When convicted Boston Marathon Bomber, Dzhokhar Tsarnaev, was condemned to die recently, he learned that his new address would be federal death row in Terre Haute, Indiana. Because of the lengthy appeals process, it may be decades before he’s executed. Despite 74 people having been sentenced to death in federal cases since the 1988 reinstatement of the federal death penalty, only three — Timothy McVeigh, Juan Raul Garza and Louis Jones — have been executed. Prior to McVeigh’s 2001 execution, the federal government had not put anyone to death since 1963.
Many people lobbied for Tsarnaev to be spared death and instead sentenced to life imprisonment without the possibility of parole. With the speed that the wheels of American justice turn, it may turn out that in the end his sentence will amount to life in prison.
Due primarily to appeals, the length of time an inmate is on death row has increased. The period of time prisoners spend on death row before their executions have emerged as a subject of debate surrounding capital punishment. The discussion began in earnest in 1976 when the U.S. Supreme Court reinstated the death penalty as an option to life imprisonment.
The debate got louder when Connecticut death row inmate Michael Ross was executed after having spent 17 years waiting for his sentence to be carried out. It’s a discourse that still continues.
In the US, death row inmates typically spend over ten years waiting for execution. Some prisoners have been waiting for rover 20 years.
In 1984, the average time between sentencing and execution was 74 months. By 2012 that gap had widened to 190 months according to the Bureau of Justice Statistics.
The US Supreme Court has yet to accept any case based on the length of time an inmate is held on death row. Justices Breyer and Stevens though have questioned the constitutionality of the long delays.
Writing in a 1995 case, Stevens was the first to broach the subject. In writing the minority opinion in Lackey v. Texas, Stevens urged lower courts to act as a laboratory of sorts for examining whether executing inmates after long periods on death row may violate the Eighth Amendment, which prohibits cruel and unusual punishment
While some justices argued the other side, Breyer stood firm and wrote that the “astonishingly long delays” which the inmates experienced were not the result of frivolous appeals on their part, but instead they were because of “constitutionally defective death penalty procedures.”
In 2009, the Court declined to intervene in Thompson v. McNeil. Three justices issued strong statements about the legal issue of time spent on death row.
Thompson had been on Florida’s death row for 32 years and claimed the excessive amount of time spent on death row was cruel and unusual punishment and violated his constitutional rights.
In 2011, Manual Valle was executed by Florida after spending 33 years on death row. When Valle’s lawyers appealed to the Supreme Court on the issue of Valle’s length of stay prior to execution, the Court allowed the execution to move forward. Breyer, who again dissented from the decision, wrote, “I have little doubt about the severity of so long a period of imprisonment under penalty of death.”
Currently there is a challenge of reconciling the imposition of the death penalty with procedures necessary to make sure the wrong person is not executed.
Why Does It Take So Long?
The first appeal is typically about the case and verdict itself. During this petition, questions are raised about the conclusions and rulings delivered by the trial judge.
The appeals court rarely endorses every ruling the trial judge made, but only infrequently decides that the ruling amounts to reversible error. Most errors recognized by the appeals court are considered “harmless errors,” meaning that a different decision would still have given way to the same result.
Most jurisdictions — state and federal level — have multiple tiers, or levels, of appellate courts. If the appeal doesn’t end in a reversal at one level, the defense tries again at a different level.
If all the appeals fail, then the offender may seek to get an appeals court to rule that his trial attorney was incompetent. Undoubtedly, the convicted would need to get another attorney for this, but the levels of appellate courts are equal and the process begins all over.
Another tactic the converted my try is to obtain a ruling that he has been mistreated while on death row.
Longest on Death Row
It’s not possible to point to a specific individual with certainty and say that they are the one who has spent the most time going through the appeals process. A good indicator though, would be to look at the length of time someone has been on death row. As a person isn’t executed before their appeals run out, a safe assumption is that several individuals had a lengthy appeals process before being executed. Complete records are not easily obtainable, however some information can be pulled from the Bureau of Justice reports.
Among individuals serving the longest time on death row before being executed, are:
Ronald Arthur Gray 26 years (longest on the military’s death row)
David Carpenter, 30 years on death row
Albert Greenwood Brown, 33 years
Lawrence Bittaker, 34 years
Johnny Paul Penry, 35 years
Even individuals who were innocent have spent decades on death row before being found innocent, or not guilty, and released. The year in which they were convicted is shown and each of the individuals listed were set free in 2014:
Kwame Ajamu (formerly Ronnie Bridgeman), 1975
Reginald Griffin, 1983
Joe D’Ambrosio, 1984
Glenn Ford, 1984
Henry Lee McCollum, 1984
Leon Brown, 1984
Maybe the world record holder for time spent incarcerated for murder, and later set free, is Steven Truscott, a Canadian. Truscot was convicted of murder, and sentenced to die, in 1959. On January 22, 1960 his death sentence was commuted to life imprisonment. Eventually released on parole, Truscott’s conviction was overturned in 2007.
This article was written by New York-based criminal attorney Arkady Bukh, a frequent media contributor and published author.
Mr. Bukh served as defense counsel for Azamat Tazhayakov of Boston Bomber Marathon case.
His article has been published here as provided by attorney Bukh without change.