallup they believe the death penal­ty is morally wrong.

The 2020 Houston Area Survey by Rice University’s Kinder Institute for Urban Research found that death-penal­ty sup­port has declined by more than half since the turn of the 21^st cen­tu­ry in the city. The sur­vey, released on May 4, 2020, report­ed that a record-low 20% of Houstonians now sup­port the death penal­ty over life-sen­tenc­ing alter­na­tives. Houston com­pris­es 50% of the pop­u­la­tion of Harris County, Texas, which has car­ried out more than twice as many exe­cu­tions in the past half cen­tu­ry as any oth­er coun­ty in the United States.