Living in Capital Punishment Limbo

Posted in: Criminal Law

On April 5, the Arizona Supreme Court issued an execution warrant for Clarence Dixon, one of 112 people currently on that state’s death row. Dixon was sentenced in 2008 for murdering an Arizona State University student.

He is now blind and has such severe mental illness that he was once judged legally insane. Nevertheless, his execution is scheduled for May 11. If it happens, it would be the first Arizona execution since 2014 when the state botched the execution of Joseph Wood.

Even as it contemplates the resumption of executions, Arizona’s long execution hiatus is a reminder of what law professor Eric Berger calls the “stalemate” in America’s death penalty. This stalemate is reflected in the fact that while the law in 27 states currently authorizes death as a punishment, many of these states have not carried out an execution in the last five or ten years.

Even in places like Texas, which once frequently carried out executions, they are now comparatively rare events.

Across the country, a death sentence does not actually mean that the person receiving it will be put to death. For those who are permanently kept on death row, this means living in limbo, with the continuing threat that death might be imposed if their state follows Arizona and goes back into the killing business.

Living in capital punishment limbo is part of that penalty’s horror and cruelty. It is a kind of psychological torture that accompanies any state-imposed killing but is compounded in the nether world of endless confinement on death row.

As Joseph Ross, who worked as a volunteer chaplain on Indiana’s death row, notes, “A death row prisoner lives with the knowledge that he or she…(may) be killed in a calculated, planned manner…. This knowledge begins the process of unraveling a life. To be told, at every turn, in every detail, that one ‘does not deserve to live,’ is to be destroyed slowly, bit by bit, day in and day out.”

How widespread is this destructive experience of waiting? The Death Penalty Information Center (DPIC) reports that 13 nominally death penalty states have not carried out an execution in more than a decade. In these places, the slow destruction of life that Ross describes seems to be a permanent condition.

The states on the DPIC list are California, Indiana, Kansas, Kentucky, Louisiana, Montana, Nevada, North Carolina, Oregon, Pennsylvania, South Carolina, Utah, and Wyoming.

This is a surprisingly heterogeneous group.

Seven are reliably red states with long-time Republican-dominated state legislatures and substantial public support for capital punishment. Others, like California and Oregon, are Democratic strongholds.

Some, like California, North Carolina, and Pennsylvania, have substantial death row populations. In fact, as of January 1 of this year, California had 632 people on its death row, by far the largest number in the country. North Carolina had the fifth largest death row (139) and Pennsylvania the seventh (129).

California’s oldest death row prisoner, David Carpenter, has been there since 1984 and is now 92 years old. But he is not its longest-serving inmate. Someone else has been there for 43 years. One newspaper correctly observed that California’s death row is really just “a home for seniors.”

Other states where there have been no executions in more than a decade have few people in execution limbo. For example, Montana has two people awaiting execution and has not imposed a death sentence in the 21st century. The last time anyone in Montana received such a punishment was in 1996.

Wyoming now has no one on death row after its only occupant, Dale Wayne Eaton, was resentenced to life in prison last month. Its last execution was 30 years ago in 1992.

Kansas hasn’t put anyone to death in almost 50 years. Its last executions occurred in 1965 when the state carried out a double hanging.

Some states, like South Carolina, seem inclined to resume executions and have recently added new methods of execution to their roster. Others, including California and Pennsylvania whose governors have imposed official execution moratoria, show no sign of following suit.

One of the most important reasons that states exist in a death penalty nether world is that the process of moving from death sentences to appeals is a labyrinth of obstacles.

Any that state tries to navigate that labyrinth must, as University of Michigan Law Professor Samuel Gross explains, “overcome two types of resistance: internally, the inertia, the doubts, the unease and the ambivalence of some or all of the officials who handle the cases; and externally, the legal moves of the defense attorneys…. Typically, each execution requires a fresh commitment of significant state resources.”

While a lot of attention has been given to what defense lawyers do, the inaction of state officials and their inertia in the face of capital punishment’s high costs and troubling flaws have played a significant if somewhat more hidden role. Every execution requires not just a death sentence but a separate bureaucratic act: someone must sign a death warrant.

Even in active death penalty states, that act is not without its complications. As former Florida Governor Jeb Bush once admitted, “It’s hard for me, as a human being, to sign the death warrant, to be honest with you.”

The result of such justifiable unease is that, as Gross observes, “ most death row inmates will never be executed. There is no plausible way to estimate the likely delay for a defendant who is sentenced to death in…(any single year)… The best description is that he will remain in limbo and his case will remain open indefinitely.”

Our current death penalty stalemate results in part because we have reached the point where, as the late Hugo Adam Bedau said “the average person seems convinced the death penalty is an important legal threat, abstractly desirable as part of society’s permanent bulwark against crime, but that he or she is relatively indifferent to whether a given convict … is ever executed.”

Those who seem destined to spend the rest of their lives on death row are in capital punishment limbo, and the entire country is as well.

The solution is not to speed up executions or to restart a long-dormant death penalty as Arizona is doing in the Dixon case. Long waiting periods are the result of an appropriate reluctance to kill in the state’s name.

This country needs to end capital punishment. While there is reason for optimism that we now are on the road to abolition, it is still not clear when we will reach the end of that road.

In the meantime, we should acknowledge, as Justice Breyer has said, “the suffering inherent in a prolonged wait for execution.” For death row inmates in states where executions have not occurred for 10 years or more, commuting their sentences and permanently removing the threat of execution would be one step toward alleviating that suffering.

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