Annual totals falling sharply
row and glaring mistakes that have exonerated 155 prisoners in the past 42 years.
Those trends may be squeezing the life out of the death penalty. That doesn’t even take into account the added burden of legal clashes, legislative repeals, and problems finding and administering drugs for lethal injections.
The Supreme Court in June upheld a controversial form of lethal injection by the narrowest of margins, 5-4, thereby giving Oklahoma the green light to reschedule three executions. But courts in many states continue to wrestle with that issue, and the justices have four more death penalty cases on their docket this fall challenging the roles of Kansas juries, Florida judges and Georgia prosecutors.
“The imposition and implementation of the death penalty seems capricious, random, indeed arbitrary,” Supreme Court Justice Stephen Breyer said in dissenting from the court’s June decision allowing the continued use of a problematic sedative for lethal injections. “From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning.”
Even in Texas — long home to the most active execution chamber in the country — the death penalty is on the ropes. The state sentenced 48 people to death as recently as 1999. So far this year? Not a single one.
In Colorado last month, jurors couldn’t agree on the death penalty for James Holmes, who killed 12 people watching The Dark
Knight Rises at an Aurora movie theater three years ago. Their indecision resulted in an automatic sentence of life without parole.
A DYING PENALTY
The sobering conclusion reached by Naylor’s widow — that the lengthy pursuit of the death penalty wasn’t worth the personal sacrifice — illuminates the forces now contributing to a precipitous drop in death sentences across the nation, as well as the declining numbers of those who reach the execution chamber.
Among signs the death penalty may be on life support:
The number of death sentences has dropped from a high of 315 in 1996 to 73 last year — half of them coming in just 2% of the nation’s counties.
The number of prisoners on death row peaked at 3,593 in 2000 but now hovers around 3,000, a 17% decline.
The number of executions peaked at 98 in 1999 and has dropped since then, hitting a low of 35 last year. In the first eight months of this year, 20 prisoners have been killed — 16 of them in Texas and Missouri.
Seven states have repealed the death penalty since 2007. Among the 31 that retain it, governors have imposed a moratorium in four, and most others haven’t executed anyone in years. Only seven states carried out executions in the past two years.
The federal government has not carried out an execution since 2003. An unofficial moratorium has been declared pending the completion of a Justice Department review of the death penalty ordered last year by President Obama.
However, the average time spent on death row for those eventually executed continued to rise until 2011, reaching a peak of 16.5 years before dipping to 15.5 years in 2013. For most condemned prisoners, death sentences are never carried out.
For all the ethical arguments made by death penalty opponents — “abolitionists,” in the words of Supreme Court Justice Antonin Scalia — states now are faced with a more practical problem: how to carry out executions.
All states favor lethal injection as the most humane method, but the supply of drugs that can do the job has been drying up because of a confluence of factors. They include: opposition to capital punishment in Europe, where many of the drugs are produced; federal regulations preventing the importation of drugs that don’t meet U.S. standards; and recalcitrance by doctors and pharmacists who work to save lives, not end them.
Still, the Supreme Court has twice upheld the constitutionality of lethal injection, first in 2008 and then in June, when the justices ruled 5-4 that Oklahoma can use a sedative involved in three botched executions last year. Justice Samuel Alito, writing for the majority, said challengers could not suggest a better alternative.
The ruling gave impetus to states such as Alabama and Mississippi seeking to jump-start executions after a hiatus of several years. But it also rejuvenated legal efforts by groups opposed to the death penalty, who continue to fight against lethal injection protocols in several states.
THE NEXT TO DIE
Caught in the middle are people like Richard Glossip, Oklahoma prisoner #267303, who lost the Supreme Court case in June and now faces execution this Wednesday at the state penitentiary in McAlester. It’s the fourth time a date has been set for his death.
Glossip, twice convicted of masterminding a 1997 murder at the run-down budget motel he managed, still proclaims his innocence. “If they execute me, then I want it to be for a reason,” he said during a lengthy phone interview. “What I want to come out of that is that they finally stop executing innocent people in this country.”
Several states took the high court’s ruling as a reason to rejuvenate the death penalty. Missouri wasted little time resuming executions, putting David Zink to death two weeks later, on July 14. Texas, by far the nation’s leader in executions with 528 since the Supreme Court reinstated capital punishment in 1976, followed suit with an execution in August and has eight more on tap this year.
States from Florida to Montana that have not killed anyone for several years are in court, seeking to rejuvenate dormant death penalties. Some states are establishing backup methods in case lethal injections become impossible. Eight permit electrocution, three allow gas chambers, three allow hanging, and two would use firing squads — as Utah did in 2010 and 2013.
The Supreme Court has chipped away at states’ freedom to choose the ultimate punishment, first in 2002 by exempting those with intellectual disabilities, then in 2005 by exempting juveniles who were younger than 18 when they committed their crimes. In the latter case, decided 5-4, Justice Anthony Kennedy said trends against juvenile death penalties in the states had created a “national consensus.”
Today, there is a similar consensus: Two-thirds of the states have held no executions since 2010. And the percentage of Americans who favor capital punishment is down from 78% two decades ago to 56% today, according to the Pew Research Center.
“There seems to be a massive reassessment underway in this country in terms of capital punishment,” says Kathryn Kase, executive director of the Texas Defender Service, which provides legal aid for those facing death sentences. “Everywhere you look with the death penalty, there’s a problem.”
IN TEXAS, SEEKING AN OVERHAUL
For the past three decades, Painter, a self-described “staunch Republican,” has been the law in Midland County. In a straw hat and snap-button western shirt, the sheriff appears as if drawn from central casting. Blunt-spoken, he is an unwavering supporter of the death penalty. There are people, Painter says, who “need to die” for their crimes.
Yet he readily concedes that the circuitous journey to the execution chamber needs an overhaul. “The process has to be shorter, because that alone amounts to cruel and unusual punishment for the victim’s family and the person who committed the act,” the sheriff says. “That person has to know what punishment he must face.”
In the past two months, two defendants linked to separate high-profile mass killings in the U.S. eluded death sentences for rampages that claimed 18 lives.
A Colorado jury was unable to reach a unanimous decision to execute Holmes, who also wounded 70 people in the Aurora shooting, because of one holdout.
A Washington state prosecutor withdrew the state’s notice to seek death in the murder trial of Michele Anderson, one of two suspects charged in the 2007 slaying of six family members. King County Prosecutor Dan Satterberg acted after a jury could not render a unanimous decision to seek death for Anderson’s accomplice, Joseph McEnroe.
Jeff Blackburn, a Texas civil rights attorney, calls the Holmes sentence a “watershed moment for the death penalty.” Despite concerns for the killer’s mental state, he said, the outcome may have been different had Holmes been tried a decade earlier.
In Texas, the number of death sentences declined from 48 in 1999 to 11 last year. That lower level had remained fairly constant since 2006, after state lawmakers approved life without the possibility of parole as an alternative to death in capital cases.
Prosecutors who seek the death penalty often appear to be acting against historical trends. The federal government won a death sentence against Boston Marathon bomber Dzhokhar Tsarnaev in May but hasn’t put a prisoner to death in more than a decade. Future executions have been put on hold pending a Justice Department review of how the death penalty is administered.
A South Carolina prosecutor this month said she would seek death for Dylann Roof, who allegedly shot nine church worshipers in June, but the state’s execution chamber has been dormant since 2011.
In Kansas, a jury has recommended death for white supremacist Frazier Glenn Cross, convicted of killing three people outside Jewish sites. A formal sentencing is scheduled for November. A death sentence would seem fruitless: The state has not executed anyone in 50 years.
NO EXECUTION, NO REGRETS
Oregon prosecutor Joshua Marquis, a vocal proponent of the death penalty, says the prospect of long and costly campaigns to beat back post-conviction appeals has cut the number of death cases filed in the first place. The quality of defense lawyers has been upgraded with the creation of regional defender systems dedicated to death penalty cases.
Those types of improvements have only added to the costs — and the calendars. A California study in 2008 found the state spent $137 million annually to support the death penalty but would spend only $11.5 million if it was repealed. A Colorado study in 2013 found that death penalty cases took more than five years on average to complete, compared to 11⁄ years for cases in
2 volving life without parole.
“Cases are being bypassed because it’s going to take 15 to 20 years on appeal,” Marquis says. “Do prosecutors consider these things? Absolutely.”
Such increased scrutiny has become commonplace in Odessa, just 23 miles west of Midland’s modest skyline. In recent years, District Attorney Bobby Bland has seen his share of vicious killings, from the torturous murder of 5-year-old Zachery Dominguez in 2011 to the brutal stabbing deaths of prominent local couple Dick and Peggy Glover at their home just four months later. Both cases were “death eligible,” in capital punishment vernacular, but Bland didn’t seek it.
The prosecutor describes the murder of Dominguez, whose stepfather had subjected him to dunkings in scalding water and assaults resulting in a ruptured bowel, as the “most horrible death I’ve ever seen of a child.” Yet his concern that Dominguez’s siblings could be subjected to painful cross-examinations as witnesses prompted him to offer a deal for life without parole. Ralph Martinez Jr., the mother’s boyfriend, readily pleaded guilty.
“I felt that if I could get a plea for life without parole, that would be best for all,” Bland says.
In the Glover case, Bland had a catalog of damning evidence against James Burwell. His DNA was at the bloody crime scene, the couple’s credit card records linked him to purchases made after their deaths, and he was driving their truck when arrested. But Bland warned the family that it could take years to secure his execution.
Dick Glover’s son Skeet Glover, a death penalty proponent who believed Burwell deserved to die, said it was nevertheless an “easy decision” to recommend that the prosecutor seek life without parole because other family members expressed concern about the long and likely painful effort.
“It really wasn’t difficult to get it done,” says Glover, seated in the chair once occupied by his father, founder of The Glover Companies, which services the local energy industry. “As a family, we were going to do this together. I couldn’t help my dad anymore. I couldn’t help (stepmother) Peggy ... and I didn’t want to punish anyone else in the family.”
In less than a week in 2012, Burwell was convicted and sentenced to life without parole.
“There are no regrets,” Glover said.
“Everywhere you look with the death penalty, there’s a problem.” Kathryn Kase, executive director of the Texas Defender Service