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September 7, 2021

Noting that, with fewer executions, those on death row are growing even older

This new piece at The Crime Report authored by Maria DiLorenzo, which is titled "Growing Old on Death Row," highlights that many of those on death row these days are really serving a sentence of "a long confined aged" life behind bars.  Here are excerpts:

In the 36 years that David Carpenter has been on death row at San Quentin State Prison in California, his routine has rarely changed. He awakens early in the morning and exercises, despite suffering from arthritis, in the cramped space of his single-bunk cell before eating breakfast.  Three days a week, he has access to a yard outside.

Once a month he attends a church service, one of the few activities that allows him time out of his cell, aside from medical appointments and visiting with friends and family, which he used to do regularly prior to COVID restrictions that have made the prison more isolated.  But most of the time, he stays inside his cell, which he’s grateful he does not have to share with anyone else. “I control my lights,” he tells The Crime Report in an interview via snail mail.  “I have my 15-inch color television.  I can go to sleep when I want to at night, take a nap during the day, and write letters and read when I want to.  I have the freedom in a single cell that I would not have in a two-man cell.”

At the age of 91, there’s one other thing he can be grateful for.  In 2019, California Gov. Gavin Newsom suspended capital punishment. As long as Newsom remains governor, executions will not occur, which has effectively given Carpenter a lease on life.  He is keenly aware of the irony.  “Because no one has been executed in California, death row inmates (in this state) have grown older with each passing year,” he acknowledged in his note to The Crime Report. “If California was like Texas, [which] executes people shortly after being found guilty and [sentenced to death] I would have been executed years ago.”

In 1984, Carpenter, also known as The Trailside Killer, was sentenced to death for shooting and killing two women.  Then, in 1988, he was found guilty of murdering five women, raping two others, and attempting to rape a third.  He was later tried and convicted of two additional murders and an attempted murder....

Carpenter, now one of the oldest individuals awaiting execution in the U.S., belongs to a growing segment of the prison demographic. In 2019, according to the Death Penalty Information Center, some 574 prisoners on death row in the U.S. were aged 60 or over. In 1996 that figure was just 39....

Some 1,200 of the 2,800 inmates awaiting execution are aged 50 and over.  Demographic trends suggest that over-50 population will increase, as America’s death rows are increasingly transformed into high-cost homes for senior citizens....  [A]s courts scrutinize details of appeals, men and women condemned to death are not only growing old, but becoming afflicted with dementia or other disabling diseases of age.  Since 2000, 11 death row inmates ranging in age from 65 to 77 have been executed.  Some, according to scholars.org, ‘were disabled, demented, or both.”

And as more states reject or sidestep capital punishment, the issue of what do with aging prisoners on death row presents a dilemma with moral, constitutional and economic dimensions.  Some critics argue that keeping ailing and enfeebled individuals behind bars―some with no memory of the crime they are in for ― is a violation of the Eighth Amendment prohibition against cruel and unusual punishment.

But it also raises questions about whether a system in which capital punishment is invariably accompanied by a long appeals process that leaves people to grow old on Death Row makes sense. “One way is just to substitute life without parole for death,” Fox told The Crime Report. “You keep them off the street, which is the desire that people have, and keep them in prison longer… I understand that people are worried about the cost, (but) death row trials are very expensive. They’re longer, they have more witnesses, more experts.”

It is not quite right to say that Texas executes people shortly after they are found guilty.  This website listing the next eight Texas execution dates (one of which is tomorrow) reveals that all eight of these condemned men have been on death row for more than a decade and a few have been there for a quarter century or longer.  Still, with California having over 700 persons on its death row, while not having completed a single execution in over 15 years, it is fitting that someone like The Trailside Killer from the Golden State is the featured focal point for a discussion of aging on death row.

September 7, 2021 at 02:13 PM | Permalink


For those of us who were in law school and practicing at the time that AEDPA passed, one of the stated purposes of AEDPA was to shorten the delays in the process at the federal level. While I know that, particularly in states like California, a good chunk of the delay is still in state courts. It doesn't seem to me like AEDPA has even come close to meeting this goal of shortening the federal habeas process in capital cases.

Taking up space on the floor of my office are the appellate briefs for the U.S. Court of Appeals on a capital habeas petition filed in December 2015. I last actually did work on the case (filing the warden's response) in early 2016 before leaving that job for a different job. While it is possible that the court of appeals will hear arguments later this year and issue an opinion early next year, by the time that certiorari gets denied (assuming it does), the federal habeas process will have lasted seven years -- for a case in which the district court found that the petitioner had not raised any new grounds that merited an evidentiary hearing/effectively serving as an appellate court reviewing the record.

Knowing where my state is in the process on several cases, we are probably looking at five or six executions over the next two years but all will involve cases in which the offense was committed around 2005 give or take one or two years. Back when AEDPA was enacted a ten to fifteen year process from start to finish was deemed long. Now fifteen years seems quick.

Posted by: tmm | Sep 8, 2021 10:19:41 AM

Years ago, in Slate discussion threads, an appellate lawyer argued AEDPA led to more litigation, delaying things.

The Slate fray ended around 2010. I see there are arguments it is not much better today.

I see in the NYT article about his religious liberty challenge, that the person due to be executed today "was captured near the border in 2007, convicted and sentenced to death."

He is listed as 37. Seems somewhat atypical & the comment that "takes responsibility for the crime" suggests he is something of a "volunteer" to some degree.

Posted by: Joe | Sep 8, 2021 1:31:40 PM

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