Last year saw the lowest number of executions in the US in over 30 years, continuing a trend that indicates support for the death penalty is eroding. An end-of-year report by the Death Penalty Information Centre (DPIC) documented just 11 executions across five states in 2021, the lowest number since 1988, and only seven states that imposed a total of 18 death sentences. Set against a backdrop of soaring homicide rates, the numbers present a picture that can mean only one thing: The death penalty is facing its own inevitable demise.
Despite growing antipathy toward the death penalty, the US is one of 55 countries still retaining capital punishment and sits sixth behind China, Iran, Egypt, Iraq, and Saudi Arabia in the number of executions carried out in 2020.
Public appetite for what the American Civil Liberties Union (ACLU) describes as “an intolerable denial of civil liberties” and “inconsistent with the fundamental values of our democratic system” is on the wane. A 2021 Gallup poll shows that opposition to the death penalty is at a 55-year high at 43%. President Joe Biden himself is on record, pledging to “eliminate the death penalty” at the federal level “because we cannot ensure we get death penalty cases right every time.” Indeed, the DPIC report found that for every eight prisoners executed, one has been wrongfully convicted and sentenced to death. For example, after 26 years on death row in Mississippi, Eddie Lee Howard, Jr., was finally exonerated in January 2021, after it was found that his conviction in 1994 was based on false prosecution testimony. Unfortunately, this is just one case out of several.
The year 2021 may have ended on a positive note for death penalty abolitionists, but it began with the execution of Lisa Montgomery by lethal injection. The 52-year-old was the first woman to be put to death by the US federal government in 67 years. Hers was a tragic tale that did much to highlight the brutal injustice of a system that would execute a woman suffering from severe mental illness, and whose life was characterized by unrelenting and extreme brutality from childhood.
THE TRAGIC STORY OF LISA MONTGOMERY
When putting together a social history of Montgomery’s tragic life as part of her appeal, clinical social worker Janet Vogelsang described her experiences as similar to that of “children sold into sex slavery.” Much of the detail of her abusive past, however, had not been presented at the original trial. In 2007, Montgomery was convicted of the murder of Bobbie Jo Stinnet, who was eight months pregnant at the time. Montgomery strangled the victim then cut open her stomach to remove the fetus, and attempted to pass the newborn baby off as her own.
Vogelsang described Montgomery as being psychotic and disconnected from reality due to the torture she endured from an early age. As a young child, Montgomery was held captive, isolated, raped, beaten, degraded, humiliated, and brainwashed by her mother, stepfather, and other men who drifted in and out of the family home. She was silenced by the use of duct tape over her mouth and spent every waking hour trying to avoid the hurt inflicted by family members who should have been there to protect her. She went on to suffer similar torture as an adult from her two husbands, conditioned as she was to accept exceptional cruelty as part of her life.
Such was the deterioration in her mental state during her death row confinement that her lawyers said she lacked the ability “to understand she will be executed, why she will be executed, or even where she is.” They added, “under such circumstances, her execution would violate the Eighth Amendment.” Despite the US Supreme Court ruling in Atkins vs Virginia (2002) that sentencing an individual with intellectual disabilities to the death penalty constituted “cruel and unusual punishment,” Montgomery’s execution went ahead anyway.
GROWING DISTASTE FOR THE DEATH PENALTY
Since Biden came to office, the Department of Justice has paused federal executions in order to carry out a review of Trump-era changes to death penalty procedures. The Trump administration expanded the methods of federal capital punishment to include the gas chamber and firing squad — and after a 17-year freeze of federal executions, 13 were carried out in the dying months of President Donald Trump’s tenure. Trump’s Justice Department also adjusted execution protocols, giving defense lawyers less time to launch last-minute appeals for their clients.
While the Biden administration’s moratorium on the death penalty is welcomed by abolitionist campaigners, it is seen as merely a first step. Kristina Roth from Amnesty International USA released a statement, saying “It’s well past time for the United States federal government to abolish the death penalty once and for all.” A coalition of civil and human rights organizations penned a letter to Biden, calling on him to immediately commute all federal death sentences, and provide guidelines to prevent federal prosecutors from seeking the death penalty, in addition to dismantling the execution facility at Terre Haute.
THE VICTIMS OF AN UNJUST SYSTEM
The fact that those facing the ultimate sentence are sometimes wrongfully put to death is something that human rights lawyer Clive Stafford Smith knows all too well. In 1987, Edward Earl Johnson was executed in a Mississippi gas chamber for the 1979 murder of a US Marshall and the sexual assault of an elderly white woman. The prosecution case depended on a confession, which Johnson said was extracted from him at gunpoint by two white police officers. In addition, Johnson had an alibi, but the police told the witness to “go home and mind your own business.” Johnson protested his innocence throughout his eight years on death row until his execution when he took his final breath, choking to death on cyanide gas.
Stafford Smith was Johnson’s lawyer at the time of his final appeals, a period documented by the film “14 days in May.” Stafford Smith’s anger and frustration at a system that would put a 26-year-old black man to death was palpable when the evidence clearly pointed another way. He would go on to represent over 300 more death row prisoners, preventing their execution in 98% of cases.
When I spoke to Stafford Smith on Dec. 23, 2021, he said:
“I don’t mean to say I am such a great lawyer, but I guess if I could make mistakes that got a young man executed, then perhaps anyone could. Just like Edward, I was young in 1987, and I live with the fact that if I knew then what I know now he would be alive today, probably laughing while he jiggled his grandkids on his knee.”
Stafford Smith is also the founder and director of justice campaign group 3DC and is working on a campaign to “explore the potential innocence” of many of those executed in the US since 1977. The “Post Mortem” campaign will create a document repository that can then be accessed by academics and storytellers to bring the cases to life in the public domain. One such case involving 3DC apprentice researchers is that of another Black American Nathaniel Woods who was unjustly convicted and sentenced to death in 2004. A New York Times Documentary, titled “To Live and Die in Alabama,” was made about the case and released in December 2021.
Though present when three police officers were killed in 2004, Woods was not responsible for their deaths. He had just been maced by the all-white group of officers when Kerry Spencer began shooting. Spencer later recorded a video from his own death row cell explaining how some of the officers were running a protection racket for some drug dealers, and how Woods had nothing to do with the shootings. The sister of one of the officers requested clemency for Woods on the basis that he had not killed her brother or the other victims. Despite that, the execution went ahead in March 2020.
Another case under the spotlight is that of Carlos DeLuna, unjustly executed in 1989. The recently released documentary film, The Phantom, recalls how DeLuna was convicted of the murder of a female gas station employee. The film focuses on the trial prosecutor, as he explores evidence that he got the “wrong Carlos.” At trial, the same prosecutor accused DeLuna of creating a “phantom” suspect, but it turns out that the government lawyer was himself deceived by a colleague, and there really was another Carlos — Carlos Hernandez, a man with a long history of violent crimes. The evidence later came to light thanks to research by some Columbia law students, but it came too late. DeLuna had already been executed.
THE DEATH PENALTY NEEDS TO GO
Despite growing antipathy toward the death penalty, the United States is one of 55 countries still retaining capital punishment, and sits sixth behind only China, Iran, Egypt, Iraq, and Saudi Arabia, in the number of executions carried out in 2020. The US is also the only country in the Americas to carry out executions during the last 12 years, and its company in doing so is shrinking around the world. Sierra Leone became the latest African country to abolish capital punishment in 2021, along with Kazakhstan in Central Asia. Though the US ratified the 1966 International Covenant on Civil and Political Rights (ICCPR) in 1992, it has yet to take action on the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty. Several states, however, have already taken their own decision to cease the barbaric practice.
In 2021, Virginia became the 23rd state in the US and the first of the southern states to abolish the death penalty. The DPIC Report shows that just 28 of 50 states currently hold the 2469 prisoners on death row. That is the lowest number facing execution in 30 years, after a peak in 2000 of 3601. California has the largest death row population at 699, double that of Florida, the second state on the list with 338. There are 10 states with less than 10 death row inmates each and Virginia’s abolition bill commuted their two remaining death row prisoners to life without parole. Many more now die of natural causes after languishing on death row. In 2020, 42 prisoners facing capital punishment died of natural causes or suicide. On average, prisoners had spent 18.9 years awaiting their execution.
In his acceptance speech on Nov. 20, 2020, the newly elected Biden pronounced his belief in America as a “beacon for the globe,” leading “not by the example of our power, but by the power of our example.” Biden could use his own executive power to commute all federal death sentences to life in prison without parole, simply at the stroke of a pen. For lasting reform though, legislation would be needed. He could, therefore, show public support for the Federal Death Penalty Prohibition Act, introduced in the House of Representatives in January 2021 by Rep. Ayanna Pressley (D–MA). However, the bill probably won’t pass through the Senate since it will need some Republicans to join the abolitionist ranks, which seems unlikely.
Since taking office, Biden has remained quiet on the death penalty. But with executions at an all-time low, death penalty sentences down, public opposition up, and two-thirds of the world having already eliminated the practice, there is no better time to take all steps possible to make good on his pledge.
Pauline Canham is a freelance writer focused on human rights, the policies of the global war on terror, drones and autonomous weapons. Previously, she spent 20 years in the broadcasting sector, working on projects for the BBC and Al Jazeera.