By Citlalli Florez
WASHINGTON, DC – The Death Penalty Information Center released an end-of-year report for 2023, revealing only five states had executions and seven states had imposed the death sentence, leading to the lowest number of states in 20 years.
Based on the study, it was also found Americans believe the death penalty is administered unfairly.
According to the report, 2023 was the 9th consecutive year with fewer than 30 people executed and fewer than 50 people sentenced to death. But, as found in earlier years, most prisoners had significant physical and mental health issues at the time of their executions because of the many years spent in severe isolation.
The report also noted that because of difficulty obtaining lethal drugs, some states used untested methods of execution or used previously abandoned methods. Other states enacted or continued pauses on executions until a new method of execution had been studied.
The Death Penalty report references Furman v. Georgia as a turning point when the Supreme Court invalidated death penalty statutes. The Court cited “serious constitutional concerns with the arbitrariness and racial discrimination in many state processes and death sentences.” After reinstatement of the death penalty was approved by the Court in 1976, the court had a more active role in regulating states’ use of the death penalty.
More than 50 years after Furman, the majority of the Supreme Court no longer seems willing to continue a similarly active role regulating the death penalty, said the report, suggesting this may lead to some state officials and legislatures feeling unrestrained by the risk of judicial oversight or correction.
For example, Florida created new legislation making a non-homicide crime a death-eligible offense. The state of Alabama has also announced plans of using nitrogen gas as a method of execution, which is untested and risky.
Despite the Court pivoting away from regulating the death penalty, for the first time, data shows more Americans believe that the death penalty is administered unfairly.
According to the Death Penalty Report, “the data shows that the death penalty is increasingly disfavored,” noting, it is the result of “society’s greater understanding about the fallibility of our legal system and its inability to protect innocent people from execution, the vulnerabilities of the people who are sentenced to death, and a recognition that the significant resources and time necessary to use the death penalty do not deliver enough of a return on the public’s investment in terms of safety or deterrence.”
A Gallup Crime Survey asked for opinions about the fairness of the death penalty since 2000. The survey, released in October of 2023, reveals that for the first time, more than 50 percent of Americans believe the death penalty is applied unfairly although 47 percent believe the contrary.
This is compared to studies conducted between 2020 and 2015 where 51 percent to 61 percent of Americans said they thought capital punishment was applied fairly. The numbers have been dropping since 2016.
The survey also found that 53 percent of Americans favor the death penalty, which is the lowest number since March 1972. When given the option between the death penalty and life without parole, support for the death penalty dropped to 36 percent.
Gallup asked respondents whether they believe the death penalty is imposed too often, the right amount, or not enough. Thirty-nine percent of respondents believe that capital punishment is not used enough, while 56 percent of respondents believe that capital punishment is imposed too often.
When asked this question, there was a clear partisan divide. Sixty-two percent of Republicans think the death penalty is not imposed often enough while 25 percent say it is imposed in the right amount. Fifty-two percent of Democrats think the death penalty is imposed too often, while 24 percent think it is used in the right amount. Among Independents, 37 percent think it is not used enough, 32 percent think it is used in the right amount, and 26 percent think it is used too often.
Gallup administered a Moral Issues survey in May 2023 during the Tree of Life Synagogue trial in Pittsburgh, and found that 60 percent of individuals agreed that capital punishment was morally acceptable. It was found that 82 percent of Republicans find the death penalty morally acceptable compared to 59 percent of independents and 40 percent of Democrats.
There were three exonerations in 2023, that of John Huffington, Jesse John, and Glynn Simmons. There have been a total of 195 death-row exonerations since 1973, reported DPIC.
Maryland Gov. Larry Hogan granted John Huffingtion a full pardon on January 13, 2023. Evidence showed “his convictions were in error.” Huffington was convicted in 1981 after his case was tried by prosecutor Joseph Cassily, who was disbarred after an investigation revealed he had withheld evidence about the scientific inaccuracy of forensic evidence in the case. Huffington has always maintained his innocence.
DPIC noted Jesse Johnson was released from Oregon’s Marion County Jail in September. Deputy District Attorneys Kate Suver and Matt Kemms wrote in their motion to dismiss the case, “based on the amount of time that has passed and the unavailability in critical evidence in this case, the state no longer believes that it can prove the defendant’s guilt to twelve jurors beyond a reasonable doubt.”
Two years earlier, the report said, Johnson had his conviction overturned by the Oregon Court of Appeals after finding he had not received effective representation from his defense counsel during trial. The Oregon Innocence Project assisted in his appeals in 2014 and determined that racism on the part of the detective played a role in Johnson’s wrongful conviction.
Glynn Simons was exonerated in September after 48 years of being sentenced to death. He became the 11th person exonerated in Oklahoma since 1973.
DPIC said prosecutors failed to disclose that the surviving victim had identified multiple people in a line-up. In July, District Attorney Vicki Behenna agreed that the original trial was unfair and requested Simmon’s sentence be vacated. Behenna asked the case to be dismissed due to the inability to “prove beyond a reasonable doubt that Simmons was responsible for Carolyn Sue Roger’s Murder.”
According to the Death Penalty Information report, there has been unprecedented support for prisoners with innocence claims from elected officials. Appeals include that of Areli Escobar, Richard Glossip, Phillip Hancock, Toforest Johnson and Robert Roberson.
Areli Escobar had a successful appeal to the Supreme Court after Travis County District Attorney Jose Garza admitted to the conviction being based on “flawed and misleading evidence.”
Last year, DPIC said 62 Oklahoma lawmakers publicly expressed concern about Richard Glossip’s case. Attorney General Gentner Drummond argued for clemency stating, “After careful consideration—including a thorough review by an independent counsel—the State came to the conclusion that…enduring that justice is done in this case requires a retrial.”
Glossip was denied clemency based on a 2-2 vote from the Oklahoma Pardon and Parole Board. He filed a suit against the Board. Hancock—who was executed this week anyway—and Glossip received support from Republican state legislators Kevin McDugle and J.J. Humphrey, who say they strongly support the death penalty but believe executions should be paused to examine system-wide failures and injustices.
Toforest Johnson, per the DPIC annual report, has support for a new trial in his case from Jefferson County District Attorney Danny Carr, former Alabama Attorney General Bill Baxley, three jurors from his case, former Alabama Supreme Court Justice Drayon Nabers and state bar presidents.
Rober Roberson’s petition to the Supreme Court was supported by five retired federal judges, scientists, medical experts, forensic experts and others. The Supreme Court denied his petition.
Escobar, Johnson, Glossip, and many more cases received significant media attention due to their credible innocence claims, explained DPIC, noting in the last 10 years, only 15 clemencies have been granted in death penalty cases.
The report mentioned that two states have paused executions due to executive actions.
In Arizona, Governor Katie Hobbs issued an executive order appointing a Death Penalty Independent Review Commissioner “to review and provide transparency into the lethal injection drug and gas chamber chemical procurement process, execution protocols, and staffing considerations.”
Hobbs noted in the executive order, “Arizona has a history of executions that have resulted in serious questions about ADCR’s (Arizona Department of Corrections, Rehabilitation and Reentry) execution protocols and lack of transparency.”
Due to three visibly problematic executions conducted in 2022, Hobbs wrote, “a comprehensive and independent review was necessary to ensure these problems are not repeated in future executions.”
Arizona Attorney General Kris Mayes filed a motion to withdraw the state’s only pending request for a death warrant. Executions have been paused until the mandated review is complete.
Pennsylvania Governor Josh Shapiro announced he would continue the moratorium on executions, stating, “The commonwealth shouldn’t be in the business of putting people to death. Period. I believe that in my heart. This is a fundamental statement of morality. Of what’s right and wrong. And I believe Pennsylvania must be on the right side of the issue.”
States have approved alternative execution methods when lethal injection is unavailable. This includes South Carolina, Alabama, Oklahoma, Mississippi and Idaho.
DPIC also reports the South Carolina legislature passed a secrecy law authorizing a new lethal injection protocol. The law conceals the manufacturers and suppliers of execution drugs. Litigation is ongoing in the State Supreme Court challenging South Carolina’s statute making electrocution a default method of execution and authorizing a firing squad as an alternative method. A trial court in 2022 found that both methods violate the state’s constitution.
Alabama received a redacted protocol for using nitrogen gas, while Oklahoma and Mississippi authorized execution by nitrogen execution. No state had used this method before.
Idaho became the fifth state to authorize executions by firing squad, said DPIC in its report. The Director of the Idaho Department of Correction will have up to five days after a death warrant is issued to determine whether an execution by lethal injection is possible. If not, the execution would be performed by a firing squad.
Florida has expanded the death penalty eligibility and revised the sentencing requirements. Two new death penalty laws were passed in April which will likely expand the number of people sentenced to death.
DPIC said the requirement for a jury to unanimously agree to impose a death sentence has been removed. The second law allows the death penalty as punishment for sexual battery of a child under the age of 12. There does not need to be the death of a victim.
A Texas judge, said DPIC in its report, ruled Scott Panetti, a death row inmate with a long history of mental illness, was not sane enough to be executed.
The judge explained, “There are several reasons for prohibiting the execution of the insane, including the questionable retributive value of executing an individual so wracked by mental illness that he cannot comprehend the ‘meaning and purpose of the punishment,’ as well as society’s intuition that such an execution ‘simply offends humanity.’”
Arizona, Arkansas and Texas proposed bills to exempt people with severe mental illness from death penalty eligibility. The bills failed in Arizona and Arkansas. Texas passed the bill but no action has been taken in the Senate.
Gov. Jay Inslee signed legislation to formally remove the death penalty law from the books five years after the Washington State Supreme Court struck it down as unconstitutional. Inslee stated, “The court made clear, and we know this to be true, that the penalty has been applied unequally and in a racially insensitive manner.”
DPIC said the Pennsylvania House Judiciary Committee voted in favor of a death penalty repeal bill in October, the first step toward abolishing the death penalty in the state which hasn’t executed anyone since 1999.
Legislators from 12 different states and the U.S. Congress have introduced bills to abolish the death penalty. For example, a bipartisan group of Ohio State House Representatives introduced a bill that would abolish the death penalty and replace it with life in prison without parole.
The report also brought up unsuccessful legislative efforts to abolish the death penalty in Louisiana. Governor John Bel Edwards had publicly announced his opposition to capital punishment.
Most people executed in 2023 had vulnerabilities, and many would also have likely not been sentenced to death today, said the report, noting 79 percent of people executed this year had at least one impairment.
The DPIC said impairments include serious mental illness, brain injury, developmental brain damage, the IQ in the intellectually disabled range, chronic serious childhood trauma, neglect, and/or abuse. At least three were under the age of 20 at the time a crime was committed.
Governor of Florida, Ron DeSantis, has scheduled eight executions since he took office in 2019, bringing the total number of executions in Florida since 1976 to 105. Texas maintains its status as the state with the most executions conducted, said DPIC, adding of 58 death warrants in the U.S. issued in 2023 only 41 percent were carried out.
The annual report said race continues to matter in regard to who is sentenced to the death penalty. The majority of the crimes for which people were executed involved white victims at 79 percent. None of the 15 white defendants executed in 2023 were convicted for killing a person of color. None of the 24 people executed were people of color. Four of the nine were people of color executed for killing white victims. People of color were overrepresented among those executed in 2023 in the state of Texas, which was five out of eight prisoners.
DPIC said those executed in 2023 have spent an average of 23 years on death row. More than half have been on death row for more than 20 years. Experts, the center said, have found that extended solitary confinement and harsh conditions causes mental illness in healthy prisoners and worsens the illnesses of those who already have conditions.
As of January 1, 2023 there were 2,331 people on death row. As of December 1, 21 people were sentenced to death in 2023. Again, Florida has imposed the most death sentences in the U.S., said DPIC.
In July 2023, Ayanna Pressley and Dick Durbin, cited DPIC, reintroduced the Federal Death Penalty Prohibition Act of 2023 to prohibit the use of the death penalty at the federal level.
