Posted on Dec 16, 2022
Note: In March 2023, DPIC learned of one additional death sentence that was imposed in 2022: Leo Boatman, a white male defendant, was sentenced to death on November 9, 2022 in Bradford County, Florida, for the murder of Billy Chapman, a white male. Boatman’s death sentence brings the total to 21. The text below does not reflect that death sentence.
In a year awash with incendiary political advertising that drove the public’s perception of rising crime to record highs, public support for capital punishment and jury verdicts for death remained near fifty-year lows. Defying conventional political wisdom, nearly every measure of change — from new death sentences imposed and executions conducted to public opinion polls and election results — pointed to the continuing durability of the more than 20-year sustained decline of the death penalty in the United States.
The Gallup crime survey, administered in the midst of the midterm elections while the capital trial for the 2018 mass shooting at Marjory Stoneman Douglas High School in Florida was underway, found that support for capital punishment remained within one percentage point of the half-century lows recorded in 2020 and 2021. The 20 new death sentences imposed in 2022 are fewer than in any year before the pandemic, and just 2 higher than the record lows of the prior two years. With the exception of the pandemic years of 2020 and 2021, the 18 executions in 2022 are the fewest since 1991.
One by one, states continued their movement away from the death penalty. On December 13, 2022, Oregon Governor Kate Brown announced the commutation of the capital sentences of all 17 death-row prisoners and instructed corrections officials to begin dismantling the state’s execution chamber. The commutations completed what she called the “near abolition” of the death penalty by the state legislature in 2019. Thirty-seven states — nearly three-quarters of the country — have now abolished the death penalty or not carried out an execution in more than a decade.
Kentucky became the second state to pass a serious mental illness exemption, barring the death penalty for people diagnosed as seriously mentally ill. Kentucky provides for a narrow exemption, requiring that a defendant had a documented diagnosis and active symptoms of mental illness at the time of his or her offense. Ohio passed a somewhat broader serious mental illness exemption in 2021. On January 31, 2022, David Sneed — who faced an April 2023 execution date — became the third person removed from death row under the statute.
Voters in Alabama overwhelmingly approved a constitutional amendment to require the governor to provide advance notice to the attorney general and the victim’s family before granting a reprieve or commutation to any person sentenced to death. The amendment, which had no organized opposition, is expected to have little practical impact: Alabama governors have commuted only one death sentence in the past fifty years, and none since 1999.
Idaho, Florida, and Mississippi each passed laws designed to make it easier for the states to perform executions by reducing transparency in the execution process. New laws in Idaho and Florida will conceal from the public the identity of producers and suppliers of execution drugs. In both states, proponents of the bills claimed, without evidence, that the measures were necessary to protect drug suppliers from intimidation or harassment. Similar unfounded claims have been made in other states to justify secrecy policies.
Idaho’s bill initially failed on a tie vote in committee. Historically, that had meant that that a bill was off the table for the remainder of the legislative session. But in a controversial parliamentary decision that deviated from past legislative practice, committee chairman Sen. Todd Lakey ruled that a tie vote is a “nullity” that “decides nothing” and allowed the committee to reconsider the bill. In the first test of source secrecy after the passage of the bill, the Idaho Department of Corrections called off the scheduled December 15, 2022 execution of Gerald Pizzuto, Jr. saying it was unable to find any source willing to sell it execution drugs.
Mississippi implemented a law giving unprecedented discretion to the Commissioner of Corrections in determining the method of execution. Prior to July 1, 2022, the state gave prisoners a choice of lethal injection, electrocution, firing squad, or nitrogen hypoxia. Under the new law, the Commissioner must notify a prisoner of which method will be used within seven days of an execution warrant being issued. There is no provision for transparency regarding the Commissioner’s selection of the method, and the law provides no guidance on how the method should be selected.
Legislators in fifteen states and U.S. Congress introduced bills to abolish the death penalty. Repeal bills received serious consideration in two states: Utah and Ohio. In Utah, an abolition bill sponsored by two Republican lawmakers failed in committee on a 6-5 vote. After the vote, bill sponsor Rep. V. Lowry Snow said, “This is not a matter of if, it is when the time is right, Utah will move forward.” A bipartisan repeal bill in Ohio is still pending, after four hearings were held in 2021.
Outgoing Oregon Governor Kate Brown announced on December 13 the commutation of the death sentences of all 17 people on Oregon’s death row. Governor Brown commuted the death sentences to sentences of life without parole and ordered the dismantling of the state’s execution chamber.
Challenges to methods of execution remained at the forefront of death penalty litigation and controversy.
In South Carolina, the executions of Brad Sigmon and Richard Moore were halted in April to allow for a legal challenge to the state’s execution protocols. The state had first set executions for the men by lethal injection without having a supply of drugs to carry them out, then scheduled executions by electric chair without complying with a state-law requirement that they be provided the option to die by firing squad. In Moore’s legal filing, he said, “I believe this election is forcing me to choose between two unconstitutional methods of execution.” In September, a South Carolina trial court issued an injunction against executions by firing squad or electric chair after hearing four days of expert testimony. Judge Jocelyn Newman found that the methods violated the state constitution’s prohibition on “cruel, unusual, and corporal punishments.” The South Carolina Supreme Court is scheduled to hear the appeal in the case January 5, 2023.
Governors in two southern states put executions on hold after serious problems in carrying out their lethal-injection protocols. Tennessee Governor Bill Lee announced on May 2 that he was pausing all executions scheduled for 2022 and ordering an “independent review” of the state’s execution protocol to address a “technical oversight” that led him to halt Oscar Smith’s execution less than a half-hour before it was scheduled to be carried out on April 21, 2022. In a series of articles published later in May, The Tennessean revealed mistakes and questionable conduct at every step of the lethal-injection process, from the compounding of the execution drugs by a pharmacy with a problematic safety history, to testing procedures, to the storage and handling of the drugs once they were in the possession of the Tennessee Department of Correction (TDOC).
In November, Alabama Governor Kay Ivey also halted executions indefinitely after the Alabama Department of Corrections (ADOC) botched three consecutive executions. ADOC personnel struggled for three hours behind a closed curtain to establish an IV line to execute Joe James Jr., in the longest botched lethal-injection execution in U.S. history. ADOC called off the executions of Alan Miller and Kenneth Smith when it became clear that the execution team would not be able to set an intravenous execution line before the warrant expired. Ivey called for a “top-to-bottom review” of the execution process, but unlike Tennessee’s independent investigation, Ivey directed the Department of Corrections to investigate its own mistakes.
Florida became the seventh state since 2017 to address the conditions of confinement on death row. The state ended its practice of automatically incarcerating all death-sentenced prisoners in permanent solitary confinement. The Florida Department of Corrections agreed to the action as part of a settlement of a federal civil rights lawsuit brought by eight prisoners who alleged that the state’s death-row conditions were “extreme, debilitating, and inhumane, violate[d] contemporary standards of decency, and pose[d] an unreasonable risk of serious harm to the health and safety.” Five other states ended automatic prolonged solitary confinement for their death rows: Arizona, Louisiana, Pennsylvania, South Carolina, and Virginia (which subsequently abolished its death penalty). A sixth state, Oklahoma, has not ended its practice of keeping death-row prisoners in solitary confinement for 23 hours a day, but has implemented some other changes, including eliminating incarceration in windowless cells, permitting contact visitation, and providing some opportunity for outside recreation.
Throughout 2022, the few states that carried out executions exhibited a callous disregard for fair process and public or judicial oversight of their actions. The most notable example was Oklahoma, which scheduled 25 executions over the course of 29 months. The state court’s execution orders came two weeks after the prisoners filed notice in the U.S. Court of Appeals for the Tenth Circuit that they intended to appeal federal district Judge Stephen Friot’s ruling upholding the constitutionality of the state’s controversial execution protocol. Oklahoma began to execute prisoners before the Circuit Court could rule on the prisoners’ appeal. The state previously executed four prisoners while the federal trial on the drug protocol was pending. Among those slated for execution are prisoners with serious mental illness, intellectual disability, trauma, and significant claims of innocence. Oklahoma executed two seriously mentally ill prisoners without judicial review of their claims of mental incompetency and scheduled another for execution even though he was incarcerated in another jurisdiction and the state had not made arrangements for transfer of custody.
Alabama carried out — or attempted to carry out — several executions in 2022 in violation of its own law. When the Alabama legislature authorized nitrogen hypoxia as a method of execution in 2018, it afforded prisoners a narrow 30-day window in which to designate it, rather than lethal injection, as the means by which they would be put to death. Alabama prosecutors then selected for execution prisoners whom they believed had not designated nitrogen hypoxia as the method of their execution.
However, as the Alabama federal district court and the U.S. Court of Appeals for the Eleventh Circuit found, corrections officials “chose not to keep a log or list of those inmates who submitted an election form choosing nitrogen hypoxia” and lost or misplaced the election forms submitted by some death-row prisoners. Prison guards also collected, but did not turn in, forms submitted by other prisoners. Further, when it distributed the forms, ADOC provided no explanations of the form or assistance in filling it out to prisoners with intellectual impairments. In court proceedings over potential violations of condemned prisoners rights, the Alabama Attorney General’s office materially misrepresented the role prison officials played in the designation process and was sanctioned for its misconduct.
Lawyers for Matthew Reeves, an intellectually disabled death-row prisoner, alleged that he would have opted for execution by nitrogen gas and that Alabama’s failure to offer him accommodations for his intellectual disability violated his rights under the Americans with Disabilities Act (ADA). After reviewing thousands of pages of documents and conducting a seven-hour hearing that included testimony from prison officials and a defense mental health expert, the district court concluded that Reeves had demonstrated a substantial likelihood that he would succeed on his ADA claim and issued a preliminary injunction barring the state “from executing [Reeves] by any method other than nitrogen hypoxia before his [ADA] claim can be decided on its merits.” A three-judge panel of the Eleventh Circuit unanimously affirmed the district court but in a 5-4 execution night vote on January 27, the U.S. Supreme Court vacated the injunction and Reeves was executed.
Alabama unsuccessfully attempted to execute Alan Miller on September 22 after he challenged the state’s authority to execute him by lethal injection. Miller alleged that he had designated execution by nitrogen hypoxia and requested a copy of the form, but Alabama prison officials said they had no record of his having submitted the form. Judge R. Austin Huffaker, Jr. of the U.S. District Court for the Middle District of Alabama found that “Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the [ADOC],” along with “circumstantial evidence” that ADOC lost or misplaced his form. Huffaker issued an injunction prohibiting the state from executing Miller by means other than nitrogen hypoxia and the Eleventh Circuit denied Alabama’s motion to vacate the district court’s ruling. In a 5-4 vote, the U.S. Supreme Court lifted the injunction and allowed the execution to proceed, but Miller’s execution was called off when the execution team was unable to set an IV line.
Defendants in two states brought challenges to the death-penalty jury selection process. Both argued that the combination of the “death-qualification” process — which disqualifies potential jurors from serving in a capital case because of their expressed opposition to the death penalty — and discretionary jury strikes discriminatorily disenfranchised African American jurors and produced unrepresentative juries incapable of reflecting the views of the community.
In North Carolina, lawyers for Wake County capital defendant Brandon Hill presented a study by law professors Catherine M. Grosso and Barbara O’Brien that documented statistically significant evidence of racial disparities in death-qualification. The study of eleven years of capital prosecutions in the county found that Black potential jurors were removed “at 2.16 times the rate of their white counterparts.” Controlling for jurors who could have been excused for cause on other grounds, they found that otherwise qualified “Black venire members were removed on this basis at 2.27 times the rate of white venire members.” The prosecution’s racially disparate exercise of discretionary peremptory strikes further diluted Black representation on death penalty juries. Grosso and O’Brien found that the prosecution peremptorily “struck Black potential jurors at 2.04 times the rate it struck white venire members.” Their research showed that “[t]he cumulative effect of the death qualification process and the state’s exercise of peremptory strikes meant that Black potential jurors were removed at almost twice the rate of their representation in the population of potential jurors,” while white jurors were removed at 0.8 times their representation in the general venire.
In Florida, lawyers representing Dennis Glover in his capital resentencing trial presented research from criminal justice professor Dr. Jacinta M. Gau, who reviewed the jury selection practices in the 12 capital cases tried in Duval County (Jacksonville) from 2010 through 2018. Dr. Gau found that 33.8% of Black potential jurors were excluded by death qualification, along with 38.0% of other jurors of color, while only 15.5% of white jurors were excluded. While Black jurors comprised 25.9% of the general venire, they constituted 39.3% of those disqualified because of their views against the death penalty. Likewise, while other jurors of color (Latinx, Asian, or other race) comprised 8.9% of the overall jury pool, they constituted 15.2% of those disqualified because of opposition to capital punishment. By contrast, white jurors comprised 65.4% of the entire venire, but only 45.5% of death-qualification strikes. Again, the prosecutor’s discretionary strikes compounded the racial disparities: “fully two thirds of Black women otherwise eligible, qualified, and willing to serve were excluded by the combination of death qualification and prosecutor peremptory strikes, as were 55% of Black men,” Gau wrote.
Research and Investigations
On June 29, 2022, timed to coincide with the fiftieth anniversary of the U.S. Supreme Court’s decision in Furman v. Georgia that ushered in the modern era of the U.S. death penalty, DPIC released our Death Penalty Census, our effort to identify and document every death sentence imposed in the U.S. since Furman. The census captures more than 9,700 death sentences imposed between the Furman ruling and January 1, 2021.
The data from the census document that 49 years into the modern era, the single most likely outcome of a death sentence imposed in the United States is by far that the defendant’s conviction or death sentence will be overturned and not re-imposed. Nearly half of the death sentences imposed since 1972 (49.9%) have been reversed as a result of court decisions. The next most likely outcome (23.9%) is that the sentence is still active, and the defendant is still on death row. By comparison, fewer than one in six (15.7%) death sentences have ended in execution. 7.3% of death sentences effectively became death-in-prison life sentences, as death-row prisoners died before their sentence was carried out or while their appeals were still pending in the courts. Another 2.9% of sentences were decapitalized by executive grants of clemency.
Our analysis of the data confirmed the increasing geographic arbitrariness of the U.S. death penalty and that it is disproportionately carried out in a small number of states and counties characterized by outlier practices and lack of meaningful judicial process. Fewer than 2.4% of all counties in the U.S. (just 75 counties) accounted for half of all death sentences imposed in state courts since 1972.
Prosecutions in just five counties accounted for more than 1/5 of all executions in the U.S., while prosecutions in just 2% of U.S. counties accounted for half of all U.S. executions. 84% of U.S. counties had not had any executions in a half-century.
Just 34 counties — fewer than 1.1% of all the counties in the U.S. — accounted for half of everyone on death row in U.S. state death rows. 2% of U.S. counties accounted for 60.8% of all state death-row prisoners. 82.8% of U.S. counties did not have anyone on death row.
Outlier practices disproportionately contributed to death sentences and executions. Counties in Alabama and Florida, which authorized non-unanimous death sentences, imposed more death sentences and had higher per capita death-sentencing rates and current death-row populations than other counties of similar size. States with the highest execution rates also tended to have the worst access to meaningful judicial review. More than 100 people were executed in Texas after U.S. Supreme Court case precedent had already established the unconstitutionality of their death sentences. 36.4% of all Florida executions, or 1 in every 2.75 executions, came despite U.S. Supreme Court decisions clearly establishing the unconstitutionality of their death sentences.
Our prosecutorial accountability project, the first results of which were also released on the 50 th anniversary of Furman, found that official misconduct is rampant in death penalty cases. Our research, which is still ongoing, identified more than 550 cases in which a capital conviction or death sentence was overturned or a death-row prisoner was exonerated as a result of prosecutorial misconduct. That means that at least 5.6% of all death sentences that have been imposed in the United States since 1972 have been reversed because of prosecutorial misconduct or resulted in a misconduct-related exoneration.
An important investigation by National Public Radio shined a light on one of the less appreciated consequences of capital punishment: its debilitating impact on the prison personnel who are tasked with carrying it out. Reporter Chiara Eisner interviewed 26 current or former corrections workers and others who had been involved in executions carried out by seventeen states and the federal government, finding that corrections personnel who participate in executing prisoners experience emotional trauma so profound that it often changes their views about capital punishment.
“Most of the workers NPR interviewed reported suffering serious mental and physical repercussions,” Eisner reported. “But only one person said they received any psychological support from the government to help them cope.” Of all the people whose work required them to witness executions in 13 states — Virginia, Nevada, Florida, California, Ohio, South Carolina, Arizona, Nebraska, Texas, Alabama, Oregon, South Dakota, and Indiana — none said they still support the death penalty, including those who were in favor of capital punishment when they started their jobs.
Samuel Randolph IV was exonerated in April 2022 after being wrongfully incarcerated for 20 years. Randolph is Pennsylvania’s 11 th death-row exoneree, with five of those exonerations occurring since 2019. All five of those exonerations have involved both official misconduct and perjury or false accusation. Four of the five have also involved inadequate legal representation at trial.
Randolph was sentenced to death in 2003 for the murders of two men in a Harrisburg bar in 2001. He had long maintained his innocence, alleging that police and prosecutors withheld exculpatory evidence in the case and selectively refused to test DNA evidence that could exclude him as the killer. He was represented at trial by a lawyer who, while running for district attorney in a neighboring county, had failed to investigate Randolph’s case. After a complete breakdown in communications between Randolph and appointed counsel, his family’s sale of property raised enough money to hire private counsel. However, the trial court refused to grant counsel even a three-hour continuance to accommodate a previously scheduled, unrelated court appearance. Randolph alleged that the court’s ruling violated his Sixth Amendment right to be represented by counsel of choice.
A federal district court held a hearing on these claims in 2019. In May 2020, it granted Randolph a new trial on the Sixth Amendment violation, mooting the necessity to address Randolph’s innocence claims. In July 2021, the U.S. Court of Appeals for the Third Circuit upheld that ruling. Two days after the U.S. Supreme Court declined to review the county prosecutors’ appeal, District Attorney Fran Chardo filed a motion to terminate the prosecution of Randolph. Refusing to concede Randolph’s innocence, Chardo wrote that “retrial is not in the public interest at this time” because “[t]he police affiant and the police detective who handled the evidence collection in this case have both died” and “[o]ther witnesses have become unavailable for other reasons.”
In 2021, while the Dauphin County prosecutors’ request for review by the U.S. Supreme Court was pending, Chardo offered Randolph an “Alford” plea in which he could continue to maintain his innocence but would have to admit that prosecutors had sufficient evidence to convict. Under the deal, Randolph would be released for time served but his convictions would remain on his record. “I didn’t do this. Innocent people don’t plead guilty — as bad as I want to go home,” Randolph told Penn Live.
In August 2022, a Cook County, Illinois judge granted a motion filed by State’s Attorney Kim Foxx to dismiss all charges against Marilyn Mulero, who was framed for the murder of an alleged gang member by disgraced former Chicago detective Reynaldo Guevara. Mulero’s was one of seven cases Foxx moved to dismiss, but the only case in which a defendant had been sentenced to death. Two additional people framed for murder by Guevara have since been exonerated.
Guevara has been accused of framing defendants of murder in more than 50 cases by beating, threatening, and coercing suspects to obtain false confessions. Thirty-three wrongful convictions tied to Guevara’s misconduct have been overturned to date, including death-row exoneree Gabriel Solache in 2017.
Mulero’s case follows the same pattern. In 1992, she was interrogated by Guevara and former Chicago Police Detective Ernest Halvorsen over the course of a 20-hour period, during which she was denied sleep and access to counsel and was threatened with the death penalty and the loss of her two children if she did not confess. She eventually signed a statement prepared by the detectives confessing to one of two murders of gang members who were thought to have been shot in retaliation for a prior gang killing.
After the trial court denied her motion to suppress the confession, Mulero’s court-appointed lawyer advised her to plead guilty, which she did in September 1993. A jury was empaneled for the sentencing phase of trial and sentenced her to die. In May 1997, the Illinois Supreme Court overturned her conviction because her trial prosecutor improperly cross-examined her about the suppression motion and then argued to the jury that her answers indicated a failure to express remorse. She was resentenced to life without parole in 1998.
Governor J.B. Pritzker commuted her sentence to time served in April 2020, after Mulero had spent 28 years in prison, five of them on death row. She is the third female death-row exoneree in the U.S. since 1973 and the 16 th exoneree from Cook County — the most of any county in America. At least 14 of the Cook County exonerations have involved official misconduct by police or prosecutors, and eight have involved coerced false confessions.
DPIC’s 2021 report, The Innocence Epidemic, explains that Cook County’s then 15 death-row exonerations “are directly related to endemic police corruption, as the notorious ‘Burge Squad,’ operating under Chicago Police Commander Jon Burge, and disgraced Chicago detective Reynaldo Guevara systematically tortured or coerced innocent suspects into confessing to murders they did not commit. Illinois’ high rate of wrongful convictions in death cases was a major factor in the state’s 2011 repeal of capital punishment, as state officials decided there was no way to correct the inaccuracy of the state’s death penalty system.”
DPIC also added two California cases to its Exoneration List: Eugene Allen, who was wrongfully convicted and sentenced to death for the murder of a prison guard in 1976 and acquitted on retrial in 1981; and Barry Williams, wrongfully convicted in 1986 and exonerated in 2021 of an allegedly gang-related street shooting in Los Angeles. Official misconduct was present in both of their cases.
All four exonerees are people of color: Randolph, Allen, and Williams are Black; Mulero is Latina. Nearly two-thirds of all U.S. death-row exonerees have been people of color (123 of 190, 64.7%). 54.2% percent are Black; 8.9% are Latinx.
DPIC’s review of National Registry of Exonerations data from 2021 once again found that the use or threat of the death penalty by police or prosecutors led to wrongful convictions in numerous other cases in which the death penalty was not imposed. Of the seven wrongful capital prosecutions that resulted in exonerations in 2021, three resulted in death sentences (Sherwood Brown and Eddie Lee Howard in Mississippi and Barry Williams in California.) Juries in three other states sentenced other wrongfully capitally prosecuted defendants to life without parole — James Allen in Illinois, George Bell in New York, and Devonia Inman in Georgia. In the seventh wrongful capital prosecution, Georgia prosecutors secured a murder conviction against Dennis Perry and then used the threat of an imminent penalty-phase trial to coerce him to agree to waive any guilt-phase appeals in exchange for being spared the death penalty. In five exonerations in non-capital murder prosecutions, witnesses who had pled guilty to avoid the death penalty or had been threatened with the death penalty if they did not cooperate provided false testimony that led to wrongful murder convictions.
Official misconduct was the leading cause of the wrongful convictions, present in 10 of the 12 exonerations. Race was also a significant factor: six of the seven who were wrongfully capitally prosecuted — and all three who were sentenced to death — are Black; overall, nine of the exonerees are African American. The exonerees averaged 26.5 years between conviction and exoneration, collectively losing more than 300 years to the wrongful convictions. But African-American exonerees averaged 27.8 years from conviction to exoneration, nearly 23% longer than the average of 22.7 years it took to clear white exonerees.
Richard Glossip, who has long maintained his innocence, received two reprieves this year from Oklahoma Governor Kevin Stitt following significant findings of innocence from an independent investigation into his case. Stitt issued the first 60-day reprieve in August 2022, pushing Glossip’s September 2022 execution date to December 2022, to provide time for the Oklahoma Court of Criminal Appeals (OCCA) to determine whether to grant an evidentiary hearing to address innocence claims. Stitt granted a second reprieve on November 2, 2022, again “to allow time for OCCA to address pending legal proceedings,” resetting Glossip’s December 2022 execution date to February 2023. Later in November, after the second reprieve, the OCCA twice denied Glossip’s petitions for a hearing to review evidence on his innocence claims.
In May 2021, 28 Republican and six Democratic Oklahoma legislators called upon Governor Stitt and the Oklahoma Pardon and Parole Board to conduct an independent investigation into Glossip’s case, after his lawyers had uncovered new evidence supporting his claims of innocence. Glossip was originally sentenced to death for the 1997 murder of Barry Van Treese, his boss at an Oklahoma City motel. The prosecution had no physical evidence linking him to the crime, only the self-serving testimony of his co-defendant, Justin Sneed, who was able to avoid the death penalty by claiming that Glossip had hired him to commit the crime.
The legislators subsequently commissioned an independent pro bono investigation by the national law firm, Reed Smith, LLP. Days before the release of the law firm’s report, which exposed significant evidence of government misconduct and destruction of evidence, Oklahoma Attorney General John O’Connor filed a motion to set execution dates for Glossip and 24 other death-row prisoners. On July 1, 2022, the same day that Glossip’s lawyers filed a motion for an evidentiary hearing on his innocence claim, the state court set the 25 execution dates, scheduling an execution nearly every month from August 2022 through December 2024.
Since 2014, Glossip has been scheduled for execution eight times, and he has been served his last meal three separate times. He received a last-minute reprieve from then-Governor Mary Fallin in September 2015 when it was revealed that the state had obtained an incorrect drug for the execution. Glossip’s case has not only received bipartisan support from state legislative officials but has also been examined by the Inter-American Commission of Human Rights (IACHR), which issued a precautionary measure in favor of Glossip in March 2022. In a press release on the issuance of the precautionary measure, the IACHR identified Glossip’s 23 years in solitary confinement and the repeated, and often last-minute, postponement of scheduled executions as “conditions of detention incompatible with international human rights standards.”
After the OCCA denied Glossip’s motions to permit him to present his new evidence of innocence in court, State Representative Kevin McDugle (R-Broken Arrow), who led the call for an investigation, authored a blistering op-ed in The Oklahoman saying: “if the [Oklahoma Court of Criminal Appeals] cannot grant a hearing on this flimsy death penalty conviction, my confidence as a legislator in our state’s judicial system, and its ability to make just decisions and take responsibility for its failures, has been destroyed. … Who will take responsibility for this travesty? Where is the backbone that will stand for justice? The members of the Oklahoma Court of Criminal Appeals have let us all down. I pray new leadership in the offices of the attorney general and Oklahoma County district attorney find the strength to do what is needed to right this terrible wrong. We cannot kill an innocent man!”
The innocence case of Texas death-row prisoner Melissa Lucio has also been the subject of international attention and bipartisan legislative action. Lucio was sentenced to death in 2008 on charges that she allegedly beat her two-year-old daughter, Mariah, to death. Lucio’s lawyers, with the support of expert testimony, have presented expert affidavits that Mariah was not murdered at all, but likely died from head trauma following an accidental fall two days prior to her death. The victim of physical, emotional, and sexual abuse from a young age, Lucio has been diagnosed with PTSD, battered woman syndrome, and depression, and has intellectual impairments, all of which, forensic and domestic abuse experts say, made her more vulnerable to coercive interrogation. After five hours of aggressive questioning by police on the night of Mariah’s death, Lucio acquiesced to police pressure, saying, “I guess I did it.”
In July 2019, a panel of the U.S. Court of Appeals for the Fifth Circuit overturned Lucio’s conviction, one of only two times the court had granted relief in more than 150 appeals of Texas death sentences imposed this century. However, in February 2021, the full Circuit voted 10-7 to reconsider that opinion and reinstated her conviction and death sentence. Supported by amicus briefs filed by a broad coalition of advocates for victims of domestic and gender-based violence, former prosecutors, legal scholars, and innocence organizations, Lucio sought review in the U.S. Supreme Court. However, in October 2021, the U.S. Supreme Court denied review of Lucio’s case.
Texas then scheduled Lucio’s execution for April 27, 2022. In response, Lucio filed a motion to vacate the death sentence and remove the judge and district attorney in her case because of conflicts of interest stemming from their employment of key members of Lucio’s original defense team.
In February, the IACHR granted Lucio a precautionary measure asking the state to refrain from execution until her case is reviewed and to ensure detention conditions align with international human rights standards. Lucio, who has spent 14 years in solitary confinement, is housed in a concrete room the size of a parking space in a building containing female prisoners who suffer from extreme mental illness. Lucio “hears screaming, cursing, banging, and slamming doors throughout the prison,” and is frequently exposed to “airborne chemical agents, which are used to subdue prisoners who are deemed to be acting out,” according to her petition.
In March, nearly 90 members of the Texas House of Representatives from across the political spectrum, led by Rep. Jeff Leach (R-Plano) issued a call for the Texas Board of Pardons and Paroles and Governor Greg Abbott to grant clemency to Lucio. Her clemency petition included statements of support from jurors, forensic and medical experts, anti-domestic violence activists, religious leaders, exonerees, and Lucio’s siblings and children. In a heated legislative hearing, Leach and other legislators pressed Cameron County District Attorney Luis Saenz to withdraw Lucio’s death warrant. He ultimately agreed to do so if the Texas Court of Criminal Appeals (TCCA) did not first issue a stay.
Days before the scheduled execution, as the state Board of Pardons and Paroles was set to consider Lucio’s clemency petition, the TCCA stayed Lucio’s execution and granted her review of four issues: that prosecutors obtained her conviction using false testimony, that the jury’s exposure to previously unavailable scientific evidence would have resulted in her acquittal, that she is in fact innocent, and that prosecutors suppressed favorable evidence that was material to the outcome of her trial. The court granted the stay “pending resolution of the remanded claims.”
On December 13, Oregon Governor Kate Brown announced she would grant clemency to all 17 people on the state’s death row. “I have long believed that justice is not advanced by taking a life, and the state should not be in the business of executing people—even if a terrible crime placed them in prison,” Brown said. She described her action as “consistent with the near abolition of the death penalty” by the state legislature in 2019, when it enacted a new law that significantly limited the circumstances in which the death penalty could be applied. The Oregon Supreme Court then declared that the use of the death penalty against those whose crimes were no longer subject to capital punishment violated the Oregon constitution’s prohibition against disproportionate punishment, a ruling that experts said would effectively clear death row. Brown’s blanket commutation was the seventh time in the last 50 years that a governor had commuted all of a state’s death sentences. Governor Mark Hatfield also commuted the sentences of all of Oregon’s death-row prisoners after voters passed a statewide referendum abolishing capital punishment in 1964.
The case of terminally ill death-row prisoner Gerald Pizzuto Jr., put the Idaho governor and pardons board at odds, forcing the state supreme court to intervene in the matter. Pizzuto, who experienced a traumatic childhood characterized by chronic severe physical and sexual abuse, suffers from late-stage bladder cancer, chronic heart and coronary artery disease, coronary obstructive pulmonary disease (COPD), and Type 2 diabetes with related nerve damage to his legs and feet. In December 2021, the Idaho Commission of Pardons and Parole voted 4-3 to recommend clemency for Pizzuto. The following day, Governor Brad Little rejected the recommendation, leading to a legal battle over his constitutional authority to do so.
An Idaho trial court ruled on February 4, 2022 that Little did not have the power to reject the board’s clemency ruling and vacated Pizzuto’s death sentence, only to have it later reinstated by the Idaho Supreme Court in an August 23 ruling. Prosecutors then sought and obtained a new death warrant, setting Pizzuto’s execution for December 15. On November 30, the Director of the Idaho Department of Corrections provided notice that the state was unable to obtain the lethal drugs necessary to carry out the execution, and the state attorney general’s office notified the court that the state would allow Pizzuto’s death warrant to expire.
After decades of litigation, Tennessee death-row prisoner Pervis Payne, who has long maintained his innocence, was found to be ineligible for the death penalty because of intellectual disability and in January 2022 was resentenced to two concurrent life sentences. Payne, who has been in prison for 34 years, will be eligible to apply for parole in five years. Shelby County District Attorney Amy Weirich, who had opposed DNA testing of evidence Payne said could prove his innocence and had fought granting him a hearing to prove his ineligibility for the death penalty, later conceded that he was intellectually disabled. However, she argued to the court that he should be resentenced to two consecutive life sentences, effectively condemning him to death in prison.
International bodies have routinely encouraged the suspension and abolition of death sentences for those with psychosocial and intellectual disabilities, as noted by both the United Nations Human Rights Committee and the Committee on the Rights of Persons with Disabilities. Although the 2002 U.S. Supreme Court case Atkins v. Virginia established the unconstitutionality of executing people with intellectual disability, many states, including Tennessee, have been slow to implement the exemption retroactively. Scheduled for execution in December 2020, Payne received a reprieve because of the COVID-19 pandemic. The Tennessee legislature subsequently passed new legislation that went into effect in May 2021 that allowed Payne, whose IQ scores place him within the intellectually disabled range, to petition the court to vacate his death sentence.
Payne, who is Black, was convicted and sentenced to death in 1987 for the murders of a white 28-year-old woman and her 2-year-old daughter. In a trial marred by prosecutorial misconduct and racial bias, prosecutors alleged without evidence that Payne — a pastor’s son with no prior criminal record, no history of drug use, and no history of violence — had been high on drugs and committed the murder after the victim rebuffed his sexual advances. After a 2019 court order compelled the state to provide the defense access to evidence, DNA testing identified the DNA of the two victims and an unknown male on the handle and blade of the knife used. Payne’s DNA was found only on a portion of the knife that was consistent with his account of how he had tried to assist the victims.
Alongside the systemic problems that have become commonplace in U.S. executions — vulnerable defendants, claims of innocence, inadequate defense, and denial of meaningful judicial review — 2022 featured a shocking number of botched and failed executions. In what could be categorized as “The Year of the Botched Execution,” significant problems were reported in all three of Arizona’s executions, and Alabama’s executions went so wrong that Governor Kay Ivey paused all executions and ordered a “top-to-bottom review” after one execution resulted in “carnage” and the remaining two had to be called off when execution personnel repeatedly failed to establish an IV line.
Several states scheduled executions in violation of their own protocols, without the means to carry them out, or without making arrangements to obtain custody of a person incarcerated in another jurisdiction. A South Carolina trial court struck down that state’s attempted use of the electric chair and firing squad as alternatives to lethal injection, and Tennessee Governor Bill Lee halted all executions in his state and appointed an independent counsel to investigate major failures by corrections officials to comply with the state’s execution protocol.
As in past years, the vast majority of those executed in 2022 were individuals with significant vulnerabilities. At least 13 of the 18 people executed in 2022 had one or more of the following impairments: serious mental illness (8); brain injury, developmental brain damage, or an IQ in the intellectually disabled range (5); and/or chronic serious childhood trauma, neglect, and/or abuse (12). Three prisoners were executed for crimes committed in their teens: Matthew Reeves and Gilbert Postelle were 18 at the time of their crimes; Kevin Johnson was 19. At least four of the people executed this year were military veterans: John Ramirez, Benjamin Cole, Richard Fairchild, and Thomas Loden Jr.
The people executed in 2022 reflected the aging death-row population in the U.S. Six of the 18 people executed were age 60 or older. Carl Buntion, who was 78 years old when he was executed in Texas, was the third-oldest person ever executed in the United States. Five had significant physical disabilities, including Clarence Dixon, who was blind, and Frank Atwood, who used a wheelchair as a result of a degenerative spinal condition. Half (9) of those executed in 2022 had spent at least 20 years on death row, a period of time that has been recognized by international human rights bodies as constituting “excessive and inhuman” punishment, in violation of U.S. human rights obligations. Though these lengthy stays on death row are often the result of legally necessary appeals, the isolation, poor access to healthcare, and harsh conditions exacerbate prisoners’ physical and mental health conditions.
Donald Grant was executed in Oklahoma on January 27 using a lethal-injection protocol that, at the time, was still under review by a federal court. He would be the first of four people executed in 2022 who were convicted in Oklahoma County, raising the county’s execution total to 46, the fourth most of any U.S. county in the past half-century. Grant’s lawyers had asked the Oklahoma Pardon and Parole Board to commute his death sentence, citing his diagnosis with schizophrenia and his brain damage. “Executing someone as mentally ill and brain damaged as Donald Grant is out of step with evolving standards of decency,” they argued at his clemency hearing. The board voted 4-1 to deny commutation.
Matthew Reeves, the second prisoner executed in 2022, raised claims that he was ineligible for execution because he was intellectually disabled and that Alabama had violated the Americans with Disabilities Act (ADA) by failing to offer him accommodations for his disability in order to allow him to select his method of execution. A federal appeals court had overturned Reeves’ death sentence in part because his trial lawyer failed to present expert testimony on his intellectual disability, but the U.S. Supreme Court, voting along partisan lines, reversed that decision in 2021. The Court also rejected, in a 5-4 decision issued 1½ hours after his execution was scheduled to begin, a claim that the state had violated Reeves’ rights under the ADA when it distributed a form to death-row prisoners requiring them to choose between lethal injection and nitrogen hypoxia. The form required an 11 th -grade reading level to understand. However, Reeves, who had an IQ in the upper 60s to low 70s and read at a first-grade level, was offered no assistance in completing the form. When Reeves did not fill out the form, prosecutors sought and obtained a death warrant scheduling his execution by lethal injection. No one who elected nitrogen suffocation was scheduled for execution. A federal district court issued an injunction, finding that Reeves had demonstrated substantial likelihood of success on the merits of his claim, and the U.S. Court of Appeals for the Eleventh Circuit upheld the injunction. Five justices on the U.S. Supreme Court voted to lift the injunction, allowing Alabama to execute Reeves.
Gilbert Postelle was 18 years old, intellectually impaired, mentally ill, and addicted to methamphetamines when, at the direction of his mentally ill father, he, his brother, and a fourth man participated in the fatal shootings of four people. His father delusionally believed that one of the men had been responsible for a motorcycle accident that had left the father seriously brain damaged. Postelle was sentenced to death for two of the shootings — the only person sentenced to death for the killings. His father was found incompetent to stand trial, and the others received life sentences. Oklahoma executed Postelle on February 17, just 11 days before a federal judge began hearing evidence on the constitutionality of the state’s execution protocol.
Carl Buntion was Texas’ oldest death-row prisoner and, just days before his scheduled April 21 execution, had been taken to the hospital suffering from pneumonia and blood in his urine. In his clemency petition, which was denied on April 19, his lawyers wrote, “Mr. Buntion is a frail, elderly man who requires specialized care to perform basic functions. He is not a threat to anyone in prison and will not be a threat to anyone in prison if his sentence is reduced to a lesser penalty.” Counsel noted that Buntion “ha[d] been cited for only three disciplinary infractions” in his 31 years on death row, “and [had] not been cited for any infraction whatsoever for the last twenty-three years.” They argued that his death sentence had been based on a prediction of future dangerousness that had proven false over his three decades of incarceration.
Missouri executed Carman Deck after his death sentence had been overturned three separate times. In the decade between his initial death sentence and his third sentencing hearing in 2008, several mitigation witnesses had died or could no longer be located. That delay, a federal district judge ruled, “prevented the jury from adequately considering compassionate or mitigating factors that might have warranted mercy.” He was granted relief for the third time in 2017. On appeal, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit reversed that ruling on a technicality, holding that Deck’s claim was procedurally defaulted because his post-conviction lawyer had failed to raise the issue in state court. It further ruled that because the law on the issue had not been settled at the time of Deck’s resentencing, post-conviction counsel’s failure to raise the issue was not ineffective, and Deck therefore could not establish grounds to excuse the procedural default. In a stay application that was denied by the U.S. Supreme Court, Deck’s lawyers argued that “[a] state should not be allowed to repeatedly attempt to obtain a death sentence, bungle the process, and then claim victory when no one is left to show up for the defendant at the mitigation phase.” Deck’s petition seeking review of his case called the situation “an egregious example of what happens when the state repeatedly violates the rights of a capital defendant. The state’s earlier failures directly prevented Mr. Deck from presenting a compelling mitigation case at his third resentencing.”
On May 11, Arizona executed Clarence Dixon, a severely mentally ill man. In 1978, then-Maricopa County Superior Court Judge Sandra Day O’Connor, later a Justice of the U.S. Supreme Court, had found Dixon not guilty by reason of insanity on unrelated charges. Judge O’Connor had directed Maricopa County prosecutors to make arrangements for Dixon’s continued custody until civil commitment proceedings, which were scheduled to start within ten days, could begin. Instead, Dixon was released, and two days later committed the offense for which he was executed. Dixon was not connected to the murder for two decades, and at his 2008 capital trial, he was permitted to fire his court-appointed attorneys and represent himself. At trial, Dixon presented a convoluted defense based upon his delusional belief that the charges against him were fueled by a government conspiracy. Despite counsel’s presentation of evidence that Dixon suffered from paranoid schizophrenia, with accompanying auditory and visual hallucinations and delusional thinking, and was now blind, a judge found him competent to be executed.
Dixon’s lawyers also challenged Arizona’s execution process and the drugs it intended to use in the state’s first execution attempt since the botched two-hour execution of Joseph Wood on July 23, 2014. In court proceedings in advance of the execution, assistant federal defender Jennifer Moreno argued that “[t]he state has had nearly a year to demonstrate that it will not be carrying out executions with expired drugs but has failed to do so.” Describing Dixon as “a severely mentally ill, visually disabled, and physically frail member of the Navajo Nation,” which opposes capital punishment, she said his execution would be “unconscionable.”
After an execution experts said was botched, witnesses described how Department of Corrections personnel failed for 25 minutes to set an intravenous line in his arms before performing a bloody and apparently unauthorized “cutdown“ procedure to insert the IV line into a vein in his groin. Defense lawyers said that the problems were exacerbated by the lack of transparency about Arizona executions. Dixon’s lawyer, assistant federal public defender Amanda Bass, said “[s]ince Arizona keeps secret the qualifications of its executioners, we don’t know whether the failure to set two peripheral lines in Mr. Dixon’s arms was due to incompetence, which resulted in the unnecessarily painful and invasive setting of a femoral line.”
Less than a month later, on June 8, Arizona executed Frank Atwood, who maintained his innocence in the 1984 kidnapping and murder of Vicki Hoskinson. In 2021, Atwood’s lawyers had discovered an FBI memo about an anonymous call the Bureau had received reporting that, after her disappearance, Hoskinson had been seen in a vehicle connected to an alternative suspect. A federal appeals court denied him a hearing on his claims of innocence and that the prosecution had unconstitutionally withheld exculpatory evidence from the defense.
In what Arizona Republic reporter Jimmy Jenkins called a “surreal spectacle,” Atwood helped prison officials find a suitable vein for the IV line during his execution. Jenkins wrote, “I have looked behind the curtain of capital punishment and seen it for what it truly is: a frail old man lifted from a wheelchair onto a handicap accessible lethal injection gurney; nervous hands and perspiring faces trying to find a vein; needles puncturing skin; liquid drugs flooding a man’s existence and drowning it out.” When the execution team was struggling to set the IV line, Atwood first suggested they try his right arm, then his hand, stopping them from their stated intention to establish an IV line in his femoral vein as they had done in Dixon’s execution.
Continuing the series of botched executions, Alabama killed Joe James Jr. on July 28 over the strenuous opposition of the victim’s family. The daughters and brother of murder victim Faith Hall urged Governor Kay Ivey to halt James’ execution. Helvetius Hall, Faith’s brother, said, “Taking [James’] life is not going to bring Faith back. It ain’t going to make no closure for us.”
James was representing himself at the time of his execution. His execution began with an unexplained three-hour delay, which Alabama Department of Corrections (ADOC) officials later obliquely indicated involved difficulties setting an IV line. While media witnesses were waiting for the execution, corrections officials subjected two female journalists, both of whom had previously witnessed multiple executions, to embarrassing dress code inspections. AL.com reporter Ivana Hrynkiw was told that her skirt, which she had worn to witness three previous executions, was “too short.” After changing into clothing borrowed from a cameraman from another media outlet, she was then told she couldn’t wear open-toed shoes because they were “too revealing,” so she retrieved a pair of sneakers from her car. Hrynkiw’s employer, the Alabama Media Group, sent a formal complaint the next day, calling ADOC’s conduct “sexist and an egregious breach of professional conduct.”
The clothing inspections diverted attention from the state’s repeated failures to set an IV line, as a later private autopsy revealed. In the words of Atlantic writer Elizabeth Bruenig, who had facilitated and witnessed the private autopsy, “[s]omething terrible had been done to James while he was strapped to a gurney behind closed doors without so much as a lawyer present to protest his treatment or an advocate to observe it.” Bruenig wrote of “carnage” on James’ body, that his “hands and wrists had been burst by needles, in every place one can bend or flex” during what she called a “lengthy and painful death.” When the execution chamber curtains were opened three hours after the scheduled start of James’ execution, he was motionless and non-responsive. Anesthesiologist Joel Zivot, who witnessed the private autopsy, noted that there were puncture wounds, accompanied by bruises, throughout James’ arms, and bruising around the knuckles and wrists that suggested that execution team members tried and failed to insert IV lines in those locations. They also found puncture wounds in James’ musculature, “not in the anatomical vicinity of a known vein.” “It is possible that this just represents gross incompetence, or some, or one, or more of these punctures were actually intramuscular injections,” Zivot wrote, noting that such an injection “in this setting would only be used to deliver a sedating medication.”
James’ execution was the longest botched lethal-injection execution in the 40-year history of that execution method. ADOC denied having sedated James and Commissioner John Hamm insisted that “nothing out of the ordinary” had occurred during the three-hour period between the scheduled start of the execution and the time the execution curtain opened.
Texas’ execution of Kosoul Chanthakoummane on August 17 also took place over the objections of the victim’s family. Joe Walker, whose daughter, Sarah, was murdered, said of Chanthakoummane, “I don’t have any hate towards him at all. I don’t want him put to death.” Chanthakoummane’s conviction relied on multiple forms of discredited forensic evidence, including notoriously unreliable bite mark evidence and hypnotically enhanced eyewitness testimony. Chanthakoummane, the son of Laotian refugees who escaped to the United States during the Vietnam war, had long maintained his innocence. Prosecutors said his DNA had been found under Walker’s fingernails and in various locations throughout the house, but defense lawyers argued that the DNA testimony purporting to identify him as the assailant was statistically flawed.
On July 6, Oklahoma set 25 execution dates, scheduling an execution nearly every month from August 2022 to December 2024. The first person executed as part of Oklahoma’s unprecedented execution spree was James Coddington. Coddington took full responsibility and expressed deep remorse for the addiction-driven murder of his friend, Albert Hale. At his clemency hearing, he gave an emotional statement to the board, saying, “I can’t apologize enough for what I did.” After hearing Coddington’s plea, as well as evidence of his traumatic upbringing and lifelong battle with addiction, the Oklahoma Pardon and Parole Board recommended clemency by a 3-2 vote. Governor Kevin Stitt rejected the board’s recommendation and Coddington was executed on August 25.
With no apparent review of or changes to its execution protocol following the botched execution of Joe James Jr., Alabama proceeded with the lethal-injection execution of Alan Miller on September 22. Miller challenged his execution on the grounds that he had timely designated nitrogen hypoxia as the method of his execution but that ADOC personnel had lost his designation form. In court proceedings on that challenge, state prosecutors intimated that ADOC could execute him by lethal gas. However, when the federal district court set a firm deadline to declare if ADOC was prepared to proceed with lethal gas, ADOC said it could not do so. On September 19, 2022, the district court issued a preliminary injunction enjoining Alabama from executing Miller “by any method other than nitrogen hypoxia.” On the afternoon of his scheduled execution, a divided panel of the U.S. Court of Appeals for the Eleventh Circuit denied the state’s motion to set aside the injunction. At about 9:15 p.m. Central Time, the U.S. Supreme Court issued a 5-4 ruling that vacated the injunction, leaving Alabama approximately 2½ hours to carry out the execution before the warrant expired.
Prison officials reportedly attempted as many as 18 times to establish an IV line before calling off Miller’s execution shortly before midnight, when the execution warrant would expire. ADOC Commissioner Hamm blamed the failure on “time constraints resulting from the lateness of the court proceedings.” He said, “the execution was called off once it was determined the condemned inmate’s veins could not be accessed in accordance with our protocol before the expiration of the death warrant.” After the execution, a federal judge granted a request from Miller’s lawyers to take photos and video of Miller to preserve all ADOC records related to the execution to document what had transpired and the injuries Miller sustained in the attempted execution. On November 28, the state settled Miller’s method-of-execution challenge, agreeing that it would no longer attempt to execute him by lethal injection and that any future execution attempt would be by means of nitrogen hypoxia.
Less than two months later, a second Alabama execution was called off after officials spent an hour failing to set IV lines during the attempted lethal injection of Kenneth Smith on November 17. The execution was already controversial because the trial court overrode the jury’s 11-1 vote for life under a since-repealed provision of Alabama law. According to Andy Johnson, a lawyer for Smith, the state strapped Smith to a gurney for approximately four hours while his motion to stay his execution was pending, was granted by the U.S. Court of Appeals for the Eleventh Circuit, and then was lifted by the U.S. Supreme Court. As in Miller’s case, Smith’s lawyers immediately filed requests to preserve evidence from the execution attempt. Five days after the state’s failed attempt to execute Smith, Alabama Governor Kay Ivey halted executions in the state, ordering ADOC to undertake a “top-to-bottom review” of the execution protocol.
Two executions were carried out over the objections of local prosecutors. Texas executed John Ramirez on October 5 after the Texas Court of Criminal Appeals (TCCA), without ruling on the merits, rejected the request of Nueces County District Attorney Mark Gonzalez to withdraw the death warrant. Gonzalez’s office had filed a motion, granted by the county trial court on April 12, to set an execution date for Ramirez. Two days later, Gonzalez, a former defense attorney who was elected in 2016 on a platform of criminal justice reform, attempted to withdraw the warrant. Stating his “firm belief that the death penalty is unethical and should not be imposed on Mr. Ramirez or any other person while the undersigned occupies the office in question,” Gonzalez told the court that “[t]he Assistant District Attorney who most recently moved for an execution date in this cause was not aware of my desire in this matter and did not consult me prior to moving for an execution date.” The trial judge denied Gonzalez’s motion on June 21, saying “I’m not sure that I have the power to do so.”
The trial court’s view in Ramirez’s case diverged sharply from the understanding of the law expressed by several dozen Texas legislators and Cameron County District Attorney Luis Saenz during April 14, 2022 legislative hearings relating to the scheduled execution of Melissa Lucio. During those hearings, described by reporters as “heated,” legislators pressed Saenz to withdraw Lucio’s death warrant, citing evidence of probable innocence and police misconduct. Saenz agreed with the legislators that he had the power to withdraw the warrant and eventually agreed that he would do so if the TCCA did not issue a stay. The point became moot when the court halted Lucio’s execution and directed that an evidentiary hearing be conducted on her innocence claims.
Missouri also executed a prisoner over the objections of a prosecutor. In 2021, Kevin Johnson’s defense team had requested that the St. Louis County Conviction and Incident Review Unit (CIRU) evaluate Johnson’s case. Because of a conflict of interest in the CIRU, the trial court appointed E.E. Keenan as a special prosecutor. Keenan’s investigation of the case found racial disparities in decisions to seek the death penalty by former county prosecuting attorney Robert McCulloch, as well as “deliberate” exclusion of Black jurors from Johnson’s jury. Special prosecutor Keenan then asked the trial court to stay Johnson’s execution and vacate his death sentence. The court denied his motion and both Johnson and the special prosecutor appealed. The Missouri Supreme Court heard argument in Johnson’s case less than 36 hours before his execution was scheduled to begin and ruled against Johnson. The U.S. Supreme Court then declined to review the case, allowing the execution to proceed. On November 29, Johnson was executed.
Oklahoma continued its execution spree with the October 20 execution of Benjamin Cole. Cole had schizophrenia and brain damage, and his lawyers, who described Cole as often “catatonic,” said prison guards who had daily interactions with him “confirm that he cannot communicate or take care of his most basic hygiene.” Counsel sought a hearing on his mental competency to be executed, arguing that he did not understand the reason for his impending execution. A judge denied counsel’s request for a competency hearing. In Cole’s clemency petition, his legal team wrote, “Benjamin Cole today is a frail, 57-year-old man with a damaged and deteriorating brain, suffering from progressive and severe mental illness who poses no threat to anyone in any way.”
Significant mental health issues were also raised in Texas’ November 9 execution of Tracy Beatty. Defense lawyers had argued that Texas’ refusal to uncuff Beatty so that a psychiatrist and a neuropsychologist could administer testing to assess brain impairments constituted unlawful state interference with services Congress has authorized be made available to federal counsel representing death-row prisoners in clemency and other potential capital post-conviction proceedings. Beatty was diagnosed with paranoid schizophrenia and experienced hallucinations and delusions. The Texas state and federal courts and the U.S. Supreme Court declined to stay his execution to permit the testing to occur, rewarding Texas’ refusal to grant access to comprehensive mental health evaluations. Beatty was executed without any judicial consideration of the extent of his deteriorated mental condition and its impact on his mental incompetency.
Stephen Barbee, whose execution had been stayed due to a religious freedom claim in 2021, was executed in Texas on November 16 for the murders of his ex-girlfriend Lisa Underwood and her son. No DNA or forensic evidence connected Barbee to the murders, though a local medical examiner, Dr. Marc Krouse, testified that Barbee had killed Underwood by applying between 100 and 400 pounds of force to her throat for a period of 5 to 7 minutes.
Barbee had sought judicial review of his attorney’s unilateral decision to concede his guilt without his consent, in violation of his constitutional rights. He also requested a new trial because newly discovered evidence showed that Krouse had been suspended from performing autopsy examinations on homicide cases because of a pattern of errors and negligent practices and that his forensic testimony concerning the cause of Underwood’s death was false. An audit of Krouse’s autopsies conducted by the Tarrant County Medical Examiner’s Office revealed that Krouse “had made 59 mistakes during the autopsies of 40 murder victims.”
In its third botched execution of the year, Arizona executed Murray Hooper. Though Hooper had been on death row for nearly forty years, the prosecution revealed new information in the lead-up to Hooper’s clemency hearing that supported his innocence claim and called into question the testimony of a key witness. That information was never heard in court. Hooper also unsuccessfully sought DNA and fingerprint testing of evidence from his case, citing a recent Arizona law that expanded access to modern forensic testing in old cases. At Hooper’s November 16 execution, corrections officials once again struggled to insert an IV. After questioning what was taking the execution team so long to set an IV line, Hooper reportedly turned to the witnesses and asked, “Can you believe this?” Executioners eventually resorted to inserting the IV in Hooper’s femoral vein in the groin area.
On November 17, Oklahoma executed Richard Fairchild, a military veteran with serious mental illness and brain damage. Fairchild sustained several traumatic head injuries during his youth, both from his abusive father and from participating in boxing as a teenager. His medical and military records indicate an additional five head injuries as an adult. A psychiatrist’s evaluation before his trial noted “severe organic brain syndrome,” but his trial lawyer did not question the psychiatrist about it during the trial and explained Fairchild’s crime solely as a result of substance abuse. Fairchild’s clemency petition included an affidavit from one of his jurors indicating that she would not have voted for death if she had known about Fairchild’s brain damage.
Mississippi carried out the final execution of the year on December 14, when it executed Thomas Loden Jr. Loden had experienced physical and sexual abuse during childhood, and had attempted suicide five times. He was a Marine veteran who received numerous awards and medals for his service, but who developed PTSD as a result of his combat experience in the Gulf War. Loden was the fourth military veteran executed in 2022. A public opinion poll released in February 2022 found that 61% of respondents opposed the execution of veterans with PTSD, suggesting that, if Loden’s trial attorneys had appropriately investigated and presented the mitigating evidence in his case, he might have been spared a death sentence.
Support for capital punishment in the United States remained near half-century lows in 2022 despite record-high perception that local crime has increased. The results of the 2022 mid-term election showed gains for candidates favoring reform of the criminal legal system in the face of an avalanche of dark money spending attempting to portray them as dangerously soft on crime.
Gallup’s 2022 Crime Survey, administered between October 3–20, 2022 against the backdrop of the Parkland school shooting trial, reported support for capital punishment held steady at 55%, one percentage point above the 50-year low of 54% in 2021. According to Gallup, support for capital punishment has remained between 54-56% for each of the past six years. 42% of respondents told Gallup they oppose the death penalty, one percentage point below 2021’s 50-year high.
Support for capital punishment, which historically had tracked Americans’ fear of crime, did not materially rise despite the largest increase in fifty years in the number of U.S. adults who reported that crime is up in the area in which they live. The spike in perceived crime was fueled primarily by a surge in fear among those identifying as Republicans, whose perception that local crime is rising increased from 38% in the final year of the Trump presidency to 73% at the approach of the first midterm elections of the Biden administration. Yet in that same two-year period, Gallup found that Republican support for capital punishment fell from 82% to 77%. Nationally, 56% of Americans told Gallup that local crime was up.
An October 31, 2022 Pew Research poll noted the disconnect between crime data and Americans’ perception of crime after being exposed to a tsunami of partisan midterm election advertising that falsely blamed Democrats and reform prosecutors for a rise in violent crime during the COVID pandemic. Pew noted that, in fact, “[a]nnual government surveys from the Bureau of Justice Statistics show no recent increase in the U.S. violent crime rate.” Although murder rates have “risen significantly during the pandemic” and the “roughly 30% increase in the U.S. murder rate between 2019 and 2020 [was] one of the largest year-over-year increases ever recorded,” Pew reported that “the rate remained well below past highs, and murder remains the least common type of violent crime overall.”
DPIC reviewed the 2020 murder data compiled by the center-left think tank The Third Way for its March 2022 report, The Red State Murder Problem. DPIC compared the data to states’ death-penalty status and historic usage of capital punishment. That analysis found that pandemic murder rates generally correlated not just with the presence or absence of the death penalty in a state but with the state’s general level of death-penalty usage. Murder rates in the mostly high death-penalty usage, high pandemic-murder-rate states ranged from roughly triple to 23 times higher than in the mostly no death penalty, low pandemic-murder-rate states.
Gallup’s 2022 Values and Beliefs Survey, administered from May 2–22, 2022 and released in June 2022, showed that Americans’ support for capital punishment mirrors their views of its moral acceptability. Gallup found that 55% of Americans regarded the death penalty as morally acceptable, fractionally above the record low of 54% in the organization’s 2020 survey. The number matched the 55% level of acceptability reported in the 2021 Values and Beliefs survey.
Public support for capital punishment varies considerably depending upon the question that is asked. Gallup periodically asks respondents to choose whether the death penalty or life without possibility of parole “is the better penalty for murder.” The last time Gallup asked that question, in 2019, 60% percent of Americans chose the life-sentencing option, while only 36% favored the death penalty.
A poll by Rasmussen Reports found even less support for capital punishment than reported by Gallup. The Rasmussen poll, conducted in a telephone and online survey October 16–17, 2022 and released November 10, 2022, found that fewer than half of American adults now support the death penalty. Asked “Do you favor or oppose the death penalty?” 46% of respondents said they favored capital punishment. Twenty-eight percent of respondents told Rasmussen they oppose the death penalty and 26% said they weren’t sure.
The survey recorded a continuing decline in expressed support for capital punishment. Those saying they favored the death penalty fell by 17 percentage points from the 63% who favored capital punishment in Rasmussen’s June 2011 national survey. Death penalty support also fell by three percentage points from July 2019, when 49% of respondents told Rasmussen they favored the death penalty.
A poll released in February 2022 by the Justice Research Group found that Americans’ support for the death penalty was even lower when asked about the classes of defendants who are most frequently subject to the punishment. Democrats, Republicans, and Independents by margins of more than 30 percentage points opposed the use of the death penalty against people with severe mental illness, brain damage, or intellectual impairments, and against veterans with PTSD. The poll found pluralities of each group opposed to seeking the death penalty against victims of severe abuse, and Americans nearly evenly split on the propriety of the death penalty for adolescent offenders between the ages of 18 and 21.
The level of support for capital punishment mirrored recent years even in polls administered at the height of the American mid-term elections during a barrage of advertising that attempted to stoke voters’ fear of violent crime.
Despite massive special interest campaign spending, election results at the state and local levels reflected continued public support for officials committed to criminal legal system reform — including policies that could significantly reduce the use of the death penalty.
Governors were up for election in the three states that had officially declared moratoria on executions: California, Oregon, and Pennsylvania. In each of these states, gubernatorial election results ensure that the moratoria will continue. Governor Gavin Newsom, who announced a moratorium on executions in 2019 and decisively defeated a recall effort in 2021, easily won re-election in California. Governor-elect Tina Kotek, the former Speaker of the Oregon House of Representatives, has promised to extend the state’s existing moratorium on executions. Pennsylvania’s next governor, Attorney General Josh Shapiro, has also pledged not to sign execution warrants while in office. Ohio, a state without a formal moratorium, re-elected Governor Mike DeWine, who has issued a series of reprieves to death row prisoners based on obstacles to the state’s provision of execution drugs.
Governorships changed hands in two key death-penalty states. Nevada’s Democratic Governor Steve Sisolak, who helped scuttle a bill to abolish the state’s death penalty fearing it might hurt his re-election chances, was defeated anyway by Republican Joe Lombardo, the Sheriff of Clark County, the state’s most active death-penalty jurisdiction. The election effectively forecloses death-penalty repeal in the state for the foreseeable future. In Arizona, Democrat Katie Hobbs won the race to replace term-limited Republican Doug Ducey, defeating Republican election denier, Kari Lake. Also in Arizona, Democrat Kris Mayes, who supports the death penalty but was critical of the state’s execution botches, expenditure of funds to purchase cyanide compounds for possible gas chamber executions, and aggressive pursuit of death warrants, led Republican election denier Abraham Hamadeh — pending a recount — in the race to replace Attorney General Mark Brnovich.
Prosecutors campaigning on a commitment to criminal legal system reform were elected in several counties that have previously produced a disproportionate amount of death sentences and executions. These victories occurred despite consistent messaging targeted at fear of violent crime and political attacks against some sitting reform prosecutors.
Voters ousted long-time Shelby County, Tennessee prosecutor Amy Weirich in favor of Steve Mulroy, a University of Memphis law professor and former county commissioner and federal civil rights prosecutor. Weirich, who headed an office that represented 13% of Tennessee’s population but was responsible for one-third of all death sentences in the state, sought re-election based on what her campaign touted as her “tough on crime” policies. She faced backlash from community activists for her efforts to prevent Shelby County death-row prisoner Pervis Payne from obtaining DNA testing for his innocence claim and for opposing efforts to overturn Payne’s unconstitutional death sentence because of his intellectual disability.
Oklahoma County, Oklahoma elected Vicki Behenna, the former executive director of the Oklahoma Innocence Project, to serve as its top prosecutor. Behenna will take the prosecutorial reins in a county that has imposed more death sentences over the past fifty years than any other county its size (population between 750,000–1,000,000), imposed more death sentences in the past decade than any other county with a population under 2.25 million people, and carried out more than 2.5 times the number of executions of any other comparably sized county. The Oklahoma County District Attorney’s office has a long history of prosecutorial misconduct, with at least eleven death sentences reversed or death-row prisoners exonerated because of misconduct. Only three counties in the U.S. have had more wrongfully convicted death-row prisoners exonerated than Oklahoma County, with the innocence issues in the cases of Julius Jones and Richard Glossip still unresolved.
Mulroy and Behenna have not pledged to never seek the death penalty but are replacing aggressively pro-capital punishment prosecutors in counties that have been disproportionate drivers of death sentencing.
In Alameda County, California, civil rights attorney Pamela Price won the district attorney’s race. Price, a former defense attorney, will be the first Black woman to serve in the role. She campaigned on promises to right past wrongs, including seeking resentencing for all 41 people currently on death row from Alameda County and those sentenced to life without parole. Price’s election was seen as a test of the durability of prosecutorial reform after the recall of San Francisco District Attorney Chesa Boudin. Price’s election reinforced the message sent by the failed attempt to recall Los Angeles District Attorney George Gascón, that California voters remain receptive to prosecutorial reform.
Reform prosecutors John Creuzot (Dallas) and Joe Gonzales (San Antonio) were re-elected in Texas, despite opponents’ concerted efforts to attack their reform initiatives. Elsewhere in Texas, Fort Bend’s reform D.A. Brian Middleton was re-elected without opposition and reformer Kelly Higgins won the District Attorney election in Hays County.
Incumbent prosecutors who have signed a pledge to work to end the death penalty were re-elected in Durham and Buncombe counties in North Carolina (Democrats Satana Deberry and Todd Williams); St. Louis County, Missouri (Democrat Wesley Bell), and Salt Lake County, Utah (Republican Sam Gill). County Attorney David Leavitt, who supported a bill to abolish the state’s death penalty, faced attacks based upon QAnon conspiracy theories, and was defeated in the Republican primary election in Utah County.
The U.S. Supreme Court continued its efforts throughout 2022 to weaken or withdraw federal-court regulation of death-penalty cases. Those efforts were manifest both in court decisions severely limiting prisoners’ access to federal habeas corpus review to develop evidence of innocence, ineligibility for the death penalty, or constitutional violations at trial or sentencing and in refusals to review death-penalty issues that presented significant claims of constitutional violations.
The Court also continued its pattern of summarily intervening to permit executions in cases in which the lower federal courts had issued injunctions or stays of execution necessary to adjudicate significant legal issues and in uniformly denying defense applications for stays of execution. Since the death of Justice Ruth Bader Ginsburg and the retirement of Justice Anthony Kennedy, the Court has not granted a single stay of execution concerning the constitutionality of a death-row prisoner’s conviction or sentence. The only execution stays it has granted have been in cases implicating the extent to which a religious figure may provide spiritual comfort to a prisoner in the death chamber during his or her execution.
2022 also saw the retirement of Justice Stephen Breyer, the Court’s most persistent death-penalty skeptic and the historic confirmation of Justice Ketanji Brown Jackson, the first African American woman and first federal public defender to serve as a justice on the Court.
The Court’s most significant death-penalty ruling of 2022 came in the consolidated cases of Shinn v. Ramirez and Shinn v. Jones, with a decision that severely limited access to the federal courts for state prisoners who had been provided a succession of ineffective lawyers in state court. David Ramirez and Barry Jones had been sentenced to death in separate proceedings in Arizona, and each argued during federal habeas review that they were entitled to present evidence of their counsel’s ineffectiveness for the first time in federal court because their state post-conviction counsel had also provided them ineffective representation in failing to investigate and raise that issue.
Jones argued that trial and post-conviction counsel had both failed to develop evidence of his innocence. Ramirez argued that trial and post-conviction counsel had both failed to develop mitigating evidence that could have resulted in a life sentence and evidence of his intellectual disability that could have established his constitutional ineligibility for the death penalty. In 2012, a 7-2 majority of the Court had ruled in Martinez v. Ryan that state prisoners could challenge the ineffectiveness of trial counsel in federal habeas court for the first time if they had been denied effective assistance of counsel in state post-conviction proceedings. Consistent with the rulings of every federal appeals court that had previously interpreted Martinez, the U.S. Court of Appeals for the Ninth Circuit ruled that a federal evidentiary forum was available to the petitioners on the claim of trial counsel’s ineffectiveness, once they had shown post-conviction counsel’s ineffectiveness in failing to raise the issue in state court. The Ninth Circuit affirmed a district court finding that Jones had been provided serially ineffective representation concerning his innocence, and upheld the lower court ruling vacating his conviction and granting him a new trial. In Ramirez’s case, the Circuit Court ordered an evidentiary hearing to determine the merits of his trial ineffectiveness claim. Arizona filed a combined petition for certiorari asking the Supreme Court to jointly review the case and reverse the Circuit’s rulings.
Writing for the conservative majority in Ramirez and Jones, Justice Clarence Thomas called federal judicial intervention to overturn a state prisoner’s conviction and sentence an “intru[sion] on state sovereignty … [that] overrides the State’s sovereign power to enforce societal norms through criminal law.” Although Martinez permitted a habeas petitioner to raise a claim of trial counsel’s ineffectiveness that state post-conviction counsel had failed to investigate and present, Thomas wrote: “a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel.” Joined by Justice Stephen Breyer and Elana Kagan, Justice Sonia Sotomayor issued a scathing dissent describing the decision “perverse” and “illogical.” The ruling, she wrote, “eviscerates” controlling case precedent and “mischaracterizes” other decisions of the Court. “The Court,” Sotomayor said, “arrogates power from Congress[,] … improperly reconfigures the balance Congress struck in the [habeas amendments] between state interests and individual constitutional rights,” and “gives short shrift to the egregious breakdowns of the adversarial system that occurred in these cases, breakdowns of the type that federal habeas review exists to correct.” The decision, she cautioned, would “doom many meritorious trial-ineffectiveness claims” that otherwise would result in relief.
The decision also produced harsh reactions from legal scholars, who blasted it as “nightmarish” and “an abomination.”
The Court further limited access to federal review in Shoop v. Twyford, narrowing the circumstances in which a habeas petitioner can obtain the assistance of a federal court in developing evidence. Ohio death-row prisoner Raymond Twyford’s habeas counsel sought to develop evidence to support a claim that his lawyer at trial had been ineffective in failing to investigate or develop evidence of neurological impairments he suffered after a failed suicide attempt when he was 13 years old. During federal habeas review, counsel asked the court for an order to transport Twyford to a medical facility for neurological imaging as part of their investigation into his mental competency and his trial counsel’s ineffectiveness. The district court granted Twyford’s motion, and Ohio prosecutors appealed. The U.S. Court of Appeals for the Sixth Circuit agreed with Twyford that the district court had jurisdiction to issue the transport order. Rather than answer that question, the Supreme Court instead held that the transportation order had been inappropriate because Twyford did not make a specific showing that the evidence would be admissible under the restrictions imposed by the Anti-Terrorism and Effective Death Penalty Act (AEDPA).
The Supreme Court’s most significant substantive death penalty ruling in 2022 was its March 4 decision in United States v. Tsarnaev, reimposing the death penalty on federal death row prisoner Dzhokhar Tsarnaev for his role in the Boston Marathon bombing. The U.S. Court of Appeals for the First Circuit had overturned Tsarnaev’s death sentence, holding that the trial judge had improperly prevented Tsarnaev’s lawyers from questioning jurors about the nature of their exposure to pretrial publicity and unconstitutionally excluded mitigating evidence of a murder committed by Tsarnaev’s violent, radicalized older brother that Tsarnaev argued would show that he had acted under his brother’s dominating influence. In a 6-3 partisan-line ruling, Justice Thomas reversed the Circuit Court, asserting that trial court had not abused the broad discretion afforded district court judges in questioning jurors and in admitting evidence.
In Nance v. Ward, the Court faced a narrow procedural question about the manner in which death-row prisoner Michael Nance should have challenged the constitutionality of Georgia’s method of execution. Historically, such challenges — which do not contest the constitutionality of the death sentence itself — have been brought under the federal civil rights act, and that is what Nance did. However, recent U.S. Supreme Court case precedent requires prisoners to offer an alternative method for their own execution before they may challenge the state’s intended method, and Georgia argued that the designation of any method other than lethal injection — the sole method authorized under its state law — constituted a challenge to the prisoner’s underlying sentence that must be brought under the habeas corpus statute. If that were the case, every prisoner whose habeas corpus petition had been denied before the issuance of a death warrant would be time barred from challenging the execution method.
Nance suffers from a medical condition that has so compromised his veins that the only way to perform an execution by lethal injection would be by cutting into his his neck to insert an intravenous line. So instead of lethal injection, he designated firing squad as his designated alternative method.
In a 5-4 decision in which Chief Justice John Roberts and Justice Brett Kavanaugh joined the Court’s three liberal justices, the Court ruled in Nance’s favor, retaining a single procedural mechanism for method-of-execution challenges. Writing for the Court, Justice Kagan noted that to do otherwise would permit a state to avoid challenges to the constitutionality of its execution protocol, no matter how blatantly tortuous, by designating it as the only legally authorized method of execution.
In Ramirez v. Collier, the Court stayed the execution of John Ramirez in September 2021 to consider his challenge to Texas’ refusal to permit his pastor to be present in the execution chamber, lay hands on him, and pray out loud during his execution. Although Texas subsequently agreed to allow his spiritual advisor in the execution chamber, it denied Ramirez’s requests for physical touch and audible prayer. In an 8-1 decision, the Court found that Ramirez was likely to succeed on his religious rights claim and returned the case to the lower courts to fully adjudicate his claim. Texas and Ramirez came to an agreement on what his pastor was permitted to do in the execution chamber and he was executed October 5.
In 2022, the Court denied every application for a stay of execution filed by a death-row prisoner and intervened in multiple cases to vacate stays of execution or injunctions issued by the lower federal courts.
Matthew Reeves, an intellectually disabled death-row prisoner in Alabama, challenged his execution by lethal injection arguing that he would have designated execution by nitrogen hypoxia but for the Alabama Department of Corrections’ failure to explain a form ADOC had distributed requiring prisoners to elect a method of execution. That failure, he argued violated his rights under the Americans with Disabilities Act. The U.S. District Court for the Middle District of Alabama determined that Reeves was likely to prevail on his claim and granted him a preliminary injunction on January 7, 2022 barring Alabama from executing him “by any method other than nitrogen hypoxia before his [Americans with Disabilities Act] claim can be decided on its merits.” The U.S. Court of Appeals for the Eleventh Circuit unanimously affirmed that injunction on January 26, just one day before his scheduled execution. In a 5-4 ruling issued after the execution was scheduled to begin, the Court vacated the injunction and Reeves was executed. Justice Amy Coney Barrett and the three liberal justices voted to leave the injunction in place.
In a dissenting opinion joined by Justices Breyer and Sotomayor, Justice Kagan wrote: “Four judges on two courts have decided—after extensive record development, briefing, and argument—that Matthew Reeves’ execution should not proceed as scheduled tonight. The law demands that we give their conclusions deference. But the Court today disregards the well-supported findings made below, consigning Reeves to a method of execution he would not have chosen if properly informed of the alternatives.”
The Court also issued after-hours orders vacating stays or injunctions pending further litigation in two other cases, clearing the path for Alabama to attempt the failed executions of Alan Miller and Kenneth Smith. On September 19, the district court issued a preliminary injunction enjoining Alabama from executing Miller “by any method other than nitrogen hypoxia.” The Court found that “Miller has presented consistent, credible, and uncontroverted direct evidence that he submitted an election form in the manner he says was announced to him by the [ADOC]” along with “circumstantial evidence” that ADOC lost or misplaced his form. A divided panel of the U.S. Court of Appeals for the Eleventh Circuit upheld the injunction on the afternoon of Miller’s execution. At about 9:15 p.m. Central Time, the U.S. Supreme Court vacated the injunction, leaving Alabama approximately 2½ hours to carry out the execution before the warrant expired. Justice Jackson joined Justices Sotomayor, Kagan, and Barrett in dissent. The U.S. Court of Appeals for the Eleventh Circuit granted Smith a stay of execution on November 17, 2022, the day he was scheduled to be put to death. In a 6-3 party-line vote, the Court vacated the stay.
This term also introduced a new voice to the Court, with the historic June 30 confirmation of Ketanji Brown Jackson as an Associate Justice of the U.S. Supreme Court. Justice Jackson fills the judicial spot on the Court left vacant by the retirement of Justice Breyer, for whom she previously clerked. Justice Jackson is the first former federal public defender to serve on the Court, the first justice since Thurgood Marshall to have significant experience representing indigent criminal defendants, and the first Black woman to serve as a justice in the Court’s history.
Justice Jackson issued her first written opinion as a member of the Supreme Court in dissenting from the Court’s denial of certiorari review in Chinn v. Shoop, death-row prisoner Davel Chinn’s appeal of the Ohio federal courts’ denial of his claim that prosecutors unconstitutionally withheld evidence favorable to the defense. Both the Ohio federal district court and the U.S. Court of Appeals for the Sixth Circuit agreed that the prosecution had improperly withheld the evidence from the defense, but they denied relief on his claim asserting that the withheld evidence had not been material to his conviction.
The Supreme Court declined to review the case, but Justice Jackson, joined by Justice Sotomayor, dissented, writing:
“There is no dispute that, during the capital trial of petitioner Davel Chinn, the State suppressed exculpatory evidence indicating that the State’s key witness, Marvin Washington, had an intellectual disability that may have affected Washington’s ability to remember, perceive fact from fiction, and testify accurately. When affirming on direct appeal, the Ohio Supreme Court said “[i]f the jury accepted Washington’s testimony, the jury was certain to convict [Chinn], but if the jury did not believe Washington, it was certain to acquit [Chinn] of all charges.” Similarly, the Ohio Court of Appeals said that Washington was the “key” and “main” witness against Chinn. Yet, when confronted during state postconviction proceedings with the State’s suppression of evidence that would have substantially impeached this key witness, the Ohio courts suddenly concluded that evidence was not “material” enough to have affected the trial.”
Saying that the lower federal courts had applied the wrong legal standard in upholding the state court’s ruling, Jackson wrote: “Because Chinn’s life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations, I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard.”
The Court’s refusal to review the Chinn case illustrates another trend in the Court’s decisions in 2022, repeatedly denying certiorari review in death-penalty cases in which state and federal court had denied relief on significant constitutional claims. Those cases include that of Texas death-row prisoner Andre Thomas, a severely mentally ill Black man convicted of murdering his wife, who was a white woman, her daughter from a previous relationship, who was white, and their son, who was biracial. Thomas challenged his conviction and sentence because his trial lawyer agreed to impanel three jurors who expressed clear bias against interracial marriage or thought interracial couples should not have children, without so much as asking them any questions about their biases. The Court voted 6-3 to deny certiorari.
The Court also refused to review a significant constitutional question raised by Rodney Young, who was sentenced to death in Georgia despite agreement by mental health experts that he met the medical requirements for intellectual disability. For medical purposes, proof of the disorder requires a diagnosis to a reasonable degree of medical certainty. But Georgia requires capital defendants and death-row prisoners to prove intellectual disability beyond a reasonable doubt before they can be ineligible for the death penalty. No other state has such an extreme requirement, and no one convicted of committing a murder in Georgia has ever been able to meet that standard. But despite the extreme outlier status of Georgia’s rule, the Court denied certiorari review for Young.
The Court’s refusal to grant a stay of execution to Missouri death-row prisoner Kevin Johnson also raised questions regarding its commitment to fair process and the enforcement of constitutional protections against racial bias. A special prosecutor appointed by a St. Louis County trial court had found that Johnson’s death sentence was a product of discriminatory prosecutorial practices by former county prosecutor Robert McCullough. Based on those findings, the special prosecutor sought to stay Johnson’s execution and overturn his death sentence under a Missouri statute that mandated an evidentiary hearing when the prosecution presented evidence of prejudicial constitutional error. The trial court nevertheless refused to stay Johnson’s execution. Scheduling oral argument in his case for the day before the execution was set to take place, the Missouri Supreme Court also declined to grant a stay, without ruling on the merits of the special prosecutor’s assertions. The U.S. Supreme Court then declined to stay Johnson’s execution to permit him to have his day in court on the discrimination claims, and he was executed November 29.
In a dissent issued the day after Johnson’s execution and joined by Justice Sotomayor, Justice Jackson wrote that the Missouri Supreme Court had “flouted the plain language” of the state law that required an evidentiary hearing when a prosecutor seeks to vacate a conviction based upon evidence “demonstrating a ‘constitutional error at the original trial … that undermines the confidence in the judgment.’” Johnson’s execution, Jackson wrote, “irrevocably mooted our consideration of his due process claim, and Missouri would have suffered no discernible harm if a stay had issued, as a State has no legitimate interest in carrying out an execution contrary to [its laws] or due process.” As a result, “new evidence relating to the trial prosecutor’s racially biased practices and racially insensitive remarks … will not be considered on the merits by any court, much less the one that was supposed to base its conclusions about the validity of Johnson’s conviction on all such evidence, per the statutory mandate.”
Several other capital cases that are awaiting Supreme Court decision at the end of 2022 may serve as bellwethers on how far the Court is willing to go to limit defendants’ access to federal review.
In November, the Supreme Court heard argument in Cruz v. Arizona, a case in which the Arizona courts had refused John Cruz’s request to instruct his jury that he would not be eligible for parole if spared a death sentence. Although the Supreme Court ruled in Simmons v. South Carolina in 1994 that a defendant has a due process right to inform a capital sentencing jury of his or her parole ineligibility if future dangerousness has been placed in issue, Arizona courts routinely prohibited capital defendants from informing their juries of that fact. State courts justified this practice on the grounds that the governor could grant clemency to a defendant who was otherwise sentenced to life without parole, so technically a sentence of life without parole was not absolute. In 2016, in Lynch v. Arizona, the Supreme Court summarily reversed Arizona’s interpretation of the law, finding it flatly contrary to Simmons.
After Lynch, Cruz tried to again present his claim to Arizona’s courts, citing Lynch as a new case that changed Arizona law. However, the state court, departing from prior precedent that consider such decisions to constitute a change in the law, ruled that Cruz’s claim was procedurally barred because Lynch simply reaffirmed prior law. The question before the Supreme Court is whether the state court’s procedural ruling is an adequate and independent ground for its judgement.
The Court also heard argument in Reed v. Goertz in October, an appeal by Texas death-row prisoner Rodney Reed seeking DNA testing of evidence that he argues can prove his innocence. Reed’s case has drawn international attention because of the strength of his innocence claim, but his Supreme Court case turns on the very narrow question of what event started the clock on his deadline to raise his claim in federal court, after Texas denied his request to test the additional DNA evidence. During his federal appeals, the U.S. Court of Appeals for the Fifth Circuit ruled that Reed was required to file his federal civil rights lawsuit within two years of the date the state trial court denied his request for DNA testing, even though his appeal of that decision was still pending in state court. By the time the case reached the Supreme Court, Texas Solicitor General Judd Stone had backed down from this position, and instead argued that Reed’s time clock began to run “no later than” when the Texas Court of Criminal Appeals (TCCA) denied his initial appeal. Reed argued that the time clock did not begin to run until his appeal was final — including consideration of any petition for reconsideration of his case. His federal civil rights action was filed more than two years after the Texas Court of Criminal Appeals denied his appeal, but within two years after its denial of his request for reconsideration brought the appellate process to a close. Reed’s interpretation is also the current rule in the U.S. Court of Appeals for the Eleventh Circuit, creating a conflict between the Fifth and Eleventh Circuits that the Court’s decision in this case will resolve.
“For us as a Christian nation, the notion of ‘thou shall not kill’ still prevails.” — Papua New Guinea Prime Minister James Marape, announcing the abolition of the country’s death penalty
“It is an irreversible punishment that does not allow for correction; is wasteful of taxpayer dollars; does not make communities safer; and cannot be and never has been administered fairly and equitably.” — Oregon Governor Kate Brown, announcing the commutation of all 17 of the state’s death sentences
“Tonight, the State of Missouri killed Kevin Johnson. … Make no mistake about it, Missouri capitally prosecuted, sentenced to death, and killed Kevin because he is Black. … The law is supposed to punish people for what they do, not who they are. Yet, Missouri killed Kevin because of the color of his skin. Shame on all of them.” — Assistant Federal Defender Shawn Nolan on the execution of Kevin Johnson, despite a court-appointed special prosecutor’s efforts to vacate his death sentence because of racial discrimination by the St. Louis County District Attorney’s Office
“We cannot be a state that… values the sanctity of life, and, at the same time, think that we can have a system of justice that resorts to death.” — Brett Farley, State Coordinator, Oklahoma Conservatives Concerned About the Death Penalty, former Communications Director of the Oklahoma Republican Party
“It’s clear that lethal injection creates a circus of suffering. … I don’t know why they are so bad at this. But it seems they are trying to hide a pattern of dangerous, cruel, incompetence.” — Emory University Anesthesiologist Joel Zivot on 2022 execution failures
“We policymakers have an obligation and opportunity to speak out when there is injustice. Here, in the case of Melissa Lucio, there is clear injustice.” — Texas State Representative Lacey Hull (R-138) in reference to Melissa Lucio’s execution that was scheduled for April 27, 2022, which has since been stayed
”The opinion leaves innocent people in the nightmarish position of having no court to go to for justice.” — Innocence Project Executive Director Christina Swarns on the implications of the U.S. Supreme Court’s decision in Shinn v. Ramirez
Click HERE to download 2022 Execution Data as an Excel File.
Click HERE to download 2022 Sentencing Data as an Excel File.
The Death Penalty Information Center is a non-profit organization serving the media and the public with information and analysis on capital punishment. The Center provides in-depth reports, conducts briefings for journalists, promotes informed discussion, and serves as a resource to those working on this issue. DPIC’s Executive Director Robert Dunham and Managing Director Anne Holsinger wrote this report with assistance from DPIC’s staff. Further sources for facts and quotations are available upon request. The Center is funded through the generosity of individual donors and foundations, including the MacArthur Justice Center, the Open Society Foundations, the Tides Foundation, M. Quinn Delaney, and the Fund for Nonviolence. Funding for DPIC’s law fellow position was provided in part by the Georgetown University Law Center. The views expressed in this report are those of DPIC and do not necessarily reflect the opinions of its donors.
