The Death Penalty in 2019: Year End Report

Key Findings

• New Hampshire becomes 21^st state to abol­ish the death penalty
• Cali­for­nia impos­es mora­to­ri­um on executions
• Gallup Poll: Most Americans (60%) pre­fer life with­out parole to the death penalty
• For the fifth straight year, few­er than 30 peo­ple were exe­cut­ed and few­er than 50 peo­ple were sen­tenced to death
• 32 states have no death penal­ty or have not car­ried out an exe­cu­tion in more than a decade

Capital pun­ish­ment con­tin­ued to with­er across the United States in 2019, dis­ap­pear­ing com­plete­ly in some regions and sig­nif­i­cant­ly erod­ing in oth­ers. New Hampshire became the 21^st state to abol­ish the death penal­ty and California became the fourth state with a mora­to­ri­um on exe­cu­tions. With those actions, half of all U.S. states have abol­ished the death penal­ty or now pro­hib­it exe­cu­tions, and no state in New England autho­rizes cap­i­tal pun­ish­ment at all.

The use of the death penal­ty remained near his­toric lows, as states con­duct­ed few­er than 30 exe­cu­tions and imposed few­er than 50 new death sen­tences for the fifth year in a row. Seven states exe­cut­ed a total of 22 pris­on­ers in 2019. Thirty-four new death sen­tences were imposed, mark­ing the sec­ond-low­est num­ber in the mod­ern era of cap­i­tal punishment.

In the Midwest, Ohio sus­pend­ed exe­cu­tions in the wake of a court deci­sion com­par­ing its exe­cu­tion process to water­board­ing, suf­fo­ca­tion, and being chem­i­cal­ly burned alive. On December 11, Indiana marked the ten-year point with­out an exe­cu­tion. Death sen­tences in the American West set a record low, Oregon sub­stan­tial­ly lim­it­ed the breadth of its death-penal­ty statute, and — also for the fifth straight year — no state west of Texas car­ried out any exe­cu­tions. 32 U.S. states have now either abol­ished the death penal­ty or have not car­ried out an exe­cu­tion in more than a decade.

Public opin­ion con­tin­ued to reflect a death penal­ty in retreat. Support for cap­i­tal pun­ish­ment remained near a 47-year low and 60% of Americans — a new record — told Gallup they pre­ferred life impris­on­ment over the death penal­ty as the bet­ter approach to pun­ish­ing murder.

While most of the nation saw near-his­toric lows in death sen­tences and exe­cu­tions, a few juris­dic­tions bucked the nation­al trend. Death sen­tences spiked in Cuyahoga County (Cleveland), Ohio to three in 2019 and five in the last two years, more than in any oth­er coun­ty in the coun­try. The U.S. gov­ern­ment attempt­ed to restart fed­er­al exe­cu­tions after a 16-year hia­tus, using an exe­cu­tion pro­to­col that had not been sub­mit­ted to the pub­lic for com­ment or the courts for review. However, its plan to car­ry out five exe­cu­tions in a five-week peri­od fiz­zled when the U.S. Supreme Court declined to dis­turb a low­er court injunc­tion tem­porar­i­ly halt­ing the executions. 

The sto­ries behind the cas­es in which exe­cu­tions were car­ried out or new death sen­tences were imposed belied the myth that the death penal­ty is reserved for the worst of the worst. Every pris­on­er exe­cut­ed in 2019 had either a sig­nif­i­cant men­tal impair­ment (men­tal ill­ness, brain dam­age, or chron­ic trau­ma), a seri­ous inno­cence claim, or demon­stra­bly faulty legal process. Those sen­tenced to death this year includ­ed defen­dants whose juries did not unan­i­mous­ly rec­om­mend a death sen­tence, a brain-dam­aged defen­dant who was per­mit­ted to rep­re­sent her­self, a for­eign nation­al who waived his right to con­sular assis­tance, and oth­ers who waived their right to coun­sel, waived their right to a jury tri­al, and/​or pled guilty and pre­sent­ed no case for life.

Executions con­tin­ued to be geo­graph­i­cal­ly iso­lat­ed, with 91% of all exe­cu­tions tak­ing place in the South, and 41% in Texas alone. Scott Dozier, a men­tal­ly ill death-row pris­on­er who gave up his appeals and unsuc­cess­ful­ly attempt­ed to force Nevada to exe­cute him, com­mit­ted sui­cide on death row. 

Issues of inno­cence remained at the fore­front of nation­al cap­i­tal pun­ish­ment prac­tices. Three more for­mer death-row pris­on­ers were exon­er­at­ed in 2019, increas­ing the num­ber of doc­u­ment­ed U.S. death-row exon­er­a­tions to 167. Two exon­er­a­tions came in cas­es from the 1970s, high­light­ing the fail­ure of the nor­mal judi­cial review process to mean­ing­ful­ly pro­tect the inno­cent. 2019 threat­ened to be the year of exe­cut­ing the inno­cent. The risk of wrong­ful exe­cu­tions drew pub­lic atten­tion and out­cry in the cas­es of James Dailey and Rodney Reed, who faced exe­cu­tion dates despite pow­er­ful evi­dence of inno­cence. But in less high­ly pub­li­cized cas­es, two oth­er pris­on­ers with evi­dence of prob­a­ble inno­cence were exe­cut­ed. As new evi­dence point­ing to a dif­fer­ent killer emerged, Tennessee refused to con­duct avail­able DNA test­ing that had the poten­tial to exon­er­ate a man it may have wrong­ful­ly exe­cut­ed in 2006.

There were two human­i­tar­i­an grants of clemen­cy in 2019, as out­go­ing Kentucky Governor Matt Bevin com­mut­ed the death sen­tences of one pris­on­er whose case was plagued by what a fed­er­al appeals judge described as ​“unfair­ness and abysmal lawyer­ing” and anoth­er whose per­son­al trans­for­ma­tion on death row was so remark­able, the gov­er­nor said his ​“pow­er­ful voice needs to be heard by more people.”

In an unusu­al­ly ran­corous Supreme Court year, the Justices sparred over the cir­cum­stances in which stays of exe­cu­tion should be grant­ed. The Court ruled that poten­tial­ly tor­tur­ous exe­cu­tions were not uncon­sti­tu­tion­al unless they involved ​“super­added pain” and the pris­on­er — even if imped­ed by state secre­cy prac­tices — proved that an estab­lished and less painful alter­na­tive method to exe­cute him was avail­able to the state. There were few deci­sions on the sub­stance of death penal­ty law and the term was more notable for sig­nif­i­cant alle­ga­tions of dis­crim­i­na­to­ry prac­tices that the Court chose not to review.

The nation­al move­ment away from the death penal­ty con­tin­ued in 2019, as one state abol­ished its death penal­ty, anoth­er imposed a mora­to­ri­um on exe­cu­tions, and a third dras­ti­cal­ly lim­it­ed the cir­cum­stances in which the death penal­ty may be imposed.

On May 30, 2019, New Hampshire became the 21^st state to abol­ish the death penal­ty when its leg­is­la­ture over­rode Governor Chris Sununu’s veto of a repeal bill. With New Hampshire’s repeal, all of New England and a con­tigu­ous band of states from Maine to West Virginia have end­ed cap­i­tal pun­ish­ment. Only one north­east­ern state — Pennsylvania — still has a death penal­ty law on its books, and it has a mora­to­ri­um on exe­cu­tions. The New Hampshire state leg­is­la­ture had passed an abo­li­tion bill in 2018, but lacked the two-thirds major­i­ty in the Senate to over­ride Sununu’s veto. With bipar­ti­san sup­port, the leg­isla­tive veto over­ride suc­ceed­ed in 2019. Rep. Renny Cushing, a spon­sor of the bill and fam­i­ly mem­ber of two mur­der vic­tims, said, ​“I think it’s impor­tant the voic­es of fam­i­ly mem­bers who oppose the death penal­ty were heard, the voic­es of law enforce­ment who rec­og­nize that the death penal­ty doesn’t work in terms of pub­lic safe­ty, and the voic­es of the peo­ple in the state that know the death penal­ty is an abhor­rent prac­tice were all heard today by the Legislature.”

California Governor Gavin Newsom announced on March 13 that he was halt­ing all exe­cu­tions in the state, which has the nation’s most pop­u­lous death row. Newsom called the death penal­ty ​“a fail­ure” and cit­ed racial dis­crim­i­na­tion, lack of deter­rent val­ue, and the high cost of cap­i­tal pun­ish­ment as rea­sons for the mora­to­ri­um. California joined Colorado, Oregon, and Pennsylvania as states with gov­er­nor-imposed mora­to­ria on exe­cu­tions, plac­ing more than one-third (34.1%) of all U.S. death-row pris­on­ers under a mora­to­ri­um. Newsom also ordered the with­draw­al of the state’s pro­posed exe­cu­tion pro­to­col and the dis­man­tling of the exe­cu­tion cham­ber at San Quentin prison.

Half of all states have now either abol­ished the death penal­ty or have a mora­to­ri­um on exe­cu­tions. Those states com­prise a major­i­ty (50.4%) of the U.S. population.

The New Mexico Supreme Court vacat­ed the death sen­tences of the two men remain­ing on the state’s death row ten years after New Mexico prospec­tive­ly abol­ished the death penal­ty. By a 3 – 2 vote, a major­i­ty of the sit­ting jus­tices found that the death sen­tences of Timothy Allen and Robert Fry vio­lat­ed the pro­por­tion­al­i­ty require­ments of New Mexico’s death-penal­ty statute, which directs that ​“the death penal­ty shall not be imposed if … the sen­tence of death is exces­sive or dis­pro­por­tion­ate to the penal­ty imposed in sim­i­lar cases.” 

Oregon, which has had a mora­to­ri­um on exe­cu­tions in place since 2011, enact­ed a law nar­row­ing the class­es of crimes that are eli­gi­ble for cap­i­tal pun­ish­ment. The new law, signed on August 1, reduces the num­ber of death-eli­gi­ble cat­e­gories of ​“aggra­vat­ed mur­der” from 19 to four. The death penal­ty can now only be imposed in cas­es involv­ing acts of ter­ror­ism in which two or more peo­ple are killed, pre­med­i­tat­ed mur­ders of chil­dren aged thir­teen or younger, prison mur­ders com­mit­ted by those already incar­cer­at­ed for aggra­vat­ed mur­der, and pre­med­i­tat­ed mur­ders of police or cor­rec­tion­al officers. 

Arizona also reduced the num­ber of death-eli­gi­ble crimes, elim­i­nat­ing two aggra­vat­ing cir­cum­stances that had repeat­ed­ly been chal­lenged as vague or over­broad and one that had nev­er been used. The repealed pro­vi­sions were that the defen­dant ​“know­ing­ly cre­at­ed a grave risk of death” to some­one in addi­tion to the mur­der vic­tim; that the mur­der was com­mit­ted ​“in a cold, cal­cu­lat­ed man­ner with­out pre­tense of moral or legal jus­ti­fi­ca­tion”; and that the defen­dant ​“used a remote stun gun or an autho­rized remote stun gun in the com­mis­sion of the offense.” The leg­is­la­ture also com­bined two oth­er aggra­vat­ing cir­cum­stances into a sin­gle new aggravator.

Wyoming saw unprece­dent­ed move­ment toward abo­li­tion, with strong bipar­ti­san sup­port. In each leg­isla­tive house, the lead spon­sor of a bill to abol­ish the death penal­ty was a Republican. The Wyoming House of Representatives passed the bill on a 36 – 21 vote, and it passed a Senate com­mit­tee 5 – 4. The bill was defeat­ed in the full Senate by an 18 – 12 vote, but not before receiv­ing the sup­port of a major­i­ty of House Republicans and 1/​3 of the Republicans in the state Senate.

A bill to abol­ish the death penal­ty in Colorado passed a Senate com­mit­tee, but was with­drawn by the spon­sor before fur­ther action by the full Senate.

In response to a fed­er­al judge who com­pared Ohio’s lethal injec­tion pro­to­col to water­board­ing, suf­fo­ca­tion, and chem­i­cal fire, Governor Mike DeWine halt­ed exe­cu­tions until the state could devel­op a new exe­cu­tion pro­to­col that could be approved by courts. ​“Ohio is not going to exe­cute some­one under my watch when a fed­er­al judge has found it to be cru­el and unusu­al pun­ish­ment,” Governor DeWine said in February. The gov­er­nor grant­ed reprieves of six exe­cu­tion dates over the course of the year.

Nine state leg­is­la­tures con­sid­ered mea­sures to ban the exe­cu­tion of indi­vid­u­als with severe men­tal ill­ness. The Ohio House of Representatives passed such a bill in June, but the Senate did not con­sid­er it before adjourn­ing. In Virginia, a severe men­tal ill­ness exemp­tion passed the state Senate 23 – 17, but did not receive a vote in the House of Delegates.

Alabama and Tennessee both passed new laws expand­ing the death penal­ty. Alabama added mur­der of a first respon­der as a death-eli­gi­ble crime. Tennessee added the sale or dis­tri­b­u­tion of opi­ates with the intent and pre­med­i­ta­tion to com­mit mur­der as an aggra­vat­ing cir­cum­stance for the impo­si­tion of the death penal­ty or life with­out parole. Tennessee also altered the death-penal­ty appeals process, remov­ing the appeal to the court of crim­i­nal appeals in death penal­ty cas­es and pro­vid­ing for auto­mat­ic direct review by the Tennessee Supreme Court. Arkansas broad­ened its exe­cu­tion secre­cy law, con­ceal­ing infor­ma­tion about the sources of its exe­cu­tion drugs and mak­ing it a felony to ​“reck­less­ly dis­close” that information.

In his last series of acts before leav­ing office, out­go­ing Kentucky Governor Matt Bevin com­mut­ed the death sen­tences of Gregory Wilson and Leif Halvorsen to terms of life with the pos­si­bil­i­ty of parole. 

Wilson was con­vict­ed in 1988 in a pro­ceed­ing one fed­er­al appeals judge called ​“one of the worst exam­ples I have ever seen of the unfair­ness and abysmal lawyer­ing that per­vade cap­i­tal tri­als.” Wilson was rep­re­sent­ed by a lawyer who took the case for free after oth­er lawyers refused to accept appoint­ment for the $2,500 max­i­mum fee then avail­able in the state. His lawyer report­ed­ly had no office and no law books, and the phone num­ber on his busi­ness card was the phone num­ber of a local tav­ern. Defense coun­sel con­duct­ed vir­tu­al­ly no cross-exam­i­na­tion of the state’s wit­ness­es and pre­sent­ed no evi­dence in the penal­ty phase of the tri­al. Wilson, who is black, was sen­tenced to death, while his white co-defen­dant who admit­ted to being the killer was sen­tenced to a term of years and is now out of prison. Bevin wrote that, though Wilson had been involved in a ​“bru­tal mur­der,” ​“to say his legal defense was inad­e­quate would be the under­state­ment of the year.” 

Governor Bevin com­mut­ed Halvorsen’s sen­tence after review­ing a clemen­cy peti­tion detail­ing what his lawyer called a ​“unique and inspir­ing sto­ry of redemp­tion.” During his 36 years on Kentucky’s death row, Halvorsen went from being a drug addict to a col­lege grad­u­ate men­tor­ing at-risk youths. He com­plet­ed two col­lege degrees while on death row, raised mon­ey for under­priv­i­leged chil­dren, and was the only death-row pris­on­er the war­den trust­ed to be part of a pan­el of pris­on­ers who spoke with trou­bled stu­dents. Several of those stu­dents wrote let­ters sup­port­ing his peti­tion, say­ing he helped them to turn their lives around. Halvorsen was also cred­it­ed with restor­ing calm in the prison and pre­vent­ing attacks on cor­rec­tions per­son­nel and oth­er pris­on­ers. In his com­mu­ta­tion order, Gov. Bevin wrote, ​“Leif has a pow­er­ful voice that needs to be heard by more people.”

On July 25, 2019, the U.S. Department of Justice (DOJ) abrupt­ly announced its inten­tion to resume fed­er­al exe­cu­tions after a 16-year hia­tus. The announce­ment said that the DOJ had direct­ed the Federal Bureau of Prisons (BOP) to adopt a new sin­gle-drug lethal-injec­tion pro­to­col to car­ry out exe­cu­tions using pen­to­bar­bi­tal. The DOJ did not pro­vide the pub­lic notice or an oppor­tu­ni­ty to com­ment on the pro­pos­al or fol­low the rule­mak­ing pro­ce­dures set forth under fed­er­al law before order­ing the BOP to adopt this pro­to­col. And although a fed­er­al law­suit chal­leng­ing the government’s exe­cu­tion pro­ce­dures was already under­way, the gov­ern­ment issued death war­rants against five pris­on­ers who were not part of that law­suit, sched­ul­ing their exe­cu­tions over a five-week peri­od in December 2019 and January 2020. The first three exe­cu­tions were set for a five-day span between December 9 and 13.

The announce­ment sparked strong reac­tions against resum­ing fed­er­al exe­cu­tions from cor­rec­tion­al offi­cials, reli­gious lead­ers, retired judges and pros­e­cu­tors, and vic­tims’ fam­i­lies. Despite Attorney General William Barr’s asser­tion that ​“we owe it to the vic­tims and their fam­i­lies to car­ry for­ward the sen­tence imposed by our jus­tice sys­tem,” fam­i­ly mem­bers in two of the cas­es had long opposed the government’s pur­suit of the death penalty.

Earlene Peterson, whose daugh­ter and grand­daugh­ter were killed in the robbery/​murders for which Daniel Lee was sched­uled to be exe­cut­ed on December 9, released a video ask­ing for clemen­cy for Lee. In the video, Peterson said, ​“I can’t see how exe­cut­ing Daniel Lee will hon­or my daugh­ter in any way. In fact, it’s kind of like it dirt­ies her name, because she wouldn’t want it and I don’t want it. That’s not the way it should be. That’s not the God I serve.” Peterson was joined in her plea by a sur­viv­ing daugh­ter and grand­daugh­ter, as well as by the tri­al judge and the tri­al pros­e­cu­tor, both of whom not­ed that the more cul­pa­ble ring­leader who had killed Peterson’s grand­daugh­ter had been sen­tenced to life.

Lezmond Mitchell and his vic­tims were mem­bers of the Navajo Nation, and the case involved a mur­der on Navajo lands. The vic­tims’ fam­i­ly mem­bers and trib­al author­i­ties had long opposed seek­ing the death penal­ty in the case. In addi­tion, although DOJ had said that the pris­on­ers had exhaust­ed all avail­able appeals, Mitchell still had a case pend­ing before a fed­er­al appeals court when his death war­rant was signed, and that court halt­ed his exe­cu­tion so it could con­sid­er his claim of anti-Native American bias through­out his trial.

175 fam­i­ly mem­bers of mur­der vic­tims signed a let­ter call­ing for the DOJ and the President to halt the exe­cu­tions and urg­ing them to rein­vest the many mil­lions of dol­lars ​“waste[d]” on the death penal­ty ​“in pro­grams that actu­al­ly reduce crime and vio­lence and that address the needs of fam­i­lies like ours.” Sixty-five for­mer judges and 59 cur­rent and for­mer pros­e­cu­tors or law enforce­ment offi­cials joined the vic­tims’ fam­i­lies in oppos­ing the fed­er­al exe­cu­tions. The judges wrote: ​“there are too many prob­lems with the fed­er­al death penal­ty sys­tem, and too many unan­swered ques­tions about the government’s new­ly announced exe­cu­tion pro­ce­dure, to allow exe­cu­tions to pro­ceed.” Twenty-six for­mer cor­rec­tions offi­cials raised con­cerns, espe­cial­ly regard­ing the rushed time­frame of the exe­cu­tions. Former war­den Allen Ault wrote that the com­pressed exe­cu­tion sched­ule ​“caus­es an extend­ed dis­rup­tion to nor­mal prison oper­a­tions and pre­cludes any attempt to return to nor­mal­cy fol­low­ing an exe­cu­tion. It also pre­vents any mean­ing­ful review by exe­cu­tion team mem­bers and oth­er offi­cials to address prob­lems or con­cerns in the exe­cu­tion process. That increas­es the risk that some­thing could go hor­ri­bly wrong in the next exe­cu­tion. And if a ​‘rou­tine’ exe­cu­tion is trau­ma­tiz­ing for all involved, a botched one is devastating.”

On November 20, a fed­er­al dis­trict judge issued a pre­lim­i­nary injunc­tion block­ing the exe­cu­tions, say­ing the DOJ had ​“exceed­ed its statu­to­ry author­i­ty” in set­ting the new exe­cu­tion pro­to­col. The DOJ appealed the order and asked the U.S. Court of Appeals for the District of Columbia Circuit to lift the injunc­tion and let the exe­cu­tions pro­ceed while its appeal of the injunc­tion was pend­ing. The appeals court denied the DOJ’s request, and the DOJ then asked the U.S. Supreme Court to lift the injunc­tion. The Supreme Court declined, ensur­ing that the exe­cu­tions could not pro­ceed as orig­i­nal­ly sched­uled. The Supreme Court direct­ed the appeals court to resolve the government’s appeal of the injunc­tion ​“with dis­patch,” leav­ing open the com­pet­ing pos­si­bil­i­ties that the injunc­tion could be vacat­ed and new exe­cu­tion dates could be issued with­in sev­er­al months or that new war­rants could not be issued until the fed­er­al courts ful­ly address the mer­its of the fed­er­al death-row pris­on­ers’ chal­lenges to the legal­i­ty and con­sti­tu­tion­al­i­ty of the fed­er­al exe­cu­tion protocol.

Executions and new death sen­tences remained near his­toric lows in 2019, mark­ing the fifth con­sec­u­tive year with few­er than 30 exe­cu­tions and few­er than 50 new death sentences. 

States car­ried out 22 exe­cu­tions in 2019, the sec­ond fewest in 28 years. The only year since 1991 in which states con­duct­ed few­er exe­cu­tions was 2016, when 20 pris­on­ers were put to death. Executions were more than 77% below the peak of 98 twen­ty years ago, and were down slight­ly from the 25 exe­cu­tions con­duct­ed in 2018. 

Death sen­tences also remained near record lows in 2019. Eleven states and the U.S. fed­er­al gov­ern­ment imposed a total of 34 new death sen­tences, the sec­ond fewest in the mod­ern his­to­ry of the U.S. death penal­ty.^[1] New death sen­tences declined by 20.9% in 2019 from the already low 43 new death sen­tences imposed in 2018, and were down more than 89% from the peak of 310 or more new death sen­tences imposed each year from 1994 through 1996. The only time in the past 47 years in which few­er defen­dants were sen­tenced to death was 2016, when 31 new death sen­tences were imposed.

For both exe­cu­tions and new death sen­tences, the death penal­ty became increas­ing­ly geo­graph­i­cal­ly iso­lat­ed in 2019. Most states nei­ther per­formed an exe­cu­tion nor imposed a death sen­tence. Only 15 states, plus the fed­er­al gov­ern­ment, sen­tenced any defen­dant to death or exe­cut­ed any pris­on­er. Only four juris­dic­tions (Alabama, Florida, Georgia, and Texas) did both. 

Indiana con­duct­ed no exe­cu­tions for the tenth con­sec­u­tive year, bring­ing to 11 the num­ber of death-penal­ty states to have gone more than a decade with­out an exe­cu­tion. Arizona con­duct­ed no exe­cu­tions for the fifth con­sec­u­tive year, mak­ing it the 17^th death-penal­ty state with at least a five-year hia­tus on exe­cu­tions. Overall, 32 states, plus the District of Columbia, Puerto Rico, the fed­er­al gov­ern­ment, and the U.S. mil­i­tary now have no death penal­ty or have had no exe­cu­tions for more than a decade. Thirty-eight have either no death penal­ty or no exe­cu­tions in the past five years. 

Once again, the vast major­i­ty (91%) of U.S. exe­cu­tions took place in the South, with 41% in Texas alone. For the fifth con­sec­u­tive year, no exe­cu­tions were per­formed by any state west of Texas. 

^[1] The mod­ern era of the U.S. death penal­ty dates back to 1972, when the U.S. Supreme Court struck down all exist­ing death-penal­ty statutes and states began re-enact­ing new cap­i­tal pun­ish­ment laws in 1973.

Courts halt­ed more exe­cu­tions in 2019 (24 stays or injunc­tions) than states car­ried out (22). Of the 65 sched­uled exe­cu­tion dates set in 2019, near­ly two-thirds (66%) did not go for­ward. Thirteen pris­on­ers, all in Ohio, received reprieves as a result of lethal-injec­tion con­cerns. Three death war­rants sched­uled for 2019 were direct­ed at pris­on­ers who sub­se­quent­ly died on death row. These includ­ed a death war­rant in Ohio resched­ul­ing the exe­cu­tion of ter­mi­nal­ly ill Alva Campbell after the state called off his botched exe­cu­tion attempt in November 2017. 

The 24 stays were grant­ed for rea­sons rang­ing from irreg­u­lar­i­ties in the issuance of the war­rant, to con­cerns about the pris­on­er’s men­tal com­pe­ten­cy, to claims of inno­cence. In a car­ry­over from 2018, Nevada death-row pris­on­er Scott Dozier, who had per­suad­ed the state courts that he was not sui­ci­dal and was com­pe­tent to waive his appeals, com­mit­ted sui­cide on death row just months after a court halt­ed his exe­cu­tion because of Nevada’s mis­con­duct in obtain­ing the exe­cu­tion drugs. 

New death sen­tences were imposed in 11 states in 2019, but only eight states had more than one. Florida imposed sev­en death sen­tences, more than any oth­er state. However, in the four years before the U.S. Supreme Court struck down Florida’s non-unan­i­mous sen­tenc­ing statute in 2016, the state aver­aged 13.75 new death sen­tences per year. In the four years since, it has aver­aged 5 sen­tences per year. Ohio, where exe­cu­tions are on hold because of prob­lems with the lethal-injec­tion pro­to­col, imposed the sec­ond most sen­tences, with six. Cuyahoga County (Cleveland) alone account­ed for half of those, match­ing the total for the entire state of California. Georgia imposed a death sen­tence for the first time in five years, after the tri­al court per­mit­ted Tiffany Moss — a defen­dant with doc­u­ment­ed brain dam­age — to rep­re­sent her­self. Moss pre­sent­ed no defense at either the guilt or penal­ty phas­es of her trial.

The West set a record low for the num­ber of death sen­tences imposed in the region, with only four sen­tences, half the pre­vi­ous record low of eight, set in 2018. California imposed just three new death sen­tences in 2019, the fewest in any year since the state rein­stat­ed cap­i­tal pun­ish­ment in 1978. Arizona imposed one new death sen­tence, match­ing that state’s record low.

Thirty coun­ties (few­er than 1% of all U.S. coun­ties) and one fed­er­al dis­trict imposed death sen­tences in 2019, and only two coun­ties (Cuyahoga, Ohio and Riverside, California) imposed more than one.

Questions of the ade­qua­cy of judi­cial review to pro­tect the inno­cent stood out bold­ly in 2019, as five inno­cent men obtained their free­dom after decades in prison and at least four oth­ers who are like­ly inno­cent were exe­cut­ed or tem­porar­i­ly escaped execution. 

Three men who were wrong­ful­ly con­vict­ed and sen­tenced to die were exon­er­at­ed in 2019. Two had been con­vict­ed in 1976 and spent more than 40 years in prison. A third was freed after a con­vic­tion integri­ty unit released doc­u­ments show­ing that since-fired pros­e­cu­tors had with­held excul­pa­to­ry evi­dence. Their exon­er­a­tions brought to 167 the num­ber of for­mer death-row pris­on­ers exon­er­at­ed in the United States since 1973.

Clifford Williams, Jr. was released from prison in Florida in March. Williams’ defense coun­sel ignored 40 ali­bi wit­ness­es who could have tes­ti­fied that he and his 18 year-old nephew and co-defen­dant, Nathan Myers, had been attend­ing a par­ty next door at the time of the crime. Duval County Conviction Integrity Review Director Shelley Thibodeau not­ed that no phys­i­cal evi­dence linked either Williams or Myers to the crime, and the foren­sic evi­dence flat­ly con­tra­dict­ed the sup­posed ​“eye­wit­ness” tes­ti­mo­ny of a key pros­e­cu­tion wit­ness. The jury in the case rec­om­mend­ed a life sen­tence for both men, but Judge Cliff Shepard over­rode the rec­om­men­da­tion for Williams and imposed a death sen­tence. Florida leads the nation in death-row exon­er­a­tions, and in 21 of the 23 exon­er­a­tions for which the jury’s sen­tenc­ing rec­om­men­da­tion is known, the jury either rec­om­mend­ed a life sen­tence or was not unan­i­mous in rec­om­mend­ing death.

In June, Charles Ray Finch was exon­er­at­ed in North Carolina, fol­low­ing a fed­er­al court rul­ing that he had proven his ​“actu­al inno­cence.” Like Williams, Finch had been con­vict­ed in 1976 by false eye­wit­ness tes­ti­mo­ny. At the time, North Carolina law car­ried a manda­to­ry death sen­tence, and the statute was declared uncon­sti­tu­tion­al short­ly after Finch’s con­vic­tion. That court deci­sion like­ly saved Finch’s life, because after more than 25 years of appeals, he had no legal reme­dies left. Then, Finch obtained the assis­tance of the wrong­ful con­vic­tion clin­ic at Duke Law School, which worked for anoth­er 15 years to secure his free­dom. The clinic’s stu­dents and vol­un­teers dis­cov­ered that police had pres­sured wit­ness­es to tes­ti­fy against Finch and that a key wit­ness had undis­closed alco­holism and cog­ni­tive prob­lems that includ­ed dif­fi­cul­ty with short-term mem­o­ry. They also uncov­ered evi­dence that police had manip­u­lat­ed eye­wit­ness iden­ti­fi­ca­tion line­ups by dress­ing Finch in the same type of cloth­ing the per­pe­tra­tor had been described as wear­ing and that the police then lied about their misconduct. 

In December, after the ini­tial pub­li­ca­tion of this report, the Philadelphia District Attorney’s office Conviction Integrity Unit filed a motion to drop charges against Christopher Williams, who had been on Pennsylvania​’s death row since 1993. Williams had won a new tri­al in 2013 based on his tri­al coun­sel’s inef­fec­tive­ness for fail­ing to inves­ti­gate the crime-scene evi­dence and present avail­able med­ical and foren­sic evi­dence that would have shown that the tes­ti­mo­ny of the only wit­ness link­ing Williams to the mur­der was phys­i­cal­ly impos­si­ble. When the Conviction Integrity Unit reviewed the case file, it found ​“a pletho­ra of sig­nif­i­cant mate­r­i­al, excul­pa­to­ry evi­dence” that two lat­er-fired pros­e­cu­tors had not dis­closed to the defense. That evi­dence, the CIU said, con­tra­dict­ed the alleged eye­wit­ness tes­ti­mo­ny, impeached oth­er pros­e­cu­tion wit­ness­es, impli­cat­ed oth­er uncharged sus­pects, and sug­gest­ed that the three vic­tims had been involved in an ongo­ing dis­pute between ​“two extreme­ly vio­lent gangs, either of which may have been respon­si­ble for their deaths.” 

Two addi­tion­al pris­on­ers who had been wrong­ful­ly cap­i­tal­ly pros­e­cut­ed obtained their release from prison in 2019, but with­out full exon­er­a­tions. Louisiana pris­on­er Elvis Brooks was cap­i­tal­ly tried in 1977 for a bar­room mur­der, but was sen­tenced to life in prison. No phys­i­cal evi­dence linked him to the mur­der, and he pre­sent­ed twelve ali­bi wit­ness­es who tes­ti­fied that he was else­where when the mur­der occurred. The sole evi­dence against Brooks came from cross-racial iden­ti­fi­ca­tions by three white strangers who had been inside the dim­ly lit bar dur­ing the crime and who had picked out a pho­to­graph of Brooks from a police pho­to array. Brooks’ con­vic­tion was over­turned, and pros­e­cu­tors insist­ed he agree to a plea deal as a con­di­tion to secur­ing his imme­di­ate release. Brooks’ lawyer from the Innocence Project New Orleans, Charrel Arnold, said: ​“Mr. Brooks nev­er sought a plea agree­ment. It is deeply unfair that an inno­cent man would be forced to choose between enter­ing a plea to secure his imme­di­ate free­dom and wait­ing years more in prison to prove his inno­cence through lit­i­ga­tion.” Charrel Arnold called Brooks’ plight ​“par­tic­u­lar­ly unfair giv­en that the state has known about the new evi­dence pre­sent­ed in this case since 1977.”

In August 2019, a Nevada tri­al court ordered the state to release death-row pris­on­er Paul Browning, although Las Vegas pros­e­cu­tors are still appeal­ing the order dis­miss­ing the charges against him. Browning had been rep­re­sent­ed at his 1986 tri­al by a lawyer who had been prac­tic­ing crim­i­nal defense for less than a year and who nev­er inter­viewed the police who respond­ed to the scene, nev­er exam­ined the evi­dence against Browning, and failed to 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, and failed to dis­close ben­e­fits offered to a key wit­ness who may have com­mit­ted the mur­der and framed Browning.

Four pris­on­ers who were sched­uled for exe­cu­tion in 2019 also raised sig­nif­i­cant inno­cence claims. Domineque Ray was exe­cut­ed in Alabama on February 7. Though most of the atten­tion devot­ed to his case focused on ques­tions of reli­gious dis­crim­i­na­tion (dis­cussed below), he also argued that he was inno­cent and that the evi­dence against him was unre­li­able. Ray was con­vict­ed and sen­tenced to death for the rape and mur­der of a 15-year-old girl. No phys­i­cal evi­dence linked him to the crimes, and a sole pros­e­cu­tion wit­ness, Marcus Owden, impli­cat­ed Ray. In 2017, Ray’s appeal lawyers dis­cov­ered for the first time that Owden — who avoid­ed the death penal­ty by tes­ti­fy­ing against Ray — had schiz­o­phre­nia and was suf­fer­ing from delu­sions and audi­to­ry hal­lu­ci­na­tions when he accused Ray of the rape and mur­der and tes­ti­fied against him. Ray’s lawyers argued that the prosecution’s delib­er­ate sup­pres­sion of this evi­dence, despite being aware of Owden’s men­tal ill­ness, vio­lat­ed due process rights and enti­tled Ray to a new tri­al. Without com­ment, the Supreme Court declined to review the claim and denied a stay.

The foren­sic evi­dence against Texas pris­on­er Larry Swearingen was so weak that his defense attor­ney called it ​“quack­ery.” Numerous foren­sic experts con­tra­dict­ed the tes­ti­mo­ny used to con­vict Swearingen. The ​“smok­ing gun” in the case — a piece of panty­hose that alleged­ly matched the panty­hose used to stran­gle the vic­tim — was not dis­cov­ered in two ini­tial search­es of Swearingen’s home, and was ​“found” only after the vic­tim’s body had been dis­cov­ered with a panty­hose lig­a­ture around her neck. The lab tech­ni­cian who tes­ti­fied at tri­al that the two pieces were halves of a sin­gle pair of panty­hose had ini­tial­ly found ​“no phys­i­cal match” between them. Four foren­sic pathol­o­gists, three foren­sic ento­mol­o­gists, and a foren­sic anthro­pol­o­gist con­tra­dict­ed the med­ical exam­in­er’s tes­ti­mo­ny on the time of death. Under the med­ical exam­in­er’s time­line, the vic­tim had been killed imme­di­ate­ly after her dis­ap­pear­ance. All of the oth­er experts con­clud­ed she had been dead at most two weeks before her body was dis­cov­ered. Because Swearingen had been arrest­ed three weeks before the body was found and had remained in police cus­tody, it would have been impos­si­ble for him to have com­mit­ted the killing. Texas exe­cut­ed Swearingen on August 21.

James Dailey’s November 7 sched­uled exe­cu­tion was halt­ed by a Florida fed­er­al dis­trict court on pro­ce­dur­al grounds unre­lat­ed to the sub­stance of the seri­ous inno­cence issues pre­sent­ed in his case. Dailey pre­sent­ed evi­dence that his co-defen­dant, Jack Pearcy, had admit­ted on at least four sep­a­rate occa­sions that he alone had com­mit­ted the mur­der. That evi­dence includ­ed a 2017 signed affi­davit stat­ing, ​“James Dailey was not present when Shelly Boggio was killed. I alone am respon­si­ble for Shelly Boggio’s death.” No phys­i­cal evi­dence linked Dailey to the crime, and the only tes­ti­mo­ny against him came from Pearcy — who was sen­tenced to life in prison — and three jail­house infor­mants to whom police pro­vid­ed infor­ma­tion about the mur­ders and who received reduc­tions in the charges in their cas­es for say­ing Dailey had con­fessed to them. A ProPublica/​New York Times Magazine sto­ry pub­lished in December revealed that one of those wit­ness­es, Paul Skalnik, was a ser­i­al per­jur­er whose tes­ti­mo­ny had put dozens of defen­dants in jail, includ­ing four on death row.

Texas death-row pris­on­er Rodney Reed received a stay of exe­cu­tion from the Texas Court of Criminal Appeals on November 15, just five days before his sched­uled exe­cu­tion. The stay order direct­ed the Bastrop County dis­trict court to review Reed’s claims that pros­e­cu­tors pre­sent­ed false tes­ti­mo­ny and sup­pressed excul­pa­to­ry evi­dence in his case and that Reed is actu­al­ly inno­cent. Hours before the court issued the stay, the Texas Board of Pardons and Paroles unan­i­mous­ly rec­om­mend­ed that Gov. Greg Abbott grant a 120-day reprieve of Reed’s exe­cu­tion. Reed’s inno­cence claim received an unprece­dent­ed out­pour­ing of sup­port from Texas elect­ed offi­cials across the polit­i­cal spec­trum, high-pro­file celebri­ties, legal orga­ni­za­tions, and diplo­mats. A peti­tion to halt the exe­cu­tion gar­nered three mil­lion sig­na­tures. Reed’s attor­neys sought DNA test­ing of evi­dence from the case, includ­ing the belt used to stran­gle the vic­tim, Stacey Stites. Reed, who is black, says he and Stites, who is white, were hav­ing an affair that they kept secret because their inter­ra­cial rela­tion­ship would have caused a scan­dal in their small Texas town. He pre­sent­ed numer­ous affi­davits point­ing to Stites’ fiancé, Jimmy Fennell, an Austin-area police offi­cer, as the killer. Witnesses said they had heard Fennell on sev­er­al occa­sions threat­en to kill Stites if she cheat­ed on him, includ­ing say­ing ​“he would stran­gle her with a belt.” Fennell was fired from his police job fol­low­ing his arrest and con­vic­tion for kid­nap­ping a woman while on duty and sex­u­al­ly assault­ing her. According to court fil­ings by the Innocence Project, ​“promi­nent foren­sic pathol­o­gists” have con­clud­ed Fennell’s tes­ti­mo­ny that Stites was abduct­ed and killed on her way to work is ​“med­ical­ly and sci­en­tif­i­cal­ly impossible.”

Innocence issues reached into the grave as well. In Tennessee, April Alley, whose father Sedley Alley was exe­cut­ed in 2006 on charges that he had raped and mur­dered Suzanne M. Collins, asked the state courts to con­duct posthu­mous DNA test­ing that Alley and her lawyers from the Innocence Project argued could prove his inno­cence. On November 18, how­ev­er, the tri­al court dis­missed her request. Alley had con­sis­tent­ly said he had been coerced into con­fess­ing to the crime, and his sup­posed con­fes­sion was incon­sis­tent with the phys­i­cal evi­dence in the case. The Tennessee Supreme Court had denied Alley’s request for DNA test­ing pri­or to exe­cu­tion, but in an opin­ion in anoth­er case after Alley had been exe­cut­ed, the court acknowl­edged they had wrong­ly denied his request. Innocence Project co-founder Barry Scheck said, ​“This case has all the tell-tale signs of a wrong­ful con­vic­tion — a con­fes­sion that has been demon­strat­ed to be false by objec­tive foren­sic evi­dence, mis­tak­en eye­wit­ness iden­ti­fi­ca­tion, and, most dis­turb­ing, the refusal to test DNA evi­dence that could have exon­er­at­ed Mr. Alley or removed the doubts about his guilt.” In dis­miss­ing the request for DNA test­ing, Judge Paula Skahan said that Alley’s estate did not have stand­ing under Tennessee law to request the testing.

The exe­cu­tions in 2019 raised trou­bling issues of fair­ness and the per­sis­tent inabil­i­ty or unwill­ing­ness of states and the courts to lim­it cap­i­tal pun­ish­ment to the most seri­ous mur­ders and the most cul­pa­ble defen­dants. At least 19 of the 22 pris­on­ers who were exe­cut­ed this year had one or more of the fol­low­ing impair­ments: sig­nif­i­cant evi­dence of men­tal ill­ness (9); evi­dence of brain injury, devel­op­men­tal brain dam­age, or an IQ in the intel­lec­tu­al­ly dis­abled range (8); or chron­ic seri­ous child­hood trau­ma, neglect, and/​or abuse (13). Many cas­es that result­ed in exe­cu­tion in 2019 also involved faulty and insuf­fi­cient legal process or fla­grant­ly arbi­trary out­comes. Once again, this year’s exe­cu­tions did not rep­re­sent the ​“worst of the worst” crimes and offend­ers, but the most vul­ner­a­ble defen­dants and those whose tri­als and appeals were the least reliable.

Four of the exe­cut­ed pris­on­ers were under age 21 at the time of their crime, plac­ing them in a cat­e­go­ry that neu­ro­science research has shown is func­tion­al­ly indis­tin­guish­able, in terms of brain devel­op­ment and exec­u­tive func­tion, from juve­nile offend­ers who are exempt from execution. 

Five pris­on­ers pre­sent­ed claims that a co-defen­dant was the more cul­pa­ble per­pe­tra­tor. Marion Wilson and his co-defen­dant, Robert Earl Butts, were tried sep­a­rate­ly in Georgia. Believing that Butts was the shoot­er, the pros­e­cu­tor offered 19-year-old Wilson (but not Butts) a plea deal that would avoid the death penal­ty. Wilson turned down the deal. In each tri­al, the pros­e­cu­tor then argued to the jurors that the defen­dant in front of them was the trig­ger­per­son. Although the evi­dence all point­ed to Butts as the shoot­er, both men were sen­tenced to death.

Ray Cromartie, who was exe­cut­ed in Georgia in November, admit­ted that he was involved in the rob­bery in which a store clerk was killed but main­tained that he was not the shoot­er. The pros­e­cu­tion argued that he was the killer and should be sen­tenced to death. Supported by the mur­der victim’s daugh­ter, Cromartie sought a stay of exe­cu­tion to per­mit DNA test­ing of shell cas­ings, cloth­ing, and a cig­a­rette pack from the crime scene that foren­sic experts said could prove that he was not the shoot­er. Elizabeth Legette urged the Georgia Supreme Court to per­mit DNA test­ing. She wrote: ​“My father’s death was sense­less. Executing anoth­er man would also be sense­less, espe­cial­ly if he may not have shot my father. … [T]he State has set a date to exe­cute Mr. Cromartie with­out doing any test­ing. This is wrong, and I hope that you will take action to make sure that the test­ing happens.”

The pris­on­ers exe­cut­ed this year were also sub­ject to faulty legal process rang­ing from non-unan­i­mous sen­tenc­ing rec­om­men­da­tions to juror bias to false or mis­lead­ing testimony. 

Robert Jennings, the first per­son exe­cut­ed in the U.S. in 2019, was sen­tenced to death under a statute that was lat­er declared uncon­sti­tu­tion­al because it did not allow full con­sid­er­a­tion of mit­i­gat­ing evi­dence. The jury instruc­tions giv­en in his case to redress that error were also lat­er declared uncon­sti­tu­tion­al, and 25 Texas death-row pris­on­ers had their death sen­tences over­turned as a result. However, Jennings’s court-appoint­ed tri­al and appeal lawyers failed to raise the issue in Texas state court, and the Texas fed­er­al courts refused to con­sid­er the issue on the grounds that the state court lawyers had pro­ce­du­ral­ly default­ed the claim. Jennings’ state court lawyers also failed to inves­ti­gate and present evi­dence that he had his­to­ry of brain dam­age from a car crash and an injury with a base­ball bat; an IQ of 65 with relat­ed intel­lec­tu­al and adap­tive deficits; that he was born as the result of a rape and reared in an impov­er­ished, abu­sive, and neglect­ful home envi­ron­ment in which his moth­er fre­quent­ly told him she did not want him.

Domineque Ray, exe­cut­ed in Alabama, was sen­tenced by a non-unan­i­mous jury (11 – 1). He raised inno­cence claims, had numer­ous over­lap­ping men­tal impair­ments, and was denied access to his spir­i­tu­al advi­sor at the time of his exe­cu­tion. Under Alabama law, Christian chap­lains could accom­pa­ny pris­on­ers into the exe­cu­tion cham­ber. Prisoners of oth­er faiths, includ­ing Ray, who was Muslim, could not have their reli­gious advi­sors present in the exe­cu­tion cham­ber. Ray sought to chal­lenge the pol­i­cy before the U.S. Supreme Court, but his request was denied as untime­ly, despite the vocif­er­ous dis­sent of four jus­tices. The Court’s deci­sion was met with crit­i­cism from across the polit­i­cal spec­trum and from reli­gious lead­ers. Less than two months lat­er, the Court inter­vened to halt the exe­cu­tion of Texas pris­on­er Patrick Murphy, a Buddhist who had raised a reli­gious dis­crim­i­na­tion claim almost iden­ti­cal to Ray’s. Murphy chal­lenged Texas’ pol­i­cy that allowed the prison’s chap­lains, who were only Christian or Muslim, in the exe­cu­tion cham­ber, but blocked oth­er reli­gious advisors.

Three Texas pris­on­ers — Billie Wayne Coble, Robert Sparks, and Travis Runnels — were sen­tenced to death based upon false tes­ti­mo­ny by prison inves­ti­ga­tor A.P. Merillat, who worked with Texas pros­e­cu­tors as an expert wit­ness on con­di­tions of incar­cer­a­tion and the like­li­hood that defen­dants could com­mit future acts of vio­lence in the con­di­tions in which they would be impris­oned. In at least 15 cap­i­tal tri­als, Merillat false­ly assert­ed that pris­on­ers con­vict­ed of cap­i­tal mur­der would be ​“auto­mat­i­cal­ly” placed in mid-lev­el secu­ri­ty, where they would be in fre­quent con­tact with prison guards and non-vio­lent offend­ers. He also false­ly claimed that ​“If [a defen­dant] had pri­or con­vic­tions … the prison is not going to look at those pre­vi­ous con­vic­tions” in deter­min­ing the type of facil­i­ty in which the pris­on­er would be incar­cer­at­ed. Merillat’s tes­ti­mo­ny repeat­ed­ly over­stat­ed the fre­quen­cy of prison vio­lence and false­ly claimed that loop­holes would allow life-sen­tenced pris­on­ers to com­mit vio­lence. In 2012, the Texas Court of Criminal Appeals reversed two death sen­tences as a result of Merillat’s prej­u­di­cial­ly false tes­ti­mo­ny, but nei­ther it nor the fed­er­al courts inter­vene in these three cases.

Texas pris­on­er John William King was sen­tenced to death for his involve­ment in the lynch­ing death of James Byrd. King main­tained that his co-defen­dants com­mit­ted the mur­der and that he was not present when it occurred. His tri­al lawyers, how­ev­er, refused to present his inno­cence claim. His appel­late attor­neys argued unsuc­cess­ful­ly that the tri­al attor­neys’ actions vio­lat­ed the U.S. Supreme Court’s 2018 rul­ing in McCoy v. Louisiana. Judge Michael Keasler joined by three oth­er judges of the Texas Court of Criminal Appeals, wrote: ​“A death-sen­tenced man who has assert­ed his inno­cence since his cap­i­tal-mur­der tri­al has asked us to review his claim that his tri­al lawyer over­rode his express wish­es to pur­sue a defense con­sis­tent with his inno­cence. In light of … the hor­ri­ble stain this Court’s rep­u­ta­tion would suf­fer if King’s claims of inno­cence are one day vin­di­cat­ed (or, per­haps, if the Supreme Court even­tu­al­ly decides that McCoy should apply retroac­tive­ly), I think we ought to take our time and decide this issue unhur­ried­ly. I would grant the stay.” Later in the year, Stephen Barbee received a stay of exe­cu­tion on a sim­i­lar McCoy claim.

Florida exe­cut­ed Gary Ray Bowles, despite the fact that no court had ever addressed his claim that he was there­fore inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty (ID). Bowles’ lawyers did not ini­tial­ly file a claim of intel­lec­tu­al dis­abil­i­ty because the Florida Supreme Court had ruled that a per­son whose IQ was high­er than 70 could not be con­sid­ered intel­lec­tu­al­ly dis­abled, even if they met all the oth­er cri­te­ria for an ID diag­no­sis. After the U.S. Supreme Court struck down the 70-IQ cut­off as uncon­sti­tu­tion­al, Bowles’ new lawyers pre­sent­ed evi­dence that his IQ of 74 was with­in the clin­i­cal­ly accept­ed range for intel­lec­tu­al dis­abil­i­ty and that he had clas­sic adap­tive deficits asso­ci­at­ed with ID. The Florida Supreme Court ruled that his peti­tion was untime­ly and that he should have raised his claim dur­ing the time in which the Florida courts would have sum­mar­i­ly reject­ed it because of his IQ score.

Charles Rhines was sen­tenced to death by a South Dakota jury that relied on anti-gay stereo­types in reach­ing its ver­dict. According to juror affi­davits, there was ​“lots of dis­cus­sion of homo­sex­u­al­i­ty” dur­ing jury delib­er­a­tions after jurors learned that Rhines was gay. One juror said “[t]here was a lot of dis­gust. … There were lots of folks who were like, ​‘Ew, I can’t believe that.’” In a 2016 sworn state­ment, juror Frances Cersosimo report­ed that anoth­er juror had said, ​“If he’s gay, we’d be send­ing him where he wants to go” by sen­tenc­ing Rhines to life in an all-male prison. Juror Harry Keeney said in a sworn state­ment, ​“We also knew he was a homo­sex­u­al and thought he shouldn’t be able to spend his life with men in prison.” In 2017, the U.S. Supreme Court ruled in Peña-Rodriguez v. Colorado that ​“where a juror makes a clear state­ment that indi­cates he or she relied on racial stereo­types or ani­mus to con­vict a crim­i­nal defen­dant, the Sixth Amendment requires … the tri­al court to con­sid­er the evi­dence of the juror’s state­ment and any result­ing denial of the jury tri­al guar­an­tee.” Rhines’ lawyers argued that the court should apply this same prin­ci­ple to bias based on sex­u­al ori­en­ta­tion. He was exe­cut­ed after the state and fed­er­al courts refused to con­sid­er his claim of juror bias and the U.S. Supreme Court declined to hear his case.

Lee Hall Jr. was also exe­cut­ed despite a strong claim of juror bias that was nev­er con­sid­ered by a court. Hall was con­vict­ed of killing his ex-girl­friend in an act of domes­tic vio­lence. Potential jurors were ques­tioned on their past expe­ri­ences relat­ed to domes­tic vio­lence, but one juror came for­ward years lat­er and revealed that she had not dis­closed that she had been raped and phys­i­cal­ly abused by her for­mer hus­band. Because of her his­to­ry, she said in an affi­davit, “[a]ll these mem­o­ries [of abuse] flood­ed back to me” dur­ing the tri­al, ​“I could see myself in Traci [Crozier]’s shoes, giv­en what hap­pened to me. I hat­ed Lee for what he did to that girl.” Two weeks before Hall asked the Tennessee courts to stay his exe­cu­tion, anoth­er Tennessee pris­on­er who was sen­tenced to death for a mur­der involv­ing domes­tic vio­lence was grant­ed a new tri­al because a juror in his case had not dis­closed her his­to­ry of domes­tic abuse. Although the issues in the two cas­es were vir­tu­al­ly iden­ti­cal, the Tennessee courts refused to con­sid­er Hall’s claim.

Texas sched­uled 13 exe­cu­tions in the last five months of the year, many of which were the embod­i­ment of unfair legal process. Six of those exe­cu­tions were stayed and one war­rant was with­drawn. Dexter Johnson received a stay to con­sid­er his claim of intel­lec­tu­al dis­abil­i­ty, which had pre­vi­ous­ly been reject­ed under an unsci­en­tif­ic and uncon­sti­tu­tion­al stan­dard for­mer­ly used in Texas. Stephen Barbee was grant­ed a stay because his attor­neys had refused to present his inno­cence claims. Randy Halprin, a Jewish pris­on­er, received a stay after anti-Semitic com­ments by his tri­al judge came to light. Judge Vickers Cunningham, who over­saw Halprin’s tri­al, had dis­par­aged Halprin as ​“a f***in’ Jew” and ​“g**damn k**e,” and made racist com­ments about Halprin’s Latino co-defen­dants. Halprin, along with Patrick Murphy, were mem­bers of the ​“Texas 7” who had been sen­tenced under Texas’ con­tro­ver­sial ​“law of par­ties,” a law that allows defen­dants to be sen­tenced to death based upon the actions and intent of oth­ers, if the defen­dant played even a small role in a crime that result­ed in someone’s death. Murphy said he was not present when the vic­tim was killed, and Halprin said he did not fire any shots. Randall Mays’ exe­cu­tion war­rant was with­drawn to allow a court to con­sid­er whether he was incom­pe­tent for exe­cu­tion. Ruben Gutierrez main­tained he had been involved in a rob­bery, but had not com­mit­ted the killing and did not intend that a killing would take place. His exe­cu­tion was stayed because of irreg­u­lar­i­ties in the issuance of his death war­rant. Rodney Reed was grant­ed a stay to con­sid­er sig­nif­i­cant evi­dence of innocence.

On September 20, Tennessee Attorney General Herbert Slatery asked the Tennessee Supreme Court to set exe­cu­tion dates for an unprece­dent­ed nine death-row pris­on­ers, the largest exe­cu­tion request in the mod­ern his­to­ry of Tennessee’s death penal­ty. On the same day, he attempt­ed to inter­vene in the case of death-row pris­on­er Abu-Ali Abdur’Rahman to undo a court-approved plea deal that had resen­tenced Abdur’Rahman to three con­sec­u­tive life sen­tences and to rein­state a death war­rant sched­ul­ing his exe­cu­tion for April 2020. Slatery’s actions drew fire from defense lawyers, who described it as a ​“request for mass exe­cu­tions.” Abdur’Rahman’s lawyers had pre­sent­ed evi­dence that pros­e­cu­tor John Zimmerman had dis­crim­i­na­to­ri­ly exclud­ed black prospec­tive jurors from serv­ing in Abdur’Rahman’s cap­i­tal tri­al. Based on these and oth­er mis­con­duct alle­ga­tions against Zimmerman, Davidson County District Attorney Glenn Funk agreed that jus­tice would be served with Abdur’Rahman’s sen­tence being reduced to life in prison. Telling the court that “[t]he pur­suit of jus­tice is incom­pat­i­ble with decep­tion,” Funk con­ced­ed that Abdur’Rahman’s tri­al had been infect­ed by ​“overt racial bias.” The Tennessee Supreme Court on December 11 stayed Abdur’Rahman’s exe­cu­tion to deter­mine whether Slatery has author­i­ty to inter­vene in the case.

Many of the prob­lem­at­ic aspects of the exe­cu­tion cas­es only came to light years lat­er, after appeal lawyers dis­cov­ered facts that tri­al coun­sel failed to inves­ti­gate. But even at this com­par­a­tive­ly ear­ly stage of the cas­es, a sig­nif­i­cant num­ber of the death sen­tences imposed in 2019 paint a trou­bling pic­ture of the legal process in cap­i­tal cases.

No state per­mits non-unan­i­mous jury ver­dicts at the guilt stage of a cap­i­tal case and only one — Alabama — still per­mits a judge to impose the death penal­ty based upon a jury’s non-unan­i­mous rec­om­men­da­tion for death. Data sug­gests that this prac­tice dis­pro­por­tion­al­ly pro­duces death sen­tences and may increase the risk of wrong­ful exe­cu­tions. Two of the three peo­ple judges sen­tenced to death in Alabama in 2019 had non-unan­i­mous jury sen­tenc­ing rec­om­men­da­tions. Lionel Francis’ jury vot­ed 11 – 1 for death, while Brett Yeiter​’s jury was divid­ed 10 – 2. 

Several defen­dants were sen­tenced to death after ques­tion­able tri­als in which they waived their right to coun­sel and rep­re­sent­ed them­selves. In Georgia, a tri­al court allowed Tiffany Moss to rep­re­sent her­self despite evi­dence pre­sent­ed by the Office of the Capital Defender that neu­ropsy­cho­log­i­cal test­ing showed she had brain dam­age affect­ing regions of the brain asso­ci­at­ed with judg­ment, deci­sion mak­ing, and impulse con­trol. Moss said she would leave her defense to God, and she took no notes, did not active­ly par­tic­i­pate in jury selec­tion, and pre­sent­ed no guilt- or penal­ty-stage defense. She was the first per­son sen­tenced to death in Georgia since 2014. 

In Kern County, California, Mexican nation­al Miguel Crespo Cota refused the assis­tance of the Mexican con­sulate and the Mexican Capital Legal Assistance Project and rep­re­sent­ed him­self at his tri­al for killing a trans­gen­der cell­mate. After the jury unan­i­mous­ly vot­ed for death, Crespo Cota con­tin­ued to rep­re­sent him­self in the final sen­tenc­ing hear­ing before the court, telling the judge ​“I had a restric­tion not to be housed with a [gay exple­tive].” Joseph McAlpin rep­re­sent­ed him­self at tri­al in Ohio and declared that he would only accept full lib­er­ty or death. He got death.

Other defen­dants facil­i­tat­ed their death sen­tences by waiv­ing their right to have jurors deter­mine their fate. In Ohio, George Brinkman pled guilty, waived jury sen­tenc­ing, and was sen­tenced to death by a three-judge pan­el. Arron Lawson waived his right to a jury, was con­vict­ed in a bench tri­al, and was sen­tenced to death by three judges. In Florida, Rocky Beamon waived his jury rights and asked the tri­al judge to sen­tence him to death. 

Also in Florida, Johnathan Alcegaire instruct­ed his lawyers not to present any evi­dence dur­ing the sen­tenc­ing phase of his tri­al. The jury delib­er­at­ed for just 90 min­utes before sen­tenc­ing him to death. In a sen­tenc­ing mem­o­ran­dum to the court, his coun­sel not­ed that Alcegaire wasn’t the gun­man in the crime and that he had not had any behav­ioral prob­lems in his three years in jail. The court accept­ed the jury’s rec­om­men­da­tion for death.

In Pennsylvania, Jacob Sullivan plead­ed guilty and asked the jury to con­sid­er the fact that pros­e­cu­tors had offered his co-defen­dant a life sen­tence in exchange for plead­ing guilty and tes­ti­fy­ing against Sullivan. Sullivan was sen­tenced to death.

Public opin­ion con­tin­ued to reflect a death penal­ty in retreat, as polls showed every demo­graph­ic group more strong­ly favor­ing alter­na­tives to cap­i­tal pun­ish­ment and reform pros­e­cu­tors mak­ing fur­ther inroads at the bal­lot box. 

The 2019 Gallup poll, con­duct­ed in October and released in November, found that, for the first time since Gallup began ask­ing the ques­tion in 1985, a major­i­ty of Americans chose life impris­on­ment as a bet­ter approach for pun­ish­ing mur­der than the death penal­ty. By a mar­gin of 24 per­cent­age points, respon­dents said life with­out parole ​“is the bet­ter penal­ty for mur­der.” Sixty per­cent said they pre­ferred life with­out pos­si­bil­i­ty of release, while 36% favored the death penalty. 

The respons­es rep­re­sent­ed a marked 15-per­cent­age-point change in the five years since Gallup last asked the ques­tion. In 2014, 50% of respon­dents said they pre­ferred the death penal­ty, while 45% pre­ferred life in prison. ​“This is a pret­ty dra­mat­ic shift in opin­ion,” Gallup Senior Editor Dr. Jeffrey Jones, who con­duct­ed the sur­vey, told the Tulsa World. The shift in pref­er­ence crossed par­ty lines, with Jones not­ing, ​“all key sub­groups show increased pref­er­ences for life impris­on­ment. This includes increas­es of 19 points among Democrats, 16 points among inde­pen­dents, and 10 points among Republicans.” The groups that most strong­ly pre­ferred life with­out parole were non-whites (72%), peo­ple aged 18 – 34 (68%), women (66%), and col­lege grad­u­ates (65%).

When asked in the abstract whether they favored the death penal­ty or not, 56% of Americans said yes — the same per­cent­age as in 2018 and only one per­cent­age point above the 47-year low record­ed in 2017. Opposition to the death penal­ty reached its high­est lev­el in the mod­ern era of cap­i­tal pun­ish­ment, with 42% of respon­dents say­ing they opposed the practice. 

Election results in 2019 reflect­ed the pub­lic’s grow­ing embrace of reform pros­e­cu­tors, as vot­ers in four states elect­ed pros­e­cu­tors who vowed to reduce or end the use of cap­i­tal pun­ish­ment as part of their plat­forms to fight mass incar­cer­a­tion. Four coun­ties in the Washington, DC sub­urbs of Northern Virginia elect­ed pro­gres­sive pros­e­cu­tors. Newly-elect­ed Commonwealth’s Attorneys Steve Descano of Fairfax County and Parisa Dehghani-Tafti of Arlington County explic­it­ly cam­paigned against the death penal­ty. Dehghani-Tafti called it ​“inhu­mane, expen­sive, and racial­ly-biased,” while Descano crit­i­cized it as ​“inef­fec­tive at stop­ping crime, in addi­tion to being pro­hib­i­tive­ly expen­sive.” ​“There is no link between the death penal­ty and com­mu­ni­ty safe­ty,” Descano said. Amy Ashworth cam­paigned for office in Prince William County, say­ing she is ​“per­son­al­ly against” the death penal­ty and that its impo­si­tion ​“should be extra­or­di­nar­i­ly rare.” Ashworth will replace retir­ing pros­e­cu­tor Paul Ebert, whose office put more peo­ple on death row in his 51-year tenure than any oth­er coun­ty in Virginia and account­ed for more exe­cu­tions than 99.3% of all U.S. coun­ties. Candidate Buta Biberaj, who won Loudoun County’s race, said that ​“we have to be very mind­ful as to how we use [the death penal­ty] …. Death is final.”

In Southeastern Pennsylvania, Jack Stollsteimer became the first Democrat ever to hold the posi­tion of Delaware County District Attorney, join­ing Larry Krasner in neigh­bor­ing Philadelphia among the ranks of pro­gres­sive pros­e­cu­tors. During the cam­paign, Stollsteimer had crit­i­cized the incum­bent for oppos­ing reopen­ing the near­ly 40-year-old mur­der case of Leroy Evans. Evans, who has con­sis­tent­ly main­tained his inno­cence, was impli­cat­ed by a teen offend­er who had been threat­ened with the death penalty.

San Francisco vot­ers elect­ed for­mer pub­lic defend­er Chesa Boudin, who ran on an anti-estab­lish­ment plat­form of imple­ment­ing restora­tive jus­tice, end­ing mass incar­cer­a­tion, and eschew­ing the death penalty.

Since 2015, vot­ers have replaced the pros­e­cu­tors in 11 of the 34 coun­ties with the nation’s largest death rows.

In response to law­suits or the threat of legal action, four death-penal­ty states made sig­nif­i­cant changes to the con­di­tions of incar­cer­a­tion for death-row pris­on­ers in 2019.

In May, the U.S. Court of Appeals for the Fourth Circuit upheld a low­er court’s opin­ion that Virginia’s for­mer pol­i­cy of 23- or 24-hour per day soli­tary con­fine­ment for pris­on­ers on death row ​“cre­at­ed, at the least, a sig­nif­i­cant risk of sub­stan­tial psy­cho­log­i­cal or emo­tion­al harm” and that the state had been ​“delib­er­ate­ly indif­fer­ent” to that risk. At the time the suit was filed, Virginia had five men on death row and lim­it­ed them to one hour of recre­ation per day five days a week and a ten-minute show­er three days per week. During recre­ation, they ​“were con­fined to indi­vid­ual enclo­sures with con­crete floors and enclosed by a steel and wire mesh cage.” Under the Commonwealth’s new pol­i­cy, death-row pris­on­ers are allowed shared recre­ation every day, out­door recre­ation five days a week, dai­ly show­ers, and week­ly con­tact vis­its with their families. 

A set­tle­ment was reached in November between Pennsylvania and the 136 peo­ple on death row, end­ing the Commonwealth’s prac­tice of per­ma­nent soli­tary con­fine­ment and now pro­vid­ing pris­on­ers at least 42.5 hours a week out of their cells and 15 min­utes of phone access each day, con­tact vis­its, out­door exer­cise, dai­ly show­ers, group reli­gious ser­vices, jobs, and access to edu­ca­tion­al pro­grams. Jimmy Dennis, who was released on a plea deal in 2017 after 25 years on Pennsylvania’s death row, said of the con­di­tions he expe­ri­enced: ​“It’s like chip­ping away at your soul on so many dif­fer­ent lev­els, and you feel like you’re lit­er­al­ly suf­fo­cat­ing in your own skin.”

South Carolina announced in July that it was mov­ing all death-row pris­on­ers to a dif­fer­ent facil­i­ty, say­ing that the move ​“will address some of the con­cerns raised in a recent law­suit filed on behalf of the Death Row inmates.” Like Virginia, South Carolina had held pris­on­ers in soli­tary con­fine­ment 23 hours a day. In the new facil­i­ty, death-sen­tenced pris­on­ers have more oppor­tu­ni­ties to inter­act with one anoth­er, includ­ing hold­ing jobs with­in their unit.

In response to the threat of legal action by sev­er­al pris­on­ers’ rights orga­ni­za­tions, Oklahoma announced in September that it would relo­cate ​“all qual­i­fy­ing death row inmates” out of per­ma­nent soli­tary con­fine­ment in an under­ground facil­i­ty that one pris­on­er com­pared to being ​“buried alive.” The change will allow for con­tact vis­its and access to fresh air and nat­ur­al light.

Death penal­ty rul­ings in the U.S. Supreme Court in 2019 were less notable for rul­ings on the con­sti­tu­tion­al­i­ty of cap­i­tal tri­als and sen­tenc­ing pro­ceed­ings than for the deep divi­sions with­in the Court on how exe­cu­tions should be car­ried out and whether court review and par­tic­u­lar­ly stays of exe­cu­tion should be granted.

In Bucklew v. Precythe, the Court declared that ​“The Eighth Amendment does not guar­an­tee a pris­on­er a pain­less death.” In a con­tentious 5 – 4 deci­sion, Justice Neil Gorsuch wrote for the major­i­ty that a method of exe­cu­tion was not uncon­sti­tu­tion­al unless it involved ​“superadd[ed] … ter­ror, pain, or dis­grace.” As part of that deter­mi­na­tion, Gorsuch wrote, the pris­on­er must prove that an estab­lished and less painful alter­na­tive method to exe­cute him was avail­able to the state — although Missouri’s exe­cu­tion secre­cy prac­tices had pre­vent­ed Bucklew from show­ing what could be done. 

Russell Bucklew had chal­lenged the con­sti­tu­tion­al­i­ty of Missouri’s use of lethal injec­tion as it applied to him because of his rare med­ical con­di­tion, cav­ernous heman­gioma. As a result of that dis­or­der, Bucklew had blood-filled tumors in his head, neck, and throat, that doc­tors said could rup­ture dur­ing the exe­cu­tion process, poten­tial­ly caus­ing him to expe­ri­ence excru­ci­at­ing pain and suf­fo­cate to death on his own blood. Bucklew pro­posed exe­cu­tion by nitro­gen hypox­ia as a less painful method to put him to death. 

The deci­sion exposed sharp divi­sions with­in the Court and in the Justices’ approach­es to lit­i­ga­tion seek­ing stays of exe­cu­tion. On the sub­stance of lethal-injec­tion chal­lenges, the court reject­ed a require­ment that a state must statu­to­ri­ly autho­rize an exe­cu­tion method before it can be con­sid­ered ​“avail­able,” but ques­tioned whether nitro­gen hypox­ia was a legit­i­mate­ly avail­able alter­na­tive, say­ing Missouri should not be com­pelled to be the first state to adopt a new, ​“untried and untest­ed” exe­cu­tion method. In a dis­sent by Justice Stephen Breyer, the four lib­er­al and mod­er­ate Justices crit­i­cized the major­i­ty for ignor­ing evi­dence that ​“exe­cut­ing Bucklew by lethal injec­tion risks sub­ject­ing him to con­sti­tu­tion­al­ly imper­mis­si­ble suf­fer­ing” and ​“vio­lates the clear com­mand of the Eighth Amendment.” A pris­on­er who is chal­leng­ing the cru­el­ty of a par­tic­u­lar exe­cu­tion method based sole­ly on his or her unique med­ical cir­cum­stances, they argued, should not be required to iden­ti­fy an alter­na­tive method of exe­cu­tion. In a sep­a­rate dis­sent, Justice Sonia Sotomayor called the Court’s approach to lethal-injec­tion cas­es a ​“mis­guid­ed” trip along a ​“way­ward path,” say­ing ​“there is no sound basis in the Constitution for requir­ing con­demned inmates to iden­ti­fy an avail­able means for their own executions.”

The case also exposed deep dis­agree­ment among the jus­tices on what type of access death-row pris­on­ers should have to court review. In a non-bind­ing por­tion of the lead opin­ion, Justice Gorsuch dis­par­aged method-of-exe­cu­tions chal­lenges in gen­er­al as often being ​“tools to inter­pose unjus­ti­fied delay” and urged that “[l]ast-minute stays should be the extreme excep­tion, not the norm.” Justice Breyer respond­ed that it is inap­pro­pri­ate to redress exe­cu­tion delays by ​“cur­tail­ing the con­sti­tu­tion­al guar­an­tees afford­ed to pris­on­ers” and that the delays nec­es­sary to ensure that cap­i­tal pun­ish­ment is fair­ly imposed and prop­er­ly car­ried out may be evi­dence that ​“there sim­ply is no con­sti­tu­tion­al way to imple­ment the death penal­ty.” Justice Sotomayor crit­i­cized the majority’s com­ments about last-minute stays as ​“not only inessen­tial but also whol­ly irrel­e­vant to its res­o­lu­tion of any issue” before the Court. She cau­tioned that “[i]f a death sen­tence or the man­ner in which it is car­ried out vio­lates the Constitution, that stain can nev­er come out. Our jurispru­dence must remain one of vig­i­lance and care, not one of dismissiveness.”

The schism in the Court was evi­dent as well in sev­er­al oth­er hot­ly con­test­ed appli­ca­tions for stays of exe­cu­tion. In Dunn v. Price, the Court over­turned stays of exe­cu­tion ordered by an Alabama dis­trict court and the Eleventh Circuit Court of Appeals. Christopher Price chal­lenged Alabama’s lethal injec­tion pro­to­col and also sug­gest­ed nitro­gen hypox­ia — which was autho­rized in the state’s exe­cu­tion statute — as an alter­na­tive exe­cu­tion method. In a post-mid­night order vacat­ing the stays, the major­i­ty reject­ed Price’s chal­lenge as untime­ly, say­ing he had failed to select lethal gas dur­ing a 30-day win­dow cre­at­ed when Alabama added lethal gas to its exe­cu­tion statute and then wait­ed too long to chal­lenge the state’s method of exe­cu­tion. Justice Breyer’s dis­sent expressed alarm about the majority’s insis­tence on vacat­ing a stay after mid­night despite Breyer’s request to con­sid­er the issue at a presched­uled con­fer­ence to be attend­ed by all the jus­tices that morn­ing. ​“To pro­ceed in this way calls into ques­tion the basic prin­ci­ples of fair­ness that should under­lie our crim­i­nal jus­tice sys­tem,” Breyer wrote. 

Two stay of exe­cu­tion appli­ca­tions brought reli­gious rights issues to the fore. Domineque Ray and Patrick Murphy chal­lenged state pro­ce­dures that exclud­ed their reli­gious advi­sors from the exe­cu­tion cham­ber while allow­ing Christian reli­gious advi­sors to be present. Ray was a Muslim chal­leng­ing Alabama’s exe­cu­tion pro­ce­dures, and Murphy is a Buddhist chal­leng­ing Texas’ pro­ce­dures. The Supreme Court vacat­ed a stay of Ray’s exe­cu­tion in February, gen­er­at­ing a fierce back­lash across the polit­i­cal spec­trum from those con­cerned with reli­gious rights. One month lat­er, the Court stayed Murphy’s exe­cu­tion, which pre­sent­ed appar­ent­ly indis­tin­guish­able issues. The Court’s appar­ent­ly incon­sis­tent actions raised ques­tions of reli­gious dis­crim­i­na­tion and dis­parate treat­ment, and prompt­ed an extra­or­di­nary set of explana­to­ry opin­ions lat­er in the term attempt­ing to explain their deci­sions.

In its most sub­stan­tive death-penal­ty deci­sion of 2019, the Supreme Court found that a Mississippi dis­trict attor­ney had uncon­sti­tu­tion­al exclud­ed African Americans from serv­ing as jurors in Curtis Flowers​’s case (Flowers v. Mississippi). District Attorney Doug Evans had pros­e­cut­ed Flowers six times for a 1996 quadru­ple mur­der. Throughout these tri­als, Evans repeat­ed­ly attempt­ed to strike as many African-American poten­tial jurors as he could. The Court made clear that, under the Batson v. Kentucky doc­trine pro­hibit­ing the race-based exclu­sion of jurors, this his­to­ry was rel­e­vant in deter­min­ing whether his jury strikes in the sixth tri­al were based on race. In an opin­ion by Justice Brett Kavanaugh, the Court reversed the Mississippi Supreme Court and vacat­ed Flowers’ conviction. 

However, the Court refused to inter­vene in oth­er death-penal­ty cas­es that pre­sent­ed sig­nif­i­cant evi­dence of racial dis­crim­i­na­tion (Tharpe v. Ford, Jones v. Oklahoma, Wood v. Oklahoma) and refused to hear a case (Rhines v. Young) pre­sent­ing sub­stan­tial evi­dence of anti-gay bias. 

Two of the Court’s sub­stan­tive deci­sions were sec­ond looks at cas­es that had pre­vi­ous­ly been before the Court. In Madison v. Alabama, the Court clar­i­fied the con­sti­tu­tion­al stan­dards gov­ern­ing chal­lenges to a prisoner’s com­pe­ten­cy to be exe­cut­ed. Alabama planned to exe­cute Vernon Madison, an aging pris­on­er who had suf­fered mul­ti­ple severe strokes that caused brain dam­age, vas­cu­lar demen­tia, and ret­ro­grade amne­sia, also leav­ing him with slurred speech, legal­ly blind, incon­ti­nent, and unable to walk inde­pen­dent­ly. Alabama had argued that Madison was not incom­pe­tent because his cog­ni­tive impair­ments were not caused by psy­chosis. Justice Elena Kagan, writ­ing for the Court, declared that com­pe­ten­cy deter­mi­na­tions are gov­erned by whether a pris­on­er has a ratio­nal under­stand­ing of what an exe­cu­tion is and why he is being exe­cut­ed, not by what phys­i­cal or men­tal health con­di­tion impairs his understanding. 

In Moore v. Texas, the Court reit­er­at­ed that the deter­mi­na­tion of intel­lec­tu­al dis­abil­i­ty as a bar to exe­cu­tion must be based on clin­i­cal cri­te­ria, not lay stereo­types. The Court had pre­vi­ous­ly reversed the Texas state and fed­er­al courts’ rejec­tion of Bobby Moore​’s intel­lec­tu­al dis­abil­i­ty claim, set­ting forth the appro­pri­ate stan­dard for resolv­ing the issue. Moore’s case returned to the Supreme Court after the Texas Court of Criminal Appeals reject­ed a con­ces­sion by coun­ty pros­e­cu­tors that Moore was intel­lec­tu­al­ly dis­abled and, for a sec­ond time, denied his intel­lec­tu­al dis­abil­i­ty claim. The Supreme Court again reversed and declared that Moore had proven his intel­lec­tu­al dis­abil­i­ty. In oth­er intel­lec­tu­al dis­abil­i­ty cas­es, the Court remand­ed a Kentucky case for fur­ther con­sid­er­a­tion in light of the opin­ion (White v. Kentucky), but reversed a fed­er­al habeas deci­sion that had applied the 2017 Moore opin­ion in deter­min­ing whether a state court deci­sion that pre­dat­ed Moore had unrea­son­ably applied pri­or Supreme Court deci­sions (Shoop v. Hill).

“How you going to stop your heart from hurt­ing when it’s your baby that they about to put to sleep?” — Estelle Barrau, moth­er of Georgia death-row pris­on­er, Ray Cromartie

“Our death penal­ty sys­tem has been, by all mea­sures, a fail­ure. It has dis­crim­i­nat­ed against defen­dants who are men­tal­ly ill, black and brown, or can’t afford expen­sive legal rep­re­sen­ta­tion. It has pro­vid­ed no pub­lic safe­ty ben­e­fit or val­ue as a deter­rent. It has wast­ed bil­lions of tax­pay­er dol­lars. But most of all, the death penal­ty is absolute. It’s irre­versible and irrepara­ble in the event of human error.” – Governor Gavin Newsom, announc­ing moratorium

“I don’t believe in the death penal­ty. I feel like there are sit­u­a­tions where an indi­vid­ual can be redeemed or be healed and men­tal­ly or phys­i­cal­ly with what­ev­er the issue is and the root of why they are in that sit­u­a­tion.” – Basketball star Steph Curry

“Ohio is not going to exe­cute some­one under my watch when a fed­er­al judge has found it to be cru­el and unusu­al pun­ish­ment.” – Ohio Governor Mike DeWine

“Yes, Daniel Lee dam­aged my life, but I can’t believe tak­ing his life is going to change any of that. I can’t see how exe­cut­ing Daniel Lee will hon­or my daugh­ter in any way. In fact, it’s kind of like it dirt­ies her name, because she wouldn’t want it and I don’t want it. That’s not the way it should be. That’s not the God I serve.” – Earlene Branch Peterson, whose fam­i­ly was killed by Daniel Lee, request­ing clemency

“The death penal­ty does not pre­vent vio­lence. It does not solve crime. It does not pro­vide ser­vices for fam­i­lies like ours. It does not help solve the over 250,000 homi­cide cold cas­es in the United States. It exac­er­bates the trau­ma of los­ing a loved one and cre­ates yet anoth­er griev­ing fam­i­ly. It also wastes many mil­lions of dol­lars that could be bet­ter invest­ed in pro­grams that actu­al­ly reduce crime and vio­lence and that address the needs of fam­i­lies like ours.” – 175 vic­tims’ fam­i­ly mem­bers, in a let­ter to President Trump and Attorney General Barr

“I think peo­ple can learn for­give­ness and love and make the world a bet­ter place. That’s all I have to say.” — Last words of Tennessee death-row pris­on­er Lee Hall before he was exe­cut­ed December 5, 2019

Click HERE to down­load 2019 Execution Data as an Excel File

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