TIME ON DEATH ROW


INTRODUCTION
BACKGROUND
CHARACTERISTICS OF DEATH ROW INMATES
SUPREME COURT INTEREST
INTERNATIONAL PERSPECTIVE
DEATH ROW SYNDROME/DEATH ROW PHENOMENON
AGING DEATH ROW POPULATION
RESOURCES
DEATH ROW CONDITIONS- State by State comparison of conditions by Sandra Babcock, Clinical Director of the Center for International Human Rights at Northwestern University Law School (last updated 6/08)
"VOLUNTEERS": INFORMATION ON DEFENDANTS WHO WAIVED APPEALS AND WERE EXECUTED
"Killing the Willing: 'Volunteers,' Suicide and Competency," by J. Blume, Michigan Law Review, 2005.


INTRODUCTION
The length of time prisoners spend on death row in the United States before their executions has recently emerged as a topic of interest in the debate about the death penalty. The discussion increased around the execution of Michael Ross, a Connecticut inmate who had been on death row for 17 years, and has been spurred by the writings of two Supreme Court Justices who have urged the Court to consider this issue.

Death row inmates in the U.S. typically spend over a decade awaiting execution. Some prisoners have been on death row for well over 20 years.

During this time, they are generally isolated from other prisoners, excluded from prison educational and employment programs, and sharply restricted in terms of visitation and exercise, spending as much as 23 hours a day alone in their cells.

This raises the question of whether death row prisoners are receiving two distinct punishments: the death sentence itself, and the years of living in conditions tantamount to solitary confinement – a severe form of punishment that may be used only for very limited periods for general-population prisoners.

Moreover, unlike general-population prisoners, even in solitary confinement, death-row inmates live in a state of constant uncertainty over when they will be executed. For some death row inmates, this isolation and anxiety results in a sharp deterioration in their mental status.


Source: Bureau of Justice Statistics

 
BACKGROUND When the constitution was written, the time between sentencing and execution could be measured in days or weeks. A century later, the Supreme Court noted that long delays between sentencing and execution, compounded by a prisoner’s uncertainty over time of execution, could be agonizing, resulting in “horrible feelings” and “immense mental anxiety amounting to a great increase in the offender’s punishment.” (In re Medley, 1890, as cited in Foster v. Florida, 2002).

But in the wake of the Supreme Court-mandated suspension of the death penalty from 1972 to 1976, numerous reforms have been introduced to create a less arbitrary system. This has resulted in lengthier appeals, as mandatory sentencing reviews have become the norm, and continual changes in laws and technology have necessitated reexamination of individual sentences.

Death-penalty proponents and opponents alike say such careful review is imperative when the stakes are life and death. “People are adamant . . . that every avenue should be exhausted to make sure there is no chance (the condemned) are not guilty,” former Georgia Attorney General Mike Bowers said in 2001. “The surer you are, the slower you move.” (Atlanta Constitution, October 27, 2001).

The years it takes to carry out a death sentence exact a huge toll – on taxpayers, victims’ families and inmates themselves. Yet without thorough appeals, mistakes in death penalty cases would be missed.

CHARACTERISTICS OF DEATH ROW INMATES
The following information is taken from the Bureau of Justice Statistics: Capital Punishment and is the statistical data of the death row population for 12/31/2012.

55.8% of the death row population is White, 41.9% is Black and 2.3% is of another race.

Men on death row make up 98%, while women make up 2%

8,032 people have been sentenced to death from 1977 until 2012.

8.6% of inmates had a prior homicide conviction.

The median education level of death row inmates is 12th grade.

Of death row inmates, 54.5% have never married, 20.2% are divorced or separated, 21.8% are currently married and 3.5% are widowed.

67.1% had prior felony convictions.

As of 12/31/11, 25.8% of all inmates were age 30 to 39, and 48% were age 25 to 44. 0.9% of inmates are under the age of 25, and 3.8% are older than 65.

The following information is taken from the Bureau of Justice Statistics: Capital Punishment and is the statistical data of the death row population for 12/31/2009 (the last year that this data was tracked by the report.)

Among all inmates under sentence of death, half were age 20 to 29 at the time of arrest; 11% were age 19 or younger; and fewer than 1% were age 55 or older.

The average age at time of arrest was 28 years.


THE SUPREME COURT
The Supreme Court has not yet accepted any case based on the length of an inmate’s death row tenure, but both Justices Stephen Breyer (pictured) and John Paul Stevens have questioned the constitutionality of the long delays.

Stevens was the first to broach the topic in court writings in a 1995 case involving a Texas man who had spent 17 years on death row. He urged lower courts to act as “laboratories” for examining whether executing inmates after prolonged periods on death row might violate the Eighth Amendment. (Lackey v. Texas).

Breyer added that the issue is “an important undecided one,” though neither Justice dissented from the Court’s decision declining to consider the appeal.

In a subsequent case, Breyer wrote, "It is difficult to deny the suffering inherent in a prolonged wait for execution," dissenting from the Court’s decision not to hear the appeals of two inmates – one who had spent nearly 25 years on Florida’s death row and one who had spent nearly 20 years on Nebraska’s. (Knight v. Florida; Moore v. Nebraska, 1999).  Justice Clarence Thomas, concurring with the decision not to review the two cases, criticized Breyer’s opinion and blamed the Supreme Court’s own “Byzantine death penalty jurisprudence” for the execution delays.

“It is incongruous to arm capital defendants with an arsenal of ‘constitutional’ claims with which they may delay their executions, and simultaneously to complain when executions are invariably delayed,” he wrote.

But Breyer noted that the “astonishingly long delays” experienced by the inmates were largely a result not of frivolous appeals on their part, but rather of "constitutionally defective death penalty procedures.”

“Where a delay, measured in decades, reflects the State’s own failure to comply with the Constitution’s demands, the claim that time has rendered the execution inhuman is a particularly strong one.” 

In 2009, the U.S. Supreme Court declined review in Thompson v. McNeil, but three Justices issued strongly worded statements about the importance of the legal issue raised.  William Thompson had been on death row in Florida for 32 years.  He claimed the excessive time he spent on death row amounted to cruel and unusual punishment under the Eighth Amendment.  Justice John Paul Stevens, in an opinion respecting the denial of certiorari, called the treatment of the defendant during his 32 years on death row “dehumanizing,” noting that Thompson “has endured especially severe conditions of confinement, spending up to 23 hours per day in isolation in a 6- by 9-foot cell” and has experienced two stays of execution “only shortly before he was scheduled to be put to death.” Justice Stevens added that neither retribution nor deterrence were served in such a case and “a punishment of death after significant delay is ‘so totally without penological justification that it results in the gratuitous infliction of suffering.’” (quoting Gregg v. Georgia (1976)). 

Justice Stephen Breyer summed up why he believed the Court should take this case: "The question here, however, is whether the Constitution permits [the] execution after a delay of 32 years—a delay for which the State was in significant part responsible."  Justice Clarence Thomas, however, disagreed with the views of his colleagues, pointing to the cruelty of the murder for which the defendant was sentenced to death and asserting that it was the defendant himself who caused the delays in question.

Other excerpts from Justice Stevens' opinion: 

In Baze v. Rees, I suggested that the "time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived."

[O]ur experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such delays is unacceptably cruel. This inevitable cruelty, coupled with the diminished justification for carrying out an execution after the lapse of so much time, reinforces my opinion that contemporary decisions "to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process."

Justice Stevens pointed to DPIC's list of exonerated defendants in support of his point that a careful review of capital cases is necessary.

Justice Thomas concluded that it was the crime—and not the punishment imposed by the jury or the delay in petitioner’s execution—that was “un-acceptably cruel.”

(See A. Liptak, “Justices Rule on Legal Effects of Slow-Moving Cases,” New York Times, March 9, 2009; see also Thompson v. McNeil, No. 08-7369, cert. denied; Stevens, J., respecting denial of cert.; Thomas, J., concurring; Breyer, J., dissenting (March 9, 2009)) (intenal citations omitted).

UPDATE: Manuel Valle was executed in Florida on Sept. 28, 2011.  The Supreme Court delayed the execution for several hours, and Justice Breyer dissented from the decision to allow it to go forward. He said that Valle's 33 years on death row were a cruel and unusual punishment: "I have little doubt about the cruelty of so long a period of incarceration under sentence of death."  Ultimately, he indicated that the goals of due process and timely executions may be irreconcilable: "It might also be argued that it is not so much the State as it is the numerous procedures that the law demands that produce decades of delay.  But this kind of an argument does not automatically justify execution in this case. Rather, the argument may point instead to a more basic difficulty, namely the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed." (Valle v. Florida, U.S. No.11-6029, Sept. 28, 2011).

INTERNATIONAL PERSPECTIVES
Breyer noted in a dissent in a similar case that British jurists have suggested that the Bill of Rights of 1689 – a document he describes as “relevant to the interpretation of our own Constitution” – may prohibit some delays as cruel and unusual. (Elledge v. Florida, 1998). In a landmark 1993 ruling, the British court that serves as the highest appeals court for Caribbean Commonwealth countries, found that it was “inhumane and degrading” to hang anyone who had spent more than five years on death row, amounting to double punishment, and that such prisoners must have their death sentences commuted to life in prison. (The Independent, Nov. 3, 1993).

The committee’s seven Law Lords did not find the death penalty itself to be illegal. But “there is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years,” they wrote. “What gives rise to this instinctive revulsion? The answer can only be our humanity. We regard it as an inhuman act to keep a man facing the agony of execution over a long extended period of time.” (Ibid). The decision, known as the Pratt and Morgan ruling, resulted in the commutation of scores of death sentences in Jamaica, Bermuda, Barbados and Trinidad and Tobago, cutting the death row population of English-speaking Caribbean nations by more than half. (The Miami Herald, September 8, 1998).

The Supreme Court of Canada, which does not have the death penalty, ruled in 2001 that two Canadian citizens charged with murder in Washington state could be extradited only with the guarantee that they would not receive the death penalty. The Canadian court found that the potential for long incarcerations before execution was a “relevant consideration” in determining whether extradition to the United States violates principles of “fundamental justice.” (United States v. Burns, S.C.R. 283, 353, 123, cited in Foster v. Florida, 2002).

In 2009, the President of Kenya commuted the death sentences of all of the over 4,000 death row inmates to life, citing the wait to face execution as "undue mental anguish and suffering."

DEATH ROW SYNDROME/DEATH ROW PHENOMENON
Psychologists and lawyers in the United States and elsewhere have argued that protracted periods in the confines of death row can make inmates suicidal, delusional and insane. Some have referred to the living conditions on death row – the bleak isolation and years of uncertainty as to time of execution – as the “death row phenomenon,” and the psychological effects that can result as “death row syndrome.” The origins of these concepts are often traced to the 1989 extradition hearings of Jens Soering, a German citizen who was charged with murders in Virginia in 1985 and who fled to the United Kingdom.

Soering argued to the European Court of Human Rights that the conditions he would face during the lengthy period between sentencing and execution would be as psychologically damaging as torture.

The court agreed. In its ruling that he could not be sent to a place that would sentence him to death, the court cited not the death penalty itself, but rather the “Death Row phenomenon” by which convicts spent years awaiting execution while their cases were appealed. (Associated Press, July 27, 1989). He was extradited in 1990, but only with the prosecutors’ promise not to seek the death penalty.

The case has been cited as precedent in international extradition cases, though today, courts in countries without the death penalty today often will not extradite to the United States because of the possibility of execution itself, regardless of how long the wait on death row, since the death penalty is seen as a violation of human rights.

THE AGING OF THE DEATH ROW POPULATION
America’s death row population is aging significantly: A record 137 prisoners were 60 years old or older as of 2005. That figure represents a spike in the senior death row population, which numbered just 39 in 1996. Unlike elderly prisoners in the general population, death row seniors typically are not housed in prison geriatric facilities or placed in “end of life” programs, but rather are segregated in individual cells within special facilities.

Some death row seniors committed crimes late in life, but many are there at such advanced age because of the inevitable slowness of the capital appeals process (Ibid). In 2004, a 74-year-old man was put to death in Alabama – the oldest inmate executed in the United States in more than six decades – for a murder he committed in 1977. Before his execution, J.B. Hubbard forgot who he was at times because of dementia. He suffered from colon and prostate cancer, and was so weak that other inmates sometimes walked him to the shower and combed his hair. (Washington Post, August 6, 2004).

Two other elderly inmates – one of them an 89-year-old man debilitated by deafness, arthritis and heart disease – have asked federal judges to rule on the constitutionality of executing inmates suffering from Alzheimer’s disease, dementia or other age-related afflictions (USA Today, February 10, 2005). Whatever the eventual outcome, legal scholars say such cases have highlighted the unseemliness of executing people who have become so old.

“Dead man walking is one thing,” said Jonathan Turley, a George Washington University law professor who has worked with older prisoners. “Dead man being pushed along to the execution chamber in a wheelchair is another thing.” (Ibid).

CONCLUSION
The length of time that U.S. inmates spend on death row has gotten increasingly longer in recent years, and raises questions about the constitutionality of this added punishment. Although the U.S. Supreme Court has not addressed this issue, it has been cited as a serious concern by death penalty experts in the U.S. and by courts outside the U.S. Shortening the time on death row would be difficult without either a significant allocation of new resources or a risky curtailment of necessary reviews.

RESOURCES

Websites:
Bureau of Justice Statistics Bulletin: Capital Punishment

Books:
Hood, Roger. The Death Penalty: A Worldwide Perspective, Third Edition. Oxford: Oxford University Press, 2002.

Schabas, William. The Abolition of the Death Penalty in International Law, Second Edition. Cambridge: Cambridge University Press, 1997.

Articles:
E. Rapaport, "A Modest Proposal: The Aged of Death Row Should Be Deemed Too Old to Execute," 77 Brooklyn Law Review 1089 (2012).

A. Smith, "THE ANATOMY OF DEATH ROW SYNDROME AND VOLUNTEERING FOR EXECUTION", Boston University Public Interest Law Journal, 17 B.U. Pub. Int. L.J. 237 (2008).

A. Alarcon, "Remedies for California's Death Row Deadlock," 80 So. Cal. Law Rev. 697 (2007).

J. Blume, "Killing the Willing: 'Volunteers,' Suicide and Competency," 103 Michigan Law Review 939 (2005).

“Death row population is graying,” USA Today, February 10, 2005.

“Killer’s fate may rest on new legal concept,” New York Times, February 1, 2005.

“Connecticut execution puts the spotlight on ‘death row syndrome’,” Associated Press, February 1, 2005.

“Convicts face faster trip to the gallows; Caribbean irked at legal delays,” The Miami Herald, September 8, 1998.

“Men heard trial drops as they waited for death; Condemned inmates lived in ‘inhuman’ conditions,” The Independent (London), November 3, 1993.

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