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August 14, 2018

Highlighting how many states have the death penalty in the books without an active execution chamber

John Gramlich at Pew Research Center has this new FactTank piece headlined "11 states that have the death penalty haven’t used it in more than a decade." Here are excerpts (with a few facts highlighted):

Tennessee carried out its first execution since 2009 this month and Nebraska soon may carry out its first since 1997.  The two states underscore the fact that while a majority of jurisdictions in the United States have capital punishment on the books, a considerably smaller number of them use it regularly.

Overall, 31 states, the federal government and the U.S. military authorize the death penalty, while 19 states and the District of Columbia do not, according to the Death Penalty Information Center, an information clearinghouse that has been critical of capital punishment.  But 11 of the states that allow executions — along with the federal government and the U.S. military — haven’t had one in at least a decade.

Nebraska, in fact, is among seven states that have the death penalty but haven’t carried out an execution in at least 15 years. New Hampshire hasn’t executed an inmate since 1939; the other states in this category are Kansas (last execution in 1965), Wyoming (1992), Colorado and Oregon (both 1997), and Pennsylvania (1999).  Executions have occurred somewhat more recently — though still more than a decade ago — in California, Montana, Nevada and North Carolina (all in 2006).

The last federal execution also took place more than 15 years ago, in March 2003.  While the U.S. military retains its own authority to carry out executions, it hasn’t done so since 1961.

All 11 states that have the death penalty but haven’t used it in at least a decade have inmates on death row, as do the federal government and U.S. military.  The size of these death row populations ranges from just one inmate each in New Hampshire and Wyoming to 744 in California, which has by far the largest death row in the nation.

California’s death row has grown by nearly 100 inmates, or 15%, since January 2006, when it carried out its last execution, and by nearly 30% since 2000, according to the NAACP Legal Defense and Educational Fund, which tracks death row populations for all states.  The increase reflects the fact that California juries have continued to sentence convicted defendants to death even as executions themselves have been on hold in recent years amid legal and political disputes....

The federal government’s death row has also grown substantially since the last federal execution.  There are currently 63 federal inmates sentenced to death, up from 26 in January 2003 (just before the federal government’s most recent execution).

I have highlighted the federal piece of this notable story of execution desuetude because I had thought that Prez Donald Trump and AG Jeff Sessions might seriously try to make America execute again.  But I have not seen any effort or even any discussion by federal officials to have any federal death sentences actually carried out.  As I have noted before, this Death Penalty Information Center list of federal death row prisoners reveals that some sentenced to death have been languishing on death row for a full quarter-century and a number of others have been that for at least two decades.  Because I doubt that Prez Trump and AG Sessions are secret abolitionists, I suspect that there is something going on behind the scenes that is keeping federal justice delayed.  But I still find it notable and a bit curious that the federal death penalty still now does not really exist, practically speaking.

August 14, 2018 at 12:13 AM | Permalink


Instead of simply finding it "notable and a bit curious" it would be more helpful if you joined with the majority of your peer professors in condemning the use of death row for warehousing inmates and the death penalty for both its inappropriateness in the 21st Century and the damage it does to the penalty structure of the justice system (ie. giving excuse (or opportunity) for the use of LWP and LWOP (actual or effectively) in cases other than murder. I know, you are ambivalent on the subject!

Posted by: peter | Aug 14, 2018 6:44:52 AM

This data indicates that there is a problem with the death penalty in those states (some of which are small, so it might not be a big problem), but it does not tell us what the problem is. To know what the problem is, I would want to know the following information: 1) is the state currently litigating its execution protocol; 2) does the state have an execution protocol; 3) are potential executions still litigating their first federal habeas (or even earlier in the process); 4) is the state just not scheduling executions on people who could be executed within the next month or two; 5) when is the last time a prosecutor sought the death penalty; and 6) when is the last time that a jury imposed the death penalty?

The second and fourth possibility would reflect a lack of desire (at least on the part on the relevant people in the executive branch) to follow through on the death penalty which does raise some question about whether those jurisdictions actually have a "real" death penalty or whether those officials are failing to faithfully execute the laws of their state. The first and third represent a judicial issue -- either of courts not efficiently processing serious cases or of courts actively circumventing the relevant laws (e.g., Ninth Circuit, Supreme Court of Kansas). The last two issues again go to the "realness" of the death penalty -- is it something reserved for theoretical cases or is it something that is being imposed in actual cases.

Posted by: tmm | Aug 14, 2018 2:28:18 PM

Death penalty is a dirty lottery

Bradley A. MacLean H. E. Miller, Jr.

Posted by: Claudio Giusti | Aug 14, 2018 2:53:08 PM

The DP is not likely to have much of a deterrent effect without actual executions. At best, the prospect of death row might persuade some defendants to take a plea.

Posted by: William Jockusch | Aug 16, 2018 7:49:04 AM

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