FeaturesA new report released by the Death Penalty Information Center (DPIC) has dubbed 2022 the “Year of the Botched Execution,” shedding light on critical issues that mire the capital punishment process in the US — including racial discrimination and problems with prosecutorial accountability. The report highlights that botched executions and protocol errors have led to significant delays, and notes that more than half of the total executions in 2022 were carried out in two states — Oklahoma and Texas. Moreover, the report places a strong emphasis on the correlation between race and the capital punishment process, raising serious concerns about discrimination within the system.
Note: Unless otherwise specified, all statements of fact in this explainer were drawn from the DPIC’s annual report for 2022. To further explore the evolution of capital punishment in the US, and to gauge where the issue stands today, we also spoke with Robert Dunham, DPIC’s former executive director, whose quotes are included alongside these facts.
To truly understand the implications of the death penalty today, it’s important to examine the history and context of the punishment as it relates to the United States. The history of the death penalty can be traced back to connections with slavery, segregation, and reform movements. The death penalty in America dates back to the Eighteenth Century B.C., and abolition movements began in the late 1700s, when limitations around the death penalty were imposed. The 1900s marked the beginning of the “Progressive Period” in the United States, with nine states abolishing capital punishment. Although the abolition movement lost popular support from the 1920s to the 1940s, executions reached historically high levels in the 1930s.
The 1960s brought many challenges to the death penalty. It was in the early 1960s that the death penalty was suggested to be cruel and unusual punishment under the Eighth Amendment of the US Constitution. It was at this point that the US really started evaluating and “fine-tuning” the way the death penalty was administered. Since the 1960s, the United States has banned executions of persons with certain mental illnesses, juveniles, and more. Over the last 25 years, the use of the death penalty has rapidly declined, yet there are still major issues surrounding capital punishment.
One of the most pressing issues that we see today is the number of executions that are botched. An estimated 3 percent of executions performed between 1890 and 2010 were botched. Although in 2022 alone, seven of the twenty executions, a staggering 35 percent, were complicated. On July 28, 2022, Joe Nathan James was executed by lethal injection. It took three hours for executioners to insert an IV line into Joe James Jr., marking this as the longest botched lethal injection in US history. The Alabama Department of Corrections (ADOC) did not directly address the reason for the delay of the execution but instead said that nothing abnormal occurred during the delay. It was only until after a private autopsy revealed that ADOC’s statements were false. The autopsy recorded many failed attempts to set the IV line, multiple puncture wounds, unexplainable incisions, and bruising where Mr. James was restrained to the gurney. The Alabama Governor has halted executions indefinitely since Alabama has had three botched executions. Clarence Dixon (Arizona), Frank Atwood (Arizona), Alan Eugene Miller (Alabama), Stephen Barbee (Texas), Murray Hooper (Arizona), and Kenneth Eugene Smith (Alabama) were also victims of botched executions in 2022.
Numerous executions’ protocols were botched as well in 2022. Executions were put on temporary holds in Alabama, Tennessee, Idaho, and South Carolina because institutions could not correctly follow the protocols. Some of these protocol issues involve incomplete execution protocols. South Carolina’s methods violated one’s constitutional rights that prohibit cruel and unusual punishment. South Carolina had attempted to schedule two executions despite the fact their execution protocols were incomplete. South Carolina’s state laws require that a prisoner has the right to choose between execution by firing squad or electrocution if lethal injection is unavailable. These executions were halted so that the constitutional issue could be adjudicated.
Tennessee also faced problems with the chemicals used in their lethal injection executions. Oscar Smith’s execution was stayed half an hour before after Tennessee Governor Bill Lee announced an investigation was necessary due to a “technical oversight”. It was later revealed that there were issues with almost every step of Tennessee’s lethal injection process. Some of these issues included problematic safety history of the lethal injection chemicals and improper storage and handling of the drugs while in possession of the Tennessee Department of Corrections.
DPIC’s year-end report also found major issues pertaining to race when it came to the death penalty. Despite racial discrimination being a glaring criticism of the death penalty, the Supreme Court has held that racial disparities are not unconstitutional violations of “equal protection of the law” unless one can show intentional racial discrimination against the defendant. Throughout 2022, the Supreme Court has reviewed death penalty cases that were appealed on the basis of racial discrimination. Yet racial discrimination continues to present itself in numerous aspects of the capital punishment process. As Mr. Dunham pointed out, “Wherever in the world there’s a death penalty, it’s disproportionately imposed on disfavored groups.” Racial discrimination is pervasive throughout the sentencing stages of the death penalty. The racial makeup of the jury in capital punishment sentencing has serious consequences for the results of the trial. Mr. Dunham explains how “jury project data shows that the likelihood of a death sentence is doubled once you cross the threshold of five white male jurors and that’s what this system routinely produces.” It begs the question if the system is complicit in this pattern. The DPIC report found that black jurors are struck with double the frequency of everybody else. Although the discriminatory pattern does not end there. Mr. Dunham discussed the issues of racism within jury selection identified in a DPIC study conducted amongst 20,000 jurors for which the race was known of 14,000 of those jurors.
Racial discrimination also affects executions extensively as well. Despite the fact that people of color are more likely to be incarcerated than white people, white people make up 55 percent of all people on death row who are executed. Death sentences are pursued much more frequently when there are white victims which in turn means death sentences are pursued more frequently with white defendants since interracial murder is a rare occurrence. Mr. Dunham commented that” if you take the global numbers right and you lump them all together they’re going to cancel out the evidence of discrimination because when you over seek the death penalty with favorite victims you’re also under seeking the death penalty for disfavored victims”. This results in a disproportionate amount of black defendants being removed from the system because “black victims’ lives don’t matter enough to seek the death penalty”. DPIC reported that 10 white people were executed and 8 people of color were executed in 2022. When analyzing the cases for which these people were executed there were 14 white victims and 4 victims of minority races. DPIC further reports that in 96 percent of states where there were studies of the correlation between race and the death penalty there was a pattern of either race-of-victim or race-of-defendant discrimination, or both.
Today support for the death penalty has reached an all time low despite rising perceptions of crime. DPIC reported that 42 percent of Americans oppose the death penalty while 55 percent of Americans support it. Only 3 percent of Americans surveyed reported that they had no opinion. According to Mr. Dunham “when you ask what’s the appropriate punishment for murder the death penalty or life without possibility of parole, 60% say life without parole only 36% say they support the death penalty”. Mr. Dunham explained that when other more humane alternatives are offered in addition to life without parole and capital punishment, people choose an interim of the more severe punishments. More states and counties are moving further away from the death penalty and “nationally the death penalty is continuing to erode”. Even the states that favor the death penalty are “pursuing it less frequently” according to Mr. Dunham and DPIC. Mr. Dunham hypothesized that there will be some states that “legislatively or judicially abolish” the death penalty or “impose a moratorium” for the time being. Although the process of full abolition may not be something that happens overnight Mr. Dunham asserted that “we are not going back to where we are… Unlike what we saw in the Seventies 80s and 90s where the momentum was that additional states were adding the death penalty, we haven’t seen that.”
There are still steps that must be taken to address some of the key concerns surrounding capital punishment. One way to enact change is through prosecutorial accountability. Prosecutorial misconduct has been an issue, and “no one knows how extensive it is.” DPIC is currently working on a prosecutorial accountability project to make “incredible reforms that are necessary” to address these issues. Mr. Dunham also stated that appointing government officials who recommend critical improvements to the system is an important step in regards to capital punishment reform. There are necessary improvements to be made in ensuring that death penalty cases address “who gets to appoint counsel in those cases and how many resources they should have.” Mr. Dunham finally recommended that states should pass “racial justice acts” to protect defendants from discrimination, considering the law requires “a smoking gun of discrimination” before, or even if, relief is to be granted.
The Death Penalty Information Center (DPIC) is a national non-profit organization based in Washington, DC, that aims to serve the public with analysis and information on issues pertaining to capital punishment. DPIC provides unbiased and factual information about the death penalty to serve as a reliable resource. The Center releases annual reports on the death penalty, produces reports on various issues, and offers a variety of multimedia resources to relay all pertinent knowledge. Mr. Dunham relayed that DPIC “doesn’t take a position for or against the death penalty itself, but we are critical of the way in which it’s administered,” and that DPIC is the “press secretary for the truth about the death penalty.”
