Sentencing Law and Policy

New report from Ohioans to Stop Executions on Ohio's death penalty

The organization Ohioans to Stop Executions this morning released this new report about capital punishment in Ohio titled "The Human Cost of the Death Penalty."  Here is how the report's executive summary starts:

In dollars and cents, the death penalty is the most expensive and inefficient part of the criminal legal system. But what are the other costs to the death penalty system that cannot be measured on a financial report or within a county budget? What are the costs in human capital? What is the moral cost to society maintaining a system that routinely convicts innocent people and harms victims’ families, leaving everyone involved dissatisfied?

The death penalty system’s excess is so far beyond what is reasonable that we now measure costs not in hundreds of millions of dollars, but in billions of dollars. The math is simple, and the fact that death penalty costs have surpassed one billion dollars should trouble us all. It is well-established that each death penalty case costs at least $3,000,000. Ohio has issued 342 death sentences under the current law, running the total costs to $1.026 billion dollars (that’s $86 per Ohioan). According to Ohio Attorney General Dave Yost’s most recent Capital Crimes Report, “It's a stunning amount of money to spend on a program that doesn’t achieve its purpose.”

What does the death penalty mean for victims’ families? It means decades of uncertainty. It means being hauled back into court year in and year out as the case runs the necessary gauntlet of appeals that safeguard the validity of a conviction. For victims’ families, the death penalty means reliving the worst day over and over with no end in sight. For families left in the wake of violence where a death sentence is the outcome, closure is a myth, and more trauma is the reality. Ohio’s capital punishment system makes promises of justice that it does not keep.

Is a "political" (capital) prosecution illegal or unconstitutional?

The question in the title of this post is prompted by this notable new filing in the case of US v. Mangione, which is titled "Defendant Luigi Mangione’s Motion To Preclude The Government From Seeking The Death Penalty."  The filing, which is summarized in this New York Times piece, covers lots of ground, develops an array of arguments, and overall makes for an interesting read.  Its biggest ask is set out this way: "because the Attorney General’s direction to the S.D.N.Y. prosecutors — issued publicly, as a press release — to seek a death sentence for Mr. Mangione is political, arbitrary, capricious, a breach of established death penalty protocol and has now indelibly prejudiced this process, the Government should be precluded from seeking the death penalty."

I am not surprised that Mangione’s attorneys are attacking his federal capital prosecution even before he has been indicted in federal court.  But I am intrigued by certain arguments set out in this filing, particularly the suggested that the exercise of prosecutorial discretion "unabashedly for political reasons" make a (capital) prosecution illegal or improper.  I expect that the US Justice Department will respond to the filing by asserting that its decision to pursue a capital charge against Mangione was not at all political (or arbitrary or capricious).  But suppose DOJ responded by revealing that polling data and other overtly "political" reasons impacted the decision; does a (capital) prosecutiorial decision become legally problematic if "unabashedly political"?

I have put "capital" in parethesis above because there are established constitutional arguments for greater procedural limits on death penalty cases.  In many Eighth Amendment decisions over the last half-century, the Supreme Court has imposed all sorts of special rules on capital punishment tracing back to the 1972 landmark ruling in Gregg v. Georgia that required jurisdictions to develop laws to minimize the risk of arbitrary or capricious death sentencing.  But Eighth Amendment "super due process" capital rulings do not, to my recollection, bar prosecutors from considering "political reasons" in capital charging.  And, of course, if the federal capital case against Mangione moves forward, he will receive all the trial/sentencing processes that the Supreme Court has said the Eighth Amendment requires for death penalty cases. 

Then again, as set forth in US v. Armstrong, 517 U.S. 456 (1996), the Supreme Court has stated prosecutorial discretion is subject to constitutional limits based on the Equal Protection Clause:

[A] prosecutor's discretion is "subject to constitutional constraints." United States v. Batchelder, 442 U.S. 114, 125 (1979).  One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U.S. 497, 500 (1954), is that the decision whether to prosecute may not be based on "an unjustifiable standard such as race, religion, or other arbitrary classification," Oyler v. Boles, 368 U.S. 448, 456 (1962).  A defendant may demonstrate that the administration of a criminal law is "directed so exclusively against a particular class of persons ... with a mind so unequal and oppressive" that the system of prosecution amounts to "a practical denial" of equal protection of the law.  Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886)....

The requirements for a selective-prosecution claim draw on "ordinary equal protection standards." [Wayte, 470 U.S.], at 608.  The claimant must demonstrate that the federal prosecutorial policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." Ibid.

I can imagine an argument that a "political" focus in the exercise of prosecutorial discretion amounts to an "an unjustifiable standard such as race, religion, or other arbitrary classification" if one could show, for example, that a prosecutor pursued charges only against Republicans but never against Democrats.  But the Mangione team is not quite making that kind of contention here.  Rather, the "political" gripes in Mangione’s Motion seem to take issue essentially with the new death penalty policies adopted by the Trump Administration, policies which it does seem fair to say are influenced to some degree by "politics."  But is there really anything legally problematic here?  Put more sharply, is it realistic to expect any prosecutors to be able to entriely avoid having their (capital) charging discretion influenced, in some way, by criminal justice policies and politics?

South Carolina completes its second execution by firing squad

As reported in this local piece, "At 6:01 p.m., in a crack of rifle shots, Mikal Mahdi was executed inside of the Broad River Road Correctional Institution in Columbia, South Carolina, on Friday."  Here is more:  

Mahdi, who killed two people during a 2004 crime spree across four states, was sentenced to death after pleading guilty in 2006.

He chose to die by firing squad, making him just the second person in South Carolina to select that method of execution. He was just the fifth person in the United States executed by firing squad since 1976, when the U.S. Supreme Court re-instituted the death penalty...

On Friday afternoon, the U.S. Supreme Court declined to take up Mahdi’s appeal. Mahdi was sentenced to death in 2006 for the murder of off-duty Orangeburg Department of Public Safety captain James Myers. Mahdi ambushed Myers, 56, as the officer returned from celebrating his daughter’s birthday at the beach. Mahdi, 21 at the time, was hiding in a shed on Myers’ property in Calhoun County....

Just days before murdering Myers, Mahdi shot and killed a North Carolina gas station clerk, Christopher Boggs, over a can of beer and carjacked a vehicle in Columbia, South Carolina. The crime spree began only months after Mahdi was released from prison.

First Circuit Solicitor David Pascoe, who tried Mahdi, described him as “evil,” with “no regard for human life,” while Mahdi’s defense attorneys argued he was psychologically damaged by an abusive childhood compounded by long periods of isolation....

Violence followed Mahdi in prison. In 2009, Mahdi and another inmate stabbed a death row guard with improvised metal knives. The guard survived the stabbing, which took place inside of the Lieber Correctional Institution in Ridgeville. In an opinion upholding Mahdi’s sentence in a previous appeal, state Supreme Court Justice Jean Toal wrote, “in my time on this Court, I have seen few cases where the extraordinary penalty of death was so deserved.”

"Kennedy v. Louisiana and the Future of the Eighth Amendment"

The title of this post is the title of this article just posted to SSRN and authored by Alexandra L. Klein.  Here is its abstract:

In 2023, Florida passed a law permitting the imposition of the death penalty for the rape of a child under twelve. Tennessee enacted a similar law in 2024.  These laws conflict with Kennedy v. Louisiana, a 2008 decision in which the Supreme Court held that imposing the death penalty for the rape of a child violated the Eighth Amendment’s Cruel and Unusual Punishments Clause because it was inconsistent with the evolving standards of decency.  Legislators in Florida and Tennessee have expressed their hope that the Supreme Court will overrule Kennedy v. Louisiana.  These laws, which resemble state attempts to undo abortion protections through legislation, are not just death penalty politics. Scholars have warned that the Court’s growing reliance on original meaning, history, and tradition may undo extant Eighth Amendment protections.  States have filed amicus briefs asking the Court to reject Eighth Amendment precedent.  More recently, in City of Grants Pass v. Johnson, the Court described the Eighth Amendment in narrow, historically focused terms, signaling that further alterations to the Eighth Amendment are coming.

This Article addresses the potential for overruling Kennedy v. Louisiana and what that may mean for the future of the Eighth Amendment’s Cruel and Unusual Punishments Clause.  While Kennedy is settled law, the Court’s current approach to constitutional questions and recent Eighth Amendment jurisprudence demonstrate that constitutional protections that were assumed to be settled are now at risk, and the Eighth Amendment is in jeopardy.  The Supreme Court’s recent decision in Grants Pass demonstrates that the Court is currently “stealth overruling” its Eighth Amendment jurisprudence.  The Court is likely to continue this project because of changes to its membership, its new approach to stare decisis, and legislative opportunism.  This Article contributes to recent academic literature that addresses the future of the Eighth Amendment by analyzing how new state laws expanding capital offenses to include the rape of a child may undermine precedent through the Court’s reliance on “democratic deliberation” narratives, as described in scholarship by Professors Melissa Murray and Katherine Shaw that addresses the aftermath of Dobbs v. Jackson Women’s Health Organization.

This Article offers two possible future directions for Eighth Amendment jurisprudence: “devolving” standards of decency — in which states can create a national consensus to undo constitutional protections — or, more likely, a restrictive historical approach.  This Article concludes by discussing how these changes threaten the stability of Eighth Amendment jurisprudence and explaining the risks of legislative and judicial expansion of the death penalty after decades of judicial rulings that attempted to narrow it.  It may be tempting to dismiss the consequences of overruling Kennedy — people convicted of sexually assaulting children are targets of universal revulsion.  But changing constitutional and legal standards because of outrage at criminal conduct weakens vital constitutional protections against cruel and unusual punishment.

Florida completes its third execution in 2025

As reported in this AP article, a "Florida man convicted of killing a Miami Herald employee who was abducted on her lunch break was executed Tuesday evening." Here is more:

Michael Tanzi was pronounced dead at 6:12 p.m. following a three-drug injection at Florida State Prison for the April 2000 strangling of Janet Acosta, a production worker at the South Florida paper. The victim was attacked in her van, beaten, robbed, driven to the Florida Keys and then strangled before her body was left on an island.

In a final statement, his voice barely audible, Tanzi said, “I want to apologize to the family” and then recited a verse from the Bible before the drugs began flowing....

He was the third person executed in Florida this year.  Another lethal injection is scheduled May 1 under death warrants signed by Gov. Ron DeSantis.

After the execution, Acosta’s family members expressed relief that the ordeal was finally over. “It’s done. Basically, justice for Janet happened,” said her sister, Julie Andrew, who witnessed the execution. ”My heart felt lighter and I can breathe again.”...

Court records show Acosta was on a break on April 25, 2000, when she was attacked.  She was reading a book in her van when Tanzi approached, asked for a cigarette, and began punching her in the face, the records state.... “He drove to an isolated area in Cudjoe Key, told her he was going to kill her, and began to strangle her,” according to a summary by the state Commission on Capital Cases.  “He stopped to place duct tape over her mouth, nose and eyes in an attempt to quiet her and then strangled her.”

Acosta’s friends and co-workers reported her missing after she failed to return from her break.  That led police to her van, which Tanzi drove to Key West.  Police said Tanzi confessed to the crime and showed investigators where he had left Acosta’s body on Cudjoe Key, more than 140 miles (225 kilometers) southwest of Miami....

Tanzi was convicted of first-degree murder, carjacking, kidnapping and armed robbery, drawing a 12-0 jury recommendation for the death penalty.  All of his subsequent appeals were unsuccessful, including a late request for a stay of execution rejected Tuesday afternoon by the U.S. Supreme Court.  The Florida Supreme Court also recently rejected his claim he shouldn’t be executed because he was “morbidly obese” and had sciatica, raising the risk of unconstitutional levels of pain.

How many federal capital prosecutions would there be if AG really pursued the death penalty "whenever possible"?

The question in the title of this post is prompted by this new article discussing statements today by Attorney General Pam Bondi.  The piece is headlined "AG Pam Bondi Says Trump Is Going to Seek the Death Penalty ‘Whenever Possible’ — Including for Luigi Mangione."  Here is how the piece states:

Attorney General Pam Bondi doubled down on her desire to seek the death penalty for accused CEO killer Luigi Mangione on Sunday, telling Fox News that President Donald Trump’s administration is going to seek the death penalty “whenever possible.”

The AG stopped by Fox News Sunday this weekend, where host Shannon Bream asked her what she thought about Politico saying that using capital punishment against 26-year-old Mangione is “how Trump loses Gen Z.”

“The president’s directive was very clear: we are to seek the death penalty, when possible.  It hasn’t been done in four years. I was a capital prosecutor, I tried death penalty cases throughout my career.  If there was ever a death case, this is one,” Bondi said.  “This guy is charged with hunting down a CEO, a father of two, a married man, hunting him down and executing him.  I feel like these young people have lost their way.  I was receiving death threats for seeking the death penalty on someone who was charged with an execution of a CEO.”

“We’re going to continue to do the right thing, we’re not going to be deterred by political motives,” she continued. “I’ve seen a protester walking down the street here — ‘Free Luigi’ — this guy’s charged with a violent crime and we’re going to seek the death penalty whenever possible.”

As I suggested in this post last week, there seems to be a disconnect between the Trump Administration's bold statements and modest actions on capital prosecutions to date.  After 12 weeks in power, the Mangione case represents the only federal capital prosecution announced nationwide during the Trump Administration.  In sharp contrast, for decades, Ohio averaged nearly two new capital indictment each and every week (specifically, as detailed in an ABA report on Ohio's death penalty, "[b]etween 1981 and 2005, there were a total of 2,768 capital indictments" in the Buckeye State).  To keep the comparison federal, data from a 2000 DOJ study detailed that "[f]rom 1995 to 2000, the Attorney General authorized United States Attorneys to seek the death penalty for a total of 159 defendants," which averages to more than two new capital indictment each and every month. 

There is an obvious inconsistency between asserting that the feds are now "going to seek the death penalty whenever possible," but then in fact almost never doing so.  One might reasonably wonder if the Trump Administration really could or should pursue or even consider federal capital charges in the many hundreds of murders that take place across the country every month, especially given that all of these violent offenses will be investigated at the local level.  But, of course, the federal criminal justice system finds the resources to bring many thousands of federal drug, property and public order charges every month even though nearly all those offenses can be addressed at the local level.  If violent crime, and especially capital murder, really were to be a federal prosecutorial priority in the Trump Administration, I would expect to see many more, perhaps many dozens more, federal capital charges being brought each and every month. 

It is surely is easier to talk about pursuing federal capital prosecutions "whenever possible," than to actually do so.  And yet AG Bondi's statement still has me thinking about what it would really look like if the feds really started "to seek the death penalty whenever possible."   The Trump Administration has, in various ways, shown an eagerness to disregard various legal norms and customs.  But the norm and custom of very limited pursuit of the death penlaty seems, at least so far, to be still intact.   

Georgia poised to no longer be outlier on process for deciding who is death-penalty ineligible based on intellectually disability

The Supreme Court nearly 23 years ago in Atkins v. Virginia, 536 U.S. 304 (2002), ruled that that an execution of persons with intellectual disability would violate the Eighth Amendment's prohibition on cruel and unusual punishments.  In so doing, the Court decided to "leave to the States the task of developing appropriate ways to enforce the constitutional restriction." 

Different states have taken different procedural approaches to this matter, with Georgia's process unique in requiring proof of disability beyond a reasonable doubt to a jury.  But this new local article suggest that Georgia is on the verge of changing this process, and here are the basics from the start of the article:

Georgia is the only state with the death penalty that requires defendants to prove beyond a reasonable doubt that they are intellectually disabled to be spared execution -- a high legal standard that no one charged with intentional murder has cleared.

But that would change under a bill that is now sitting on Gov. Brian Kemp’s desk that would lower the standard of proof.

Advocates have pushed for the change for two decades, but a south Georgia lawmaker, Glennville Republican state Rep. Bill Werkheiser, was able to convince his colleagues that the state’s law was incompatible with the constitution’s prohibition against executing people who are intellectually disabled.

Werkheiser often pointed to a 2021 Georgia Supreme Court case where a judge wrote in a dissenting opinion that using the highest possible burden of proof increases the risk that someone with an intellectual disability is executed.

House Bill 123 lowers the standard of proof for proving someone has an intellectual disability to a preponderance of the evidence, ending Georgia’s outlier status as the only state that requires beyond a reasonable doubt.

The measure also creates a pre-trial hearing where a judge would focus only on the question of whether the defendant is intellectually disabled.  Today, a jury is determining whether a defendant is intellectually disabled at the same time they are hearing grisly details about the alleged crime and deciding the person’s guilt or innocence.

AG Bondi directs federal prosecutors to pursue death penalty for Luigi Mangione CEO murder

As reported in this AP piece, "U.S. Attorney General Pam Bondi said Tuesday that she has directed prosecutors to seek the death penalty against Luigi Mangione in the killing of UnitedHealthcare CEO Brian Thompson, following through on the president’s campaign promise to vigorously pursue capital punishment." Here is more:

It is the first time the Justice Department has sought to bring the death penalty since President Donald Trump returned to office in January with a vow to resume federal executions after they were halted under the previous administration.

“Luigi Mangione’s murder of Brian Thompson — an innocent man and father of two young children — was a premeditated, cold-blooded assassination that shocked America,” Bondi said in a statement. She described Thompson’s killing as “an act of political violence.”

Mangione, a 26-year-old Ivy League graduate from a prominent Maryland real estate family, faces separate federal and state murder charges after authorities say he gunned down Thompson, 50, outside a Manhattan hotel on Dec. 4 as the executive arrived for UnitedHealthcare’s annual investor conference.

Mangione’s lawyer, Karen Friedman Agnifilo, said Tuesday that in seeking the death penalty “the Justice Department has moved from the dysfunctional to the barbaric.” Mangione “is caught in a high-stakes game of tug-of-war between state and federal prosecutors, except the trophy is a young man’s life,” Friedman Agnifilo said in a statement, vowing to fight all charges against him.

The killing and ensuing five-day manhunt leading to Mangione’s arrest rattled the business community, with some health insurers hastily switching to remote work or online shareholder meetings. It also galvanized health insurance critics — some of whom have rallied around Mangione as a stand-in for frustrations over coverage denials and hefty medical bills. Surveillance video showed a masked gunman shooting Thompson from behind. Police say the words “delay,” “deny” and “depose” were scrawled on the ammunition, mimicking a phrase commonly used to describe insurer tactics to avoid paying claims.

Mangione’s federal charges include murder through use of a firearm, which carries the possibility of the death penalty. The state charges carry a maximum punishment of life in prison. Mangione has pleaded not guilty to a state indictment and has not yet been required to enter a plea on the federal charges.

Prosecutors have said the two cases will proceed on parallel tracks, with the state case expected to go to trial first. It wasn’t immediately clear if Bondi’s announcement will change the order.

I am not especially surprised at these capital charges, though I am a bit surprised that this is the first federal capital case initiated during Prez Trump's second term.  Prez Trump's EO on the death penalty, announced more than 11 weeks ago, purportedly ordered seeking the death penalty in every case involving "murder of a law-enforcement officer" or a "capital crime committed by an alien illegally present in this country."  Sadly, FBI data indicate that, on average, five law enforcement officers are feloniously killed each month.  In addition, as I discussed here not long after the election, the murder of Laken Riley would seem to be just one of perhaps many "capital crime[s] committed by an alien illegally present in this country."  Perhaps dozens of federal capital prosecutions are in the works, but I surmise it is easier to talk about pursuing many federal capital prosecutions than to do so with alacrity.  (And speaking of moving quickly, it will be quite interesting to see just how fast the Mangione capital case will move forward in federal court.)  

"The Lasting Impact of Ring v. Arizona on Capital Jury Trials"

The title of this post is the title of this new article authored by Kevin Morrow and now available via SSRN. Here is its abstract:

The final decision on the imposition of the death penalty in the United States is made by either judges or juries.  A wealth of empirical study has gone into comparing these two methods.  Arizona, with its change to a jury-based system immediately after the landmark Supreme Court decision Ring v. Arizona, is divided into discrete eras of capital sentencing.  For the first time, this article catalogs, and examines, the post-Ring capital trials that reached the question of life or death to explore the systemic differences between jury and judge sentencings.

Texas DA gives up capital charges for plea from El Paso Walmart mass murderer

As reported in this local article, "El Paso District Attorney James Montoya campaigned for the job saying he would pursue the death penalty against the 26-year-old gunman who killed 23 people in a local Walmart in 2019 and said he wanted 'to shoot as many Mexicans as possible.'  But after the case had passed through the hands of four different prosecutors and dragged out nearly six years, on Tuesday Montoya said his office had consulted with victims’ families as well as surviving victims and decided to offer Patrick Crusius a plea bargain that didn’t include the death penalty."  Here is more:

“This was not a decision that was reached lightly or hastily,” Montoya said at a news conference. He explained that pursuing the death penalty would prolong the case for several more years. 

The plea deal would allow a judge to sentence the gunman to life in prison without the possibility of parole.  Montoya said he still believes the gunman — who was convicted and sent to prison by federal prosecutors as the state case dragged on — deserves the death penalty, but he didn’t want to delay closure for the families.  “I believe in the death penalty. I believe that this defendant deserves the death for what he did,” he said.

Montoya said a plea and sentencing hearing is scheduled for April 21.  Montoya said most of the families told him they supported the decision because some are tired of all the court proceedings. But some families wanted Montoya to keep pushing for a death sentence, even if it took several more years.

On Aug. 2, 2019, Crusius drove more than 600 miles from his home in Allen, north of Dallas, to El Paso and began shooting people in the parking lot of a Walmart that was busy with back-to-school shoppers. Then he entered the store and continued his rampage.  The victims were mostly Mexican-Americans and Mexican citizens from El Paso and Ciudad Juárez. One of the victims was a 66-year-old German man who moved to Mexico in the 1980s, married a woman from Juárez and settled there.  The victims ranged in age from 15 to 90....

In July 2023, he was sentenced in federal court to 90 consecutive life sentences after federal prosecutors opted not to pursue a death sentence.  At the time, El Paso District Attorney Bill Hicks, Montoya’s predecessor, said he would seek the death penalty on the state charges.

This press piece and others I have read made leave somehwat unclear whether the victims' families may have actively pushed for this deal or whether the DA decided it was a good idea upon hearing families stating that they were "tired of all the court proceedings."  Whatever the particulars, it is fascinating that Texas has executed dozens of persons for a single murder in recent years, but this defendant who killed 23 people and injured 22 others will no longer even face a possible death sentence.  Such is the reality of prosecutor (sentencing) discretion.

Reviewing evolving execution methods in the states

Law360 has this lengthy new piece, headlined "La.'s First Nitrogen Execution Reflects Broader Method Shift," which discusses recent state execution method trends.  Here are a few excerpts:

Louisiana's adoption of the nitrogen gas method is part of a broader shift to alternatives to lethal injections, which have faced intense judicial scrutiny as well as a shortage of raw materials needed to carry them out, resulting in hiatuses in executions in several states. Overall, states with capital punishment have signaled an intention to restart their execution programs, some of which have stalled for years, and for some states this involves shifting to new methods.

In January 2024, Alabama became the first jurisdiction in the world to use nitrogen gas, and has since used it to execute four people. Mississippi and Oklahoma also allow for the method but have yet to use it.... On March 7, South Carolina executed Brad Sigmon, a man convicted of murder, by firing squad — the first time the state used that method. His execution marked the first time in 15 years such a method was used to kill a prisoner....

Sigmon's execution signaled an expansion of the use of firing squads, and other states might soon embrace it. Utah, Oklahoma, Mississippi, South Carolina and Idaho currently authorize the firing squad as an execution option.

Utah is the only state that has long allowed firing squads and has used it during the 20th century. Oklahoma and Mississippi added it as a backup method in the 2010s, while South Carolina legalized it in 2021 as a way to resume executions when drugs are unavailable. Idaho adopted it in 2023 for similar reasons.

Oklahoma executes man not objecting to his execution 20 years after capital murder

As detaled in this local article, "Oklahoma carried out its first execution of 2025 on Thursday, giving a lethal injection to a confessed killer who had said in his first interview with police that he wanted the death penalty."  Here are some of the notable details:

Wendell Arden Grissom, 56, was pronounced dead at 10:13 a.m. at the Oklahoma State Penitentiary. "I consider this a mercy. It's going to be all right," he said in his last words after apologizing and asking for forgiveness from "all of you that I hurt." He did not seek any emergency stays in court and did not speak at his clemency hearing in February. He told Newsweek on Monday, "I don't want to spend the rest of my life in here."...

Grissom was executed for fatally shooting a woman during a 2005 home invasion in rural Blaine County. The victim, Amber Dawn Matthews, 23, was at the isolated home near Watonga helping a friend, Dreu Kopf, pack for a move the next day. Matthews was shot the first time in the back of the head while holding her friend's newborn baby, Gracie. She was shot again in the forehead after collapsing to the floor. Kopf also was shot but survived....

The execution was the 16th in Oklahoma since lethal injections resumed in October 2021 after a long hiatus brought about by drug mix-ups and botched procedures. It took only 10 minutes to complete. "This was probably as flawless of an execution that we've had in terms of the process," said Steven Harpe, the Oklahoma Department of Corrections' executive director....

The execution was carried out before more than 20 family/victim witnesses, including Kopf, her two daughters, and Matthews' father. A spiritual adviser from California, Mary Meyer, prayed at Grissom's feet in the execution chamber.

In his lengthy last statement, Grissom said he was under the influence of drugs and alcohol at the time of the shooting. "It's still my fault," he added. "I'm not who I made myself look like that one day." He said he did not deserve forgiveness but prayed that "you all can forgive me, not for my sake, for your sake." He added that "it is the only way you will find God in this."

With the four executions completed in four states this week, the US has now carried out a total of 10 executions nationwide faster in 2025 than in any year since 2015.  But, this is still a relatively slow pace in recent US history, as there were 30 executions in the US before the end of March in 1999.  It will be interesting to see if the current pace of executions in 2025 continues throughout the year.

Florida completes execution of man 32 years after double murder of grandmother and granddaughter

As reported in this AP piece, a "Florida man who killed an 8-year-old girl and her grandmother on a night in which he drank heavily and used drugs was executed Thursday evening." Here is more:

Prison officials said Edward James, 63, was pronounced dead at 8:15 p.m. after receiving a three-drug injection at Florida State Prison near Starke. He drew the death penalty after pleading guilty to the Sept. 19, 1993, killings of Toni Neuner, 8, and her grandmother, Betty Dick, 58.

The U.S. Supreme Court denied James’ final appeals earlier in the day, clearing the way for the state’s second execution of the year. Gov. Ron DeSantis signed James’ death warrant earlier this year and another warrant for an execution in early April...

Court records show James drank up to 24 beers at a party, downed some gin and also took LSD before returning to his room at Dick’s house. The girl was raped and strangled to death. The other children were not harmed.

James, who pleaded guilty to the charges, was also convicted of the girl’s rape and of stealing Dick’s jewelry and car after stabbing her 21 times. Court documents show James drove the car across the country, occasionally selling pieces of jewelry until he was arrested on Oct. 6 of that year in Bakersfield, California.

Police obtained a videotaped confession from James, who despite his guilty pleas was sentenced to death upon an 11-1 recommendation by a jury.

James’ lawyers had filed several appeals with state and federal courts, all of which were denied. Most recently, the Florida Supreme Court rejected an argument that his longtime use of drugs and alcohol, several head injuries and a heart attack in 2023 led to a mental decline that would make executing him cruel and unusual punishment.

Arizona completes execution 20+ years after murderer sought "suicide by jury"

As reported in this USA Today article, "Arizona executed convicted murderer Aaron Gunches by lethal injection Wednesday, marking the first execution in the state since 2022. Gunches, 53, had sought his execution since his guilty plea for the 2002 murder of Ted Price outside of Phoenix and received a lethal dose of pentobarbital at the Arizona State Prison Complex in Florence, Arizona." Here is more:

Gunches was set to be executed in 2023 but a series of botched executions in 2022 led Democratic Gov. Katie Hobbs to suspend capital punishment for a review that ended late last year.... Gunches' execution was a test of the updated protocol, under which state officials have said there will now be additional members on the execution team....

The daughter of the victim, Brittney Price, released a statement ahead of the execution saying that its completion lifted a weight off of her shoulders. "The pain of reliving the circumstances surrounding my father’s death for over two decades has taken a significant toll on my family and me," Price wrote. "Today marks the end of that painful chapter and I couldn’t be more grateful."

Karen Price, the victim's sister, previously told USA TODAY that Gunches' execution would end her dealing with the aftermath of her brother's murder, but "it's not closure."... She previously told USA TODAY that the process of keeping track of Gunches was "emotionally taxing," and has long been ready for his execution. "We want to be done with him, to not have to think about him anymore, to not have to get any calls from victims advocates," Price said "We just want to be done."...

Gunches pleaded guilty to killing Ted Price, who was the former longtime partner of Gunches' girlfriend.... Gunches shot Price four times.... Gunches was arrested in La Paz County after shooting an Arizona Department of Public Safety officer during a traffic stop, according to the Parker Pioneer. The officer survived.... Investigators matched the bullets used in the La Paz County shooting with those used in Price's death, court records show.....

During his sentencing, Gunches told jurors: "Do what you’re going to do," according to the Arizona Mirror. The presiding judge commented that Gunches was "committing suicide by jury."

In 2018, Gunches wrote the first of five letters to then-Attorney General Mark Brnovich asking to be executed, according to one of his handwritten motions.  In December, Gunches asked to be executed on Valentine's Day and accused the state of pointless "foot-dragging," according to his court filing. The Arizona Supreme Court refused. Gunches waived his right for a clemency hearing, one of his last chances for a reprieve.

Apparently in Arizona, "suicide by jury" is an especially slow way to die.

Louisiana completes its first execution in 15 years and its first by nitrogen gas

As reported in this local article, "Louisiana executed death row prisoner Jessie Hoffman on Tuesday evening, killing him with nitrogen gas, a method never before used in the state." Here is more:

The execution was Louisiana's first in 15 years. Hoffman was convicted in the 1996 murder and rape of Mary "Molly" Elliott, a 28-year-old advertising executive who was abducted the day before Thanksgiving and shot in rural St. Tammany Parish....

Shortly before Hoffman was set to be executed, a closely divided U.S. Supreme Court rejected a request from his attorneys to issue a stay in his case. Hoffman had argued to them that breathing nitrogen gas would violate his Buddhist beliefs.

U.S. Supreme Court Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson disagreed with the majority decision and said they would grant a stay for Hoffman. Justice Neil Gorsuch also wrote a dissent, saying both the federal district and appeals courts in Hoffman's case should have considered his claim about the execution method violating his faith under the Religious Land Use and Institutionalized Persons Act.

The Supreme Court order denying a stay, with Justice Gorsuch's short written dissent, is available at this link.

Two more states moving bills forward to make child rape a capital offense

In spring 2023, as detailed in this post, Florida became the first state to authorize the death penalty for the crime of child rape since the Supreme Court's ruling in Kennedy v. Louisiana, 554 U.S. 407 (2008).  (In Kennedy, the Court decided, by a 5-4 vote, that the US Constitution's Eighth Amendment prohibits a state from imposing a death sentence for the crime of child rape.)  In spring 2024, as detailed in this post, Tennessee became the second state to enact legislation allowing the death penalty for certain child rape convictions since Kennedy.

Now, as spring 2025 approaches, local press stories detail that two more states seem to be on track to put similar new capital punishment laws on their books:

From Alabama, "Committee approves bill expanding death penalty for child sexual assault"

From Idaho, "Idaho House unanimously passes child sex abuse death penalty bill"

Especially because Idaho barely ever uses its existing death penalty laws even against murderers (basics here from DPIC), the state's possible expansion of the death penalty to child rape seems unlikley to produce a lot more death sentences.  And yet, as one legislator in Idaho noted, legislative enactments matters in modern Eighth Amendment analysis:    

Rep. John Shirts, R-Weiser, a prosecutor in the Air Force Reserve, said “there are things that are so horrific that people do to children there’s nothing more than ultimate punishment that is just.”  And he suggested Idaho’s bill would help the court re-evaluate the issue. “Some people might argue that this doesn’t have any binding on the court. It really does,” Shirt said.  “It shows what our will, what the state’s will, in these types of cases, are. It goes to that national consensus analysis under the Eight Amendment.”

There were six states with capital child rape statutes on the books when Kennedy was handed down, so it seems unlikley that even four states with new capital child rape statutes woud alter the "national consensus analysis under the Eight Amendment." But it is unclear whether the current Supreme Court would continue to embrace and apply this jurisprudential approach to the Eighth Amendment. And, notably, the only three Justices still on the Court since the 2008 Kennedy decision, namely the Chief Justice and Justices Thomas and Alito, were all part of the dissent in that case.

That all said, I am unaware of any a capital child rape case going to trial in Florida's since its capital child rape statute was enacted in 2023.  So, it likely will take (many more?) years before a child rape death sentence is actually imposed and appealed in any jurisdiction to provide the Supreme Court an opportunity to reconsider its Kennedy ruling.

Split Fifth Circuit panel vacates preliminary injunction to allow Louisiana to move forward with nitrogen gas execution

As reported in this post a few days ago, a federal district judge entered a temporary injunction to prevent Louisiana from moving forward next week with it first nitrogen gas execution.  That order was swiftly appealed to the Fifth Circuit, and late yesterday a Fifth Circuit panel, by a 2-1 vote, vacated that injunction via this opinion.  Here is how the seven-page majority opinion begins:

Jessie Hoffman is scheduled to be executed by nitrogen hypoxia on March 18, 2025.  The district court has now entered a preliminary injunction preventing Louisiana state officials from carrying out his execution on the ground that death by nitrogen hypoxia violates the Eighth Amendment.

The preliminary injunction is not just wrong.  It gets the Constitution backwards, because it’s premised on the odd notion that the Eighth Amendment somehow requires Louisiana to use an admittedly more painful method of execution —namely, execution by firing squad rather than by nitrogen hypoxia.  That can’t be right.  Indeed, it contravenes Supreme Court precedent.  We accordingly vacate the preliminary injunction. 

Here is how the two-paragraph dissent by Judge Haynes begins:

I think the district court properly exercised its discretion in granting a preliminary injunction given the limited amount of time Hoffman had to challenge his execution by nitrogen hypoxia, which is new in Louisiana.  The district court fully explains all the efforts made: Hoffman tried throughout and did not wait until the last minute.  Instead, the state did not let him challenge earlier.  The timeline in which he could challenge it and the setting of his execution date, which is March 18, all happened within the last month.  As the district judge thoroughly discusses, there are issues that need more time to be resolved and decided.  Obviously, that cannot be done once he is dead.  While I am not suggesting a long time, I do think granting a preliminary injunction to allow some additional time to further review and address the method of execution (in addition to the other reasons given by the district court) is not an abuse of discretion by the district court.

I assume the defendant here will seek en banc review in the Fifth Circuit and that this matter will get to the Supreme Court thereafter.  I also assume that the execution is now much more likely to go forward on March 18.

Prior related post:

• Federal judge temporarily halts Louisiana's plans to conduct execution by nitrogen gas 

Lots of notable execution news and notes around the US

With a notable number of new executions scheduled, and notable new execution methods being utilized or considered in a number of states, the application of capital punishment in the United States is generating even more than its usual number of headlines.  Here are a few of the more recent stories and commentaries catching my eye:

From the AP, "A look at the status of US executions in 2025"

From the AP, "Arizona prisoner set to be executed next week passes up chance to ask for reprieve"

From The Atlantic, "The Way of the Gun: Death by firing squad has come back to America."

From The Guardian, "America’s next killing spree: 10 days, five states, six death-row prisoners set to die"

From the Idaho Capital Sun, "Idaho will be only state with firing squad as main execution method, after governor signs bill"

From NOLA.com, "Chefs, artists, business owners come out against Louisiana execution using nitrogen gas"

From Slate, "We’re Really Doing Execution by Firing Squad Again?"

From USA Today, "Texas, Louisiana both halted imminent executions on Tuesday. What's going on?"

Federal judge temporarily halts Louisiana's plans to conduct execution by nitrogen gas

As reported in this NBC News piece, a "federal judge on Tuesday temporarily blocked Louisiana's first execution in 15 years after lawyers for the condemned man argued a new method known as nitrogen hypoxia would violate his constitutional rights." Here is more:

The inmate, Jessie Hoffman Jr., 46, said the use of a mask to deliver only nitrogen gas, depriving him of oxygen, "substantially burdens" his ability to engage in his Buddhist breathing practices and creates "superadded pain and suffering." Hoffman's execution, scheduled for March 18, was set to be the first in Louisiana using nitrogen hypoxia.

Chief U.S. District Judge Shelly Dick of the Middle Louisiana District ruled in partial favor of Hoffman, writing that it is in the "best interests of the public" to be able to examine the state's "newly proposed method of execution on a fully developed record." She said she was particularly troubled that the state released only a redacted protocol to the public until the day before the preliminary injunction hearing Friday.

"The public has paramount interest in a legal process that enables thoughtful and well-informed deliberations, particularly when the ultimate fundamental right, the right to life, is placed in the government's hands," she wrote. She said Hoffman cannot be executed until his claims are "decided after a trial on the merits and a final judgment is issued."

Attorney General Liz Murrill posted on X that "we disagree with the district court's decision and will immediately appeal to the Fifth Circuit," which her office did....

In 1996, Hoffman was 18 when, prosecutors say, he abducted his victim, Mary Elliott, at gunpoint from a New Orleans parking garage on the night before Thanksgiving Day, forced her to withdraw $200 from an ATM, then raped and shot her to death.

State Corrections Secretary Gary Westcott selected nitrogen hypoxia as Hoffman's method of execution. Last year, the state legalized the use of nitrogen gas in addition to the more widely used method of lethal injection, but officials have had trouble procuring the necessary lethal injection drugs since the state’s last execution in 2010. More than 50 people are on Louisiana's death row.

Alabama has had similar trouble sourcing lethal injection drugs, and last year it became the first state to administer nitrogen hypoxia. It has executed four prisoners using the method, one of them last month.

Louisiana corrections officials said they traveled to Alabama to study how its nitrogen system functions. Louisiana subsequently built a nitrogen hypoxia facility at the Louisiana State Penitentiary in Angola consisting of an execution chamber, a valve and storage room, and an observation area. The state said in a court filing Sunday that "breathing in the mask is 'very comfortabl[e]'" and that "the mask is very similar, if not identical, to the one used in Alabama's system."

UPDATE: The 29-page ruling by Chief Judge Dick is available at this link.  It will be interesting to see how and how quickly the Fifth Circuit ruling on this matter and whether and when it may come before the US Supreme Court.

"Three Justices and a Fatal Mistake"

The title of this post is the headline of this notable new Washington Monthly piece.  The piece's subtitle reveals more clearly what the author, Cliff Sloan, is discussing and his driving perspective: "Lewis Powell, Harry Blackmun, and John Paul Stevens allowed the death penalty to return. Then they disavowed it."  Especially with the 50th anniversary of Gregg v. Georgia now only about a year away, this piece serves as a useful reminder of the national capital punishment inflection point that the Supreme Court helped to create a half century ago.  I recommend the piece in full, and here are excerpts:

[I]t is striking that three Justices whose votes allowed the death penalty to be revived in 1976 — Lewis Powell, Harry Blackmun, and John Paul Stevens — came to regret and disavow their votes. In contrast to their 1976 votes permitting the death penalty, they eventually concluded that the death penalty is fundamentally and irremediably flawed in our constitutional system. There is much to learn from their journeys....

ur current death penalty regime dates to the 1970s. In 1972, by a 5-4 vote in Furman v. Georgia, the Supreme Court struck down all death penalty laws. Justice Potter Stewart famously stated that the standardless and random death sentences at that time were “cruel and unusual in the same way that being struck by lightning is cruel and unusual” — and thus violated the Eighth Amendment, which prohibits “cruel and unusual punishments.” When the Court decided Furman, the death penalty was in decline. Not a single person had been executed in the United States in the previous five years. Two of the five Justices in the Furman majority (Stewart and Byron White) emphasized their view that the death penalty could be constitutional if states limited its use to the most culpable defendants — the worst of the worst. In a dissent for four Justices, Chief Justice Warren Burger stressed this point and urged the enactment of new death penalty laws. A pro-death penalty firestorm swept the states. Thirty-five states passed revised capital punishment statutes. In 1976, the Court reviewed the new laws in a series of decisions under the lead case of Gregg v. Georgia. Launching the modern death-penalty era, the Supreme Court approved laws with a two-stage death-penalty process—the first for guilt or innocence and the second for life or death, with jury consideration of aggravating circumstances and mitigating factors. Laws imposing a mandatory death sentence for certain crimes, on the other hand, were found unconstitutional because they did not allow individualized determinations.

The Gregg cases split the Court into three camps—abolitionists, enthusiasts, and a floating middle. The abolitionists — William Brennan and Thurgood Marshall — found the death penalty inherently unconstitutional and rejected all of the new laws. At the other end, the enthusiasts - Burger, White, Blackmun, and William Rehnquist – voted to uphold all the laws. And the floating middle — Powell, Stevens, and Stewart—cast the deciding votes. They upheld some laws by joining the enthusiasts and struck down others by joining the abolitionists.

With the floating middle in control, the 1976 decisions gave the green light to death sentences if they complied with the two-phase procedure and adhered to safeguards. Since those fateful rulings, more than 1600 people in the United States have been killed by state governments. Another two thousand people have been sentenced to die and await their execution while languishing in harsh conditions on death row.

If the three Justices who later found the death penalty unacceptable — Powell, Blackmun, and Stevens — had voted against the death penalty in 1976, their votes, with abolitionists Brennan and Marshall, would have prevented the restoration of the death penalty and eliminated it nearly 50 years ago.

South Carolina completes first firing squad execution in US in 15 years

As reported in this AP piece, a "South Carolina man who killed his ex-girlfriend’s parents with a baseball bat was executed by firing squad Friday, the first U.S. prisoner in 15 years to die by that method, which he saw as preferable to the electric chair or lethal injection." Here is more:

Three volunteer prison employees used rifles to carry out the execution of Brad Sigmon, 67, who was pronounced dead at 6:08 p.m.  Sigmon killed David and Gladys Larke in their Greenville County home in 2001 in a botched plot to kidnap their daughter. He told police he planned to take her for a romantic weekend, then kill her and himself.

Sigmon’s lawyers said he chose the firing squad because the electric chair would “cook him alive,” and he feared that a lethal injection of pentobarbital into his veins would send a rush of fluid and blood into his lungs and drown him.  The details of South Carolina’s lethal injection method are kept secret in South Carolina, and Sigmon unsuccessfully asked the state Supreme Court on Thursday to pause his execution because of that.

On Friday, Sigmon wore a black jumpsuit with a hood over his head and a white target with a red bullseye over his chest.  The armed prison employees stood 15 feet (4.6 meters) from where he sat in the state’s death chamber — the same distance as the backboard is from the free-throw line on a basketball court.  Visible in the same small room was the state’s unused electric chair.  The gurney used to carry out lethal injections had been rolled away.

The volunteers all fired at the same time through openings in a wall.  They were not visible to about a dozen witnesses in a room separated from the chamber by bullet-resistant glass.  Sigmon made several heavy breaths during the two minutes that elapsed from when the hood was placed to the shots being fired.  The shots, which sounded like they were fired at the same time, made a loud, jarring bang that caused witnesses to flinch.  His arms briefly tensed when he was shot, and the target was blasted off his chest.  He appeared to give another breath or two with a red stain on his chest, and small amounts of tissue could be seen from the wound during those breaths....

Since 1977 only three other prisoners in the U.S. have been executed by firing squad.  All were in Utah, most recently Ronnie Lee Gardner in 2010.  Another Utah man, Ralph Menzies, could be next; he is awaiting the result of a hearing in which his lawyers argued that his dementia makes him unfit for execution....

Supporters and lawyers for Sigmon asked Republican Gov. Henry McMaster to commute his sentence to life in prison. They said he was a model prisoner trusted by guards and worked every day to atone for the killings and also that he committed the killings after succumbing to severe mental illness.  But McMaster denied the clemency plea. No governor has ever commuted a death sentence in the state, where 46 other prisoners have been executed since the death penalty resumed in the U.S. in 1976.  Seven have died in the electric chair and 39 others by lethal injection.

Noting the dynamic state of death penalty debate in red states

This new lengthy  Stateline article, imperfectly headlined "Trump’s death penalty push faces resistance in some red states," highlights a lot of recent state capital punishment developments.  I recommend the whole piece, and here are excerpts:

In an executive order he signed his first day in office, Trump directed... the U.S. Department of Justice to help states obtain lethal injection drugs, though it remains unclear how it will do so. The order also instructs the attorney general to encourage state attorneys general and district attorneys to pursue capital charges for all eligible crimes....

Each state has its own death penalty laws for state crimes.  But growing anti-death penalty sentiment in the states may limit the impact of Trump’s directive....

In conservative Indiana, Kansas, Kentucky and Ohio, Republican lawmakers have introduced bills to abolish the death penalty. In Georgia, the House earlier this month approved a bill that would prevent the execution of people who have intellectual disabilities. The measure, which lowers the burden of proof for intellectual disability claims and introduces a pretrial hearing on whether a defendant is intellectually disabled, now moves to the Senate for consideration. And a GOP-sponsored bill in Oklahoma would pause all pending executions and prevent new execution dates from being scheduled.

However, another bill in Oklahoma would make people living illegally in the U.S. who are convicted of first-degree murder eligible for the death penalty. And some states, including Iowa and New Mexico, are considering bills that would expand capital punishment by making the murder of a police officer eligible for the death penalty. Both states have abolished capital punishment, but there have been multiple attempts over the years to reinstate it for specific crimes.... Florida also enacted a law earlier this year mandating the automatic imposition of capital punishment for people living illegally in the U.S. convicted of capital crimes, including first-degree murder and child rape....

Meanwhile, other states are focusing on execution methods. Lawmakers in Idaho approved a bill that could make it the first state to use the firing squad as its primary execution method. Arizona lawmakers are considering a bill to allow execution by firing squad, and legislators in Arkansas, Nebraska and Ohio are weighing bills that would add nitrogen gas hypoxia as an execution method.

On eve of scheduled firing squad execution, notable coverage and commentary on execution methods

Brad Sigmon, who a quarter century ago murdered his ex-girlfriend’s parents, chose to be executed by firing squad rather than via the two other methods available in South Carolina, the electric chair and lethal injection. This execution is scheduled for tomorrow evening, and if it goes forward it will be the first firing squad execution in the US in 15 years and also the first modern era firing squad execution in a state other than Utah. The modern novelty of this execution method, as well as actions in other states to move away from reliance on lethal injection execution methods, is generating considerable news and commentary. Here are just a few recent pieces catching my eye: "

From the AP, "The US is killing someone by firing squad for the first time in 15 years. Here’s a look at the history"

From the AP, "Louisiana and Arkansas look to nitrogen executions"

From The Conversation, "Death by firing squad set to resume in the US – but no matter the method, all means of execution come with a troubling history"

From Idaho Capital Sun, "Idaho could be only state with firing squad as main execution method, after Legislature passes bill"

From NPR, "South Carolina plans to carry out a firing squad execution. Is it safe for witnesses?"

From USA Today, "SC inmate to die by firing squad. Is the 'barbaric' method making a comeback?"

Alabama Gov commutes death sentence to LWOP based on "enough questions" about defendant's guilt

As reported in this AP piece, "Alabama Gov. Kay Ivey commuted the death sentence of Robin 'Rocky' Myers to life in prison Friday, saying there were enough questions about his guilt that she could not move forward with his execution." Here is more about a notable state clemency decision:

Ivey said Myers, 63, will spend the rest of his life in prison without the possibility of parole instead of being executed later this year. Ivey noted that was the sentence jurors recommended at his 1994 trial. The Republican governor said she is a staunch supporter of the death penalty but “I have enough questions about Mr. Myers’ guilt that I cannot move forward with executing him.”

“In short, I am not convinced that Mr. Myers is innocent, but I am not so convinced of his guilt as to approve of his execution. I therefore must respect both the jury’s decision to convict him and its recommendation that he be sentenced to life without parole,” Ivey said in a statement.

Myers was convicted of capital murder in the 1991 stabbing of Ludie Mae Tucker, 69, at her Decatur home. Myers, who lived across the street from Tucker, has long maintained he is innocent, and a juror at his 1994 trial supported the push for clemency.

The reprieve came over the objections of Republican Attorney General Steve Marshall, who said he was “astonished” by the decision. Last week the Alabama Supreme Court granted the state attorney general’s request to authorize an execution date for Myers using nitrogen gas. The next step was for Ivey to set that date.

It was the first execution Ivey has stopped since she first took office in 2017. Ivey, who has presided over more than 20 executions, called it “one of the most difficult decisions I’ve had to make as governor.” “But I pray that the Tucker family may, in some way, find closure and peace knowing this case is closed, and Mr. Myers will spend the rest of his life in prison,” Ivey said.

There were multiple questions surrounding Myers’ case, his attorney had argued. No physical evidence at the scene connected him to the crime. Tucker identified her assailant as a short, stocky Black man but did not name Myers or a neighbor as the attacker even though they had met several times, according to Myers’ son. Jurors voted 9-3 that he serve life in prison. However, the judge sentenced Myers to death under Alabama’s now-abolished system that let judges decide death sentences.

Ivey said there was “circumstantial evidence” against Myers, but it is “riddled with conflicting evidence from seemingly everyone involved.” Much of the state’s case involved a VCR taken from Tucker’s home and whether Myers was the person who brought it to a drug house to sell, according to court records....

The last time an Alabama governor commuted a death sentence was in 1999.

Marshall sent the governor a letter Thursday disputing the innocence claim and urging her to let the execution go forward. “I am astonished by Governor Ivey’s decision to commute the death sentence of Rocky Myers and am bewildered that she chose not to directly communicate with me about this case or her decision,” Marshall said Friday in a statement. He added that his staff “will go home tonight deeply saddened, not for themselves, but for the family of Ludie Mae Tucker.”

SCOTUS rules in favor of condmened Oklahoma defendant Richard Glossip based on prosecutorial misconduct

Appeals by Oklahoma death row defendant Richard Glossip has now produced two notable opinions from the US Supreme Court.  A decade ago as reported here, in a 5-4 ruling in favor of the state in Glossip v. Gross, 576 U.S. 863 (2015), the Supreme Court rejected Glossips's claims that using midazolam in lethal injection protocols violated the Eighth Amendment.  Today, in Glossip v. Oklahoma, No. 22-7466 (S. Ct. Feb. 25, 2025) (available here), in a 5-3 ruling in favor of Richard Glossip (or maybe a 6-2 ruling or a 5-1-2 ruling), the Supreme Court reversed Glossip's conviction and remanded for a new trial based on its conclusion that prosecutors violated its constitutional obligation to correct false testimony.  Here is the composition of the Court's votes and opinions:

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KAGAN, KAVANAUGH, and JACKSON, JJ., joined, and in which BARRETT, J., joined as to Part II.  BARRETT, J., filed an opinion concurring in part and dissenting in part. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined, and in which BARRETT, J., joined as to Parts IVA–1, IV–A–2, and IV–A–3.  GORSUCH, J., took no part in the consideration or decision of the case.

Here is how Justice Sotomayor's opinion for the Court gets started:

An Oklahoma jury convicted petitioner Richard Glossip of paying Justin Sneed to murder Barry Van Treese and sentenced him to death. At trial, Sneed admitted he beat Van Treese to death, but testified that Glossip had offered him thousands of dollars to do so. Glossip confessed he helped Sneed conceal his crime after the fact, but he denied any involvement in the murder.

Nearly two decades later, the State disclosed eight boxes of previously withheld documents from Glossip’s trial. These documents show that Sneed suffered from bipolar disorder, which, combined with his known drug use, could have caused impulsive outbursts of violence. They also established, the State agrees, that a jail psychiatrist prescribed Sneed lithium to treat that condition, and that the prosecution allowed Sneed falsely to testify at trial that he had never seen a psychiatrist. Faced with that evidence, Oklahoma’s attorney general confessed error. Before the Oklahoma Court of Criminal Appeals (OCCA), the State conceded that the prosecution’s failure to correct Sneed’s testimony violated Napue v. Illinois, 360 U.S. 264 (1959), which held that prosecutors have a constitutional obligation to correct false testimony. The attorney general accordingly asked the court to grant Glossip a new trial.  The OCCA declined to grant relief because, it held, the State’s concession was not “based in law or fact.” 2023 OK CR 5, ¶25, 529 P.3d 218, 226.  Because the prosecution violated its obligations under Napue, we reverse the judgment below and remand the case for a new trial.

Here is the start of Justice Barrett's separate opinion, which makes it me disincline to consider her vote entirely in favor of Glossip:

While I agree with much of the Court’s analysis, I would not order the Oklahoma Court of Criminal Appeals (OCCA) to set aside Richard Glossip’s conviction.  The OCCA did not make factual findings on the most important questions, and the record is open to multiple plausible interpretations. Consistent with our ordinary practice, the Court should have corrected the OCCA’s misstatement of Napue v. Illinois and remanded this case for further proceedings. 360 U.S. 264 (1959).  Instead, the Court has drawn its own conclusions about what the record shows, thereby exceeding its role.

Here is the start of Justice Thomas's dissenting opinion:

Richard Glossip — a convicted murderer twice sentenced to death by Oklahoma juries — challenges the denial of his fifth application for state post-conviction relief.  Although Glossip won the support of Oklahoma’s new attorney general, he failed to persuade either body with authority to grant him relief: The Oklahoma Court of Criminal Appeals (OCCA) denied Glossip’s application as both procedurally deficient and nonmeritorious, and Oklahoma’s Pardon and Parole Board denied clemency.  Because this Court lacks the power to override these denials, that should have marked the end of the road for Glossip.  Instead, the Court stretches the law at every turn to rule in his favor.  At the threshold, it concocts federal jurisdiction by misreading the decision below.  On the merits, it finds a due process violation based on patently immaterial testimony about a witness’s medical condition.  And, for the remedy, it orders a new trial in violation of black-letter law on this Court’s power to review state-court judgments.  I respectfully dissent.

Very interesting and another reminder of how "death is different" in so many ways.

Might five US states complete six executions in March 2025?

This new USA Today piece highlights that a trio of states that have not conducted many executions recently are scheduled to carry out death sentences next month:

Louisiana's execution of Christopher Sepulvado on March 17 would mark the end of a 15-year break in executions in the state, which plans to use nitrogen gas.  Arizona's execution of Aaron Gunches on March 19 would be the first in the state since 2022, when the state struggled to carry out three executions.  Meanwhile South Carolina is set to execute its fourth inmate since September, when the state reinstated the practice after a 13-year pause.

In addition, accourding to the Death Penalty Information Center's Upcoming Executions page, Oklahoma and Texas have an execution scheduled in March, and Louisiana actually two executions scheduled on back-to-back days in mid-March.

If all six of these scheduled executions go forward, March 2025 will have more executions completed in the US than in over a decade.  The last month with six executions, based on my scan of the DPIC's execution database, was back in January 2015.  And if all ssx scheduled execution are completed, the US will have completed as many executions in the first three months of 2025 as it did in all of 2021 (which set a modern historic low for US executions in one year). 

After fairly steady declines in the number of yearly executions in the 2000s and and 2010s, the 2020s have so far seen a notable (though still modest) uptick in yearly executions since the modern low in 2021.  Time (and litigation) will tell if that trend will continue in 2025 and beyond. 

AG Bondi orders transfer of federal lifer to Oklahoma to enable execution of state death sentence

As reported in this local article, "New U.S. Attorney General Pam Bondi has directed the Federal Bureau of Prisons to return convicted murderer John Fitzgerald Hanson to Oklahoma for execution." Here is more:

"Inmate Hanson viciously murdered an innocent woman," Bondi told the acting director of Federal Bureau of Prisons in a memo Tuesday. "The Department of Justice owes it to the victim and her family − as well as the public − to transfer inmate Hanson so that Oklahoma can carry out this just sentence," she wrote.

Hanson, 60, is serving a life sentence for bank robbery and other federal crimes at the U.S. Penitentiary in Pollock, Louisiana.  He avoided execution in 2022 when the Federal Bureau of Prisons under the Biden administration refused to transfer him.

Oklahoma's attorney general, Gentner Drummond, renewed the state's request for a transfer on Jan. 23. He made the request after President Donald Trump issued an executive order stating that it is U.S. policy "to ensure that the laws that authorize capital punishment are respected and faithfully implemented."

Drummond wants the transfer to be completed before the state's first execution of 2025 so Hanson can be scheduled next. Oklahoma is set to execute confessed killer Wendell Grissom on March 20 at the Oklahoma State Penitentiary in McAlester.

Hanson is asking a federal judge in Louisiana to prevent his transfer.  "It is well established that the federal government enjoys primary jurisdiction overan individual it 'first arrested and imprisoned,'" his attorneys argued in a Jan. 29 complaint.

Hanson faces execution for murdering retired banker Mary Agnes Bowles after kidnapping her from the parking lot of a Tulsa mall on Aug. 31, 1999. The victim was 77. He and an accomplice wanted her car for a robbery spree. Hanson shot her in a ditch near Owasso after the accomplice gunned down a dirt pit owner, Jerald Thurman, according to testimony at his trial....  

Hanson had been set for execution in Oklahoma on Dec. 15, 2022. A regional director at the Federal Bureau of Prisons refused to release him, writing "his transfer to state authorities for state execution is not in the public interest." The position was in keeping with the Biden administration's opposition to the death penalty.

This press release from the Oklahoma Attorney General notes the litigation over the transfer and provides this link to the Justice Department's filing.  Though I am not expert or even fully familiar with all prisoner transfer law, it strikes me as perverse (as well as quite dangerous) if a condemned state murderer would be able to evade a lawful state death sentence because he committed additional serious crimes which led him to also receive federal life sentences.

Texas completes its second execution of 2025 of man involved in multiple murders

As reported in this AP piece, a " Texas man who killed his strip club manager and another man, then later prompted a massive lockdown of the state prison system when he used a cellphone smuggled onto death row to threaten a lawmaker, was executed Thursday night." Here is more:

Richard Lee Tabler, 46, was given a lethal injection at the state penitentiary in Huntsville. He is the second person executed in Texas in a little over a week, with two more scheduled by the end of April. The time of death was 6:38 p.m. CST.

Tabler was condemned for the Thanksgiving 2004 shooting deaths of Mohammed-Amine Rahmouni, 28, and Haitham Zayed, 25, in a remote area near Killeen in Central Texas. Rahmouni was the manager of a strip club where Tabler worked until he was banned from the place. Zayed was a friend of Rahmouni, and police said both men were killed in a late-night meeting to buy some stolen stereo equipment that was actually a planned ambush.

Tabler also confessed to killing two teenage girls who worked at the club, Tiffany Dotson, 18, and Amanda Benefield, 16. He was indicted but never tried in their killings.

Tabler had repeatedly asked the courts that his appeals be dropped and that he be put to death. He also has changed his mind on that point several times, and his attorneys have questioned whether he is mentally competent to make that decision. Tabler’s prison record includes at least two instances of attempted suicide, and he was previously granted a stay of execution in 2010....

Tabler’s death row phone calls in 2008 to state Sen. John Whitmire, who is now the mayor of Houston, prompted an unprecedented lockdown of more than 150,000 inmates in the the nation’s second-largest prison system. Some were confined to their cells for weeks while officers swept more than 100 prisons to seize hundreds of items of contraband, including cellphones.

Whitmire led a Senate committee with oversight of state prisons, and said at the time that Tabler warned him that he knew the names of his children and where they lived. Whitmire, through a spokesperson at the mayor’s office, declined to comment on Tabler’s pending execution.

The ACLU appealed Tabler’s case to the U.S. Supreme Court last year, claiming he was denied adequate legal representation during his lower court appeals by attorneys who refused to participate in hearings at what they said was his request....

Tabler recruited a friend, Timothy Payne, a soldier at nearby Fort Cavazos, and lured Rahmouni and Zayed to a meeting under the guise of buying the stolen stereo equipment. Tabler shot them both in their car, then pulled Rahmouni out and had Payne video him shooting Rahmouni again.

Tabler later confessed to the killings. During the sentencing phase of his trial, prosecutors introduced Tabler’s written and videotaped statements saying he also killed Dotson and Benefield days later because he was worried they would tell people he killed the men.

Florida completes its first execution of 2025 of murderer of a couple 28 years ago

As reported in this AP piece, a "Florida man convicted of killing a husband and wife at a remote farm in an attack witnessed by the couple’s toddler was put to death Thursday in the state’s first execution of the year."  Here is more:

James Dennis Ford, 64, was pronounced dead at 6:19 p.m. following a lethal injection at Florida State Prison. He was convicted of the murders of Gregory Malnory, 25, and his wife Kimberly, 26, who were killed during a 1997 fishing trip at a sod farm in southwest Florida’s Charlotte County where court records showed both men worked.

Ford had nothing to say Thursday evening to about 25 witnesses present for the execution. He was strapped on a gurney as the three-drug injection began, at first his chest heaving and then slowly nothing more. A few minutes later a staffer shook him and yelled “Ford! Ford!” to see if he was still conscious. There was no response.

At the time of the killings, the couple’s 22-month-old daughter witnessed the attack while strapped in a seat in the family’s open pickup truck. She survived an 18-hour ordeal before workers came upon the crime scene and found the girl covered in her mother’s blood and suffering from numerous insect bites, according to investigators.

The daughter, Maranda Malnory, recently told Fort Myers television station WBBH that she had no recollection of what had happened and only remembers her parents through photos and the memories of others. “I told one of my grandmas the other day you grieve the people you knew,” she said. “But I grieve what could have been.”

Ford’s execution was the first in Florida in 2025. One person was put to death in 2024, down from six in 2023, when Gov. Ron DeSantis was campaigning for the Republican presidential nomination. During the previous three years, the governor didn’t sign off on any executions. He signed Ford’s death warrant in January....

Court documents show Ford attacked Gregory Malnory after the group arrived to go fishing, shooting him in the head with a .22-caliber rifle, beating him with an axe-like blunt instrument and finally slitting his throat. Kimberly Malnory was beaten, raped and then shot with the same rifle, authorities had said.

Ford initially told investigators that the Malnorys were alive when he left them to go hunting, suggesting someone else killed them. Prosecutors said in a court filing that there was “overwhelming proof that Ford was responsible for the murders and the rape.”...

The U.S. Supreme Court denied Ford’s final appeal Wednesday without comment. Ford’s lawyers had filed numerous appeals since his sentencing, all unsuccessful. Recently the Florida Supreme Court rejected claims that his IQ of about 65 at the time of the murders put him in an intellectually disabled category with a mental age then of about 14 — therefore ineligible for execution, court documents show.

Louisana poised to resume executions with nitrogen gas protocol

As reported in this local article, "Louisiana has approved a protocol for executions by nitrogen hypoxia, which will allow death sentences to be carried out again after nearly 15 years, Gov. Jeff Landry said Monday."  Here is more:

Louisiana has not carried out the death penalty since 2010.

In an execution by nitrogen hypoxia, the inmate's face is covered by a mask and pure nitrogen is pumped in instead of oxygen, causing death by asphyxiation.

“These capital punishment cases have been reviewed at every judicial level, have had decades of unsuccessful appeals, and the death sentences affirmed by the courts,” Landry said in the release. “I expect our DA’s to finalize these cases and the courts to move swiftly to bring justice to the crime victims who have waited for too long.”

The Louisiana Legislature passed a law permitting nitrogen hypoxia executions in the second 2024 special session, amid a shortage of lethal injection drugs. State Rep. Nicholas Muscarello, R-Hammond, sponsored the law, which also added electrocution to the list of state-sanctioned execution methods.

Louisiana stopped using electrocution to carry out the death penalty 34 years ago. Legal challenges and reports of burns on the bodies of those executed helped pressure the state to retire its electric chair.

It is unclear if and when an execution will take place. 57 people currently sit on death row, according to Cecelia Kappel of the Capital Appeals Project, a nonprofit law firm that represents all defendants facing the death penalty who would otherwise have a public defender....

State Attorney General Liz Murrill, who has typically been in lockstep with Landry on criminal justice issues, praised the state's move toward resuming executions. "Those sentenced to death have been convicted by a jury of their peers for the most heinous and barbaric crimes imaginable. These are the worst of the worst," she said in a statement. "Governor Landry and I are committed to moving this process forward to finally get justice for victims."...

Landry's office included a brief summary of the new execution protocol along with the news release, saying it "builds upon Alabama's constitutionally approved method." The condemned person will have access to a spiritual adviser. "Designated victim relationship witnesses" and media will be authorized to observe so long as it is in accordance with Louisiana law.

North Carolina state judge rules that "race was a significant factor" in capital jury selection

As reported in this AP article, "racial bias tainted the decision to strike Black people from the jury pool and to impose the death penalty in the 2009 trial of a Black man in North Carolina, a judge ruled on Friday, part of what he called “glaring” patterns of bias in a prosecutorial district outside the capital." Here is more:

Hasson Bacote was among a group of 15 death row inmates whose sentences were commuted to life without parole last year by Gov. Roy Cooper in one of his final acts in office. That means the ruling won’t make a legal difference for Bacote. However it could help several other death row inmates in similar circumstances, said Gretchen M. Engel, executive director of the Center for Death Penalty Litigation.

In addition to the problems that prejudiced Bacote’s trial, Superior Court Judge Wayland Sermons Jr. found that racial bias tainted jury selection and sentencing in other Johnston County cases. Sermons found “glaring” bias in the fact that Black defendants in capital cases were sentenced to death 100% of the time while similar white defendants received a death sentence only 45% of the time.

The judge said race was a “significant factor” in the decisions to seek the death penalty in the first place and in jury selection, when looking at other cases tried by Assistant District Attorney Gregory Butler as well as other death penalty cases in the same prosecutorial district, which at the time included Harnett and Lee counties.

In Bacote’s case, Butler struck 75% of prospective Black jurors and only 23% of prospective non-Black jurors. In Butler’s other cases, risk of removal from the jury pool by peremptory challenges was more than 10 times higher for Black candidates than for non-Black candidates, Sermons wrote.

Butler testified that he never struck a juror for a “racial reason.” Sermons found that unconvincing. In Bacote’s case, for example, Butler explained his removal of five Black jurors by citing their opposition to the death penalty. However, “Butler did not strike white jurors who expressed similar reservations, in some cases with nearly identical language,” Sermons wrote....

The North Carolina Department of Justice, whose lawyers represented the state in Bacote’s case, have already “notified the court that we intend to appeal,” said Nazneen Ahmed, a spokesperson for Attorney General Jeff Jackson, who leads the department.

Bacote challenged his death sentence under North Carolina’s 2009 Racial Justice Act, which allowed prisoners to receive life without parole if they could show that racial bias was the reason for their death sentence.  The law was repealed in 2013, but the state Supreme Court has ruled that it still applies to any prisoner who had a Racial Justice Act case pending at the time of the repeal.

During a two-week hearing last fall, Sermons listened to evidence that included statistical studies of how the death penalty is implemented in North Carolina and Johnston County in particular. In his Friday ruling, the judge said the weight of the evidence did not prove that racial disparities prejudiced death penalty cases statewide.

The full 120-page ruling(!) is available at this link.

Alabama completes its fourth execution by means of nitrogen gas

As reported in this local article, "Alabama Death Row inmate was executed tonight for the 1991 slaying of a woman in her Birmingham apartment, who he admitted killing after he got tired of hearing her beg for her life."  Here is more:

Demetrius Terrence Frazier was executed at the William C. Holman Correctional Facility in Atmore. The 52-year-old was put to death by inhaling pure nitrogen gas through a gas mask. He is the fourth inmate in Alabama — and the country — to be executed using that method. It is Alabama’s first execution for 2025 after having led the nation in 2024 with six executions - by either lethal injection or nitrogen gas....

Though Frazier’s execution was punishment for the 1991 slaying of Pauline Brown, he was also serving a life sentence in Michigan for the 1992 killing of a teenager. He was brought to Alabama to await execution in 2011.  Frazier’s lawyers were hoping that before Frazier was escorted into the execution chamber, Michigan Gov. Gretchen Whitmer would ask Alabama to halt the execution and send the inmate back north. That didn’t happen....

Prior to being transferred to the Yellowhammer State in 2011, Frazier was serving multiple life sentences in Michigan for sex crimes and the murder of a 14-year-old girl. Frazier’s lawyers argued that his transfer to Alabama Death Row was illegal, and he should have been serving his life sentences up north. While that battle is no longer being waged in court, Frazier was hoping the Michigan governor would step in. But the Detroit News reported that Whitmer said this afternoon that it was out of her hands.

Brown was a daughter, sister, mother, and had recently become a grandmother. She had worked for 20 years as a cook at Bama Foods. Her life ended in the early morning hours of November 27, 1991, when she was raped and shot in the back of the head. She had been discussing with her mom the plans for Thanksgiving, which was only two days away.

New Attorney General Bondi issues multiple memorandum, including new charging/plea/sentencing and death penalty memos

As reported in this Politico piece, "Pam Bondi is officially in control of the Justice Department — and she’s gone right to work.  President Donald Trump’s attorney general issued a flurry of orders Wednesday just after she was sworn in, releasing 14 'first-day' directives."  Federal criminal justice fans will want to read the whole Politico piece and may want to review all 14 new memos, but the two memos linked in these excerpts seem likely of greatest interest for sentencing fans:

Bondi called for the Justice Department to put its full weight behind Trump’s effort to crack down on illegal immigration, using “all available criminal statutes.” She also called for the department to support the Department of Homeland Security, which has primary responsibility over immigration matters.  Bondi’s memo follows an earlier directive from DOJ’s acting No. 2 official, Emil Bove, instructing FBI-led terrorism task forces across the country to re-focus on immigration.

Bondi’s memo on law-enforcement priorities also said the FBI will shutter the Foreign Influence Task Force it set up during the first Trump administration. Additionally, the Justice Department will bring charges under the Foreign Agents Registration Act only in “instances of alleged conduct similar to more traditional espionage by foreign government actors,” the memo said.  The move seems to be an effort to shift the Justice Department away from prosecutions related to covert propaganda and behind-the-scenes “malign influence” campaigns. DOJ brought several such cases against Trump allies with mixed results....

Bondi said the Justice Department would end a moratorium on federal executions that was put in place during the Biden administration. She pledged that department lawyers will “evaluate all potential avenues to strengthen the federal death penalty as a valid means of punishment for the heinous crimes it is intended to punish.”

Bondi also took aim at Biden’s decision to commute the sentences of 37 inmates on federal death row, giving them sentences of life in prison before Trump took office.  In her memo, Bondi said the Justice Department would seek to arrange a public forum for their victims’ families “to express how the commutations affected them personally.” And she directed federal prosecutors’ offices to aid local prosecutors’ offices in pursuing death sentences under state law “where appropriate and legally permissible.”

She also directed the Federal Bureau of Prisons to implement what will likely be harsher conditions for the inmates in question, ordering the agency to adjust them so they are “consistent with the security risks those inmates present.”

Texas completes its first execution of 2025

As reported in this AP piece, a "Texas man convicted of beating and suffocating a Dallas area pastor in his church during a robbery was put to death Wednesday evening, the second execution in the U.S. this year and the first of four scheduled in Texas over the next three months."  Here is more:  

Steven Lawayne Nelson, 37, received a lethal injection and was pronounced dead at 6:50 p.m. CST at the state penitentiary in Huntsville. He was convicted of the 2011 killing of the Rev. Clint Dobson, a 28-year-old pastor who was beaten, strangled and suffocated with a plastic bag inside NorthPointe Baptist Church in Arlington. The church’s secretary, Judy Elliott, 67, was severely beaten but survived....

Nelson was a laborer and high school dropout with a long history of legal trouble and arrests that started as early as age 6. Nelson had pleaded for mercy, claiming that he had only served as a robbery lookout and blamed two other men for killing Dobson.

Trial evidence showed Nelson’s fingerprints and pieces of his broken belt at the crime scene, drops of the victims’ blood on his sneakers, and surveillance video showing him driving Elliott’s car and using her credit cards. Investigators also said the two men Nelson blamed for the attack had detailed alibis.

Nelson’s attorneys appealed on claims of bad legal representation at his trial and sentencing, saying this lawyers did little to challenge the alibis of the other men, or present mitigating evidence of a troubled childhood in Oklahoma and Texas.

While awaiting trial, Nelson was indicted in the killing of another jail inmate. He was never tried on that charge after his guilty verdict and death sentence.

South Carolina complete first execution in the US in 2025

As reported in this AP piece, "South Carolina put a third inmate to death in four months Friday as it goes through a backlog of prisoners who exhausted their appeals while the state couldn’t find lethal injection drugs." Here is more:

Marion Bowman Jr. was executed at 6:27 p.m. Bowman, 44, was convicted of murder in the shooting death of a friend whose burned body was found in the trunk of a car. Bowman maintained his innocence since his arrest. His lawyers said he was convicted on the word of several friends and relatives who received deals or had charges dropped by prosecutors in exchange for their testimony....

In the statement detailing his final words, Bowman said he did not kill 21-year-old Kandee Martin. “I know that Kandee’s family is in pain, they are justifiably angry,” Bowman said. “If my death brings them some relief and ability to focus on the good times and funny stories, then I guess it will have served a purpose. I hope they find peace.”...

Bowman, who has been on death row more than half his life, was offered a plea deal for a life sentence but went to trial because he said he was not guilty.

Friday’s execution was the third in South Carolina since September as the state ended a 13-year pause in executions caused in part because officials couldn’t obtain lethal injection drugs. The General Assembly passed a shield law, and prison officials were able to find a compounding pharmacy willing to make the pentobarbital if its identity wasn’t made public.

Bowman’s death marks the first execution in the U.S. in 2025. Twenty-five executions were carried out in the country last year.

Bowman did not ask Gov. Henry McMaster for clemency, but McMaster’s office released a letter denying clemency anyway. His lawyer, Lindsey Vann, said Bowman didn’t want to spend more decades in prison for a crime he did not commit. “After more than two decades of battling a broken system that has failed him at every turn, Marion’s decision is a powerful refusal to legitimize an unjust process that has already stolen so much of his life,” Vann said in a statement Thursday.

No governor in the previous 45 executions in South Carolina since capital punishment was reinstated in 1976 has given mercy and reduced a death sentence to life in prison without parole.

Bowman was convicted in Dorchester County in 2002 of murder in the killing of 21-year-old Kandee Martin in 2001. A number of friends and family members testified against him as part of plea deals. One friend said Bowman was angry because Martin owed him money. A second testified Bowman thought Martin was wearing a recording device to get him arrested on a charge. Bowman said he sold drugs to Martin, who was a friend of his for years and sometimes she would pay with sex, but he denied killing her.

Bowman is Black like the other two inmates executed since the pause ended. The final appeal from his lawyers said his trial attorney had too much sympathy for his white victim. The South Carolina Supreme Court called the argument meritless.

"Is Death Different?"

The title of this post is the title of this notable new paper authored by Jacob Bronsther now available via SSRN.  Here is its abstract:

This Article attempts to unite the movements against the death penalty and mass incarceration.  The central argument is that many noncapital sentences are in the same category of injury as the death penalty.  Thus, whatever the law says (or ought to say) about the legitimacy of the death penalty, it should also say about these noncapital sentences.  In this way, I reject the premise of our Eighth Amendment jurisprudence that "death is different." 

The Article first considers how exactly the death penalty harms a person, given the fact that everybody is going to die.  It argues that the death penalty moves up a person's death date dramatically, likely by decades.  Given the sequential and progressive nature of human existence, such a loss of time grievously interferes with one's unfolding life as a whole.  The early death promised by capital punishment means that one's life will remain to some awful extent incomplete, without the fruition or redemption that the future years may have had in store.  The Article then demonstrates that certain prison sentences –– especially but not only decades long sentences –– harm individuals in a similar manner.

SCOTUS issues another notable 7-2 per curiam procedural reversal in a capital habeas case

The first "opinion" of the current Supreme Court Term was handed down as a curious little per curiam ruling in Hamm v. Smith after a recond number of relists.  As dicussed in this post from early November 2024, the Court by a 7-2 voted GVRed a capital case conderning issues of intellectual disability (with Justices Thomas and Gorsuch indictating they would have granted cert to hear the case on the merits).  And thanks to this new ruling today from the court in Andrew v. White, this per curiam ruling in favor of a capital defendant's cert petition no longer standar alone.   Here is how today's ruling starts:

An Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob Andrew, and sentenced her to death.  The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant.  In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the Due Process Clause.  The Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process.  That was wrong.  By the time of Andrew’s trial, this Court had made clear that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Payne v. Tennessee, 501 U.S. 808, 825 (1991).

Intriguingly, Justice Alito concurs via an opinion of just one paragraph:

I concur in the judgment because our case law establishes that a defendant’s due-process rights can be violated when the properly admitted evidence at trial is overwhelmed by a flood of irrelevant and highly prejudicial evidence that renders the trial fundamentally unfair. See Payne v. Tennessee, 501 U.S. 808, 825 (1991); Romano v. Oklahoma, 512 U.S. 1, 12 (1994); cf. Rideau v. Louisiana, 373 U.S. 723, 726 (1963).  I express no view on whether that very high standard is met here.

JusticeThomas, joined by Justice Gorsuch, dissents in an opinion that, at 18 pages, runes eight pages longer than the Court's per curiam opinion. Here is how the dissent begins:

Our precedent under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes several rules for identifying clearly established federal law. 28 U.S.C. §2254(d)(1). We have instructed lower courts to avoid framing our precedents at too high a level of generality; to carefully distinguish holdings from dicta; and to refrain from treating reserved questions as though they have already been answered. The Tenth Circuit followed these rules.  The Court today does not. Instead, it summarily vacates the opinion below for failing to elevate to “clearly established” law the broadest possible interpretation of a onesentence aside in Payne v. Tennessee, 501 U.S. 808 (1991). In doing so, the Court blows past Estelle v. McGuire, 502 U.S. 62 (1991), which, months after Payne, reserved the very question that the Court says Payne resolved.  And, worst of all, it redefines “clearly established” law to include debatable interpretations of our precedent.  It is this Court, and not the Tenth Circuit, that has deviated from settled law.  I respectfully dissent.

Prez Trump issues executive order on "restoring the death penalty and protecting public saftety"

As well summarized in this AP article, "President Donald Trump signed a sweeping execution order Monday on the death penalty."  Here is more:

Trump’s order, coming just hours after he returned to the White House, compels the Justice Department to not only seek the death penalty in appropriate federal cases but also to help preserve capital punishment in states that have struggled to maintain adequate supplies of lethal injection drugs.

Trump had been expected to restart federal executions, which have been on hold since a moratorium was imposed by former Attorney General Merrick Garland in 2021. Only three defendants remain on federal death row after Democratic President Joe Biden recently converted 37 of their sentences to life in prison.

Trump directed the attorney general to pursue federal jurisdiction and seek the death penalty “regardless of other factors” when the case involves the killing of a law enforcement officer or capital crimes “committed by an alien illegally present in this country.” He’s also instructing the attorney general to seek to overrule Supreme Court precedents that “limit the authority of limit the authority of State and Federal governments to impose capital punishment.”

“The Government’s most solemn responsibility is to protect its citizens from abhorrent acts, and my Administration will not tolerate efforts to stymie and eviscerate the laws that authorize capital punishment against those who commit horrible acts of violence against American citizens,” Trump’s order said.

The fascinating full executive order, which has lots and lots of intriguing elements, can be found at this link.  Because I am on the road and still celebrating a recent ballgame, I may need a few days for further commentary on what this order might mean and how it could echo through the work of the Justice Department.  But, for now, I think it worth noting that federal capital prosecutors and feeral capital defense lawyers may be in a much different world this week than they were last week (and which was an even different world last month).

"Biden Commuted Their Death Sentences. Now What?"

The title of this post is the headline of this interesting new piece at The Intercept by Liliana Segura.  I recommend the piece in full, and here are excerpts:

In the days after President Joe Biden commuted his death sentence, 40-year-old Rejon Taylor felt like he’d been reborn. After facing execution for virtually his entire adult life for a crime he committed at 18, he was fueled by a new sense of purpose. He was “a man on a mission,” he told me in an email on Christmas Day. “I will not squander this opportunity of mercy, of life.”  Taylor saw new signs of life all around him.  Biden had granted clemency to 37 of the 40 men on federal death row, an unprecedented move that none of them expected....

Yet not everyone was eager for a new beginning. Within days of the announcement, two men had sent handwritten emergency petitions to a federal court in Indiana seeking to block the commutation of their death sentences. Neither of them had applied for clemency and both were adamant that they did not want it, arguing that it threatened to derail their efforts to prove their innocence in court. One of them decried Biden’s commutations as a “publicity stunt.” This week a third man, Iouri Mikhel, similarly objected to Biden’s reprieve.

The challenges are a long shot to say the least.  “The Court harbors serious doubt that it has any power to block a commutation,” a federal judge wrote in response to the first two filings.  But the lawsuits also lay bare a sobering reality for most people who go from facing a death sentence to a life sentence with no chance of release.  While people on death row are automatically entitled to legal representation, those serving life without parole are not.  And for those who harbor even the faintest hope of overturning their convictions, a commutation can foreclose on legal avenues that once made it possible.  This is true even for those who do not claim to be innocent but have challenged their convictions on other grounds, from ineffective advocacy by trial lawyers to racial bias to official misconduct.

With Taylor and his neighbors facing a lifetime behind bars — and with more questions than answers about what will happen next — the mood in Terre Haute has shifted.  The initial wave of celebration has given way to anxiety over the future.  Rumors have run rampant about the upcoming prison transfers; some days the men hear they will happen imminently, only to be told that it could be a while.  Many are nervous about living in general population after years or even decades in solitary confinement.

AG Garland rescinds federal execution protocol citing "risk of pain and suffering" in using pentobarbital for lethal injection

Via this new substack post by Chris Geidner, I see that Attorney General Merrick Garland sent this letter to the Director of the Bureau of Prisons to order rescinding the the federal execution protocol "which provides for lethal injection of pentobarbital."  The two-page letter provides this accounting for the action:

The Office of Legal Policy has coordinated review of the [protocol] and the Department's regulations governing the manner of execution, including, as directed by the 2021 Memorandum, in "consultation with all relevant Department components, including the Bureau ofJustice Statistics, Bureau of Prisons, Drug Enforcement Administration, Civil Division, Civil Rights Division, Criminal Division, National Institute ofJustice, and U.S. Marshals Service; other state and federal agencies, including the Department of Health and Human Services; medical experts; experienced capital counsel; and other relevant stakeholders, including members ofthe public, as appropriate."   Having assessed the risk of pain and suffering associated with the use ofpentobarbital, the review concluded that there is significant uncertainty about whether the use ofpentobarbital as a single-drug lethal injection for execution treats individuals humanely and avoids unnecessary pain and suffering.

Because it cannot be said with reasonable confidence that the current execution protocol "not only afford[ s] the rights guaranteed by the Constitution and laws ofthe United States" but "also treat[s] individuals [being executed] fairly and humanely," [2021 AG Memo on Death Penalty] at 1, that protocol should be rescinded, and not reinstated unless and until that uncertainty is resolved. In the face of such uncertainty, the Department should err on the side oftreating individuals humanely and avoiding unnecessary pain and suffering.

The 25-page report of the Office of Legal Policy serving as the foundation of this action is available at this link.

Of course, the incoming Trump Administration can and likely will reconsider these actions and institute a new (or renewed) execution protocol.  But, Prez Biden's commutation of 90%+ of federal death row left only three persons currently subject to execution and none of them has exhausted all of their appeals.  Thus, AG Garland's action may not have any immediate impact on execution possibilities, though it means some more work for any future adminstration seeking to complete any executions.

Also, because there is always considerable state-level litigation over execution protocols, this AG letter and the OLP report could prove of some consequence in some state courts.  It certainly will be cited by death row defendants seeking to preclude use of of pentobarbital in executions.

Outgoing North Carolina Gov issues capital communtations and other notable clemency actions

I believe today is the last full day in office for North Carolina's Governor Roy Cooper, and he is going out with two notable sets of clemency actions as reported in this press releases from this office:

"Governor Issues 2 Commutations and 2 Pardons of Forgiveness"

"Governor Cooper Takes Capital Clemency Actions"

Here is part of the statement regarding the capital clemencies:

Today, Governor Roy Cooper announced that he has commuted the sentences of 15 people on death row in North Carolina to life without the possibility of parole. He commuted these sentences after a thorough review of detailed petitions for clemency submitted by the defendants, input from district attorneys and the families of victims, and close review by the Governor’s Office. 

“These reviews are among the most difficult decisions a Governor can make and the death penalty is the most severe sentence that the state can impose,” said Governor Cooper. “After thorough review, reflection, and prayer, I concluded that the death sentence imposed on these 15 people should be commuted, while ensuring they will spend the rest of their lives in prison.”

No executions have been carried out in North Carolina since 2006 due to ongoing litigation. Before today’s commutations, North Carolina had 136 offenders on death row and the Governor’s Clemency Office received petitions for clemency from 89 of them. The Governor’s Office carefully reviewed, researched, and considered these 89 petitions for commutations, which included the 15 that were granted today.

"Women on Death Row in the United States"

The title of this post is the title of this new paper recently posted to SSRN authored by Sandra Babcock, Nathalie Greenfield and Kathryn Adamson. Here is its abstract:

This Article presents a comprehensive study of forty-eight persons sentenced to death between 1990 and 2022 who were legally recognized as women at the time of their trials.  Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences.  It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence, and prior involvement with the criminal legal system.  We also explore the nature of the women’s crimes of conviction, including the role of male codefendants and the State’s use of aggravating factors.  Finally, we reveal for the first time the extent to which capital prosecutions are dominated by men — including judges, elected district attorneys, defense attorneys, and juror forepersons.

We present our data against the backdrop of prevalent theories that seek to explain both the rarity of women’s executions and the reasons why certain women are singled out for the harshest punishment provided by law.  We explain why those frameworks are inadequate to understand the role that systemic gender bias plays in women’s capital prosecutions.  We conclude by arguing for more nuanced research that embraces the complexities in women’s capital cases and accounts for the presence of systemic and intersectional discrimination. 

Noting 2024 death sentencing trends in a number of notable states

As 2024 winds down, I have seen a few notable press pieces highlighting death sentencing (and execution) trends in a few notable states.  Because the long-term fate and future of capital punishment in the US largely turns on death sentencing trends, I will highlight that part of these stories in the excerpts below:

From Alabama, "Steve Marshall proud Alabama leads US in executions, despite backlash"

The [Death Penalty Information Center] reported of the 26 people newly sentenced to death in 2024, four were inmates in Alabama.  Over 40 percent of 2024’s new death sentences occurred in Alabama or Florida, the only states in which non-unanimous juries may impose capital punishment.  Nine of these eleven death sentences were non-unanimous decisions.

From Florida: "Executions in Florida dropped in 2024, but number of new death sentences lead nation"

But even as Florida carried out only one execution this year, the seven death sentences handed out by juries topped all states, edging out Texas’ second-place total of six.  About one-third of the 26 new death sentences imposed nationwide came from non-unanimous juries, including six in Florida. Last year, DeSantis enacted legislation which reduced the number of votes needed to recommend a death sentence from unanimous to eight-out-of-12 jurors.

From Oklahoma, "As Oklahoma Executions Continue, New Death Sentences Grow Rare"

Oklahoma’s death row is dwindling with each execution.  No state court has imposed a death sentence since May 13, 2022, when a Tulsa County judge followed a jury’s recommendation and sentenced David Ware to death for the murder of Tulsa Police Sgt. Craig Johnson....  The nearly 1,000-day stretch without a new death sentence is Oklahoma’s longest since at least 1974, according to data compiled by the Death Penalty Information Center, a Washington, D.C.-based nonprofit that does not take a position on the death penalty but describes itself as critical of how it’s administered. 

From Texas, "Texas ranked second in executions carried out in 2024, behind Alabama"

The six new death sentences handed down by Texas juries this year were double the number handed down last year. Still, the long-term trend is of decline. "Death sentences peaked in this state in 1999, when juries sent 48 people to death row," [Kristin Houlé] Cuellar said. "For the last decade, death sentences have remained in the single digits every year."

Rounding up some reactions to Prez Biden's decision to commute 37 federal death sentences

Prez Biden's decision to commute the sentences of 37 of the 40 convicted murderers on federal death row to life without of parole is remarkable for many reasons.  Thus, it is not surprising that many people are remarking about the decision.  Here is an abridged round up of just some of the reactions catching my this morning:

From the AP, "Relief, defiance, anger: Families and advocates react to Biden’s death row commutations"

From The Atlantic, "Joe Biden’s Moral Wisdom"

From Fox News, "Family of murdered SC woman rages at Biden for commuting killer's death sentence: 'She was shown no mercy'"

From The Hill, "Biden did the right thing granting clemency to 37 federal death row inmates"

From MS-NBC, "Joe Biden's justifiable mercy"

From the New York Daily News, "Trump slams Biden for commuting death sentences of 37 federal prisoners"

From the Sacramento Bee, "Joe Biden’s inconsistent commutations: Hate is a crime, but apparently not for all"

From USA Today, "'A mistake': Biden faces backlash upon commuting sentences of death row inmates"

From 10TV (Columbus, Ohio), "'Absolutely devastating': Parents react to Biden's commutation of death sentence for man who killed their son"

Prior recent related posts:

• A few legal musings about the prospect of Prez Biden commuting all federal capital sentences 
• Prez Biden commutes to LWOP the federal death sentences of 37 murderers

Prez Biden commutes to LWOP the federal death sentences of 37 murderers

As reported in this AP piece, "President Joe Biden announced on Monday that he is commuting the sentences of 37 of the 40 people on federal death row, converting their punishments to life imprisonment just weeks before President-elect Donald Trump, an outspoken proponent of expanding capital punishment, takes office." Here is more:

The move spares the lives of people convicted in killings, including the slayings of police and military officers, people on federal land and those involved in deadly bank robberies or drug deals, as well as the killings of guards or prisoners in federal facilities.

It means just three federal inmates are still facing execution. They are Dylann Roof, who carried out the 2015 racist slayings of nine Black members of Mother Emanuel AME Church in Charleston, South Carolina; 2013 Boston Marathon bomber Dzhokhar Tsarnaev; and Robert Bowers, who fatally shot 11 congregants at Pittsburgh’s Tree of life Synagogue in 2018, the deadliest antisemitic attack in U.S history.

The White House has these releases detailing this notable clemency action: "FACT SHEET: President Biden Commutes the Sentences of 37 Individuals on Death Row" and "Statement from President Joe Biden on Federal Death Row Commutations."  The "Fact Sheet" in part discusses Prez Biden's clemency record and concludes with this notable sentence: "In the coming weeks, the President will take additional steps to provide meaningful second chances and continue to review additional pardons and commutations."  On the capital clemencies, the statement from Prez Biden is relatively short, and here it is in full:

I’ve dedicated my career to reducing violent crime and ensuring a fair and effective justice system.

Today, I am commuting the sentences of 37 of the 40 individuals on federal death row to life sentences without the possibility of parole. These commutations are consistent with the moratorium my Administration has imposed on federal executions, in cases other than terrorism and hate-motivated mass murder.

Make no mistake: I condemn these murderers, grieve for the victims of their despicable acts, and ache for all the families who have suffered unimaginable and irreparable loss.

But guided by my conscience and my experience as a public defender, chairman of the Senate Judiciary Committee, Vice President, and now President, I am more convinced than ever that we must stop the use of the death penalty at the federal level. In good conscience, I cannot stand back and let a new administration resume executions that I halted.

I mused a bit in this post over the weekend about a few legal issues that could follow these commutations, and one involved whether Prez Biden might include pending capital cases in any blanket clemency effort.  It appears he did not here (though he still has four weeks with the clemency pen).

Prior recent related post:

•   A few legal musings about the prospect of Prez Biden commuting all federal capital sentences 

A few legal musings about the prospect of Prez Biden commuting all federal capital sentences

Articles published last week from the New York Times and the Washtington Post discussed campaigns urging Prez Joe Biden to commute the capital sentences of all convicted murderers on federal death row.  Now the Wall Street Journal has this new "exclusive" report, headlined "Biden Weighs Commuting Sentences of Death Row Inmates," which gets started this way:

President Biden is considering commuting the sentences of most, if not all, of the 40 men on the federal government’s death row, people familiar with the matter said, a move that would frustrate President-elect Donald Trump’s ability to resume the rapid pace of executions that marked his first term....

A decision from the president could come by Christmas, some of the people said.  A principal question is whether the president should issue a blanket commutation of all the condemned men, or whether death sentences should remain for the most heinous convicts, these people said. 

According to the WSJ, "Attorney General Merrick Garland ... has recommended that Biden commute all but a handful of the sentences, ... excepting a few terrorism and hate-crimes cases."  Also notable, as reported in this Vatican News story, is broader advocacy from the Pope:

Pope Francis and US President Joe Biden spoke with each other in a phone call overnight on 19 December....  The two leaders discussed "efforts to advance peace around the world during the holiday season," according to a White House statement....  The President "also graciously accepted His Holiness Pope Francis’s invitation to visit the Vatican next month."  In a subsequent statement, the White House press secretary noted Biden will be in Rome from 9-12 January [and that] the audience with the Pope is scheduled for 10 January....

One of the issues that is particularly close to the Pope's heart is the fate of prisoners on death row.... The Pope has described the death penalty as an act "at odds with Christian faith" and one that "eliminates all hope for forgiveness and rehabilitation."  During the Angelus on the Feast of the Immaculate Conception on 8 December, the Holy Father called on the faithful to "pray for the prisoners who are on death row in the United States."...  "Let us pray," he said, "that their sentence be commuted, changed.  Let us think of these brothers and sisters of ours and ask the Lord for the grace to save them from death."  

I have been expecting Prez Biden to commute at least a few capital sentences on his way out of the Oval Office.  Prez Obama commuted two death sentences during his last week in office, and capital clemency has a rich modern history at the state level.  But these press reports have me thinking blanket or near-blanket commutation for all of federal death row is a real possibility and perhaps real soon (though maybe not until just before or just after Prez Biden meets with the Pope).  Though I will leave it to others to discuss the morality and the politics of blanket federal capital commutations, I wanted to muse here about a few legal matters:

1.  Because there are some pending federal capital prosecutions, including 9/11 terrorists at GTMO and the racist mass shooter who murdered 10 in Buffalo (and perhaps also even the recent murder of the UnitedHealthcare CEO), an effort to preclude all possible future executions might need to include murderers beyond those already sentenced to death.  There are ways to write up a broad clemency order that would apply to all pending cases, and it will be interesting to see if anti-capital commutations extend to pending cases as well as past ones.

2.  Because broad federal capital commutations will surely be controversial, I wonder if any states could or would try to secure death sentences for murderers spared by Prez Biden.  For example, I believe Pennsylvania held state capital charges in abeyance while DOJ sought and secured a federal capital sentence for the Tree of Life Synagogue mass murderer.  Were this mass murderer to escape a federal capital sentence, perhaps state capital charges would begin again.  Practically, I suspect there are only a very few cases in which a state could pursue their own capital charges (and a number of federal capital defendants committed murders in states without the death penalty).  

3.  Because broad federal capital commutations will surely be controversial, I wonder if the future Trump Department of Justice might explore the possibility of capital reprosecutions.  That might sound peculiar, but the Biden Department of Justice pursued unresolved fraud charges against Philip Esformes after his prison sentence had been commuted by Prez Trump.  Many folks expressed concern about what seemed like an end-run around a presidential clemency grant; I had the honor of testifying at a congressional hearing on the topic, and I've been deeply concerned about a new norm of future administrations looking for ways to undo some past clemency grants.  Practically, I suspect reprosecution efforts unlikely, especially if Prez Biden leaves some murderers on federal death row, but I am still grumpy the Biden DOJ created a precedent for doing so.

4.  Because federal capital commutations will be, presumably, to a term of imprisonment of life, it could be possible for the recipients to seek a future reduction of their prison sentence thanks to a key provision of the First Step Act signed into law by Prez Trump.  Specifically, 18 U.S.C. § 3582(c) now provides authority for a judge to "reduce the term of imprisonment" on a defendant's motion when certain (fairly stringent) conditions are met.  Though I can imagine viable arguments that murderers serving LWOP-commuted-death sentences are categorically ineligible for so-called "compassionate release," I still would expect some (many?) of those who get death sentences commuted to, at some point, try to also get their imprisonment term reduced.

Death Penalty Information Center releases its annual year-end report, "The Death Penalty in 2024"

The Death Penalty Information Center (DPIC) has a tradition, following the final scheduled execution of a calendar year, of releasing a year-end report with lots of data and other information about capital punishment's administration in the US.  DPIC is critical of problems in the application of the death penalty, and its annual report is often styled to suggest the death penalty is in decline; that has not changed this year even though the total number of death sentences and executions ticked up slightly in 2024.  This year's report is fully titled "The Death Penalty in 2024: Death Sentences and Executions Remain Near Historic Lows Amid Growing Concerns about Fairness and Innocence," and here is its executive summary:

The num­ber of new death sen­tences in 2024 increased from 2023, with 26. The num­ber of peo­ple on death row across the United States has con­tin­ued to decline from a peak pop­u­la­tion in the year 2000.

Public sup­port for the death penal­ty remains at a five-decade low (53%) and Gallup’s recent polling reveals that more than half of young U.S. adults ages 18 through 43 now oppose the death penal­ty. Fewer peo­ple found the death penal­ty moral­ly accept­able this year (55%) than last year (60%).

Significant media atten­tion, pub­lic protest, and sup­port from unlike­ly allies in the cas­es of Marcellus ​“Khaliifah” Williams, Robert Roberson, and Richard Glossip ele­vat­ed the issue of inno­cence in 2024, as the United States marked the mile­stone of 200 death row exonerations.

No indi­vid­ual death-sen­tenced per­son received clemen­cy in 2024, the first year since 2016 with­out any clemen­cy grants. At least two mass clemen­cy cam­paigns are pending decisions.

Death penal­ty-relat­ed leg­is­la­tion was enact­ed in at least six states to lim­it use of the death penal­ty, alter exe­cu­tion meth­ods or pro­to­cols, mod­i­fy pro­ce­dures, and increase secre­cy. Abolition efforts con­tin­ue in more than a dozen states, and efforts to rein­tro­duce the death penal­ty in eight states failed. Only one effort to expand the death penal­ty to non-homi­cide crimes was successful.

The 1600th exe­cu­tion in the mod­ern death penal­ty era occurred in September 2024. The num­ber of peo­ple exe­cut­ed in 2024 remained near­ly the same as 2023, with 25 exe­cu­tions occur­ring in nine states. This was the tenth con­sec­u­tive year with few­er than 30 exe­cu­tions. Utah, South Carolina, and Indiana con­duct­ed their first exe­cu­tions after more than a decade hia­tus. Alabama became the first state to use nitro­gen gas to execute prisoners.

The United States Supreme Court has large­ly aban­doned the crit­i­cal role it has his­tor­i­cal­ly played in reg­u­lat­ing and lim­it­ing use of the death penalty.

The death penal­ty has been abol­ished in prac­tice or in law in a major­i­ty of coun­tries around the world (144), and 2024 saw legal abo­li­tion efforts progress in four more coun­tries. Despite this, glob­al exe­cu­tions increased in 2024 for the third straight year, led by Iran.

The full report includes lots more interesting capital punishment administration data and other information. I am always grateful for the detail accounting DPIC of death sentences that DPIC maintains (and I will there was a comparable resource for LWOP sentences).

Oklahoma completes last (and 25th) execution in the US for 2024

As reported in this AP piece, an "Oklahoma man who killed a 10-year-old girl in a cannibalistic fantasy died by lethal injection Thursday in the nation’s 25th and final execution of the year."  Here is more:

Kevin Ray Underwood was pronounced dead at 10:14 a.m. at the Oklahoma State Penitentiary in McAlester, state Department of Corrections spokesperson Lance West said. It was Oklahoma’s fourth execution of the year, and it took place on Underwood’s 45th birthday. Oklahoma uses a three-drug lethal injection process that begins with the sedative midazolam followed by a second drug that paralyzes the inmate and a third that stops their heart.

Underwood, a former grocery store worker, was sentenced to die for killing Jamie Rose Bolin in 2006. Underwood admitted to luring Jamie into his apartment and beating her over the head with a cutting board before suffocating and sexually assaulting her. He told investigators that he nearly beheaded Jamie in his bathtub before abandoning his plans to eat her....

Underwood’s attorneys had argued that he deserved to be spared the death penalty because of his long history of abuse and serious mental health issues that included autism, obsessive-compulsive disorder, bipolar and panic disorders, post-traumatic stress disorder, schizotypal personality disorder and various deviant sexual paraphilias. Prosecutors argued that many people suffer from mental illness, but that doesn’t justify harming children.

With two executions this week (this one and one in Indiana), a bit of recent death penalty history has been made.  It's been more than a quarter century since the US has had two executions this close to Christmas.  In addition, 25 total executions for the year equals the most for a single year in the US since 2015.

Indiana completes execution of mass murderer, its first since 2009

As reported in this USA Today article, "Indiana has executed its first inmate in 15 years, as Joseph Edward Corcoran was declared dead before sunrise on Wednesday morning." Here is more:

Corcoran, 49, was convicted in 1999 for the 1997 quadruple murder of his older brother, sister's fiancé and their two friends. He committed the homicides with a semi-automatic rifle, and at the home he lived in with his older sister and brother in Fort Wayne, Indiana.

Corcoran, who was 22 at the time, killed his brother, 30-year-old James Corcoran; his sister's fiancé, 32-year-old Robert Scott Turner; and their two friends, 30-year-old Timothy Bricker and 30-year-old Douglas Stillwell.

Before Corcoran's execution, his attorneys filed a request at the Indiana Supreme Court asking them to consider his client's competency due to his paranoid schizophrenia diagnosis in 1999. The court denied the attorneys' request on Dec. 5....

Corcoran died at 12:44 a.m. CST after being given a lethal dose of pentobarbital.... After the execution, Gov, Eric Holcomb said, "Joseph Corcoran’s case has been reviewed repeatedly over the last 25 years — including 7 times by the Indiana Supreme Court and 3 times by the U.S. Supreme Court, the most recent of which was tonight. His sentence has never been overturned and was carried out as ordered by the court.”

Noting the shrinking of death row in Missouri and elsewhere

This new AP piece details some notable capital punishment data from the Show Me state and eleswhere.  This article's headline notes its themes: "Missouri's death row had nearly 100 inmates in the 1990s. Now, it has eight."  Here are excerpts (with links from the original):

Missouri 's status as one of the most active death penalty states is about to change for one simple reason: The state is running out of inmates to execute.

The lethal injection of Christopher Collings on Dec. 3 left just eight men on death row — a figurative term since condemned Missouri inmates are housed with other prisoners. By contrast, nearly 100 people were living with a death sentence three decades ago.

Three of the eight Missouri inmates will almost certainly live out their lives in prison after being declared mentally incompetent for execution.  Court appeals continue for the other five, and no new executions are scheduled.

Missouri isn’t alone. Across the nation, the number of people awaiting the ultimate punishment has declined sharply since the turn of the century....

The Legal Defense Fund’s Death Row USA report showed 2,180 people with pending death sentences this year, down from 3,682 in 2000. Missouri’s peak year was 1997, when 96 people were on death row.

After reaching a height of 98 U.S. executions in 1999, the annual number hasn’t topped 30 since 2014.  So far this year, 23 executions have been carried out — six in Alabama, five in Texas, four in Missouri, three in Oklahoma, two in South Carolina and one each in Georgia, Utah and Florida.  Two more are scheduled: Wednesday in Indiana and Thursday in Oklahoma.

Use of the death penalty has declined in part because many states have turned away from it.  Twenty-three states and the District of Columbia have abolished the punishment, and five others have moratoriums.

Even in active death penalty states, prosecutors in murder cases are far more inclined to seek life in prison without parole.  In the 1990s, the nation was typically seeing over 300 new death sentences each year. By contrast, 21 people were sentenced to death nationwide in 2023.