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  • Analysis & Opinion

The Eighth Amendment, the Death Penalty, and the Supreme Court

A legal scholar explains the history of the Court’s death sentence jurisprudence and ponders its future.

Brennan Center

  • Carol Steiker

Amendment VI Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The most conservative Supreme Court in a century has not yet fully put its stamp on the death penalty in America or on conditions of confinement within prisons. Nor, for that matter, have the justices delivered a recent ruling on the ways in which local officials control pretrial detention or impose hefty fines and fees on those who get wrapped up in criminal justice systems. The Eighth Amendment, as the newly constituted Roberts Court sees it, has yet to be written even though public debate over capital punishment, solitary confinement, and excessive bail often drive broader conversations about criminal justice in the United States.

Some trends, however, are apparent. The departure of Anthony Kennedy and Ruth Bader Ginsburg took from the Supreme Court two justices who supported key limitations on the death penalty and expanded protections for prisoners under the “cruel and unusual punishment” clause of the Eighth Amendment. They were replaced by two justices, Amy Coney Barrett and Brett Kavanaugh, whose lower-court records suggest broad support for capital punishment and little appetite for expanded Eighth Amendment protections for prisoners.

The question then is not whether the Court will limit capital punishment further but whether the conservative majority will reverse the limitations on the death penalty that Kennedy and Ginsburg helped establish in the past two decades. In 2002,  for example , the Supreme Court in  Atkins v. Virginia  outlawed the execution of intellectually disabled prisoners. Just two years later, the Court in  Roper v. Simmons  outlawed the execution of people who committed their capital crimes when they were juveniles. Are the precedents from these cases now vulnerable to a Court that has shown a new willingness to overturn established doctrine?

Some of the same questions may also be asked of the future of the Eighth Amendment as it relates to the use of solitary confinement inside prisons. Tens of thousands of men and women (and juveniles) are  held daily in isolated detention  across the country — complete statistics are impossible because so many corrections departments won’t share complete records — and many of these prisoners have legitimate claims that their treatment fails to meet the “evolving standards of decency.” That’s the proportionality standard the justices have adopted to evaluate claims under the Eighth Amendment. 

For answers to some of the questions, I turned to  Carol Steiker , a lawyer, author, and Harvard Law School professor who has enjoyed a rare view of the Supreme Court’s recent history with the Eighth Amendment in general and the death penalty in particular. As we discuss below, Steiker clerked decades ago ( as did Justice Elena Kagan ) for Justice Thurgood Marshall shortly before he retired from the court. More recently, Steiker co-authored a  well-received book  with her brother, Jordan Steiker, about the Supreme Court and capital punishment.

Steiker was asked five years ago, when the acclaimed film,  Marshall  came out, for some insight into how Justice Marshall approached Eighth Amendment law when capital cases came before the court. She recalled, “The death penalty was a big deal in his chambers. He would tell us stories about early in his career when he represented defendants at trial as well as on appeal in death penalty cases. Mostly they were black men accused of crimes against white victims in the South. And one thing he said often is that he always knew when he had an innocent client because that’s when the jury would sentence him to life imprisonment instead of death. And that really stuck in my head.”

Here’s Steiker with her views of where Eighth Amendment jurisprudence is likely headed under the Roberts’ court. She’s particularly intrigued by a line of reasoning offered recently by Justice Neil Gorsuch that suggests the possibility of a sea change in the way the court views “evolving standards of decency.” The interview was gently edited for length and clarity.

COHEN:  Let me start with an abstract question. You clerked decades ago for Justice Thurgood Marshall, the only Supreme Court justice to ever represent a death row prisoner. He was, famously, an opponent of capital punishment after seeing firsthand the racial disparities at the heart of what Justice Harry Blackmun once called the “machinery of death.” What do you think Justice Marshall would say about the state of Eighth Amendment jurisprudence today? 

STEIKER:  It’s not a hard question because Justice Marshall, along with Justice William Brennan, dissented from every death sentence and execution from 1976 — when the Court reinstated the death penalty as constitutional in  Gregg v. Georgia  and accompanying cases­­ — to when each of them retired from the Court. And Justice Marshall would, in every dissenting opinion, begin it the same way. And I can remember it because I typed it many times. The dissent would read something like: Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the Constitution, I would grant the  writ of certiorari  and vote to vacate the death sentence in this case.

And then, often, Justice Marshall and/or Justice Brennan would go on to say: Even if I didn’t hold this view, that the death penalty is always unconstitutional, I would grant review or I would rule for the defendant if the cases were actually granted. So we know that Justice Marshall along with Justice Brennan adhered to their views expressed in their dissents in  Gregg  and their majority opinions in  Furman v. Georgia  in 1972 that the death penalty was  per se  a violation of human dignity. That was the way that they saw it.

That said, in the time since  Gregg  was decided, a number of other justices have actually come over to the Brennan and Marshall camp. The first to do so actually did so after his retirement from the Court. Justice Lewis Powell, who was one of the dissenters in  Furman.  He did not rule the death penalty unconstitutional initially in that 1972 case. He was one of the four Nixon appointees who took that view. Powell ended up writing the majority opinion for the Court in  McCleskey v. Kemp, w hich in 1987 rejected a constitutional challenge to the death penalty on the grounds of racial discrimination, which was well documented.

And the Court said even if that study is valid, which we don’t need to rule on, McCleskey still loses his discrimination claim 5–4. Brennan and Marshall dissented in that case obviously as well. Shortly thereafter Powell retired from the Court and John Jeffries, who later became the dean of the University of Virginia School of Law, wrote an official biography of Justice Powell and interviewed him many times. And in the course of those interviews Justice Powell said that he regretted his vote and opinion in McCleskey and that he had come to the view, a little late, that the death penalty was unconstitutional.

COHEN:  My sense is that there was a period about a decade or so ago, when the Court was more evenly split, where there was likely more hope for capital abolitionists or those who want to restrict the instances of capital punishment — we saw it with juvenile offenders, we saw it with intellectual disabilities Do you think Justice Marshall today, in 2021, with a Court that includes Justice Brett Kavanaugh and Justice Amy Coney Barrett and so forth, would think that some of those gains are going to slip away or do you think he would counsel patience and hope that one day there will be a 6–3 split the other way on the Court. 

STEIKER:  Justice Marshall was a total impact litigation strategist. He was the one who argued  Brown v. Board of Education , but that decision did not emerge full-grown from the head of Zeus. He had been litigating civil rights cases for decades so I suspect he would take the long view.  He would likely note that several other justices eventually also came around to the Marshall and Brennan view of capital punishment. Justice Harry Blackmun — another of the four Nixon dissenters in  Furman  — shortly before his retirement in 1994 penned a very passionate denial of cert in  Callins v. Collins,  where he wrote that he had come to the conclusion that the death penalty is unconstitutional per se.

It was less than a year until Justice Blackmun retired from the Court, but interestingly he started writing dissents in all the remaining death penalty cases, beginning with the phrase Justice Marshall had first used: “Adhering to my view in  Callins v. Collins …” He was very self-consciously modeling himself after Marshall and Brennan, neither of whom were still on the Court in 1994. That’s another  Furman  dissenter and Republican appointee who changed his mind.

Then there was  Baze v. Rees  in 2008. Justice John Paul Stevens, the Ford appointee who was not on the Court in 1972 for  Furman,  but who joined the Court shortly before  Gregg  in 1976. Along with Justice Powell and Justice Potter Stewart, Justice Stevens wrote the controlling plurality opinions in  Gregg  and the accompanying four cases that basically brought the death penalty back. This was the capital punishment plurality that launched the modern death penalty. But Stevens gets off the boat in 2008 and says: Now I’m convinced that the death penalty is unconstitutional, although unlike Justices Marshall, Brennan and Blackmun before him, Justice Stevens says he’ll continue to uphold the death penalty under Eighth Amendment jurisprudence out of respect for precedent.

And now, most recently, Justice Stephen Breyer wrote that long dissent in  Glossip v. Gross , another lethal injection case in 2015, joined by Justice Ruth Bader Ginsburg, saying that the Court should grant a global challenge to consider the constitutionality of the death penalty, not actually saying that they would hold that it is unconstitutional, but offering a lengthy, lengthy opinion about all the problems with America’s death penalty. I think some of the arguments that Justice Breyer made in 2015 are different from the arguments that Brennan and Marshall made in the 1970s, and I think time has shown the power of those arguments.

One was the problem of wrongful convictions. Justice Breyer in  Glossip  put a lot of weight on evidence that people were sentenced to death for crimes they did not commit. There was less evidence of this back in the 1970s, because we didn’t have DNA testing then, so that’s a powerful new moral and legal argument against capital punishment.

The other problem is the incredible lengthening time on death row, which now averages more than two decades. Justice Breyer has always said that a death sentence is not actually a sentence of execution but rather a sentence of very, very lengthy incarceration, usually decades of solitary confinement, before you are executed, if you ever are. And he’s said that is a very cruel punishment.

COHEN:  You could argue also, though you didn’t mention him, that former Justice Anthony Kennedy softened his views on capital punishment. Not to the extent that he was ever a vote for its abolition, but he certainly was a crucial vote for its restriction — twice — and then subsequently defended his view that there must be limitations. Do you see a Republican appointee on the Supreme Court today that you would target as the likely candidate for a similar reversal along the lines of what you have described?

STEIKER:  No.

COHEN : I guess the only person one could conceive of having an about-face on the death penalty is Chief Justice John Roberts, but there is no indication that that is in the cards, right? Certainly there’s nothing in his public writing to suggest a change is near. 

STEIKER : I think the vetting process for justices has gotten much more political, and so I don’t think we are likely to see the transformations we saw not just with Blackmun and Stevens but with Souter and Kennedy as well. Those were Republican appointees who often were tagged, later in their tenure, as being on the left wing of the Court, and who both penned multiple opinions expressing concerns about the administration of capital punishment.

COHEN:  My sense is that when  Glossip  was decided, six years ago now, there was this optimism among advocates that things were really close to a breakthrough, to more restrictions on the death penalty or even to capital abolition. Here was Breyer, asking for a more complete review, and there seemed to be real momentum toward real change. But we went from a 5­–4 majority then with Kennedy as the swing vote to a 6–3 conservative majority, where I guess you would say that the Chief Justice is the most moderate of the six, but clearly no fan of restrictions on capital punishment. Do you get the sense as so many others do that the capital reform window has now closed for a period? 

STEIKER:  I am on record as saying that. My brother and I wrote a book titled, “Courting Death,” which was published (in a nice little irony) on November 7, 2016, that would be the day before Donald Trump was elected president. We, along with most people we knew, thought that Hillary Clinton had it in the bag and that Merrick Garland would be on the Court. So you’d likely have four plus two possible votes (Garland and Kennedy) to abolish. We predicted rather confidently that the Court would abolish the death penalty under the Eighth Amendment and explained how much of the doctrine to justify doing so was written by Justice Kennedy and could easily bear a reading that abolished capital punishment.

But of course, Merrick Garland never made it to the Supreme Court and Justices Gorsuch, Kavanaugh and Barrett did. I do think that the Court’s Eighth Amendment jurisprudence remains and, contrary to what some other people think, I do not think that this Court will extirpate it, root and branch. If the Eighth Amendment’s jurisprudence remains intact through this conservative era and the practice of capital punishment continues to decline, then at some later point that jurisprudence probably  will  support a Supreme Court  Furman  II ruling abolishing capital punishment of the kind we predicted would come sooner rather than later.

COHEN:  Let me ask you now about something else you wrote, over a decade ago, about how the development of Eighth Amendment law and advocacy influenced the criminal justice system more broadly, aside from capital punishment. What did you mean back then, what were you seeing that made you write that, and do you think that’s still the case? That the Eighth Amendment is shaping justice and justice reform more broadly? 

STEIKER:  Oh, for sure. One way in which Eighth Amendment law has affected the non-capital context is the way the Court has used it in the juvenile-life-without-parole context. Those cases are not death penalty cases, and yet the Court has used its powerful Eighth Amendment jurisprudence, first to say that juveniles who don’t kill people cannot get the death penalty. That was  Graham v. Florida  in 2010. And then to say two years later, in  Graham v. Miller,  that even juveniles who kill people cannot get mandatory life without parole sentences the way adults can.

But the biggest change has been the development of mitigation evidence. The Court has required individualized sentencing in capital cases, which are not required in non-capital cases. We have all kinds of mandatory sentences in non-capital sentences: three-strikes laws and mandatory minimums and mandatory enhancements, and all that. Only capital defendants have a right to have their life histories presented. But it’s a pretty robust right and consequently capital defense lawyers have really learned how to do that and, as my brother Jordan and I have written about, that has been a big cause of the massive reduction in the use of the death penalty over the last two decades. Lawyers have gotten much better at humanizing their clients and explaining how capital crimes could have happened, and juries are reluctant to impose the death penalty, even in really terrible cases. The power of mitigation in capital cases has inspired many lawyers and public defender offices to investigate and mount mitigation presentations in non-capital cases as well, in an effort to combat some of the overly harsh sentences that drive mass incarceration.

COHEN : So, you are making the point that it’s not just a change in the sensibilities of prosecutors, which we are also seeing in some jurisdictions, but also robust defense work that is causing a decline in capital sentences. 

STEIKER:  Strong defense work has changed the proclivities of prosecutors. Prosecutors don’t want to lose. A lot of times defense lawyers will bring their mitigation evidence to prosecutors before trial and say: “Hey, look. Look at all this. Our guy will plead to life but you have to give him life.” That’s the way a lot of this happens and a lot of it spills over to non-capital cases. So now a lot of non-capital defense offices now have mitigation teams and mitigation training. Sentencing work has always been the neglected stepchild of defense lawyers, but I think what capital advocacy has shown is how powerful it is and how systemically it can be deployed in the non-capital area. 

COHEN : What do you make of the conservative movement for the abolition of the death penalty? Do you think it’s here to stay? Do you think it can survive the broader political cleavage we are seeing? Do you think a Republican president would nominate to the federal bench a lawyer who had argued against capital punishment as applied now in the U.S?

STEIKER:  No, I don’t think that’s going to happen. There has always been a solid but small conservative wing of the abolitionist movement, which comes from a few places.

One, religion. The Pope is against the death penalty. People who are Catholic don’t always follow the Pope, but he’s pretty influential. So, people on religious grounds, many of whom are otherwise conservative, oppose the death penalty.

Two, libertarians and anti-big government advocates. À la Grover Norquist, they want to “shrink big government so it is small enough to drown in a bathtub.” The death penalty is the ultimate failed government program: it is hugely expensive and fraught with error. It kind of makes sense that people with either religious or libertarian agendas would oppose the death penalty; George Will has opposed the death penalty for decades. 

COHEN : But do you see abolition increasing among conservatives? Are you tracking that? My perception is that the movement is growing in those circles.

STEIKER:  I do think that the number of people opposed to the death penalty has grown across the political spectrum. The whole debate has shifted, in terms of what percentage of the population is against capital punishment. This is the first time the Democrats have had an anti-death penalty plank in their national platform and elected a president who came out against the death penalty. But it is not obvious whether the movement away from the death penalty, which is a real thing, is disproportionately being driven by conservatives who have changed their mind or growing support among liberals. I haven’t seen research on that. 

COHEN : Now let me ask you about the future. What do you think the arrivals of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on the Court mean for the future of Eighth Amendment jurisprudence? Do you agree with the view that the Court’s latest conservative turn dampens any reasonable hope of new restrictions on capital punishment or new Eighth Amendment protections for capital defendants?

STEIKER:  This is really interesting. We’ve had a little bit of a hint of where they might be going with this. It comes in the  Bucklew  case out of Missouri in 2019. Russell Bucklew wasn’t claiming that lethal injection was unconstitutional for everyone. He was saying that he had a medical condition that made it unconstitutional as applied to him; that he would drown in his own blood. He lost. Everyone loses on these lethal injection challenges, it seems.

Now, the Court usually responds to these challenges by saying the same thing: “We the Supreme Court have held the death penalty to be constitutional so there has to be a way to carry it out. If defendants don’t like the method used by the state, those defendants have to point to another readily available method to execute them.” But instead of saying that, which is the way these opinions tend to start, Justice Gorsuch began with the view that the death penalty is not vulnerable to constitutional attack because of originalism. That capital punishment is in the text of the Constitution.

That if you can only be deprived of life, liberty or property without due process of law you  can  be deprived of life if there  is  due process of law. That the fact that the Fifth Amendment, the double jeopardy clause, says that you cannot be held  twice  in jeopardy of life and limb suggests you can be held  once  in jeopardy of life. And the Grand Jury Clause of the Fifth Amendment says that in capital and otherwise infamous cases you have to have a grand jury indict you. Gorsuch points to the fact that the death penalty is mentioned in the Bill of Rights three times and says “we’re done.” That shows that in 1789 we had the death penalty and we cannot say it is unconstitutional today, because it was not unconstitutional then.

That suggests the possibility that this Court might unwind the whole “evolving standards of decency” doctrine on which the justices have relied for 50 years or more in understanding constitutional limits on the death penalty. That what is cruel and unusual punishment under the Eighth Amendment changes with the “evolving standards of decency that mark the progress of a maturing society,” the famous line from  Trop v. Dulles , which held that it was unconstitutional under the Eighth Amendment to strip someone of citizenship for desertion during World War II. 

Using the evolving standards of decency doctrine, the Court has built up a whole jurisprudence (this is what I say they can hang a future abolition on), a whole methodology around this, including the cases that say you can’t have the death penalty for offenders with intellectual disability, or for juveniles or for crimes less than homicide, and that you can’t have life without parole sentences for most juvenile offenders. Will the Court uproot those cases, all of them, root and branch? I find that unlikely. I think that’s where you wouldn’t get Roberts; the Chief Justice wouldn’t say you can throw out 50 years of precedent, dozens of cases.

COHEN : But that’s something that is on your radar as a possibility, right? Even if the Chief Justice switches, you still have five conservative justices hostile to death penalty challenges, don’t you?

STEIKER:  It’s just a possibility at this point, but an unlikely one.

COHEN:  So your sense is that there will be, at best, status quo on the Eighth Amendment’s jurisprudence? That there certainly won’t be an expansion of the limitations on capital punishment with this Court but here isn’t likely to be a reversal of recent precedent.

For example, you don’t anticipate a ruling that says that juvenile offenders can now be executed again, do you?

STEIKER:  I don’t expect that ruling at all. I am not saying I think the Court will maintain the status quo without changing anything; I think it is very likely that they will nibble around the edges in lessening restrictions on the death penalty. We saw that with the Court’s shadow docket ruling on the Trump executions. The Court really leaned over backwards in favor of executions, and Justice Sonia Sotomayor wrote an anguished dissent in the last of those cases, the Higgs execution, about how she felt the Court was not respecting its own precedent and not dealing with important Eighth Amendment issues raised in those cases.

I don’t expect maintenance of the status quo, but will the Court completely gut its 50-year precedent about “evolving standards of decency”? No. I don’t think they are going to do that. I don’t think that the Chief Justice is the only conservative on the Court who has some respect for precedent, and honestly, they have other things they want to overrule more.

COHEN:  There are always hot spots in Eighth Amendment jurisprudence. Solitary confinement right now is one and if you have any thoughts on that I would love to hear them. But where do you think the action is likely to be in Eighth Amendment law in the next few years? What key issues do you think are likely to make it to and be resolved by the Supreme Court.  

STEIKER:  I think we are likely to see the same kinds of claims like restrictions on juvenile life without parole. I think most of the Eighth Amendment restrictions that are plausible under current practice for the death penalty have largely made it to the Court.

I think one question is whether people with intellectual disabilities have to show that they were intellectually disabled before the age of 18. The clinical definition of intellectual disability requires proof of onset before the age of 18, but not everyone has or can find an IQ test before the age of 18, even when there is lots of other evidence that they may be intellectually impaired. Then there are people who become brain damaged, and so have the equivalent of intellectual disability, but not as a developmental issue and instead as something that happens in adulthood.

I think that’s an issue that may come up. I think certainly solitary confinement and restrictions on the use of life-without-parole sentences, whether those sentences are ever unconstitutional. I think lawyers will raise these because they have clients who may benefit from them, but as a practical matter this Supreme Court is not really where you want to be with these cases right now. I think they are highly unlikely to win any extensions of Eighth Amendment protections from the Supreme Court, whereas quite a few state courts may make more sense for these cases. Every state has some equivalent of the Eighth Amendment. Sometimes in exactly the same language — “cruel and unusual” punishment. Sometimes “cruel or unusual” punishment. Sometimes in addition to or instead of a requirement of proportional punishment.

Several of these states have interpreted their Eighth Amendment analogues more broadly than the U.S. Supreme Court. Most notably, the Washington Supreme Court declared its own death penalty unconstitutional under its Eighth Amendment equivalent. The Connecticut Supreme Court did the same. The Oregon Supreme Court just applied its state constitution to conclude it would be cruel and unusual to execute those on its death row in light of a recent legislative narrowing of its capital statute. State constitutional litigation is where abolitionist litigators have their best shots at narrowing or abolishing the death penalty right now.

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Faculty Scholarship

‌the end of the death penalty.

‌‘Unintended consequences’ and the legacy of Furman v. Georgia

More than 50 years ago, the U.S. Supreme Court held in Furman v. Georgia that the death penalty was an unconstitutional violation of the Eighth Amendment ban against cruel and unusual punishment. With that, 629 people on death row nationwide had their capital sentences commuted, and the death penalty disappeared overnight.

“Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact.” Carol Steiker

But Furman didn’t abolish capital punishment for very long. Four years later, Gregg v. Georgia and several companion cases made clear that governments could impose capital punishment under certain conditions. Those decisions were a response to the backlash sparked by Furman , which appeared to revive support for a practice that had been in sharp decline for years. Today, 27 states in the U.S., as well as the federal government, retain the death penalty, and as of April 2022, one source reported that there were 2,414 people on death row across the country. Despite what many would have predicted in 1972, when the Furman decision suggested the U.S. would become an international leader in eliminating the death penalty, today it’s the only Western democracy that still imposes it. 

Still, while the death penalty persists in the U.S., it’s not exactly thriving. Indeed, it’s once again “withering” across the country, says Carol S. Steiker ’86 , the Henry J. Friendly Professor of Law at Harvard Law School, who has taught Capital Punishment in America at the school since 1993. Though Furman (and its subsequent overruling) helped fuel the death penalty’s revival, it also set in motion a long series of events that may ultimately eliminate capital punishment in the United States, Steiker says.

“ Furman was neither a tremendous success nor a terrible failure but a complicated story of unintended consequences and echoes of Furman continue to this day to have tremendous impact,” says Steiker, who is co-author, with her brother, Jordan Steiker ’88, of “Courting Death: The Supreme Court and Capital Punishment” (Harvard University Press, 2016) and co-editor, also with him, of “Comparative Capital Punishment” (Edward Elgar, 2019).

“ Furman was a remarkable intervention,” says Jordan Steiker, a professor at the law school at the University of Texas at Austin and co-director of its Capital Punishment Center. “Even though it was quite short-lived in suspending the death penalty in the U.S., it completely changed its course because it essentially inspired or required states to rethink how they were doing capital punishment. And ultimately, the practice of the death penalty changed substantially over time.”

Given the greatly heightened public attention to the power of the Supreme Court today, the 50th anniversary of Furman is an opportunity to reexamine not just the history of the death penalty but the appropriate role of the Court in American life, Carol Steiker and others believe.

“Right now a lot of people are wondering how much of a role we want the courts to play in deciding what rights are guaranteed by the Constitution, and Furman v. Georgia is a unique example of when the Court struck down a policy that was widely prevalent throughout the states for violating the Constitution,” says Gene Young Chang ’24, who has been studying the death penalty with Steiker since he was a freshman in her Harvard College course The American Death Penalty: Morality, Law, and Politics. Furman , he says, “teaches us things about the role of the courts in a democratic society, the scope of constitutional rights, and the proper method for defining those rights.” 

Categorical abolition of the death penalty across the nation is unlikely without another Furman v. Georgia , “what you might call Furman II, which is obviously not forthcoming from this Court or anytime in the foreseeable future,” Carol Steiker says. Instead, the future of the death penalty, she says, is being played out at the local level, in “a kind of guerrilla war going on county by county, state by state, with the election of progressive prosecutors who do not seek the death penalty, state legislative activity, and state constitutional litigation under state constitutions.”

The final death knell for capital punishment will likely depend on a very different Supreme Court from the one we have today, she says. “But at that point,” given other trends in the country, “it may be more like a coup de grâce rather than what it was at the time of Furman .”

History of a ‘remarkable intervention’

In the 1960s, due to a campaign by the NAACP Legal Defense and Educational Fund to challenge its constitutionality in cases across the country, capital punishment was in decline. Indeed, no one was executed in the five years before Furman , as states waited to see what the high court would rule. In 1971, the Supreme Court rejected a due process challenge to capital punishment. But Furman , argued a year later, relied on the Eighth Amendment: The LDF team argued that the arbitrary application of capital punishment — jurors, often with no guidance, had complete discretion on when to impose it — was a cruel and unusual punishment.

”The Supreme Court intervention [in Furman] not only didn’t kill the death penalty but actually made it stronger when it was reinstated.” Carol Steiker

The Supreme Court agreed, 5-4, although the justices issued nine separate opinions, which was very unusual, as Carol Steiker notes. Justice Thurgood Marshall (for whom both Steikers later clerked) and Justice William J. Brennan Jr. LL.B. ’31 maintained that the death penalty was unconstitutional per se. Justice William O. Douglas was troubled by its discriminatory application, given overwhelming evidence that it was more often imposed on Black defendants, the poor, and the politically unpopular. Justices Potter Stewart and Byron White were troubled by its arbitrary application under state statutes, with Justice Stewart famously writing, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” He concluded that the Constitution could not “permit this unique penalty to be so wantonly and so freakishly imposed.” 

But abolitionists’ hopes didn’t last long. Soon after Furman, 35 states rewrote their laws to try to comply with the Court’s ruling. In 1976, in a group of consolidated cases known as Gregg v. Georgia , the Supreme Court held that the death penalty was not per se unconstitutional. It ruled the punishment could be revived if state laws provided an objective process for deciding when to apply it and gave sufficient discretion to juries to determine whether it was appropriate. However, mandatory death penalties were unconstitutional, it held, even though some states believed that mandatory penalties were necessary to eliminate sentencing discretion.

Furman created an enormous backlash, the Steikers explain, so that capital punishment — which was becoming less and less popular in public opinion — resurged. It became “more of a wedge issue, part of the tough-on-crime political strategy of [President Richard] Nixon, and political entrepreneurs exploited the resentment at the Supreme Court’s intervention in the death penalty,” says Jordan Steiker, who has frequently taught at Harvard Law School, most recently in 2018 as the Touroff-Glueck Visiting Professor of Law and Psychiatry. “In the short term, the death penalty became more vigorous, there were more death sentences, and by the 1990s, there were many more executions than we were having pre- Furman .”

At least initially, then, “the Supreme Court intervention [in Furman ] not only didn’t kill the death penalty but actually made it stronger when it was reinstated,” says Carol Steiker, something she sees as an “unintended and unforeseen consequence” of the case.

Birth of the capital defense bar

But there was another unforeseen consequence of Furman , one that Jordan Steiker describes as “probably more important and long-lasting” — the birth of a large and highly skilled capital defense bar. 

With the resurrection of the death penalty, new, sophisticated institutions were created and staffed by passionate and skilled anti-capital lawyers: state offices for capital representation at the trial, appellate, and post-conviction levels; capital habeas corpus units within state and federal public defenders’ offices; and numerous non-governmental nonprofits, such as Bryan Stevenson ’85’s Equal Justice Initiative. Today, “we have a whole legion of much more focused and talented advocates working on behalf of people facing capital charges or sentenced to death,” says Jordan Steiker.

Capital litigation has become far more complex, and the costs have soared. This has helped persuade many local prosecutors to avoid seeking the death penalty.

With these developments, as well as the Supreme Court’s imposition of special procedural requirements for cases involving the death penalty, capital litigation has become far more complex, and the costs have soared. “The constitutional decisions post- Furman have not imposed the most rigorous scrutiny of capital practices,” says Jordan Steiker, “but they have produced institutional actors who have made the death penalty much less attractive as a practical matter because to do it reasonably well is just exorbitantly expensive.” This has helped persuade many local prosecutors to avoid seeking the death penalty and has led to an “extraordinary decline in capital proceedings,” he says.

The current Supreme Court has signaled greater willingness to affirm capital sentences than in the recent past, says Jordan Steiker, and some jurisdictions have embraced that signal. The Oklahoma Court of Criminal Appeals had scheduled nearly one execution a month between 2022 and 2024 (although at the request of the new attorney general, the pace has now been slowed to no more than one every 60 days). In Texas, on the other hand, two death sentences were imposed in 2022, which contrasts starkly with the 1990s, when Texas juries were handing out more than 40 a year, Jordan Steiker says. “The practice on the ground is withering in part because of the institutions built in response to Furman ,” he says.

Local prosecutors and state courts take over

Other factors besides cost have decreased the public’s appetite for the death penalty, including media attention to, and public awareness of, the number of innocent people sentenced to death. Since 1973, at least 190 people who were wrongly convicted and sentenced to death have been exonerated, according to the Death Penalty Information Center. For that and other reasons, including declining crime rates, there has been a dramatic decline in public support for the death penalty over the past 20 years. Though the 2021 Gallup poll found that 54% of respondents continued to support it, that is the lowest number in the annual poll since 1972. 

Erica Medley LL.M. ’22 was a prosecutor in the U.S. Air Force before matriculating at HLS. When she was a schoolgirl, in Oregon, two of her friends were raped and murdered by a neighbor, Ward Weaver III. When Weaver received two life sentences, “It made no sense,” Medley recalls. “I thought he should have gotten the death penalty.” When Medley enrolled in Carol Steiker’s class on capital punishment in fall 2021, she was among the very few students who supported the death penalty, according to an informal online class poll. 

But before the first class, Medley did a complete reversal sparked by reading the course materials. “I was so overwhelmed reading everything that I did a 180. It was that fast,” says Medley, who was persuaded by the evidence of the racially disparate impact of the death penalty, its exorbitant expense compared with that of prison sentences, the number of people on death row who turn out to be innocent, and the fact that no other peer nations still impose the penalty.

The shifting demographics of urban counties are also having an effect on the use of the death penalty across the country since such counties are often the only places that can afford to prosecute many capital cases, says Jordan Steiker. As these counties become less politically conservative, they are increasingly controlled by “less zealous prosecutors,” he says. Harris County, Texas, which includes Houston, and Dallas County were “longstanding conservative-controlled political entities, and now they’re not. Now many prosecutors run not on the death penalty but away from the death penalty. That’s a very significant shift.” 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate.” Jordan Steiker

And, just as the resurgence of the death penalty in the 1980s and ’90s paralleled public reaction to a crime surge, a drop in death penalty cases mirrors what has generally been a long-term decline in the homicide rate, as well as public concerns about mass incarceration and racial inequities in the criminal justice system, says Carol Steiker, faculty sponsor of the Capital Punishment Clinic, through which Harvard Law students are placed in externships at capital defense organizations around the country.

And the past 16 years have seen a growing legislative trend toward abolishing the death penalty. In 2007, 38 states retained it; today, there are only 27. In 2021, Virginia, which has executed more people than any other state, became the first Southern state to abolish capital punishment. It was preceded by legislative repeals in Colorado, New Jersey, Illinois, and Connecticut, among other states. In Washington state, the Supreme Court found the death penalty unconstitutional under the state constitution because it was used in an arbitrary and racially biased manner. 

“We now have this odd dynamic, where courts, especially the Supreme Court, are pushing in the direction of deregulating, but there’s not much left in terms of capital punishment to deregulate,” says Jordan Steiker. 

“I think in the short term we’ll end up having more executions because of the Supreme Court’s reluctance to impede them, even though executions have been in as much of a decline as death sentences,” he adds. But with fewer capital sentences taking place, “death row has been shrinking considerably, and at some point we’ll have a death row that seems inconsequential as part of our criminal justice system.” 

Furman’s ultimate impact?

In the end, then, was Furman a victory for those who brought the case? “That’s a good question,” says Jordan Steiker. “There’s one point of view that I’m sympathetic to, that says that Furman revived a practice that was dying on the ground, and had there been no intervention, we might not have had a revival and then a second decline.”

On the other hand, when Michael Meltsner, one of the lawyers on the LDF team who brought Furman , speaks to Carol Steiker’s capital punishment class each year, he emphasizes that there were 629 people on death row in 1972 whose lives were saved by Furman.

“So in that sense, it was a tremendous victory,” says Carol Steiker. “It was a reset moment.”

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This Day In History : June 29

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Supreme Court strikes down death penalty

death penalty cases underwent a revision in the's 1970's because

In Furman v. Georgia, the U.S. Supreme Court rules by a vote of 5-4 that capital punishment, as it is currently employed on the state and federal level, is unconstitutional. The majority held that, in violation of the Eighth Amendment to the Constitution , the death penalty qualified as “cruel and unusual punishment,” primarily because states employed execution in “arbitrary and capricious ways,” especially in regard to race. It was the first time that the nation’s highest court had ruled against capital punishment. However, because the Supreme Court suggested new legislation that could make death sentences constitutional again, such as the development of standardized guidelines for juries that decide sentences, it was not an outright victory for opponents of the death penalty.

In 1976, with 66 percent of Americans still supporting capital punishment, the Supreme Court acknowledged progress made in jury guidelines and reinstated the death penalty under a “model of guided discretion.” In 1977, Gary Gilmore , a career criminal who had murdered an elderly couple because they would not lend him their car, was the first person to be executed since the end of the ban. Defiantly facing a firing squad in Utah , Gilmore’s last words to his executioners before they shot him through the heart were, “Let’s do it."

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SCOTUS for law students: The Supreme Court and the death penalty

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Death penalty cases have long been among the most difficult and divisive for the Supreme Court. With the possibility that federal executions may resume this year for the first time since 2003, the court’s role in these cases may grow even more complex.

The Supreme Court has three primary roles in death penalty cases. First, the court reviews habeas corpus appeals by death row inmates raising claims that their trial or death sentence was carried out in violation of their constitutional rights. Sometimes states appeal these cases to the Supreme Court when inmates have won in the lower court. Second, the court receives petitions challenging the constitutionality of the method of execution. Third, and most dramatically, the court handles emergency applications to stay executions pending additional court proceedings.

There is a fourth type of death penalty proceeding, a direct appeal by a prison inmate from the conviction and sentence that have been upheld by a state’s highest court. It is extremely rare for the Supreme Court to agree to hear a direct appeal, however.

Some background is in order. The landscape of the current death penalty practice begins with the Supreme Court’s invalidation of state death penalty laws in 1972 because they were applied in arbitrary and racially discriminatory ways. Prior to 1972, states administered the death penalty with relatively little interference from federal courts. Historically, states used a variety of execution methods from hanging to firing squads to electrocution to gas chambers.

After the Supreme Court halted executions in 1972, states revised their death penalty statutes, and in 1976, the court upheld some of the new generation of capital punishment laws. Executions resumed, but the Supreme Court has faced an unrelenting parade of constitutional questions about when the death penalty may fairly be imposed. Challenges have invoked the Eighth Amendment prohibition on “cruel and unusual punishment” and the 14th Amendment guarantees of “due process” and “equal protection.” They have involved a wide range of state laws and practices as well as the application of federal laws regulating habeas corpus petitions in federal court.

The death penalty has long divided the justices. As they left the court or soon after they retired, Justices Harry Blackmun, Sandra Day O’Connor and John Paul Stevens all expressed doubts about whether the death penalty system can operate fairly in the United States. Justices William Brennan and Thurgood Marshall concluded while they were on the court that the death penalty was unconstitutional in every application, and they issued a standard dissent in all capital cases from 1976 until they retired, Brennan in 1990 and Marshall in 1991.

Death penalty litigation today is primarily about state death penalty laws because the federal capital punishment statute has rarely been used since it was revived by Congress in 1988. The last execution for a federal crime in 2003 was of a soldier, Louis Jones Jr., for the rape and murder of another soldier. An effort by Attorney General William Barr to ramp up the federal death penalty, announced last July, will add a new focus and has already generated several lawsuits.

In the context of challenges over state laws and state capital prosecutions, the Supreme Court frequently is asked to review a variety of issues. These include claims that inmates were not provided effective representation by their lawyers, known as “ineffective assistance of counsel,” or that prosecutors unconstitutionally struck potential jurors based on their race to try to achieve a jury more likely to convict a defendant. Other cases have raised concerns about the admissibility of new evidence that tends to show an inmate’s innocence but that may be filed after statutory deadlines have passed.

All of these claims are generally raised through the procedure known as “habeas corpus,” a civil proceeding used to raise questions about constitutional issues that arise during a criminal prosecution. Typically, a state death row inmate may first appeal his conviction and sentence in state court, asserting his innocence or the absence of sufficient evidence. That direct appeal may go all the way to the U.S. Supreme Court but will rarely be granted. If that appeal fails, a state inmate may then file a state habeas corpus petition and must exhaust state appeals before filing a habeas corpus petition in federal district court. The federal petition will be considered by a federal district court and a federal appeals court and then may be appealed to the Supreme Court. The focus of these habeas corpus petitions, known as collateral review, is to determine whether the death row inmate has identified constitutional errors in the trial or sentence that may require a new trial.

The Supreme Court rarely grants review and oral argument in federal habeas cases. And the court is even less likely to agree to review a successive habeas petition, basically a second or third try at habeas. Both the court and federal statutes take an extremely skeptical view of claims that prison inmates say are new and could not have been raised in a prior federal habeas review.

In the second category of capital cases, the justices consider claims, also raised in habeas corpus petitions, challenging the constitutionality of particular methods of execution. In recent years, these appeals have focused on the combinations of drugs that states use to execute inmates by lethal injection. States moved away from electrocution and lethal gas as society concluded that these methods were needlessly cruel and painful. Lethal injection has become the main method of execution, prompting debate over what drugs work for this purpose. Drug shortages, in some instances caused by manufacturers’ reluctance to have their drugs used for executions, have complicated the debate. There have also been questions about whether some drugs are more effective than others at carrying out an execution without extreme pain to the inmate.

The third category of cases, stay applications, is the stuff of Supreme Court drama. When a state sets an execution date, an inmate may still be in the midst of appeals or habeas petitions or may file a new habeas petition. Without a court order stopping an execution while appeals or habeas petitions are pending, an inmate could face death before judicial proceedings are concluded. Typically, an inmate who is still pursuing a direct appeal or who has a first habeas petition pending in federal court is entitled to a stay, which is a court order freezing the status quo to prevent execution while the appeals are pending.

Occasionally this process slips up in the lower courts and the Supreme Court needs to issue a stay of execution. More often, the Supreme Court is asked to consider staying an execution while a death row inmate is pursuing a second or subsequent habeas petition. These petitions – and the related requests to delay the execution – are usually not received favorably by a majority of the court. Conservative justices tend to view successor petitions as just an attempt to delay execution, raising issues that could have been raised earlier and rarely worthy of substantive consideration. Liberal justices are sometimes more sympathetic to newly raised claims.

A stay application in a death penalty case is filed with the justice who is assigned to handle emergency applications from the federal circuit in which the case originated. But it has been standard practice for all justices to refer capital-case stay requests to the full court. Five votes are needed to grant a stay.

Most of the time this follows an orderly process. When an execution date is approaching, the state and the inmate’s defense lawyer are supposed to be in touch with the deputy clerk of the Supreme Court who handles death cases. The defense lawyer is expected to keep the clerk informed of any applications, specifically stay applications, the lawyer intends to file.

This process has evolved from a few decades ago, when a stay application for an inmate who was hours, sometimes minutes, away from death might arrive without warning at night over a fax machine. Law clerks and justices might have long since left the building, but the clerks would have to return to review the application and in turn would have to call to wake up the justices to consider the stay request. Lawyers were left in the dark, not knowing who was working on the application  or when the court might act.

Today, a stay application may still come in at night and close to the time of execution. But the court will likely be aware it is coming, and law clerks will remain at the court to handle the papers and will have a plan for discussing the request with their justices. Deep disagreements still persist, however. Christopher Lee Price was executed last May in Alabama after the Supreme Court aired bitter disagreement in a 5-4 vote on whether Price deserved a stay because a federal judge had scheduled a trial over the state’s planned mix of drugs.

One significant point of controversy about the death penalty is that, according to the Death Penalty Information Center , 167 death row inmates since 1973 have been exonerated and released. This increasing frequency of evidence of erroneous capital convictions has prompted numerous states to adopt death penalty moratoria or even to scrap use of the death penalty.

The federal death penalty may present all of these challenges and more for the justices. Barr announced on July 25, 2019, that he had directed the Federal Bureau of Prisons to schedule execution dates for five federal inmates in December 2019 and January 2020, prompting immediate challenges.

In response to one lawsuit by four of the five inmates, a federal district court judge in Washington, D.C., issued an injunction in November staying all federal executions. Judge Tanya Chutkan found a problem with Barr’s plan for a uniform approach to the executions: The federal death penalty law was amended in 1994 to return to an old requirement that federal executions be carried out consistent with the law of the state in which the execution occurs. Barr proposed that all federal executions use a single drug for lethal injection, pentobarbital. That plan is not consistent with the execution protocol in some of the states where federal prisoners are held.

After the Justice Department appealed to the U.S. Court of Appeals for the District of Columbia Circuit, a three-judge panel last December declined to disturb the injunction, pending further court appeals. The Justice Department then asked the Supreme Court for permission to carry out the executions. On December 6, the Supreme Court also left the injunction in place , preventing the executions until the question of how closely the Justice Department must track state laws in carrying out the death penalty is resolved. Justice Samuel Alito, joined by Justices Neil Gorsuch and Brett Kavanaugh, wrote a brief separate statement urging the D.C. Circuit to decide the issue with “appropriate dispatch,” suggesting that 60 days should be sufficient.

The D.C. Circuit heard argument in the case on January 15. Whenever the three-judge panel rules, one thing is for sure: The Supreme Court will have one more death penalty case to resolve.

Posted in Capital cases , SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students: The Supreme Court and the death penalty , SCOTUSblog (Feb. 14, 2020, 11:02 AM), https://www.scotusblog.com/2020/02/scotus-for-law-students-the-supreme-court-and-the-death-penalty/

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Summaries of Key Supreme Court Cases Related to the Death Penalty

Witherspoon v. Illinois , 391 U.S. 510 (1968): Jurors must be willing to impose the death penalty in order to sit on a capital jury.

Furman v. Georgia , 408 U.S. 238 (1972): The application of the death penalty is unconstitutional.

Woodson v. North Carolina , 428 U.S. 280 (1976): Mandatory death sentences violate the Eighth and Fourteenth Amendments.

Coker v. Georgia , 433 U.S. 584 (1977): Death sentences for the rape of an adult woman violate the Eighth Amendment.

Lockett v. Ohio , 438 U.S. 586 (1978): Death penalty statutes must allow consideration of mitigating evidence in addition to the circumstances of the offense in determining whether a defendant should be sentenced to death.

Enmund v. Florida , 458 U.S. 782 (1982): Death sentences for individuals who did not intend to kill the victim violate the Eighth Amendment.

Ford v. Wainwright , 477 U.S. 399 (1986): The Eighth Amendment prohibits the execution of a person who is insane and not aware of his execution or the reasons for it.

Batson v. Kentucky , 476 U.S. 79 (1986): It is unconstitutional to exclude potential jurors solely on the basis of race.

McCleskey v. Kemp , 481 U.S. 279 (1987): Statistical studies that show evidence of racial disparities in capital proceedings do not prove that an individual's death sentence is unconstitutional under the Eighth and Fourteenth Amendments.

Thompson v. Oklahoma , 487 U.S. 815 (1988): The execution of a person under the age of 16 at the time of the offense is a violation of the Eighth Amendment.

Penry v. Lynaugh , 492 U.S. 302 (1989): It is not unconstitutional to execute a person with "mental retardation", however the Texas statute insufficiently allows jurors to consider "mental retardation" as a mitigating factor.

Stanford v. Kentucky , 492 U.S. 361 (1989): The Constitution does not prohibit the execution of individuals who were 16 or 17 at the time of the offense.

Herrera v. Collins , 506 U.S. 390 (1993): A defendant's claim of actual innocence does not entitle him to federal habeas relief.

Atkins v. Virginia , 536 U.S. 304 (2002): The execution of a person with "mental retardation" violates the Eighth Amendment.

Wiggins v. Smith , 539 U.S. 510 (2003): The Sixth Amendment requires defense counsel to conduct mitigation investigations in capital cases.

Roper v. Simmons , 543 U.S. 551 (2005): The Constitution prohibits the execution of individuals who were under 18 at the time of the offense.

Baze v. Rees , 553 U.S. 35 (2008) : The Supreme Court ruled that Kentucky's three-drug protocol for carrying out lethal injections does not amount to cruel and unusual punishment under the Eighth Amendment.

Kennedy v. Louisiana , 554 U.S. 407 (2008) : The U.S. Supreme Court struck down as unconstitutional a Louisiana statute that allowed the death penalty for the rape of a child where the victim did not die.

America's Failed Efforts to Reform the Death Penalty

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Baumgartner

On June 29, 1972 the U.S. Supreme Court overturned all existing death penalty laws with a decision in Furman v. Georgia that focused on capriciousness , racial bias , and cruelty – flaws that states were supposed to correct. Four years later, in Gregg v. Georgia , the Justices ruled that new safeguards enacted by several states corrected old flaws and created a “new and improved” death penalty system. In our book, Deadly Justice , we examine accumulated evidence over 40 years to ask whether the modern U.S. death penalty actually meets the reform standards established in Gregg – or whether, alternatively, new practices replicate the old faults.

Death Sentences and Executions are Still Arbitrary and Capricious

In Furman , Justice Potter Stewart compared receiving a death sentence to being struck by lightning, arguing that the death penalty was given to a “capriciously selected random handful” of Americans whose convictions, in principle, made them eligible for death sentences. According to evidence in Furman , just 15 to 20 percent of eligible defendants were sentenced to death, and they were not meaningfully different from the remaining 85 percent. To remedy this issue, post- Gregg capital punishment statutes were required to be “narrowly targeted” at only certain crimes, and to mandate “proportionality review” by higher courts to ensure that death sentences were reserved for the worst of the worst.

But even with such remedies in place, the data suggest that receiving a death sentence – or actually being executed – is still akin to being struck by lightning. Why? Almost every state with the death penalty includes in its statute at least one “catch-all” category such as “crime was heinous,” which in practice means that people convicted of a vast majority of homicides can be deemed eligible for the death penalty. The updated death penalty thus fails to be narrow and targeted enough to meet the standards laid out in Gregg .

From 1976 through 2014, FBI statistics tally a total of almost 800,000 homicides, or about 20,000 per year. Between 1973 and 2015, there were 8,588 death sentences, applied to just over one percent of all homicides. Executions have been even rarer – some 1,422 happened from 1976 through 2015, punishments for fewer than one-fifth of one percent of homicides. If anything, the arbitrariness of this extreme punishment has become even more evident.

The Death Penalty is Marred by Racial Bias

In Furman , the Justices noted that racial disparities plagued the application of the death penalty. In fact, the racial identities of victims, even more than the identities of offenders, determine who is sentenced to death. An offender who kills a white female is about 12 times as likely to be sentenced to death as an offender who kills a black male. Over its entire history, the state of Louisiana has never executed a white individual who killed a black male – even though black males constitute more than 60 percent of homicide victims in the state. Despite recent reforms, the data show that such racial biases continue throughout the capital punishment system.

Still a Cruel and Capricious System

The Justices who wrote the Furman majority opinion also noted that the death penalty was applied in a cruel and unusual manner. The data show that the contemporary death penalty targets the most vulnerable people in the U.S. population – with the poor, those suffering from mental illnesses, and accused with inferior lawyers likely to be the unlucky ones singled out to die.  The system is also riddled with delays, reversals, stays and botched executions. Pennsylvania, for example, has issued over 400 death warrants but carried out just three of them – and all three of those inmates were volunteers for death, having given up further rights of appeal.

Nowadays, the average execution takes place after the inmate has waited on death row for more than twenty years . Such long delays, combined with the fact that only 16.5 percent of those sentenced to death have actually been put to death, suggest that in reality the death penalty has been replaced by what one judge called a penalty of life in prison with the remote possibility of execution. Individual inmates can find themselves approaching multiple, repeated execution dates -- and some only receive word that their execution has been stayed after they have had their last meal and said good-bye to their families. Of course, lawmakers did not deliberately design the modern death penalty system to work this way. Nevertheless, the facts show this is how the system has worked since 1976.

Executions themselves may be cruelly botched. Although the injection protocols used in most states demands some degree of medical training, doctors and anesthesiologists following professional ethical rules refuse to participate. Lethal injections are administered by corrections department personnel following protocols that invite error and, increasingly, litigation.

Our evidence makes clear that America’s death penalty not only retains the flaws that led the Supreme Court to declare it unconstitutional in Furman v. Georgia , but has become worse due to newer systematic flaws – including huge costs, excessive delays, high rates of reversal, botched executions, and last-minute stays. The Supreme Court will likely have the ultimate say about this inherently unfair system. In the meantime, more states may follow the lead of those that have recently moved to abolish the death penalty altogether – through legislative action.

Related Content

    In evaluating the data . . . the reader should bear in mind that the vast majority of homicides in the United States, like most violent crimes, are investigated exclusively by local police officers working hand-in-hand with local prosecutors, who file charges against defendants in state courts, either as a capital case or non-capital case. When a homicide is prosecuted federally - either as a capital or non-capital case - it is often because of the availability of certain federal laws or because of a federal initiative to address a particular crime problem. Criminal organizations often operate in multiple jurisdictions, making it difficult for any single local prosecutor to investigate or prosecute a case. Additionally, many states lack the equivalent of the federal witness protection program and the ability to conduct complex long-term investigations using resource intensive investigative techniques such as court-ordered wiretaps and undercover operations.     Apart from these differences in laws and resources, which often affect whether a particular homicide is prosecuted in state or federal court - either as a capital or non-capital case - state and federal law enforcement officials often work cooperatively to maximize their overall ability to prevent and prosecute violent criminal activity in their respective communities. Such cooperation is a central feature of current federal law enforcement policy. In some areas, these cooperative efforts lead to agreements that certain kinds of offenses, particularly violent crimes, will be handled by federal authorities . . . . In some cities, a large number of cases involving multiple murders by drug and other criminal organizations are investigated by joint federal and local task forces and prosecuted federally due to some of the factors cited above, such as the geographic reach of the organization and the availability of a witness protection program.
  • The District of Maryland charged capital crimes and submitted to the Department's review procedure cases involving 41 defendants, of whom 36 were Black. However, it recommended the death penalty for only five of the 36, a proportion of 14%. This is below the national proportion of 25% for recommendations by U.S. Attorneys that the death penalty be sought for Black defendants in submitted cases.
  • The Eastern District of New York submitted cases involving 58 defendants to the review procedure, of whom 19 were White, 20 were Black, 12 were Hispanic, and 7 were in the "Other" category. It only recommended the death penalty for one of the Black defendants, and for none of the Hispanic defendants.
  • The Southern District of New York submitted cases involving 50 defendants to the review procedure, involving 4 White defendants, 17 Black defendants, 28 Hispanic defendants, and 1 "Other" defendant. This was a considerably higher proportion of Hispanic defendants than the national norm - but the district recommended the death penalty for none of them. The district recommended the death penalty for 5 of the 17 Black defendants, a proportion of 29%, which differed little from the national norm of 25%.
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Public Opinion and Constitutional Controversy

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5: The Death Penalty

  • Published: April 2008
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This chapter first examines the nature of public opinion on capital punishment before the Supreme Court's decision in Furman v. Georgia (1972), the case in which the corpus of state death penalty statutes was overturned. It then analyzes the rise in death penalty support into the 1980s and its brief decline in the 1990s. A separate section discusses opinion about specific applications of the death penalty. The chapter concludes with a look at the Court's use of public opinion poll data in Atkins v. Virginia and other death penalty cases.

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Critical Case for Issue of Death Penalty

&#8212;Fred P. Graham

  • May 10, 1970

Critical Case for Issue of Death Penalty

WASHINGTON — The Su preme Court was reminded in vivid fashion last week that to the 510 condemned men in death rows across the country, the capital pun ishment issues now pending before the justices are lit erally a matter of life and death.

Technically, at issue be fore the Court is the appeal of William Lee Maxwell, a Negro condemned to death for the rape of a white wom an in Hot Springs, Ark., in 1961. But as Maxwell's law yer, Anthony Amsterdam, told the Court, far more is at stake.

The Maxwell appeal does not involve the constitution al “gut issue” of capital pun ishment — whether execu tions are “cruel and unusual punishment” that are forbid den by the Eighth Amend ment.

Two Questions

It raises instead two ques tions of procedure in impos ing the death penalty:

(1) The “single‐verdict is sue. Everywhere in the Unit ed States except in New York, California, Connecticut, Pennsylvania and Texas, juries hear all the evidence in capital cases and decide guilt and punishment in one sitting. This means that if the defendant exercises his constitutional right not to testify, but is nevertheless found guilty, the jury will decide whether to send him to his death without ever having heard his version of the mitigating circumstances that might cause the jury to exercise mercy. In the five states that have split ver dicts, juries first decide guilt, and then return to hear the defendant before deciding punishment. Mr. Amsterdam argued that this, or some other similar procedure, should be required to avoid forcing the defendant to sac rifice his privilege against self‐incrimination in order to escape the electric chair.

(2) The “standards” issue. At present, juries are given no instruction to guide them in deciding which defendants in capital crimes should be sentenced to death, and which should be spared. The result, Mr. Amsterdam says, is that in rape cases, race prejudice often determines who gets sentenced to death. Due process requires that juries be given some ra tional standards for deciding who should be executed, he claims.

For Maxwell, these issues may have become almost academic.

A constitutional flaw has been discovered in the fact that seven prospective jurors were excluded from his case because they had scruples against imposing the death penalty. So he is almost cer tain to get a new trial, or a life sentence, because the jury that condemned him was im properly selected.

But as for the 509 oc occupants of various death rows, where no executions have occurred for more than two years while the Max well case was being heard, the resolution of this case, Mr. Amsterdam said, would have the following results:

(1) If the justices decide the “standards” question in Maxwell's favor, 505 of the 510 condemned men would get life terms or new trials, in which the juries would be given criteria under which to consider the death pen alty. The other five are men who were convicted of crimes for which death is mandatory, and those sen tences presumably would be carried out.

(2) If the justices decide the “single verdict” question in Maxwell's favor, about 370 condemned men would get new trials, because their ju ries decided guilt and death at one sitting. The other 130 men were convicted in states where the juries were re quired to return after their guilty verdicts to hear miti gating evidence before decid ing on the death penalty, There would then be no im mediate legal barrier to ex ecution of these 130 men.

If all of this were not complex enough, it is further complicated by the fact that the opinion rejecting Max well's case in the lower court was written by Judge Harry A. Blackmun. So if the eight‐ member Supreme Court is now divided on Max well's case, and if Judge Blackmun is confirmed as an associate justice, the Court will still be deadlocked be cause he cannot rule on an appeal from his own lower court ruling.

What the anti‐capital pun ishment advocates are sug gesting is that the Supreme Court could dispose of Max well's case on the jury is sue, but simultaneously grant certiorari (review) of one or more of the 67 other appeals by condemned men now be fore the Court. Most of these raise the “single‐verdict” or “standards” issues, or both.

This would present the same issues of the celebrated Maxwell case, and thus the stays of execution that are now shielding the 510 con demned men from execution would remain in effect. Fur thermore, Justice Blackmun could participate in the de cision after he goes on the Court.

He said at his recent Sen ate confirmation hearing that the “gut” issue of abolition of capital punishment should be determined by legislatures —not courts. But he did not commit himself on such tech nical questions as the single verdict and standards issues —and with at least 509 lives riding on the outcome, pres sures will be intense next year for the Supreme Court to rule that some further proceedings must be held be fore these men can be put to death.

Round Separator

Federal Death Penalty

Case Summaries for Modern Federal Death Sentences

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Inmates Sentenced Under the Anti-Drug Abuse Act of 1988:

Richard Tipton, James H. Roane, Jr. — All Black. Tipton, Roane, and their co-defendant Corey Johnson were members of an inner-city gang in Richmond, VA. They were sentenced to death in February 1993 for their participation in a series of drug-related murders. Execution dates were set for the three co-defendants in May 2006, but the executions were stayed because of a challenge to the lethal injection process. ( Roane v. Holder , D.C. Dist. Ct.). Johnson was executed January 14, 2021.

Sentenced Since the Federal Death Penalty Act of 1994: (names in brackets had death sentences reversed, but are awaiting final disposition)

Len Davis — Black. Davis, a New Orleans police officer who was under investigation in a drug conspiracy case, was sentenced to death on two convictions in April 1996 for ordering the murder of a young black woman who had previously seen him beat a witness in an unrelated incident. A co-defendant, Paul Hardy, also black, was the triggerman in the killing. Hardy was also sentenced to death on two convictions in May 1996. The Fifth Circuit reversed the sentences for both defendants and one of the two capital convictions for each defendant. The court ordered a new sentencing hearing for both defendants. A federal jury again recommended a sentence of death for Len Davis on August 9, 2005. (Associated Press, Aug. 10, 2005). Hardy is not under a sentence of death.

Anthony Battle — Black. Battle, a federal prisoner with a history of psychiatric problems, was sentenced to death in March 1997 for the murder of a guard in the federal penitentiary in Atlanta, Georgia. The U.S. Court of Appeals for the Eleventh Circuit upheld his conviction and death sentence in 1999. A Georgia federal district court subsequently rejected a challenge to Battle’s mental competency and denied his petition for a writ of habeas corpus. The Eleventh Circuit upheld the district court’s ruling in August 2005.

Aquilia Barnette — Black. Barnette was convicted of murdering a man in North Carolina in a carjacking and a woman, his former girlfriend, in Virginia. A jury sentenced him to death on February 10, 1998. The U.S. Court of Appeals for the Fourth Circuit reversed his death sentence on May 4, 2000. Barnette was re-sentenced to death in 2002, and in December 2004, the Fourth Circuit upheld the conviction and death sentence. The U.S. Supreme Court vacated that judgment on October 3, 2005 and remanded the case back to the Fourth Circuit in light of the Court’s ruling on racial discrimination in jury selection earlier that year in Miller-El v. Dretke . The Circuit remanded the case to the district court, which, in May 2010, ruled that Barnette had not proven his claim of jury discrimination. The Fourth Circuit upheld the district court’s ruling in May 2011.

Billie Jerome Allen and Norris Holder — Both Black. Allen and Holder were convicted of the fatal shooting of a bank guard during a robbery in St. Louis, Missouri. Allen was sentenced to death by a jury on Mar. 10, 1998. In June 2002, the U.S. Supreme Court vacated Allen’s death sentence and remanded the case back to the Eighth Circuit for reconsideration in light of the Court’s ruling in Ring v. Arizona . Because his federal indictment did not include the aggravating factors necessary to support his death sentence, the 8th Circuit said Allen’s sentence should be reduced to life in prison. (February 5, 2004, St. Louis Post-Dispatch). However, in September 2004, the 8th Circuit conducted a rehearing en banc of the earlier decision and reinstated Allen’s death sentence. (St. Louis Post-Dispatch, May 3, 2005). Holder was sentenced to death by a jury on April 3, 1998.

Richard Allen Jackson — White. Jackson was convicted in federal court on May 7, 2001 for use of a firearm on federal property (Bend Creek Recreation Area) during a felony resulting in the death of the victim. He was subsequently sentenced to death. Jackson had earlier been convicted in North Carolina state court for offenses arising from the same actions. He was convicted of the kidnapping and murder of Karen Lynn Styles in 1994. That conviction was overturned and Jackson later pleaded guilty to second degree murder.

Marvin Gabrion — White. On March 16, 2002, Marvin Gabrion was sentenced to death for a 1997 murder in Michigan’s Manistee National Forest. Although Michigan does not have the death penalty, Gabrion was sentenced under the federal system because the victim was killed on federal property. Gabrion’s case was the first time since the federal death penalty was reinstated that a federal death sentence was imposed in a state that did not itself authorize capital punishment. Gabrion’s death sentence was overturned by a panel of the U.S. Court of Appeals for the Sixth Circuit (Chicago Tribune, Aug. 3, 2011) because the trial judge had not allowed the defense to raise as an issue that Gabrion could not have been sentenced to death if he had been tried in a Michigan state court. The Sixth Circuit reviewed the decision en banc and in May 2013 reversed the panel. His lawyers subsequently filed a petition for writ of habeas corpus. A subsequent January 2017 pleading argued that Gabrion is mentally incompetent, and detailed “a long history of severe mental illness” that “may have deteriorated over the last 15 years while he has been housed on death row.” (J. Agar, “ Death-row inmate Marvin Gabrion ‘actively delusional,’ no help to attorneys ,” Michigan Live, January 27, 2017.)

Julius Robinson — Black. Robinson was sentenced to death on March 18, 2002, for the killings of Juan Reyes in May 1999 and Rudolph Resendez in June 1999 in Fort Worth, Texas. Both men were killed in drug related incidents. Robinson was formally sentenced by the trial judge on June 5, 2002.

Meier Jason Brown — Black. A U.S. District judge affirmed the recommendation of a jury for a death sentence against Meier Brown on November 8, 2003. Brown was convicted of the November 2002 murder of a 48-year-old white female — a Fleming, Georgia postal worker — during a robbery. Brown had agreed to plead guilty in return for a sentence of life without parole in light of Brown’s confession, but federal prosecutors sought the death sentence. (Savannah Morning News, November 8, 2003)

Chadrick Fulks and Branden Basham — Both White. A jury recommended the death sentence for the 2002 kidnapping and murder of a 44-year-old-white South Carolina woman following Fulks’ escape from a Kentucky jail. Fulks’ codefendant, Branden Basham, was tried in September 2004 for crimes committed during the escape. Fulks is the first federal death conviction in South Carolina. The judge is required to uphold the recommendation and confirm the death sentence. (The State (Columbia, SC), July 1, 2004). On November 2, 2004, a jury recommended a death sentence for Basham for the murder. The judge is required to follow the recommendation of the jury and impose a death sentence. (Associated Press, November 2, 2004).

Jeffery W. Paul — White. Paul was sentenced to death in January 2004 for being an accomplice to the murder of an 82-year-old man in Hot Springs National Park in Arkansas. At the time of the offense, Paul was 18 years old. His older co-defendant, Trinity Ingel, received a life sentence despite admitting that he was the triggerman. Paul’s death sentence was vacated in 2022 after the Southern District of Indiana granted his § 2241 habeas corpus petition upon finding that the firearms conviction on which his death sentence was based was due to be vacated. He was resentenced to life imprisonment in October 2023.

Shannon Agofsky — White. Agofsky was given a death sentence on July 17, 2004 for the murder of a fellow inmate at the Beaumont Federal Penitentiary in Texas in 2001. The jury was shown a video of the attack that prison officials said was gang-related. Agofsky was originally in prison for a murder that occurred when he was 18. (Associated Press, July 18, 2004). Ronald Mikos — White. On May 23, 2005 a jury recommended a death sentence for this 56-year-old Chicago podiatrist who was convicted of fatally shooting Joyce Brannon, a white former patient, to prevent her from testifying in a federal probe of a Medicare fraud scheme in January 2002. (Chicago Tribune, May 23, 2005). In the federal system, a jury’s recommendation for either life without parole or death is binding on the judge. Edward Fields — White. On July 22, 2005, a jury in the eastern district of Oklahoma recommended a death sentence for Fields, 38, a former prison guard. Fields pleaded guilty to the murder of two white campers in the Ouachita National Forest while wearing his homemade sniper suit. There was some evidence that Fields was mentally ill. A federal judge sentenced him to death on Nov. 8, 2005. (Muskogee Phoenix, July 26, 2005; Associated Press, July 15, 2005).

Kenneth Lighty — Black. On Nov. 10, 2005, a federal jury in Maryland recommended a death sentence for Lighty for the kidnapping and murder of Eric Hayes (black), an alleged PCP dealer and son of a D.C. police lieutenant, in 2001. The kidnapping occurred in Washington, DC and the murder was committed in Maryland. Lighty was convicted on October 21. A co-defendant, James Flood was also found guilty but faces a mandatory life sentence. In April, a 3rd defendant, Lorenzo Wilson, was convicted of conspiracy to kidnap and faces a life sentence. [Kenneth Barrett] — White. On Nov. 18, 2005, a federal jury in Muskogee, Oklahoma, recommended a death sentence for Barrett for the murder of a white police officer, David Eales, on Sept. 24, 1999. The death sentence was for intentionally killing a state law enforcement officer during a drug crime and during the officer’s performance of his official duties. Another officer was wounded. Barrett had already been convicted of first-degree manslaughter in state court for the murder of Eales, and he was given a 20-year sentence, followed by 10 years for the wounding. (Muskogee Phoenix, Nov. 21, 2005). Barrett’s death sentence was reversed by the U.S. Court of Appeals for the Tenth Circuit on January 19, 2021 for ineffective assistance of counsel in the penalty phase of trial. Daryl Lawrence — Black. Convicted on Feb. 28, 2006 of the murder of a police officer, Bryan Hurst, during an attempted bank robbery in Columbus, Ohio on Jan. 6, 2005. Lawrence was also convicted of other bank robberies in Ohio. A jury recommended a sentence of death on Mar. 10, 2006. (Press Release, U.S. Attorney’s Office for the Southern Dist. of OH, Mar. 10, 2006). His death sentence was overturned by the trial judge (e-mail from Diane Menashe, Counsel for Daryl Lawrence, on July 3, 2007). That decision was reversed by the 6th Circuit in 2009, reinstating his death sentence.

Jurijus Kadamovas and Louri Mikhel — White. In Los Angeles, a federal jury recommended the death penalty on Feb. 13, 2007 for two men convicted of murders in a kidnapping-for-ransom scheme targeting Russian immigrants. Prosecutors said the two men kidnapped affluent Russian immigrants from Los Angeles in late 2001 and early 2002 and attempted to extort money from their families and friends. Three co-conspirators pleaded guilty and testified at the trial for the government. The court formally imposed the jury’s death verdicts on March 12, 2017. (CBS News, Mar. 12, 2007). Carlos Caro — Latinx. A jury in the Western District of Virginia recommended a death sentence for Caro on Feb. 13, 2007 for the murder of his cellmate, Robert Sandoval. Caro was serving a 30-year sentence for drug offenses. Both Caro and Sandoval were reportedly members of a prison gang called the Texas Syndicate. The murder occurred in 2003. A judge will still have to pronounce the formal sentence at a later date. (Roanoke Times, Feb. 14, 2007). UPDATE: Caro was formally sentenced to death in District Court on March 30, 2007. Thomas Hager — Black. On November 1, 2007, a jury in Alexandria, Virginia recommended a death sentence for Hager, 34, after deliberating for 2 days. Hager was convicted of the drug-related murder of Barbara White committed in 1993. Prosecutors said that Hager killed White because she had learned of the safe house where he was staying. Two associates of Hager who were also responsible for White’s murder received life sentences and testified against him. The defendant grew up in a poor area of Southeast Washington, DC, and both of his parents were drug addicts who neglected and abused their children. (Associated Press (Va. Daily Press), Nov. 1, 2007). The judge immediately imposed the death sentence on Hager.

Rejon Taylor — Black. On October 21, 2008, a jury in Chattanooga, Tennessee recommended a death sentence for Taylor after convicting him of murder, kidnapping and carjacking. The victim was Guy Luck, a white businessman who lived in Atlanta, Georgia. He was brought across state lines and murdered in Tennessee. Taylor’s attorney said he was very confident that the verdict would be overturned on appeal. The judge indicated that formal sentencing would take place in about a month. (Chattanooga Times Free Press, Oct. 22, 2008).

Daniel Troya and Ricardo Sanchez, Jr. — Both Latinx. On March 31, 2009, a jury in West Palm Beach, Florida, recommended a death sentence for Troya and Sanchez for the murder of two children on the Florida Turnpike in 2006. The defendants also were convicted of murdering the children’s parents and received life sentences for that crime. All the victims were Hispanic. The father of the children was allegedly killed because of a drug debt. The reputed kingpin of the drug operation did not receive a death sentence. The judge is required to follow the jury’s recommendation in imposing the formal sentence. (South Florida Sun Sentinel, April 1, 2009). On May 13, 2009 both Troya and Sanchez were formally sentenced to death.

Joseph Ebron — Black. On May 11, 2009, a jury convicted Ebron of the 2005 murder of Keith Davis, also black, in a federal prison in Beaumont, Texas. The District Court judge followed the jury’s recommendation and condemned Ebron to death on May 18. Both defendant and victim were said to be members of a Washington, D.C. gang. Ebron is 30 years old and has been incarcerated for most of his life since he was 15. (Beaumont Enterprise, May 19, 2009).

David Runyon — Asian. On August 27, 2009, a jury in Norfolk, Virginia, unanimously recommended a death sentence for Runyon for the murder of Cory Allen Voss, a white Naval officer, in Newport News in 2007. Runyon, a former soldier, was convicted of shooting Voss in a murder-for-hire plot organized by Voss’s wife, Catherina Voss, and her boyfriend, Michael Draven. The federal government did not seek the death penalty against the other two defendants. Catherina Voss pled guilty and received a life sentence. Draven was found guilty and faces a life sentence. Catherina hired Runyon to kill her husband in the hope of being the beneficiary of a $500,000 life insurance policy. U.S. District Judge Rebecca Beach Smith will formally sentence Runyon in December. (Daily Press, Aug. 27, 2009).

Alejandro Umana — Latinx. On April 28, 2010, a jury in Charlotte, NC, unanimously recommended a death sentence for Umana, who was reputed to be a member of the gang MS-13. He was found guilty of killing 2 brothers in a Greensboro restaurant in 2007. Both victims were Latinx. Umana was one of 26 suspected MS-13 gang members indicted in Charlotte in 2008. Chief U.S. District Judge Bob Conrad is required to follow the jurors’ recommendation and impose the death penalty. (Charlotte Observer, Apri 29, 2010). Umana was formally sentenced to death on July 27, 2010.

Mark Snarr (White) and Edgar Garcia (Latinx)— On May 24, 2010, a jury in Beaumont, Texas, recommended death sentences for these two federal prison inmates for the murder of a fellow inmate, Gabriel Rhone. They also stabbed and wounded 2 corrections officers. They were convicted on May 7, 2010, of the murder that occurred in the U.S. Penitentiary in Beaumont. Both inmates were serving lengthy sentences for drug trafficking. (AOL News, May 24, 2010). According to the FBI, the presiding judge sentenced the defendants to death on the same day.

Kaboni Savage — Black. On May 31, 2013, a jury in Pennsylvania recommended the death penalty for each of 12 murders Savage committed or directed between 1988 and 2004, plus an additional death sentence related to witness retaliation. The murder victims were government witnesses, their relatives, and rivals in Savage’s drug operation. A federal judge officially imposed 13 death sentences on June 3, 2013. (Philadelphia Inquirer, June 3, 2013).

Jorge Torrez — Latinx. On April 24, 2014, a jury in Virginia recommended the death penalty for this ex-marine convicted of killing a fellow service member in 2009. Torrez allegedly committed other murders in Illinois. He instructed his attorneys not to put on mitigating evidence. (Associated Press, Apr. 24, 2014). Torrez was formally sentenced to death by the judge on May 30, 2014. The U.S. Court of Appeals for the Fourth Circuit upheld his conviction and death sentence on direct review on August 28, 2017.

Charles Hall and Wesley Coonce — Both White. Hall and Coonce received jury verdicts of death on June 2, 2014, for the murder of a Latinx prisoner in a federal penitentiary in Missouri. The U.S. Court of Appeals for the Eighth Circuit upheld Coonce’s conviction and death sentence on July 25, 2019 and upheld Hall’s death sentence on December 19, 2019. Hall did not raise any guilt-stage issues in his direct appeal.

Thomas Sanders — White. Sanders was sentenced to death by a federal jury on September 26, 2014, for the kidnapping and murder of a 12-year-old girl in Louisiana in 2010. Sanders also killed the girl’s mother earlier in Arizona.

Dzhokhar Tsarnaev — White. Convicted of 30 counts including murder related to the Boston (Mass.) Marathon bombing (2013). Three victims died in the bombing, hundreds were wounded, and a police officer was killed in an attempt to avoid arrest. A death verdict was returned by the jury on May 15, 2015, for one of the bombing deaths. Formal sentencing occurred on June 24, 2015. Tsarnaev’s death sentence was overturned by the U.S. Court of Appeals for the First Circuit on July 31, 2020 based upon the trial court’s failure to question jurors on the substance of the pretrial publicity to which they were exposed. The U.S. Supreme Court reversed the appellate court’s decision in a 6-3 ruling.

Dylann Roof — White. Roof was sentenced to death by a jury on January 10, 2017 for the race-related murders of nine parishioners at an historic Black church in Charleston, South Carolina. The court formally imposed the death penalty on January 11.

Christopher Cramer and Ricky Fackrell — Both White. Cramer and Fackrell received jury verdicts of death on June 13, 2018, for the murder of a White prisoner in a federal penitentiary in Texas.

Brandon Council — Black. Council was sentenced to death on October 3, 2019 by a jury in South Carolina for killing a teller and bank manager during the 2017 robbery of a CresCom bank.

Permanently Removed From Death Row:

John McCullah — White. McCullah was sentenced to death for a drug-related kidnap/murder of a Muskogee, Oklahoma auto dealership employee. The 10th Circuit granted McCullah a new penalty hearing in 1996, and in February 2000, McCullah was resentenced to life in prison.

David Ronald Chandler — White. Chandler, a marijuana grower in Alabama, was sentenced to death under the drug kingpin statute in 1991 for the murder-for-hire of a white male. Most of the government’s witnesses, including the triggerman in the killing, have recanted their testimony. A panel of the U.S. Court of Appeals for the Eleventh Circuit overturned his death sentence in October 1999 because of ineffectiveness of counsel. In December 1999, the circuit court voted to rehear the case en banc , and by a 6-5 vote reversed the panel’s grant of relief and reinstated Chandler’s death sentence. Chandler filed a petition for writ of certiorari asking the U.S. Supreme Court to review his case. Sentence commuted to life by President Clinton on January 20, 2001.

Boutaem Chanthadara — Asian. Chanthadara was sentenced to death in October 1996 for the armed robbery/murder of the female proprietor of a Chinese restaurant in Wichita, Kansas. In November 2000, the U.S. Court of Appeals for the 10th Circuit overturned Chanthadara’s death sentence and remanded his case for a new sentencing hearing. At resentencing, Chanthadara was sentenced to life in April 2002.

Paul Hardy — Black. Hardy was the triggerman in a killing in New Orleans along with a co-defendant Len Davis. Hardy and Davis were sentenced to death on two convictions in May 1996. The U.S Court of Appeals for the Fifth Circuit reversed the sentences for both defendants and one of the two capital convictions for each defendant. The court ordered a new sentencing hearing for both defendants. In 2010, U.S. District Court Judge Ginger Berrigan, who sentenced Hardy and Davis to death after their trial in 1996, found that Hardy is not eligible for death under a 2002 Supreme Court ruling prohibiting the execution of the intellectually disabled. (WWL-TV News, Jan. 15, 2011). Davis was resentenced to death.

Richard Thomas Stitt — Black. Stitt was convicted of ordering the murder of three people in Norfolk, Virginia. He was sentenced to death by a jury in November 1998 after a joint trial with three codefendants, who did not face the death penalty. Stitt’s death sentence was overturned by a federal District Court judge in April 2005 because of ineffectiveness of counsel . In March 2006, a panel of the U.S Court of Appeals for the Fourth Circuit upheld the district court’s judgment, finding that Stitt’s attorney did not render effective assistance because of a conflict of interest. (Associated Press, Mar. 25, 2006). On remand, the prosecution requested that a new capital sentencing jury be empaneled. However, the district court instead ruled that Stitt’s sentence should be reduced to life plus 65 years . (Virginian Pilot, June 17, 2007). On appeal, the 4th Circuit overturned the district court’s sentence and allowed the government to conduct a new sentencing hearing . Attorney General Eric Holder approved the seeking of the death penalty at the new sentencing trial. (Virginian Pilot, Oct. 27, 2009). The government subsequently announced that it would no longer seek the death penalty against Stitt. (Virginian-Pilot, Oct. 20, 2010).

Darryl Alamont Johnson — Black. Johnson was convicted of ordering the murder of two informants in Illinois in connection with the Gangster Disciples drug conspiracy cases. He was sentenced to death on November 17, 1997. His co-defendant was sentenced to life in prison. A federal district court in Illinois overturned Johnson’s death sentence in Dec. 2010 because jurors had not been given sufficient information about the conditions in which Johnson would have been confined if he had been sentenced to life imprisonment . In 2011, the government decided not to appeal this decision, removing Johnson from death row. On April 9, 2013, Johnson was sentenced to life without parole in District Court. The judge remarked that he had become a changed man since his conviction 16 years before. (Business Wire, Apr. 11, 2013). German Sinistera — Hispanic. In May 2000, a federal jury in Kansas City, Missouri, recommended a death sentence for Sinistera of Houston, Texas, for his role as triggerman in the murder of a drug dealer. Sinistera was a citizen of Colombia. He was convicted along with two co-defendants, Arboleda Ortiz and Plutarco Tello, who are also Colombian nationals. The jury also recommended a death sentence for Ortiz, but not for Tello. The judge sentenced Sinistera and Ortiz to death. In March 2013, Sinistera died in prison . In 2017, President Obama commuted Ortiz’s death sentence to life without parole.

David Lee Jackson — Black. Case: E.D. TX CR No. 1:05-CR-51 B. Jackson was convicted in the Eastern District of Texas for the 1999 killing of an inmate at the federal prison in Beaumont, Texas. On Nov. 13, 2006, the sentencing jury voted to impose the death penalty. The district court formally imposed the sentence on Dec. 15, 2006. At the time of the murder, Jackson had been incarcerated for a weapons violation. His co-defendant, Arzell Gully, was in prison for drug trafficking. Both men were sent to the high security federal prison in Florence, Colorado, after the homicide. Gully did not face the death penalty. Jackson, Gully, and the victim all were African American. (Federal Death Penalty Resource Counsel). Jackson’s death sentence was vacated in District Court on March 25, 2013 and he was sentenced to life without parole on March 26, 2013. (Federal Capital Habeas Project).

David Paul Hammer — White. Hammer is a mentally ill prisoner who was convicted of killing a federal prison inmate at the federal penitentiary at Allenwood, Pennsylvania, where he was serving a 1200+ year Oklahoma state sentence. After initially pursuing an insanity defense, Hammer pled guilty to the murder. He was sentenced to death on July 24, 1998. Hammer then sought to discharge counsel and proceed pro se during post-trial motions. Counsel was appointed for an appeal and after counsel filed the appeal, Hammer moved pro se to dismiss the appeal, moved to withdraw the motion to dismiss, and changed his mind again. After protracted proceedings in the U.S. Court of Appeals for the Third Circuit, the court ultimately ruled that Hammer was competent to waive his appeal and that the federal death penalty statute permitted such a waiver. The federal Bureau of Prisons set an execution date for Nov. 15, 2000. Hammer then filed a clemency petition and a request to appeal. The district court stayed his execution, and directed that he file a habeas corpus challenge to his conviction and sentence on or before January 31, 2001. The district court overturned Hammer’s death sentence because the prosecution had violated its constitutional obligation to disclose exculpatory evidence, in this case withholding a number of witness statements that rebutted the government’s aggravating circumstance that the murder had been the product of “substantial planning and premeditation.” (Associated Press, Dec. 27, 2005). The government appealed, but the Third Circuit ruled that, under the federal sentencing statute, it lacked jurisdiction to review the case until Hammer had been resentenced either to life or death. On July 17, 2014,after a three-week penalty hearing, a federal district court judge in Philadelphia sentenced Hammer to life imprisonment without parole .

Angela Johnson — White. On June 21, 2005, a federal jury in Iowa recommended a death sentence for Angela Johnson (co-defendant with Dustin Honken)for her role in aiding drug kingpin Honken in 4 of the 5 murders he committed. If the sentence had been carried out, she would have been the first woman executed by the U.S. government since Bonnie Brown in December 1953. Johnson’s death sentence was overturned by the District Court on March 22, 2012 because of ineffectiveness of his penalty-phase counsel. In mid-June 2012, the DOJ announced that it would again seek the death penalty against Johnson. However, on December 17, 2014, DOJ announced that it would no longer seek death in the case. (Assoc. Press, Dec. 17, 2014).

Arboleda Ortiz — Black/Hispanic. In May 2000, a federal jury in Kansas City, Missouri, recommended a death sentence for Ortiz for his role in the murder of a drug dealer. Ortiz and two co-defendants, German Sinisterra and Plutarco Tello, are Colombian nationals. The jury recommended a death sentence for Ortiz and Sinistera, but not for Tello. The judge sentenced the two to death. Sinistera died in prison in 2013. Ortiz’s lawyers sought clemency from President Barack Obama on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and had been denied effective assistance of counsel at trial. On January 17, 2017, President Obama commuted his death sentence to life without parole.

Ronell Wilson — Black. Wilson’s case was the first federal death sentence handed down in New York since 1954. Wilson, 24, was convicted of killing two undercover police detectives in Staten Island in 2003. The jury recommended a sentence of death on January 30, 2007. (Associated Press, February 1, 2007). The district court formally sentenced Wilson to death on March 29, 2007. Three years later, in June 2010, the U.S. Court of Appeals for the Second Circuit overturned Wilson’s death sentence because of prosecutorial misconduct: the prosecutor improperly commented on Wilson’s silence, in violation of his constitutional privilege against self-incrimination and his right to a fair trial. The government did not seek Supreme Court review of the circuit’s decision. On February 7, 2013, the District Court ruled that Wilson was not exempt from the death penalty because of mental retardation, and hence could be subject to a capital re-sentencing trial. On July 24, 2013, a jury in Brooklyn, New York, voted to resentence Wilson to death. The district court formally imposed that sentence on September 10, 2013. On March 15, 2016, the district court reviewing Wilson’s sentence found that the initial ruling on Wilson’s intellectual disability had applied an inappropriate standard for determining his intellectual functioning, in violation of the U.S. Supreme Court’s 2014 Hall v. Florida . Applying the correct standard, the court ruled that Wilson was intellectually disabled and ineligible for the death penalty . On June 26, 2017, the U.S. Attorney’s office announced that it would not appeal the district court’s ruling. (Associated Press, June 27, 2017).

Donald Fell — White. On July 14, 2005, a jury in Vermont recommended a death sentence for Fell, 25, for a carjacking in Vermont and subsequent murder of a woman in New York in 2000. He was convicted of carjacking and kidnapping resulting in death. The woman and her car were seized by Fell and a codefendant as they were fleeing Vermont where Fell’s mother and a friend were also killed hours earlier. The co-defendant hanged himself in prison in 2003. Prosecutors had originally arranged a plea bargain for Fell in which he would have been sentenced to life without parole, but the deal was rejected by Attorney General John Ashcroft. This was the first capital trial in Vermont in nearly 50 years. (N.Y. Times, July 15, 2005). The conviction was overturned in July 2014 because of juror misconduct. (WCAX News, July 26, 2014). In July 2018, the U.S. Court of Appeals for the Second Circuit ruled that prosecutors could not admit into evidence statements made by Fell’s deceased co-defendant that attempted to shift blame for the killing to Fell. ( Vermont Digger , July 23, 2018). The parties subsequently reached a plea deal, which the district court approved on September 28, 2018, in which Fell was sentenced to life without parole. ( Vermont Digger , Sept. 28, 2018).

Azibo Aquart — Black. On June 15, 2011, a jury in New Haven, Connecticut, recommended a death sentence for Aquart’s role in a 2005 triple murder of multiple alleged rivals in the drug business by leaders of a Jamaican drug gang. All victims were black. Azikiwe Aquart (Azibo’s brother) also faced capital prosecution in the offense. A third co-defendant, who cooperated with the government, did not face capital charges. (CT Post, June 15, 2011). The court formally sentenced Aquart to death on Dec. 17, 2012. His brother was sentenced to life earlier. Aquart became the first person in Connecticut history to receive the federal death penalty. (CT Post, Dec. 18, 2012). The U.S. Court of Appeals for the Second Circuit upheld his conviction but overturned his death sentence on December 20, 2018, finding that the prosecution improperly vouched for the testimony of a penalty-phase witness. The government’s petition for rehearing was denied in March 2019 and prosecutors agreed not to seek review of the grant of relief in the Supreme Court. In December 2020, the Connecticut U.S. Attorney’s office informed Aquart’s counsel that the government would no longer be seeking death in the case and, on December 22, 2020 , it notified the federal district court of that decision. ( Associated Press , January 21, 2021).

Bruce Webster — Black. Webster was charged alongside Orlando Hall in Fort Worth, Texas with the abduction, sexual assault, and beating murder of a 16-year-old black female. They were tried separately. Hall was sentenced to death in November 1995. Webster was sentenced to death in June 1996. Webster had been scheduled for execution on April 16, 2007. After Webster joined the lethal injection challenge filed by other federal death-row prisoners, his execution was stayed. On June 18, 2019, the U.S. District Court for the Southern District of Indiana vacated his death sentence, finding that he was ineligible for the death penalty because of intellectual disability. That ruling was affirmed by the U.S. Court of Appeals for the Seventh Circuit on September 22, 2020. The appellate court’s mandate issued on November 16 and Webster’s removal from death row became final when the Department of Justice did not seek review by the U.S. Supreme Court.

Joseph Duncan — White. On August 27, 2008, a jury in Idaho returned a unanimous verdict for a death sentence for Duncan after deliberating for 3 hours. Duncan had pleaded guilty to ten federal charges, including the murder and kidnapping of a young boy and the kidnapping of a young girl in May 2005. He insisted on defending himself, and offered no mitigating evidence and no closing argument in the sentencing trial. (KNDO/KNDU Web site, NBC affiliates; also AP, Aug. 27, 2008). He subsequently tried to waive his appeals and, in December 2013, the federal district court ruled that he was competent to do so. The U.S. Court of Appeals for the Ninth Circuit upheld that ruling in 2015 and in 2016 the U.S. Supreme Court declined to hear the case. Duncan’s lawyers subsequently filed a motion to set aside his sentence and conviction, which the trial court denied on March 22, 2019. The appeal of that order was pending when Duncan died of brain cancer on March 28 2021.

Sherman Lamont Fields — Black. A jury sentenced Fields to death in connection with the shooting death of his girlfriend in 2001. The murder took place during Fields’ escape from a detention center in Texas while Fields was being held on a federal weapons charge. However, the statutory basis for the death sentence was not the murder itself but that Fields had used and carried a firearm during and in relation to a crime of violence (conspiracy and the escape). Fields was sentenced to lengthy prison terms on the other charges. A U.S. District Judge formalized the sentence in April 2004, and ordered Fields transferred to Terre Haute, IN. (Associated Press, April 8, 2004). In 2019, the U.S. Supreme Court ruled in United States v. Davis that the “crime of violence” language was unconstitutionally vague, which meant that crimes like conspiracy and escape that do not require force as an element do not constitute crimes of violence. Citing Davis , Fields filed a motion seeking to vacate some of his convictions, including the conviction carrying a death sentence. In January 2021, the district court vacated the conviction carrying a death sentence, as well as an additional non-capital conviction and sentence. Fields was resentenced on the remaining convictions on April 7, 2021. Robert Bolden — Black. On May 23, 2006, a federal jury in St. Louis, Missouri, recommended a death sentence for Bolden for the murder of a white bank security guard, Nathan Ley, during an attempted robbery in St. Louis in 2002. Two accomplices pleaded guilty to attempted bank robbery. The formal sentencing took place on August 25, 2006. (St. Louis Post-Dispatch, May 23, 2006). Bolden is a Canadian citizen. Bolden died on death row in September 2021 of complications from diabetes and poor medical care.

Gary Sampson — White. Sampson pled guilty to the carjacking and murder of two Massachusetts men during a weeklong crime spree. A jury sentenced Sampson to death on December 23, 2003. Sampson is only the second federal case tried in Massachusetts since the federal government reinstated the federal death penalty in 1988. (Las Vegas Sun, December 23, 2003) Judge Mark L. Wolf sentenced Sampson to death, but ordered that the execution be carried out in New Hampshire, which has not carried out an execution since 1939. (Boston Globe, January 30, 2004). Judge Wolf overturned Sampson’s sentence because a juror had made significant misrepresentations during voir dire. (Boston Globe, Oct. 20, 2011). After the government appealed, the U.S Court of Appeals for the First Circuit affirmed the district court’s reversal of sentence. (July 25, 2013). Prosecutors capitally retried Sampson. The jury re-sentenced him to death on one of the two murder charges, but did not reach a unanimous verdict on the second charge, which resulted in the imposition of a life sentence for that murder. (Associated Press, January 9, 2017) On August 16, 2017, the district court denied Sampson’s post-trial motions, affirming the death sentence imposed in his case. ( Boston Globe , August 16, 2017). Sampson died of cancer on death row December 21, 2021. ( Associated Press , December 23, 2021).

Alfonso Rodriguez, Jr. — Latinx. Convicted on August 30, 2006, of the murder of a college student, Dru Sjodin. Sjodin was kidnapped from North Dakota and her body was found in Minnesota. A jury in North Dakota recommended a death sentence on September 22. The judge formally sentenced Rodriguez to death on Feb. 8, 2007. North Dakota does not have a state death penalty and has not had an execution since 1905. The judge designated South Dakota as the place of execution. (Associated Press, Sept. 22, 2006; N.Y. Times, Feb. 9, 2007). Rodriguez’s death sentence was reversed by the U.S. District Court for the District of North Dakota on September 3, 2021 (with an amended opinion issued January 3, 2022) for ineffective assistance of counsel in the penalty phase of trial for failing to investigate and present mental health mitigating evidence. That evidence included that Rodriguez had significantly impaired intellectual capacity, “suffered from post-traumatic stress disorder (‘PTSD’) so severe that he sometimes has dissociative experiences,” and had deficits in functioning equivalent to those of an individual with Intellectual Disability. The district court also found that the prosecution had “presented unsupported, misleading, and inaccurate testimony regarding the [victim’s] cause of … death” that could have affected the sentencing verdict. Federal prosecutors initially filed notice that they would appeal that decision, but subsequently withdrew the appeal . On March 14, 2023, the North Dakota U.S. Attorney’s office withdrew the notice of intent to seek the death penalty in Rodriguez’s capital resentencing proceedings.

Nasih Ra’id (formerly Odell Corley) — Black. On October 29, 2004, a jury recommended a death sentence for Ra’id for the murder of two white bank employees during a robbery attempt at a Porter, Indiana bank in 2002. Ra’id’s sentence will be the first one in the history of the Northern District of Indiana federal court system. The judge is required to impose the sentence against Ra’id, who was alleged to be the triggerman in the robbery. Two co-defendants pleaded guilty and were given lesser sentences. (Indiana Herald-Argus, October 29, 2004). Mr. Ra’id died on December 1, 2023. ( Indiana Public Media , December 4, 2023)

Jury Verdict for Death Overturned Before Being Formally Imposed

George Lecco and Valerie Friend (female) — Both White. On May 29, 2007, a jury in Charleston, West Virginia, recommended death sentences for both defendants for the murder of Carla Collins in order to protect their drug ring. Prosecutors maintained that Lecco arranged to have Collins killed and that Friend did the shooting in 2005. These were the first federal death verdicts in West Virginia since the federal law was reinstated in 1988. (Charleston Daily Mail, May 29, 2007). Lecco and Friend’s convictions were overturned by the federal district court in May 2009 before the judge had formally imposed the jury’s death sentence, because one of the jurors at the trial, William Griffith, had not disclosed that he was being investigated by the same U.S. Attorney’s Office that was prosecuting Lecco and Friend for allegedly possessing child pornography. (Williamson Daily News, May 7, 2009). A new trial date of October 27, 2009 was set for Friend, and the prosecution indicated that it intended to again seek the death penalty. On October 1, 2009, Friend entered a deal with the prosecution in which she pleaded guilty to a number of charges—including the murder of Collins—and agreed to cooperate against her co-defendant in exchange for being sentenced to life in prison . (Assoc. Press, Oct. 1, 2009). On May 3, 2010, a federal jury chose not to sentence Lecco to death after finding him guilty. He was sentenced to life without parole . (Charleston Gazette, May 3, 2010).

John Wayne Johnson — Black. On May 27, 2009, a jury in New Orleans, Louisiana, unanimously recommended a death sentence for Johnson for the murder of an off-duty sheriff’s deputy working as a guard during a bank robbery. There were two other accomplices in the 2004 robbery in which officer Sidney Zaffuto was killed. Johnson admitted he shot Zaffuto, but said it was unintentional. The jury found him guilty on May 19. Johnson’s attorneys planned to appeal on several grounds, including an assertion that the federal death penalty was being employed unconstitutionally in New Orleans because all 42 defendants indicted on capital offenses were either black or Hispanic. (Times-Picayune, May 27, 2009). The District Court judge delayed formal sentencing until February 3, 2010 to permit the defense more time to challenge the trial. Prior to formal sentencing, the District Court vacated Johnson’s death verdict and ordered a new penalty hearing for multiple constitutional violations including: admission of improper victim-impact evidence; a discovery violation related to this victim-impact evidence; introduction of an unadjudicated murder that the jury had found was not proven beyond a reasonable doubt; and improper government argument in the penalty phase that (a) compared the worth of the defendant and the victim, (b) compared conditions of a life sentence to the permanency of the victim’s death, and (c) pressured the jury into believing that a life sentence would be a capitulation. (Federal Death Penalty Resource Counsel, May 18, 2010). On March 29, 2011, the U.S. Attorney moved to dismiss its appeal of the District Court’s order vacating Johnson’s death sentence and that motion was granted. The prosecutors subsequently withdrew their authorization to seek the death penalty and Johnson was formally sentenced to life without parole.

Sentenced to death and executed

Timothy McVeigh — White. McVeigh was sentenced to death in June 1997 for the bombing of the Oklahoma City federal building in 1995. The United States Supreme Court denied review on March 8, 1999. McVeigh was scheduled for execution on May 16, 2001 but was granted a 30-day stay of execution by Attorney General John Ashcroft after it was discovered that the FBI had failed to disclose more than 3,000 pages of document to McVeigh’s defense team. McVeigh was executed on June 11, 2001. McVeigh’s co-defendant, Terry Nichols, was capitally prosecuted by the federal government in a separate trial. He was convicted by the jury and sentenced to life without parole. Nichols was later capitally tried in Oklahoma state court for the murders of the 161 non-federal employees in Oklahoma City. He was convicted, and again the jury sentenced him to life in prison without parole.

Juan Raul Garza — Latinx. Garza, a marijuana distributor, was sentenced to death in August 1993 in Texas for the murders of three other drug traffickers. Garza was denied review by the U.S. Supreme Court in late 1999 and was facing an execution date of August 5, 2000. The date was postponed until the Justice Department finished drafting guidelines for federal death row inmates seeking presidential clemency, which were issued in early August. Garza was offered the opportunity to apply for clemency under the new guidelines and a new execution date of Dec. 12, 2000 was set. In December, 2000, President Clinton again delayed Garza’s execution for at least six months to allow further study of the fairness of the federal death penalty. Garza was executed on June 19, 2001 .

Louis Jones — Black. Jones was sentenced to death in November 1995 in Texas for the kidnap/murder of a young white female soldier. The United States Supreme Court granted review of the case and heard arguments on February 22, 1999. The Supreme Court affirmed the conviction on June 21, 1999. Jones, a decorated Gulf War veteran who had no prior criminal record, claimed that his exposure to nerve gas in Iraq and post-traumatic stress from his combat tours contributed to his murder of Pvt. Tracie Joy McBride in Texas. President Bush refused Jones’ clemency request. Jones was executed on March 18, 2003.

Daniel Lee — White. Lee was convicted in Arkansas in May 1999 of the triple murder of a gun dealer and his family. Lee was convicted along with Chevie Kehoe in a plot to set up a whites-only nation in the Pacific Northwest. Although prosecutors considered Kehoe the mastermind of the plot, the same jury that sentenced Lee to death sentenced Kehoe to life. The court formally sentenced Lee to death on May 13, 2002. Lee was executed on July 14, 2020.

Wesley Purkey — White. A jury recommended that Purkey be sentenced to death for the 1998 kidnapping, rape, and murder of a Kansas City, Missouri, teen. While serving life in prison for another 1998 murder in Kansas, Purkey confessed to the Kansas City crime in hopes of being transferred to federal prison. Prosecutors instead chose to seek the death penalty for Purkey under the 1994 federal statute. The judge is required to follow the jury’s recommendation. (Kansas City Star, November 19, 2003) Purkey was executed on July 16, 2020.

Dustin Honken — White. On October 27, 2004 a federal jury voted to sentence Honken to death for the murder of two girls in Iowa in 1993. Honken was also given three life sentences: one for the murder of the girls’ mother, and two more for the murders of two other adults who were to have testified against Honken in a federal drug case. The children, white girls age 10 and 6, were witnesses to the murder of their mother. The judge is required to uphold the jury’s recommendation and impose the death sentence. (Des Moines Register, October 28, 2004). This is the third federal death sentence handed down in a state that does not have the death penalty in its own law. The other two were in Michigan and Massachusetts. Honken was executed on July 17, 2020. Lezmond Mitchell — Native American. Mitchell and his co-defendants (including a juvenile) allegedly got a ride from a woman and her 9 year old granddaughter in Arizona. They killed both victims and stole the car supposedly for use in an armed robbery. Each victim was stabbed at a separate location. The Attorney General authorized a capital prosecution against Mitchell under a carjacking theory — although the murders occurred on Navajo tribal land and the tribe had not “opted in” to the federal death penalty. Attorney General Ashcroft directed that the case be tried capitally without consulting the tribal government. Mitchell was found guilty on May 20, and sentenced to death on September 15, 2003. Mitchell was executed on August 26, 2020. Keith Nelson — White. Nelson was convicted of kidnapping a girl from her Kansas home and murdering her in Missouri. On November 28, 2001 a jury recommended the death penalty for Nelson, and on March 11, 2002, a federal judge imposed the death penalty. Nelson was executed August 28, 2020. William LeCroy, Jr. — White. A jury sentenced LeCroy to death in the 2001 carjacking and murder of a North Georgia woman. Attorneys for LeCroy argued that the murder took place inside the victim’s house, and thus did not fall under the 1994 federal death penalty statute. The judge is required to follow the jury recommendation. (Atlanta Journal-Constitution, March 11, 2004). LeCroy was executed September 22, 2020.

Christopher Vialva — Black+. Vialva and his co-defendant Brandon Bernard were convicted and sentenced to death by a federal jury in Waco, TX in June 2000 for the carjacking and murder of an Iowa couple. The murder became a federal case because it occurred on a remote parcel of federal land near Fort Hood in central Texas. Vialva was 19 years old at the time of the murders, and Bernard was 18. Four younger teenagers, aged 15 and 16, also pled guilty to federal charges relating to the crime. Vialva was executed September 24, 2020. He was the first teenaged offender executed under the auspices of the federal government in 72 years. + Vialva was biracial. His mother is white; his father is from the West Indies and of African descent. Orlando Hall — Black. Hall was charged alongside Bruce Webster in Fort Worth, Texas with the abduction, sexual assault, and beating murder of a 16-year-old black female. They were tried separately. Hall was sentenced to death in November 1995. Webster was sentenced to death in June 1996. Hall was executed on November 19, 2020. Brandon Bernard — Black. A federal jury in Waco, TX, convicted Bernard and his co-defendant Christopher Vialva in June 2000, of carjacking and the murder of an Iowa couple on a remote parcel of federal land near Fort Hood in central Texas. Both were sentenced to death. Bernard was 18 years old at the time of the murders, and is the youngest offender on federal death row in more than 70 years. Vialva, who was 19-years-old at the time of his offense, was executed on September 24, 2020. Four younger teenagers also pled guilty to federal charges relating to the crime. Bernard was executed on December 10, 2020. Alfred Bourgeois — Black. On March 24, 2004 a jury recommended a death sentence for Alfred Bourgeois for the 2002 murder of his daughter at the Corpus Christi Naval Air Station in Texas, based in part on the testimony of a prisoner housed with Bourgeois. The judge is required to follow the jury’s sentencing recommendation. (Department of Justice Press Release, March 24, 2004). Bourgeois was executed on December 11, 2020. Lisa Montgomery — White/Female. On Oct. 26, 2007, a jury in Kansas City, Missouri recommended a death sentence for Montgomery following her conviction for kidnapping and killing Bobbie Jo Stinnett, also white, and stealing her unborn baby. Montgomery took the baby with her to Kansas and claimed the baby was her child. (Kansas City Star, Oct. 26, 2007). Montgomery was formally sentenced to death on April 4, 2008 in U.S. District Court. (Topeka Capital-Journal, Apr. 3, 2008). She became the third woman on the federal death row. Montgomery was executed on January 13, 2021. Corey Johnson — Black. Johnson was a member of an inner-city gang in Richmond, VA. He was sentenced to death in February 1993 for his participation in a series of drug-related murders. Execution dates were set for Johnson and his two co-defendants in May 2006, but the executions were stayed because of a challenge to the lethal injection process. Johnson was executed on January 14, 2021. Dustin John Higgs — Black. Higgs was convicted in October 2000 of ordering the 1996 murder of three Maryland women after arguing with one of them in his apartment. The triggerman, Willis Mark Haynes, was convicted in May 2000 and sentenced to life plus 45 years in prison. Higgs’s case was the third death penalty prosecution in Maryland since the federal death penalty was reinstated in 1988, but marked the first time a jury imposed the death penalty. (Washington Post, 10/27/00). The prosecution witness who testified that Higgs ordered him to commit the killings later recanted his testimony and Higgs insisted up until the moment of the execution that he was innocent of the murders. Higgs was executed on January 16, 2021.

Note : Because of different definitions of what constitutes being “on death row,” some organizations such as the Federal Death Penalty Resource Counsel or the Bureau of Justice Statistics, may have a slightly different list of those on death row. Names in [ ] are defendants whose conviction or death sentence have been reversed but who still face the possibility of being resentenced to death on retrial. This list may also include prisoners who have been sentenced to death by a jury, but the judge has not yet formally imposed the sentence. These cases are marked with an asterisk (*).

See also list of federal prisoners executed since 1927.

IMAGES

  1. Living Lessons From A Decades-Old Death Penalty Case

    death penalty cases underwent a revision in the's 1970's because

  2. 10 facts about the death penalty in the U.S.

    death penalty cases underwent a revision in the's 1970's because

  3. The death map: Which US states still have capital punishment, and who

    death penalty cases underwent a revision in the's 1970's because

  4. 6 Figures That Tell the Story of the Death Penalty in America

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  5. Death Penalty Cases Show History of Racial Disparity, Report Finds

    death penalty cases underwent a revision in the's 1970's because

  6. Executions on decline in US, death penalty sentences hit record low

    death penalty cases underwent a revision in the's 1970's because

COMMENTS

  1. The Eighth Amendment, the Death Penalty, and the Supreme Court

    There was less evidence of this back in the 1970s, because we didn't have DNA testing then, so that's a powerful new moral and legal argument against capital punishment. ... Those cases are not death penalty cases, and yet the Court has used its powerful Eighth Amendment jurisprudence, first to say that juveniles who don't kill people ...

  2. United States Supreme Court

    In the 1970 s, the U.S. Supreme Court found the application of the death penalty unconstitutional, but allowed executions to resume under revised laws four years later. Today, the Court often faces questions on the constitutionality of particular aspects of the death-penalty system. Overview

  3. United States Supreme Court Decisions: 1972-1996 Terms

    1972. Furman v. Georgia 408 U.S. 238: Court ruled that the death penalty, as applied, was an arbitrary punishment and thus unconstitutional under the 8th and 14th Amendments.. 1976. Gregg v. Georgia 428 U.S. 153: The Court held that Georgia's new capital punishment procedures (bifurcated trials and automatic appeals) were in accordance with the 8th Amendment.

  4. A New Era: A New U.S. Death Penalty Returns in the Late 1970s

    Major changes began taking place in the 1970s around the time of Furman v. Georgia that would create a new death penalty scheme. In response to that U.S. Supreme Court decision, states such as Georgia passed new death penalty laws.

  5. ‌The End of the Death Penalty?

    Georgia Feb 14, 2023 By Elaine McArdle More than 50 years ago, the U.S. Supreme Court held in Furman v. Georgia that the death penalty was an unconstitutional violation of the Eighth Amendment ban against cruel and unusual punishment.

  6. Supreme Court strikes down death penalty

    June | 29 Choose another date 1972 Supreme Court strikes down death penalty In Furman v. Georgia, the U.S. Supreme Court rules by a vote of 5-4 that capital punishment, as it is currently...

  7. The Rise, Fall, and Afterlife of the Death Penalty in the United States

    For more than two decades, from the 1970s through the 1990s, the use of the death penalty soared: Legislatures passed new statutes reinstating capital punishment and expanded preexisting statutory schemes; juries returned increasing numbers of death sentences; and states executed increasing numbers of inmates, reaching highs not seen since the 1...

  8. Casenote: The Death Penalty Cases: A Summary

    tenced Gregg to death on both counts. The Georgia Supreme Court, in expe-dited review, vacated the death sentence for armed robbery on two grounds: (1) the death penalty was excessive because it was seldom imposed for armed rob-bery, and (2) it is a denial of due process to consider murder as an aggravating

  9. SCOTUS for law students: The Supreme Court and the death penalty

    Justices William Brennan and Thurgood Marshall concluded while they were on the court that the death penalty was unconstitutional in every application, and they issued a standard dissent in all capital cases from 1976 until they retired, Brennan in 1990 and Marshall in 1991.

  10. The Death Penalty Cases

    Texas, 408 U.S. 238 (1972) In Fx4rman v. Georgta,l the Supreme Court held in a per curiam decision that in the cases before it, the imposition and carrying out of the death pen- alty constituted cruel and unusual punishment in violation of the eighth and fourteenth amendments. In so ruling, the Court departed from its earlier decisions that had ...

  11. Summaries of Key Supreme Court Cases Related to the Death Penalty

    Illinois , 391 U.S. 510 (1968): Jurors must be willing to impose the death penalty in order to sit on a capital jury. Furman v. Georgia , 408 U.S. 238 (1972): The application of the death penalty is unconstitutional. Gregg v. Georgia , 428 U.S. 153 (1976): The death penalty is constitutional. Woodson v.

  12. America's Failed Efforts to Reform the Death Penalty

    On June 29, 1972 the U.S. Supreme Court overturned all existing death penalty laws with a decision in Furman v. Georgia that focused on capriciousness, racial bias, and cruelty - flaws that states were supposed to correct. Four years later, in Gregg v.

  13. United States Department of Justice

    Decisions of the Supreme Court beginning in the early 1970s imposed new restrictions on capital punishment, producing a temporary cessation in the use of the death penalty as a criminal sanction. ... The District of Puerto Rico has an unusually large number of homicide cases because the U.S. Attorney has agreed with the local authorities that ...

  14. The Death Penalty

    After Furman, support for the death penalty continued to climb throughout the 1970s and early 1980s. By the mid-1980s, a sea change in national public opinion had occurred. Whereas support for the death penalty had fallen as low as 42% in 1966, by the mid-1980s and early 1990s about three of every four Americans favored it.

  15. Expert Testimony in Capital Sentencing: Juror Responses

    The U.S. Supreme Court, in Furman v. Georgia (1972), held that the death penalty is constitutional only when applied on an individualized basis. The resultant changes in the laws in death penalty states fostered the involvement of psychiatric and psychologic expert witnesses at the sentencing phase of the trial, to testify on two major issues: (1) the mitigating factor of a defendant's ...

  16. Death Penalty Debated, 1970s

    Death Penalty Debated, 1970s | NC DNCR June 1, 2016 Death Penalty Debated, 1970s On June 1, 1977, a revision to the law became effective in North Carolina that reestablished the death penalty for first-degree murder.

  17. The History of the Death Penalty: A Timeline

    1977 - Oklahoma becomes the first state to adopt lethal injection as a means of execution. 1977 - Coker v. Georgia. Held death penalty is an unconstitutional punishment for rape of an adult woman when the victim is not killed. December 7, 1982 - Charles Brooks becomes the first person executed by lethal injection.

  18. Critical Case for Issue of Death Penalty

    Technically, at issue be fore the Court is the appeal of William Lee Maxwell, a Negro condemned to death for the rape of a white wom an in Hot Springs, Ark., in 1961. But as Maxwell's law yer ...

  19. Death penalty cases underwent a revision in the's

    Death penalty cases underwent a revision in the's 1970's because: Group of answer choices it was ruled unconstitutional due to cruel and unusual punishment. the US Supreme Court put a stay on all executions. states needed to identify specific criteria, meaning murder committed, for it to be used. both B & C. This question hasn't been solved yet

  20. Case Summaries for Modern Federal Death Sentences

    Anthony Battle — Black. Battle, a federal prisoner with a history of psychiatric problems, was sentenced to death in March 1997 for the murder of a guard in the federal penitentiary in Atlanta, Georgia. The U.S. Court of Appeals for the Eleventh Circuit upheld his conviction and death sentence in 1999.

  21. Corrections Chapter 12 Flashcards

    True. (True or False) African Americans were 10-12% of total U.S. population during 20th century, but were 54% of persons executed in mid-20th century. death penalty trials must have two stages with the first being used to determine guilt and the second stage to decide the sentence.

  22. A comparison of wrongful convictions in death penalty cases between

    Although the 2007 Regulations on Several Issues in Review of Death Penalty Cases provide the SPC with the power of revision or referral, if 'not to approve the original sentence with unclear facts and insufficient evidence', the approach available to the SPC is basically either approval or referral. 81 Since 30% of death sentences without ...

  23. Death penalty cases underwent a revision in the's

    American History American History questions and answers Death penalty cases underwent a revision in the's 1970's because: This question hasn't been solved yet Ask an expert Question: Death penalty cases underwent a revision in the's 1970's because: Death penalty cases underwent a revision in the's 1970's because: Expert Answer