The death penalty: The past and uncertain future of executions in America – Grid News
The death penalty: The past and uncertain future of executions in America

Photo illustration: Mae Decena. Sources: Getty Images

360°

The death penalty: The past and uncertain future of executions in America

LENSES

360°

The death penalty: The past and uncertain future of executions in America

Fewer people are being sentenced to death, and concerns about cruelty and racial bias remain, but some states are trying to move ahead with executions anyway.

Contributors

What are 360s? Grid’s answer to stories that deserve a fuller view.

Overview

LENSES

South Carolina may soon carry out the United States’ first executions by firing squad in more than a decade. State officials have said that they plan to execute Richard Moore and Brad Sigmon using guns, the first such use of a firing squad since Ronnie Gardner was shot to death by the state of Utah on June 18, 2010.

Last week, nine days before Moore was to be executed, South Carolina’s Supreme Court put the execution on hold, but there’s no way of knowing how long that will last. Days later, the court also put Sigmon’s execution — scheduled for May — on hold. Although the court did not explain its reasoning, both men have an ongoing challenge to the state’s execution protocol, including its planned use of a firing squad.

How did we get here?

More than 45 years after the Supreme Court allowed executions to resume in the United States after a four-year hiatus, America is in a monthlong period in which five states planned to carry out six executions — the most in several years.

The situation offers a window into changing attitudes toward the death penalty and the complex brew of factors that have made these executions harder to carry out but also harder to challenge in courts. And the individual stories behind some of these current cases serve as a reminder of the well-documented racial bias in the way death sentences are handed down.

The death penalty’s popularity with the public has diminished in recent decades, and the overall number of new death sentences and executions has dropped significantly,

That’s due in part to the increased difficulty of carrying out lethal injection executions after death penalty opponents made it substantially harder for states to obtain the necessary drugs. States responded in part by adopting untried drug combinations. A series of botched executions followed — including the longest execution in U.S. history, when Arizona spent nearly two hours trying to kill Joseph Wood by using 15 doses of its execution drugs on the man before he died.

During that same time, the Supreme Court has made it more difficult to challenge any method of execution, setting a high bar for a method to be disallowed and by requiring challengers to identify an alternative method of execution.

Robert Dunham, the executive director of the Death Penalty Information Center, a nonpartisan organization that maintains a comprehensive database of U.S. executions, told Grid that part of the current influx of execution dates is a result of most states halting executions during the first year of the pandemic, before a covid vaccine was available.

This past week, Texas carried out its first execution of the year when it executed 78-year-old Carl Buntion. Tennessee also had planned an execution for last week, but it was called off with an announcement that highlighted two key elements of the modern death penalty: secrecy and errors. Hours before the state was slated to execute Oscar Franklin Smith by lethal injection, Gov. Bill Lee (R), citing “an oversight in preparation for lethal injection,” announced a reprieve. The execution will not happen before June, but state officials have not yet said anything more about what led to the last-minute reprieve.

Texas had a second execution scheduled for April, that of Melissa Lucio, but the state’s Court of Criminal Appeals on Monday announced a stay of execution as a trial court considers several claims Lucio has raised. These include that she is actually innocent in the 2007 death of her 2-year-old.

“While a whole bunch of states seem to want to restart … executions, they’ve been pretty bad at it,” Dunham said, describing the Tennessee developments and a series of moves by South Carolina that have led to repeated stays from the state’s Supreme Court. These include claiming, without providing evidence, that the state has been unable to obtain lethal injection drugs.

States that want to go forward with executions are returning to older methods due to the difficulty in obtaining lethal injection drugs.

Tennessee added the electric chair as a backup option to lethal injection in a 2014 bill. After a nearly 10-year break that coincided with that change and subsequent challenges to the changes, five of the seven people to have been executed in the state were electrocuted to death.

And now, South Carolina has added the firing squad into the mix.

Thesis

States and the federal government have executed more than 1,500 people since the U.S. restarted executions in 1977 after a brief Supreme Court-induced hiatus. Yet over that near half-century, concerns about discrimination, the arbitrary way the death penalty is applied and whether execution methods cause undue suffering have never abated. Growing opposition to capital punishment and a series of botched executions have led to near-constant changes in how states carry out the death penalty — most recently, efforts to return to once-discarded methods like firing squads.

ADVERTISEMENT

Legal Lens

Shifting views of “cruel and unusual”

The death penalty’s current status in the United States comes out of a series of Supreme Court decisions in the 1970s. In 1972, the court effectively halted imposition of the death penalty across the United States as a violation of the Eighth Amendment’s ban on cruel and unusual punishments. The court did not, however, rule that the death penalty itself was unconstitutional, which meant that states could craft new laws that would theoretically eliminate the deficiencies that the court pointed to in its decision. Among them were that racism, classism and other discrimination infected sentencing decisions and that the resulting death penalty sentences were handed out arbitrarily and capriciously because judges and juries were generally free to make whatever decision they wanted in any case where a death sentence was authorized by law.

Four years later, the court deemed Georgia’s revised death penalty statute constitutional, setting the stage for the modern death penalty. Several of the changes that the court held made the new statute permissible remain to this day:

  • The requirement of “bifurcated trial,” where the defendant’s guilt on murder charges is assessed first; if they are found guilty, there is then a separate sentencing hearing.
  • Limiting who is eligible for the death penalty by limiting what crimes are “death-eligible” and by requiring jurors to find one of certain “aggravating factors” — like the murder being committed for financial gain or causing risk to the lives of multiple people — exist before it can impose a death sentence.
  • Allowing jurors to weigh any of those aggravating factors presented by the state against mitigating factors presented by defense counsel in deciding on the sentence to impose. Regardless of whether there is an aggravating factor, in other words, a person need not be sentenced to death.
  • Requiring “proportionality review,” which involves a higher court looking at other capital cases to make sure that the person whose case is in question was not given a death sentence when others in similar cases were not.

Over the years that followed, death penalty systems began moving again in the states — from charges to trials to sentences to executions. Because of the extent of the changes required by the Supreme Court, however, executions didn’t begin immediately. As the ‘80s wore on and the “tough on crime” era began in earnest, though, executions under the new system picked up. Only four executions took place in the first five years after the 1976 decision, Gregg v. Georgia; in the next five years, there were more than 50.

Then, in one of the first cases the court heard after William Rehnquist became chief justice in 1986, the court ruled 5-4 that statistical analysis showing evidence of racial discrimination in Georgia’s death penalty system was insufficient to prove that the death sentence of an individual — here, Warren McCleskey — was tainted by racial discrimination.

The impact of that decision cannot be overstated. As Richard Dieter, the former head of the Death Penalty Information Center, wrote recently, “since the McCleskey decision, there have been 1,473 executions; 78% of the underlying cases involved murders with white victims, in a country where the number of black murder victims exceeds the number of white victims.”

In the 1990s, as the Clinton administration supported legislative changes to limit federal challenges in death penalty cases, the number of executions increased dramatically. Nearly 500 people were executed across the country, with more than half of the states carrying out at least one execution.

As the number of executions increased, however, the court also began placing some limits on who could be executed. The court held that a person cannot be put to death if they are incompetent at the time of their execution — that is, if they do not understand the reason for it. The court has also held that it is unconstitutional to sentence to death anyone who is under 18 or developmentally disabled. Such categorical exclusions have been the primary limit on executions from the Supreme Court.

Far less successful have been challenges to specific methods of execution in federal court. States moved away from methods like the electric chair and toward lethal injection in the 1990s, after a series of botched executions involving the electric chair. Over time, though, it became more difficult to obtain certain drugs for the executions, and states began experimenting. Challenges to states’ chosen method of execution proliferated, amid those changes and another series of botched executions.

In a series of cases over the past 20 years, however, the Supreme Court has both upheld states’ methods of execution as constitutional and made it more difficult for people to challenge the method of execution a state is seeking to use. As it stands, a person challenging a method of execution not only needs to prove the method would create “a substantial risk of severe pain,” but that there is a readily available alternative.

Justice Stephen Breyer has raised the prospect of revisiting the constitutionality of the death penalty. In a 2015 dissent, Breyer, joined by Justice Ruth Bader Ginsburg, wrote of the 1976 Gregg decision that the court then believed “the constitutional infirmities in the death penalty could be healed.” Instead, he argued, there remain three “fundamental” defects with the death penalty’s administration: its unreliability, its arbitrariness and “unconscionably long delays” in implementation. Additionally, he noted, and perhaps as a result of those factors, “most places within the United States have abandoned its use.”

The possibility of that dissent leading to some grand change for death penalty opponents was short-lived, given Donald Trump’s 2016 presidential election victory. In the years since, as Trump’s Supreme Court nominees replaced Justices Anthony Kennedy and Ginsburg, in particular, the outlook for death penalty challenges has dimmed to a flicker. At this point, the challenges most likely to be met with a receptive court are marginal ones that align with other interests of the conservative-majority court, such as the case decided by the court this year that allows a person to have a pastor in the death chamber praying audibly and laying hands on the person to be executed if in accordance with the person’s faith.

ADVERTISEMENT

Science Lens

Medical groups and drug companies push back

The lethal injection protocol that became the national standard was cooked up in 1977 by Oklahoma’s chief medical examiner, Jay Chapman, whose initial reaction to the idea was that he “was an expert in dead bodies, but not an expert in getting them that way.”

Two legislators in the state were intent on developing a more humane method of execution than electrocution. Lethal injection would cause “no pain, no spasms, no smells or sounds — just sleep, then death,” one of the legislators reportedly said.

But the pair had trouble finding medical experts to design the protocol, as the state’s medical establishment balked at physician involvement in executions, said Deborah Denno, a death penalty expert at Fordham Law School.

So they turned to an expert in dead bodies instead. His three-drug lethal injection protocol, created almost single-handedly, swept the nation after Texas first used it in 1982. But the protocol began to unravel in the early 2000s as botched executions drew increased scrutiny and drug shortages forced states to experiment with more suspect medications.

Chapman’s method was conceptually simple. Three drugs would be successively delivered intravenously: sodium thiopental, a barbiturate to induce deep unconsciousness; pancuronium bromide, a paralytic to keep the inmate from convulsing and slow their breathing; and potassium chloride, a toxin to stop the heart in as little as five minutes. “The paralytic is really for the witnesses,” Denno said. “Chapman told me he suggested that drug so an execution would be more acceptable to the people watching it.”

Sodium thiopental, a mainstay of anesthesiology at the time, is “quite effective at inducing unconsciousness,” said Richard Levy, an anesthesiologist at Columbia University. In theory, it should shield inmates from feeling the effects of potassium chloride, often described as fire coursing through veins.

In practice, however, much can go wrong, turning a supposedly painless death into a potentially excruciating experience. One major complication is the growing resistance of medical professionals to help plan or carry out executions.

The American Medical Association and the American Society of Anesthesiologists officially bar members from any involvement in executions, though these measures are not binding. The AMA currently holds that “as a member of a profession dedicated to preserving life when there is hope of doing so, a physician should not be a participant in a legally authorized execution.” The American Board of Anesthesiologists took a more aggressive stance in 2010, threatening to revoke the license of anesthesiologists who participate. This creates an environment where those most knowledgeable about the drugs and how to deliver them are reluctant to get involved.

Some physicians still participate in lethal injections, but “the people doing this are often not trained,” Denno said. “Many are prison volunteers who have never even held a syringe before; they have absolutely no idea what they were doing.”

That can create problems. “Botched executions are often technically related to the inability to deliver the right drug in the right dose into the patient’s veins,” said David Waisel, an anesthesiologist at Yale School of Medicine. Finding veins can be difficult, he said, especially on inmates who are in poor health or who used drugs.

An injection that does not go fully into a vein will prevent the first drug in the sequence from being fully absorbed. In such cases, “death by suffocation would occur in a paralyzed inmate fully aware of the progressive suffocation and potassium-induced sensation of burning,” researchers said in a 2007 analysis.

That likely happened to Ángel Díaz in 2006. Florida technicians pushed the needle straight through his vein, releasing the drug in soft tissue instead, where it pooled and caused chemical burns. Witnesses to the execution said Díaz continued to move long after he should have been unconscious, wincing, shuddering and gasping for air. He took 34 minutes to die.

An estimated 7 percent of lethal injections are botched. But paralytic drugs may be masking more problems if inmates can’t show they’re in pain. Toxicology reports from 49 executions found that 88 percent had levels of sodium thiopental lower than those required for surgery, and 43 percent had concentrations consistent with some level of consciousness.

Growing awareness of botched executions stirred up legal challenges to the method in the early 2000s, on grounds that misapplication of the protocol constituted cruel and unusual punishment. Some states issued moratoriums, but in 2008, the Supreme Court ruled the method constitutional.

Drug shortages lead to experimentation

Around 2010, a series of events drastically restricted the cornerstone of Chapman’s method, sodium thiopental, leading to an “unpredictable frenzy” of new, questionable protocols and untested drugs obtained through suspect means, Denno said.

Supply chain issues caused Hospira, the sole U.S. manufacturer of the drug, to halt production. Plans to make the drug at a plant in Italy met intense opposition from that country, leading the company to cease production in 2011. That same year, the European Union, which opposes the death penalty, banned export of any drugs for lethal injections.

Sodium thiopental became scarce, Denno said, along with similar drugs that might be used. So states started experimenting.

An early substitute was pentobarbital, another barbiturate whose export was restricted. Some states got supply from loosely regulated compounding pharmacies, which usually mix drugs for individuals and can be less reliable.

In 2012, South Dakota used a compounded pentobarbital contaminated with a fungus to execute Eric Robert, who showed signs of movement during the execution. In 2014, Oklahoma used pentobarbital on Michael Lee Wilson, whose last words during the execution reportedly were “I feel my whole body burning.”

Midazolam eventually emerged as a popular alternative. Unlike previous first drugs, midazolam is a benzodiazepine, which does not induce unconsciousness but a kind of sedated amnesia, said Waisel. If midazolam were used in a surgery, the patient “would be screaming in pain, but not remember it the next day,” he said. “That’s a concern,” and means inmates could be experiencing significant pain caused by the other drugs.

Death penalty opponents have challenged the legality of midazolam, but the Supreme Court upheld its use in 2015. Since then, autopsies have shown midazolam may cause the lungs to fill with fluid, suggesting inmates could suffocate to death and feel it.

Some scholars characterize the flurry of new drug combinations in untested doses as medical experimentation on inmates. As legal challenges continue to mount, the future of lethal injection remains unclear.

“It’s a total debacle,” Levy said. “It’s time to either abolish [lethal injection] or make it fool proof” by allowing medical professionals to refine the method, Levy said.

That’s unlikely to happen soon, leaving states to either continue experimenting, or return to electrocution, the gas chamber or firing squad.

ADVERTISEMENT

Policy Lens

Support for executions wanes, but racial bias persists

  • Kaila Philo
    Kaila Philo

    Government and Political Institutions Reporter

Melissa Lucio was sentenced to death in 2008 for the murder of her 2-year-old daughter Mariah Alvarez, who had died in her sleep the year before. When Lucio, then 38, called 911 to her Harlingen, Texas, home, paramedics found Mariah’s body covered in bruises; one of her arms had recently been broken, and she’d suffered head trauma that was later found to be fatal.

A medical examiner ruled the toddler’s death a homicide, and Lucio confessed to the crime after a five-hour interrogation, during which advocates argue she was coerced. In the years since her daughter’s death, a parade of lawyers, forensic scientists, advocates and community members found holes in the case, like testimony from Lucio’s other children that Mariah had fallen down the stairs shortly before her death, or that Lucio herself had been sexually abused for years, making her highly susceptible to making a false confession.

On Monday, a Texas appellate court issued a stay of execution as new evidence cast doubt on her guilt.

The case epitomizes where the death penalty stands in the U.S. today: It’s not as popular as it used to be, but people of color still bear the brunt of it. Support for capital punishment has reached an all-time low. A Gallup poll last year found that 54 percent of respondents were in favor of the death penalty for a person convicted of murder, down from a peak at 80 percent in 1994. When asked whether they found the death penalty morally acceptable, only 40 percent of respondents said that they did, while 71 percent said the same in 2006.

More poll respondents — 60 percent — now prefer life imprisonment than punishment by death, whereas 61 percent chose the death penalty in 1997.

“Over the last 25 years, the death penalty has become less popular among every demographic group,” Dunham, of the Death Penalty Information Center, told Grid. “The trend all over the country is away from the death penalty.” Frank Baumgartner, a political scientist and co-author of “The Decline of the Death Penalty and the Discovery of Innocence,” created an index that measures the changes in public responses to questions about capital punishment. He found that support for the policy is the lowest it has been since the 1960s, which eventually led to the Supreme Court ruling it unconstitutional in 1972.

“For a long time, people never paid attention to the obviously true idea that you can’t count on the government to be perfect every time,” he told Grid.

Baumgartner said that application of the death penalty has less to do with public opinion than the state’s whims. “It’s really a district attorney’s determination whether to seek in most states,” he said. “It’s just kind of random.”

In Lucio’s case, the head prosecutor, then-Cameron County District Attorney Armando Villalobos, was running for reelection against an opponent who attacked how he handled child abuse cases. Lucio’s attorneys later argued that he was trying to make an example of her to prove he was tough on crime. Six years later, he was charged for bribery and extortion.

The rate at which new death sentences are issued has been on the decline after peaking in the mid-1990s, according to Dunham. For example, Texas may be the most bloodthirsty state (policy-wise), carrying out nearly half of executions in the South since 1976. But the annual number of executions in the state has decreased from a peak at 40 in 2000 to three in 2021.

The death penalty has also become less partisan over the last 20 years. Democrats have made their official party line abolishing the practice. While the Republican Party still officially backs capital punishment, support within the party for the policy declined by 10 points between 2014 and 2019.

Yet capital punishment, like many criminal justice policies, hits people of color harder than white people, despite long-standing evidence of racial bias in how the death penalty is applied. In 1987, for instance, the Supreme Court rejected a challenge to the federal death penalty on the grounds of racial discrimination. Twenty years later, retired Justice Lewis F. Powell Jr., the deciding vote on the case, acknowledged his regret.

Researchers have found that the racial disparity in capital punishment persists to this day. For example, a 2020 study revealed that defendants convicted of killing white victims were 17 times more likely to be executed than those convicted of killing Black victims.

If the crime features a Black or Latino male assailant and a white female victim, “those are much more likely to lead to a death sentence,” Baumgartner added.

“Any system that disproportionately affects people of color, they’re also going to disproportionately affect the victims of these [false conviction] errors,” said Barbara O’Brien, a law professor at Michigan State University’s College of Law. O’Brien is the editor of the National Registry of Exonerations, which has been tracking people who’ve been exonerated for crimes they didn’t commit since 1989. The registry has revealed that of the 134 exonerees who were sentenced to death, over 70 of them were Black.

The reasons why are both complicated and not. People of color are overrepresented in capital punishment cases for many reasons: racial profiling, economic precarity, implicit biases and — more recently — poor interracial face recognition. But overt discrimination is also a factor that shouldn’t be underestimated, Dunham said. “There’s clear bigotry that’s involved in a number of cases, and cops lie about it.”

One such case is that of Curtis Flowers, a Black Mississippian who was wrongly convicted of killing four people in 1996, O’Brien said.

Flowers was convicted of shooting four people in a Montgomery County furniture store and subsequently held on death row for over 20 years. After two mistrials and four overturned convictions, he was finally released from prison in 2019, after the Supreme Court ruled in his favor.

O’Brien noted that the prosecutor in Flowers’ original trial had blocked Black jurors from serving “because he thought it would be easier to convict him if it was a white jury.”

“A lot of these things can be cumulative, right?” she explained. “If you’re compounding disadvantages, you’re in a disadvantaged position as the process goes on.”

Lucio would have been the first Latina to be put to death in Texas since 1863. Instead, she gets to live another day.

“I am grateful the court has given me the chance to live and prove my innocence,” Lucio said in a statement her lawyers provided to the Associated Press. “Mariah is in my heart today and always.”

Despite the renewed attention on the death penalty as states restart executions in the wake of the pandemic, there is little hope that U.S. courts or society at large will resolve basic questions about who is put to death and how it happens.

The revival of older methods like firing squads is fueling a fresh wave of legal challenges to the death penalty, but these are unlikely to fundamentally reshape the landscape. More than 50 years after the Supreme Court recast the parameters of the modern death penalty, the United States still has not resolved the fundamental tensions around how executions can be carried out in a humane and objective way.

Thanks to Lillian Barkley for copy editing this article.

  • Chris Geidner
    Chris Geidner

    Contributing Editor, Legal Affairs

    Chris Geidner is a contributing editor for legal affairs at Grid. He focuses on national legal issues, including coverage of the Supreme Court.

  • Jonathan Lambert
    Jonathan Lambert

    Public Health Reporter

    Jonathan Lambert is a public health reporter for Grid focused on how science, policy and the environment shape our collective well-being.

  • Kaila Philo
    Kaila Philo

    Government and Political Institutions Reporter

    Kaila Philo is a reporter at Grid where she focuses on the U.S. government and political institutions.

Contributors

The death penalty: The past and uncertain future of executions in America