« "Redeeming Justice" | Main | "The Curriculum of the Carceral State" »

November 13, 2020

The new death penalty: COVID has now killed more US prisoners than capital punishment over last three decades

I am sad to report that we have passed yet another milestone in COVID prisoner deaths, which prompts another one of my series of "new death penalty" posts.  The Marshall Project continues the critical job of counting via this webpage of deaths from coronavirus reported among prisoners, and as of Thursday, November 12, this accounting had tabulated "at least 1412 deaths from coronavirus reported among prisoners." 

As I have said in other posts, this considerable and ever-growing number is sad and disconcerting on its own terms, but it is even more remarkable given that it now amounts to more than the total  number of prisoner deaths resulting from carrying out formal death sentences in the United States for the entire period from 1990 to 2020.  According to DPIC data, there were a total of 1406 executions from the start of 1990 through today.

Of course, as I have mentioned before, comparing capital punishment and COVID incarceration carnage is problematic in many ways.  All persons executed in the US in recent times have been convicted of the most aggravated forms of murder.  The vast majority of prisoners to die of COVID were not criminally responsible for a death (although, as noted here, some persons on California's death row are part of the COVID prisoner death count).  In a few older posts here and here, I noted that nearly half of the early reported deaths of federal prisoners involved individuals serving time for drug crimes.  

Another problem with comparing capital punishment and COVID incarceration carnage relates to that correctional staff do not die from administering capital punishment, but many have died from COVID.  The Marshall Project reports "at least 93 deaths from coronavirus reported among prison staff."  I am still pleasantly surprised that this too-big number is not even larger, but I will be ever troubled by the thought that all these COVID casualty numbers could have been lower if more aggressive depopulation efforts were taken to move the most vulnerable and least risky persons out of the super-spreader environment that prisons represent.

A few of many prior related posts:

November 13, 2020 at 09:31 AM | Permalink


Bureaucratic and political depravity.

Posted by: Jim Gormley | Nov 13, 2020 9:41:21 AM

COVID infection rates are independent of capital murder offenses, and of course independent of death penalty punishments carried out. It is like saying I am sad to report that auto deaths exceeded capital murder convictions of any type. It is meaningless.

Now the raw number of COVID deaths in prisons may mean something, but when compared to carried out death sentences, what exactly are you trying to say professor? It seems to be an irrelevant metric and hardly remarkable. Would it be less remarkable if California had actually carried out some its 700+ death judgments to the ledger flipping the numbers? I find that questionable. While you do acknowledge the problematic comparison, it seems that it is not just problematic, it is simply irrelevant. In court during a criminal trial irrelevant metrics are excluded. It seems to me that the same should apply here.

Posted by: David | Nov 15, 2020 9:06:24 AM

David: we have now had roughly 50 years of a modern elaborate constitutional capital jurisprudence, and we have spent likely trillions of dollars and hours on administering our modern capital punishment systems, and the end result of all that work can be measured in the total number of convicted persons duly executed. I think it interesting to compare all that capital energy and expense to the carnage wrought by COVID on the incarcerated US population in just a matter of month.

Among other goals, I hope these data encourage lawmakers, executive officials and others --- particularly those eager to preach about "the sanctity of human life" as VP Mike Pence did just yesterday --- not to disregard persons confined to cages when working toward pandemic relief. I also think it useful to remind everyone that COVID deaths are in a true sense random, while executions are not at all random, even though some critics of capital punishment are eager to assert the system is unconstitutionally arbitrary.

Of course, this blog is obviously not a criminal trial, and each individual reader can be the judge of whether to exclude this information from his or her mind. I continue to find the comparison interesting and noteworthy, and I will likely continue to note when we hit grim new prisoner death milestones.

Posted by: Doug B. | Nov 15, 2020 9:42:53 AM


Understood. It is your blog so I, of course, accept that you can and will identify any milestone and comparison you see fit. I just find the comparison not noteworthy at all and it ends up detracting from the point you make in your explanation to me.

I would also note if we are talking about "capital energy and expense," I suspect just in the last year the United States has spent far, far more than we have toward capital murder in modern times. Some will argue to no net effect of lives saved in the long run, but at an astronomical cost going forward. I will also say that it is similarly a not particularly relevant comparison, but since it is interesting, it seems it can be mentioned.

Posted by: David | Nov 15, 2020 10:22:06 AM

I find it remarkable, for example, that California reportedly spends about $200 million per year in attorneys' fees and expenses litigating death penalty cases, when that state has more than 740 people on Death Row, but hasn't actually executed anyone in more than 14 years. I am wondering whether California has spent anything approaching $200 million in 2020 trying to protect all of its inmates (those on death row and not on death row) from contracting and dying from COVID-19? That is a metric I find meaningful under the 8th Amendment prohibition against cruel and unusual punishment.

Posted by: Jim Gormley | Nov 15, 2020 1:38:59 PM

Thanks, Jim, for articulating one aspect of this comparison that this discussion might engage. And thanks, David, for the engagement, though I am not sure I understand what you mean when saying "I suspect just in the last year the United States has spent far, far more than we have toward capital murder in modern times."

Posted by: Doug B. | Nov 15, 2020 5:30:59 PM


I meant toward COVID remediation and the associated economic costs of lockdowns.


Posted by: David | Nov 17, 2020 6:04:47 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