Sentencing Law and Policy

Notable new data on death sentences over first half of 2025

In recent posts about recent exections, I have noted that the US as a whole is on pace for more executions in 2025 than in any year in more than a decade.  Against that backdrop, I was interested to see that the Death Penalty Information Center released this new short report titled "Mid-Year Review 2025: New Death Sentences Remain Low Amidst Increase in Executions."  The report covers a lot of ground on death penalty developments in 2025, and here is part of its discussion of executions and death sentences:  

The 25 exe­cu­tions car­ried out in the first six months of 2025 equal the total num­ber of exe­cu­tions for all of 2024. But this year’s exe­cu­tions are heav­i­ly geo­graph­i­cal­ly con­cen­trat­ed: 7 (28%) in Florida and 4 each (16%) in Texas and South Carolina, for a total of 60% of exe­cu­tions in just three states.  People exe­cut­ed this year spent an aver­age of 24 years on death row, con­firm­ing once again that exe­cu­tions are a lag­ging indi­ca­tor of pub­lic sup­port; they were sen­tenced at a time when sup­port for the death penal­ty was much high­er than it is today and more zeal­ous pros­e­cu­tion poli­cies were in place.  Public sup­port for the death penal­ty, last mea­sured in November 2024, is the low­est in 50 years (53%).

New death sen­tences are down near­ly 30% com­pared to the same peri­od last year.  Ten peo­ple in six states have been sen­tenced to death so far in 2025, mark­ing a decrease from last year’s pace of 14 new death sen­tences in the first half of 2024.  These new death sen­tences reflect the deci­sions of today’s juries and are a cur­rent mea­sure of pub­lic sen­ti­ment on the death penal­ty.  Both of Alabama’s new death sen­tences result­ed from non-unan­i­mous jury votes, with only 10 jurors vot­ing for death. Alabama and Florida are the only two states that allow non-unan­i­mous juries to impose sen­tences of death.

President Trump’s January 20, 2025, Executive Order urged state pros­e­cu­tors to seek new death sen­tences for the 37 men whose fed­er­al death sen­tences were com­mut­ed to life with­out parole by President Biden.  But only one per­son, Thomas Steven Sanders in Louisiana, faces new state cap­i­tal charges. Florida pros­e­cu­tors have also announced that they will reopen the case of Daniel Troya and Ricardo Sanchez, Jr., with the pos­si­bil­i­ty that they will seek new death sen­tences for the two men.  But oth­er state pros­e­cu­tors have declined President Trump’s invi­ta­tion, cit­ing high costs and logis­ti­cal com­pli­ca­tions.

Prosecutors cut plea deal in Idaho college student mass murder (seemingly against wishes of victims' families)

As reported in this New York Times report, "Bryan Kohberger, the man charged in the brutal stabbing deaths of four University of Idaho students, has reached a plea deal to avoid the death penalty, according to a letter that prosecutors sent to relatives of the victims."  Here is more about a notable sentencing decision made by prosecutors at the request of the defendant and apparently against the wishes of the victims' families:

Mr. Kohberger had been set to go on trial on murder charges in August, nearly three years after the killings, which occurred at a residence near the university in Moscow, Idaho. A plea hearing is set for Wednesday.

In a letter to the victims’ families on Monday, prosecutors said that Mr. Kohberger’s defense team asked for a plea offer last week. Under the proposed agreement, which must be approved by the judge in the case, Mr. Kohberger would plead guilty to all charges, face four consecutive life sentences and waive all rights to appeal.

The family of Kaylee Goncalves, one of the victims, criticized the prosecution team for failing to consult with the families. Some of them had worked to change Idaho law to allow the firing squad as a form of capital punishment. “After more than two years, this is how it concludes, with a secretive deal and a hurried effort to close the case without any input from the victims’ families on the plea’s details,” the Goncalves family said in a statement.

In their letter to the families, prosecutors wrote that the plea deal was “our sincere attempt to seek justice.” “This agreement ensures that the defendant will be convicted, will spend the rest of his life in prison, and will not be able to put you and other families through the uncertainty of decades of post-conviction appeals,” they wrote. “Your viewpoints weighed heavily in our decision-making process, and we hope that you may come to appreciate why we believe this resolution is in the best interests of justice.”

Prosecutors did not respond to messages seeking comment, nor did lawyers for Mr. Kohberger. The families of the other victims did not comment immediately on the proposed agreement....

Mr. Kohberger’s lawyers filed a flurry of motions in recent months, including one trying to bar prosecutors from seeking the death penalty — in part, they said, because Mr. Kohberger had been diagnosed with autism. They unsuccessfully sought a delay in the trial, arguing that their team had not had enough time to comb through the vast amount of evidence in the case. But the judge ordered jury selection to commence on Aug. 4.

By 6-3 vote, Supreme Court in Gutierrez that death row defendant has standing to challenge Texas's DNA testing procedures

The Supreme Court this morning handed down a standing ruling in a capital case via Guitierrez v. Saenz, No. 23-7809 (S. Ct. June 26, 2025) (available here). The vote was 6-3, and here are the particulars of the votes of the Justices:

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 all but Part II.B.2. BARRETT, J., filed an opinion concurring in part and concurring in the judgment. THOMAS, J., filed a dissenting opinion. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined.

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

For nearly 15 years, petitioner Ruben Gutierrez has sought DNA testing of evidence that, he says, will help him prove he was never at the scene of the murder he was convicted of committing. When the local prosecutor refused to test the evidence in his custody, Gutierrez filed suit under Rev. Stat. §1979, 42 U.S.C. §1983, arguing that Texas’s procedures for obtaining DNA testing violated his rights under the Due Process Clause. The District Court agreed and granted a declaratory judgment to that effect.

The Fifth Circuit, however, held that Gutierrez lacked standing to bring his §1983 suit, reasoning that, even if a federal court declared Texas’s procedures unconstitutional, the local prosecutor would be unlikely to turn over the physical evidence for DNA testing.  That holding contravenes Reed v. Goertz, 598 U.S. 230 (2023), where this Court decided on analogous facts that another Texas prisoner had standing to sue the local prosecutor who denied him access to DNA testing. Id., at 234. Put simply, Reed held that a federal court order declaring “that Texas’s post-conviction DNA testing procedures violate due process” would redress the prisoner’s claimed injury by “eliminat[ing]” the state prosecutor’s reliance on Article 64 as a reason for denying DNA testing. Ibid.; see Tex. Code Crim. Proc. Ann., Art. 64.01 (Vernon 2018). The same is true here and the Court therefore reverses.

Here is how Justice Alito's principal dissent gets started:

The Court and I agree on one thing: we should decide this case based on the test adopted in Reed v. Goertz, 598 U.S. 230, 234 (2023). After that, however, the majority veers sharply off course.  First, it blatantly alters the Reed test.  See ante, at 1–2, 8, 10.  Second, it then has the audacity to criticize the Fifth Circuit for applying the real Reed test. See ante, at 9.  Third, it ignores critical differences between the situation in Reed and the situation here.  See ante, at 9–11.  Fourth, it paints a misleading picture of underlying facts and Gutierrez’s decades-long litigation campaign. See ante, at 2–6.  Fifth, it fails to recognize the limited scope of the declaratory judgment at issue. See ante, at 9. And sixth, it ignores lawful and binding Texas law regarding the facts that may be considered when a prisoner seeks DNA testing. See ibid.

Mississippi completes execution for murder committed nearly 50 years ago

As reported in this AP piece, the "longest-serving man on Mississippi’s death row was executed Wednesday, nearly five decades after he kidnapped and killed a bank loan officer’s wife in a violent ransom scheme." Here is more:

Richard Gerald Jordan, a 79-year-old Vietnam veteran with post-traumatic stress disorder whose final appeals were denied without comment by the U.S. Supreme Court, was sentenced to death in 1976 for killing and kidnapping Edwina Marter. He died by lethal injection at the Mississippi State Penitentiary in Parchman....

During a news conference after the execution, Keith Degruy, a spokesperson for Marter’s family, read a statement on behalf of her two sons and husband, who were not present at the execution. “Nothing will bring back our mom, sister and our friend. Nothing can ever change what Jordan took from us 49 years ago. Jordan tried desperately to change his ruling so he can simply die in prison. We never had an option,” he said.

Jordan’s execution was the third in the state in the last 10 years; previously the most recent one was carried out in December 2022. It came a day after a man was put to death in Florida, in what is shaping up to be a year with the most executions since 2015....

As of the beginning of the year, Jordan was one of 22 people sentenced in the 1970s who were still on death row, according to the Death Penalty Information Center. His execution ended a decades-long court process that included four trials and numerous appeals. On Monday, the Supreme Court rejected a petition that argued he was denied due process rights.

ACLU releases report titled "Fatal Flaws: Revealing the Racial and Religious Gerrymandering of the Capital Jury"

Via email I reveiced news yesterday that the American Civil Liberties Union has released this new report on “death qualification” in capital cases titled "Fatal Flaws: Revealing the Racial and Religious Gerrymandering of the Capital Jury."  Here is a portion of the 33-page report's introductory summary:

The Constitution requires juries to carefully weigh mitigating circumstances in a separate penalty phase of a trial when deciding between life imprisonment without parole and death.  The Constitution also requires the jury’s decision to express the “conscience of the community.”  But, because of death qualification (which the Constitution does not require), juries making these decisions do not accurately reflect our communities or their values.  Even though a juror who is unwilling to impose a death sentence can still listen to the evidence, weigh the credibility of witnesses, deliberate and even find a defendant guilty and impose the lawful sentence of life imprisonment, death qualification prevents the approximately 40% of Americans who now oppose the death penalty from participating in this important part of our democracy.

Decades of empirical research shows that death qualification results in juries that are more likely to convict, and more likely to reach hasty decisions and ignore mitigating evidence the Constitution says must be considered.  Death qualification also results in the disproportionate exclusion of groups that are more likely to oppose the death penalty, including Black people, especially Black women, other people of color, women, and followers of certain religions. The racial divide in support for the death penalty is consistently demonstrated in over thirty years of social science research.  The resulting capital juries, comprised predominantly of white men, are less likely to deliberate vigorously and more likely to convict and sentence a person to death, especially when the defendant is Black.

Recent studies from California, Duval County, Florida; Wake County, North Carolina; and Sedgwick County, Kansas confirm that death qualification results in the disproportionate exclusion of Black people, and especially Black women, from capital juries.

Florida completes its seventh execution in 2025

As reported in this AP article, a "man convicted of raping and killing a woman near a central Florida bar was executed Tuesday evening. Thomas Lee Gudinas, 51, was pronounced dead at 6:13 p.m. after receiving a lethal injection at Florida State Prison near Starke, said Bryan Griffin, a spokesman for Gov. Ron DeSantis." Here is more:

Gudinas was convicted in the May 1994 killing of Michelle McGrath.... Gudinas was the seventh person put to death in Florida this year, with an eighth scheduled for next month. The state also executed six people in 2023, but only carried out one execution last year.

A total of 24 men have been put to death in the U.S. this year, with scheduled executions set to make 2025 the year with the most executions since 2015. Florida has executed more people than any other state this year, while Texas and South Carolina are tied for second place with four each. Alabama has executed three people, Oklahoma two, and Arizona, Indiana, Louisiana and Tennessee each have one. Mississippi is set to join the other states on Wednesday with its first execution since 2022....

McGrath was last seen at a bar called Barbarella’s shortly before 3 a.m. on May 24, 1994. Her body, showing evidence of serious trauma and sexual assault, was found several hours later in an alley next to a nearby school.

Gudinas had been at the same bar with friends the night before, but they all later testified that they had left without him. A school employee who found McGrath’s body later identified Gudinas as a man who was fleeing the area shortly beforehand. Another woman also identified Gudinas as the person who chased her to her car the previous night and threatened to assault her.

Gudinas was convicted and sentenced to death in 1995. Attorneys for Gudinas filed appeals with the Florida Supreme Court and the U.S. Supreme Court but they were rejected. The lawyers had argued in their state filing that evidence related to “lifelong mental illnesses” exempts Gudinas from being put to death. The Florida Supreme Court denied the appeals last week, ruling that the case law that shields intellectually disabled people from execution does not apply to individuals with other forms of mental illness or brain damage.

Separately, a federal filing argued that the Florida governor’s unfettered discretion to sign death warrants violates death row inmates’ constitutional rights to due process and has led to an arbitrary process for determining who lives and who dies. The U.S. Supreme Court on Tuesday denied Gudinas’ request for a stay of execution.

I believe Florida has never executed more than eight murderers in any calendar year, so it would appear the state could be on pace for a record year.   But I doubt any state will get anywhere close to the pace Texas set decades ago. In the late 1990s, Texas averaged over 30 executions per year, and in 2000 the state executed 40 murderers.  It has been more than a dozen years since the entire United States had more than 40 executions in one calendar year.

"State Constitutional Limits on Nitrogen Hypoxia Executions"

The title of this post is the title of this new article authored by William W. Berry III now available via SSRN.  Here is its abstract:

In January 2024, the state of Alabama executed Kenneth Smith with nitrogen gas.  One might think that the Eighth Amendment, which bars cruel and unusual punishments, might protect inmates against such draconian and experimental forms of execution.  But the Supreme Court’s cases have foreclosed meaningful challenges to methods of execution.

States, however, have their own constitutions with Eighth Amendment analogues.  These state constitutional punishment clauses include different formulations of the bar against cruel and unusual punishments.  In theory, they offer broader protections than the Eighth Amendment.  Some are linguistically different and some have unique histories, and as such, counsel against a lock-stepping approach that simply adopts the federal standard.

While under-litigated, this area holds promise for inmates as a basis for challenging nitrogen gas executions.  To that end, this Article explores potential limits that state constitutions can place on methods of execution.  Specifically, it makes the case that nitrogen gas executions are unconstitutional under a number of state constitution punishment clauses.

Part II of the Article provides a brief overview of American execution methods and the Court’s application of the Eighth Amend-ment to those methods.  In Part III, the Article surveys the state punishment clauses and the few cases that have raised methods challenges under state constitutions.  In Part IV, the Article advances a theoretical framework for applying state punishment clauses to methods of execution.  And Part V uses that framework to show why state punishment clauses bar nitrogen gas executions.

South Carolina complete execution of double murderer 20 years after his crimes

As reported in this AP piece, a "South Carolina man sent to death row twice for separate murders was put to death Friday by lethal injection in the state’s sixth execution in nine months. Stephen Stanko, 57, was pronounced dead at 6:34 p.m." Here is more:

He was executed for shooting a friend and then cleaning out his bank account in Horry County in 2005. Stanko also was serving a death sentence for killing his live-in girlfriend in her Georgetown County home hours earlier, strangling her as he raped her teenage daughter. Stanko slit the teen’s throat, but she survived....

Three family members of his victims stared at Stanko and didn’t look away until well after he stopped breathing....

Stanko was leaning toward dying by South Carolina’s new firing squad, like the past two inmates before him. But after autopsy results from the last inmate killed by that method showed the bullets from the three volunteers nearly missed his heart, Stanko went with lethal injection.

Stanko was the last of four executions scheduled around the country this week. Florida and Alabama each put an inmate to death on Tuesday. On Wednesday, Oklahoma executed a man transferred from federal to state custody to allow his death....

Stanko is the sixth inmate executed in South Carolina in nine months after the state went 13 years without putting an inmate to death because it could not obtain lethal injection drugs. The South Carolina General Assembly approved a firing squad and passed a shield law bill which allowed the suppliers of the drugs to stay secret.

Oklahoma completes execution for murder committed 25+ years ago

As reported in this local article, "convicted murderer has been executed in Oklahoma as a direct result of President Donald Trump's return to office.  John Fitzgerald Hanson, 61, was pronounced dead at 10:11 a.m. Thursday, June 12, at the Oklahoma State Penitentiary." Here is more:

He had been scheduled for execution on Dec. 15, 2022, but the Biden administration refused to return him to Oklahoma from a federal prison in Louisiana. The transfer went through on March 1, weeks after Trump began his second term.

He was executed for the fatal shooting of Mary Agnes Bowles, who was kidnapped from the parking lot of a Tulsa mall on Aug. 31, 1999. The victim was 77. Hanson and an accomplice, Victor Miller, wanted the retired banker's car for a robbery spree. Hanson has always denied being the shooter, his attorneys said.

Hanson had been serving a life sentence, plus 82 years, at the U.S. Penitentiary in Pollock, Louisiana, for federal crimes involving the robbery spree. Oklahoma's attorney general, Gentner Drummond, sought Hanson's transfer after Trump issued a sweeping executive order on his first day back in office "restoring" the death penalty.... “This case demonstrates that no matter how long it takes, Oklahoma will hold murderers accountable for their crimes," Drummond said in a news release after witnessing the execution....

The execution took only 10 minutes to complete after Hanson made his brief final statement. It was the 17th in Oklahoma since lethal injections resumed in October 2021 after a long hiatus and one of the fastest.

Alabama completes another execution using nitrogen gas

As reported in this local article, "Alabama has executed Gregory Hunt by nitrogen hypoxia for the 1988 murder of Karen Lane."  Here is more:

A doctor pronounced Hunt to dead at 6:26 p.m. June 10. His death marked Alabama's third execution of the year. Overall, Hunt is the fifth person to be executed by nitrogen hypoxia in Alabama. The state executed its first inmate by nitrogen hypoxia in 2024. Across the globe, organizations, including the Vatican, have protested the use of nitrogen hypoxia in execution, calling it cruel and unusual punishment....

John Hamm, the Alabama Department of Corrections commissioner, defended nitrogen hypoxia as a humane way to execute people in Alabama. Hamm said that five of Lane's family members witnessed the execution, and Hamm read a statement from her family.

"... Make no mistake, this night is not about the life of Greg Hunt," the family said in the statement. "This night is about the horrific death of Karen Sanders Lane, whose life was so savagely taken from her. Karen was shown no mercy. She was not given a second chance. Karen was shown no grace. This is also not about closure or victory. This night represents justice and the end of a nightmare that has coursed through our family for 37 long years."...

Hunt beat Lane to death Aug. 2, 1988 in her home in Cordova. He was charged with sexual abuse, burglary and capital murder. Hunt admitted murdering Lane but denied that he sexually abused her, even filing a final appeal May 23, claiming he did not sexually abuse Lane....

Court documents show Hunt beat Lane with his hands, feet and a bar stool. She had 62 individual external injuries to her body. Internally, Lane had more than 20 fractures to her ribs and rib cage, a broken sternum, a lacerated liver and injuries to her aorta. She died of blunt force trauma and bruising of the brain.

Florida completes its sixth execution of 2025

As reported in this AP article, a "man convicted of raping and killing a woman three decades ago after kidnapping her from a supermarket parking lot was executed Tuesday in Florida." Here is more:

Anthony Wainwright, 54, received a lethal injection at Florida State Prison near Starke. He was convicted in the April 1994 killing of 23-year-old Carmen Gayheart, a mother of two young children, in Lake City.

The execution began about 6:10 p.m. Wainwright's shoulders shuddered a couple of times, and he blinked and took several deep breaths before becoming completely still at 6:14 p.m. Wainwright was pronounced dead at 6:22 p.m., according to Byran Griffin, a spokesman for Gov. Ron DeSantis....

He is the sixth person put to death in Florida this year, and another execution is scheduled for later this month. The state executed six people in 2023, but only carried out one execution last year. There were four executions scheduled around the country this week, including another one on Tuesday in Alabama. A temporary stay was issued Monday for an execution scheduled for Thursday in Oklahoma.

Richard Hamilton, the other man convicted in Gayheart’s killing, was also sentenced to death. But he died on death row in January 2023 at the age of 59.

Gayheart’s sister said before the execution that three decades is too long to wait for justice. “It’s ridiculous how many appeals they get,” Maria David told The Associated Press, adding that each step of the appeals process reopened her family’s wounds. “You have to relive it again because they have to tell the whole story again.”

Wainwright and Hamilton escaped from prison in North Carolina, stole a green Cadillac and burglarized a home the next morning, taking guns and money. Then they drove to Florida and when the Cadillac began to have problems in Lake City, they decided to steal another vehicle.

They confronted Gayheart, a community college student, on April 27, 1994, as she loaded groceries into her blue Ford Bronco, according to court documents. They forced her into the vehicle at gunpoint and drove off. They raped her in the backseat and then took her out of the vehicle and tried to strangle her before shooting her twice in the back of the head, court filings say. They dragged her body several dozen yards from the road and drove off.

The two men were arrested in Mississippi the next day after a shootout with police. A jury in 1995 convicted Wainwright of murder, kidnapping, robbery and rape and unanimously recommended that he be sentenced to death.

Wainwright’s lawyers had filed multiple unsuccessful appeals over the years based on what they said were problems with his trial and evidence that he suffered from brain damage and intellectual disability....

David, Gayheart’s sister, said she felt cheated that Hamilton died before the state could execute him. She said she was “overcome with emotion” when she heard the governor had signed a death warrant for Wainwright. Her parents both died while waiting for justice to be served, she said. “There’s nothing that would keep me from seeing this all the way through,” she said....

Over the years, she has kept a book where she put every court filing, from the initial indictment through the latest appeals.

“I’m looking forward to getting the last pieces of paperwork that say he’s been executed to put into the book and never having to think about Anthony Wainwright ever again,” David said.

Another week with a notable number of executions scheduled in the US

This new CNN article, headlined "4 executions are scheduled in 4 states over four days this week. Here’s what we know," highlights both upcoming executions and broader capital punishment trendis in the United States this year.  Here are excerpts:

Over the next four days, four inmates in four states are scheduled to be put to death – a cluster that, while not abnormal, comes amid a national uptick in executions as President Donald Trump calls for the death penalty’s expansion.

The executions are slated to begin Tuesday, when Alabama is scheduled to put Gregory Hunt to death for the murder of Karen Lane. On the same day, Florida plans to execute Anthony Wainwright for the murder of Carmen Gayheart.  On Thursday, Oklahoma says it will execute John Hanson for the murder of Mary Agnes Bowles. And a day later, Stephen Stanko is scheduled to be put to death in South Carolina for the murder of Henry Lee Turner....

[E]xecutions are up in the first half of 2025 compared to recent years. In addition to this week’s, two more are scheduled later in June. If all six proceed as planned, it would mark 25 executions this year to date, matching the total number of executions carried out in 2024, according to data from the Death Penalty Information Center. That would be the highest number of executions carried out through June since 2011....

States are acting independently. But their moves come as Trump has signaled a desire to see capital punishment used more often at the federal level, saying he wants to deter criminals and protect the American people. While his day one executive order, “Restoring the Death Penalty and Protecting Public Safety,” does not apply to the states, experts said the message it sends could encourage state officials who want to align themselves with the president.

“If a state is inclined to conduct executions anyway, Trump’s rhetoric would be the wind behind them pushing them to do that,” said Corinna Lain, a University of Richmond law professor and author of “Secrets of the Killing State: The Untold Story of Lethal Injection.”

Pondering Eighth Amendment issues around new capital child rape statutes at Sentencing Matters Substack

I have not highlighted posts from the Sentencing Matters Substack in a little while in part because I am waiting for my co-substacker to wrap up a five-part series(!) on the US Sentencing Commission's latest guideline amendments (part four was posted here recently).  I will blog about the full series in coming weeks.  In the meantime, I have penned this new mini-essay about Eighth Amendment issues titled "After Kennedy: pondering Eighth Amendment functioning and litigating; With states enacting new capital child rape laws, whither the Supreme Court's 2008 ruling Kennedy v. Louisiana?".  Here is how the piece gets started:

The U.S. Supreme Court in 2008, by a 5-4 vote in Kennedy v. Louisiana, overturned a state death sentence for a man convicted of child rape. Though rape was commonly a capital offense in the Founding era and for centuries thereafter, the Kennedy opinion said the Eighth Amendment was dynamic: the “Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society, … because the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.” So, according to the Court’s majority, “a death sentence for one who raped but did not kill a child … is unconstitutional under the Eighth and Fourteenth Amendments.” The Kennedy opinion stated its holding this way: “We hold the Eighth Amendment prohibits the death penalty for this offense. The Louisiana statute is unconstitutional.”

Though the Kennedy ruling seemingly declared all then-existing state capital child rape statutes unconstitutional, over the last two years, five states — Florida (2023), Tennessee (2024), Arkansas (2025), Idaho (2025) and Oklahoma (2025) — have enacted new statutes making the crime of rape of a child below a certain age eligible for the death penalty. With at least a half dozen additional states considering similar new capital child rape laws, and with numerous lawmakers and advocates calling for the Supreme Court to reconsider the Kennedy ruling, I have started pondering just how the Eighth Amendment functions as well as to just how a new capital child rape case might possibly come before the Supreme Court. (My initial reflections on these issues may be more academic than practical, and I welcome insights and reactions that can help advance my thinking on these matters.)

Friday night certs: SCOTUS grants review in Alabama case on applying Atkins

The Supreme Court has been consistently issuing its full order lists at the start of weeks for all of 2025.  Indeed, the Supreme Court's website in one place states, as I write this, that "the Court will release an order list at 9:30 a.m. on Monday, June 9."  And yet the Supreme Court issued this order list late today.  And it is quite the order list for sentencing fans, with two of three Friday cert grants involving notable and long-simmering sentencing issues.

One of these cert grants came in Hamm v. Smith, 24-872, a long-running capital case concerning how Alabama (and the Eleventh Circuit) applied the Eighth Amendment's prohibition on the execution of persons who are intellectually disabled.  This case has been lurking around the Court since August 2023, and now the Justice have finally taken it up.  In so doing, the Court has already decided what it is going to decide:  "The petition for a writ of certiorari is granted limited to the following question: Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim."

Because the Supreme Court does not take up all that many capital cases or many Eighth Amendment cases or even many constitutional criminal cases these days, Hamm v. Smith is a notable case and could provide an interesting window into how some newer Justices will approach older Eighth Amendment jurisprudence.  In the end, though, this case is unlikely to be especially consequential given that there are not all that many capital cases that involve Atkins claims anymore.

Notable review of death penalty legislative developments so far in 2025

The Death Penalty Information Center has this new thorough report of recent capital legislation under the heading "2025 Roundup of Death Penalty Related Legislation."  Here is how the review gets started:

More than one hun­dred bills have been intro­duced this year in 34 states and in Congress to expand and lim­it use of the death penal­ty, abol­ish and rein­state the death penal­ty, mod­i­fy exe­cu­tion pro­to­cols and secret the infor­ma­tion about them, and alter aspects of cap­i­tal tri­als.  Thus far, nine bills in five states have been enact­ed, with Florida enact­ing the most leg­is­la­tion thus far.  Of the bills that have been signed into law, three mod­i­fy exe­cu­tion pro­to­cols; two expand the cir­cum­stances for death eli­gi­bil­i­ty; one expands aggra­vat­ing cir­cum­stances; one law makes a death sen­tence manda­to­ry; one mod­i­fies the process and low­ers the legal stan­dard for intel­lec­tu­al dis­abil­i­ty claims; and one mod­i­fies the process to deter­mine men­tal com­pe­ten­cy for exe­cu­tion.  The major­i­ty of enact­ed bills have been spon­sored by Republican legislators.

Oklahoma joins growing list of states making child rape a capital crime (despite current SCOTUS prohibition)

As reported in this local article, "Oklahoma is now one of the states with the harshest penalties for child sex offenses after lawmakers paved the way for the death penalty for crimes against children."  Here is more:

Gov. Kevin Still signed Senate Bill 599 into law on May 22.

The new law grants prosecutors the authority to pursue the death penalty for individuals convicted of child rape on a first offense. Additionally, it allows judges to sentence individuals found guilty of lewd molestation of a child under the age of 14 to life imprisonment without the possibility of parole.

Delaware and Ottawa County District Attorney Doug Pewitt said a current U.S. Supreme Court ruling prohibits the death penalty in child rape cases. “If the court ruling changes, then we will seek to enforce the law,” said Pewitt.

In May, Idaho lawmakers approved legislation allowing the death penalty in child rape convictions. Tennessee and Florida passed a law in 2024 and 2023, and Alabama is seeking to pass a similar law.

I have noted in some prior posts that it could be quite a long time before the Supreme Court could or would take up a child rape death sentence to give it a chance to perhaps reconsider its Kennedy v. Louisiana ruling from 2008.  But having more states passing these laws likely should help speed up the timeline. 

A few prior related posts:

• With new Florida law authorizing death penalty for child rape, how might SCOTUS get to reconsider Kennedy?
• Tennessee now second state to allow death penalty for child rape since SCOTUS prohibition 
• Two more states moving bills forward to make child rape a capital offense 

Florida prosecutors to pursue capital charges against two murderers who had federal death sentences commuted by Prez Biden

As reportedin this local press piece, Florida "officials plan to begin proceedings to prosecute and seek the death penalty against two men whose federal death sentences for the 2006 drug-related slayings of a family on Florida’s Turnpike in St. Lucie County were commuted by former President Joe Biden." Here is more:

The federal death sentences of Daniel "Homer" Troya, 42, and Ricardo “Ricky” Sanchez, Jr., 41, were commuted in December 2024. The two were sentenced to death in 2009 after their involvement in the drug-related slaughter of Jose Escobedo, 28, his 25-year-old wife and two young sons, ages 4 and 3, on Oct. 13, 2006, in gangland-style gunfire executions tied to a drug peddling operation in West Palm Beach. Troya and Sanchez are being held in a U.S. penitentiary in Terre Haute, Indiana.

Sheriff Richard Del Toro and State Attorney Thomas Bakkedahl on May 23 announced “the reopening of the 2006 Escobedo family murder case,” a news release states. Officials reported the reopening is in “direct response to the federal government's commutation of the death sentences.”

“The calculated and unspeakably violent murders of the Escobedo family demand the highest level of accountability,” Bakkedahl said in the release. “With the federal death sentence no longer in effect, we believe the pursuit of justice now rests with the State of Florida. My office is committed to ensuring that the sentence ultimately reflects the gravity of this crime.”

Tennessee completes its first execution in five years

As reported in this local article, "Tennessee has executed Oscar Franklin Smith, sentenced to death for the 1989 killings of his estranged wife Judith Robirds Smith and her two teenage sons, Chad Burnett and Jason Burnett, in Nashville." Here is more:

Smith, 75, was killed by a fatal dose of the drug pentobarbital injected into his veins at Riverbend Maximum Security Institution. He was pronounced dead at 10:47 a.m. May 22.

In a lengthy final statement, Smith spoke out against the governor and the justice system. "Somebody needs to tell the governor the justice system doesn't work," he said in part, according to a media witness to the execution....

Smith's execution marks a return to capital punishment in Tennessee after the governor instituted a moratorium on the state's most severe penalty. It had been five years since a Tennessee prisoner died by execution and six years since the state killed someone by lethal injection.

After the execution, the family of the victims spoke about the danger of domestic violence. “Through our heartbreak we are reminded of the devastating consequences of domestic violence,” Osborne said. “For those who may be living in fear or in the grip of abuse please know that you are not alone."...

Smith always said he was innocent and testified in his defense during his trial. Media witnesses to the execution reported that while the lethal chemicals were flowing into his arm, Smith twice said, "I didn't kill her." In 2022, Smith raised the issue to a court that an unknown person’s DNA was found on an awl, an icepick-like tool believed to be one of the murder weapons.

There was, however, plenty of evidence that linked him to the crime. That included the fact his car was seen at the victim's home the night of the crime and the fact Chad Burnett called out, "Frank, no! God help me," on the 911 call. Franklin is Smith's middle name. Judges found the DNA evidence was not strong enough to reopen his case.

Texas completes execution of murderer who set store clerk on fire

As reported in this AP piece, a "Texas man was executed Tuesday evening, 13 years to the day of a convenience store robbery in which he set a clerk on fire in a Dallas suburb." Here is more:

Matthew Lee Johnson, 49, received a lethal injection at the state penitentiary in Huntsville. He was condemned for the May 20, 2012, attack on 76-year-old Nancy Harris, a great-grandmother he splashed with lighter fluid and set ablaze in the suburb of Garland. Badly burned, she died days afterward....

Johnson’s execution was the second carried out Tuesday in the United States. Hours earlier in Indiana, Benjamin Ritchie received a lethal injection for the 2000 killing of a police officer.

The day’s executions were part of a group of four scheduled within about a week’s time. On May 15, Glen Rogers was executed in Florida. On Thursday, Oscar Smith is scheduled to receive a lethal injection in Tennessee.

Security video captured part of the attack against Harris who, despite her burns, was able to describe the suspect before she died.

Johnson’s guilt was never in doubt. During his 2013 trial, he admitted to setting Harris on fire and also expressed remorse. “I hurt an innocent woman. I took a human being’s life ... It was not my intentions to -- to kill her or to hurt her, but I did,” he had said at the time.

Johnson said he had not been aware of what he had done as he had been high after smoking $100 worth of crack. His attorneys told jurors Johnson had a long history of drug addiction and had been sexually abused as a child....

Johnson’s legal team did not pursue any appeals this week with the U.S. Supreme Court, according to David Dow, one of the inmate’s attorneys. Lower appeals courts had previously rejected defense requests to stay the execution, and the Texas Board of Pardons and Paroles on Friday denied Johnson’s request to commute his death sentence to a lesser penalty....

Johnson was the fourth person put to death this year in Texas, historically the nation’s busiest capital punishment state. Tuesday’s executions in Texas and Indiana brought this year’s total in the U.S. to 18 inmates put to death.

Indiana completes execution of cop killer, its second since 2009

As reported in this press article, an "Indiana man convicted in the 2000 killing of a police officer was put to death by lethal injection early Tuesday in the state's second execution since 2009."  Here is more:

Benjamin Ritchie, 45, had been on death row for more than two decades following his conviction in the fatal shooting of Beech Grove Police Officer Bill Toney during a foot chase.

Ritchie was executed at the Indiana State Prison in Michigan City, according to Indiana Department of Correction officials. IDOC said in an online statement the execution process started shortly after midnight and he was pronounced dead at 12:46 a.m.

Ritchie told a parole board earlier this month that he had changed during his more than two decades behind bars. He apologized for his actions, which led to the killing of the 31-year-old married father of two children....

Indiana resumed executions after a hiatus due to scarcity of lethal injection drugs that affected correctional departments nationwide.... Among 27 states with death penalty laws, Indiana is one of two that bars media witnesses. The other, Wyoming, has conducted one execution in the last half-century. The Associated Press and other media organizations have filed a federal lawsuit in Indiana seeking media access.

The execution Tuesday in Indiana is among 12 scheduled in eight states this year. Ritchie's execution and two others in Texas and Tennessee will be carried out this week.

Ritchie was 20 when he and others stole a van in Beech Grove, near Indianapolis. He then fired four shots at Toney during a foot chase, killing him.  At the time Ritchie was on probation from a 1998 burglary conviction....

Relatives spoke at a clemency hearing last week, urging for the execution to move forward.  "It's time. We're all tired," said Dee Dee Horen, who was Toney's wife. "It is time for this chapter of my story, our story, to be closed. It's time for us to remember Bill, to remember Bill's life, and not his death."

Ritchie's attorneys have fought the death penalty sentence, arguing his legal counsel at trial was ineffective because his lawyers failed to fully investigate and present evidence on his fetal alcohol spectrum disorders and childhood lead exposure....

Republican Gov. Mike Braun rejected Ritchie's clemency bid last week as the parole board recommended. Braun didn't explain his decision, but board members said Ritchie's case didn't meet the bar for commuting a sentence and cited a dozen violations during Ritchie's time in prison, including threatening others with violence.

Florida completes its fifth execution in 2025

As reported in this USA Today piece, "Florida has executed a man known as the 'Casanova Killer' for his good looks and ability to charm women just before murdering them." Here is more:

Glen Edward Rogers, 62, was executed Thursday by lethal injection for the murder of Tina Marie Cribbs, one of four single mothers in their 30s with reddish hair who fell victim to the Casanova Killer.  Rogers was also known as the "Cross Country Killer" because the victims all lived in different states: California, Mississippi, Louisiana and Florida.

"He's an animal," one of his victim's sisters said in court before Rogers was sentenced to death, according to an archived report from the Associated Press. "He's about the evilest thing I think I've ever imagined."

Rogers used his last words to shout-out President Donald Trump and address the families of his victims, according to execution witnesses....

Rogers − a native of Hamilton, Ohio − was pronounced dead at 6:16 p.m., becoming the 16th inmate executed in the U.S. this year and the fifth in Florida. Another three men are set to be executed in the U.S. next week, in Texas, Indiana and Tennessee.

Authorities connected five victims to the Casanova Killer.  Four of them were mothers with reddish hair in their 30s. Three of the murders happened within a six-day period.... Soon after his arrest, Rogers claimed to have killed Nicole Brown Simpson and Ronald Goldman in Los Angeles in June 1994, and about 70 people overall. There was no evidence to back that up.

New Georgia law reforms process for exempting persons with intellectual disability from capital punishment

Georgia's administration of capital punishment has long had a unique place in the history of the death penalty in the United States.  But, as detailed in this local article, one unique aspect of its modern death penalty process changed this week to be more in line with other state capital processes.  Here are the details:

HB 123 lowers the legal threshold for proving a person has an intellectual disability in the courtroom.  Prior to the bill being signed, it had to be proven “beyond a reasonable doubt,” the highest threshold for evidence.  Now, under HB 123, it must be proven “by preponderance of evidence,” a much lower standard of proof.

Georgia first outlawed capital punishment for people with proven intellectual disabilities in 1988, but the standard of proof remained among the most difficult in the nation to achieve.  A 2002 decision from the U.S. Supreme Court outlawed capital punishment for people with proven intellectual disabilities nationwide, but left it up to individual states to determine the threshold for proving a disability in court.  Until Tuesday, Georgia remained the only state where it must be proven “beyond a reasonable doubt.”...

The new law also moves the proceeding to determine intellectual disability ahead of a formal trial, not during it, meaning a person’s mental capacity is determined right away....

The law is not retroactive. Georgia currently has 34 inmates remaining on death row, and none of them are eligible for appeal under HB 123.  Unlike some bills signed by the governor which take effect July 1, HB 123 became active law when Kemp signed it Tuesday.

The law's shift to a pretrial determination of intellectual disability means that now in Georgia, as is the case in all other states, it will be for a judge to determine whether a defendant is intellectually disabled rather than being determined by a jury while assessing guilt or innocence.

Latest data on death rows in US (at roughly start of second Trump Administration)

Via this post by Robert Dunham at The DP3 Substack, I see that the Legal Defense Fund has released its latest accounting of persons on death rows in the US, Death Row USA, Spring 2025.  The LDF document, which runs 60 pages, has lots and lots of death row data and other information, and the substack post provides various highlights.  Here is how that post start (with my emphasis added at the end): 

The number of prisoners on death rows or facing capital retrials or resentencing proceedings across the United States has fallen to 2,067 as of April 1, 2025, according to the Spring 2025 Death Row U.S.A. (“DRUSA”), a quarterly census of the U.S. death row population by the Legal Defense Fund.  The new total represents a decline of 25 prisoners (1.2%) from the 2,092 people whom LDF reported faced active death sentences or possible resentencing at the start of the year.

Historically, the extent of the decline in the national death-row population in any single quarter does not predict what will happen the coming months, although the long-term trends are clear. The nation’s death-row population declined by only 0.6% (14 people) in the first quarter of 2024, but ended the year with 149 fewer death-row prisoners, the largest death-row population decline in more than two decades and the highest annual percentage decline (6.6%) in nearly a half-century. LDF’s Spring 2025 death-row census, released on May 2, reported 160 fewer individuals on death-row or facing continuing jeopardy of capital resentencing than in its Spring 2024 census, marking a one-year decline of 7.2%.  LDF has reported a decline in the number of people on death row in the U.S. in every quarterly DRUSA census since January 2010 and in each of the last 24 years.  Overall, the U.S. death-row population has fallen 44.5% since its peak of 3,726 at the close of 2000.

As the title of this post hints, I wonder if the consistent and long-running decline in the number of persons on US death rows might be disrupted in coming years.  As noted in this post, Prez Trump issued this Executive Order on his first day in office titled “Restoring the Death Penalty and Protecting Public Safety,” which contains multiple provisions that aspire to "ensure that the laws that authorize capital punishment are respected and faithfully implemented."  Though there are legal and practical limits to how the federal executive branch can directly impact the number of capital charges and sentences (especially in state systems), this EO strikes me as one marker of what I perceive to be a (small?) "vibe shift" in the adminitration of capital punishment that could echo in various ways through death rows.

Though a "vibe shift" in the adminitration of capital punishment may not be tangible (or even real) with regard to the number of death sentences in the US, there already seems to be an increase in the number of executions in the US since Prez Trump took office.  Specifically, there were 15 executions in various states in roughly a 90-day perioud after Prez Trump returned to office, and it has been many years since the US has averaged more than an execution per week for such an extended period.  Of course, lots of factors with nothing to do with the President influence executon dates and rates, but I still find these various new metrics notable.

Florida completes its fourth execution in 2025

As reported in this AP piece, an "Army combat veteran whose Gulf War experience triggered severe mental problems was executed Thursday evening in Florida for the 1998 shotgun slayings of his girlfriend and her three young children." Here is more:

Jeffrey Hutchinson, 62, was pronounced dead at 8:15 p.m. following a lethal injection at Florida State Prison near Starke. He was the fourth person executed this year in the state under death warrants signed by Gov. Ron DeSantis, with a fifth execution set for May 15.... The execution was carried out soon after the U.S. Supreme Court rejected a final appeal without comment.

Hutchinson had long claimed that he was innocent and that two unknown assailants perpetrated the killings under a U.S. government conspiracy aimed at silencing his activism on claims including Gulf War illnesses involving veterans. Hutchinson served eight years in the Army, part of it as an elite Ranger. Court records, however, showed that on the night of the killings in Crestview, Hutchinson argued with his girlfriend, 32-year-old Renee Flaherty, then packed his clothes and guns into a truck. Hutchinson went to a bar and drank some beer, telling staff there that Flaherty was angry with him before leaving abruptly.

A short time later, a male caller told a 911 operator, “I just shot my family” from the house Hutchinson and Flaherty shared with the three children: 9-year-old Geoffrey, 7-year-old Amanda, and 4-year-old Logan. All were killed with a 12-gauge shotgun that was found on a kitchen counter. Hutchinson was located by police in the garage with a phone still connected to the 911 center and gunshot residue on his hands.

Darran Johnson, the brother of Renee Flaherty, said after the execution that justice was done but the family’s pain will never end. “Not a day goes by that we don’t think about the loved ones that were taken from us,” Johnson said....

Hutchinson filed numerous unsuccessful appeals, many focused on mental health problems linked to his Army service. In late April his lawyers sought to delay his execution by claiming he was insane and therefore could not be put to death. Bradford County Circuit Judge James Colaw rejected that argument in an April 27 order. “This Court finds that Mr. Hutchinson’s purported delusion is demonstrably false. Jeffrey Hutchinson does not lack the mental capacity to understand the reason for the pending execution,” the judge wrote.

In their court filings, Hutchinson’s lawyers said he suffered from Gulf War Illness — a series of health problems stemming from the 1990-1991 war in Iraq — as well as post-traumatic stress disorder and paranoia related to his claim that he was targeted by government surveillance....

So far this year, 15 people have been put to death in the U.S. including Hutchinson.

With six serious execution dates in six states scheduled for the next couple months, the US is well on pace for the most executions in 2025 than in any year in more than a decade.

DPIC releases new report on "Immature Minds in a ​'Maturing Society': Roper v. Simmons at 20"

The Death Penalty Information Center yesterday released this big new report about capital sentencing and execution trends for young people over the last two decades, with a particular attention focused on those aged 18 to 20.  (An overview of the report is available on this DPIC webpage.)  The full 75-page report, titled "Immature Minds in a ​'Maturing Society': Roper v. Simmons at 20," covers lots of ground, and here are parts of the report's "Executive Summary":

New death sentences for 18- to 20-year-olds have diminished both in absolute terms and as a percentage of all new death sentences over the last twenty years. During the past five years, juries have sentenced just five such individuals to death.

Seventy percent of 18- to 20-year-olds currently on death row were sentenced before Roper was decided.  Almost a third of 18- to 20-year-olds sentenced after Roper have been removed from death row because of judicial or executive action....

Since the Roper decision, more than three-quarters of the death sentences given to 18- to 20-year-olds have been imposed on people of color.  This is higher than the rate found in older defendants: half of the death sentences imposed on adults 21 and older were imposed on people of color during this same time frame.

California is an outlier. In the twenty years since Roper, nine out of ten death sentences given to 18- to 20-year-olds were imposed on people of color....

The average age at the time of crime for people sentenced to death is 34.3 for white people and 29.7 for people of color, a nearly five-year gap; the gap is as large as 15 years in some individual states.

Texas alone accounts for half of all executions of 18- to 20-year-olds since Roper — 80 percent of whom were people of color. 

A little round-up to start the week

A number of articles and commentaries which have caught my eye recently got me to thinking it would be a good time for a little round-up.  So here goes:

From Cato at Liberty, "Orwellian Justice: The Trial Penalty Under Fire"

From Courthouse News Service, "Florida parole practices do not violate juvenile lifers’ rights"

From Forbes, "Second Chances, Stronger Teams: Leadership Lessons From Prison"

From The Hill, "Prison understaffing: A crisis seen by few, felt by prisoners and prison employees"

From The Hill, "Incarcerated women deserve a second chance"

From Law360, "Pardon Me? Why Offers To Secure Clemency Might Be A Scam"

From NBC News, "After Biden commuted federal death row sentences, DAs are weighing state charges"

From the New York Post, "Judge rules prosecutors can seek death penalty against Bryan Kohberger if convicted of Idaho student murders — despite autism diagnosis"

From NPR, "Luigi Mangione's case marks a shift in politics of the death penalty in the U.S."

From The State, "As Dylann Roof seeks new trial, his former lawyer admits making serious errors"

From the Washington Times, "Chances for reduced prison sentences, erased records now law in Maryland"

Alabama completed in second execution in 2025

As reported in this AP article, an "Alabama man who dropped his appeals and said he deserved to die for a 2010 rape and murder was executed Thursday evening, using his final words to apologize to the woman he killed."  Here is more:

James Osgood, 55, was pronounced dead at 6:35 p.m. following a three-drug injection at a south Alabama prison, authorities said. A jury in 2014 convicted Osgood of capital murder in the death of Tracy Lynn Brown in Chilton County. Prosecutors said Osgood cut her throat after he and his girlfriend sexually assaulted her....

Brown, 44, was found dead in her home on Oct. 23, 2010, after her employer became concerned when she did not show up for work.

Prosecutors said Osgood admitted to police that he and his girlfriend sexually assaulted Brown after discussing how they had shared fantasies about kidnapping and torturing someone. The pair forced their victim to perform sex acts at gunpoint. They said Osgood then killed Brown by cutting her throat. His girlfriend, who was Brown’s cousin, was sentenced to life in prison.

The jury in 2014 took 40 minutes to convict him and unanimously recommended a death sentence. His initial death sentence was thrown out by an appeals court. At resentencing in 2018, Osgood asked for another death sentence, saying he didn’t want the families to endure another hearing.

Alabama Corrections Commissioner John Hamm said the victim’s family members witnessed the execution in a separate viewing room. They chose not to make a statement to the media, he said. Gov. Kay Ivey issued a statement, calling the killing “premeditated, gruesome and disturbing.”...

Osgood told AP last week he had dropped his appeals because he was guilty and thought his execution should go forward. “I’m a firm believer in — like I said in court — an eye for an eye, a tooth for a tooth. I took a life, so mine was forfeited. I don’t believe in sitting here and wasting everybody’s time and everybody’s money,” Osgood said.

The Death Penalty Information Center reported last year that 165 of the 1,650 people executed since 1977 had asked to be put to death.... The execution was the second in Alabama this year and the 14th in the nation overall.

"Trump's Executions, Biden's Commutations, and Federalism"

The title of this post is the title of this new article authored by Jonah Horwitz which is now available on SSRN (and is forthcoming in the Federal Sentencing Reporter). Here is its abstract:

During his first term, President Trump executed thirteen federal prisoners.  At the end of his own presidency, Joe Biden commuted the death sentences of thirty-seven federal inmates and reduced them to life in prison without the possibility of parole.  Most commentators have focused on how President Trump's action reflects his support for the death penalty and President Biden's shows his opposition to it.  But the better question to ask is what the contrast says about the federal death penalty in particular.

I argue that the Biden commutations (and in particular the nature of the three death sentences that were left untouched) reflect a coherent conception of the federal death penalty as being limited to terrorism and civil-rights murders, rare cases in which there is a compelling national stake in an execution.  By contrast, the Trump executions represent a model in which the U.S. government uses the death penalty so indiscriminately that it becomes divorced from the federalist foundations of the criminal-justice system.  This juxtaposition has fruitful implications for the broader ongoing debate about the federal governments' role in punishing crime as compared to the states.

Texas completes its third execution of 2025

As reported in this local article, "Death row inmate Moises Mendoza was executed Wednesday for the murder of a former high school classmate in 2004, becoming the third man executed by Texas this year."  Here is more:

Mendoza, 41, was executed by lethal injection and pronounced dead at 6:40 p.m., according to Texas Attorney General Ken Paxton’s office. In his final statement, Mendoza told his loved ones he was at peace and apologized to the family of Rachelle Tolleson, whom he killed in 2004....

Mendoza confessed to killing 20-year-old Tolleson in a small town outside of Dallas, before his 2005 trial.  According to court documents, Mendoza took Tolleson from her Farmersville home, where she was alone with her 5-month-old daughter, and sexually assaulted the woman before killing her and leaving her body in a field.

Mendoza later moved Tolleson’s body to a more remote location and burned it, where a man found it six days later, according to court records.  Mendoza has contested the sexual assault, claiming Tolleson left willingly with him, however, he did admit to killing her.

Collin County District Attorney Greg Willis released a statement after the execution, memorializing Tolleson and claiming justice was “finally carried out.”

“Nothing can undo what Rachelle’s loved ones have endured. But justice is not about erasing the past — it’s about honoring the life that was taken,” Willis said in the statement.

Mendoza’s lawyers filed several appeals, including one to the Texas Court of Criminal Appeals, alleging prosecutors had used false testimony during Mendoza’s sentencing to convince jurors he would be violent while incarcerated.  Those appeals were struck down April 15.

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.