Delays and Challenges of Death Row Executions

Deadly Justice, Ch 8 Delays and warehousing on death row We are up to date so no catch-up today Note, however, some updates on the class website, interesting recent stories. How long do people stay on death row before their eventual execution? Empirical data and facts and trends Legal questions Moral / ethical questions Time for questions and review of some material we have skipped over. Baumgartner, POLI 203, Spring 2022 1

Delays: Not uncommon now to be executed after waiting more than 30 years. Baumgartner, POLI 203, Spring 2022 2

Appeals, not trials, are generating these trends. Crime to death sentence Death sentence to execution Baumgartner, POLI 203, Spring 2022 3

About 10 percent volunteer. Note some do it right away, but others only after 20 years of waiting Volunteer is the wrong word, as so many have severe mental illness. Baumgartner, POLI 203, Spring 2022 4

See the NC Dept of Public Safety website on death row https://www.ncdps.gov/Adult-Corrections/Prisons/Death- Penalty/List-of-persons-executed/Executions-1984-2006 Note Henry Hunt, 9/12/03, Robeson County Note Elias Syriani, 11/18/2005, Mecklenberg County https://www.ncdps.gov/our-organization/adult- correction/prisons/death-penalty/list-removed-death-row Note Randy Joe Payne, sentenced on 1/25/1985 Baumgartner, POLI 203, Spring 2022 5

Constitutional questions Lackey v. Texas (1995): Can they make me wait 15 years, and then execute me? Court: Yes. Betterman v. Montana (2016): Can they make me sit in jail for 14 months, post-conviction, without telling me my punishment? Court: Yes. Jones v. Chapell (2014): Can the state of California hold people routinely for 25+ years, then select a random handful for execution? Court: Federal judges have no jurisdiction, since the state of California has not completed its review of the case. (Note the irony can the state take 45 years? 65 years? 100 years to review the case?) Baumgartner, POLI 203, Spring 2022 6

Additional value of death, after 40 years of death row? Judge in Jones v. Chapell (2014): the state has no additional penological interest in execution after such a long delay. Not deterrence. Not retribution. The punishment is already extreme. Judge also noted that no law that mandated this punishment: 45 years in solitary confinement, followed by a random draw to determine which few get executed, would be constitutional. But that s the California system. But this case was never heard on the merits because the state had not completed its review of Mr. Jones case Baumgartner, POLI 203, Spring 2022 7

Delays as a constitutional issue Is it a form of torture? Cruel and unusual? Does the inmate contribute to the delay by making endless appeals ? Does the state contribute to the delay by failing to appoint lawyers, etc.? Do those states such as California, Pennsylvania, (and, increasingly, North Carolina) that rarely execute operate a system with little penological value, but a lot of emotional suffering? Is that constitutionally acceptable? Note: death penalty attorneys consider each day without an execution a success, so they are in no rush to speed things along. For all they know, another Supreme Court decision might come along some time in the future that will help their client. So they do delay Baumgartner, POLI 203, Spring 2022 8

Consequence of delays Insurance that we do not execute the innocent On the other hand: Decreasing use, reduced number of executions Increased cost Reduced penological value Increased torture element / human rights abuse No closure for the family of the victim Increased odds of reversal of the initial sentence; after all, it is zero if the execution takes place Baumgartner, POLI 203, Spring 2022 9

A final bit of randomness: Virginia never had any increase; Texas does not have much of one; other states, and the US as a whole, have a huge increase in delays. Note this chart excludes states like PA and CA that basically just warehouse. Baumgartner, POLI 203, Spring 2022 10

From Chapter 1, updated: since 2006, 11 states have abolished. Some were low- use states, but IL, MD, VA were high use states. Baumgartner, POLI 203, Spring 2022 11

Why did the tide turn? Discovery of innocence Many of the statistical arguments that have NOT held sway with the USSC have had an impact with public opinion and legislative politics. WA, CT, VA: Racial disparities were huge. CO, NJ, NH: Cost arguments were important. Baumgartner, POLI 203, Spring 2022 12

Evolving standards of decency This implies that if the death penalty becomes very unusual, then it could be declared to be cruel AND unusual (note the AND). If only a few states do it, it could violate the equal protection law. Unclear if the US SC will ever go there, certainly not likely in the near future (What a difference the 2016 election made; there was a big plan to abolish by 2018, with one more justice; oops!) Political landscape no longer so pro-death penalty, partly because of Baldus-type studies that have had no impact on the Court, but they have had an impact on public opinion, culture, and political parties. Baumgartner, POLI 203, Spring 2022 13

Multiple venues of policy change Federalism and of separation of powers provide: Go federal, or abolish one state at a time? A legal / judicial strategy, or a legislative / political strategy? Note: California requires a referendum, since it was established that way. Baumgartner, POLI 203, Spring 2022 14

Direction of policy change 1972 to 1995: Increased punitiveness More states adopted Existing laws expanded More crimes Fewer protections for the accused / condemned 1996 to present: Reduced punitiveness 11 states have abolished Dramatically reduced use of the death penalty Political calculus has changed: no longer a litmus test of being tough on crime. No guarantee of the future, but things continue in the downward direction. Baumgartner, POLI 203, Spring 2022 15