Two Steps Forward, Two Steps Back — Updates on the Death Penalty in 2023
by Justin Mazzola (He/Him), Researcher, Amnesty International USA
On 16 May, Amnesty International released its annual Death Sentences and Executions report which documents the global developments on the use of the death penalty in 2022. As the restrictions put in place during the COVID-19 pandemic began to wane in 2022, Amnesty International documented a spike in known executions around the world, with sharp increases in Iran and Saudi Arabia. The USA was no exception to this spike, seeing its execution numbers increase by 64% despite remaining at historically low levels. US exceptionalism on the death penalty was also perpetuated as the country was the lone executing country in the Americas for the 14th straight year. (USA! USA! USA!). However, progress was made in our collective slow march towards abolition with six countries abolishing the practice either wholly or partially in 2022.
The launch of the Global report provides us an opportunity to look at some early developments in the USA for 2023, much of it taking place on the legislative sphere at the state level. There has been little progress made by the Biden administration to uphold his 2020 presidential campaign pledge to work to abolish the federal death penalty, while people like Billie Allen languish on federal death row knowing their fate rests on the outcome of the next Presidential election. The reintroduction of the Federal Death Penalty Prohibition Act by Rep. Ayanna Pressley and Senator Dick Durbin on 13 July at least raises hopes for progress at the federal level. However, many executing states witnessed significant backsliding when it comes to capital punishment.
Florida has taken steps to make it easier, rather than harder, to execute individuals following the decision of the 3 of the 12 jurors in the Parkland High School case not to sentence Nikolas Cruz to death. Florida required a unanimous vote for death at the time of the trial. Instead, Governor DeSantis signed a into law a bill that would make Florida the state with the lowest threshold for imposing a death sentence, requiring only 8 of 12 jurors to vote in favor. Nearly all of the 27 states* that allow the death penalty require unanimous sentencing votes by juries. Florida’s threshold will now be lower than the 10-to-2 majority required in Alabama (1). This change, which will make it easier to sentence individuals to death, comes in a state with a history of wrongful convictions with at least 30 people being exonerated since 1973, more than any other state, according to the Death Penalty Information Center (DPIC) in DC (2). Florida has only required unanimous votes on death sentences since the passage of a 2017 law, which followed a Florida Supreme Court case that struck down the simple majority (7 jurors) that was in place at the time…less than 6 years ago (3).
Florida follows the lead of Idaho, where, in March, the Governor signed a bill to authorize the use of firing squads as a method of execution after being unable to obtain lethal injection drugs legally — becoming the fifth state to allow the method. Rather than taking this opportunity to reflect on whether the sentence is even necessary for the 8 individuals who languish on death row and abolishing the sentence, Idaho decided to follow the lead of South Carolina and dredge up a draconian, cruel and inhuman form of execution (4). In 2021, South Carolina passed a law making the electric chair the default method of execution and firing squads as a secondary alternative to lethal injection after experiencing similar problems in obtaining the drugs necessary to move forward with executions. A trial court found the 2021 law unconstitutional in a decision in 2022. In early 2023, the South Carolina Supreme Court heard arguments on appeal of that decision. A decision has not been issued as of the posting of this blog.
Legislators in Iowa, an abolition state, once again reintroduced legislation to reinstate the death penalty for certain crimes. However, the bill was never considered by the full legislature before the session ended earlier this year (5).
Alabama has been all over the map when it comes to executions. In November 2022, Governor Ivey issued a moratorium on executions and review of the state’s execution protocols following a series of recently botched executions. Just four months later in February 2023, the Department of Corrections Commissioner let the Governor know that the review was complete and everything was fine and dandy, nothing to see here — and approval was given to the Alabama Attorney General to seek death warrants (6). It also became clear in February that the state was getting closer to issue its developing protocols on the use of nitrogen hypoxia as a method of execution, which are expected to be finalized at some time later in 2023 (7). Similar to Idaho and South Carolina, Alabama would rather look to unproven, cruel and inhuman methods of execution rather than take the opportunity to abolish the death penalty due to the diminishing availability of lethal injection drugs. However, all is not lost regarding progress on the death penalty in Alabama and for a sliver of individuals on that state’s death row. HB 14 was filed in the Alabama Legislature this year, which (unlike their neighbors in Florida) would require unanimous juries to sentence someone to death and retroactively apply a 2017 law that abolished judicial overrides of jury decisions on death sentences (8). The bill was not voted on by the House Judiciary Committee during this most recent legislative session and died as the session ended (9). However, its eventual reintroduction and passage would impact as many as 30 individuals on Alabama’s death row who were sentenced by a Judge to death despite jurors recommending a sentence of life without parole, such as Rocky Myers, according to the Equal Justice Initiative (10).
The progressive legislation in Alabama is a start, but Washington and Ohio are also examples of some progress in moving toward abolition. Despite a governor-imposed moratorium in 2014 and the state statute being found unconstitutional by the Washington Supreme Court in 2018, Governor Inslee signed into law a bill to finally abolish the state statute which remained in place in April (11).
“Nearly five years after the Washington State Supreme Court unanimously ruled the state’s death penalty statute unconstitutional, Amnesty International is pleased that the legislature has finally stricken this unenforceable law from the books. The death penalty has been applied in an unequal and racially biased manner and has done nothing to keep Washingtonians safe.”
- Laura Nuechterlein, State Death Penalty Area Coordinator — Washington
Likewise, after incremental progress over the past few legislative sessions, a bill was introduced with bipartisan support to abolish the death penalty in Ohio (12) as the state continues in its 5th year of a Governor imposed moratorium due to the inability to obtain lethal injection drugs and following a federal court’s decision that Ohio’s lethal injection protocols were cruel and unusual punishment (13).
While the wins seem few and far between, they do exist and the USA is inching ever closer, as slowly as can be, to move away from US exceptionalism when it comes to the use of this cruel and inhuman form of punishment.
(1) *Indiana and Missouri allow judges to decide the sentence when jurors are divided.
(2) Death Penalty Information Center, Exonerations, https://deathpenaltyinfo.org/policy-issues/innocence
(3) P. Mazzei, DeSantis signs law lowering death penalty threshold in Florida, New York Times, 20 April 2023, https://www.nytimes.com/2023/04/20/us/desantis-death-penalty-florida.html
(4) Idaho governor signs firing squad execution bill into law, The Associated Press, 25 March 2023, https://apnews.com/article/death-penalty-executions-firing-squads-idaho-law-de6a68243433a4f58f70256c03891adb
(5) Iowa Senate File 14, Iowa Legislature, 2023–2024 session, 90th General Assembly, https://www.legis.iowa.gov/legislation/BillBook?ga=90&ba=sf14
(6) I. Hrynkiw, Executions back on in Alabama after brief moratorium, AL.com, 24 February 2023, https://www.al.com/news/anniston-gadsden/2023/02/executions-back-on-in-alabama-after-brief-moratorium.html
(7) M. Yang, Alabama takes steps toward using nitrogen as new execution method, The Guardian, 17 February 2023, https://www.theguardian.com/world/2023/feb/17/alabama-nitrogen-hypoxia-new-execution-method
(8) J. Holmes, Bill would require unanimous jury for death penalty — and apply retroactively, Alabama Political Reporter, 13 February 2023, https://www.alreporter.com/2023/02/13/bill-would-require-unanimous-jury-for-death-penalty-and-apply-retroactively/
(9) M. Cason, Clock runs out on Alabama bill to require unanimous jury for death penalty, AL.com, 25 May 2023, https://www.al.com/news/2023/05/clock-runs-out-on-alabama-bill-to-require-unanimous-jury-for-death-penalty.html
(10) Alabama abolished judge override, but still seeks to execute people who received life verdicts, Equal Justice Initiative, 4 November 2022, https://eji.org/news/alabama-abolished-judge-override-but-still-seeks-to-execute-people-who-received-life-verdicts/
(11) C. Duster, Washington state eliminates death penalty from law, CNN, 21 April 2023, https://www.cnn.com/2023/04/21/politics/washington-state-death-penalty-eliminated/index.html
(12) Ohio Senate Bill 101, Ohio Legislature, 2023–2024 session, 135th General Assembly, https://legiscan.com/OH/bill/SB101/2023
(13) J. Ingles, Ohio lawmakers introduce another effort to abolish the death penalty, The Statehouse News Bureau, 28 March 2023, https://www.statenews.org/government-politics/2023-03-28/ohio-lawmakers-introduce-another-bill-to-abolish-the-death-penalty