The death penalty in the US remains in decline during ‘the year of the botched execution,’ analysis finds

By Dakin Andone, CNN

The use and imposition of the death penalty in America saw a continued decline in 2022 as polls showed public support for capital punishment stayed near historic lows, according to a year-end report by the Death Penalty Information Center.

While several factors have contributed to what the non-profit describes as the death penalty’s waning nature, the trend was illustrated perhaps most starkly this week when outgoing Democratic Gov. Kate Brown commuted the death sentences of all 17 inmates on Oregon’s death row, calling capital punishment “dysfunctional and immoral.”

Meanwhile, some of the six states that in 2022 put people to death — along with others that tried to carry out such sentences — ran into trouble, DPIC found, leading the organization to dub it “the year of the botched execution.”

Indeed, five executions and two attempted ones this year — in Alabama, Arizona and Texas — significantly deviated from or illustrated problems with prescribed protocols, the group’s executive director told CNN. Mississippi, Missouri and Oklahoma also executed death row inmates this year.

“As the death penalty declines, the states that want to carry it out are engaging in more and more extreme conduct,” said Robert Dunham, whose group says it’s neither for nor against capital punishment but often is critical of how it’s administered.

“There is an appearance that the states that want to carry out executions are desperate and are willing to do extreme things that most of the country considers unacceptable.”

States also again this year struggled to obtain drugs for lethal injections as drug companies continued to withhold them so they aren’t used to put people to death, the report states, noting examples in places including Idaho and Ohio.

Overall, public support for the death penalty remains similar to recent years, states the report released Friday, citing polling from Gallup that shows 55% of Americans say they are in favor of the death penalty for convicted murderers. That figure has held steady in recent years, per Gallup: 2022 was the sixth consecutive year support for capital punishment was between 54% and 56% — and below the 60% to 80% readings recorded between 1976 and 2016.

Twenty-seven states still have the death penalty, with their officials often saying its use provides justice to victims of capital murder and their relatives. When Oklahoma officials this year scheduled 25 executions through 2024, Attorney General John O’Connor said families of the victims had “waited decades for justice” and called the executions the “next step in the journey that the murderers forced upon them.”

Still, given falloff in its use and public support, Dunham said, “I think the long-term prognosis for capital punishment in the US is that it remains on a downward trajectory.”

Executions and new death sentences remain low

2022 was the eighth consecutive year in which US jurisdictions carried out fewer than 30 executions and imposed fewer than 50 new death sentences, Dunham told CNN, as federal executions remain temporarily halted. That keeps use of the punishment “near historic lows,” he said, even after the Covid-19 pandemic heavily impacted court proceedings in 2020 and 2021.

“We are clearly seeing a durable trend,” he said.

Overall, 18 executions were carried out this year, per the report, the fewest since 1991 (excepting 2020 and 2021). That tally is down 82% from the peak in 1999, when 98 executions were carried out, and brings the five-year average to 18.6 executions per year — the lowest in three decades.

Those executions, too, have been carried out in increasingly limited geographic areas, the report notes. Oklahoma and Texas accounted for more than half this year’s executions, DPIC says, stemming in all from about a dozen county jurisdictions.

As for new death sentences, just 20 have been imposed so far this year — with two more anticipated Friday — DPIC found, fewer than in any modern year before the pandemic. That’s down 93% from the peak in 1996, when courts levied 315 death sentences. The five-year average is 27 new sentences per year, the report says, the lowest in 50 years.

And yet, those sentences were not imposed in what might be thought of as the most aggravated cases, the report notes, like that of the Parkland high school shooter, who got a life sentence after his Florida jury failed to unanimously recommend the death penalty.

Cases like this highlight the disproportional and often arbitrary use of capital punishment and undermine the idea the death penalty is reserved for the “worst of the worst,” the report notes.

Moreover, this year’s relatively unwavering polling on support for the death penalty was striking, Dunham said, given perceptions of increased crime in an election cycle where crime ranked among the top issues for voters and Republican candidates made crime central to their messages and in political ads.

Candidates who touted a general commitment to criminal justice reform were elected as prosecutors in jurisdictions previously responsible for a “disproportionate amount of death sentences and executions,” DPIC’s report says.

Conventional wisdom long had held that support for the death penalty increases when crime rises, Dunham told CNN.

But this year? “The conventional wisdom went out the window,” he said.

Troubled lethal injections highlight states’ challenges

The Death Penalty Information Center this year added seven cases — three in Alabama, three in Arizona and one in Texas — to its list of botched executions, in most cases because of execution teams’ inability to properly set intravenous lines to deliver the lethal drugs.

Many experts use the term “botched” to describe any executions that depart from states’ official protocols, as well as those in which an inmate suffers inordinately or has an adverse or unexpected physical reaction during the procedure.

This was particularly evident in Alabama, beginning with Joe James, whose execution this summer has been heavily scrutinized after The Atlantic reported he likely “suffered a long death,” citing a private autopsy. That autopsy showed officials had cut into James’ skin to find a vein to set an IV line, which is not part of Alabama’s lethal injection protocol, Dr. Joel Zivot, an associate professor of anesthesiology and surgery at Emory University who witnessed the autopsy, told CNN.

James’ execution was followed by two attempted executions — Alan Miller in September and Kenneth Smith in November — that Alabama officials were forced to abort when they were again unable to properly set IV lines before the death warrants expired. Gov. Kay Ivey, a Republican, then called for a moratorium on executions and a review of capital punishment in the state, though she blamed not state officials but “legal tactics and criminals hijacking the system” for the aborted executions.

Stephen Barbee’s execution in Texas also was deemed a botched case by DPIC, which cited a disability that prevented the inmate from extending his arm so the needle with lethal injection drugs could be inserted. The Texas Department of Criminal Justice disputed the characterization, saying media witnesses to the execution also did not describe it as botched.

“Due to Barbee’s disability, TDCJ did take extra time to ensure functional IV (lines),” spokesperson Amanda Hernandez told CNN this week in a statement, adding, “TDCJ followed all appropriate protocols for the execution.” Corrections officials in Alabama and Arizona have not responded to CNN’s requests for comment about the executions DPIC considered botched.

States also dealt in 2022 with challenges to their execution methods as officials have struggled in recent years to get the drugs for lethal injections from companies that don’t want them used to put people to death. As a result, the drugs used in lethal injections and how they are obtained are frequently shrouded in mystery, DPIC has said.

“There were executions that didn’t even happen,” Dunham told CNN, “because of incompetence or misconduct or just plain arrogance by the states.”

In Tennessee, for example, GOP Gov. Bill Lee paused executions and called for an independent review in May after issuing a reprieve to Oscar Smith, saying he learned the required procedures for testing the execution drugs had not been followed.

And in Ohio, Gov. Mike DeWine, also a Republican, issued a series of reprieves this year, citing “ongoing problems involving the willingness of pharmaceutical suppliers to provide drugs” to Ohio corrections officials.

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