Why executions can be delayed for decades
David Earl Miller has lived on Tennessee’s death row for 36 years while a protracted legal battle raged over the manner and timing of his execution, now scheduled for Dec. 6.
Miller, 61, has served more time on death row than any other living inmate, but it’s not uncommon for executions to take decades. Edmund Zagorski was executed last month after 34 years on death row, and Billy Ray Irick died by lethal injection in August, 32 years after he was sentenced.
The latest wave of executions illustrate a dominant trend with death sentences in Tennessee and nationwide.
“It takes a very long time,” said Dwight Aarons, a law professor at the University of Tennessee who studies death penalty cases. “Even when a death row inmate wants to be executed, it takes some time for that to happen.”
Inmates executed in Tennessee were on death row much longer than the national average of 15 years, according to numbers provided by the Death Penalty Information Center based on 2013 data. But Aarons and other legal experts said long delays are common because of a number of factors.
“Too often the argument is made that defendants and defense attorneys are the cause of the delay,” Aarons wrote in an email. The reality, he said, is “much more complicated.”
The death penalty can add complexity at every level
Part of the delay is caused by the added layer of complexity and scrutiny that comes when a death penalty case moves through the court system. The heightened stakes of an execution often mean defendants get access to added resources and legal representation they might not otherwise have.
A conviction and death sentence triggers a wave of appeals, up to the Tennessee Supreme Court, that tack years onto the process. A 2004 report from the state comptroller’s office pointed to Tennessee’s “13-step appellate death penalty process” as a contributing factor to long delays.
Additional state and federal collateral proceedings can take years as well. In Tennessee, as in other states, disputes about changing execution procedures have spurred their own rounds of challenges that focus on the constitutionality of individual execution methods.
Errors can force more legal work: ‘The law requires us to do this’
Federal public defender Kelley Henry, who represents multiple death row inmates in Tennessee, said changes to laws and death penalty protocols often open “new avenues of relief” for defense attorneys. She pointed to a federal law on the death penalty, passed in 1996, that required most appellate arguments to focus on dense procedural questions that can take longer for the courts to parse.
Increasingly crowded court dockets can push legal challenges to the back burner for years. And new post-conviction attorneys, who are required by law in capital cases, must review – and often re-investigate – their cases.
New evidence or indications of bad legal work during the early phases of a case can be uncovered during the review, she said. Errors can force additional rounds of litigation.
“The law requires us to do this,” she said. “Those issues are real problems in the death penalty and that’s why the statute exists.”
A report on the death penalty from Columbia University’s law school that reviewed death sentences imposed from 1973-1995 found that errors often are rampant in capital cases.
“Serious, reversible error permeates the existing death penalty system,” the report found. “It plays a cruel hoax on taxpayers, the judicial system, innocent defendants and families of murder victims.”
In some cases, errors led an innocent person to death row. The Death Penalty Information Center said 164 death row inmates nationally have been exonerated since 1973.
“The courts have to take that very seriously,” Henry said. “Looking at these cases just takes a lot of time.”
Reach Adam Tamburin at 615-7265986 and atamburin@tennessean. com. Follow him on Twitter @tamburintweets.