The Death Penalty in 2023: Year End Report

Only Five States Conducted Executions and Seven States

Imposed New Death Sentences in 2023, the Lowest
Number of States in 20 Years
FLORIDA’S SIX EXECUTIONS AND FIVE NEW DEATH SENTENCES RESPONSIBLE FOR 2023 INCREASE

FOR THE FIRST TIME, MORE AMERICANS BELIEVE THE DEATH PENALTY IS ADMINISTERED UNFAIRLY THAN FAIRLY
Death Penalty Status by Jurisdiction

Federal Government

Executions in Last 10 Years

No Executions in 10 Years
Pause on Executions by Executive Action
No Death Penalty

350
Death Sentences by Year 100
Executions by Year
Peak: 315 in 1996 Peak: 98 in 1999
300
80
250

200 60

150 40
100
20
50
21 in 2023 24 in 2023
0 0
2002
2005
2008

2020
2023
1984

1990
1993
1996
1999
1987
1981

2014
1977

2017
2011
2002
2005
2008

2020
2023
1984

1990
1993
1996
1999
1987

2014
1981

2017
1973

1978
1975

2011
 The Death Penalty in 2023: Year End Report

Executive Summary
◆ For the first time, a Gallup poll reports that more Americans (50%) believe the death penalty is
administered unfairly than fairly (47%).
◆ Only 5 states (Texas, Florida, Missouri, Oklahoma, and Alabama) executed people this year,
and only 7 states (Alabama, Arizona, California, Florida, Louisiana, North Carolina, and Texas)
sentenced people to death. For the first time, the number of executions exceeded the number of
new death sentences.
◆ The majority of states (29) have now either abolished the death penalty or paused executions by
executive action.
◆ 2023 is the 9th consecutive year with fewer than 30 people executed (24) and fewer than 50
people sentenced to death (21).
◆ Three exonerations this year bring the total to 195 in the modern death penalty era.
◆ High profile innocence cases in several states received intense media attention but found no relief
in the courts, raising questions about the adequacy of state procedures and the ability of the legal
system to protect innocent people.
◆ The United States Supreme Court overwhelmingly rejected petitions from death-sentenced prison-
ers over the increasingly alarmed dissents of Justices Jackson, Kagan, and Sotomayor.
◆ Prisoners who were executed spent an average of 23 years in prison, the longest average time
since executions resumed in 1976, and were an average age of 54 years old at the time of their
execution, the oldest average age since executions resumed in 1976 (tied with 2021).
◆ The Biden Administration’s Department of Justice secured its first death sentence for Robert
Bowers, convicted of killing eleven people in the Pittsburgh, Pennsylvania Tree of Life Synagogue.

Introduction
Innocence cases dominated much of the media’s attention on death penalty cases in 2023. While
these prisoners were largely unsuccessful in the courts, there was unprecedented support for their
claims from state legislators, prosecutors, judges, and other elected officials, some of whom declared
themselves newly disillusioned with use of the death penalty in their state. This year is the 9th consecu-
tive year with fewer than 30 people executed (24) and fewer than 50 people sentenced to death (21,

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 The Death Penalty in 2023: Year End Report

as of December 1). The 23 men and one woman who were executed in Death Row by State†
2023 were the oldest average age (tied with 2021) and spent the longest State 2023 2022
average number of years in prison in the modern death penalty era before California 665 692
Florida 313 330
being executed. As in previous years, most prisoners had significant phys- Texas 192 199
ical and mental health issues at the time of their executions, some of which Alabama 167 170
North Carolina 140 139
can be attributed to the many years they spent in severe isolation on death
Ohio 129 135
row. Continued difficulties obtaining lethal injection drugs led some states Pennsylvania 123 129
to explore new, untested methods of execution or revive previously aban- Arizona 114 117
Louisiana 63 62
doned methods. Other states enacted or continued pauses on executions Nevada 62 65
while the state’s method of execution was studied. Tennessee 47 47
U.S. Fed. Gov’t 44 44
Before 1972, state officials generally used the death penalty without
Georgia 41 42
fear of federal court review. That changed with Furman v. Georgia, when Oklahoma 40 44
the Supreme Court invalidated all death penalty statutes, citing serious Mississippi 36 37
South Carolina 36 37
constitutional concerns with the arbitrariness and racial discrimination in Arkansas 28 30
many state processes and death sentences. After the Court approved the Kentucky 26 27
Missouri 18 20
reinstatement of the death penalty in 1976, the Court assumed a more
Nebraska 11 12
active role in regulating states’ use of the death penalty. In what Justice Kansas 9 9
Blackmun later called “tinkering with the machinery of death,” the Court Idaho 8 8
Indiana 8 8
spent decades scrutinizing state laws and procedures, interpreting arcane Utah 7 7
statutory provisions, clarifying constitutional safeguards, reviewing chal- U.S. Military 4 4
Montana 2 2
lenges to methods of execution, and deciding cases that narrowed the ap-
New Hampshire ^
1 1
plication of the death penalty. The Court also intervened in extraordinary South Dakota 1 1
cases to grant stays of execution and resisted state efforts to expand use Oregon 0 22
Wyoming 0 0
of the death penalty.
Total ‡
2,331 2,436
Now, more than 50 years after Furman was decided, the majority †
Data from NAACP Legal Defense and Educational Fund for
January 1 of the year shown
of the Court appears unwilling to continue in this role. The Supreme Court ^
New Hampshire prospec­tive­ly abol­ished the death penal­ty
May 30, 2019
granted only one stay of execution, reflecting the view of some members ‡
Persons with death sen­tences in mul­ti­ple states are only
includ­ed once
of the Court that prisoners bring “last-minute claims that will delay the ex-
ecution, no matter how groundless.” The Court granted certiorari in only four death penalty cases, all
of which pertained to procedural issues, and turned away the overwhelming majority of petitions filed
by death-sentenced prisoners. Some state officials and legislatures may once again feel unrestrained

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 The Death Penalty in 2023: Year End Report

by the risk of judicial oversight or correction; Florida directly flouted Supreme Court precedent with
new legislation making a non-homicide crime a death-eligible offense, while states like Alabama
announced plans to use nitrogen gas in an untested, risky method of execution.
But the pivot away from the Supreme Court does not mean there is (or will be) increased use of
the death penalty. For the first time, more Americans now believe that the death penalty is administered
unfairly than fairly. The data show that the death penalty is increasingly disfavored, and the continued,
years-long decline in its use has little to do with the Supreme Court. It is, instead, the result of society’s
greater understanding about the fallibility of our legal system and its inability to protect innocent peo-
ple from execution, the vulnerabilities of the people who are sentenced to death, and a recognition that
the significant resources and time necessary to use the death penalty do not deliver enough of a return
on the public’s investment in terms of safety or deterrence. These lessons are reflected in changing
public opinion polls, jury verdicts, state legislative and executive decisions, and charging decisions, as
this 2023 Year End Report details below.

Public Opinion
More Americans Believe the
Death Penalty is Applied
Unfairly
The Gallup Crime Survey has
asked for opinions about the fair-
ness of death penalty application
in the United States since 2000.
For the first time, the October 2023
survey reports that more Americans
believe the death penalty is ap-
plied unfairly (50%) than fairly
(47%). Between 2000 and 2015, Gallup. (Nov. 6, 2023). New 47% Low Say Death Penalty Is Fairly Applied in U.S.

51%—61% of Americans said they thought capital punishment was applied fairly in the U.S., but this
number has been dropping since 2016. This year’s 47% represents a historic low in Gallup’s polling.

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 The Death Penalty in 2023: Year End Report

Overall support for capital Americans’ Support for Death Penalty

Are you in favor of the death penalty for a person convicted of murder?
punishment remains at a five-de- 100

cade low in the United States. In 90

80
2023, the Gallup survey found 70
% Favor
that 53% of Americans favor the 60
53%
50
death penalty, the lowest num- % Oppose 44%
40
ber since March 1972, although 30
not a statistically significant 20
% No Opinion
10
change from the 54% and 55% 2%
0
1936 1940 1950 1960 1970 1980 1990 2000 2010 2023
level of support recorded over Source: Gallup

the previous three years. Results from 2019 indicate that support for the death penalty drops even low-
er (36%) when respondents are given the option of life without parole. When Gallup first asked about
the death penalty in 1936, 59% of Americans supported the death penalty for convicted murderers.
Public support for the death penalty peaked in 1994, with 80% of Americans in favor, but has steadily
declined since that year.
Gallup also asked respondents whether they believe the death penalty is imposed too often,
about the right amount, or not enough. 39% of respondents said that capital punishment is not used of-
ten enough, while 56% of respondents believe it is either imposed too often or about the right amount.
There are also partisan differences. 62% of Republicans think that the death penalty is not imposed
often enough, while 25% say it is imposed about the right amount. 52% of Democrats think that the
death penalty is imposed too often, while 24% think it is used about the right amount. There is a greater
divide among Independents, as 37% think that it is not used enough, 32% think it is used about the right
amount, and 26% think it is used too often.
Gallup’s Moral Issues Survey was administered in May 2023 against the backdrop of the Tree of
Life Synagogue trial in Pittsburgh. Gallup reported a slight (5%) increase in the number of respondents
who believe that capital punishment is morally acceptable, with 60% of individuals responding in the
affirmative. The results of this survey have varied over the past two decades, reaching a high of 71% in
2006. Gallup reports that 82% of Republicans find the death penalty morally acceptable, compared
to 59% of Independents, and just 40% of Democrats.

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 The Death Penalty in 2023: Year End Report

Innocence and Clemency

Three New Exonerations End Decades-Long Imprisonment
Three exonerations (John Huffington, Jesse Johnson, and Glynn Simmons) occurred in 2023; col-
lectively, the three men spent 109 years in prison. Including the previously unrecorded exonerations of
Larry Hudson in 1993 and Joe Cota Morales in 1981, the total number of U.S. death-row exonera-
tions since 1973 is 195.
Before leaving office, former Maryland Governor Larry Hogan granted death-sentenced prison-
er John Huffington a full pardon on January 13, 2023 based on evidence that conclusively showed
his “convictions were in error.” Originally convicted in 1981, Mr. Huffington, who always maintained
his innocence, agreed in 2017 to accept an Alford plea in exchange for a reduced sentence which
later resulted in his release. The original case was tried by disgraced prosecutor Joseph Cassilly, who
was disbarred after an investigation revealed he had withheld exculpatory evidence regarding the
scientific inaccuracy of forensic evidence in the case.

“I have fought for over 40 years for this

day, and I feel a deep sense of closure
and vindication. This pardon officially
acknowledges that I was wrongly
convicted and imprisoned for crimes I
never committed.”
— John Huffington

Jesse Johnson, who has long maintained his innocence, was released from Oregon’s Marion
County Jail on September 5, 2023. Deputy district attorneys Katie Suver and Matt Kemmy wrote in
their motion to dismiss the case that, “Based on the amount of time that has passed and the unavailabil-
ity of critical evidence in this case, the state no longer believes that it can prove the defendant’s guilt to
twelve jurors beyond a reasonable doubt.” Two years earlier, Mr. Johnson’s conviction was overturned
by the Oregon Court of Appeals after finding he had not received effective representation from his
defense counsel at trial. According to Oregon’s Innocence Project, who assisted with appeals in 2014,
racism on the part of the detective played a role in Mr. Johnson’s wrongful conviction.

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 The Death Penalty in 2023: Year End Report

“I’m happy and excited and ready for

the next phase now. Been a lot of years
for something I didn’t do."
— Jesse Johnson

48 years after being sentenced to death, Glynn Simmons was

exonerated on September 19, 2023, becoming the 11th person
exonerated in Oklahoma since 1973. During his trial, prosecutors
failed to disclose that the surviving victim identified multiple people
in the line-up, not solely Mr. Simmons. Oklahoma District Attorney
Vicki Behenna, agreeing that the original trial was unfair, first requested that Mr. Simmons’ sentence,
which had already been reduced to life in prison in 1977, be vacated in July 2023. Ms. Behenna later
asked that the case be dismissed due to the state’s inability to “prove beyond a reasonable doubt that
Simmons was responsible for Ms. [Carolyn Sue] Rogers’ murder” in a new trial.

“I’m happy, and I’m free. It’s a long, long struggle. … We need
to reimagine justice and how we do it.”
— Glynn Simmons

Although he does not meet DPIC’s strict criteria to be included in its Innocence Database, Barry
Jones was freed on June 15, 2023 after serving 29 years for a crime that the Arizona Attorney General
agreed he did not commit. Mr. Jones was sentenced to death in 1995 after being convicted of mur-
dering his girlfriend’s four-year-old daughter in 1994. Medical evidence that was readily available at

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 The Death Penalty in 2023: Year End Report

the time of trial showed that the child did not sustain her fatal internal
injuries during the time she was in Mr. Jones’ care. But this evidence
was not discovered by either his trial attorney or his state post-con-
viction attorney. In 2018, Mr. Jones presented this evidence for the
first time in federal court as proof that his state counsel had been
ineffective for failing to investigate and present medical evidence
that contradicted the prosecution’s timeline. Both the federal district
court and the Ninth Circuit Court of Appeals agreed he was entitled
to a new trial, but the Supreme Court ruled against him in Shinn
Barry Jones
v. Ramirez (2022). The decision, however, did not bar the Arizona
Attorney General’s Office from independently reviewing the case and after doing so, the office agreed
to a settlement agreement that had Mr. Jones pleading guilty to second-degree murder—for failing to
take his girlfriend’s daughter to a hospital while she was in his care and already suffering from her fatal
internal injury—in exchange for which he was released from prison for time served.

Unprecedented Support for Prisoners with Innocence Claims from State Legislators,
Prosecutors, and Other Elected Officials
The appeals of Areli Escobar, Richard Glossip, Phillip Hancock, Toforest Johnson, and Robert
Roberson received unprecedented public support from former and current state officials.
Areli Escobar’s successful appeal to the Supreme Court was the
result of Travis County District Attorney Jose Garza’s admission that
the conviction was based on “flawed and misleading forensic evi-
dence.” In remanding the case for a new trial on January 9, 2023,
the Court briefly explained its decision was made “in light of the
confession of error by Texas.”
Last year, a bipartisan group of 62 Oklahoma lawmakers,
including 45 Republican legislators, publicly expressed concern
about Richard Glossip’s case and asked then Attorney General
Areli Escobar
John O’Connor to support a new evidentiary hearing. Mr. Glossip
currently has two petitions pending at the Supreme Court. The first is on the denial of his innocence
claim. His second petition is supported by Oklahoma Attorney General Gentner Drummond, who also

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 The Death Penalty in 2023: Year End Report

argued in favor of clemency for Mr. Glossip. The reply he filed with the Court stated, “After careful
consideration – including a thorough review by an independent counsel – the State came to the con-
clusion that …ensuring that justice is done in this case requires a retrial.” Both Mr. Glossip and Phillip
Hancock, who has long claimed self-defense, received personal support from Republican state legis-
lators Kevin McDugle and J.J. Humphrey, who say they strongly support the death penalty but believe
executions should be paused in Oklahoma because of the system-wide failures and injustices in these
cases. “[I]f we can’t fix it… then we need to get rid of it,” Rep. McDugle told the PBS Newshour. Mr.
Glossip was denied clemency based on a 2-2 vote from the Oklahoma Pardon and Parole Board and
has since filed suit against the Board. Mr. Hancock received a recommendation for clemency from
the Oklahoma Pardon and Parole Board which, at the time of this writing, is pending in front of the
Governor. Reps. McDugle and Humphrey testified in support of Mr. Glossip and Mr. Hancock at their
respective clemency hearings.
Among many others, Toforest Johnson’s case has the support of his original trial prosecutor, the
current Jefferson County district attorney Danny Carr, former Alabama Attorney General Bill Baxley,
state bar presidents, three of the jurors in his case, and former Alabama Supreme Court Justice Drayton
Nabers, all of whom support a new trial.
“As a lifelong defender of the death pen-
alty, I do not lightly say what follows: An
innocent man is trapped on Alabama’s
death row,” wrote Mr. Baxley in a
March, 2021 Washington Post op-ed.
Mr. Johnson’s petition for certiorari
was denied by the Supreme Court on
October 2, 2023.
Robert Roberson’s petition to the
Toforest Johnson with fam­i­ly members Supreme Court was supported by five
retired federal judges, including one from Texas, and groups of scientists, medical experts, forensic
experts, and others who argued that the Shaken Baby Syndrome theory relied upon by prosecutors
to convict Mr. Roberson has been soundly discredited. The Supreme Court denied his petition on the
same day as Mr. Johnson.

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 The Death Penalty in 2023: Year End Report

Credible Innocence Claims in Death Penalty Cases

Areli Escobar, Richard Glossip, Toforest Johnson, Rodney Reed, and Robert Roberson, whose
cases are described above, were among several death penalty cases with credible innocence claims
that received significant media attention this year.
On January 13, the special counsel appointed by California Governor Gavin Newsom to con-
duct an investigation into Kevin Cooper’s innocence claim released its report, finding that the “evi-
dence of Cooper’s guilt is extensive and conclusive,” while also noting that the fairness of the trial in
relation to Mr. Cooper’s race was not assessed. In response, lawyers for Mr. Cooper criticized the
investigation as improperly conducted and incomplete. “Most fundamentally, we are shocked that the
governor seemingly failed to conduct a thorough review of the report that contains many misstatements
and omissions and also ignores the purpose of a legitimate innocence investigation, which is to inde-
pendently determine whether Mr. Cooper’s conviction was a product of prosecutorial misconduct.”
Mr. Cooper was convicted in 1985 and has consistently maintained his innocence.
In Missouri, Leonard Taylor con-
sistently maintained that he was not in
St. Louis at the time of the crime that
sent him to death row. Although Mr.
Taylor’s attorneys discovered new
evidence to substantiate his inno-
cence claim, including support from a
forensic pathologist, St. Louis County
Prosecuting Attorney Wesley Bell de-
clined to avail himself of a Missouri
Leonard Taylor law that allows prosecutors to reopen
possible wrongful convictions, saying there were no facts “to support a credible claim of innocence” in
the case. Mr. Taylor was executed on February 7.
On June 29, Missouri Governor Mike Parson lifted the stay of execution for Marcellus Williams,
ending a six-year panel review of his innocence claims and maintaining the confidentiality of the
panel’s recommendations. In 2017, former Governor Eric Greitens stayed Mr. Williams’ execution and
asked five former judges as a board of inquiry to investigate new DNA testing results that were un-
available at the time of his trial. A DNA test authorized by the Missouri Supreme Court excluded Mr.

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 The Death Penalty in 2023: Year End Report

Williams and matched an unknown person, and three separate DNA experts confirmed the findings.
Gov. Parson explained his decision to end the inquiry in a statement, saying, “We could stall and
delay for another six years, deferring justice, leaving a victim’s family in limbo, and solving nothing.
This administration won’t do that.” No new execution date for Mr. Williams has been set, but in August
he sued Gov. Parson for dissolving the board of inquiry before it completed its investigation of his
innocence claim.
Crosley Green, a former Florida death-sentenced prisoner whose con-
viction was overturned in 2018, was denied parole on June 21, 2023 by
the Florida Commission on Offender Review. Mr. Green was released from
prison in April 2021 following a federal court’s determination that the prose-
cution had withheld critical evidence from his defense at trial that pointed to
another shooter. Mr. Green has maintained his innocence. After two years
of release, he returned to prison earlier this year after the 11th Circuit Court
of Appeals reversed the lower court’s decision and the U.S. Supreme Court
declined to review his appeal in February. The Commission ruled that Mr. Crosley Green

Green’s tentative parole release date will be in 2054, when he will be 97 years old.

Executive Clemency, the “Fail Safe” of the Death Penalty System, Largely Unavailable
In the last ten years, just 15 individual clemencies have been granted in death penalty cases.
In June, nearly every death-sentenced prisoner in Louisiana filed a request for clemency with the
Louisiana Board of Pardons and Committee on Parole shortly after Governor John Bel Edwards an-
nounced his opposition to the death penalty. After the Board initially declined to consider the petitions
without reviewing the merits of the claims, Governor Edwards used his executive authority to direct the
Board to set hearings for the prisoners. Twenty clemency hearings were thereafter scheduled to begin
in October.
Attorney General (and Governor-elect) Jeff Landry and some state district attorneys quickly de-
nounced the ‘rushed’ efforts of the Board to hear the clemency applications and sued to block any ap-
plications from moving forward. A last-minute legal settlement resulted in a reduction in the number of
scheduled clemency hearings from 20 to just five. On October 13, the Board administratively screened
the five petitions and denied full clemency hearings to the applicants; on November 8, another five
petitions were denied full clemency hearings. On November 9, Chief U.S. District Judge Shelly Dick of

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 The Death Penalty in 2023: Year End Report

the Middle District of Louisiana denied a request from the clemency applicants for a preliminary injunc-
tion, stating, “There is no constitutional right to a clemency hearing, nor is there a right to challenge the
Board’s failure to follow its own procedures.” Governor Edwards will leave office on January 8, 2024
and cannot constitutionally commute any death sentence without the recommendation of the Board.
Attorneys for Florida death-sentenced prisoners Darryl Barwick
and Michael Zack separately petitioned the U.S. Supreme Court to
consider whether Florida’s clemency process offered adequate due
process. Mr. Barwick’s attorneys wrote, “For 40 years, the chanc-
es of obtaining clemency or commutation of a death sentence in
Florida is 0%. Not since 1983 has any death-sentenced individual
in Florida been granted executive clemency.” The Court denied both
petitions. Mr. Barwick was executed on May 4, and Mr. Zack was
Phillip Hancock as a child, hold­ing his baby
brother
executed on October 3.
On November 8, the Oklahoma Pardon and Parole Board narrowly recommended clemency to
Phillip Hancock following an emotional clemency hearing. After failing to act for 22 days, Governor
Stitt allowed the execution to go forward on November 30. Mr. Hancock was the last person executed
in 2023.

Developments in the States

New Executive Actions in Two States Pause Executions
In Arizona, newly elected Governor Katie Hobbs and Attorney
General Kris Mayes acted almost immediately upon taking office to or-
der an examination of the state’s execution procedures. On January 20,
Governor Hobbs issued an executive order appointing a Death Penalty
Independent Review Commissioner “to review and provide transparency
into the [Arizona Department of Corrections, Rehabilitation & Reentry’s
(ADCRR)] lethal injection drug and gas chamber chemical procurement pro-
cess, execution protocols, and staffing considerations.” Attorney General Governor Katie Hobbs

Mayes filed a motion to withdraw the state’s only pending request for a death warrant. The governor’s

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executive order noted that “Arizona has a history of executions that have resulted in serious questions
about ADCRR’s execution protocols and lack of transparency.” In 2022, the state performed three
executions, all of which were visibly problematic. The order went on to say that “a comprehensive and
independent review” was necessary “to ensure these problems are not repeated in future executions.”
The actions by the governor and attorney general have halted executions in Arizona until the review
is complete.
Governor Josh Shapiro of Pennsylvania announced on February 16 that he would continue his
predecessor’s moratorium on executions. He called upon the legislature to repeal the death penalty,
saying, “The Commonwealth shouldn’t be in the business of putting people to death. Period. I believe
that in my heart. This is a fundamental statement of morality. Of what’s right and wrong. And I believe
Pennsylvania must be on the right side of this issue.” Pennsylvania has executed only three people in the
modern era of the death penalty, all of whom waived their appeals and “volunteered” for execution.

States Approve Alternative Execution Methods When Lethal Injection is Unavailable; Legal
Challenges Continue
In response to continuing difficulties obtaining lethal injection drugs, South Carolina and Idaho
passed legislation authorizing alternative methods of execution, and Alabama announced its plan to
use an untested execution method.
After the South Carolina Supreme Court ordered the state to disclose its efforts to obtain lethal
injection drugs, the legislature passed a secrecy law and authorized a new lethal injection protocol.
The new law, signed in May 2023, conceals from the public the identity of manufacturers and suppliers
of execution drugs, as well as those on the team responsible for carrying out the execution. Republican
state officials previously cast blame on the lack of ‘shield laws’ for the state’s inability to acquire drugs.
State officials announced on September 19 that they had obtained a supply of pentobarbital and
intended to use it in a one-drug protocol, rather than using the state’s previous three-drug protocol.
Officials in the Department of Corrections admitted contacting more than 1,300 people in their efforts
to obtain execution drugs. Litigation is ongoing in the state Supreme Court in a challenge to South
Carolina’s 2021 statute making electrocution the default method of execution and authorizing firing
squad as an alternative method. In 2022, a trial court found that both of those methods violated the
state’s constitutional prohibition against “cruel, unusual, and corporal punishments.”

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Alabama released a heavily redacted protocol for using nitrogen gas in August. While Oklahoma
and Mississippi also authorize execution by nitrogen suffocation, no state has ever used the method,
and Alabama was the first to release a protocol. Alongside the release of the protocol, Alabama
officials asked the Alabama Supreme Court to authorize an execution date for Kenneth Smith, who
survived an earlier, botched attempt to execute him in 2022. Governor Kay Ivey has set Mr. Smith’s
execution date for January 25, 2024. Mr. Smith’s attorneys have argued that he should not be used as
a “test subject” for the new execution method.
Idaho became the fifth state to authorize executions by firing squad. Under the law, which went
into effect July 1, 2023, the director of the Idaho Department of Correction
will have up to five days after a death warrant is issued to determine wheth-
er an execution by lethal injection is possible. If it is not, the execution will be
performed by firing squad. Prior to the law’s passage, Idaho had twice de-
layed execution dates for Gerald Pizzuto, Jr. because lethal injection drugs
couldn’t be obtained.
U.S. District Judge B. Lynn Winmill ruled in favor of death row prison-
er Mr. Pizzuto, indefinitely pausing his March 2023 execution date, and
granting him a hearing on his claim that Idaho violates his constitutional right
Gerald Pizzuto in fourth grade against cruel and unusual punishment by repeatedly scheduling execution
dates while knowing the state does not have the means to carry it out.

“As Pizzuto describes it, defen­dants’ repeat­ed resched­ul­ing

of his exe­cu­tion is like dry fir­ing in a mock exe­cu­tion or a
game of Russian roulette… With each new death war­rant
comes anoth­er spin of the revolver’s cylin­der, restart­ing
the 30-day count­down until the trig­ger pulls. Not know­ing
whether a round is cham­bered, Pizzuto must relive his last
days in a delir­i­um of uncer­tain­ty until the click sounds and
the cylin­der spins again.”
— U.S. District Judge B. Lynn Winmill

Mr. Pizzuto, who has been on death row since 1986, has faced five execution dates during his
37 years behind bars, three of which have been set during the past two years.

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Florida Expands Death Penalty Eligibility and Revises Sentencing Requirement

Florida passed two new death penalty laws in April which are likely to expand the number of
people sentenced to death in the state. First, the legislature removed the requirement that a jury must
unanimously agree to impose a death sentence. Second, the legislature passed a law that allows the
death penalty as punishment for sexual battery of a child under the age of 12 that does not result in
the death of the victim. The sexual battery law is in direct conflict with U.S. Supreme Court precedent
under Kennedy v. Louisiana (2008), which struck down a similar law.
While the Court has never held that a unanimous jury recommendation is required for a death
sentence, nearly every death penalty state requires all 12 jurors to agree. Prior to the passage of
Florida’s new law this year, only Alabama allowed a non-unanimous jury to impose a death sentence.
Florida has now set the lowest threshold for the imposition of death, allowing a death sentence if at
least eight jurors agree. In Alabama, the threshold is ten jurors. Opponents of the non-unanimity bill
noted that Florida has the highest number of exonerations from death row in the nation, at 30. Most of
those exonerated were sent to death row by non-unanimous jury votes.

Tennessee Unsuccessfully Attempts to Remove Power from Local District Attorneys

The Tennessee legislature passed a law intended to remove power from elected district attorneys
and provide the unelected attorney general with greater control over death penalty cases. It appeared
aimed at some newly elected district attorneys who had expressed concerns about the use of the death
penalty and indicated they would be more reluctant to pursue new death sentences. A Shelby County
judge struck it down just three months later, finding the law unconstitutional. An appeal of that decision
is pending before the Tennessee Court of Criminal Appeals.

Texas Cannot Execute Scott Panetti

On September 28, 2023, the U.S. District Court
for the Western District of Texas ruled that the state
cannot execute Scott Panetti, a death row prisoner
with a decades-long history of serious mental illness
and a diagnosis of schizophrenia. Despite a state
expert conceding Mr. Panetti’s serious mental illness,
Texas argued that he is competent to face execution
Scott Panetti

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 The Death Penalty in 2023: Year End Report

because he has “some degree” of rational understanding. U.S. District Judge Robert Pitman ruled,
however, that “[Mr.] Panetti is not sane enough to be executed” and that he “lack[s] a rational under-
standing of the connection between his actions and his death sentence.” The decision ends decades
of litigation through Texas state and federal courts, including the United States Supreme Court. Judge
Pittman explained his decision: “There are several reasons for prohibiting the execution of the insane,
including the questionable retributive value of executing an individual so wracked by mental illness that
he cannot comprehend the ‘meaning and purpose of the punishment,’ as well as society’s intuition that
such an execution ‘simply offends humanity.’ Scott Panetti is one of these individuals.”

State Legislative Action on Mental Illness and Repeal

Three state legislatures (Arizona, Arkansas, and Texas) proposed bills to exempt people with
severe mental illness from death penalty eligibility. The bills failed in Arizona and Arkansas. The Texas
bill passed the House 97-48 on April 5, 2023. No action has been taken in the Senate, but Texas’
legislative session continues into 2024.
Five years after the Washington Supreme Court struck down the state’s death penalty law,
Governor Jay Inslee signed legislation to formally remove the unconstitutional law from the books.
Gov. Inslee said the new legislation codified the concerns that were raised in the court’s decision about
the application of the death penalty in Washington: “The [court] made clear, and we know this to be
true, that the penalty has been applied unequally and in a racially insensitive manner.”
The Pennsylvania House Judiciary Committee voted 15-10 in favor of a death penalty repeal bill
on October 31. With 14 Democrats and one Republican voting in favor, the committee passage is the
first step toward abolishing the death penalty in Pennsylvania, which has not executed anyone since
1999 and has had a moratorium on executions since 2015.
Legislators in twelve different states and U.S. Congress introduced bills
to abolish the death penalty. In September 2023, a bipartisan group of
Ohio state house representatives introduced a bill that would abolish the
death penalty and replace it with life in prison without parole. The proposed
legislation came just a few months after Ohio state senators introduced a
similar bill.
Unsuccessful legislative efforts to abolish the death penalty were
also seen in Louisiana, following Governor John Bel Edwards’ first public
Governor John Bel Edwards

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 The Death Penalty in 2023: Year End Report

announcement of his opposition to capital punishment. In March, Gov. Edwards expressed his opposi-
tion in a seminar at Loyola University in New Orleans: “The death penalty is so final. When you make
a mistake, you can’t get it back. And we know that mistakes have been made in sentencing people to
death.” He cited his deep religious faith and “pro-life” views as the reason for his opposition and said
it was “fortuitous” that there is a shortage of the drugs required for lethal injection executions. Louisiana
has carried out just one execution in the past twenty years.

Executions
Long-Term Decline in Executions Continued, Despite Slight Increase in 2023
Although the 24 people executed
20 Year Trend: Total Number of States Conducting Executions
in 2023 represented an increase from and Imposing Death Sentences Each Year
30
last year’s number of 18, this year was States Conducting Executions
States Imposing Death Sentences
the ninth consecutive year with fewer 25
than 30 executions.
20
As in past years, most of the people
executed in 2023 had significant vulner- 15
abilities, and many likely would not have
10
been sentenced to death if tried today.
79% of the people executed this year 5
had at least one of the following impair-
0
ments: serious mental illness; brain injury,
2003
2004
2005
2006

2008
2009

2020

2022
2023
2007

2021
2010

2018
2012

2014
2013

2016

2019
2015

2017
2011

developmental brain damage, or an IQ

in the intellectually disabled range; and/or chronic serious childhood trauma, neglect, and/or abuse.
33% had all three. At least three (Darryl Barwick, Michael Tisius, and Casey McWhorter) were under
the age of 20 at the time of their crimes.

Florida and Texas Conducted Almost 60% of the Year’s Total Number of Executions
Only five states executed people this year. Florida and Texas accounted for more than half (58%)
of the year’s total number. Florida’s six executions in 2023 were the highest number since 2014. Before

Death Penalty Information Center 17

 The Death Penalty in 2023: Year End Report

2023 Executions by State and County

Boone County
St. Louis County (3)
4

Canadian County
4 Tulsa County
Oklahoma County
Potter County Madison County
Cleveland County
Marshall County

2
Dallas County (3)

El Paso County 8
Escambia County
Leon County
Bay County Flagler County
Harris County (2)
6 Brevard County

Palm Beach County

© 2023 Mapbox © OpenStreetMap

this year, Florida had not executed anyone since 2019. Governor Ron DeSantis, who is running for
President, has scheduled eight executions since he took office in 2019, bringing the total number of
executions in Florida since 1976 to 105. With eight executions, Texas maintained its status as the state
that has conducted the most executions in 2023 — and overall since 1976.

Most Execution Warrants Not Carried Out

Only 41% of the 58 death warrants issued in 2023 were carried out. Four executions were stayed
for reasons including mental incompetency, intellectual disability, and credible innocence of the pris-
oners. Ten executions were halted by gubernatorial reprieve in Ohio, where executions have been on
hold since 2019 over concerns about its lethal injection protocol. Three were halted in Pennsylvania,
which has had a moratorium on executions since 2015. One was halted in Arizona after Governor
Katie Hobbs announced an investigation into the state’s execution protocol. Two prisoners (Henry
Skinner in Texas and Michael Webb in Ohio) died while their execution dates were pending. Five
dates were stayed to allow time for additional court proceedings or clemency hearings.

Death Penalty Information Center 18

 The Death Penalty in 2023: Year End Report

Outcome of Death Warrants in 2023 (as of November 30, 2023)

Date
All

Outcome
Inactive*
Executed

* Does not include cases with orders halting executions that are currently under appeal or are still subject to appeal.
^ Includes cases with orders halting executions that are under appeal or are still subject to appeal.
© 2023 Mapbox © OpenStreetMap

Oklahoma Attorney General Gentner Drummond reacted to recent events in his state by request-
ing that the Oklahoma Court of Criminal Appeals slow the pace of executions. Prior to AG Drummond’s
2022 election, Oklahoma had set an unprecedented 25 execution dates over the course of two years.
Attorney General Drummond, who generally supports the death penalty but has advocated in favor of
death row prisoner Richard Glossip, wrote that the compressed execution schedule “is unduly burden-
ing the Department of Corrections and its personnel” and called it “unsustainable in the long run.” In
response to Attorney General Drummond’s request, the Oklahoma Court of Criminal Appeals reset the
state’s execution schedule to perform one execution approximately every two months, resulting in the
rescheduling of nine execution dates that had been set for 2023.

Race Continues to Matter

Once again, the majority of the crimes for which defendants were executed involved white victims
(79%). Based on racial classifications from state departments of corrections, none of the 15 white
defendants executed in 2023 were convicted of killing a person of color. Nine of the 24 prisoners
executed were people of color. Four of the nine (44.4%) were people of color executed for killing

Death Penalty Information Center 19

 The Death Penalty in 2023: Year End Report

white victims. In Texas, people of color were overrepresented among those executed in 2023. Five of
the eight prisoners (62.5%) executed in Texas were people of color.

Race and Gender of Executed Defendants

Versus Race and Gender of Victims
Defendant
Am.. Ant.. Art.. Bre.. Cas.. Dar.. Da.. Do.. Du.. Gar.. Ja.. Ja.. Jed.. Je.. Joh.. Joh.. Leo.. Lou.. Mic.. Mic.. Phil.. Ro.. Sco.. We..

Victim(s)

Race Gender
Black Female

Latinx Male

White
Native American

Executed Prisoners Spent Longer on Death Row

The length of time that prisoners spend on death row before being executed has steadily in-
creased. Those executed in 2023 spent an average of nearly 23 years on death row, the longest
average time in the modern era of the death penalty. More than half (54%) of the prisoners had been
on death row for more than 20 years, in violation of international human rights norms. Six prisoners
were on death row for more than 30 years before being executed this year.
The deleterious mental health effects of significant stays on death row are well-known. Researchers
and experts have found that extended solitary confinement and the harsh conditions on death row cause
mental illness in healthy prisoners and exacerbate it in those with existing conditions. Legal teams for
two executed prisoners (Duane Owen and Johnny Johnson) raised claims that their clients were incom-
petent to be executed by reason of insanity. Both men had lengthy histories of mental illness worsened
by their time on death row. Both presented the opinions of mental health experts who had thoroughly

Death Penalty Information Center 20

 The Death Penalty in 2023: Year End Report

Average Age of Defendants Executed in the Modern Death Penalty Era examined them and be-
60 lieved they met the criteria
for incompetence: that

50 they did not understand

their impending execu-
tion or the reason for it. In
40
both cases, courts denied
the claims, giving greater
30 weight to the opinions of
state experts who had
20 engaged in much more
2000
2002
2003
2004
2005
2006
2008
2009

2020
2022
2023
2007
2001

2021
1982
1983
1984
1985
1986
1988
1989
1990
1992
1993
1995
1996
1998
1999

2010
1979

1987

1994

1997

2018
1981

2012
1991

2013
2014
2015
2016

2019
2017
2011
1977

cursory examinations of
the men. Similarly, James Barnes was allowed to waive his appeals and “volunteer” for execution
without ever being examined by a mental health expert.

Most Executed Prisoners Would Likely Not Be Sentenced to Death Today

The significant changes that have occurred during the decades that most death-sentenced prison-
ers have spent in prison almost certainly mean that many of them would not be sentenced to death if
they were prosecuted today. Changes in the law, such as the alternative sentence of life without parole,
the elimination of non-unanimous death sentences in most states, the exclusion of people with intellec-
tual disability from death penalty eligibility, and changes in the common and scientific understanding
of mental illness and trauma and their lasting effects mean that arguments in favor of an alternative
sentence are much stronger today than they were in previous years. Theories such as “Shaken Baby
Syndrome” have been resoundingly debunked, meaning that some people were convicted of causing
deaths that are no longer considered crimes.
The number of death sentences imposed each year has steadily decreased over the last two
decades, a strong indication that juries’ attitudes about the effectiveness, accuracy, and morality of
the death penalty have changed. Prosecutors, too, are more cognizant of the allocation of resources
required for capital cases and less likely to seek a death sentence. Finally, improvements in the quality
and availability of defense representation have been proven to significantly alter the outcomes of
capital trials, especially in sentencing.

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 The Death Penalty in 2023: Year End Report

Appellate attorneys for two people executed this year (Wesley Ruiz and Michael Tisius) obtained
signed affidavits from jurors stating that they would change their votes or support a different sentence
now based on the mitigating evidence that new counsel presented on appeal. Mr. Tisius’ clemency
petition included statements from four jurors and two alternates who supported a reduced sentence.
One juror told the New York Times, “I feel angry and remorseful. I feel that I wronged Michael. … I
hated having a part in somebody dying.”
Those two cases illustrate some of the critical improvements that
have occurred in the quality of defense representation. The defense bar
invested significant time training lawyers to follow detailed guidance
found in the ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases (2003). Juries today are more
likely to be presented with a comprehensive biopsychosocial history
of the defendant and a more compelling argument for an alternative
sentence. By contrast, Mr. Ruiz and Mr. Tisius were just two of at least Michael Tisius

seven defendants executed this year whose juries did not hear significant mitigating evidence of mental
illness, childhood trauma, or both. While mental illness was once presented as aggravating evidence
– as was true for Robert Fratta, whom prosecutors falsely claimed had Antisocial Personality Disorder
to convince the jury that he presented an ongoing danger to society – evidence of mental illness is
properly presented today as part of the defense’s “case for life” to demonstrate a defendant’s dimin-
ished culpability.
Changes in sentencing procedures could have affected the
outcomes of several people executed this year. Seven prisoners
(John Balentine, Donald Dillbeck, Arthur Brown, Duane Owen,
Jedidiah Murphy, Brent Brewer, and David Renteria) were sen-
tenced to death before their states offered the alternative sentence
of life without parole. Seven prisoners (Amber McLaughlin, Donald
Dillbeck, Louis Gaskin, Duane Owen, James Barber, Michael Zack,
and Casey McWhorter) were sentenced to death after non-unani-
John Balentine mous jury sentencing recommendations. Only Florida and Alabama
currently allow death sentences to be imposed without the agreement of all 12 jurors, making non-una-
nimity an outlier practice among death penalty states.

Death Penalty Information Center 22

 The Death Penalty in 2023: Year End Report

Executed in 2023
Name Execution Date State
Phillip Hancock 11/ 30/ 2023 OK Mr. Hancock sought DNA test­ing to sup­port his claim that he killed Robert Jett and James Lynch in self-defense. He received sup­port from
two Republican leg­is­la­tors, and the Oklahoma Pardon and Parole Board rec­om­mend­ed clemen­cy by a 3 – 2 vote.
David Renteria 11/ 16/ 2023 TX Mr. Renteria main­tained that he was coerced by gang mem­bers into abduct­ing five-year-old Alexandra Flores, and that he did not kill the
girl. His attor­neys unsuc­cess­ful­ly sought access to evi­dence they said would have shown he was not respon­si­ble for the child’s death.
Casey McWhorter 11/ 16/ 2023 AL Mr. McWhorter was just three months past his 18th birth­day at the time of his crime. His jury rec­om­mend­ed a death sen­tence by a vote of
10 – 2.
Brent Brewer 11/ 9/ 2023 TX Mr. Brewer’s death sen­tence relied on unre­li­able “future dan­ger­ous­ness” junk sci­ence tes­ti­mo­ny from a psy­chi­a­trist who nev­er even met Mr.
Brewer.
Jedidiah Murphy 10/ 10/ 2023 TX Mr. Murphy had a long his­to­ry of men­tal ill­ness and killed 79-year-old Bertie Lee Cunningham dur­ing a dis­so­cia­tive episode. His appel­late
attor­neys argued that, if his his­to­ry of trau­ma and men­tal ill­ness were pre­sent­ed to a jury today, he would not be sen­tenced to death.
Michael Zack 10/ 3/ 2023 FL Attorneys for Mr. Zack argued that he was intel­lec­tu­al­ly dis­abled due to his diag­no­sis of Fetal Alcohol Syndrome Disorder, mak­ing his exe­cu­
tion uncon­sti­tu­tion­al under Atkins v. Virginia (2002).
Anthony Sanchez 9/ 21/ 2023 OK Mr. Sanchez main­tained his inno­cence in the mur­der of Juli Busken. His request to reex­am­ine the DNA evi­dence in his case was denied.
James Barnes 8/ 3/ 2023 FL At his tri­al, Mr. Barnes waived his right to coun­sel and to a jury, rep­re­sent­ed him­self, pled guilty, and waived all mit­i­ga­tion evi­dence at
sen­tenc­ing. After his exe­cu­tion was sched­uled, he dis­charged his lawyers and waived his appeals. A judge found Mr. Barnes com­pe­tent for
exe­cu­tion; how­ev­er, a med­ical pro­fes­sion­al did not com­plete a men­tal eval­u­a­tion of Mr. Barnes, who had a lengthy his­to­ry of men­tal illness.
Johnny Johnson 8/ 1/ 2023 MO Attorneys for Mr. Johnson assert­ed that his long­stand­ing, severe men­tal ill­ness and diag­nosed schiz­o­phre­nia pre­vent­ed him from under­stand­
ing the con­nec­tion between his immi­nent exe­cu­tion and the crime he com­mit­ted, ren­der­ing him incom­pe­tent for execution.
James Barber 7/ 21/ 2023 AL Mr. Barber was sen­tenced to death for the 2001 mur­der of 75-year-old Dorothy Epps via a non-unan­i­mous jury ver­dict. Sarah Gregory, the
grand­daugh­ter of Dorothy Epps, had for­giv­en Mr. Barber and was against the execution.
Jemaine Cannon 7/ 20/ 2023 OK At Mr. Cannon’s tri­al, his defense team pre­sent­ed tes­ti­mo­ny from neu­ropsy­chol­og­ ist Dr. Herman Jones, who false­ly char­ac­ter­ized the severe
abuse and trau­ma Mr. Cannon had endured in child­hood as mak­ing him more dangerous.
Duane Owen 6/ 15/ 2023 FL Mr. Owen’s attor­neys pre­sent­ed evi­dence that he was incom­pe­tent to be exe­cut­ed. They argued it was error for the Florida courts to find
that “the psy­chi­a­trists that only briefly exam­ined Owen were more cred­i­ble than the neu­ropsy­chol­o­gist who spent over 13 hours with Owen
con­duct­ing inter­views and testing.”
Michael Tisius 6/ 6/ 2023 MO Four jurors and two alter­nates from Mr. Tisius’ tri­al said they would have vot­ed for life, or would now sup­port a reduced sen­tence, after they
heard mit­ig­ at­ing evi­dence that was not pre­sent­ed at his trial.
Darryl Barwick 5/ 3/ 2023 FL Mr. Barwick was just 19 years old at the time of his crime. He was men­tal­ly ill, and had brain dam­age from the trau­ma he expe­ri­enced,
includ­ing his mother’s attempt to abort him by throw­ing her­self down the stairs while pregnant.
Louis Gaskin 4/ 12/ 2023 FL Mr. Gaskin was tried by an all-white jury who vot­ed 8 – 4 to sen­tence him to death, a ver­dict that would result in a life sen­tence in every
state except Florida. His jury nev­er heard evi­dence of his schiz­o­phre­nia, brain dam­age, or trauma.
Arthur Brown 3/ 9/ 2023 TX Mr. Brown main­tained his inno­cence and may have been inel­i­gi­ble for the death penal­ty due to his intel­lec­tu­al dis­abil­i­ty. He had Fetal
Alcohol Syndrome Disorder and as a child was placed in spe­cial edu­ca­tion due to his low IQ scores.
Gary Green 3/ 7/ 2023 TX Mr. Green’s attor­neys pre­sent­ed evi­dence that he was intel­lec­tu­al­ly dis­abled and had schizoaf­fec­tive dis­or­der. Experts tes­ti­fied that the
para­noia asso­ci­at­ed with his men­tal ill­ness like­ly con­tributed to his crime.
Donald Dillbeck 2/ 23/ 2023 FL Testing of Mr. Dillbeck indi­cat­ed “wide­spread and pro­found neu­ro­log­i­cal dam­age through­out Mr. Dillbeck’s brain, with par­tic­u­lar abnor­mal­i­ty
in the por­tions of the brain most respon­si­ble for reg­u­lat­ing plan­ning, mood, judg­ment, behav­ior, impulse con­trol and intentionality.”
John Balentine 2/ 8/ 2023 TX Mr. Balentine was tried by all-white jury in Texas. Mr. Balentine’s jury foreper­son used racist epi­thets and told fel­low jurors that a death
sen­tence was “bib­li­cal­ly jus­ti­fied.” Mr. Balentine’s own defense team passed hand­writ­ten notes call­ing his death sen­tence a “jus­ti­fi­able
lynching.”
Leonard Taylor 2/ 7/ 2023 MO New evi­dence uncov­ered short­ly before Mr. Taylor’s exe­cu­tion sup­port­ed his claim of inno­cence, con­firm­ing his claim that he was not in St.
Louis at the time of the mur­ders. Mr. Taylor claimed the med­ical exam­in­er was pres­sured to change the time of death at the prosecutor’s
request.
Wesley Ruiz 2/ 1/ 2023 TX Mr. Ruiz’s legal team held racist beliefs that affect­ed their abil­i­ty to rep­re­sent him. Multiple jurors said they would sup­port a reduced
sen­tence based on mit­ig­ at­ing evi­dence that was not pre­sent­ed at his trial.
Scott Eizember 1/ 12/ 2023 OK Mr. Eizember’s clemen­cy peti­tion described the sig­nif­i­cant trau­ma he expe­ri­enced dur­ing his youth and explained that he had been a mod­el
pris­on­er through­out his time on death row.
Robert Fratta 1/ 10/ 2023 TX Mr. Fratta’s tri­als were taint­ed by pros­e­cu­to­r­ia­ l mis­con­duct, which result­ed in the rever­sal of his first con­vic­tion. At his sec­ond tri­al, pros­e­cu­tors
pre­sent­ed unre­li­able and mis­lead­ing evi­dence, includ­ing a false claim that Mr. Fratta had Antisocial Personality Disorder, mak­ing him more
like­ly to be dangerous.
Amber McLaughlin 1/ 3/ 2023 MO Ms. McLaughlin was the first open­ly trans­gen­der pris­on­er exe­cut­ed in the United States. Ms. McLaughlin was sen­tenced to death by
a Missouri judge after her jury could not come to a unan­im ­ ous sen­tenc­ing decision.

Death Penalty Information Center 23

 The Death Penalty in 2023: Year End Report

New Death Sentences

New Death Sentences from Seven States and the Federal Government
The number of people on 2023 Death Sentences by State and County

death rows across the United

Federal
States has continued to decline
from a peak population in the Western District of Pennsylvania
1

year 2000. As of January 1,

2023, there were 2,331 people 4 San Bernardino County (2) 2
Dare County
Morgan County
Sacramento County Columbus County
2
on death row. Riverside County Maricopa County
Jefferson County
3
St. Clair County

Pinal County
1
As of December 1, twen- El Paso County 3
Bell County Rapides Parish
Putman County
Marion County
ty-one people had been sen- Wharton County
Hillsborough County
5
Lee County

tenced to death in 2023. Florida Monroe County

imposed the most death sentenc-

es in the U.S. in 2023, with five. California imposed four. Alabama and Texas imposed three each.
Arizona and North Carolina imposed two each. Louisiana imposed a single new death sentence. The
federal government also secured its first new death sentence since 2019.
For the first time since executions resumed in 1977, the number of executions exceeded the num-
ber of new death sentences. This is further evidence of juries' growing reluctance to impose death
sentences, and a reflection of the
Race of Defendants Sentenced to Death in 2023 Total Nationwide
fact that today's executions are
12
an indicator only of past support
10 for the death penalty.
Nine of the defendants sen-
Number of Defendants

tenced to death (42.9%) were

6
people of color. Five Latino de-
4 fendants and four Black defen-
Race of Defendant
Black dants were sentenced to death.
Latinx 2

White
Federal
0

1
Latinx

White
Black

© 2023 Mapbox © OpenStreetMap

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 The Death Penalty in 2023: Year End Report

Supreme Court
At the United States Supreme Court, 2023 saw the continued ceding of ground to state death
penalty laws and procedures. Last year, the Court rolled back its own precedent in Shinn v. Ramirez,
holding that defendants with ineffective trial and appellate counsel had no right to an evidentiary
hearing in federal court — in other words, defendants were limited to the evidence developed by
the very lawyers they were challenging as ineffective. The decision, as Justice Sotomayor noted in
her dissenting opinion, “overrule[d] two recent precedents” and “will leave many people who were
convicted in violation of the Sixth Amendment to face incarceration or even execution without any
meaningful chance to vindicate their right to counsel.” The majority opinion held that federal review
must be limited so as not to encroach on states’ rights and complained that federal habeas review
“overrides the State’s sovereign power to enforce societal norms through criminal law.” This year the
Court enforced that point by overwhelmingly rejecting the petitions of state death-sentenced prisoners
and declining to review cases that presented major constitutional concerns.

Stays of Execution Remain Rare

The data show death-sentenced petitioners continue to be largely unsuccessful when seeking
stays of execution at the Supreme Court. In the 2022-23 term, the Court granted just one of 26 stays
of execution sought, and has granted none of the eight stays sought during the first half of the 2023-24
term. A recent analysis by Bloomberg Law identified 270 emergency stay requests filed since 2013
and found that the Court agreed to stay an execution just 11 times in ten years (4%). Several of these
stays concerned execution protocols, not challenges to the execution itself. Justice Neil Gorsuch issued
clear instructions to the federal courts in Bucklew v. Precythe (2019), writing that “[c]ourts should
police carefully against attempts to use such challenges as tools to interpose unjustified delay…[l]
ast-minute stays should be the extreme exception, not the norm.” On the other hand, the Court has not
hesitated to lift a lower court’s stay in order to allow an execution to proceed. Bloomberg found that
the Court had granted 18 of 21 emergency requests by states to vacate stays of execution in the same
ten-year period (86%).
In July, the Court denied James Barber’s request for a stay to obtain more information about
Alabama’s botched executions last year, described by DPIC as “the year of the botched execution.”
Mr. Barber challenged the method in light of the “ever-escalating levels of pain and torture” reported

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 The Death Penalty in 2023: Year End Report

by Kenneth Smith and Alan Miller during the state’s aborted attempts
to execute them in 2022. Justice Sotomayor wrote in dissent that the
denial in Mr. Barber’s case was “another troubling example of this
Court stymying the development of Eighth Amendment law by push-
ing forward executions without complete information…the Eighth
Amendment does not tolerate playing such games with a man’s life.”
Since the release of the Bloomberg report, the Court granted
Texas’ request to lift a lower court stay for Jedidiah Murphy, issuing
the decision on its “shadow docket” with no accompanying opinion
James Barber
explaining its reasoning. Justices Sotomayor, Jackson, and Kagan
dissented. Mr. Murphy’s execution had been stayed based on his argument that DNA testing could
have exonerated him of crimes that formed the basis for the jury’s finding of “future dangerousness,”
a requirement for death sentences in Texas. This decision was the tenth stay lifted since Justice Ruth
Bader Ginsburg’s death in 2020—indicating the Court’s growing intolerance of stays. Indeed, the
Texas Attorney General’s Office echoed Justice Gorsuch by arguing that Mr. Murphy had waited “until
the eleventh hour” to raise a “manipulative” request for DNA testing. Texas executed Mr. Murphy on
October 10, the 21st World Day Against the Death Penalty.

New Decisions on Procedure, with Rare Group Relief in Arizona

The cases the Court did decide hinged largely on procedure.
In Reed v. Goertz, the Court ruled 6-3 that Texas prisoner Rodney
Reed’s request for DNA testing could proceed because his civil rights
claim had been timely filed. Though Mr. Reed’s innocence case has
received substantial media attention, the Court ruled only on the
interpretation of a statute regarding the timing of the two-year limit
on federal claims, holding that the clock begins to run “at the end of
the state-court litigation.” Mr. Reed, who is Black, was sentenced to
death by an all-white Texas jury for the rape and murder of a white
Rodney Reed
woman in 1998. Mr. Reed’s request to test the murder weapon and
additional evidence, with the hope of identifying the true perpetrator, now proceeds in state court.

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 The Death Penalty in 2023: Year End Report

In Escobar v. Texas, the Court issued a two-sentence summary opinion reversing and remanding
the case in light of the State’s confession of error. Areli Escobar was convicted in 2011 of the rape
and murder of a teenage girl in his apartment complex based almost entirely on the Austin Police
Department crime lab’s forensic testing. However, the State permanently closed the lab in 2016 af-
ter an investigation by the Texas Forensic Science Commission identified serious concerns about the
accuracy of its DNA testing. The district attorney’s office supported a new trial, but the Texas Court of
Criminal Appeals denied relief. In its Supreme Court brief, the State wrote in support of Mr. Escobar
that based on a “comprehensive reexamination” of the record, it was clear that prosecutors “had
offered flawed and misleading forensic evidence at [his] trial and this evidence was material to the
outcome of his case in violation of clearly established federal due process law.”
In Cruz v. Arizona, the Court held that its earlier ruling in Simmons v. South Carolina (1994)
applied retroactively. The case was the Court’s second intervention to prevent Arizona from circum-
venting settled law. The Court previously held in Simmons that a defendant has the right to inform the
jury at sentencing that a life sentence means life without parole. However, Arizona consistently de-
nied defendants that right, disingenuously arguing to juries that life-sentenced prisoners might receive
clemency. The Court rejected that argument in Lynch v. Arizona (2016), but the State later denied
John Montenegro Cruz the right to renew his appeal on those grounds. The Court ruled 5-4 in favor
of Mr. Cruz, holding that Arizona had created a “catch-22” for defendants. This decision resulted in
rare group relief: two subsequent cases, Burns v. Arizona and Ovante v. Arizona, granted summary
relief to seven additional defendants affected by the decision in Cruz. Experts estimate that up to thirty
Arizona death-sentenced prisoners may be eligible for relief, which will likely result in new sentencing
trials.

Precedent Observed in Dissents, Not Majority Opinions

This year, the justices issued more dissents to denials of certiorari in death penalty cases than
they did to opinions on the merits — and these dissents uniformly addressed the Court’s failure to
uphold its own earlier decisions regarding the constitutional rights of criminal defendants. Justice Sonia
Sotomayor, Justice Elena Kagan, and Justice Ketanji Brown Jackson (in her first full year on the bench)
stood united in their criticism of the Court’s “rush[…] to finality” in capital cases and cautioned that
the Court’s decisions and indifference may embolden states to disregard established Supreme Court
precedent in the future.

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In Brown v. Louisiana, the evidence showed that the prose-

cution withheld a confession by David Brown’s co-defendant that
never mentioned Mr. Brown at all, a clear violation of Brady v.
Maryland (1963). However, the Louisiana Supreme Court found no
Brady violation, reasoning that the confession was not exculpatory
because it did not point to an alternative killer and did not explicitly
state that Mr. Brown was not involved. After the U.S. Supreme Court
declined review, Justice Jackson, joined by Justices Kagan and
Sotomayor, wrote in dissent that the Court had “repeatedly reversed
lower courts—and Louisiana courts, in particular—for similar refusals David Brown

to enforce the Fourteenth Amendment’s mandate that favorable and material evidence in the govern-
ment’s possession be disclosed to the defense before trial.” Justice Jackson argued that the “require-
ment that the withheld evidence must speak to or rule out the defendant’s participation in order for it to
be favorable is wholly foreign to our case law.” Finally, she cautioned that the rejection of Mr. Brown’s
petition “should in no way be construed as an endorsement of the lower court’s legal reasoning.”
In Clark v. Mississippi, the evidence established that prosecutors violated the defendant’s consti-
tutional rights by illegally striking potential jurors of color. Just four years earlier, the Court had decided
Flowers v. Mississippi (2019), reversing the conviction and death sentence in a case where the same
prosecutor had struck 41 of 42 Black jurors across six trials. The Court ruled in Flowers that the prose-
cutor’s conduct violated Batson v. Kentucky (1986), the Court’s landmark decision forbidding racial
discrimination in jury selection. Like Curtis Flowers, Tony Clark’s trial featured stark racial disparities:
34.5% of the jury pool was Black, but the seated jury had just one Black juror (7%) and eleven white
jurors. In total, the State struck 87.5% of Black and just 16.7% of white potential jurors. On appeal, the
State presented printouts of criminal records for everyone in the area with the same last name as Black
prospective jurors to imply that those jurors had lied to the trial court about having no family members
with felony convictions, but never asked about the records during voir dire to verify that they were even
related. Justice Sotomayor forcefully dissented from the majority’s decision not to review the case,
joined by Justices Jackson and Kagan:

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Apparently Flowers was not clear enough for the Mississippi Supreme Court, however. In yet
another death penalty case involving a Black defendant, that court failed to address not just one
but three of the factors Flowers expressly identified. This was a direct repudiation of this Court’s
decision. This can only be read as a signal from the Mississippi Supreme Court that it intends
to carry on with business as usual, no matter what this Court said in Flowers. By allowing the
same court to make the same mistakes applying the same standard, this Court acquiesces in the
Mississippi Supreme Court’s noncompliance. Today, this Court tells the Mississippi Supreme
Court that it has called our bluff, and that this Court is unwilling to do what is necessary to
defend its own precedent. The result is that Flowers will be toothless in the very State where it
appears to be still so needed.

In Johnson v. Vandergriff, the defense asked the Court to

order a hearing on Johnny Johnson’s competence to be executed
based on a psychiatrist’s finding that he did not have a “rational
understanding of the link between his crime and his punishment.”Mr.
Johnson, who suffered from schizophrenia and had decades of
documented severe mental illness, said that Satan told him that his
execution was part of Satan’s plan to destroy the world. Mr. Johnson
insisted that “he is a vampire and able to ‘reanimate’ his organs,”
and that he could “enter an animal’s mind…to go on living after his
Johnny Johnson
execution.” Although Mr. Johnson appeared to be a textbook case
of incompetence for execution under Ford v. Wainwright (1986), a majority of the Court rejected his
application and the execution proceeded. “The Court today paves the way to execute a man with
documented mental illness before any court meaningfully investigates his competency to be executed,”
Justice Sotomayor wrote in dissent. “There is no moral victory in executing someone who believes
Satan is killing him to bring about the end of the world… Instead, this Court rushes to finality, bypassing
fundamental procedural and substantive protections.”
The dissenting justices questioned why the Court did not resolve the cases through summary dis-
position, also referred to as “Grant-Vacate-Remand” or GVR, as it had in Escobar, when doing so
would have been simple and straightforward. Justice Sotomayor had previously observed in a 2022
dissent from denial of certiorari that the Court “appears to be quietly constricting its GVR practice” in
criminal cases even when the ruling held “great stakes for the individual petitioner.” In Clark, Justice
Sotomayor wrote that the starkness of the misconduct should have made it an “easy case” to resolve—
the Court could have just vacated the judgment and directed the Mississippi Supreme Court to conduct

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a proper analysis—but that “appears to be too much for this Court today.” Likewise, in Brown and
Johnson, Justices Jackson and Sotomayor wrote that they would have summarily reversed. In Burns v.
Mays, also denied review, the defense lawyer failed to impeach a surviving witness who gave con-
tradictory testimony at each co-defendant’s trial; Mr. Burns’ petition argued that the lawyer’s conduct
was ineffective under Strickland v. Washington (1984). Justice Sotomayor dissented that the “Court’s
failure to act is disheartening because this case reflects the kind of situation where the Court has previ-
ously found summary action appropriate,” and the “need for action is great because Burns faces the
ultimate and irrevocable penalty of death.” As a result, as Justice Sotomayor put it in Clark, when the
“Court is unwilling to take even that modest step to preserve the force of its own recent precedent…
courts throughout the State will take note and know that this Court does not always mean what it says.”

Review Denied for High-Profile Innocence Cases

The Court also turned away several high-profile innocence cases this year. As former Justice
Antonin Scalia stated in Herrera v. Collins (1993), the Court “has never held that the Constitution
forbids the execution of a convicted defendant who has had a full and fair trial but is later able to
convince a habeas court that he is ‘actually’ innocent.” The decisions of the Court this year indicate a
reluctance to assume a role as the court of last resort for the wrongfully convicted.
In Toforest Johnson’s case,
Alabama prosecutors flatly denied for
seventeen years that they had compen-
sated their star witness until a former em-
ployee of the prosecutor’s office told the
defense team about a set of “confidential
Check made out to wit­ness Violet Ellison reward files” that were never disclosed.
This revelation prompted the State to finally admit it had paid $5,000 to the witness, claiming that the
check to her had been “misfiled.” The witness, Violet Ellison, had approached police after the posting
of a public reward offer for the same amount, and testified at trial that she overheard a three-way jail
phone call in which a man referred to himself as “Toforest” and confessed to the crime. Mr. Johnson’s
conviction largely rested on Ms. Ellison’s “earwitness” testimony even though she had never met Mr.
Johnson and over ten eyewitnesses placed him across town at a nightclub at the time of the crime. The
current district attorney, the original trial prosecutor, and three of the original jurors all support a new

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trial for Mr. Johnson. Nevertheless, the Court rejected his petition on appeal from denials of relief in
Alabama courts.
In Robert Roberson’s case, a robust record of scientific and
medical evidence presented in state court demonstrated that no mur-
der occurred at all. Mr. Roberson was convicted of killing his daugh-
ter, Nikki, based on the now-discredited scientific theory of “Shaken
Baby Syndrome.” Experts say that pneumonia and an accidental
fall caused Nikki’s death, not Mr. Roberson. At least 32 caregivers
convicted based on Shaken Baby Syndrome in the past have been
exonerated, and even its creator Dr. Norman Guthkelch has dis-
avowed the condition. Dr. Guthkelch called for a review of the cases
in 2012, writing that he was “quite disturbed” that what he “intended Robert Roberson with his daugh­ter Nikki

as a friendly suggestion for avoiding injury to children has become an excuse for imprisoning innocent
people.” When Texas courts denied Mr. Roberson relief, a group of physicians, scientists, and federal
judges supported his request for the Supreme Court to review his case. But as in Mr. Johnson’s case,
the Court denied review.
The Court’s denial of review in innocence cases paralleled its procedural decision in Jones v.
Hendrix, where it held that federal prisoners who are actually innocent are not entitled to an opportu-
nity to petition the court for release. The petitioner, Marcus DeAngelo Jones, was incarcerated based
on conduct that the Court later found did not constitute a crime. However, when he tried to argue this
claim on appeal, he was barred under the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA)
strict rules limiting successive petitions. The Court held that Mr. Jones had no “end-run” around AEDPA
even though he was by definition innocent of the charges. In dissent, Justices Sotomayor and Kagan
criticized the “disturbing results” of the decision: a “prisoner who is actually innocent, imprisoned for
conduct that Congress did not criminalize, is forever barred…from raising that claim, merely because
he previously sought postconviction relief. […] By challenging his conviction once before, he forfeit-
ed his freedom.” Though Jones was not a death penalty case, its holding further narrows options for
death-sentenced prisoners with innocence claims. In a separate dissent, Justice Jackson expressed that
she was “deeply troubled by the constitutional implications of the nothing-to-see-here approach that
the majority takes with respect to the incarceration of potential legal innocents.”

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The Court has yet to announce whether it will review the

widely-reported innocence case of Richard Glossip, who received
the Court’s only stay of execution this year pending the outcome of
his petition for certiorari. Mr. Glossip is in the rare position of having
the State’s support for his claim of prosecutorial misconduct—
but was forced to petition the Supreme Court for relief when the
Oklahoma Court of Criminal Appeals denied a joint request for a
new trial. Evidence shows that prosecutors pressured Mr. Glossip’s
co-defendant Justin Sneed to implicate Mr. Glossip and lie on the
Richard Glossip
stand regarding the murder of motel owner Barry Van Treese, who
had employed both men. The State did not dispute that Mr. Sneed bludgeoned Mr. Van Treese to
death while high on methamphetamines, but argued that Mr. Glossip had ordered the killing. Mr.
Glossip has received nine execution dates and eaten his “last meal” three times. A bipartisan group
of 62 Oklahoma legislators supports relief for Mr. Glossip. “There has never been an execution in the
history of this country where the state and the defense agreed that the defendant was not afforded a
fair trial,” said Representative Kevin McDugle, a Republican. “Oklahoma cannot become the first.”

Some Death Penalty States Urge the Court to Adopt a New Eighth Amendment Standard
First used in Trop v. Dulles (1958), the Court’s practice has been to look to state legislatures, jury
verdicts, and other objective criteria to evaluate whether a punishment is cruel and unusual in violation
of the Eighth Amendment, drawing its meaning from “the evolving standards of decency that mark
the progress of a maturing society.” The Court applied this test to reach landmark rulings in Ford v.
Wainwright (1986) (holding the execution of people with insanity unconstitutional), Roper v. Simmons
(2005) (holding the execution of juveniles unconstitutional), Atkins v. Virginia (2002) (holding the
execution of people with intellectual disability unconstitutional), and Kennedy v. Louisiana (2008)
(holding the execution of people who commit non-homicide crimes unconstitutional).
Some justices on the Court have questioned the doctrine over the years, advocating for an “orig-
inalist” interpretation of the Eighth Amendment that rejects only punishments that were considered
“cruel and unusual” when the Constitution was drafted. Former Justice Scalia believed that the Eighth
Amendment “is addressed to always-and-everywhere ‘cruel’ punishments, such as the rack and the
thumbscrew,” but “is not a ratchet, whereby a temporary consensus on leniency for a particular crime

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fixes a permanent constitutional maximum.” Justice Thomas has

echoed these arguments, writing that “the Framers did not provide
for the constitutionality of a particular type of punishment to turn
on a snapshot of American public opinion taken at the moment a
case is decided.” Justice Gorsuch, who joined the Court in 2017, en-
dorsed the originalist approach in Bucklew, writing that capital pun-
ishment is lawful because it was “the standard penalty for all serious
crimes” at the time of the founding and appears in the Constitution.
He did not mention the “evolving standards of decency” test once
Justice Antonin Scalia
in his opinion. Justice Gorsuch’s majority opinion garnered the votes
of four other conservatives still on the Court, but no other current member of the Court except Justice
Thomas has directly criticized the test.
This year in Hamm v. Smith, Alabama appealed to the Supreme Court after lower courts vacated
Joseph Clifton Smith’s death sentence, having found that Mr. Smith had an intellectual disability that
rendered him ineligible for execution under Atkins. Alabama argued in its petition that Atkins’ “dubious
methodology subjects States not to the fixed and objective strictures of the Constitution’s original mean-
ing but to the ‘judgment’ of other States.” Attorneys General of thirteen death penalty states, including
Texas and Florida, filed an amicus brief in support of Alabama in which they advocated for a new
“originalist” test. They argued that the “evolving standards of decency” test is a “lawless standard”
that “cannot be squared with the text, structure, and history of the Eighth Amendment,” and “States will
continue to be on the receiving end of federal overreach” until the Court imposes a new standard. The
Court has not yet announced whether it will grant certiorari in Mr. Smith’s case.

Developments in Federal Government

Lawsuit Alleges Federal Death Row Conditions Violate U.S. Constitution and Human Rights
Treaty Obligations
In January 2023, Jurijus Kadamovas, a Russian national on U.S. federal death row, filed a civil
rights lawsuit alleging unconstitutional conditions of confinement. The complaint, filed on behalf of
Mr. Kadamovas and seeking class certification for 37 other individuals incarcerated in the United

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States Penitentiary in Terre Haute, Indiana, alleges that the “severe-

ly isolating” and “unrelenting solitary confinement” on death row
falls below the standards outlined by international human rights
instruments regarding the treatment of prisoners, including the
International Covenant on Civil and Political Rights and the United
Nations Standard Minimum Rules for the Treatment of Prisoners.
The suit, which was filed by the ACLU of Indiana and national law
Jurijus Kadamovas firm Faegre Drinker Biddle & Reath LLP, argues that this treatment
is also a violation of the U.S. Constitution’s prohibition against cruel and unusual punishment. As of
December 2023, Mr. Kadamovas’ lawsuit is pending in federal court.

Federal Government Seeks Death Sentences

Trial of Sayfullo Saipov Ends in Life Sentence
In January 2023, a federal jury in the Southern District of New
York found Sayfullo Saipov guilty of intentionally killing eight people
in New York City by driving a truck on a bike path in 2017. In March
2023, the same jury concluded its sentencing-phase deliberations
without coming to a unanimous decision. Under federal law, if the
jury in the penalty phase of the trial cannot come to a unanimous
decision, the defendant cannot be sentenced to death. Mr. Saipov
was sentenced to eight consecutive life sentences, two concurrent
life sentences, and a consecutive sentence of 260 years in prison for Sayfullo Saipov

carrying out an act of terrorism. At trial, neither Mr. Saipov nor his attorneys contested his involvement
in the crime, but argued that a death sentence would not bring more justice: “It is not necessary to kill
Sayfullo Saipov,” said attorney David Patton. “It is not necessary to keep us or anyone else safe. It is
not necessary to do justice. So we are asking you to choose hope over fear, justice over vengeance
and, in the end, life over death.”
Trial of Robert Bowers Ends in Death Sentence
In May 2023, Robert Bowers went to trial five years after his attack on the Pittsburgh, Pennsylvania
Tree of Life Synagogue that resulted in 11 deaths and many more injuries. Mr. Bowers had offered
to plead guilty in exchange for a sentence of life without the possibility of parole, but the federal

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government rejected Mr. Bowers’ offer. Twelve death-qualified jurors and six alternates were selected
to hear federal charges that included hate-based crimes. During voir dire, prosecutors struck all Black,
Latinx, and Jewish potential jurors. Victims’ family members did not agree about whether a death sen-
tence should be sought. A 2021 letter from seven of the nine families who lost a relative expressed
support for the death penalty, while the other families expressed their concerns with the incompatibility
of Judaism and capital punishment. In July 2023, the jury found Mr. Bowers guilty of all 63 federal
charges related to the synagogue shooting. Following an eligibility determination phase and two hours
of deliberation, the jury determined that prosecutors had met their burden by proving that Mr. Bowers
had the “necessary intent” to commit a crime with specific aggravating factors that made him eligible
for the death penalty. Attorneys for Mr. Bowers told jurors about his history of mental illness and brain
impairment from childhood, including several suicide attempts and commitments to psychiatric facilities
before the age of 13, and argued that he was too delusional to be eligible for the death penalty.
On August 1, 2023, the jury unanimously recommended a sentence of death for Mr. Bowers. This
is the first new federal death sentence since 2019 and the first secured during the Biden Administration.
Mr. Bowers may face a state trial and potential state death sentences if the Allegheny County,
Pennsylvania District Attorney’s office decides to prosecute him. There is currently a governor-imposed
moratorium on executions in Pennsylvania.

Department of Justice Continues Pause on Federal Executions But Defends Existing Death
Sentences
Since Attorney General Garland took office, the Department
of Justice (DOJ) has withdrawn notices of intent to seek the death
penalty for 32 defendants that were initially filed during President
Trump’s administration. Capital charges against Mr. Saipov and
Mr. Bowers were both authorized under Attorney General Barr and
prosecuted this year by Attorney General Garland. In March 2023,
the U.S. Attorney for the District of North Dakota, at the direction of
AG Garland, withdrew the notice of intent to seek another death
sentence for Alfonso Rodriguez, Jr., who had been convicted and Attorney General Merrick Garland

sentenced to death in 2007 for the 2003 kidnapping and murder of college student Dru Sjodin. In
September 2021, U.S. District Court Judge Ralph Erickson overturned Mr. Rodriguez’s death sentence

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because of false testimony presented at trial, in addition to defense counsel’s failure to introduce evi-
dence of their client’s post-traumatic stress disorder, which may have prevented him from entering an
insanity defense.
No new notices of intent to seek a federal death sentence have been authorized by AG Garland.
In February 2023, the DOJ decided against seeking a death sentence for Patrick Crusius, who pled
guilty to nearly 50 federal hate crime charges in the racially motivated killing of 23 Latinx people and
injuring of 22 others in an El Paso, Texas Walmart in August 2019. Mr. Crusius intended on pleading
not guilty to the charges against him before federal prosecutors decided against seeking the death pen-
alty. Attorneys for the Department of Justice agreed with Mr. Crusius’ defense counsel that Mr. Crusius
has schizoaffective disorder. The mental health of a defendant is one factor that must be considered
by federal prosecutors when deciding whether to seek a death sentence. Pursuant to Mr. Crusius’ plea
agreement, he received 90 consecutive life sentences for the 90 charges against him. In July 2023,
El Paso District Attorney Bill Hicks announced that he intends to seek a state death sentence for Mr.
Crusius, who remains in local custody. In 2023, the Department of Justice agreed to the resentencing
to life without parole for Jeffrey Paul, a severely mentally ill prisoner who was federally sentenced to
death for his involvement in the robbery and murder of a retired national park employee in 1995.
The Department of Justice is still considering whether to seek a death sentence for Payton Gendron,
who is accused of the racially motivated killing of 10 Black people and injury of many others at the
Tops Friendly Supermarket in Buffalo, New York in May 2022. In November 2022, Mr. Gendron
pled guilty to 15 state charges, including ten counts of first-degree murder, three counts of attempted
second-degree murder as a hate crime, one count of second-degree criminal possession of a weapon,
and one count of domestic terrorism in the first degree. In February
2023, Mr. Gendron was sentenced to the most severe punishment
in New York state: life in prison without parole. New York abolished
the death penalty in 2007.

Federal Legislation Introduced to End Federal Death Penalty

In July 2023, Congresswoman Ayanna Pressley and Senate
Majority Whip Dick Durbin reintroduced the Federal Death Penalty
Prohibition Act of 2023. The bicameral legislation would prohibit
the use of the death penalty at the federal level and would require Representative Ayanna Pressley

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the commutation of all death sentences for prisoners currently on federal death row. Rep. Pressley
and Sen. Durbin previously introduced legislation in 2019, following then-Attorney General Bill Barr’s
announcement regarding the resumption of federal executions, and in 2021, following the execution
spree under President Trump’s administration. Both Rep. Pressley and Sen. Durbin have also written to
the Department of Justice and urged AG Merrick Garland to keep the pause on federal executions in
place.

U.S.S. Cole and 9/11 Military Commissions Capital Proceedings Stall

On September 6, 2023, President Biden rejected proposed conditions for a plea agreement
with five Guantanamo Bay prisoners accused of aiding in the preparation of the 9/11 terrorist attacks
that would have removed the death penalty as a possible sentence. According to the New York Times,
the defendants’ plea request included the condition that they avoid solitary confinement and receive
mental health treatment to mitigate the effects of the torture they endured at the hands of American
agents. President Biden rejected this deal, as a spokesperson for the National Security Council told
the press that “the President does not believe that accepting the joint policy principles as a basis for a
pre-trial agreement would be appropriate in these circumstances.” The U.S. Department of Defense’s
Office of the Convening Authority for the Office of Military Commissions will make the final decision
regarding settlement.
On September 21, 2023, Judge Matthew McCall ruled that Ramzi bin al-Shibh, one of the five
defendants in pretrial capital proceedings, is mentally incompetent to stand trial. Mr. bin al-Shibh has
been in military custody for 21 years and will remain at Guantanamo as authorities treat his post-trau-
matic stress disorder caused by the “enhanced interrogations” em-
ployed by the U.S. government and its agents.
In his opinion, Judge McCall wrote that Mr. bin al-Shibh is
wholly focused on his delusions and thus incompetent to stand trial.
“They disrupt his sleep and lead to outbursts that result in disciplinary
confinement measures. The result is a sleep-deprived accused whose
primary focus is on stopping attacks, not defending himself against
the charged offenses…. The fact that Mr. bin al-Shibh understands
the vital role that his defense counsel plays and yet, again and
Ramzi bin al-Shibh
Image received from David Bruck

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again, he focuses his counsel’s work on stopping his delusional harassment, demonstrates the impair-
ment of his ability to assist in his defense.”
On August 18, 2023, Judge Lanny Acosta Jr., a military judge overseeing the pretrial capital
proceedings of Abd al-Rahim al-Nashiri, a Saudi national who is accused of organizing the October
2000 bombing of the U.S.S. Cole, ruled that Mr. al-Nashiri’s confessions could not be entered in
evidence at trial because they are products of torture. Judge Acosta acknowledged that excluding
this evidence may have societal implications, but “permitting the admission of evidence obtained by
or derived from torture by the same government that seeks to prosecute and execute the accused may
have even greater societal cost.”
Prosecutors argued that Mr. al-Nishiri’s confessions were voluntary and thus admissible in court,
but the judge disagreed. “Even if the 2007 statements were not obtained by torture or cruel, inhuman,
and degrading treatment, they were derived from it,” said Judge Acosta (emphasis in original).
Defense attorneys have long argued that the torture and trauma endured during years-long in-
terrogations at CIA blacksites and Guantanamo Bay have caused permanent damage to all the 9/11
and U.S.S. Cole defendants and should make them ineligible for the death penalty.

International
Continued Isolation of the United States as a Retentionist Country Amid Rising Global
Execution Numbers
The United States remains a global outlier in its use of the death penalty. The overall worldwide
trend toward abolition of the death penalty in law or practice continued in 2023 with developments
in Malaysia, Kenya, and Ghana. On July 4, Malaysia took a step closer to abolition by eliminating
the mandatory death penalty for 11 capital offenses; following this reform, seven death row prisoners
were resentenced to a 30 year life imprisonment term on November 14. In July, Kenyan President Dr.
William Ruto commuted all death sentences imposed prior to November 21, 2022 to life sentences.
On July 25, Ghana joined 28 other African nations in abolishing the death penalty. Uganda is at odds
with the trend toward abolition in sub-Saharan Africa. It passed the Anti-Homosexuality Act 2023
on May 29 that made the death penalty a possible punishment for “aggravated homosexuality.” A
20-year-old man has recently been charged under this new law.

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Although the geographic scope of capital punishment has narrowed, the total number of known
executions worldwide increased for the second year in a row. This year’s increase is attributable to a
surge in executions by Iran, which has reportedly surpassed 700 executions for the first time in eight
years. Saudi Arabia (at least 121 executions as of November 8) and Somalia (at least 55 executions
as of November 22) have the second and third highest number of reported executions in the world.
Though the United States has at times joined the international community in condemning the
unlawful actions of fellow retentionist countries, the criticism has limited impact given the fact that
the Inter-American Commission on Human Rights (IACHR)’s precautionary measures for American
death-sentenced prisoners are frequently ignored. This year, the IACHR granted precautionary mea-
sures to South Carolina prisoner Richard Moore and to Missouri prisoner Michael Tisius; Mr. Tisius
was executed on June 6.

Increased Use of the Death Penalty in Violation of International Law and Norms
“Although inter­na­tion­al law per­mits
the death penal­ty in very lim­it­ed cir­
cum­stances, in prac­tice it is almost
impos­si­ble for States to impose the
death penal­ty while com­ply­ing with
human rights oblig­a­tions, includ­ing
the absolute and uni­ver­sal pro­hi­bi­
Morris Tidball-Binz tion of torture.” Alice Jill Edwards

— Statement from Morris Tidball-Binz, UN Special Rapporteur on Extra-judi­

cial, Summary or Arbitrary Executions, and Alice Jill Edwards, UN Special
Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.

Secrecy shields much of the information about the use of capital punishment in the U.S. and in
many retentionist countries. China, Vietnam, and North Korea classify information relating to the death
penalty, such as number of death sentences and executions, as state secrets. China is estimated to ex-
ecute thousands of people per year, making it the world’s leading executioner, and North Korea has
executed at least 17 people this year. In Iran, the Revolutionary Court has reportedly convicted and

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sentenced to death individuals without adequate counsel in quick, secret trials, routinely characterized
by human rights advocates as unfair and lacking due process.
Ill-treatment of prisoners or trials based on information obtained through torture are prohibited
under international law. Some countries, including Iran, Vietnam, and Saudi Arabia, have executed
individuals this year despite serious allegations of torture. In Vietnam, Le Van Manh was executed
amidst numerous appeals from the international community to spare his life. “I am disturbed by the
execution of Le Van Manh despite calls for clemency, in light of serious doubts about the fairness of his
trial proceedings and credible allegations of torture or ill-treatment to extract a confession,” said Mr.
Tidball-Binz.

Executions for Drug Crimes and Other Non-Homicides

The International Covenant on Civil and Political Rights permits the use of the death penalty for
“the most serious offenses,” defined as intentional killing, in retentionist countries; only two retentionist
countries, Jamaica and Saint Vincent and the Grenadines, follow this standard. In 2023, many peo-
ple were charged and executed for non-serious offenses, such as drug-related offenses and politi-
cal speech. As of October 10, 305 executions in Iran, or 57%, have been the result of drug-related
charges, marking a dramatic increase from the previous year’s number of 180 drug-related executions.
Saudi Arabia continues to execute people for drug-related crimes after resuming in November 2022.
In the 54th session of the UN Human Rights Council, Saudi Arabia led a proposal to remove para-
graphs in a proposed resolution condemning capital punishment for drug-related crimes, emphasizing
state sovereignty in establishing appropriate legal punishments; the proposal was rejected. Singapore
has notoriously strict laws on drug possession, prescribing the death penalty for people convicted of
trafficking more than 15 grams of heroin, 30 grams of cocaine, 250 grams of methamphetamines, or
500 grams of cannabis. As of July 28, at least four people were executed for drug-related offenses
in Singapore. Pakistan has sentenced several people to death for sharing blasphemous content on
social media. Saudi Arabia sentenced a retired schoolteacher to death for retweeting criticism of the
government on social media. Iran executed at least five protesters on security-related charges and two
for blasphemy. In North Korea, nine people were publicly executed for operating a beef distribution
ring, one warehouse manager for allegedly stealing 20,000 doses of penicillin, and two women for
reportedly watching South Korean television programs.

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Over-Representation of Vulnerable Populations

Vulnerable populations, such as the very poor, people with serious mental impairments, and juve-
niles, as well as people from ethnic, religious, or racial minorities, are overrepresented on death rows
across most retentionist countries. At least three juveniles are believed to have been executed in Iran,
and the Baluch population accounts for 21% of all executions and 31% of drug-related executions in
2023 (as of October 10) despite comprising only 2-5% of Iran’s population. 90% of those executed
for security-related charges in Iran in the last 13 years were Kurdish (51%), Baluch (28%), and Arab
(15%). Despite a 2020 royal decree ordering the implementation of a 2018 law abolishing the death
penalty for juveniles, at least nine children in Saudi Arabia face the death penalty. In June, Saudi
Arabia executed two Bahraini Shi’a on terrorism-related charges after what Amnesty International
described as a “grossly unfair trial.” These two are among at least 16 executions of Shiites in Saudi
Arabia this year.

Key Quotes
Now I know the public, quite reasonably,
has conjured up in their minds, what
the worst of the worst is, and it has to
do with the crime committed. As a lay
person, public citizen, I can understand
that. But being involved in corrections
at the level that I’ve been over 20 years,
at least, and administering prisons, I’ve
been able to see below the surface of that
type of classification. So, it’s not that easy to come up with a
singular profile of what the worst of the worst might be.
— Frank Thompson, former Oregon Superintendent of Prisons, on Discussions with DPIC

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 The Death Penalty in 2023: Year End Report

It’s a very important issue that has to be done correctly, and

we will take the time to fix the protocol and to make certain
that we don’t move forward until everything’s in place.
— Governor Bill Lee, discussing Tennessee’s execution protocol

This Court has so prioritized expeditious

executions that it has disregarded
well-reasoned lower court conclusions,
preventing both the meaningful
airing of prisoners’ challenges and the
development of Eighth Amendment law…
Unfortunately, lower courts are receiving
the message.
— Justice Sonia Sotomayor, dissenting in Barber v. Ivey

Justice has been delayed for too long in South Carolina…

This filing brings our state one step closer to being able
to once again carry out the rule of law and bring grieving
families and loved ones the closure they are rightfully owed.
— South Carolina Governor Henry McMaster announcing the state’s ability to resume
executions

If I thought that the death penalty was going to stop people

from committing brutal murders, I would seek it. But we
know that it won’t… The reality is that the death penalty
doesn’t serve as a deterrent, and the death penalty does
not bring people back…What I can assure you is that we’re
going to do everything within our legal power to make sure
that this defendant never is out of prison.
— Los Angeles County District Attorney George Gascón, speaking at a press conference

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 The Death Penalty in 2023: Year End Report

If the death penalty is reinstated, or if we

start seeing it applied more, we can expect it’s
going to be applied in a disproportionate way
and that those are the same racial disparities
that we have seen over years. My concern is
[the number of defendants of color sentenced
to death] may even increase because the
rhetoric lately has been so much stronger.
We have to know that if we’re going to punish
more, that it’s going to be disproportionately
borne by Black and Brown communities.
— Jamila Hodge, Executive Director of Equal Justice USA in an op-ed piece in The Hill

In my heart, I feel that he is not only remorseful for his

actions but has been doing good works for others and has
something left to offer the world… I respectfully request that
his sentence be changed to life in prison where hopefully he
can continue to help others and make amends for his past
crimes.
— Sammie Gail Martin, sister of William Speer’s murder victim Gary Dickerson

For me, the opposition to capital punishment

has just been a natural extension of our pro-
life position of building an inclusive society,
a society that welcomes everyone into the
human family and says: ‘Listen, your worth is
not dependent on whether somebody wants
you or not.’ God’s given you human dignity,
God’s giving you worth, and so we just want to
stand on the side of the Lord.
— Evangelical Pastor Rich Nathan on Discussions with DPIC

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 The Death Penalty in 2023: Year End Report

Had we not had this trial, the deeds of this criminal would
have been glossed over in history… The purpose of the death
penalty is not so much punishing, as cutting off the person
from society, eliminating the evil, taking away the risk, the
potential for infection, and the possibility of further harm to
the citizens.
— Audrey Glickman, survivor of the Tree of Life Synagogue shooting, on the sentencing of
Robert Bowers

I am also deeply troubled by the

constitutional implications of the
nothing-to-see-here approach that
the majority takes with respect to
the incarceration of potential legal
innocents… Apparently, legally innocent
or not, Jones must just carry on in prison
regardless, since…no path exists for him
to ask a federal judge to consider his
innocence assertion. But forever slamming the courtroom
doors to a possibly innocent person who has never had
a meaningful opportunity to get a new and retroactively
applicable claim for release reviewed on the merits raises
serious constitutional concerns.
— Justice Ketanji Brown Jackson, dissenting in Jones v. Hendrix

As governors, we had the power to commute the sentences

of all those on Alabama’s death row to life in prison… We
missed our chance to confront the death penalty and have
lived to regret it, but it is not too late for today’s elected
officials to do the morally right thing.
— Former Alabama Governors Don Siegelman (D) and Robert Bentley (R) discuss their
regrets surrounding capital punishment

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 The Death Penalty in 2023: Year End Report

Death Penalty Information Center ■ Washington, DC

202 - 289 - 2275 (Main)•202 - 289 - 4022 (Media)
dpic@[Link]•[Link]

The Death Penalty Information Center (DPIC) is a national non-profit organization whose mis-
sion is to serve the media, policymakers, and the general public with data and analysis on issues
concerning capital punishment and the people it affects. DPIC does not take a position on the death
penalty itself but is critical of problems in its application. This report was written by DPIC’s Executive
Director Robin M. Maher and Managing Director Anne Holsinger, with the assistance of DPIC
staff (Hayley Bedard, Tiana Herring, Dane Lindberg, Nina Motazedi, Leah Roemer, and Rickelle
Williams) and interns (Skylar Bates and Isabel Carles). Further sources for facts and quotations are
available upon request. The Center is funded through the generosity of individual donors and foun-
dations, including the Roderick and Solange MacArthur Justice Center; the Fund for Nonviolence;
M. Quinn Delaney; and the Tides Foundation. Funding for DPIC’s law fellow position was provided
in part by the UC Berkeley School of Law. The views expressed in this report are those of DPIC and
do not necessarily reflect the opinions of its donors.

Death Penalty Information Center 45