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‘The Year of the Botched Execution’: Monitor Finds Death Penalty Was ‘Visibly Problematic’ 35 Percent of the Time in 2022

Upper left: Melissa Lucio, wearing a beige shit and a ponytail, looks through a prison window directly into the camera. Lower left: accused Boston Marathon bomber Dzhokhar Tsarnaev, with curly brown hair, thick eyebrows, and brown eyes, looks directly at the camera. Right: the U.S. Supreme Court poses for its official photo with newly-confirmed Justice Ketanji Brown Jackson.

Melissa Lucio (upper left, via Death Penalty Action); Dzhokhar Tsarnaev (lower left, via FBI); the U.S. Supreme Court (via Alex Wong/Getty Images).

With 18 executions carried out nationwide in 2022, the number of death sentences imposed this past year surpassed that of the two previous years, but the use of capital punishment is still trending downward overall, a leading death penalty monitoring group reports.

According to the Death Penalty Information Center’s 2022 Year End Report, the number of executions in 2022 was less than in any pre-pandemic year since 1991. But while the number of executions furthers the overall downward trend, the DPIC report says, the ways in which the punishment is carried out are troublesome.

“The 18 executions carried out this year raised serious concerns about the application of the death penalty and the methods used to carry it out,” the report says. “Among those executed this year were prisoners with serious mental illness, brain damage, intellectual disability, and strong claims of innocence. In most jurisdictions, these cases would not even be capitally prosecuted today. Two prisoners were executed over the objections of the victims’ families, and two others were executed despite requests from prosecutors to withdraw their death warrants.”

The DPIC also cited surveys indicating that public support for the death penalty in the U.S. continues to wane. According to Gallup, for example, “support for capital punishment held steady at 55%, one percentage point above the 50-year low of 54% in 2021.” The report also found that “large majorities of Americans oppose executing people with mental illness, brain damage, or intellectual disability, or veterans with PTSD.”

According to the report, the administration of the death penalty continues to be rife with racial disparities.

“People of color were again overrepresented among those executed in 2022, as were cases involving white victims,” the DCPI says, noting that eight of the 18 people executed in 2022 were people of color. Five of those people “were executed for killing white victims,” and “only one of the 10 white defendants” was executed for killing a person of color.

The DPIC says that jurisdictions that impose the death penalty are increasingly outside of the American mainstream.

“As the systemic flaws of the death penalty have become clearer and more pronounced, it is being regularly employed by just a handful of outlier jurisdictions that pursue death sentences and executions with little regard for human rights concerns, transparency, fairness, or even their own ability to successfully carry it out,” the report says.

Delays, Reprieves, and “The Year of the Botched Execution.”

Several high-profile reprieves were doled out by various state courts in 2022, the DPIC report found.

Richard Glossip, whose execution was halted after prison officials realized hours earlier that they had received the wrong drugs for the procedure, had his death sentence delayed by Oklahoma Gov. Kevin Stitt (R) after an investigation into his case revealed “significant evidence of government misconduct and destruction of evidence,” according to the report.

The Texas case of Melissa Lucio, who was scheduled to be executed in April, also raised questions about the innocence of someone who has been condemned. Lucio was sentenced to death in 2008 on charges that she allegedly beat her two-year-old daughter to death, but expert testimony suggested that the child died from head trauma after an accidental fall. Lucio was subject to five hours of interrogation by police on the night her daughter died, eventually telling police: “I guess I did it.” Earlier this year, Texas court stayed her execution until her case has been further reviewed.

Despite those grants of mercy, however, the DPIC said that the executions that were imposed were full of mistakes.

“2022 could be called ‘the year of the botched execution’ because of the high number of states with failed or bungled executions,” the report said. Seven out of 20 execution attempts were “visibly problematic,” according to the DPIC, as a result of “executioner incompetence, failures to follow protocols, or defects in the protocols themselves.”

In July, for example, it took three hours for death penalty administrators in Alabama to find a vein with which to inject Joe James Jr. with the cocktail of drugs that would ultimately end his life. The DPIC report said it was the “longest botched lethal injection execution in U.S. history.”

The report noted that “significant problems were reported in all three of Arizona’s executions, and Alabama’s executions went so wrong that Governor Kay Ivey paused all executions and ordered a ‘top-to-bottom review'” of the state’s procedures.

Executions were also put on hold in Alabama, Tennessee, Idaho, and South Carolina when the states were unable to follow execution protocols, the DPIC report says.

The Supreme Court Rejected All Stay-of-Execution Applications

In examining the Supreme Court’s death penalty rulings in 2022, the DPIC says that the court’s conservative majority has chipped away at constitutional rights.

“The U.S. Supreme Court continued its efforts throughout 2022 to weaken or withdraw federal-court regulation of death-penalty cases,” the report said. “Those efforts were manifest both in court decisions severely limiting prisoners’ access to federal habeas corpus review to develop evidence of innocence, ineligibility for the death penalty, or constitutional violations at trial or sentencing and in refusals to review death-penalty issues that presented significant claims of constitutional violations.”

Citing the cases of Shinn v. Ramirez and Shinn v. Jones — in which the Supreme Court denied two Arizona prisoners who had been sentenced to death the opportunity to present evidence of their attorneys’ ineffective representation — the report said that the ruling in the consolidated cases “severely limited access to the federal courts for state prisoners who had been provided a succession of ineffective lawyers in state court.”

Justice Clarence Thomas wrote the opinion for the 6-3 majority in the case. He said that using federal habeas corpus to overturn a state conviction “is an affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them. Federal courts, years later, lack the competence and authority to relitigate a State’s criminal case.”

The report said that the Supreme Court’s “most significant substantive death penalty ruling” related to the death penalty came in March, when the court’s conservative wing reimposed the death penalty on convicted Boston Marathon bomber Dzhokhar Tsarnaev.

“The U.S. Court of Appeals for the First Circuit had overturned Tsarnaev’s death sentence, holding that the trial judge had improperly prevented Tsarnaev’s lawyers from questioning jurors about the nature of their exposure to pretrial publicity and unconstitutionally excluded mitigating evidence of a murder committed by Tsarnaev’s violent, radicalized older brother that Tsarnaev argued would show that he had acted under his brother’s dominating influence,” the report said. “In a 6-3 partisan-line ruling, Justice Thomas reversed the Circuit Court, asserting that trial court had not abused the broad discretion afforded district court judges in questioning jurors and in admitting evidence.”

The DPIC report also found that in 2022, the Supreme Court “denied every application for a stay of execution filed by a death-row prisoner and intervened in multiple cases to vacate stays of execution or injunctions issued by the lower federal courts.”

Read the full report here.

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