« Orin Kerr gamely (and finally) admits that blogs can be legal scholarship | Main | Might poor re-entry services and risk assessment tools be most to blame for the Clemmons tragedy? »

December 2, 2009

Execution of possibly mentally retarded defendant in Texas could be 50th execution of 2009

As death penalty gurus know, the last decade has seen a pretty steep decline in the number of executions each year (data here from DPIC); we have gone from a modern high of 98 executions nationwide in 1999 to only 43 executions nationwide in 2008.  But this trend is now shifting direction: with Tennessee having executed Cecil Jonson early this morning (details here), Texas is now in line to make the execution of Bobby Wayne Woods tomorrow the 50th execution of 2009.  Interestingly, as well covered at StandDown Texas, there are reasons to worry that Woods may be mentally retarded and thus should be constitutionally protected from being executed based on the Supreme Court's Atkins ruling.

Though many commentors rightly assert that total national execution numbers are influenced my many factors, it remains notable and noteworthy that we are seeing this uptick in total executions during the first year of a Democratic administration in the White House.  As I have noted in prior posts (see here and here), total executions ramped up significantly during the Clinton Administration, the nation averaged more than 85 executions each year during his second term.  In contrast, total executions went down significantly during the Bush Administration, and the nation has averaged less than 50 executions each year during his the second term. 

I will not make firm predictions concerning what all these numbers and current trends might mean as we move deeper into a new Administration, but I am sure that one could use this data to surprise folks in a death penalty trivia contest.

December 2, 2009 at 10:53 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Execution of possibly mentally retarded defendant in Texas could be 50th execution of 2009:

» Another Supposedly Retarded Murderer from Crime and Consequences Blog
SLP has this post, linking to this post at Stand Down Texas, regarding Bobby Wayne Woods, who has an appointment with the Grim Reaper tomorrow. Reading these posts, you might think that Woods has a substantial argument that he is... [Read More]

Tracked on Dec 2, 2009 2:49:50 PM


".... there are reasons to worry that Woods may be mentally retarded and thus should be constitutionally protected from being executed based on the Supreme Court's Atkins ruling."

Quite frankly, I don't really care whether he's retarded or not.

Cecil Johnson was executed after 29 years on the row (is that a record?). Stevens, predictably, whined about how mean the state was.


Footnote 3 is interesting. Does a "well the caselaw was against me" excuse waiver? Not sure.

Posted by: federalist | Dec 2, 2009 11:03:23 AM

The President has so little influence over state's execution choices that I fail to see the relevance of who holds that office. There may well be other reasons that this year was higher, such as clearing out the backlog created by Baze. I don't know this for a fact but I can see AEDPA having had a psychological effect in the late 90s getting officials to work through their caseload faster even if AEDPA didn't actually apply to the case before them.

Posted by: Soronel Haetir | Dec 2, 2009 11:12:49 AM

Hard to know what to make of this year's increase, especially to the extent that much of it's driven by Texas, where we had a bunch of judges seemingly eager to make up for lost time after the Baze delay. Probably the same Baze dynamic occurred elsewhere. That could mean last year's number is artificially low and this year's data are slightly inflated from a "normal" rate. When the numbers are so small, it's hard to interpret year-to-year variations.

Posted by: Gritsforbreakfast | Dec 2, 2009 11:17:57 AM

LI litigation/issues are still creating delays in Arkansas, Kentucky, Missouri, Delaware, Nebraska, California, Arizona, the federal government, Maryland and Ohio (although that may soon change in Ohio depending on whether Biros gets to approve the one-drug protocol in one round of litigation and decry it as human experimentation in another).

For whatever reason, Governor Crist in Florida has slow walked setting execution dates, and North Carolina has a huge backlog because of LI and the RJA nonsense.

These factors (Baze and traditionally high execution states slowing down) explain the lower amount of executions.

Grits, Texas isn't as remarkable as you think. Pro-rated for the Baze moratorium, Texas was more death happy in 2008 than 2009.

It will be interesting to see what happens in the federal LI litigation. It seems hard to believe that it is still going on. Missouri should start up middle to late 2010. California has a backlog, and I suspect you'll see some dates set late next year, early 2011.

Posted by: federalist | Dec 2, 2009 11:37:48 AM

"...total executions ramped up significantly during the Clinton Administration, the nation averaged more than 85 executions each year during his second term."

Clinton's second term is the four full years following enactment of AEDPA. The most immediately successful provision of that act was the nearly complete prohibition of successive federal habeas petitions. A portion of this surge was backlog-clearing of cases that had completed their first federal habeas review. Some reduction in the following term would have been expected regardless of who was elected in 2000.

Similarly, as Soronel notes, there was a lull during the injection litigation and a predictable upswing as we are moving past that issue. The connection to the party in control of the White House is remote, if any.

Posted by: Kent Scheidegger | Dec 2, 2009 11:47:25 AM

Stop executions.

Posted by: Escort | Dec 2, 2009 11:53:44 AM

Enjoy the game, Professor.

Posted by: Samuel | Dec 2, 2009 12:56:37 PM

I watched the video supposed to show he has mental retardation.

That is not mental retardation. That is Southern charm and endearment.

Posted by: Supremacy Claus | Dec 2, 2009 1:41:12 PM

supremacy claus: "That is not mental retardation. That is Southern charm and endearment"

me: as a charming southerner I object to the inherient implication of your statement.

Posted by: virginia | Dec 2, 2009 3:21:41 PM

Doug, you say "possibly mentally retarded"--shouldn't you also say "possible bogus claim by death row attorneys"?


Posted by: federalist | Dec 2, 2009 4:48:26 PM

Regarding the claim that you can know a person is retarding upon meeting him, as his lawyer asserts, or by watching a short video clip, we now have a post on C&C by a qualified psychologist:


Posted by: Kent Scheidegger | Dec 2, 2009 6:00:08 PM

federalist --

No, he should have said, "possible four zillionth bogus claim of mental retardation by death row attorneys who hope reviewing judges actually are."

Posted by: Bill Otis | Dec 2, 2009 6:08:10 PM

Virginia: The charm, sure as shootin', is working on me.

I am totally smitten with you. In your case, feminism, is spiciness and adorable. If you are a male cop or something, posing as a Southern princess, please, do not tell me.

Posted by: Supremacy Claus | Dec 2, 2009 11:18:29 PM

Prof. Berman: I am considering filing a formal complaint with your Dean, the ACLU, the DOJ, and entitled parent's groups, using this 345 page book to bully schools. You do not want to get on their wrong side.


The phrase, me***l ret****tion, is highly offensive. It is the M word.

The proper phrase is, otherwise abled.

Please, adjust your vocabulary accordingly. It is now highly offensive and upsetting. With your IQ, the M word is as offensive as might be the use of the N word by an albino. Sorry about that, not albino, otherwise pigmented person.

Posted by: Supremacy Claus | Dec 2, 2009 11:29:20 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB