By Katherine Coviello and Jake Wylie
WASHINGTON, D.C. – A new report released this last week by the Death Penalty Information Center highlights key developments from 2021, notably Virginia becoming the 23rd state, and first state in the South, to abolish the death penalty.
“There is no place today for the death penalty in this commonwealth, in the South, or in this nation,” said Virginia Governor Ralph Northam, one of many prominent political advocacy voices quoted in the report.
Among other significant findings included in the report are that 2021 is the seventh year in a row with fewer than 30 executions and fewer than 50 new death sentences, as well as the startling statistic that there is one exoneration for each 8.3 death penalty execution.
The report explained that Virginia’s successful ban on the death penalty demonstrates the continued weakening of capital punishment’s status in the United States – the result of many different factors from better legal defense for those sentenced to death, to changing state demographics, to a dramatic loss of public support.
Virginia’s abolition of capital punishment now makes the states that have either abolished the death penalty (23) or issued a moratorium on the death penalty (three) a majority in the union, with 10 other states not having executed someone in a decade.
Other developments from across the country pointed out by the report include an October judicial ruling in Oregon that is expected to empty at 
least most of the state’s death row; efforts in Ohio and Utah to introduce bills to abolish or repeal the death penalty; and a bill passed in Tennessee that eliminated a legal loophole that left people on the state’s death row unable to enforce a 2002 ruling by the U.S. Supreme Court that people with intellectual disabilities could not be subjected to capital punishment.
However, progress has not been easy going for advocates for abolition, the report notes.
Following a decade-long hiatus, South Carolina tried to resume executions, scheduling two for early 2021. When these executions were vacated by the state’s Supreme Court, the South Carolina legislature retaliated with a bill passed in May that made death-by-electrocution the default mode of execution, with lethal injection and firing squad as alternatives.
When South Carolina scheduled two more execution dates for June without allowing the prisoners to select their method of execution, the state’s Supreme Court intervened again, halting the executions, and saying that the state had violated the prisoners’ rights.
“I recall the look on his face. I recall the smell of his body. I recall me being a part of cooking [him] to death,” said Terry Bracey, a former South Carolina corrections officer reflecting carrying out executions as a part of his job. “I wonder whether God will ever forgive me now.”
“Pretending that the death penalty will somehow curb crime is simply a lie,” said Utah County Attorney David O. Leavitt, who announced in September, 2021 that his office would no longer seek the death penalty. “What I have witnessed and experienced since deciding to seek the death penalty is that regardless of the crime, seeking the death penalty does NOT promote our safety,” he said.
Prosecutors and the families of homicide victims played critical roles in fighting for the end of capital punishment in both Utah and Virginia, read the report.
Leavitt and three other Utah prosecutors, two democrats and two republicans, wrote an open letter in September calling out serious issues like racial bias and innocence that are ingrained in capital punishment.
Their letter called capital punishment “a grave defect” in the law “that creates a liability for victims of violent crime, defendants’ due process rights, and for the public good.”
Regarding the federal death penalty, the report’s key findings noted a federal “execution spree” that ended less than a week before President Biden was inaugurated.
This spree included six executions performed by the federal government between the election in November, 2020 and inauguration in January, 2021 – the most federal executions ever during a presidential transition.
In good news, however, “[t]hough there were fewer executions in 2021 than in any year since 1988, the executions that were carried out highlighted serious systemic issues concerning who is executed, how they are executed, and the legal process leading up to executions,” the report stated.
Not only did 10 of the 11 executed people in 2021 show evidence of significant impairment, but 228 people, or one of seven executions, had posed legal claims that “had claims in their case that today would render their execution unconstitutional,” according to the authors of Dead Right: A Cautionary Capital Punishment Tale.
“The year’s executions also presented questions of innocence, competency to be executed, and executions carried out against the wishes of the victim’s family,” the report acknowledged, citing the cases of Lisa Montgomery, Corey Johnson, and Dustin Higgs.
Those three were the final executions carried out by the Trump Administration and all had presented arguments against the appropriateness of the death penalty considering their case specific circumstances.
Another point of concern was execution procedures.
Despite federal litigation regarding the constitutionality of Oklahoma’s lethal injection protocol, the state performed a spree of executions in 2021. This was after a six year hiatus and a promise from Oklahoma’s Attorney General and the federal judge overseeing the litigation that no executions would be sought before the case had been resolved.
Regardless, seven death warrants were issued spanning a five month period. One of these resulted in a botched execution of John Grant with witnesses claiming he convulsed about two dozen times and recurrently vomited despite the Department of Corrections (DOC) communications director Justin Wolf claiming “Inmate Grant’s execution was carried out in accordance with Oklahoma Department of Corrections’ protocols and without complication.”
Additionally, Texas administered an execution without media witnesses and Mississippi resumed executions after a long hiatus.
The year was also decidedly deadly for people on death row with intellectual disabilities as at least seven intellectually disabled people faced death warrants at some point, three of which were executed.
The report noted that, “Several state supreme courts have also taken steps to undermine or evade Atkins’ constitutional prohibition on executing individuals with intellectual disability.”
“The fact of the matter is that these death sentences are not about justice. They are about who has institutional power and who doesn’t. Like slavery and lynching did before it, the death penalty perpetuates cycles of trauma, violence and state-sanctioned murder in Black and brown communities.” argued Representatives Cori Bush and Emanuel Cleaver.
New sentencing also shed light on flaws in the death penalty.
Of the 18 new death sentences imposed, the majority of defendants were people of color and more than three quarters of the cases involved at least one white victim. No white defendants were sentenced under the death penalty for any murder that did not involve at least one white victim.
Despite ongoing executions, public support for the death penalty is at a half century low, the report highlighted.
“Local polling in states considering abolition found significant public support for replacing the death penalty with non-capital alternatives, while support in states that most aggressively apply the death penalty was eroding,” described the report.
Shifts in the Supreme Court have had a direct effect in death penalty cases, especially following Justice Kennedy’s retirement and Justice Ginsburg’s death. The court actively overturned lower court rulings to allow the executions of federal death row prisoners and hostility was expressed towards stays of executions.
“Cases that are currently pending before the Court may affect important precedent on previously settled issues relating to jury selection and the consideration of mitigating evidence, establish the bounds of religious rights at the time of execution, and determine the degree to which prisoners who have been denied the effective assistance of counsel throughout both their trials and state post-conviction appeals will have access to federal judicial review of their lawyers’ failures.” stated the report.
To read the full report, visit www.deathpenaltyinfo.org or this link.
