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The death penalty in the USA: a state of play by Sandrine Ageorges Skinner (2023-2024)

Sandrine Ageorges Skinner

The political climate in the USA has a clear impact on the development of the death penalty in the country. While the figures confirm the downward trend in recent years in the number of death sentences and executions, they reveal that in 2023, for the first time since 1976, there were more executions (23 men and 1 woman) than death sentences (21). This is the 9th consecutive year during which the USA has executed fewer than 30 people. Florida and Texas were responsible for 58% of the executions in 2023. Of the 58 active execution warrants in 2023, 48% were carried out, while the remaining 52% were stayed. The length of time convicts have been on death row has risen sharply, with 54% of them having been on death row for more than 20 years. Six of the twenty-four persons executed in 2023 had been on death row for more than thirty years. 

A significant number of cases of innocence have been widely publicised but have not been overturned or retried. In 2023, three death row prisoners were exonerated and released, making a total of 195 death row prisoners cleared since 1973. The Supreme Court has rejected an alarming number of appeals from death row prisoners, while a number of elected representatives (congressmen and senators) and prosecutors are supporting several cases of innocence in Texas, Oklahoma and Mississippi. Clemency appeals in state courts are being called into question because there are no independent commissions, they are not bearing fruit and their work is not subject to any transparency and/or accountability.

The state of Florida has reinstated the death penalty for child rapists, contravening a 2008 US Supreme Court ruling. The same state has also taken a major step backwards by abolishing the unanimous jury requirement for a death sentence, which now requires only 8 votes in favour instead of 12. These two new laws will undoubtedly lead to an increase in death sentences in 2024.

However, 50% of Americans believe that the death penalty is not sought and/or applied fairly. President Biden has not abolished the federal death penalty as he promised during his 2020 presidential election campaign, his attorney general has instituted a moratorium on federal executions. This same court sought and obtained a death sentence last year.

The state of Arizona suspended executions when Governor Hobbs took office, and Governor Shapiro in Pennsylvania confirmed the moratorium imposed by his predecessor.

Three states have passed legislation to ban the death penalty for the mentally disabled: Arizona, Arkansas and Texas. In the first two states, the bill was rejected. In Texas, the House of Representatives approved the bill, which is currently stuck in the Senate judiciary committee and has not yet been submitted to the Senate for a vote.

Twelve states and Congress have introduced laws to abolish the death penalty, although Ohio and Louisiana have made unsuccessful attempts. The other jurisdictions are studying the issue closely, but have not yet achieved any concrete results at the beginning of 2024. The state of Iowa is trying to reintroduce the death penalty, after having abolished it in 1965, for the murder of police officers, and the state of Tennessee for child rapists. Eastern Virginia also wants to reinstate the death penalty, having abolished it in 1965.

Two worrying issues loom large for 2024.

On the one hand, execution methods are taking a dismaying turn with the execution of Kenneth Smith in Alabama using nitrogen gas, a method that veterinarians reject for the euthanasia of animals and which had never been used on human beings before January 25, 2024, a killing that lasted more than twenty-two minutes. The Supreme Court of the United States did not grant a stay (six votes to three) that would have been justified by the application of the 8th Amendment of the Constitution, which prohibits cruel, inhuman and degrading treatment. Since then, the states of Nebraska and Ohio have been considering adopting this method of execution, and other states appear to be interested in it due to a lack of access to the drugs needed for lethal injection.

On the other hand, political uncertainty reigns over the outcome of the next elections in November 2024, with the likelihood that the Democrats will lose the White House, pointing to a potential comeback by Donald Trump for the Republicans, which would probably lead to a resumption of federal executions. There are currently 2,331 people on death row in the United States.