Add up the 18 states where the death penalty is abolished, the three western states where the governors have placed formal moratoriums on executions, and the four states where lethal injection legal challenges have put a de facto moratorium on executions, and the states are split evenly. There are also seven states that, even without holds in place, haven’t executed anyone in at least five years. Add to that Ohio, Oklahoma, and now Arizona, where botched executions have at least temporarily halted the practice while the states review their procedures, and you’re looking at 70 percent of the states where the death penalty can’t happen, for the moment anyway.
Similarly, law professor David R. Dow, who represents death-row inmates, contends that the “end of the modern death-penalty era” is upon us:
Stephanie Neiman’s death was far worse than [Clayton] Lockett‘s, and [Joseph] Wood might not have suffered as much as his victims, Debbie Dietz and her father, Gene. But that does not alter the fact that the death-penalty regime is built on the myth that we as a society, when we execute someone, are better than he is. But when it takes 45 minutes or two hours to kill a man who helplessly strains against leather straps, no longer can we ignore the inherent violence of a sanction we have convinced ourselves is serene. Once you know how the magic trick works, you can no longer pretend.
But as Rebecca Buckwalter Poza notes in her report from Alabama – “the only state in which judges routinely override jury decisions not to impose the death penalty” – the picture looks very different depending on where you stand:
Today only Alabama judges still override jury recommendations of life in prison and sentence defendants to death instead. In two other states – Florida and Delaware – laws on the books technically still permit judges to adjust jury-recommended sentences. But both states have enacted restrictions that amount to abolishing judicial overrides in practice. None of Delaware’s death row inmates was sentenced by an override, and there have been no such judicial overrides in Florida in the last 15 years.
In contrast, the practice of judicial override in Alabama is so widespread that it accounts for one-fifth of death row prisoners. Thirty such overrides took place in Alabama in the 1980s; there were 44 in the 1990s, and there have been 27 since 2000. The most recent statistics show more than 40 current death row inmates were sentenced by judicial override, contrary to the judgment of the jury.
On the other hand, Josh Marshall observes the actors who are backing away from their role in executions:
[A]s the noose has tightened around the death penalty, both internationally and within the United States, fewer and fewer credentialed experts have been willing to involve themselves with state-mandated executions. Pharmaceutical companies have become more aggressive in making sure their drugs are not used to kill people. (Here’s a good run-down of the way in which Europe has sequentially banned exports of a series of drugs used in US executions – forcing states with the death penalty to keep switching from one drug to the next to evade the export bans, thus inevitably going further and further into unknown territory in terms of how these drugs work in an execution setting with relatively untrained staff.) Medical experts – or really anyone with serious life sciences expertise – just won’t participate anymore. I’m not saying never. But it’s become much more difficult.
Meanwhile, Florida death row chaplain Dale S. Recinella urges people not to overlook the “conditions of confinement”:
They’re extremely primitive. We have 412 men being held in six-foot-by-ten-foot cells with a toilet, a stainless steel shelf that serves as a bunk, and a small property locker for their legal materials and religious books. And that’s it. There’s no air conditioning in the summer when the heat indexes here are astronomical. So the first concern of someone ministering in these conditions is the plight of people in the cells, which is extremely difficult emotionally, physically and mentally. We’ve all heard of inmates who say, “Just give up my appeals and kill me,” and those are folks who don’t have the strength to endure these conditions. …
Especially with all of the botched executions recently, we’ve heard a lot of people defend it by saying, “It’s not as bad as what the criminals did.” Really? Should our standard of moral action be that we’re not as bad as the criminals in our midst?