United States of America (United States).

Northern America (North America).

English.

316,000,000.

Retentionist.

While some states in the U.S. retain the death penalty, not all states’ criminal codes retain it, and thus categorizing the U.S. as homogenously retentionist does not accurately reflect the legal status of the death penalty in the country as a whole. Within the limits defined by the Constitution, each state applies its own criminal law.

Twenty-one (out of 50) states plus the District of Columbia have abolished the death penalty. Since 2009, New Mexico, Illinois, Connecticut, Maryland, Delaware, Washington, and New Hampshire have abolished the death penalty. Although 29 states retain the death penalty, only 19 of them have carried out executions since 2009. Further, 10 states, the U.S. federal government, and the U.S. military federal government are de facto abolitionist as they have not carried out any executions in over 10 years. As of April 2019, the states of California, Pennsylvania, Colorado, and Oregon had established official moratoriums on executions.

The U.S. federal government retains the death penalty for certain federal crimes. The federal death penalty was not used from 1964 to 2000, but was used three times between 2001 and 2003. Since 2003, no federal inmate has been executed. Additionally, though the military retains the death penalty, no executions have occurred in the military justice system since 1961.

2022.

Lethal Injection.

All 30 retentionist states, the U.S. federal government, and the U.S. military provide for execution by lethal injection.

From January 2001 through December 2018, 795 of 807 executions, or more than 98 percent, were carried out by lethal injection. All executions in 2018—except one execution by electrocution in Tennessee—were performed by lethal injection.

Although in 2016 state officials used the sedative pentobarbital in one-drug protocols to carry out lethal injections in 17 of 20 cases, 2017 brought a sharp increase in the use of midazolam, a controversial anesthetic. In nearly half of the lethal injections carried out in 2017, state officials used midazolam as part of a three-drug protocol. In 2018, more than half of the executions were carried out with pentobarbital in a one-drug protocol.

Shooting.

Mississippi, Oklahoma, and Utah authorize execution by firing squad as an alternative method to lethal injection.

Utah authorizes execution by firing squad if lethal injection is declared unconstitutional or if lethal injection drugs become unavailable. Nevertheless, under a law that was in place until 2004, Utah prisoners sentenced to death before May 3, 2004 may request execution by firing squad. The last death row prisoner to be executed by firing squad in Utah was Ronnie Lee Gardner in June of 2010. Three individuals on death row in Utah who were sentenced to death before the 2004 law was abolished have chosen death by firing squad as their method of execution.

Oklahoma’s criminal law provides that firing squads may be used as a method of execution only if lethal injection, lethal gas, and electrocution are found unconstitutional or “otherwise unavailable.”

Mississippi authorizes use of a firing squad if lethal gas, lethal injection, and electrocution are found unconstitutional or are “otherwise unavailable.”

Other.

Gas Chamber.

Alabama, Arizona, Missouri, California, Oklahoma, Mississippi, and Wyoming authorize execution by lethal gas as an alternative method to lethal injection. Wyoming, Mississippi, and Oklahoma specifically provide this method may be used only if lethal injection is found unconstitutional. In Mississippi and Oklahoma, this method may also be used if lethal injection is “otherwise unavailable.”

Other.

Electrocution.

Alabama, Arkansas, Florida, Kentucky, Mississippi, Oklahoma, South Carolina, Tennessee, and Virginia authorize execution by electrocution as an alternative method to lethal injection.
From January 2001 through December 2018, 11 of 807 executions were carried out by electrocution. The last person to be executed by electrocution was David Earl Miller in Tennessee on December 6, 2018.

Comments.

From January 2001 through December 2018, 795 executions were carried out by lethal injection, 11 executions by electrocution, and one execution by shooting. No executions were carried out by lethal gas in this time period.

Since 2012, retentionist states have been experiencing shortages in lethal injection drugs, particularly thiopental, which was commonly used. This is due to European Union’s imposition of strict controls on EU drug exports to the U.S. with the stated aim of preventing their use in “capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.”

2,654.

At the end of 2018, there were 2,654 people on death row in the United States. The largest death row populations were in California (739 people), Florida (343 people), Texas (223 people), Alabama (176 people), and Pennsylvania (144 people).

(This question was last updated on June 3, 2019.).

Whether there is an official moratorium on executions varies from state to state. Five states have ongoing gubernatorial moratoria. The governor of Oregon declared a formal moratorium on executions on November 22, 2011. The last execution to take place was in 1997. In February 2014, Governor Jay Inslee of Washington announced a moratorium on executions while he is in office. He cited three reasons for his decision: the unequal application of capital punishment, the expense of a capital prosecution, and the lack of evidence of the death penalty’s deterrent effect. Inslee did not commute the sentences of the nine men on Washington’s death row, but indicated that he will support a bill to abolish the death penalty if offered. In October 2018, after Washington Supreme Court declared the death penalty unconstitutional, Governor Inslee stated, “Today’s decision by the state Supreme Court thankfully ends the death penalty in Washington.” In 2013, Governor John Hickenlooper imposed a moratorium on executions in Colorado, having described the death penalty system as flawed and inequitable. Pennsylvania’s governor Tom Wolfe declared a moratorium on the death penalty in 2015, pending the results of a task force report assessing how the sentence is carried out, whether it''s constitutional, and if it reduces crime. The report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment was released in June 2018. Wolf indicated that until the recommendations and concerns in the report are addressed, the moratorium will stay in place. On March 13, 2019, California governor Gavin Newsom announced a moratorium on capital punishment, impacting 737 people: the largest death row population in the United States. Governor Newsom cited racial disparities, wrongful convictions, and the high cost of capital punishment in his announcement of the moratorium.

(This question was last updated on March 14, 2019.).

On the federal level, the Fifth Amendment to the Constitution provides for jury trials for capital or infamous crimes, and prohibits the deprivation of life without due process of law. After the Civil War, the Fourteenth Amendment was enacted, using similar language to the Fifth Amendment in prohibiting the deprivation of life without due process of law by states. The Supreme Court usually considers the Eighth Amendment, prohibiting cruel and unusual punishment, as well as the Fourteenth Amendment, in determining the outcome of constitutional appeals against the death penalty. The constitutionality of the death penalty in any given state may also be affected by that state’s own constitution.

Aggravated Murder.

Under federal law, first degree murder, which is defined as unlawful killing with malice aforethought where the murder is accomplished by poisoning, laying in wait, “or any other kind of willful, deliberate, malicious or premeditated killing;” or in enumerated instances where the murder is committed in perpetration of another serious and dangerous offense against property, the person or the state, can be punished by death. Various murders can be treated as first degree murders under Title 18 of the United States Code Section 1111: murder of an officer or employee of the U.S. or its agencies or of state personnel assisting federal personnel, retaliatory killing of the family members of federal officials or employees, or by such a federal prisoner after an escape; the murder of a foreign official, guest, or internationally protected person; the murder of a federal juror, court officer or magistrate judge during or related to the discharge of his duties, murder of a federal witness, victim or informant (to prevent testimony or evidence, or in retaliation), murder with a firearm in a federal facility, use of armor-piercing ammunition to commit a murder, murder of the President, Vice President, or individual next in the line of succession to the Presidency, or murder of members of Congress (or elect), head (or nominee) of an executive department or a Justice (or nominee).

Other aggravated murder offenses under federal law include: murder for hire (in interstate commerce or when paid by an enterprise engaged in racketeering), carjacking with intent to cause serious harm or death, resulting in death, murder committed by a federal prisoner under a term of life imprisonment, murder in relation to interstate or foreign sex trafficking, child pornography, sexual exploitation of minors, coercion or enticement to prostitution, human trafficking, transmission of information about a minor for sexual purposes, torture (in another country) resulting in death (if the victim was a U.S. national or the offender is present in the U.S.), transporting or receiving explosives with the intent that they be used to kill, injure, intimidate, or destroy a building, vehicle or real property, if death results proximately from transporting or receiving, or use of the explosives, resulting in death, kidnapping or hostage-taking resulting in the death of any person, killing during a bank robbery, in attempt to escape after a bank robbery, or of a hostage, and killing of the President, Vice President, or individual next in the line of succession to the Presidency, members of Congress (or elect), head (or nominee) of an executive department or a Justice (or nominee), resulting from a conspiracy or a kidnapping.

The federal death penalty applies for murder committed in furtherance of drug trafficking or when the offender fires a weapon into a group of two or more persons to escape detection of a major drug offense, or, when in relation to a crime of violence or a drug trafficking crime the offender uses armor piercing ammunition to commit a killing that qualifies as murder. These are aggravated murder offenses. A few states have similar statutory provisions. Killing while engaging in or working in furtherance of a continuing criminal enterprise (for drug trafficking) is punishable by death.

Aggravated murder is also punishable by death by states that provide for the death penalty. Lists of aggravating and mitigating factors at the federal and state.

Other Offenses Resulting in Death.

A variety of offenses resulting in death need not qualify under 18 U.S.C. 1111 as first degree murder in order to be death-eligible under federal law. These offenses include second degree murder by a federal prisoner under sentence of life imprisonment; mailing any prohibited substance or item resulting in death; offenses against maritime navigation or maritime fixed platforms resulting in death; and conspiracy against civil rights, violation of civil rights under color of law, violations of federally protected rights, or destruction of religious real property or obstruction of a person’s free exercise of religion resulting in death. (Prior to Kennedy v. Louisiana, offenses against civil rights, federal rights and the free exercise of religion were punishable by death if the offenders attempted to rape, kidnap or murder the victim.)

Some states permit execution for felony murder—a doctrine under which any participant in a potentially life-threatening crime can, if death results, be prosecuted for capital murder. There is a military death penalty for felony murder. The Supreme Court’s jurisprudence limits the application of the death penalty for felony murder to instances where an offender’s contribution to events leading up to a killing are “substantial” and exhibit a “reckless disregard for human life.” A list of executions since 1977 for felony murder (and brief description of each offense) is available.

A few states permit the death penalty for perjury resulting in the execution of an innocent person, although it is uncertain that this could survive a constitutional challenge in light of the Supreme Court’s opinion in Kennedy v. Louisiana.

Under 8 U.S.C. 1342, the death penalty might apply for some murders or killings related to smuggling aliens.

Terrorism-Related Offenses Resulting in Death.

The federal death penalty applies for destruction of motor vehicles or aircraft or facilities for such vehicles and craft, if death is a result of the offense. Use of a device, substance or weapon at an aircraft facility in an act of violence against persons or destruction of facilities, resulting in death can be punished by death. “Terrorist attacks and other violence against railroad carriers and against mass transportation systems on land, on water, or through the air,” resulting in death, can be punished by death. Terrorist murder of a U.S. national is punishable by death in accordance with 18 U.S.C. 1111. Use of a weapon of mass destruction, resulting in death, can be punished by death.

Some states might apply the death penalty for possibly terrorism-related offenses such as train derailing or aircraft hijacking.

Terrorism-Related Offenses Not Resulting in Death.

A few states provide the death penalty for offenses such as aircraft hijacking or sabotage; such penalties might not survive a constitutional challenge after Kennedy v. Louisiana.

Drug Trafficking Not Resulting in Death.

The federal law permits execution for drug trafficking in large amounts. Some states have similar statutory provisions, to the effect that importation of quantities of drugs likely to result in the deaths of some individuals is an offense punishable by death. These laws have never been used to condemn a defendant to death, and it is uncertain whether they would survive a constitutional challenge in light of the Supreme Court’s opinion in Kennedy v. Louisiana.

Treason.

Under the Constitution, treasonable offenses consist only of waging war against the nation or giving aid and comfort to her enemies, and no one may be convicted of treason except on the testimony of two witnesses to the same act or on confession in an open court of law. Treason can be punished by death under federal law. Several States provide that treason is a capital offense.

Espionage.

Under federal law, an act of espionage can be punished by death under limited circumstances: (1) A jury must find that as a result of the act an agent of the U.S. was identified by a foreign power and killed; or (2) a jury must find that the act involved disclosures about enumerated weapons, defense systems, intelligence systems or plans.

Military Offenses Not Resulting in Death.

Currently, military death sentences have been pronounced only for murder and felony murder. Some wartime offenses not resulting in death are technically punishable by death, such as: spying, espionage, offenses against noncombatants (such as forcing a safeguard), desertion, disobedience, mutiny or sedition, cowardice, dereliction of duty (particularly to commit an offense under the laws of war), disclosure of parole or countersign, aiding the enemy, improperly hazarding a vessel, failure to perform sentinel duties, and offenses against persons such as child rape (which might be affected by recent Supreme Court jurisprudence). It is uncertain whether these laws would survive a constitutional challenge in light of the Supreme Court’s opinion in Kennedy v. Louisiana.

War Crimes, Crimes Against Humanity and Genocide.

Genocide resulting in death (the offense of genocide includes non-deadly measures taken against the long-term survival, welfare or cohesion of a group) is punishable by death under federal law.

Other Offenses Not Resulting in Death.

Attempted murder of any officer, juror or witness in cases involving a continuing criminal enterprise is punishable by death under federal law.

It is uncertain whether these laws would survive a constitutional challenge in light of the Supreme Court’s opinion in Kennedy v. Louisiana.

Comments.

The Supreme Court held in Kennedy v. Louisiana (2008) that offenses against persons not resulting in death are not punishable by death. Offenses against the state, which the court listed as treason, espionage, terrorism and high-level drug trafficking offenses, are not necessarily affected by that opinion. It is also unclear how this opinion would affect the treatment of the attempted murder of an officer, juror or witness in a case involving a continuing criminal enterprise. Nonetheless, the constitutionality of all offenses that do not result in the loss of human life is now doubtful under Kennedy v. Louisiana.

A number of federal laws authorize the death penalty for murder offenses, but are not necessarily separate, special offenses. All such laws pertain to federal jurisdiction to prosecute an offense—whether it be an offense against individuals serving or associated with the federal government or by a person in federal custody, an offense committed outside of the U.S. by individuals who have come under U.S. jurisdiction, or an offense involving interstate or foreign commerce.

In 1976, the Supreme Court held that the mandatory death penalty violates the Eighth and Fourteenth Amendments to the Constitution. In summary, the Court held that the mandatory death penalty is unconstitutionally arbitrary, imposing an unworkably rigid sentencing regime that does not recognize the vastly different degrees of gravity of offenses and culpability of offenders. The Court determined that only a rationally reviewable sentencing process that accounts as thoroughly as possible for factors in aggravation and mitigation is acceptable. Subsequent jurisprudence has confirmed that the mandatory death penalty is unconstitutional for any class of offense.

Comments.

None. The mandatory death penalty is unconstitutional in the United States.

Individuals Below Age 18 at Time of Crime.

In Roper v. Simmons (2005), the U.S. Supreme Court ruled that the death penalty for individuals below age 18 at the time of the offense violates the Eighth and Fourteenth amendments to the U.S. Constitution.

The last execution of an individual who was a juvenile at the time of the crime in the U.S. was that of Scott Allen Hain in April 2003.

Pregnant Women.

The federal death penalty cannot be executed upon a pregnant woman. When the U.S. acceded to the ICCPR, it explicitly acknowledged that pregnant women should be excluded from the death penalty. Congress has not yet enacted a law giving domestic effect in the states to this provision, although the exclusion at common law traces back to the ancient writ de ventre inspiciendo (“to inspect the belly”), which protected women in noticeable stages of pregnancy, and has been adopted into the statutory law of states without regard to whether the woman is “quick with child” (the pregnancy is noticeable).

Intellectually Disabled.

In Atkins v. Virginia (2002), the U.S. Supreme Court ruled that the Eighth and Fourteenth Amendments to the U.S. Constitution prohibit the imposition of the death penalty on “mentally retarded” individuals. The American Association on Intellectual and Developmental Disabilities identifies individuals with an IQ of 70 (or in some cases as high as 75) as having a limitation in intellectual functioning. According to the AAIDD, “[i]ntellectual disability is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior, which covers many everyday social and practical skills. This disability originates before the age of 18.”

A review of each state’s definition of intellectual disability can be found at: http://www.deathpenaltyinfo.org/state-statutes-prohibiting-death-penalty-people-mental-retardation.

A discussion of this exclusion as it is practiced is available at http://www.deathpenaltyinfo.org/intellectual-disability-and-death-penalty.

Mentally Ill.

Under United States law, defendants who are insane or mentally incompetent cannot be executed. Insanity or mental incompetency is understood as a severe form of mental illness in which the inmate is so out of touch with reality that he cannot understand his punishment or the purpose of it. Inmates who are mentally ill but not insane are not excluded from execution.

In Ford v. Wainwright (1986), the U.S. Supreme Court confirmed the long-held principle that a convicted prisoner cannot be executed while insane, even if he was sane at the time of his offense. The Court further held that prisoners must be afforded at least an informal adversarial process in which their advocates are able to contest the State’s determination that a prisoner is sane and may be executed. The inquiry addresses whether the defendant’s mental state prevents him from understanding the reality of his execution and why he is being executed. The Court cited a number of principles at common law, including that: (1) individuals may not be criminally liable for offenses committed while insane; (2) an individual who is not sane is not capable of participating in his own defense or appeal; (3) the practice of executing the insane “has consistently been branded ‘savage and inhuman,’” purposeless and immoral.

In Panetti v. Quaterman (2007), the Court reinforced the requirement that an offender must be able to respond to state or court mental health experts by offering his own experts. More importantly, the Court developed the standard for determining competency for execution—it is not enough that an offender understands that he will be executed and can state the crime for which he will die. The offender may be lucid from time to time, or usually lucid enough to give a realistic description of his situation. However, courts must also consider that an offender’s delusions might distort his view of reality. For instance, in Panetti, the offender believed that the true reason for his execution was related to spiritual warfare and that the state wished to stop him from preaching. Even though the offender was able to explain that he would be executed for murdering his wife’s parents, and understood that he would in fact die, this awareness was insufficient. According to the judgment, courts should consider whether expert testimony shows that the offender has a truly rational understanding of his situation.

According to the Death Penalty Information Center, at least 10 individuals executed in 2012 “showed signs of severe mental illness.” On January 8, 2013, the Supreme Court unanimously decided in Ryan v. Gonzales and Tibbals v. Carter that post-conviction appeals should not automatically be suspended in cases where a death row inmate is too mentally incompetent to assist his or her attorney.

A discussion of this exclusion as it is practiced is available at http://www.deathpenaltyinfo.org/mental-illness-and-death-penalty.

Aggravated Murder.

266 individuals were executed from January 2008 through February 2014 for aggravated murder.

From 2008 to 2013, 37, 50, 46, 43, 43 and 39 executions were carried out respectively for aggravated murder. As of February 13, 2014, 8 executions have taken place since the beginning of 2014.

Other Offenses Not Resulting in Death.

In 2009, two individuals were executed for felony murder —while not causing the death of the victim, they were nonetheless convicted of murder and executed:

-Dennis Skillicorn was executed on May 20, 2009 in Missouri. One of his accomplices in an unplanned roadside kidnapping had taken the victim to a nearby location and shot him.

-Robert Thompson was executed on November 19, 2009 in Texas. His accomplice in a robbery shot and killed a clerk while the two were making their escape. During the robbery, Thompson had fired the first shot, wounding another clerk.

The Supreme Court has “tinker[ed] with the machinery of death” perhaps more than any other nation’s Court still applying the death penalty.

In Furman v. Georgia (1972), the Court addressed the issue of standards-based sentencing. A plurality of the court determined that the then-existing death penalty statutes violated the Eighth and Fourteenth Amendments, since the statutory sentencing schemes failed to provide adequate guidance regarding the basis on which death sentences could be imposed. They reasoned that, without adequate standards, the application of the death penalty was unconstitutionally arbitrary.

In Gregg v. Georgia (1976), the Court returned to the topic of standardized sentencing. The Court determined that the death penalty could be constitutionally applied using standards-based sentencing, where the state outlined statutory aggravating factors and required the judge to instruct the jury on the application of mitigating and aggravating factors. This, the Court reasoned, was a solution to the “arbitrary and capricious” application of the death penalty the Court had addressed in Furman v. Georgia.

The Court decided Woodson v. North Carolina on the same day as Gregg v. Georgia. North Carolina had implemented a mandatory death penalty rather than a statute that provided for standards-based discretionary sentencing. The Court found the mandatory death penalty approach unconstitutional, reasoning that imposing an unworkably rigid sentencing regime that does not recognize the vastly different degrees of gravity of offenses and culpability of offenders leads to arbitrary, harsh treatment. Together, Woodson and Gregg illustrate that both discretion and standards are requisite parts of capital sentencing. The Court struck down the last remnant of the mandatory death penalty in Sumner v. Shuman, confirming that no class of offense may constitutionally serve as the basis for a mandatory sentence.

In 1977, the Court determined in Coker v. Georgia that the rape of an adult could not constitutionally be punished by death. The Court questioned whether an offense not resulting in death could merit the death penalty, when only aggravated killings are punishable by death—although the Court did not exclude the possibility that an aggravated rape could be punished by death. The Court revisited this issue in Kennedy v. Louisiana (2008) and determined that child rape cannot be punished by death under civilian law.

In Kennedy v. Louisiana, the Court barred any expansion of the death penalty for ordinary offenses not resulting in loss of human life, reasoning that expansion of the death penalty to such crimes inherently exposes defendants to arbitrary treatment. The Court explained that “imprecision” in the punishment of aggravated murder offenses has been tolerated, but that “[i]t should not be introduced into our justice system, though, where death has not occurred.” The court carved out an exception for offenses against the state, but that exception is dicta and the same arguments might very well apply for offenses against the state.

The Court has also held that the Eighth Amendment prohibits the execution of certain offenders—namely the insane, the intellectually disabled, and juveniles. The Court has found that the death penalty against such offenders is arbitrary for a number of reasons—such offenders are less likely than others to respond to deterrence, are less morally culpable (undermining the value of retribution), and are less able than others to assist in their own defense or presentation of mitigating factors at sentencing. This makes it likely that the death penalty is “purposeless” and that procedural safeguards cannot adequately serve these offenders.

Throughout this line of cases, the Court has been guided by its remark in Trop v. Dulles (1958) that “[t]he [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, the Court has considered the gradual narrowing of the scope of the death penalty in law and application among the states, and the Court has accordingly restricted the constitutional scope of the death penalty over time.

On January 8, 2013, the Supreme Court unanimously decided in Ryan v. Gonzales and Tibbals v. Carter that federal habeas corpus proceedings should not automatically be suspended in cases where a death row inmate is too mentally incompetent to assist his or her attorney. Ernest Valencia Gonzales and Sean Carter had both been convicted of murder and considered mentally incompetent. Although the appeals courts decided that their challenges to the convictions should be stayed until their return to mental competence, Justice Thomas of the Supreme Court ruled that an indefinite stay is inappropriate “where there is no reasonable hope for competence.” Justice Thomas added that lawyers could effectively represent a mentally incompetent habeas petitioner facing the death penalty as post-conviction challenges are typically based on court record. Suspensions of habeas corpus proceedings may still be warranted in some cases, but they cannot be indefinite.

In May 2013, the 1st District Court of Appeal of California unanimously ruled that state prison officials failed to comply with administrative rules in updating its lethal injection procedures, thereby putting California’s death penalty on hold. The prison department provided no public explanation for why it chose to continue with a three-drug lethal injection, a method that raised concerns for potentially causing cruel and painful death, instead of a single-drug lethal injection.

In May 2013, the Supreme Court ruled in Trevino v. Thaler that its decision in Martinez v. Ryan (2012), which gave defendants in Arizona the right to raise a claim of ineffective assistance of trial counsel after the first state collateral review proceeding if there was good “cause” for not raising the claim at the right time, applied to Texas. The lawyer for Texas death row inmate Carlos Trevino, convicted of rape and murder of a 15-year-old, argued that Trevino’s first habeas attorney did “no investigation” outside of the record that already existed and then became sick and “did not want to proceed.”

There were no international human rights treaties as such in 1787. The Constitution prohibits the individual states from entering into international treaties, and provides that the President may enter into treaties for the nation with the advice and consent of a 2/3 majority of the Senate. Treaties are, with the Constitution and duly promulgated federal law, supreme over state laws. Nonetheless, the Supreme Court has held that in some cases, treaties are not “self-executing” without implementing legislation.

The Human Rights Committee in its 2006 Concluding Observations expressed concern that the U.S. had actually expanded its death penalty since its last periodic review, that the U.S. has not seriously considered whether it restricts the death penalty to the most serious offenses, and that the U.S. does not fully acknowledge the problem that defendants from ethnic minority or low income groups are disproportionately sentenced to death. The Committee advised the U.S. to address these concerns. The Committee noted that the quality of legal aid available to indigent defendants had somewhat improved, and welcomed the Supreme Court’s decision in Roper v. Simmons (2005) to prohibit the application of the death penalty against those who were under the age of 18 at the time of the crime. Regarding this issue, the Committee recommended the U.S. to withdraw its reservation to article 6(5) of the ICCPR.

Members of the Human Rights Council made a number of recommendations related to the death penalty during the country’s Universal Periodic Review, including that the U.S. address the problem of racial disparity in sentencing, remove reservations to the ICCPR, institute a moratorium on death sentences and executions, and abolish the death penalty, at least on the federal level. The U.S. did not support such recommendations, but did support some recommendations regarding the death penalty. The U.S. supported the recommendation that it restrict the scope of the death penalty to comply with Articles 6 and 14 of the ICCPR, while asserting that it already does so. It supported recommendations that it exclude “persons with certain intellectual disabilities…” from the death penalty while providing that it would not exclude “…all persons with any mental illness.” The U.S. stated that it “intends to continue to make best efforts to ensure compliance with the Avena judgment,” a decision of the International Court of Justice that requires the U.S. to assure that the consular rights of foreign nationals are protected in criminal proceedings, including capital proceedings.

The Inter-American Commission on Human Rights has repeatedly found that the United States has violated its obligations under the American Declaration on the Rights and Duties of Man in the cases of individuals on death row. For example, in 2011 the Commission decided in favor of nine death row inmates, including Jeffrey Timothy Landrigan. The petitioners claimed that they had been deprived of a fair sentencing hearing. Although the U.S. Supreme Court had struck down the sentencing practices applied in their cases, the court refused to apply its decision retroactively. The petitioners contended that this was a violation of rights to freedom from the arbitrary deprivation of life, to equality, to a fair trial, to due process, and from cruel and unusual punishment, all of which are guaranteed by the American Declaration of the Rights and Duties of Man (American Declaration). In response, the IACHR concluded in 2011 that the execution of Jeffrey Landrigan “constitutes a serious and irreparable violation of the basic right to life enshrined in Article I of the American Declaration.” It also noted that the execution would deny him of his right to petition the Inter-American human rights system. The IACHR recommended that the U.S. provide reparations to the family of Jeffrey Landrigan and review its laws, procedures, and practices to ensure the rights of those accused of capital offenses outlined in the American Declaration.

Another petition was filed in January 2012 on behalf of Edgar Tamayo, a Mexican national whose execution had been scheduled for January 2014 in Texas. The petitioner argued that the jury sentenced Tamayo to death based on the incriminating statements he gave during his interrogation, during which he was intoxicated and high on drugs. Tamayo was also reportedly not notified of his consular rights established by Article 36 of the Vienna Convention on Consular Relations. The petitioner further claimed that Tamayo’s court-appointed trial counsel provided ineffective assistance by failing to present mitigating evidence or to conduct meaningful investigation. Tamayo allegedly suffered from an Intermittent Explosive Disorder that caused poor impulse control. The petitioner also indicated poor death row conditions and the method of execution that amounted to cruel, inhuman or degrading treatment or punishment. In response, the IACHR concluded that the U.S. violated the right to life, liberty and personal security, right to a fair trial, right of protection from arbitrary arrest, and right to due process of law guaranteed in the American Declaration on the Rights and Duties of Man. It said the execution of Tamayo would be “a serious and irreparable violation of the basic right to life recognized in Article I of the American Declaration.” The IACHR recommended that Tamayo be granted effective relief, and that the U.S. review its laws, procedures, and practices to ensure the rights of those accused of capital offenses outlined in the American Declaration. It further urged the U.S. to inform every foreign national deprived of liberty to be informed of consular rights, and to provide effective legal counsel in death penalty cases. The IACHR has issued similar findings in at least a half dozen other cases.

Under Gideon v. Wainwright (1963), any indigent person accused of any criminal offense has a right to state-funded counsel. The Supreme Court held that in the United States, access to an attorney is “fundamental and essential to fair trials” and is thus guaranteed under the Sixth and Fourteenth Amendments. Previously, at least some states already provided legal aid for those accused of capital offenses. By the turn of the century, state programs were woefully inadequate in providing aid to indigent individuals facing capital charges. For instance, “a Mississippi county was nearly bankrupted by the expense of providing services in a death penalty case and was compelled to file a lawsuit in 1999 in an effort to force the state to establish and fund a statewide public defender system.” By 2007, the American Bar Association offered the assessment that “[m]any states are failing to provide a statewide indigent capital defense system, providing services instead on a county-by-county basis.” In many states, capital defense for indigents was significantly underfunded, compensation for attorneys was minimal, the defense lacked access to experts and mitigation specialists, and single attorneys were forced to defend cases without the assistance of additional counsel (whereas the prosecution has many resources).

U.S. Senator Patrick Leahy observed that “[t]estimony in both the Senate and House Judiciary Committees revealed that of the 38 states that authorize capital punishment, very few have established effective statewide systems for identifying, appointing and compensating competent lawyers in capital cases… Even the best lawyers in these systems are hampered by inadequate compensation and insufficient resources to investigate and develop a meaningful defense.” U.S. Senator Patrick Leahy observed that “[t]estimony in both the Senate and House Judiciary Committees revealed that of the 38 states that authorize capital punishment, very few have established effective statewide systems for identifying, appointing and compensating competent lawyers in capital cases… Even the best lawyers in these systems are hampered by inadequate compensation and insufficient resources to investigate and develop a meaningful defense.”

Under Douglas v. California (1963), indigent prisoners have a right to representation upon appeal, although this may be limited to the prisoner’s first appeal. It is also possible to obtain post-conviction (collateral) review. The U.S. Supreme Court has held that individuals do not have a constitutional right to counsel during state post-conviction proceedings. and in 2007 the American Bar Association reported that some States were “failing to provide for the appointment of counsel in post-conviction proceedings” (which, in context, might only refer to whether appointment in such proceedings is funded by a state-wide program). State statutes do provide for the appointment of counsel in such proceedings. Counsel is also appointed under federal statute to represent prisoners in federal habeas corpus proceedings.

On a related issue, the American Bar Association pointed out in 2007 that “all States are failing to provide for the appointment of counsel in clemency proceedings.”

Even experienced attorneys may not provide quality representation for indigent capital defendants. Representation involves more than simply knowing the law or proper procedures—much of representation involves an attorney’s skillful use of investigators and experts to prepare and present a defense. But attorneys are often denied these resources. Stephen Bright, who wrote a seminal article on the inadequacy of indigent defense in the U.S. (1994), reported that in Alabama an attorney was granted only $500 for expert and investigative expenses. The attorney estimated that $30,000-$40,000 was actually required. Unable to hire the necessary personnel, the attorney found that he could not conduct the proper investigation himself. “You don’t find the U.S. Attorney pounding the pavement, trying to investigate facts…And it just creates a terrible situation when you have to do everything yourself.” Legal representation for indigent capital defendants can become a sort of “triage,” as even competent counsel is forced to make concessions in representation that, in any civil case, would amount to malpractice.

Public defenders (or contracted public defenders) were gravely overloaded. In one case, an attorney was berated by a judge and eventually demoted by her office for pointing out that she had an ethical obligation to limit her caseload since she already had 122 cases to handle, and had closed 476 cases over the past 10 months. By 2007, the American Bar Association observed that reimbursement for investigators or experts was still inadequate or nonexistent, and that funding in general was inadequate. And the situation for public defenders (as of 2004) had not changed greatly. Although there is increased willingness to at least temporarily provide additional resources, public defenders sometimes have to resort to extreme methods, such as filing motions to withdraw from all cases, in order to drive the point home that adequate resources are essential—and they do so under threat of retaliation.

But often counsel is simply not competent. Bright’s article outlines numerous cases where counsel had performed abysmally or not at all, resulting in wrongful convictions or death sentences pronounced for killings that are typically viewed as not meriting a death sentence. Individuals have sometimes been exonerated after pro bono attorneys take on the challenge left by incompetent counsel. However, courts will uphold convictions and death sentences despite the obvious fact that incompetent counsel failed to offer evidence that typically convinces juries that harsh penalties are not deserved. Errors of counsel in preserving issues for appeal are a significant factor in executions. Justice Thurgood Marshall observed that courts often refuse to consider constitutional violations because of this procedural default doctrine. And Justice Ruth Bader Ginsberg has observed: “People who are well-represented at trial do not get the death penalty. I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well-represented at trial.”

Elected state judges may not be properly motivated to meet the challenge of finding and appointing competent counsel. In 2004, the American Bar Association found that elected judges were disposed to appoint individuals who supported their campaigns—and this consideration may sometimes have been as important as the attorney’s competence to handle a case. The American Bar Association recommends that at the very least an independent board should appoint counsel for indigent clients to assure that appointment is based on merit, but in the nation’s lead executor, Texas, independent boards are virtually nonexistent. As Bright observed, judges are unwilling to appoint experienced, established attorneys who do not wish to devote time to an indigent case; judges do appoint inexperienced and incompetent counsel; and judges have refused to remove counsel even when counsel itself requests removal based on its inexperience and lack of competency in capital cases. And Bright writes: “The reality is that popularly elected judges, confronted by a local community that is outraged…have little incentive to protect the constitutional rights of the one accused…Many state judges are former prosecutors who won their seats on the bench by exploiting high-publicity death penalty cases.”

The U.N. Human Rights Committee observed (2006) that the quality of legal aid available to indigent defendants had somewhat improved.

Individuals sentenced to death have a universal right to appeal their convictions and sentences. Each state has distinct rules that govern the appellate process, but in all states death sentences are ultimately reviewable by the highest state court. A failure to exhaust state remedies may trigger a procedural default, hurting the defendant’s chances for review of some issues. Death-sentenced prisoners also have the right to file collateral appeals in state and federal court in which they are permitted to raise new facts. The federal courts have the ability to review state convictions and death sentences through federal habeas corpus. Habeas corpus petitions are subject to a variety of procedural rules that effectively limit the discretion of the federal courts to disturb state judgments. Prisoners must file their first federal habeas petition in the federal district court and may appeal an adverse judgment to the federal court of appeals. The U.S. Supreme Court exercises discretionary review (through the writ of certiorari) over decisions of the federal courts of appeals as well as decisions of state supreme courts that involve the disposition of a federal claim.

The President possesses the power to pardon federal offenses. The clemency processes among the states vary. In Texas, the nation’s leader in executions, the Governor may only commute a death sentence if the Board of Pardons and Paroles first recommends clemency. Oklahoma law is similar. The provision in Ohio—another leading executioner—gives the Governor more power, in that the “Governor has authority to grant clemency with nonbinding advice of Board of Pardons and Paroles.” In California, a state with one of the largest death rows (but not currently a leader in executions), the “Governor has sole authority to grant clemency.” These are the typical clemency arrangements—in some jurisdictions, the executive has sole discretion, in others, the executive receives non-binding advice from a board, while in yet others, the executive’s ability to act is limited by the board’s advice.

Yes.

In 2006, the Human Rights Committee observed that the United States has not fully acknowledged the disproportionate use of the death penalty against ethnic minorities and low-income groups. Biased application of the death penalty may be influenced by several related factors.

An article published in the Yale Law Journal in 1994 discusses the disadvantages that indigent capital defendants face, largely due to a lack of any meaningful standards of representation and to incompetent, overworked or under-resourced counsel. Poor minorities are doubly at risk, because their often incompetent counsel may utterly fail to challenge violations such as racially discriminatory jury selection.

Despite Supreme Court jurisprudence (Batson v. Kentucky) requiring that prosecutors eliminate jurors only for non race-based reasons, prosecutors are still able to use pretextual peremptory challenges to remove black jurors from jury panels, sometimes at three times the rate at which white jurors are removed, and the death penalty continues to be imposed on black defendants by all-white juries. According to one recent report, higher courts have not assumed an adequate role in eliminating race-based jury selection. Additionally, lawyers often excuse poor jurors rather than seek accommodations that would allow those jurors to serve, eliminating the perspective of poor individuals (including poor blacks) from the criminal justice system. These problems may be exacerbated or driven by other factors, such as the near-absence of black or other minority participants in the prosecutor’s office. And, defense counsel—the first and best line of defense against racially rigged juries—is somewhat lacking in diversity and often fails to contest the race-based elimination of jurors.

“Research suggests that, compared to diverse juries, all-white juries tend to spend less time in deliberation, make more errors, and consider fewer perspectives.” In capital trials, it “it is not uncommon for all-white juries to decide on punishment…before they have heard any mitigation evidence.” Diverse groups make fewer errors, are more open-minded, and are more willing to discuss controversial race-related topics. Racism in jury selection can be understood as having lethal consequences: blacks are more likely to receive death sentences than are similarly situated non-black defendants, blacks are much more likely to be sentenced to death for the murder of white victims, and executions of blacks for the murder of whites have been grossly out of proportion to representation in the population, even when considering only the population of those who have been convicted and sentenced to death. Information about exonerations also suggests that minorities are more likely to be wrongfully convicted.

The behavior of all-white juries might be understood in light of some facts about the criminal justice system and the social response to murder:

Even on the federal level, according to a 2008 report, 51 percent of death penalty cases were authorized against black defendants, and non-whites composed 59 percent of federal death row. This pattern occurs amid reports that police forces engage in de facto profiling and discriminatory enforcement. “[O]ne US Attorney noted, ‘local law enforcement makes decisions to put their cars in the black community and not the suburbs...if you are getting a disproportionate number of people of color, what can you do?’” Tough laws and their collateral consequences, affecting aid, political rights (such as voting), and access to employment often fall heavily on minorities, further marginalizing them in a system where more than 10,000 people a year are, often due to incompetent or under-resourced counsel, wrongfully convicted or plead guilty to crimes they did not commit.

One study concludes that a minority defendant, regardless of his individual past, may be unconsciously perceived by a jury to be criminal in nature, “death worthy,” based on whether he is “stereotypically black.” And the story about a person’s “value” leads to harsher sentences for those who kill high-status victims, which often means white victims.

The interaction of race and the death penalty is aptly illustrated by practices in Alabama, where the problem of discrimination in jury selection is particularly severe. There, elected judges can override life sentences pronounced by juries, substituting death, without explaining why. This practice is most pronounced in election years, when some judges (inexplicably, since they are judges and not legislators or prosecutors) campaign on a “tough on crime” platform. Judges are permitted to reduce jury sentences, however, they seldom do. In 92% of override decisions, the judges chose to impose capital punishment instead of the jury’s choice of life imprisonment. It seems clear that Alabama’s judges do not use their power to rectify discriminatory sentencing—according to a 2005 report, 81% of executions were for murders of white victims, despite that only 35% of homicide victims were white. According to a July 2011 report, less than 35% of homicide victims in Alabama are white; however, 75% of the overrides by judges to impose capital punishment were in cases involving a white victim. More than half of the overrides that changed the punishment to the death penalty in Alabama were imposed on black defendants.

Dorothy Roberts writes of the U.S. criminal justice system: “It would be hard to conjure up a mechanism that more effectively subjugates a group of people than state-imposed mass incarceration, capital punishment, and police terror, which not only confines and disenfranchises a staggering proportion of black people, but also devastates the communities they come from.” According to her, the U.S. criminal justice system functions to reinforce white superiority by disproportionately policing, incarcerating and, ultimately, executing blacks—and this is not an accident, but rather its purpose.

Federal death row prisoners are held in the United States Penitentiary in Terre Haute, Indiana. Military death row prisoners are held in the U.S. Disciplinary Barracks in Fort Leavenworth, Kansas. Death row prisoners are also held in states that have not abolished the death penalty. Two individuals are still under sentence of death in New Mexico, as that state’s abolition law did not operate retroactively. Despite official legislation to repeal the death penalty in 2012, Connecticut still holds eleven inmates under sentence of death since the law did not apply retroactively to commute the punishments of those previously sentenced. Maryland also abolished the death penalty in 2013, leaving five prisoners on its death row.

The largest state death rows are in California, Florida and Texas. Of the 43 executions that occurred in 2012, 15 (the most out of the other 9 states that executed prisoners) were carried out in Texas. Of the 39 executions that took place in 2013, 16 were carried out in Texas, again the most of any state. One can locate the death row of most states by finding the state’s government websites.

A 2008 comparison of basic conditions is available from the Death Penalty Information Center. A review of this comparison illustrates that in some states, prisoners are allowed group recreation; in most states inmates have televisions (although a review of government produced fact-sheets, like the one for Florida, reveals that in reality inmates may only have access to closed circuit church service programming and possibly broadcast television). In most states the isolation regime is extreme, only a few states permit education or vocational training; contact with family or an attorney is sometimes limited. Cell doors are often cage-door rather than solid-door. Some states make available virtual tours and fact sheets about death row.

In some states (such as Texas, where prisons have been deemed “the harshest death row conditions in the country” by one media report), the regime of isolation is complete and inmates are confined to their cells alone for 22 to 24 hours a day. Inmates are denied television, access to family or attorneys, group activities, and educational or vocational training. Inmates, including those who eventually are exonerated, may be subjected to these inhuman and debilitating conditions for a decade or more. Many exonerated death row prisoners experience complications physically and emotionally following their release due to the living conditions inside prison.

The conditions on two state death rows are worth discussing in more detail—Texas and California, which have two of the largest number of prisoners under sentence of death.

In Texas, death row inmates are held in solitary confinement in every aspect of their lives—“[t]hey eat alone, exercise alone and worship alone. Communication between prisoners on death row– accomplished by yelling between cells – is extremely difficult.” Physical contact is not permitted. Even in the final hours before execution, a prisoner is permitted no physical contact with family members or loved ones. Prisoners spend 22 hours a day in their cells, and are allowed two hours of exercise in small indoor or outdoor cages. Prisoners are not permitted educational or occupational training. These conditions have been determined to have a serious negative effect on mental health. “Mental health experts have repeatedly observed that prolonged confinement without sensory stimulation or human contact exacerbates pre-existing psychological disorders and can precipitate mental illness in otherwise healthy individuals.” One death row inmate in Texas suffered from schizophrenia and, by the time he was executed, his condition had deteriorated to the point that he was psychotic and eating his own feces.

In California, San Quentin (where the nearly 700 men on death row were housed as of March 2010) has been described as “so old, antiquated, dirty, poorly staffed, poorly maintained, with inadequate medical space and equipment and over-crowded that . . . it is dangerous to house people there with certain medical conditions..” Another report describes conditions as “filthy” and “unsanitary,” and “[s]everal inmates were symptomatically psychotic on sight; inmates complained of harassment by other inmates and staff and being compelled to make choices between going to health and mental health appointments, visits or yard.” Death row prisoners with major mental illnesses were denied therapeutic counseling. Most prisoners are confined for 19 hours a day in single cells, and some prisoners are held 24 hours a day in cells with only a food port to the outside world. “These high security prisoners are not allowed contact visits with anyone, including attorneys, and are not permitted to use the phones.” On average, inmates spend more than 17 years under these conditions.

A report issued by the International Federation for Human Rights (FIDH) and the Center for Constitutional Rights exposed the poor death row conditions in California and Louisiana. Some housing units in San Quentin State Prison in California were reportedly very noisy as only tiered walkways separated over 250 cells stacked along each wall. For about 90 percent of the death row population, no communal space besides the recreation yard was accessible. Death row inmates who were held in solitary confinement were only entitled to nine hours per week outside of their cells, despite the operating procedures that allow for four hours per day, three days per week of yard time. Yard time is often shortened or delayed, and not offered to some inmates for weeks or months. At San Quentin, prisoners classified as Grade B are subject to especially restrictive conditions. They cannot make or receive phone calls, including phone calls to their attorneys. Grade A prisoners are entitled to two 15-minute calls per week, but the lines are monitored and a one-minute phone call costs $2.50. Minimal communication with family members is permitted for Grade B prisoners. Visitation takes place via telephone in a plexi-glass booth and lasts for one hour. When an inmate first arrives on death row, he is placed in solitary confinement that may last from a few weeks to six months. Those held in solitary confinement cannot participate in communal meals or interact with each other outside of yard time. Officers can arbitrarily and indefinitely place a prisoner in solitary confinement for “serious rule violation[s].” The lack of social interaction and fear of execution often cause mental health issues or worsen existing mental health issues. However, mental health treatment at San Quentin is inadequate. Prisoners are even discouraged from seeking medical and psychiatric help due to a strip search that is required for each visit. They complained that guards are present during medical visits, deterring them from speaking openly to the medical staff.

FIDH and CCR investigated the Louisiana State Penitentiary, in which all male death row inmates in Louisiana are held. The prison, also known as “Angola,” keeps prisoners in their cells alone for at least 23 hours per day. Mentally ill prisoners are clustered together in a tier, where prisoners are often disruptive and throw feces. The outdoor area, where inmates spend one hour of out-of-cell time each day, does not offer any recreational activities or equipment. Some prisoners choose to stay in their cells all day due to their mental state, and at least one prisoner has reportedly chosen not to exit for years. The Louisiana Attorney General argued that prisoners were kept inside for 23 hours a day as a “protective restriction” and were provided with televisions, radios, and reading and writing materials. Yet the Istanbul Statement on the Use and Effects of Solitary Confinement categorized death conditions at Angola as “solitary confinement,” as “the available stimuli and the occasional social contacts are seldom freely chosen, are generally monotonous, and are often not empathetic.” At Angola, the heat index was found to have reached over 11 degrees Fahrenheit in August. An exoneree testified that some prisoners had to “throw water from the toilet onto the floor to cool off” and then “sleep on the floor to stay cool.” Furthermore, death row inmates at Angola are deprived of any rehabilitative benefits like work programs or training. A new policy prevents prisoners from creating art, including “stick figure[s],” even within their cells. Death row inmates at Angola are also allowed minimal contact with family and attorneys. Calls are expensive and visitations get cancelled with short notice. Meetings with attorneys take place through a glass pane and a phone. The report further indicated that many doctors in Louisiana’s prisons have records of infractions or criminal convictions. The hospital at Angola is unhygienic, and death row prisoners are required to be kept isolated while seeking medical care. There is no mental health hospital for mentally incompetent death row inmates. Even prisoners who did not have any mental illnesses at the time of their death sentence often develop mental health issues as a result of poor death row conditions.

Research by the newspaper The Advocate found that many southern states do not provide adequate air conditioning for those on death row. A suit was filed on behalf of three death row inmates held at the Louisiana State Penitentiary at Angola for triple-digit heat indexes in 2011 and 2012. Even though Angola Warden Burl Cain claimed that the inmates had manipulated the thermometers, an independent, court-ordered review revealed that heat indexes were as high as 110 degrees in July and August 2013. The 5th U.S. Circuit Court of Appeals ruled on July 30, 2012 that this could violate the Eighth Amendment of the U.S. Constitution – which prohibits cruel and unusual punishment. Death row inmates in Texas and Mississippi also allegedly experienced extreme temperatures. Texas’s death row facilities had no limitation on the heat index to which inmates could be subjected or a temperature log. The relatives of three deceased inmates filed a suit in July 2013, claiming that the deaths were heat-related. In Mississippi, death row inmates cannot be held where a heat index is higher than 85 degrees. However, there are no temperature logs to record the heat index and fans are used to keep the index down. The Advocate reported that death row prisons in Alabama and Florida also lacked air conditioning.

In December 2013, a federal judge ruled that the high heat levels on death row at Angola amounted to cruel and unusual punishment, violating the Eighth Amendment. He ordered the defendants (Department of Public Safety and Corrections and its head James Le Blanc, Angola Warden Burl Cain and Assistant Warden Angelia Norwood) to draft an action plan to “reduce and maintain the heat index in the Angola death row tiers at or below 88 degrees.” He also ordered them to monitor and report heat levels every two hours, and to give 24-hour access to cold water and cool showers to inmates who are especially at risk.

In 2008, an ACLU investigation revealed “grossly inadequate” condition on federal death row in Terre Haute, Indiana. The organization found that the then 50 prisoners on death row were denied access to basic medical care, even in medical emergencies, and were subjected to incessant noise causing sleep deprivation and physical and psychological harm.

Death row inmates will typically spend a decade awaiting execution, while others are held well over 20 years before being put to death. The “death row phenomenon,” where inmates experience prolonged isolation and uncertainty about an exact date when they will be executed, can lead many to thoughts of suicide, delusions and insanity. Because of the conditions that many death row inmates experience, some critics question whether lengthy waiting periods constitute an additional punishment atop the death penalty that convicted persons receive. Others have called lengthy terms on death row “as psychologically damaging as torture.” The United States Supreme Court, however, has repeatedly rejected such arguments over the dissents of Justice Breyer and former Justice Stevens.

Yes. As of June 9, 2015, there were 139 foreign nationals held under sentence of death in the United States.

California, Florida and Texas incarcerate almost all of the foreign nationals held on death row, and nationals of Mexico make up the largest portion (50) of the 139 foreign nationals held in the U.S. as a whole. Other nationalities including Cubans (9), Jamaicans (3), El Salvadorians (8), Columbians (3), Hondurans (6), Bahamians (3), Cambodians (5), Vietnamese (9) and Iranians (2) together do not equal that number. Death row represents a total of 36 nationalities.

A list is available online through the Death Penalty Information Center at http://www.deathpenaltyinfo.org/foreign-nationals-and-death-penalty-us#Reported-DROW.

As of October 1, 2014, there were 57 women under sentence of death in the United States.

From January 2008 to July 2015, 4 executed prisoners were women.

-Teresa Lewis, a white female, was executed on September 23, 2010 in Virginia. She was convicted of persuading two men to kill her husband and stepson in order to collect insurance money.

-Kimberly McCarthy, a black female, was executed on June 26, 2013 in Texas. She was convicted of stabbing a 70-year-old white female to death, after entering the victim’s residence with the intent of robbery.

-Suzanne Basso, a white female, was executed on February 5, 2014 in Texas. She was convicted of kidnapping her intellectually deficient 59-year-old boyfriend with five other co-defendants and beating him to death in order to collect proceeds and inherit other assets.

-Lisa Coleman, a black woman, was executed on September 17, 2014 in Texas. She was convicted of torturing and starving to death the 9-year-old son of her girlfriend.

(This question was last updated on August 9, 2015.).

No.

For the past several decades, racial bias in capital sentencing in the U.S. has been a serious concern. In fact, statistics showing that black defendants accused of killing white victims have a much greater probability of being convicted and sentenced to death were the subject of a challenge to the death penalty in McCleskey v. Kemp (1987). The Court declined to conclude that evidence of sentencing bias is evidence of intentional discrimination in the application of the death penalty. The Court expressed concern that any other decision could have a serious impact on the U.S. criminal justice system, prompting the dissent to chide the majority for rendering an unprincipled decision based on a “fear of too much justice.”

Subsequently, states and private individuals have studied this topic, coming to similar conclusions. For instance, a commission in Maryland (1993) concluded that there was no evidence of intentional discrimination, but “racial disparities in [the implementation of the death penalty] remain a matter of legitimate concern.” A later study (2010) commented extensively on racial and geographic bias in capital prosecutions in Maryland, observing in particular that capital charges were more likely to “stick” (continue to be pursued) against black defendants. Maryland abolished the death penalty in 2013.

The Death Penalty Information Center makes available a number of studies on the topic of racial bias in sentencing; predominantly, racial bias is shown by the fact that the death penalty and executions are disproportionately pronounced and carried out on those who have killed white victims. As of February 13, 2014, there were 1,767 non-white (1,300 of whom were black) as opposed to 1,341 white convicts on death row. Executions have also been grossly out of proportion to representation in the population. In Texas, while African-Americans make up 12% of the state’s overall population, they make up almost 40.7% of the state’s death row inmate population. Hispanic people make up 28.7% of the death row inmate population, and white people comprise 29.1%.

North Carolina passed the Racial Justice Act in 2009, allowing statistical evidence to prove racial disparity in sentencing. The April 2012 ruling in North Carolina v. Marcus Robinson was the first under the Racial Justice Act. In its judgment, the court found “that Robinson has established that race was a significant factor in decisions of prosecutors to exercise peremptory strikes...from 1990 to 2010.” His death sentence was vacated and replaced with life imprisonment without parole. However, Governor Pat McCrory repealed the Racial Justice Act in 2013, on the grounds that it only created a judicial loophole for those on death row.

It is unclear how the increasingly widespread recognition that bias in sentencing does occur will affect the relevance of McCleskey v. Kemp.

According to ThinkProgress, race is a significant factor in determining the length of a sentence and the application of the death penalty. U.S. Sentencing Commission found that black men receive sentences that are 20 percent longer than white men who committed similar crimes. Another study revealed that the majority of executions for interracial murders since 1976 have involved a black defendant and a white victim. Although only six percent of murders in Alabama involve black defendants and white victims, 60 percent of black death row inmates had been convicted of killing a white person. In Colorado, where four percent of the population is black, every death row inmate was found to be black. In Louisiana, defendants whose victim was white were 97 percent more likely to receive a death sentence than defendants whose victim was black.

As a final issue, foreigners (who often are minorities) may be at risk of unfairness in prosecution and sentencing for capital offenses. States such as Texas have not respected defendants’ consular rights under Article 36 of the Vienna Convention on Consular Relations, undermining foreign defendants’ access to individuals and information that can assist them in preparing a defense or offering factors in mitigation during sentencing. This is a serious flaw, given that the Supreme Court has repeatedly held that individuals must be permitted to present a wide range of mitigating evidence during sentencing. In Avena and Other Mexican Nationals, the International Court of Justice held that the United States must provide judicial review and reconsideration to 51 Mexican nationals on death row whose consular rights had been violated. President George W. Bush ordered each state to adhere to the Avena decision, but Texas successfully argued before the U.S. Supreme Court in 2008 that the presidential order was not binding and that the Avena judgment was not self-executing in the absence of Congressional legislation. . Congress has failed to enact legislation to implement the Avena judgment, allowing Texas to execute three of the 51 Mexican nationals referenced in Avena, including Edgar Arias Tamayo. Tamayo was executed without any judicial review of the violation of his consular rights. Tamayo’s case sparked controversy as his lawyers claimed that Tamayo was mentally ill and brain damaged, with an IQ of 67. The U.S. Secretary of State John Kerry also urged Texas to observe international law and provide the review required by the Avena judgment, but the execution was eventually carried out in January 2014.

Recent years have seen diminished numbers of executions and death sentences, with outright abolition in some states. Also, there has been some reduction in the scope of the death penalty.

After the death penalty was reinstated in 1976, executions rose steadily until 1999, when they hit the high water mark with 98 executions in a single year. Since 1999, the rate of executions has fallen steadily. In 2009, 52 individuals were executed. In 2010, 46 individuals were executed. In 2011, 43 individuals were executed. In 2012, 43 individuals were executed. In 2013, 39 individuals were executed. As of February 13, 8 individuals had been executed during 2014, with 21 more executions scheduled for the rest of the year.

The imposition of death sentences by courts and juries followed a similar pattern over the first decade in the new millennium, peaking at 224 in 2000 and receding to 109 in 2010. In 2011, 80 death sentences were handed down. In 2012, 77 death sentences were handed down.

Over the past few years, New Jersey, New Mexico, Illinois, Connecticut, Maryland and Nebraska have abolished the death penalty. In 2007, New York’s Court of Appeals struck down the state’s death penalty because of an unconstitutional sentencing procedure, and the legislature has not seen fit to pass a new law allowing capital punishment. New Mexico voted to abolish the death penalty in March 2009, leaving two people on death row. Illinois abolished the death penalty in 2011 after a lengthy moratorium period in which the state determined it was not possible to apply the death penalty fairly and accurately. In April 2012, the state of Connecticut abolished the death penalty prospectively, meaning that the law will prevent the imposition of future death sentences, but will not affect the sentences of the 11 people currently on death row. Maryland abolished the death penalty in May 2013, but left five people on death row as the repeal was not retroactive. Nebraska lawmakers abolished the death penalty in May 2015, narrowly overriding the governor’s veto. The governor of Oregon declared a formal moratorium on executions on November 22, 2011 to last throughout his term, which ends in January 2015, pending a debate on the issue. The last execution to take place was in 1997. In February 2014, Governor Jay Inslee of the state of Washington announced a moratorium on executions while he is in office. The three reasons he cited for his decision were the unequal application of capital punishment, the expense of a capital prosecution, and the lack of evidence of the death penalty’s deterrent effect. Inslee did not commute the sentences of the nine men on Washington’s death row, but indicated that he will support a bill to abolish the death penalty if offered. Legislators in Alabama, Colorado, Kentucky and New Hampshire have proposed bills to abolish or reform the death penalty in 2013.

In 2008, the Supreme Court restricted the application of the death penalty for offenses against the person to those that result in death. Even prior to the Supreme Court’s decision in Kennedy, however, very few states had ever imposed death sentences for non-homicide offenses. The Court also officially excluded mentally retarded persons in 2002 and juveniles in 2005 from the death penalty.

The federal death penalty expanded from 1988-1994, in that it was authorized for drug trafficking in large amounts, and that procedures were established for applying the death penalty for treason, espionage, and a variety of offenses resulting in death. The federal government has carried out three executions for lethal offenses since the year 2000. Two executions took place in 2001 and one in 2003.

Specific legal or policy challenges to the death penalty in some states have put its application on hold. For instance, in North Carolina, where 28 people have been executed since 2000, issues including racial bias and a ban imposed by the Medical Board on physician participation in executions (now overruled) have halted executions since 2007. A 2003 study in Maryland showed that racial and geographical bias in sentencing was a serious problem, and that the nature of a murder did not account for the sentence ultimately pursued. In May 2013, Maryland became the eighteenth state to abolish the death penalty.

Executions in a number of other states have faced legal and practical challenges regarding the use of lethal injection. Retentionist states have been experiencing shortages in lethal drugs used to execute prisoners, particularly the once commonly used drug thiopental, due to European manufacturers’ refusal to export them to the United States for this purpose. Other foreign and domestic drug companies have also recently refused to supply products to prisons that execute on the grounds that they were intended to save lives, not kill people. The dearth of supply caused Ohio to switch from sodium thiopental to pentobarbital in 2011. Ohio officially used up its remaining stock of pentobarbital after the execution of Harry Mitts Jr. on September 25, 2013, turning to an untested combination drug (midazolam and hydromorphone) to execute Dennis McGuire January 16, 2014. The prisoner took nearly 25 minutes to die after making “loud snorting noises” and displaying “irregular breathing and gasping.” Amid controversy over the execution of Dennis McGuire, Governor John Kasich stayed an execution scheduled for March 19 until November 19. Georgia switched from conventionally manufactured pentobarbital to a compounding pharmacy for pentobarbital. Texas decided to use a compounding pharmacy for executions after its supply of pentobarbital expired in September 2013 and several companies declined to provide the drug. Missouri had planned to use the anesthesia drug propofol for the first time in late October 2013, despite protests from the Missouri Society of Anesthesiologists and the U.S. Food and Drug Administration which feared a national drug shortage as a result of European sanctions. There was so much controversy surrounding what was to have been the first execution in the U.S. to use propofol that Governor Jay Nixon ordered a stay to come up with another lethal drug. Missouri soon announced that it had switched to a form of pentobarbital made by a compounding pharmacy, without disclosing information about its source or manufacturer. Since then, Missouri has carried out three executions using pentobarbital despite criticisms about the secrecy surrounding the compounding pharmacies.

Some states’ decision to switch to compounding pharmacies has spurred a new debate regarding whether prisoners have the right to know which lethal chemical will be used in their execution. The use of compounding pharmacies, which mix drugs under custom orders, has raised safety concerns because they are not subject to regulation by the Food and Drug Administration. A meningitis outbreak that killed 64 people in 2012 had been traced to steroid injections manufactured at a compounding pharmacy in Massachusetts. Death penalty opponents also fear that executions using compounding pharmacies will cause pain for the prisoners, which has led to numerous legal challenges aimed at forestalling executions. In March 2013, Georgia passed the Lethal Injection Secrecy Act that classifies the identity of the manufacturer of lethal drugs as a “state secret,” denying public the right to the information. Lawyers for death row inmate Warren Hill argued that the law violates Hill’s constitutional rights under federal and state law by deliberately blocking judicial review of the means by which lethal drugs were manufactured and obtained. Hill’s execution was temporarily stayed, and will remain on hold while the Georgia Supreme Court hears his challenge to the Lethal Injection Secrecy Act. Defense attorneys for two death row inmates executed in Arizona in October 2013 had argued that they were entitled to information about the manufacturer, the National Drug Code, the lot numbers, and the expiration date of the drugs used under the First Amendment. They also claimed that because compounding pharmacies are not subject to federal inspection, they may cause great suffering and thus violate the constitutional protection against “cruel and unusual punishment.” The federal judge in Arizona ordered state officials to disclose to the lawyers of the death row inmates basic information about the compounded drug. It was revealed that the stock of pentobarbital was to expire at the end of November, and Arizona executed Edward Schad and Robert Jones within two weeks of each other in October 2013.

Although it is unclear how many offenders have been affected by the narrowing of the death penalty over the past decade, the rate of executions has definitely decreased. A 2009 report points out that since 1973, the 138 exonerated individuals freed from death row spent an average of about 10 years between sentencing and release. As of February 14, 2014, 143 people have been exonerated from death row since 1973.

Wrongful convictions have been a severe problem in some states, such as in Illinois. In Texas, two cases of wrongful convictions have garnered much media attention recently. In May 2012, Columbia University Human Rights Law Review published Los Tocayos Carlos: An Anatomy of a Wrongful Execution about the case of Carlos DeLuna, a man who may have been wrongly convicted of the 1983 murder of a convenience store clerk and executed in 1989. In October 2012, the family of Cameron Todd Willingham filed a petition for the posthumous pardon on his behalf. It is believed that faulty evidence and flawed science led to his conviction and execution in 2004 for the murder of his three daughters in 1991.

On September 1, 2013, Texas implemented laws aimed at preventing wrongful convictions. SB 1292 requires DNA testing of all biological evidence capital cases. District attorneys protested that the new regulation would be too costly, cause delays, and only create a loophole for defendants facing the death penalty. They also claimed that Texas does not define what constitutes biological evidence. Another law, SB 344, facilitates the appeals process for inmates who were convicted based on “bad science” such as dog scent line-ups and some fingerprint and arson forensics. Jeff Blackburn, founder of the Innocence Project of Texas, predicted that SB 344 will exonerate several hundred people over the next few years.

Although support for the death penalty in the United States remains high according to certain polls, many Americans from a wide range of backgrounds—police officers, administrators, former executioners and prison wardens, the family members of victims—have come to see the death penalty as a policy that drains money and time that should be devoted to crime prevention, and as a punishment that may be pursued not because the accused is the “worst of the worst” but rather because of his race, the race of the victim, or the jurisdiction in which he is accused of committing an offense. In public opinion polls, Americans increasingly favor alternatives to the death penalty, particularly when life imprisonment and compensation for victims’ families is on the table, and influential religious figures have spoken out against the death penalty. Gallup polls show that Americans hold diverse and sometimes inconsistent opinions about the death penalty, although this may have much to do with the questions asked. While 59% of Americans in 2009 believed that individuals might have been wrongfully executed in the past 5 years, 40% of respondents in a 2011 survey said that the death penalty is not imposed often enough. In 2010, 58% believed the death penalty was imposed fairly. In 2011, 52% believed the death penalty was imposed fairly.

In surveys conducted in 2011, 61% of respondents “supported” the death penalty, and in 2012, 58% said it was “morally acceptable.” However, in 2010, 46% of respondents concluded that life imprisonment without parole is preferable to using the death penalty (only 49% supported the use of the death penalty when offered the alternative of life imprisonment without parole). It is worth considering whether many American respondents entertain the idea that the death penalty is morally acceptable in theory, but when asked more practical questions, many hold a much different opinion about desirable practice. A Gallup poll conducted in 2013 showed that 60% of the respondents favored the death penalty for convicted murders, the lowest level of support since November 1972. Support for the death penalty has been gradually declining since its peak at 80% in 1994.

In November 2012, the 52.7% of voters in California voted against Proposition 34, a bid to repeal the death penalty in the state. The proposition, if approved, would have applied retroactively to those currently on death row. The last execution to take place was in 2006. No executions were scheduled in 2014. Polls in the state indicate that citizens are beginning to become more aware of the costs associated with the death penalty in California. Since 1977, capital punishment has cost the state almost $4 billion. In May 2013, the 1st District Court of Appeal unanimously ruled that state prison officials failed to comply with administrative rules in updating its lethal injection procedures, thereby putting California’s death penalty on hold. The prison department provided no public explanation for why it chose to continue with a three-drug lethal injection, a method that raised concerns for potentially causing cruel and painful death, instead of a single-drug lethal injection.

Other states, including North Carolina, Arkansas, Kentucky, and Washington currently are not carrying out executions. North Carolina has not executed anyone since 2006, pending court decisions on lethal injection procedures and appeals following changes to the Racial Justice Act of 2009 in 2012, which allowed death sentences to be commuted to life sentences without parole if race proved to be significant factor in applying the death penalty. However, Governor Pat McCrory repealed the law in 2013, claiming that it only created a judicial loophole for those on death row. Arkansas executions were halted because of the state’s Supreme Court ruling that determined the 2009 Method of Executions Act unconstitutional in June 2012. No executions have taken place in the state since 2005. Kentucky is moving closer to resuming executions as new rules for the state’s lethal injection procedure are brought before legislators.

In 2012, nine states (Texas, Arizona, Oklahoma, Mississippi, Ohio, Florida, South Dakota, Delaware, and Idaho) carried out executions, the fewest total number of states to do so in a single year in two decades. In 2013, nine states (Texas, Florida, Oklahoma, Ohio, Arizona, Missouri, Alabama, Georgia, and Virginia) carried out a total of 39 executions, marking the second time in the last 19 years the number was below 40. The number of new death sentences was near its lowest level since the death penalty was reinstated in 1976.

A 2013 report by the Death Penalty Information Center revealed that the death penalty is a local phenomenon in the United States. 85% of the counties have not carried out any executions in over 45 years, and only 2% of the counties in the U.S. accounted for over half of the executions carried out since 1976. Although Texas has been responsible for 38% of the nation’s executions since 1976, just four counties (Harris, Dallas, Tarrant, and Bexar) have carried out almost 50% of the executions in Texas. Similarly, in California, which holds the largest death row population in the country, only three counties (Los Angeles, Riverside, and Orange) accounted for over half of the state’s death row inmates.

After Maryland became the eighteenth state to abolish the death penalty in May 2013, a total of six states had repealed capital punishment in six years. Several states are considering following the trend toward abolition. Senator Hank Sanders introduced a total of five bills for a ban on capital punishment and a moratorium on executions in Alabama, arguing that the death penalty is “not only unproductive but counter-productive.” State Representative Renny Cushing of New Hampshire sponsored a bill to repeal the death penalty, which was endorsed by the House Committee on Criminal Justice in February 2014. Governor Maggie Hassan has stated that she would sign the bill if it passes the Republican-controlled Senate. The bill, if signed, will not be retroactive and will not affect New Hampshire’s only death row inmate, Michael Addison.

(This question was partially updated on August 9, 2015.).

Advocates for Human Rights
Ms. Rosalyn Park
Research Director
330 Second Avenue South, Suite 800
55401 Minneapolis, MN, USA
Tel: +1 612 746 4676
Fax: +1 612 341 2971
rpark@advrights.org
www.theadvocatesforhumanrights.org

American Friends Service Committee
Mr. King Downing
Assistant General Secretary for Justice & Human Rights
1501 Cherry Street
19101 Philadelphia, PA, USA
Fax: +1 215 241 71 19
kdowning@afsc.org
www.afsc.org

California People of Faith working against the death penalty
Mr. Terence Maccaffrey
President
850 Webster Street, Apt 1023
94301 Palo Alto, CA, USA
Tel: +1 213 235 8305
Fax: +1 213 382 4563
cpf@la-archdiocese.org
www.californiapeopleoffaith.org

Campaign to end Death Penalty
Mrs. Patricia Foley
Treasurer
PO Box 25730
60625 Chicago, IL, USA
Tel: +1 773 955 48 41
Fax: +1 773 955 48 41
patconnect@gmail.com
http://www.nodeathpenalty.org/

Campaign to end Death Penalty
Mrs. Lily Hughes
National Director
1311 East 13th St.
78702 Austin, TX, USA
Tel: +1 512 417 2241
Fax: +1 773 955 48 41
lily@nodeathpenalty.org

Center for Constitutional Rights
Mrs. Katherine Gallagher
Senior Staff Attorney
666 Broadway, 7th Floor
10012 New York, NY USA
Tel: +1 212 614 6455
Fax: +1 212 614 6499
kgallagher@ccrjustice.org
www.ccrjustice.org/

Center for Global Nonkilling
Mr. Thomas Fee
Senior Advisor
610, Kaimalino Place
96734 Kailua, USA
Tel: +1 808 225 16 09
tfee@nonkilling.org
www.nonkilling.org

Citizens United for Rehabilitation of Errants-CURE
Mrs. Claudia Whitman
National Death Row Assisance Network
National CURE, 6 Tolman Road
04108 Peaks Island, ME, USA
Tel: +1 888 255 61 96
Fax: +1 202 318 91 64
claudia@ndran.org
www.internationalcure.org

Citizens United for Rehabilitation of Errants-CURE
Mr. Charles Sullivan
Executive Director
National CURE, 6 Tolman Road
04108 Peaks Island, ME, USA
cure@curenational.org
www.internationalcure.org

Death Penalty Focus
Mrs. Elizabeth Zitrin
5 Third Street, Suite 725
94103 San Francisco, CA, USA
Tel: +1 415 243 01 43
Fax: +1 415 824 59 74
ezitrin@deathpenalty.org
www.deathpenalty.org

Equal Justice USA
Mr. Shari Silberstein
Executive Director
20 Jay Street #808
11201 Brooklyn, NY, USA
Tel: +1 718 801 89 40
Fax: +1 718 801 89 47
sharis@ejusa.org
www.ejusa.org

Equal Justice USA
Mrs. Cherrell Brown
Organizing Coordinator
21 Jay Street #808
11201 Brooklyn, NY, USA
.

Death Penalty Information Center, http://www.deathpenaltyinfo.org/.

NAACP Legal Defense Fund, http://naacpldf.org/.

ABA Death Penalty Representation Project, http://www.americanbar.org/advocacy/other_aba_initiatives/death_penalty_representation.html.

ABA Death Penalty Moratorium Project, http://www.americanbar.org/groups/individual_rights/projects_awards/death_penalty_moratorium_implementation_project/resources/why_a_moratorium.html.

Southern Center for Human Rights, http://www.schr.org/.

ACLU Death Penalty Project, http://www.aclu.org/capital-punishment.

Reprieve
PO Box 72054
London EC3P 3BZ
United Kingdom
Tel 020 7553 8140
Fax 020 7553 8189
info@reprieve.org.uk
http://www.reprieve.org.uk.

Cornell’s website is probably the most comprehensive free compilation of online U.S. jurisprudence that we have ever encountered, http://www.law.cornell.edu, and interested individuals will probably end up using that resource. The World Legal Information Institute, http://www.worldlii.org/us, may also be useful. The drawback of these sources is that searching them using general search terms might be unwieldy or impossible. To determine which cases you are looking for, we suggest starting with the Death Penalty Information Center, http://www.deathpenaltyinfo.org/home. There are also a number of private, searchable databases available by subscription, such as Westlaw and LexisNexis.

Almost all U.S. federal and state jurisdictions post at least recent opinions online.

ABA Standing Committee on Legal Aid and Indigent Defendants, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice, Dec. 2004.

Death Penalty Information Center, The Death Penalty in 2013: Year End Report, Dec. 19, 2013.

Death Penalty Information Center, The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases At Enormous Costs to All, Oct. 2, 2013.

Equal Justice Initiative, The Death Penalty in Alabama: Judge Override, Jul. 2011.

FIDH/CCR, Discrimination, Torture, and Execution: A Human Rights Analysis of the Death Penalty in California and Louisiana, Oct. 2013.

James S. Liebman, Los Tocayos Carlos, Columbia Human Rights Law Review, Spring 2012, http://www3.law.columbia.edu/hrlr/ltc/print-version.html, May 15, 2012.

NAACP Legal Defense Fund, Death Row U.S.A. Reports, http://www.naacpldf.org/death-row-usa, updated quarterly with the last published on April 1, 2013.

National Research Council, Deterrence and the Death Penalty, http://www.nap.edu/catalog.php?record_id=13363, 2012.

Texas Coalition to Abolish the Death Penalty, Texas Death Penalty Developments in 2013: The Year in Review, Dec. 17, 2013.

Tracy L. Snell, Capital Punishment, 2011—Statistical Tables, U.S. Dept. of Justice, Bureau of Justice Statistics, NCJ 242185, Jul. 2013.

The National Research Council recently published a report, Deterrence and the Death Penalty, which concludes that the last 35 years of studies that indicate capital punishment produces a deterrent effect on homicide rates in the U.S. are “fundamentally flawed.” As such, they should not be relied upon in policy judgments regarding the death penalty in the U.S.

Governor Togiola Tulafon of American Samoa, a territory of the United States, expressed his desire to see the death penalty officially repealed from the penal code. The governor reportedly told the territory’s Attorney General not to pursue the death penalty in a recent case. According to a news release by the American Samoa Government website, Governor Togiola said, “My decision is based on two reasons: one, we are a Christian country and we should not be a death penalty jurisdiction. It is not right for us to be seeking to kill people as a penalty for any law violation. Secondly, the law provides only for the death penalty, but it does not provide a method of execution. It makes no sense for it to even exist in the statute.”