Death Row in Florida and the USA: The New Stats

We're getting information now about how the death penalty and capital punishment fared in 2014.   The first quarterly report from the NAACP's Legal Defense Fund has been released.



image: Cell on Florida's Death Row

U.S. Death Row Populations: Most in California, 43% White

From it, we now have statistical confirmation that there were less people on death row last year.  Across the nation, the death row population decreased by 12%.  There were around 3000 people on Death Row at the end of 2014, around 450 less than the previous year.

The report shows that of these Death Row inmates, 43% are white; 42% are black; and 13% are Latino/Latina.  

Florida continues to have the largest Death Row population in the country, second only to California, with 403 inmates (California has 743).  Texas is third with 276 people living on its Death Row.  

To read the entire report, go here.  

Death Row and Executions

One thing to point out here:  in the top three listed above, both Florida and Texas are high with the number of Death Row inmates and both these states are active in executing people and carrying out capital punishment sentences.  

Not so, California.

One reason that California is number one in Death Row population statistics is that California isn't executing people like Florida, Texas, Georgia, Oklahoma, etc.  Instead, the population on the California Death Row grows.

So much so, in fact, that the state has run out of room.  To keep doing what its doing, California will have to spend cash to expand its Death Row facilities.  See the recent Los Angeles Times story for details, "California's death row, with no executions in sight, runs out of room."


Infographic: Executions and Mentally Challenged Statistics


Terence Lenamon works to defend all his clients who are facing the possibility of capital punishment, and he works particularly hard for those defendants who have mental capacity issues based upon psychological and/or physical concerns.  

Mitigating factors in these areas should prevent these individuals from being given the death penalty, much less being executed; however, as these statistics show, and as Terry Lenamon discusses regularly, the reality is that people with mental challenges are executed in this country regardless of the constitutional prohibition against it being cruel and unusual punishment.  

SCOTUS hears Brumfield v Cain on Execution of the Mentally Disabled

 This week, the Supreme Court of the United States heard oral argument in the case of Brumfield v. Cain, a death penalty case coming out of Louisiana and filed by Death Row inmate Kevan Brumfield.

The crux of the case is how someone is determined to be mentally disabled and therefore, not subject to capital punishment and the death penalty under the federal constitution.  
Of course, this isn’t the first time that the High Court has considered this issue; it’s a complex legal question that the Supreme Court has considered in earlier, landmark cases like Atkins v. Virginia, where it found that convicted individuals who are “mentally retarded”  cannot be executed because this would violate the Eighth Amendment’s bar against cruel and unusual punishment.  
In Brumfield, the question isn’t whether or not someone with severe mental disability can be executed — it’s whether or not the means that the State of Louisiana has in place to determine whether or not the person is mentally disabled, and therefore protected by this Eighth Amendment bar, past constitutional muster.
Brumfield Questions Presented
(1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and 
(2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

Returning Death Penalty to Other Execution Methods On the Books


There are several different methods of execution used by the states (as well as the federal government and the U.S. Military) that offer ways to carry out a sentence of death other than the lethal injection method.  

Image:  Florida's Electric Chair


Guillotines, for example, are well known execution methods (as sadly are beheadings by other means), but the United States does not recognize this as an acceptable means of carrying out capital punishment.

Alternative Execution Methods

These are already in the law, and have been superseded by lethal injection as the preferred method of carrying out capital punishment.  They have passed constitutional challenge already, these methods just haven't been used in decades.  But they're available, statutorily.  

In these jurisdictions, lethal injection is considered the primary means of carrying out a death sentence, but other execution methods remain as acceptable alternatives in the state law.  
As lethal injections come under more and more scrutiny, these statutes are being reconsidered as ways to impose the death penalty and it’s probably going to be in the near future that these older methods may be used again.  
It may not take much more than an executive order from the governor (say, in Tennessee where the electric chair was restored by the governor in May 2014) for the state to opt for these alternative methods.  
4 Methods of Execution In U.S. Death Penalty Cases Other Than Lethal Injection
1.  Firing Squad
This month, the State of Utah made news by returning to the firing squad as an alternative, acceptable execution method to lethal injection.  However, this may not be a real surprise to those living in Utah; after all, the firing squad has been used as recently as 2010, when Utah law allowed a Death Row inmate to choose the firing squad over lethal injection as the method of execution.
Other states with firing squad as an approved method of execution:  Idaho and Oklahoma.
2.  Electrocution
States with electrocution (electric chair) as an execution method in their laws, while lethal injection became the preferred method of execution, are Alabama, Arkansas, Florida, Illinois, Kentucky, Oklahoma, South Carolina, Tennessee, and Virginia.
3.Gas Chamber
Gas chambers as a means of capital punishment exists in 5 states: Arizona, California, Maryland, Missouri, and Wyoming.  Oklahoma is currently legislating nitrogen in gas chambers as a means of execution, since the lethal injection method used in that state is being reviewed right now by the Supreme Court of the United States. 
4. Hanging
For New Hampshire and Washington, death sentences can be carried out by hanging as well as lethal injection.  


Jodi Arias and Death Penalty Sentencing

Right now, the Supreme Court of the United States has agreed to review (”granted writ”) the decision by the Florida Supreme Court in a case brought by a Florida Death Row inmate. (For details, check our recent post on this pending appeal.)

This decision by the nation’s High Court may well decide if the State of Florida’s “death penalty scheme” should include an unanimous decision by jurors in deciding on the death penalty in a case.

Right now Florida does NOT require 100% agreement of the jury before capital punishment can be sentenced in a case.

Will this change? Should it?

Well, consider the recent decision in the Jodi Arias matter. After all the time and money spent on not one but TWO juries hearing arguments over whether or not Jodi Arias should be sentenced to death, one single individual held out against the death penalty and the result?

Arias escaped the death penalty even though most of the jurors who reviewed her case were in favor of it.

The public was not happy with this result and there were death threats against that single juror. It was the requirement of an unanimous jury that saved Jodi Arias from the death penalty.

Trial By Media Impact? 

NOTE: as for trial by media, it’s interesting to consider the reasoning of that holdout juror: it’s reported that the Lifetime TV Movie that portrayed the Jodi Arias case through her meeting with murder victim Travis Alexander through her trial and conviction was a great influence on the juror’s stubborn resolve not to vote for death.

SCOTUS Will Hear Another Challenge to Florida's Death Penalty Statute

This week, the United States Supreme Court agreed to hear a case brought by Florida Death Row inmate Timothy L. Hurst that brings another challenge to the constitutionality of the Florida statute allowing for capital punishment and how a jury works in assessing the death penalty.

Read the Supreme Court Order here.  The sole question to be addressed by SCOTUS is this:  

 Whether Florida's death sentencing scheme violates the Sixth Amendment or the  Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U. S. 584 (2002). 

In Hurst's petition to the High Court, his attorneys are arguing that the Florida death penalty statute is unconstitutional because of the way that it allows a jury to decide if a defendant facing capital punishment is intellectually challenged.  

Hurst's lawyers are arguing that he should not be given the penalty of death because it goes against federal constitutional protections of cruel and unusual punishment when the defendant is intellectually disabled.

Interesting how the Supreme Court has combined the two questions presented to it in Hurst’s petition into the single issue above.  

In the Death Row inmate's petition, he asked the High Court to rule on two questions:  

  • first, the role of the Florida jury in cases where a death penalty defendant argues intellectual disability and
  • second, the role of the Florida jury in the overall death sentencing phase -- including the lack of unanimous juries being required under Florida law.  

There is no real argument that Timothy Hurst is mentally challenged.  In the Hurst case, one test shows that Hurst has an IQ of 69.  This and other evidence was provided to the jury during the punishment phase of his criminal trial. His intellectual disability was presented as a mitigating factor. 

(For more on mitigating factors, check out our earlier blog posts discussing mitigation and Terry Lenamon's focus on mitigation and the sentencing phase of death penalty cases.)

Florida Supreme Court Decision Under Review of SCOTUS 

The Florida Supreme Court has heard Hurst's arguments and ruled against him.  The state's highest court has determined that the criminal trial jury did not have do make a decision (a "factual determination" as the factfinder) on Hurst's intellectual disability.  

Now, the U.S. Supreme Court will review that opinion and its rationales against the federal constitutional protections and determine if Florida's current procedure regarding juries and their responsiblities in this aspect of mitigation is unconstitutional.

Georgia Halts Executions Out of Concern for Pentobarbital Quality

Georgia is halting its lethal injection executions for now because of concerns voiced by state officials about the quality of the chemicals available to be used by executioners.

Kelly Gissendaner's Execution Has Been Stayed.

According to the New York Times, lawyers for Kelly Gissendaner have explained that representatives for the State of Georgia stated that the pentobarbital that would have been used in the execution was found to be "cloudy" by a pharmacist expert.  

Note that pentobarbital is NOT a drug being considered by the Supreme Court of the United States in the pending lethal injection cocktail case (read our prior post for details).


Here is the full text of the news release issued by the GeorgiGa Department of Corrections:

Homer Bryson, Commissioner

Director of Public Affairs Joan Heath

Contact: Gwendolyn Hogan (478) 992-5247


For Immediate Release

Court Ordered Executions Postponed - Kelly Renee Gissendaner and Brian Keith Terrell FORSYTH, Ga. –

The Georgia Department of Corrections (GDC) announced today that, out of an abundance of caution, the scheduled executions of Kelly Renee Gissendaner and Brian Keith Terrell, have been postponed while an analysis is conducted of the drugs planned for use in last night's scheduled execution of inmate Gissendaner.

The sentencing courts will issue new execution orders when the Department is prepared to proceed.

The GDC has one of the largest prison systems in the U.S. and is responsible for supervising nearly 55,000 state prisoners and over 160,000 probationers. It is the largest law enforcement agency in the state with approximately 12,000 employees.

American Bar Association Resolutions Re: Death Penalty

 This month, the American Bar Association (ABA) passed without any dissenting delegate votes not one but two resolutions that impact how capital punishment is sentenced and carried out in the United States, particularly Florida.

Image: State of Florida Execution Chamber No. 3
1.  ABA:  Florida Should Require 100% Unanimous Jury for Death Penalty
The first resolution, Resolution 108a, calls for there to be 100% agreement for a death penalty sentence before a jury can approve capital punishment in a case.  
Right now,  unanimous juries in capital sentencing may be assumed to be true by lots of people, but there are several states — including Florida — where it’s not required under state law for there to be unanimity before the sentence of death.
RESOLVED, That the American Bar Association urges all federal, state, and territorial governments, that impose capital punishment, and the military, to require that:
(1) Before a court can impose a sentence of death, a jury must unanimously  recommend or vote to impose that sentence; and

(2) The jury in such cases must also unanimously agree on the existence of any fact that is a prerequisite for eligibility for the death penalty and on the specific aggravating factors that have each been proven beyond a reasonable doubt. 

2.  ABA: Florida Should Be Transparent Regarding Lethal Injection Execution Methods  
The second resolution passed by the ABA askes for greater transparency in executions, specifically the procedures for lethal injections.  As those who follow the issue of capital punishment, or those who read this blog regularly, are too well aware, the past few years have seen a change in how available certain drugs have become for use by state executioners.  
As the scarcity of these chemicals grew, states were forced to make changes in their execution methods, specifically what drugs they used in their lethal injection procedures.  As challenges arose regarding the changes they were making, there was growing secrecy surrounding the various execution methods, officially approved by the powers-that-be.  
RESOLVED, That the American Bar Association urges federal, state, and territorial legislative bodies and governmental agencies, including departments of corrections, and the military that impose or implement capital punishment, to:
(1) promulgate execution protocols in an open and transparent manner and allow public comment prior to final adoption; and,

(2) require disclosure to the public, to condemned prisoners facing execution, and to courts all relevant information regarding execution procedures, including but not limited to:

a. the steps to be followed in preparation for, during, and after an execution,
b. the qualifications and background of execution team members, and
c. details about any drugs to be used, including the names, manufacturers or
suppliers, doses, expiration date(s), and testing results concerning use of the

(3) require that an execution process, including the process of setting IVs, be viewable by media and other witnesses from the moment the condemned prisoner enters the execution chamber until the prisoner is declared dead or the execution is called off;

(4) create and maintain contemporaneous records of what transpires during the execution, including but not limited to the drugs administered, the timing of  administration, and any complications, errors or unanticipated events;
(5) disclose the entirety of records and logs on the execution process upon order of the court or as otherwise required in discovery or by law upon request of a death-sentenced prisoner, the prisoner’s counsel, or successors; and,

(6) provide an immediate, thorough, and independent review of any execution where the condemned prisoner struggles or appears to suffer, where the execution is otherwise prolonged, or where the execution deviates from the adopted protocols and regulations concerning the execution process.


Death Penalty Is Alive and Well in 2015

It's true that there have been two state governors who recently halted executions in their state, pointing to the pending action by the U.S. Supreme Court.  

Both the governor of the State of Ohio and the governor of Pennsylvania have used their executive power to stop any executions from happening in their two states, at least for the time being.  (Of note, Pennsylvania hasn't executed anyone since 1999.)

And, it's true that the State of Oklahoma has had its executions stayed.  This halt is also due to recent activity before SCOTUS.

However, it's important to recognize that this isn't signaling the halt of capital punishment in this country.  

SCOTUS may have undertaken review of lethal injection as a method of capital punishment when a part of that lethal injection cocktail involves using midazolam, but the Supreme Court hasn't gone so far as to stop the death penalty itself in this country.  

Midazolam is one of the drugs used in the Florida lethal injection procedure.  Florida had an execution scheduled for February 26, 2015, but there was a move to stay that execution based upon the pending case before the Supreme Court.

The Florida Supreme Court granted that motion to stay, filed by Jerry William Correll's counsel, earlier today.

Read the Florida Supreme Court's Order Granting Stay here.

SCOTUS Allowed Two Death Penalty Executions Already This Year

Texas got the green light to execute Robert Ladd last month from SCOTUS.  Georgia also went ahead with the execution of Warren Hill after SCOTUS declined to grant writ in that case.  

States Considering Capital Punishment 

Moreover, capital punishment is being considered as a form of punishment in at least one state right now.   Michigan is considering instituting capital punishment.

States Considering Other Forms of Execution

Other states are considering other ways of execution in case lethal injection proves to be too difficult, constitutionally (or practically, given the limited supply of drugs).  

  1. Wyoming is considering the firing squad.
  2. Utah is considering the firing squad, as well.  
  3. Oklahoma is considering the gas chamber.

It's not over and it looks like SCOTUS is making it clear that we shouldn't misread its granting of writ in the Oklahoma case as being a bigger signal than it is.  


Image:  San Quentin Execution Chamber


New Infographic: Declining Death Penalty in U.S.




Note: This infographic comes from Daily Kos using data they found at the Death Penalty Information Center web site.

Is Death Penalty by Lethal Injection Unconstitutional?

The Supreme Court has agreed to consider the case of Glossip v. Gross (coming out of Oklahoma) which is a death penalty case that may have national impact on how capital punishment is handled by Florida, Texas, and the rest of the country.

Image: State of Florida Execution Chamber No. 3

In Glossip, the issues presented to the High Court do not involve all lethal injections, or whether this execution method itself is “cruel and unusual punishment” in violation of the Eight Amendment.

It’s not that broad.

What the U.S. Supreme Court will be deciding is if a lethal injection execution method using midazolam as one of the three drugs involved in a lethal injection execution is “cruel and unusual.”

Still, the fact that the High Court is hearing this issue seems to have a powerful effect: recently, the Governor of Ohio announced that all of Ohio’s executions set for this year (2015) would be stayed given the pending matters before SCOTUS.

Glossip Case

There are three Oklahoma Death Row inmates going before SCOTUS, arguing against the use of midazolam as part of the three-drug lethal injection cocktail used by the State of Oklahoma.

1. You can follow the case on the SCOTUS Docket

2. For a good review of the Glossip case - both its history and the issues being presented to the Justices (oral argument probably in April 2015), check out James Ching’s take on things

3. Here are the Questions Presented to the U.S. Supreme Court in Glossip (writ granted January 23, 2015)(emphasis added):  

In Baze v. Rees, 553 U.S. 35 (2008), the Court held that Kentucky's three­-drug execution protocol was constitutional based on the uncontested fact that "proper administration of the first drug"-which was a "fast-acting barbiturate" that created "a deep, comalike unconsciousness"-will ensure that the prisoner will not experience the known pain of suffering from the administration of the second and third drugs, pancuronium bromide and potassium chloride. Id. at 44.

The Baze plurality established a stay standard to prevent unwarranted last­-minute litigation challenging lethal-injection protocols that were substantially similar to the one reviewed in Baze; a stay would not be granted absent a showing of a "demonstrated risk of severe pain" that was "substantial when compared to the known and available alternatives." Id. at 6l.

In this case, Oklahoma intends to execute Petitioners using a three-drug protocol with the same second and third drugs addressed in Baze.

However, the first drug to be administered (midazolam) is not a fast-acting barbiturate; it is a benzodiazepine that has no pain-relieving properties, and there is a well-established scientific consensus that it cannot maintain a deep, comalike unconsciousness.

For these reasons, it is uncontested that midazolam is not approved by the FDA for use as general anesthesia and is never used as the sole anesthetic for painful surgical procedures.

Although Oklahoma admits that administration of the second or third drug to a conscious prisoner would cause intense and needless pain and suffering, it has selected midazolam because of availability rather than to create a more humane execution.

Oklahoma's intention to use midazolam to execute the Petitioners raises the following questions, left unanswered by this Court in Baze:

Question 1: Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious.

Question 2: Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze?

Question 3: Must a prisoner establish the availability of an alternative drug formula even if the state's lethal-injection protocol, as properly administered, will violate the Eighth Amendment?

Georgia Executes Warren Hill: SCOTUS Allows Execution to Proceed

The State of Georgia executed Warren Hill today, despite arguments that Mr. Hill was intellectually disabled.  Last minute arguments made to the Supreme Court were unsuccessful.  


The Supreme Court issued orders today in the Hill case are important to all death penalty defense issues as hints regarding how the High Court will be ruling in future cases involving capital punishment. 

There were only two dissents in the Warren Hill matter. Justices Breyer and Sotomayor would have granted the stay of execution.   

Read the SCOTUS orders here and here

Hill's argument was that the case of Hall v. Florida should apply to his case to find unconstitutional Georgia's law that there only be proof beyond a reasonable doubt that he is so severely intellectually disabled to be executed.  

Interesting point to consider:  Hill was executed by lethal injection.  The Supreme Court has agreed to hear the case of Glossip v. Gross, where it is argued that lethal injection drug procedures are unconstitutional as cruel and unusual punishment.


Will Georgia Execute Mentally Challenged Warren Hill?

 Regardless of the protections intended by Atkins v. Virginia, executions continue to proceed in this country of Death Row inmates with significant mental challenges.  It’s something that Terry Lenamon is dedicated to fighting as part of his work in defending individuals facing capital punishment in the death penalty phases of their criminal trials.  

Warren Hill

Sadly, state governments are still proceeding with executions of people suffering serious mental illness or severe mental disability (which some SCOTUS opinions reference as “mental retardation”).  Consider the Texas case of schizophrenic Scott Panetti  with its eleventh hour fight for a stay of execution last month.  
Now, Georgia has set January 27, 2015, as the execution date for Warren Hill,  a man whose intellectual disabilities are not in controversy.  If Hill had been convicted in Florida or Texas, even, he might well not be facing capital punishment because of his mental condition.
However, because Atkins allows each state to set up its own procedures for deciding mental conditions that prevent the death penalty under constitutional law as being cruel and unusual, Georgia is moving forward.
Hill’s lawyers are seeking a stay based upon the argument that this legal standard is unconstitutional in much the same way as the Supreme Court determined in Hall v. Florida concerning the Florida standard.

Death Penalty Around the World: Infographic


Pakistan Death Row Executions Scheduled But 14 Year Old Gets Stay

Pakistan has over 8200 people awaiting execution on the Pakistan Death Row and not all of them are adults.  Terence Lenamon agreed to sign on as a "friend of the court" in an amicus brief that was being presented from U.S. scholars and advocates to the Pakistan government in an attempt to stop the scheduled execution of 14 year old Shafqat Hussein.
Shafqat Hussein was tried in their terrorism court for a crime that did not have anything to do with terrorism, and found guilty after a forced confession.  
He was scheduled to die on January 9, 2014, but international news reports are that his execution date has been stayed by the Pakistani Interior Minister.  
It's safe to assume that efforts like those of Terry Lenamon and others signing that amicus brief and doing other things to spotlight what is happening in Shafqat Hussein's case (among others in Pakistan) has helped to stop Friday's scheduled execution.  
Meanwhile, many more on the Pakistan Death Row are facing execution as the government lifted its 6 year six-year moratorium and began an execution schedule late last month.
The Pakistan Government has a goal to empty its Death Row -- and reports are that it plans on executing 500 people in the first three months of 2015.
Execution method:  hanging
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