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The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States

Dec 7, 2019 | , ,

The Intercept

A BROKEN SYSTEM

It was a snowy, windy, frigid spring day in Cheyenne, and we were freezing, standing on a sidewalk outside the Wyoming Supreme Court. The carillon of a nearby church began to chime precisely as Marguerite Herman, a veteran lobbyist with the League of Women Voters of Wyoming, announced that the press conference would begin.

“Welcome, everyone, on a very gray, overcast day,” Herman began cheerfully as the bells continued to ring. “We’re all here, bright and full of hope because we are looking forward to the 2020 legislative session to finally get a repeal of the death penalty in Wyoming to the governor’s desk.”

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

Sabrina King, director of campaigns for the ACLU of Wyoming, speaks during the “Campaign Launch to End the Death Penalty in 2020″ event outside of the Supreme Court of Wyoming in Cheyenne on April 30, 2019.

Photo: Rachel Woolf for The Intercept

It would be the second time in as many years that opponents of capital punishment here would make a push for repeal. The press conference had been organized to announce a statewide education campaign to get out the word as to why the death penalty should be eliminated. During the 2019 legislative session, the abolition effort — spearheaded by Rep. Jared Olsen and Sen. Brian Boner, both Republicans — had come tantalizingly close to fruition before the full Senate shot it down. Olsen was undeterred; he has vowed to bring the measure back next year and is convinced that it can succeed.

The 32-year-old, ruddy-faced representative is a lawyer with a libertarian streak. He’s been in the Legislature for three years and has focused largely on bills to create business and banking opportunities around cryptocurrency. It was Herman, a local Catholic leader, and Sabrina King, director of campaigns for the American Civil Liberties Union of Wyoming, North Dakota and South Dakota, who approached him about taking on the abolition legislation. Until then, Olsen told the roughly two-dozen people gathered outside, he had been a proponent of capital punishment. Then he started doing research. He contemplated the morality of it. He learned that more than 160 defendants sentenced to death across the country had been exonerated, a fact that he found unconscionable. And he learned just how much money Wyoming — the least populous state in the nation — was spending to defend the practice: roughly $1 million a year in a state that has not executed anyone since 1992. None of it, Olsen decided, made any sense — and certainly not to a fiscal conservative wary of government overreach. The state had spent millions, he told the crowd, “fruitlessly trying to defend a broken system.”

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

Rep. Jared Olsen outside of the Supreme Court of Wyoming in Cheyenne on April 30, 2019.

Photo: Rachel Woolf for The Intercept

“As we educate people and they learn about those exonerees, they learn about the moral considerations, they learn about the unfairness in how the death penalty is applied, I think that minds and hearts will change,” Olsen continued. There’s a strong majority in the state House in favor of abolition, he noted, and just two additional votes in the Senate would get the bill through to the governor. “If we educate the people, we educate our representatives. And if we do all of that, the days of the death penalty are absolutely numbered. And in 2020, we will abolish the death penalty in Wyoming.”

The politics in Wyoming reflect a nationwide sea change in anti-death penalty advocacy. Abolition there has become a solidly bipartisan issue, with conservative lawmakers increasingly focused on the death penalty as a fiscal nightmare — often noting, correctly, that it is far more financially prudent to sentence a defendant to life in prison, avoiding the costly staffing and court scrutiny that comes with a death sentence. Atop that foundation, some lawmakers, like Olsen, are more vigorously embracing and speaking out about the other troubling aspects of capital punishment that have long formed the backbone of the abolitionist movement: the moral ramifications, the ongoing victimization of the families of the murdered who twist in the wind as the wheels of justice turn slowly forward, and the disturbing frequency with which we incarcerate — or even execute — people for crimes they did not commit.

We came to Cheyenne as part of a larger project, seeking to put this phenomenon in historical context. For more than three years, The Intercept has been compiling a dataset of individuals sentenced to death dating back to July 1976 — when the U.S. Supreme Court ushered in what is commonly known as our “modern” death penalty era. Just four years earlier, in Furman v. Georgia, the Supreme Court had ruled that capital punishment was unconstitutional as applied throughout the United States, describing it as arbitrary and capricious. “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Justice Potter Stewart famously wrote.

As states rewrote their death penalty statutes to comply with Furman, some — including Wyoming, which passed a new law in 1973 — sought to make death sentences mandatory for certain crimes as one way to impose uniformity. Others designed bifurcated trials in which mitigating factors would be weighed against aggravating factors to decide whether a defendant should die. In 1976, the Supreme Court upheld the latter sentencing scheme in a landmark decision, Gregg v. Georgia. Executions resumed the following year.

As the 40-year anniversary of Gregg approached in 2016, however, it was clear that the death penalty retained the same arbitrariness that led to Furman in the first place. The aggravators that were supposed to narrow death sentences to apply to the “worst of the worst” were instead expanded in many states, vastly widening the net of death-eligible cases. Decades of studies consistently found capital punishment to be biased against the poor and marginalized, with a disproportionate impact on people of color. Who gets a death sentence today is determined not by the heinousness of their crime, but by the jurisdiction where it was committed.

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

The Intercept’s dataset contains individuals sentenced to die since July 2, 1976, in active death penalty jurisdictions, including 29 states and the federal government.

Graphic: Soohee Cho/The Intercept

In our own years of reporting on capital cases, we have seen this evidence time and again. But we wanted to see what a comprehensive death-row dataset might show, specifically in active death penalty states. Starting in the summer of 2016, we began collecting information on everyone sentenced to death in those states beginning on July 2, 1976, the day Gregg was announced. The result is a dataset of more than 7,300 individuals sentenced in 29 states and the federal system. Of those, 1,448 have been executed and 2,752 remain on death row.The dataset contained some startling numbers when it came to race. In the country’s leading death penalty states, racial disparities appear to be getting larger even as new sentences decline. We were particularly struck by places like Colorado, so emblematic of capital punishment’s racial and geographic disparities that not only are all three men sitting on death row black, but they all went to the same high school.

The data also more starkly exposed another familiar aspect of the death penalty’s failures: the huge number of death sentences that will never lead to an execution. The single largest group of people in our dataset is no longer on death row. More than 2,000 have been resentenced and hundreds have been released. Hundreds more have died awaiting execution; dozens have killed themselves.

Wyoming’s experience with capital punishment, while limited, still falls firmly within this framework: Since 1976, four people have been sentenced to death. Just one person was executed, in 1992. Two cases were reversed and ended in life sentences. One man is ostensibly still on death row. While his sentence was overturned in 2014, prosecutors are again seeking approval to kill him. The case remains pending.

Since the summer of 1976, just 20 percent of the death-row population has been executed, while 43 percent are no longer on death row. The majority of these people have been resentenced to lesser prison terms. Hundreds have been released from prison altogether.

Although the biggest gains for abolitionists this year have come out of California (where the governor declared a moratorium) and New Hampshire (which overrode a governor’s veto to abolish the death penalty), we’ve watched repeal efforts take root away from the coasts, in western states that many would assume to be unlikely contenders for abolition. Repealing the death penalty has become a recurring theme in places like Utah, Montana, Idaho, Colorado, Nevada, Nebraska, and, of course, Wyoming — where the efforts of Olsen and an ideologically diverse group of colleagues and supporters got as near to passage as has ever happened in this deep-red state.

We wanted to talk to people on the ground and on all sides of the issue: policymakers, activists, and individuals who have been directly impacted by capital punishment. So we hit the road, traveling to four states — Wyoming, Colorado, Nevada, and Nebraska — each of which in recent years has seen increased and often intense advocacy and debate around capital punishment. We wanted to know not only what is behind the momentum for change, but also what has stopped it — and what people think it will take to finally eliminate the death penalty, particularly as elected officials in many western states are gearing up for legislative sessions that begin in January 2020.

Wyoming was the last stop on our trip. After the press conference, Christopher Xanthos of Cheyenne’s Christian Orthodox church played with his young son and pitched snowballs across the state Supreme Court’s blanketed lawn. Xanthos was jazzed — excited to get the word out and help push a repeal bill across the finish line. Like the rest of the crowd, he felt confident that bipartisan strength and enthusiasm would lead to repeal. The mythos of Wyoming’s independent, suffer-no-fools cowboy culture is real, he added. The state can serve as a pioneering model, especially for red states. “It’s an exciting time in Wyoming,” he said. “If we can effect this change in Wyoming, the repercussions of that will be great.”

DISAPPOINTMENT IN COLORADO

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The exterior of the Colorado State Capitol in Denver on Nov. 15, 2019.

Photo: Rachel Woolf for The Intercept

The energy in Wyoming was a jarring contrast to where we had just been a day earlier. We’d driven up from Denver, where the atmosphere among abolitionists was morose. This was ironic: If there was any state that had appeared perfectly poised to pass a repeal bill in 2019, it was Colorado. Democrats had a majority in the Legislature, and the new governor, Jared Polis, had indicated that he would sign the measure.

But that didn’t happen. Instead, for the fifth time since 2000, the bill flamed out — in spectacular fashion. While Wyoming’s failed repeal effort sparked optimism about the future, in Colorado, where all the stars had seemed aligned, we found bitterness and tension — and a cautionary tale of how power and competing personal agendas could hijack policy reform.

We’d been following the trajectory of the latest Colorado repeal effort since before setting off on our trip. It started off strong in the early spring, only to wind up on a roller coaster of recrimination, and ended with one of its sponsors, freshman state Sen. Julie Gonzales, tearing up on the floor as she announced on April 2 that she was pulling the measure from consideration.

We wanted to know why things had gone so unexpectedly awry, so we headed to Denver, arriving just before the weather turned cold and snow began to fall. It was at the tail end of the state’s legislative session, lawmakers were working overtime as they sped toward the May 3 closing day, and it was proving tricky to pin down interviews. Lawmakers were amazingly elusive — a situation exacerbated by the confusing layout of the state’s capitol and the cagey response of legislative aides when we inquired about the location of a particular member’s office. (They didn’t like to give out that information, we were told, because of unspecified “security” concerns.)

Nonetheless, after hunting through narrow hallways and up and down steep flights of steps, we finally found the office of state Sen. Angela Williams, a Denver Democrat who, with Gonzales, had sponsored the 2019 repeal legislation. We were early for our appointment, so we occupied a couple of chairs wedged into a hallway corner. A few minutes later, Williams strode toward us in a smart green suit accented with dangling green glass earrings and vivid blue nail polish. Her hair was cropped and sleek. She had a calm, rather dispassionate air and spoke evenly despite the drama that had just unfolded at the capitol.

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Colorado state Sen. Angela Williams in her office at the Colorado State Capitol in Denver on Nov. 14, 2019.

Photo: Rachel Woolf for The Intercept

Williams was elected to Colorado’s House of Representatives in 2010. She was the first black woman to serve as the majority caucus chair. Among her major accomplishments before winning a Senate seat in 2016 was a package of reforms titled “Rebuilding Trust Between Community and Police,” inspired by the constant news of police shootings of black men across the country. The legislation was initially met with resistance, not only from law enforcement, but also from members of the Senate, which was under Republican control at the time. But Williams impressed many of her colleagues by working across the aisle to win votes. “There was a lot of education to people who don’t represent communities like mine,” she said. In the end, “out of 15 bills, we passed 11 of them with bipartisan support.”

To Williams, abolishing the death penalty is an extension of these kinds of criminal justice reforms. “When you represent a district that is so diverse as mine, this actually affects the people in my district,” she said. She recalled when her own son was coming of age and constantly getting traffic tickets. “He and any young black man can slip into the system. And that’s why we’ve got to fix this whole broken part of the justice system.”

Williams’s perspective on the death penalty was also shaped by a catastrophic event in her home state of Oklahoma. When Timothy McVeigh blew up the Alfred P. Murrah building in 1995, she was working at the YMCA of Metropolitan Denver. Like the Oklahoma City building where 19 children were killed, her workplace had a child care center; she remembers being heartbroken as she visited the Oklahoma City Memorial and Museum, where a child’s shoe is on display. But she also questioned whether executing McVeigh would solve anything: “Does putting someone to death for their crimes of this magnitude really bring any relief to the victims?”

In Colorado, where all the stars had seemed aligned, we found bitterness and tension — and a cautionary tale of how power and competing personal agendas could hijack policy reform.

With practically no executions and only three people on death row, Colorado is not exactly a poster child for capital punishment. Yet it offers an uncanny portrait of the way that death sentences are increasingly concentrated in isolated clusters. In a state as white as Colorado, it would also be hard to come up with a scenario that more plainly illustrates the death penalty’s race problem. Of the three people on death row at the maximum-security prison in Cañon City, each one was prosecuted by the same district attorney’s office. All three of them went to the same high school. And all three of them are black.

Two of these men were convicted of killing a man named Javad Marshall-Fields, along with his fiancée, Vivian Wolfe, in 2005. Marshall-Fields’s mother, Rhonda Fields, became a vocal victims’ rights activist. In 2007, she was appointed by the governor to the Colorado Commission on Criminal and Juvenile Justice. In 2010, the same year Williams arrived at the capitol, Fields won a Democratic seat in the state House. In 2016, both women were elected to the state Senate.

If there was a single figure standing in the way of abolition in Colorado, we were repeatedly told, Fields was that person. Although Williams did not immediately refer to her by name, it was clear that she agreed. “I think that, No. 1, we have a very rare situation here,” she said, “because we have a member of the Legislature whose family has been affected by a heinous crime.” To Williams, there is no reason a repeal bill should not have been able to pass otherwise. “I think that her situation puts up a huge barrier.”

Williams said that she had tried to be sensitive to Fields, approaching her when she decided that she was going to bring the bill in November 2018. “She just said she couldn’t support it,” Williams said. “And I said, I realize you cannot support it. I’m not asking you for your vote. I’m trying to be respectful of you, so you don’t hear it any place else.” That same month, a story in the Colorado Independent announced a plan by Fields’s colleagues “to capitalize on the blue wave that swept Colorado in November’s midterm elections,” quoting outgoing Democratic state Sen. Lucía Guzmán, who said, “I think this year is going to be the year.”

But while the lawmakers sought to frame the issue “as a moral, rather than a partisan, decision,” according to the Independent, the death penalty bill was branded a Democratic prerogative from day one. By the end of March,  it was “on life support,” the news site reported. Legislators who had previously signaled their support for abolition appeared to get cold feet. Several cited concern over the process, which had been inexplicably rushed.

Williams said there were two legislators who had committed to voting on the bill, only to later flip. She wasn’t surprised, she said sternly. But she was disappointed. “Because usually when you give your word in this building, it’s all you have. And you keep it.”

We knew we had to talk to Fields. The problem was finding her. She did not respond to repeated emails and, as was the case during most of our time under the state’s gold dome, it took a long search to find her office.

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Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

Colorado state Sen. Rhonda Fields holds a photo of her deceased son, Javad Marshall-Fields, and his fiancée, Vivian Wolfe, at the Colorado State Capitol in Denver on Nov. 15, 2019.Photos: Rachel Woolf for The Intercept

The room was large and airy, with images of iconic civil rights and feminist leaders adorning the walls and a framed poster from Barack Obama’s first inauguration. Fields was not there. As we were leaving a note on her desk, she walked in. She wore glasses, a sweater set, and a breezy indifference to our presence. Let’s just go ahead and talk now, she said when we told her what we wanted, moving to a speaker behind her desk that piped in sound from the Senate floor.

We were blunt: We’d been told that her opposition had derailed the repeal effort. She disagreed. “No, because I didn’t lobby anybody,” she said. “I just stood on my own truth.” Fields said she understood that there are “disparities” in how the death penalty is meted out — and she is used to standing opposite civil rights groups and church leaders who argue for its demise. “But what I know is that the three people who are on death row are there for murder; and two of the people who are on death row are there for killing my son. And they happen to be black. And they were found guilty.”

That the proposed legislation wasn’t retroactive — and thus, wouldn’t impact the sentences handed down to her son’s killers — had not impressed Fields. If the death penalty wouldn’t be good for “future crimes,” she asked, why would you consider it acceptable for someone already on death row? Besides, she noted, the governor had indicated that if the measure were to pass, he would grant reprieves to the men convicted for her son’s death.

Polis hadn’t even consulted her, she went on, a vein of frustration and anger creeping into her voice. “So, he already staged the battle,” she said, and “he did so without talking to the victims.” She’d heard about it through the media. “I have a right to know when you’re going to take that kind of action on the offender, and I didn’t have that courtesy. And his office,” she said, striking her foot against the floor loudly three times, “is right here, underneath me.”

She said she came into work on a Monday only to learn that the death penalty bill would be considered in committee; the next day, there was a press conference about it and on the third day, the hearing. There was no chance for proponents of capital punishment to mobilize and have their voices heard, she said. “That’s what democracy is all about, giving people a fair shake, giving the opportunities to hear the arguments.”

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The Intercept’s dataset contains individuals sentenced to die since July 2, 1976, in active death penalty jurisdictions, including 29 states and the federal government.

Graphic: Soohee Cho/The Intercept

Fields’s side of the story isn’t without contradiction. For one thing, Williams had insisted she told Fields that the bill was coming well before the session began. But even so, there is little doubt that the bill was moved too fast — and not just for its foes. Repeal supporters also told us that they had to scramble to get their testimonies together and weren’t entirely sure why the bill was rolled out in such a haphazard fashion. The rush didn’t seem to give anyone an advantage. And, bluntly, sources put this squarely on Williams’s shoulders — whether it was a mere miscalculation or some intentional dig at Fields isn’t clear.What is clear is that Fields felt slighted by the process and, regardless of whether she actively campaigned against the measure, that dudgeon drove an iron spike through the bill. But while she is no doubt one of the most famous and powerful crime victims in the state, Fields was not the only person at the capitol who could speak from personal experience.

We finally met up with Julie Gonzales on a crisp Sunday morning in her office, which is just across the hall from Williams’s office. The walls were adorned with an autographed portrait of Dolores Huerta, a purple “Trans ALLY” sign, and a white board featuring a quote from activist Alicia Garza: “Intersectionality is about making sure that you don’t have to leave ANY PART of yourself behind.”

Gonzales, a former community organizer, had never really thought about the death penalty until a few years ago, when her fiancé got a call from the police: They’d finally found his father’s killer and would be able to close the long-unsolved crime. “That’s when I really for the first time … had to think very deeply about where I stood on the issue,” she said. She concluded that it just wasn’t an appropriate punishment — even though not everyone in her fiancé’s family felt that way.

It was that experience in part that prompted her to sponsor the repeal legislation. Gonzales had intended to file the bill herself, but when she went to do so, she learned that Williams had beat her to it. She figured they could work together. But that ended up being more complicated than she’d anticipated. “What I will say,” she said, cautiously, “I was very deferential in the process this year.” In other words, she’d allowed Williams to take the lead, which turned out to be a tactical error. And it was clear that she also felt the bill rollout was rushed and put Fields on the defensive. “I come out of grassroots organizing,” she said, “so for me, it has always been really important … to convene tables where people who are often not heard do have a seat at the table and a voice in the process. We may not agree on everything, but that act of being heard is really important.”

She intends to carry the legislation again in 2020.

“I am appalled — and it’s fine for you to print this — I’m appalled that a Democratic-majority Legislature failed in their responsibility to move this state forward,” said Guzmán, the former state senator. “They failed, I believe.”

We were sitting in the living room of Guzmán’s pink Victorian home, on a corner of a historic district in north Denver. A coffee table was stacked with books, and Guzmán’s elderly black lab sat on the Persian rug at our feet.

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

Former Colorado state Sen. Lucía Guzmán at her house in Denver on Nov. 15, 2019.

Photo: Rachel Woolf for The Intercept

Guzmán, an ordained Methodist minister originally from Texas, spent years in the state Senate, holding the seat now occupied by Gonzales, and fighting for abolition. She brought a powerful perspective to the issue: Her father was murdered in 1975. “I think my own grappling with my father’s death was one of the major instigators of my understanding that killing someone who kills somebody doesn’t really do anything,” she said.

Guzmán followed the fight at the capitol closely, albeit from afar. “At first, they wanted me to go down and testify, and I thought about it, and I thought, No, you know, my time there is finished.” Besides, the judiciary committee was Democratically controlled, so they did not need her to advance it. What they did need was to form a united front on the bill and seek out allies where they could.

“If we continue to kill people who kill people, we don’t move forward as individuals nor as societies.”

Guzmán became concerned as she watched events unfold. Neither the president of the Senate nor the majority leader appeared to be leading the effort. “I just know that Senator Williams, from the very beginning, said, ‘Actually, I’m running the bill. I’ve got the title, I’m doing it.’” To Guzmán, the bill suffered for having “the wrong set of leaders.” Guzmán had endorsed Gonzales, praising her work as a community activist, but the freshman senator had no experience working with caucus members — and no “buy-in” with conservative members who might have been convinced to sign on.

Finally, Fields “has to be dealt with,” Guzmán said. That means embracing her, but not letting her hijack the effort in the name of all victims. Most importantly, repeal had to be about more than political gamesmanship. “It’s a big deal. It’s not a poker game. It’s not, you know, ‘I drew some good cards here, so I win this time.’” Abolishing the death penalty “should be about improving our societies,” she continued. “If we continue to kill people who kill people, we don’t move forward as individuals nor as societies.”

NEVADA VOLUNTEERS

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A colorized postcard of the Nevada State Prison.

Image: Courtesy of the Nevada State Library, Archives and Public Records

By the end of April, Nevada Assembly Member Ozzie Fumo, a Democrat from Las Vegas, was busy rushing toward the end of the state’s biennial legislative session. He was also frustrated. One of his bills, a measure to repeal the death penalty, hadn’t even gotten a hearing. Political observers blamed it on nearsighted politics. Democrats had seized control of the capitol, including the governorship, and there was a fear that passing the repeal too soon would make them all look too liberal, particularly approaching the 2020 election cycle.

Repeal bills have been filed regularly over the last decade or so, creating a steady press that seems to be catching on. Fumo said more Republicans are coming to the table and that polling numbers are trending toward abolition. So why not give it a hearing? “Even if it didn’t get a vote or if it died in the Senate or the governor said he wasn’t going to sign it … at least the conversation happened, and people were going to be educated about it,” he said. “On both sides.”

To Fumo, there are a multitude of reasons that Nevada should repeal capital punishment. There’s the cost, the necessary but lengthy appeals process, the unacceptable likelihood of wrongful convictions. And then there are the families of victims. It’s a fallacy, he said, that the death penalty brings closure to the families of the murdered. “The person on death row sometimes outlives the parents or siblings or spouses and survivors of the victim,” he said.

Fumo was on the Assembly’s judiciary committee the last time a repeal bill came up. It was March 29, 2017, and the committee met that day solely to consider AB 237, which would eliminate capital punishment and apply retroactively, clearing the state’s death row, which, according to The Intercept’s dataset, currently houses 78 people.

Among those at the hearing that day was Cynthia Portaro. It was just one day shy of the sixth anniversary of her son Mike’s murder. She was there to testify in favor of the bill.

On March 30, 2011, Mike, a 22-year-old aspiring musician, was selling tickets to his upcoming show when he was gunned down in his car in the parking lot of a Las Vegas brewery. The man who shot him had been sitting outside the brewery, smoking a cigarette. He walked up to Mike, shot him multiple times, and took off in his car.

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Cynthia Portaro at her home in Las Vegas on Nov. 26, 2019.

Photo: Krystal Ramirez for The Intercept

It was 3:30 a.m. when the cops came knocking on Portaro’s door. She knew someone was dead — she just didn’t know who. Three of her five children were home; Mike and his brother and their father were all away. “I never even fathomed it would have been one of my kids,” she recalled this spring, sitting with her dog outside a Starbucks on a busy boulevard that cuts through the city’s west side.

With the help of surveillance video and DNA on a cigarette found under Mike’s body, the cops arrested 22-year-old Brandon Hill. He was charged with murder and the Clark County District Attorney’s Office said it would seek the death penalty.

Portaro’s family, mired in grief, supported the move, but Portaro couldn’t bring herself to attend the hearings that endlessly postponed the trial. Her husband attended every one. The case slogged through the court system for more than three years. In the meantime, tragedy again struck the family: Portaro’s daughter was killed in an ATV accident; then, in November 2014, Portaro’s husband died.

It was just after her husband’s death that Portaro got a call from the DA’s office: Hill would go to trial three months later, in February 2015. Portaro was overwhelmed. “In four years, I’ve lost my son, my daughter, and my husband. Now I have to go sit through this.”

Court was undeniably difficult. She found it hard being there, looking at the back of Hill’s head. But she also realized that she was not filled with “anger or hostility,” she said. “Was I upset at what happened? Yes. I was totally devastated.” A woman of deep faith, Portaro listened to her conscience and said she heard God. “Is all this worth … another death?” she recalled thinking. “If he gets the death penalty, what’s going to happen? They’re never going to execute him. He’ll be on there forever. I don’t want that.” She called her sons; they agreed that the death penalty should come off the table.

“If he gets the death penalty, what’s going to happen? They’re never going to execute him. He’ll be on there forever. I don’t want that.”

The next time she walked into the courtroom, she approached the prosecutor (who happened to be a family friend) and said they needed to talk. She says he told her that if they were going to do so in private, they would have to get approval from the judge to delay the trial — the sentencing hearing was about to begin — and take Hill and his attorney with them. Fine, Portaro told him. She remembers going into a room. What’s up? the prosecutor asked. “I said, ‘I want you to remove the death penalty.’” At first, silence, then revolt. You can’t do that, she says he told her. They got into a brief verbal tussle. “Then I just looked at him and I said, ‘This is what I want; this is what Mike would want.’ He goes, ‘OK. I will.’”

Hill’s family was stunned. They hugged Portaro. They were a good family, Portaro thought. Hill was given 28 years to life.

Shortly after the sentencing, Portaro received a letter in the mail. It was from Hill. “I know that I’m the last person that you would want to hear from,” the letter began, “but I just wanted to tell you that I really am sorry for what I did. I’m not apologizing about what happened just because of the fact that I’m going to prison, but I’m apologizing because I hate to see the pain that I’ve caused not only in your family, but in my family as well.” If Hill could trade his life for Mike’s, he would, he wrote. One day, he hoped that Portaro could forgive him.

Several months later, through a twist of fate, Portaro met a woman in Utah who worked in the Clark County jail and had supervised Hill while he awaited trial. When the woman realized who Portaro was, she embraced her, crying. And she had a story to tell: The letter Portaro received from Hill had been written well before she had asked that his life be spared. He’d been on drugs and as soon as he sobered up, the woman told Portaro, he was overcome with remorse. Portaro took it as a sign — one of several she would receive after the trial — that she’d done the right thing.

Portaro’s testimony before the committee was emotional — and notable: Portaro was the only victim’s family member to voice support for the bill. The other family members who testified were staunchly against repeal. Many had flown up from Vegas at the behest of elected DA Steve Wolfson, who, predictably, was also against abolition.

And then there was Scott Coffee, a 23-year veteran of the Clark County Public Defender’s Office who many consider to be the state’s leading expert on the death penalty — in part because Clark County, which includes Las Vegas, is the epicenter of capital punishment in Nevada. According to The Intercept’s data, of the 164 individuals condemned to die in Nevada, 118 of them come from Clark County.

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Public defender Scott Coffee at his office in downtown Las Vegas on Nov. 15, 2019.

Photo: Krystal Ramirez for The Intercept

Coffee ran the committee through a series of sobering facts, including that since 2005, Clark County had filed notice that it would seek the death penalty in 175 cases — a staggering number for a county with a population of roughly 2 million. While many people think that the extra costs associated with seeking the death penalty are related to post-conviction appeals, that is simply untrue. Instead, it is a prosecutor filing a notice of intent to seek the death penalty that jump-starts an elaborate and expensive legal machine. From the outset, additional lawyers must be assigned to the case, experts must be hired, and an extensive investigation of the defendant’s background must be undertaken. Merely filing those 175 cases as death-eligible costs the county an extra $70 million, Coffee told the committee.

Of those cases, 60 percent would be settled by a plea to a lesser charge, causing many to wonder whether the DA charged death as a bargaining tool, not because he really thought they were death-worthy cases. This is an issue that comes up in nearly every death penalty jurisdiction in the country. On average, just a third of the death penalty cases that actually go to trial in Clark County end up in a death sentence.

And then there’s the fact that no one in Nevada has been executed since 2006, because the state has been incapable of securing drugs to use in its lethal injection protocol — a persistent problem across the country.

Of the 164 individuals sentenced to death since 1976, there have been just 12 executions — 7 percent of death-row prisoners over a 40-plus-year history of capital punishment. And of those, 11 have “volunteered”: given up their appeals and asked to die.

Nevada has the highest rate of volunteers in the country, in large part, many say, because of the bleak conditions both inside and outside the prison, which is isolated in the high desert. “The numbers are staggering, even if you’re in favor of the death penalty,” Coffee said. Nonetheless, the state recently spent nearly $1 million to renovate its death chamber to make it compliant with the Americans With Disabilities Act. If the state doesn’t use it for executions, officials have suggested that the space could be used for meetings between death-row inmates and their lawyers.

Not to be outdone, several prosecutors pushed back against Coffee’s assessment, suggesting that it was at best inaccurate. They argued that there was no additional cost associated with trying a death case — and they cast doubt on the state’s own audit of the system, which estimated the extra cost as at least $500,000 per case. The money to prosecute capital cases comes out of the DA’s existing annual budget, so nothing to see here, Wolfson said. And the prosecutors bristled at the notion that the death penalty might be racially skewed; Wolfson’s underling, Christopher Lalli, used a mind-bending, apples-to-oranges argument comparing the race of those sentenced to death in Clark County over a number of years to the race of individuals arrested for murder across the U.S. in a single year to conclude that, if anything, the death penalty in Clark County was biased against white men.

Over lunch in late April at a popular Thai food spot blocks from his office in downtown Las Vegas, Coffee recalled Lalli’s argument as “bizarre” and totally misleading. He rattled off additional stats about the state’s death machine that hardly inspire confidence, including that just over 50 percent of death penalty convictions have been reversed by the courts. According to the Nevada Supreme Court, prosecutorial misconduct played a part in nearly half of the capital cases it has overturned.

There’s absolutely no reason to think that the problems have been or could be fixed, he said, and he doesn’t understand why prosecutors like Wolfson (who worked as a criminal defense lawyer for more than two decades before being elected DA) don’t understand this. In his office after lunch, Coffee pulled up an elaborate spreadsheet he uses to track all of the state’s death cases. They’re color-coded, with red denoting a case that has been reversed on appeal. The further you go back in time, “you can see how it starts to flush,” he said. “The longer these cases are pending, the more likely they are to be reversed. We didn’t do a very good job back then — and it’s tempting to say we do a much better job now. But that’s not realistic.”

Standards evolve, he said, noting that it was once perfectly legal to send kids to death row and to execute people with mental disabilities. What is acceptable has “always been a moving standard,” he said. “So to think that what we’re doing now is going to be acceptable 10 years from now, or 20 years from now, is pretty naive.”

The problem with capital punishment in Nevada isn’t merely a modern one. Nevada’s death penalty machine has long been plagued by faulty lawyering, arbitrary prosecution, and challenges with actually carrying out executions — all evidenced in meticulous records dating back to the early 1860s, kept at the state archives in Carson City, just steps from the Legislature, should anyone care to look.

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The Intercept’s dataset contains individuals sentenced to die since July 2, 1976, in active death penalty jurisdictions, including 29 states and the federal government.

Graphic: Soohee Cho/The Intercept

There’s the case of Rufus Anderson, a 20-year-old hanged in 1868 for murder. Prior to his execution, dozens of people (including the county sheriff and deputy) signed a petition to the governor asking for clemency for the young man. Anderson also penned a letter to a local judge ruminating on his fate. He hadn’t planned the crime; it was committed in a “moment of passion,” he wrote. He related that the judge who sentenced him to death had remarked that he’d had “several cases of a worse nature than mine” that had resulted in lesser punishment. Anderson could not “find any justification in my own eyes” for what he’d done, “yet God knows I am innocent of any premeditation or intention of killing.”Anderson was executed roughly a month later. The first drop from the gallows didn’t work, and onlookers tried to stop the executioners from trying again but were held back by guards. Anderson had to be dropped three times before he finally died.

In 1921, Nevada became the first state in the country to legalize use of the gas chamber, an execution method that lawmakers thought to be more humane. The state sought to buy hydrocyanic gas from the California Cyanide Company of Los Angeles, but the company balked, worried about being complicit in the killing, according to “Images of America: Nevada State Prison.” Ultimately, an employee of the prison and his wife set off on a clandestine road trip to California to purchase the gas. Knowing that they would face opposition along the way, the couple changed license plates several times and successfully avoided a roadblock erected by abolitionists before delivering the gas to the death house in Carson City.

In present-day Nevada, securing pharmaceuticals to carry out executions has proven equally difficult. In 2016, the state put out 247 requests for proposals to drug suppliers; none responded.

NEBRASKA’S FLEETING VICTORY

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Nebraska state Sen. Ernie Chambers, right, talks with state Sen. Kathy Campbell after Gov. Pete Ricketts’s veto of a bill to ban the death penalty was overridden 30-19, in Lincoln, Neb., on May 27, 2015.

Photo: Andrew Dickinson/The New York Times via Redux

At the Nebraska State Capitol on the morning of April 25, state Sen. Ernie Chambers began a speech he has delivered almost every year for the past 40 years. “I know that there are people who will be against this bill no matter what,” he said. “Nothing I say is going to change anybody’s mind. But I have to do everything I can as long as I’m in the Legislature to stop the state from killing its residents.”

At hand was LB44, a bill to abolish the death penalty. In his four decades as a member of Nebraska’s unicameral Legislature, Chambers had brought such a bill every year. Twice he succeeded, only to face a governor’s veto; the first time was in 1979. But in 2015, powered by a bipartisan coalition that passed an abolition bill by a vote of 32 to 15, lawmakers overrode a veto by Republican Gov. Pete Ricketts, making Nebraska the first conservative state in the country to abolish the death penalty in 40 years.

The victory was as fleeting as it was historic. Ricketts, the billionaire founder of TD Ameritrade and co-owner of the Chicago Cubs, weaponized his family fortune to quash the bill and punish Republicans who supported it. First, he bankrolled a ballot initiative that repealed the repeal. He then poured money into election campaigns challenging GOP senators who’d dared to defy him; three lost reelection. Less than two years later, in August 2018, Nebraska carried out its first execution in more than 20 years.

In his signature jeans, short-sleeved sweatshirt, and brown hiking boots, 82-year-old Chambers is a legend in Nebraska politics. Before he was first elected in 1970, newspapers marveled at the “militant Negro leader” with a law degree who worked as a barber in his native North Omaha while fighting police brutality. At that time, black people were only 2 percent of the state’s population. “Everything the Legislature traditionally is — cautious, conservative, Caucasian — Chambers is not,” the Lincoln Star wrote in 1980. “He is one of 49 senators; yet he is apart.”

Chambers managed to put Nebraska ahead of the curve in a number of ways. When the state revamped its Juvenile Code in 1982, he won an amendment to prohibit death sentences for crimes committed by minors. It would take the U.S. Supreme Court until 2005 to impose such a ban. And in 1998 — four years before the court’s ruling in Atkins v. Virginia prohibited the execution of the “mentally retarded” — Chambers won passage of legislation abolishing the death penalty for people with intellectual disabilities. Two men with low IQs were subsequently removed from Nebraska’s death row.

Yet such successes have been eclipsed over the years by Chambers’s grenade-throwing style. He once famously proposed that executions be carried out in Lincoln’s Memorial Stadium. Spectators would be required to simultaneously push a button, at which point a chimp would pull the switch on the electric chair. People would likely be “outraged” at using an animal that way, he said. “But if it is beneath a member of the lower order to do it, it certainly ought to be beneath a member of the higher order to do it.”

For all of Chambers’s zeal for abolition, Nebraska has never been a hotbed of executions. Until the 2018 killing of Carey Dean Moore, only three executions had been carried out in the “modern” era. Nevertheless, Nebraska has its share of death penalty lore. Among its most notorious cases is that of Jack Marion, hanged in 1887 by officials in Gage County for a crime he swore he did not commit, whose supposed victim was later found alive. Today Gage County is feeling the pain of another wrongful conviction — the men and women known as the Beatrice 6, five of whom pleaded guilty in order to avoid a death sentence, only to be exonerated in 2009.

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The Intercept’s dataset contains individuals sentenced to die since July 2, 1976, in active death penalty jurisdictions, including 29 states and the federal government.

Graphic: Soohee Cho/The Intercept

The risk of executing the innocent was a major theme during the 2015 fight for abolition. Yet in Nebraska, a red rural state that voted for Donald Trump by wide margins, that argument is not necessarily enough to change people’s minds. Neither are the reasons presented by Chambers year after year — although in his case, it may be that the messenger is the problem. As the 56th day of the 2019 legislative session opened that morning, many were still fuming over one of Chambers’s latest provocations: calling the American flag a “rag.”The first to stand in opposition to Chambers’s bill was state Sen. Julie Slama, appointed to the legislature by Ricketts in 2018. The 22-year-old law student worked as Ricketts’s press secretary before she was tapped to fill the vacated seat in December of that year. While Slama insisted on her independence, she rose passionately to defend the governor’s ballot initiative. Nebraskans “spoke decisively at the polls,” she said. More than two-thirds of the state’s registered voters cast a ballot on the referendum. Voting for the bill would “set a precedent of flagrant disregard for the voice of the people.”

On the opposite side was another young senator, Megan Hunt, elected in 2018. Nebraska’s first openly bisexual lawmaker, she slammed Ricketts for the “corrupt and faithless way he went over the legislature” to undo the hard-fought abolition bill. “We all know the personal, petty dislike the governor has for Senator Chambers,” Hunt added. It was no coincidence, she argued, that Ricketts originally set Moore’s execution for July 10, which happened to be Chambers’s birthday.

Like Slama, Hunt was not in office when the Legislature heard testimony about the death penalty in 2015. But she had a good handle on the issue. “The few death sentences in Nebraska are controlled not by the severity of the crime, but by the county in which they occur,” she said. Maintaining the death penalty costs $14.6 million a year, with little to show in the way of results. In fact, the U.S. Supreme Court had recently refused to consider the state’s appeal of a $28 million jury verdict in the case of the Beatrice 6. “That’s the cost of the death penalty in Nebraska,” Hunt said, adding, “It could happen to any of you, in any of your counties.”

As the senators went back and forth, a tall white man watched from the balcony. He had been waiting for the bill to come up for days. He had a grim demeanor but occasionally waved pleasantly at the lawmakers below. At times, individual Republican senators came to chat with him. One had shared with him the green card listing tentative votes among the lawmakers. The man was no casual spectator. He was Rick Eberhardt, sheriff of Pierce County and one of Ricketts’s most dedicated foot soldiers during the ballot initiative.

A veteran law enforcement official who was once the state’s youngest sheriff, Eberhardt was driven in part by a mass shooting that took place in his own backyard. The 2002 bank robbery killed five people and sent three men to death row. The victims included Evonne Tuttle, whose mother appeared publicly alongside Eberhardt in advance of the 2016 ballot vote. At a hearing at the capitol the next year, Eberhardt joined Tuttle’s daughter in lambasting senators like Chambers who openly celebrated after winning the repeal in 2015 as an affront to grieving families. “I saw people hugging and crying and being so happy that murderers, rapists, and people that torture were let off death row,” Eberhardt testified, offering photographs and video as proof.

Back in his office during the lunch recess on April 25, Chambers shared something he told Eberhardt at that time. His own nephew had been brutally murdered in 1990. When that news broke, people asked almost gleefully, “What do you think of the death penalty now?” Chambers reiterated what he said at the time, while sponsoring an abolition bill in the spring of 1991, “I feel the same way about the death penalty as I did before that happened. The state should not kill its citizens.”

Chambers was blunt about what made the abolition bill successful in 2015. A white Republican senator named Colby Coash had taken up the cause. “The fact that I was trying to do it for all those years doesn’t mean credit should go to me,” Chambers said. In many ways Coash was the unlikeliest of allies. In 1994, as Chambers fought to stop the high-profile execution of a man named Willie Otey, Coash was a college student who joined a celebratory mob outside the Nebraska State Penitentiary amid chants of “Fry him, fry him!” The experience came to haunt Coash. After being elected to his second term in 2012, he made abolishing the death penalty one of his last acts before leaving the Legislature.

To Coash, peddling the bill to a conservative Legislature meant rewriting the narrative about the death penalty. “I had to tell my Democrat friends, ‘You guys are going to have to sit down and be quiet because the reasons that you have are different than the reasons I’m gonna give,’” he recalled. Liberals emphasized the danger of wrongful convictions and “they’re always talking about minorities and disparate impact,” he said. “They’re valid arguments, but it doesn’t change the mind of my grumpy farmer father-in-law who is an eye-for-an-eye kind of guy.”

Instead, Coash stressed traditional conservative values: small government, fiscal responsibility. Republicans, after all, are supposed to be about reining in government excess. “That’s supposed to be our party’s role. Put the brakes on government that’s getting too big for its britches, right? So if we really believe that and when we look at the death penalty, can we really support that?” The message resonated with many conservative lawmakers, who agreed to sign on as co-sponsors. “Over time, I kept giving [Chambers] these co-sponsor sheets. … I think he was surprised at the people I was getting to co-sponsor his bill because he would never go talk to them. He would never go to an old white guy and say, ‘Would you co-sponsor my bill?’”

Coash was dismayed, but not particularly surprised, at the referendum that undid so much of his work. “That’s politics, right? Money drives it and when you have funds, you can pretty much get anything.” Ricketts is unabashed about using his office or his money to get what he wants — or to settle scores. On the floor earlier that day, Chambers had scolded legislators for being afraid of the governor. Asked if that fear is real, Coash said, “100 percent.”

It’s hard to know why, exactly, the governor made it his mission to keep the death penalty in Nebraska. During the abolition fight, it was revealed that he lost a cousin to murder years ago, but that didn’t seem to explain the extent of it. It seems just as likely that it was about defeating his enemies. The abolition bill, which came early in his tenure, was one of three veto overrides Ricketts faced early on. To be openly defied by his own party might well have been an intolerable offense. “Most governors would have probably gone out and bashed it in the media and used it as a campaign tool,” Coash said. “But most governors don’t have the means to say, ‘And by the way, I’m going to put my own money into getting you out.’”

For his part, Chambers is certain that Ricketts would not have been so bent on overturning the legislation had it not been the issue the state senator has championed throughout his career. Nor had the outcome come as a shock. “When you’re a black man in a white society and you pay attention and you read history, then you never feel that any ‘victory’ that a black person gets is guaranteed to stay in place.”

As the senators were returning to vote on LB44 later that day, 22-year-old Taylor Moore sat at a table at a McDonald’s four miles east of the capitol. She wore black eyeliner, metallic blue nail polish, and a black hoodie over her manager’s uniform. She was unaware of the debate that had happened on the floor that morning or of the looming vote. But she knew more about the death penalty than most Nebraskans.

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Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

Left/Top: Taylor Moore at her apartment in Lincoln, Neb., on Nov. 27, 2019. Right/Bottom: Taylor holds a letter that she received from her uncle Carey Dean Moore shortly before her 18th birthday.Photos: Kayla Wolf for The Intercept

Moore’s father is the twin brother of Carey Dean Moore, the last man executed at the Nebraska State Penitentiary. Sentenced to death for killing two taxi drivers in 1980, well before his niece was born, Moore dropped his appeals and asked repeatedly to die.

In his 38 years on death row, Moore had eight execution dates. Each stay of execution made him angry and frustrated, a feeling his niece had tried hard to understand. While Taylor did not want to see her uncle executed, she felt that she should respect his wishes. As the execution approached last summer, “I was really nervous, anxious, sad,” she said. “I don’t know, I was very depressed, but at the same time I was happy because this is what he wanted since the day he got in there.”

There was no escaping the loss it would be for her. Moore had been present in her life from the start. When her mother got pregnant, it was Moore who came up with her name — including her middle name, Kari, a play on “Carey.” Growing up, Taylor would accompany her dad on the two-hour drive to Tecumseh State Correctional Institution, where they would visit Moore behind plexiglass. At some point this changed, and Moore was able to receive contact visits. “We would play rummy,” Taylor recalled. “My dad would win sometimes, and then me and my uncle would team up against my dad.”

Visitation became harder after Taylor got pregnant in high school. She quit going for a while but started again when she could find a babysitter. Her uncle was especially important to her then. Several members of her family had rejected her for getting pregnant so young. But he didn’t. Taylor sent him photos and letters. “I would write to him every day and just tell him about my life, how school is, how the kids are.” Her father wrote to him too. “Usually when I would come over and see him, he would always have a notebook in his lap writing to my uncle. … I feel like something died in him. His other half died.”

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A photo from Taylor’s collection showing her uncle Carey Dean Moore, left, and her father, David Moore, during one of David’s many trips to visit his twin brother at the Tecumseh State Correctional Institution.

Photo: Kayla Wolf for The Intercept

Taylor and her father attended Moore’s execution. There had been a long fight over the lethal drugs that would be used; the state finally carried it out using fentanyl — the first execution of that kind in the country. “He was lying down on the bed and he turns over, looks at us through the glass and he says, ‘I love you.’ … Then he eventually started getting really pale and then his eyes started closing and then he was just gone,” she said. A month after the execution, she got a tattoo on her left arm: “I carry your heart with me forever moore.”

Taylor expressed disgust at the lawmakers who used her uncle’s case for their political ends. “If I could have said something to the Legislature, I should have been like, ‘You guys are more bullies than anyone else.’”

The final vote was 25-17 against LB44. Three senators voted present. The outcome was not a surprise, although tensions ran high. Coash was watching from the sidelines. Now working as a lobbyist, he remains active at the capitol. But his success winning abolition in 2015 catapulted him onto the national stage. Invitations came from states all over the country. He’s spoken about the death penalty in Montana, South Dakota, and Colorado. Abolition may have ultimately failed in Nebraska. But states were eager to learn from his experience.

“I’ve made peace with the fact that people want to hear our story,” Coash said. He still believes that abolishing the death penalty is “good policy.” Despite what happened, he said, there is a change underway. “Someday it will be done. I don’t know when. But I would like to think that, at least in the United States, I will have played a role in that whenever it happens.”

DEAD SILENCE IN WYOMING

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A mural near the Wyoming State Penitentiary on May 2, 2019.

Photo: Liliana Segura/The Intercept

Some 150 miles northwest of Cheyenne, the Wyoming Frontier Prison sits on the corner of 5th and Maple in downtown Rawlins. The forbidding stone complex, known as the Old Pen, is covered in overgrown vines and partly concealed from the street by towering cottonwood trees. The penitentiary has been closed since the early 1980s, but the site is not entirely abandoned. The prison conducts regular tours, a haunted house at Halloween, and a “Pen to Pen Fun Run” — a 5K race in which participants run in striped prison uniforms. At the gift shop, T-shirts feature a noose alongside the words “Come Hang With Us.”

We sprang for the tour, which began with a demonstration of the “Julian gallows,” a sort of demented Rube Goldberg machine used for hangings that was considered state of the art at the time. Named after its designer — “a humanitarian and an architect out of Cheyenne who believed no man should have to bear the guilt of executing another,” according to our guide — it allowed the state to absolve itself of any direct responsibility for the task at hand. A model of the device showed off how it worked, complete with a wooden doll in prison blues and a black hood. The guide placed the doll on a trapdoor, which was rigged to a bucket of water; the doll’s weight triggered a mechanism that began to drain the bucket. When the bucket was empty, a counterweight fell, opening the trapdoor and leaving the doll hanging by its neck.

Fourteen executions were carried out at the Old Pen. The last five took place in the gas chamber, one of the final stops on the tour. It sits next to what was once death row, a cramped set of cells atop stairs that led to the gallows. “Once you brought a man up the stairs,” the guide said, “they would not go back down alive.”

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

The Intercept’s dataset contains individuals sentenced to die since July 2, 1976, in active death penalty jurisdictions, including 29 states and the federal government.

Graphic: Soohee Cho/The Intercept

The last execution there took place in 1965, the final execution before the Supreme Court’s rulings in Furman and Gregg. Since then, only one person has died in the state’s death chamber: Mark Hopkinson, executed in January 1992. His case once made national headlines; he was sent to death row for a crime he swore he did not commit: a bombing in the rural town of Evanston that killed attorney Vincent Vehar and his family in 1977.Records related to the Hopkinson execution are kept at the state archives in Cheyenne, including voluminous files that hold letters urging the governor to grant clemency. One was delivered on behalf of “Concerned Inmates” at the Wyoming State Penitentiary, with signatures from 119 men. Another letter is dated January 25, 1992, three days after Hopkinson’s death. In handwritten cursive, it is from Darlene Shillinger, the wife of Warden Duane Shillinger, who oversaw the execution and was with Hopkinson until just before his death. She did not know if the death penalty was right or wrong, she wrote. “One thing I do know only too well is that it certainly creates a whole new set of victims.”

“Duane and I agonized many times over his position, but are now at peace with his involvement,” she wrote. “He had a relationship with Mark for twelve years and to not be with him in his final hours would have been insensitive and cruel.” The execution was probably the hardest thing her husband had ever had to do, she wrote.

Shillinger retired as the longest-serving warden in the history of the state. He is on dialysis and was unable to speak for long when we reached him over the phone. “I’ve talked about the execution itself with very few people,” he said. “It’s just something that I haven’t wanted to get into. It was a very, very difficult time. I still have some terrible feelings about it.” One thing that sticks out is the way politicians loudly cheered the execution, “pounding their shields and bragging about what was going to take place.” But the night of the execution, he said, “not one of them called me.”

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Rep. Jared Olsen at his office in Cheyenne, Wyoming, on April 30, 2019. Olsen hopes Wyoming’s death penalty will be repealed in 2020.

Photo: Rachel Woolf for The Intercept

The day after the launch of Wyoming’s abolitionist campaign, we went to see Jared Olsen, the Republican lawmaker, at his law office, a modest blue house with gingerbread trim in downtown Cheyenne. Inside, the walls are painted avocado green and adorned with Western art. There’s a book titled “Cowboy Culture” in the waiting room and a large metal hanging of the state’s iconic trademarked logo of a cowboy riding a bucking horse, his hat held high, on his conference room wall.

It was there that Olsen revealed a more personal connection to the death penalty in Wyoming. Olsen grew up in Evanston, where the Vehar family was murdered. He was just 5 years old, but like virtually every member of the small rural community, his life was linked to the tragedy. One of his classmates was the son of the bombing’s sole survivor. One of his uncles lived in the house that was later built on the site of the crime. And one of his fellow Republican lawmakers who testified in favor of his abolition bill — state Sen. Wendy Schuler — was Olsen’s high school gym teacher and a former schoolmate of Hopkinson himself.

Schuler’s testimony was powerful, Olsen said. “She said that she remembers wanting the execution because she believed that it would make her whole again and make the community whole again. She also remembers the exact moment after the execution that all she felt was a dark hole inside of her.” Schuler wasn’t alone. After she spoke, an older representative, also from Evanston, rose to say that he had planned to vote against repeal but had now changed his mind. Like Schuler, he had always believed that the execution had been the right thing, only to realize there was “always this emptiness inside of him,” Olsen said. The man was moved to tears as he spoke, describing how it didn’t fix anything for the community.

The debate in the House was equally reverent. Olsen and others describe being struck by the silence in the chamber as the issue was considered. Ordinarily, members walk around and talk with colleagues, work on their computers, or fiddle with their phones. But that day, everyone was seated. “It didn’t matter who was speaking, there was just dead silence.” He could tell that the lawmakers were actually weighing the issue, trying to figure out where they stood. “I remember afterwards there were many House members who had come up to me and said — even the ones who voted against repeal said, ‘Jared, thank you for bringing the issue. I’m glad we got to discuss it.’ And that’s a good thing to hear.”

After the bill failed to pass, and as lawmakers submitted topics for study over the interim, a proposal to look into the death penalty popped up — but not with repeal in mind. Instead, it suggested an inquiry into shortening appeals and figuring out how to cut costs. “I became very nervous,” Olsen said. “I thought, ‘Is this how it’s all going to end?’” Slashing appeals and funding are two areas that supporters of capital punishment like to talk about, but they are nearly impossible to accomplish without running afoul of the courts. Another possible outcome, of course, is what happened in Nebraska. Such a scenario “had crossed my mind in fear,” he said. “I have thought about what would happen if we did repeal it and how permanent that would be.”

Sabrina King, the local ACLU director, and Marguerite Herman, lobbyist for the League of Women Voters, vividly remember the testimony last winter. “The House has never been quieter. Ever,” said King. Herman, who came to Wyoming in 1980 as a reporter for the Associated Press, said it reminded her of a different political time, where working across the aisle toward common policy goals was the norm. “What I saw were flashes of the old-time Wyoming Legislature,” she said. “Of being pragmatic, of what is the role of government and that sort of thing. It was just … kind of a step back in time.”

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS
Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

Left/Top: Marguerite Herman, a lobbyist for the League of Women Voters of Wyoming, at her house in Cheyenne on April 30, 2019. Right/Bottom: Sabrina King, director of campaigns for the ACLU of Wyoming, outside of the Supreme Court of Wyoming in Cheyenne on April 30, 2019.Photos: Rachel Woolf for The Intercept

It is precisely that kind of pragmatism they hope will carry forward into the next legislative session. Frankly, said Herman, the fact that there were some two dozen people at the snowy campaign launch was a very good sign. “In a state that is so far-flung as ours, to get 25 people in one place on a snowy day is a crowd.”

We recalled Christopher Xanthos’s enthusiasm after the press conference and asked King about his prediction that Wyoming abolishing the death penalty would be a harbinger for the rest of the West. “Oh, I think it’s completely accurate,” she said.

She acknowledged that her prognostication may seem a bit counterintuitive for folks who haven’t lived in the rural, red-state West. “I really consider this, like, the last bastion in this country of true libertarianism. I think people have a very pragmatic sense of what the government is supposed to be doing and how it’s supposed to function. So, for me, it makes complete sense that this is happening in Wyoming,” she said. And if Wyoming repeals the death penalty, “there are a whole bunch of states around the West that are like dominos waiting to fall,” she said. “I want Wyoming to be the first domino.”

The Intercept’s death row dataset is a living document, available on GitHub, that we will continue to update as new death sentences are meted out, old convictions are overturned, and executions continue. If you have relevant information, please email us at deathrow@theintercept.com.

Death And Texas

Race Looms Ever Larger as Death Sentences Decline

SHE WAS STRAPPED to the gurney in the Texas death chamber, Henry Martinez Porter prepared to deliver his last words. The execution had been scheduled for midnight. Porter, convicted of fatally shooting a Fort Worth police officer who pulled him over, swore that he’d acted in self-defense; he was shot in the side during the altercation. But two different juries sent him to die.

“The only thing that convicted me was that I am a Mexican and that he was a police officer,” Porter said. “People hollered for my life, and they are to have my life tonight.” Yet people never hollered for the life of a cop who killed a 13-year-old boy who was handcuffed in a police car, he said. People never hollered for the life of officers who beat a man named Jose Campo Torres and threw him in a river to drown. “This is America’s equal justice,” Porter said. “A Mexican’s life is worth nothing. When a policeman kills someone, he gets a suspended sentence or probation. When a Mexican kills a police officer, this is what you get.”

It was the summer of 1985, and Porter’s last words made headlines across the country. Texas officials denied that he had been a victim of discrimination. “We had Mexican-Americans on the jury,” the trial judge told the Associated Press. A police spokesperson said Porter’s car had fit the description of a vehicle used in an armed robbery. “He was an admitted dope addict,” he added. “His argument really doesn’t seem to hold much water.”

If there was truth to Porter’s protest about the death penalty as unequal justice, such questions were supposed to have been laid to rest.

In its historic 1972 ruling in Furman v. Georgia, the U.S. Supreme Court had struck down the death penalty as arbitrary and capricious, a lottery reserved for the poor and marginalized. States swiftly revised their statutes to pass constitutional muster. On July 2, 1976, the court upheld Texas’s new death penalty statute in Jurek v. Texas, writing approvingly that the legislation would ensure “the evenhanded, rational, and consistent imposition of death sentences under law.” Porter was sentenced to die a few weeks later.

Jurek was one of four rulings released alongside Gregg v. Georgia, the landmark decision that ushered in what is known as the “modern” death penalty era. Collectively, the rulings upheld a new set of laws designed to rehabilitate a system the Supreme Court had declared broken just years before. Gregg and its companion cases announced to Americans that capital punishment could be carried out equitably after all. Executions restarted the following year.

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

Troy Leon Gregg.

Photo: Bettmann Archive/Getty Images

Yet it didn’t take long to see signs that the new death sentences were much like the old ones — only now they were handed down on an intensifying scale. By 1980, the country’s condemned population had far surpassed the nearly 600 people who’d been on death row when Furman came down. New research was starting to show that defendants were far more likely to receive the death penalty if the victim was white, particularly in the South, which accounted for the vast majority of new sentences. And while the percentages of black people sentenced to die dropped somewhat between Furman and Gregg, the number of people of color on death row began to rise. Between 1978 and 1982, “the number of Hispanics on death row has more than tripled,” AP reported.Race has always been at the heart of the American death penalty. The disproportionate punishment of defendants of color — and black people in particular — is one of its defining historical characteristics. As the 40-year anniversary of Gregg approached in 2016, we were confronted with a number of cases that seemed to embody the death penalty’s racist roots. One was a black man sent to death row in 1979, an era that was already revealing the failed promise of the Supreme Court’s 1976 rulings. Another was a man executed despite the fact that one of his sentencing jurors had revealed himself as openly racist. The previous year, Texas had come perilously close to executing Rodney Reed for the rape and murder of a white woman, a case that reads like a relic of the Jim Crow South.

It was cases like these, which exposed old truths about the so-called modern death penalty, that inspired The Intercept to begin compiling a death-row dataset in the summer of 2016. The aim was not to recreate decades of rigorous statistical studies probing bias in capital punishment. Rather, we wanted to see what the numbers would show across a range of metrics, to produce a broad portrait of what four decades of “modern” capital punishment have wrought.

As our starting point, we chose every individual sentenced to death starting on July 2, 1976, the day Gregg was announced. We limited our inquiry to active death penalty states, to focus on capital punishment as it exists today. We were curious not only about who had been executed, but also about how many people had been removed from death row — a sizable but largely invisible population. We wanted to see how many people had been resentenced, commuted, or released; how many had died awaiting execution; and how long people had spent on death row. And we wanted to see who is on death row today.

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS
Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

The Intercept’s dataset contains individuals sentenced to die since July 2, 1976, in active death penalty jurisdictions, including 29 states and the federal government.Graphics: Soohee Cho/The Intercept

It was also especially important to get a sense of the shifting racial demographics of death row in an era when capital punishment is on a precipitous decline. Our impression was that dwindling death sentences had a way of rendering old racial dynamics more stark. In 2016, for example, although new sentences dipped to a historic low, the vast majority of those sent to death row were people of color — and more than 50 percent were black. In Colorado, which had repeatedly struggled to pass abolition legislation, only three men were on death row — and all three were black. More recently, as we began to study the results of our data collection, we found indications that racial disparities are increasing as the use of the death penalty is decreasing.

Our dataset shows that in the first full decade after Gregg, 46 percent of those sentenced to die in current death penalty states were people of color. In the decade from January 2009 through December 2018, that percentage grew to 60 percent. A similar trend can be seen across several leading death penalty states.

If such raw figures do not tell the whole story, recent history could have foretold such an outcome in 1976. The Jurek decision was a glaring red flag, upholding a death penalty statute that cut to the heart of what capital punishment had always been about. The Texas statute was drafted on the dubious premise that jurors could predict a defendant’s future dangerousness — a subjective finding inextricable from racial attitudes. Today, Gregg is synonymous with the start of the modern death penalty era, but Jurek has sent more than 1,000 people to death row, coming to haunt even those who decided it. When he was asked in 2010 if there were any rulings he would go back and change, retired Justice John Paul Stevens named Jurek as the vote he regretted the most.

With its execution tally set to reach 600 in the coming years, Texas is widely seen as an outlier, rather than an emblem of capital punishment as it stands in 2019. Yet it shares important characteristics in common with other death penalty states. Texas, too, is handing down fewer death sentences year after year. And these sentences are exposing a stark reality about who still gets sentenced to die. In Texas, during the first decade after Gregg, people of color made up 51 percent of those sentenced to death. This percentage has grown to 75 percent in the past 10 years. Of just seven people Texas sent to death row in 2018, all of them were men of color.

If such trends are any indication, it seems clear that the modern death penalty era remains animated by the same racial dynamics that have always defined capital punishment — the same dynamics decried by Porter as he lay on the gurney in 1985.

A Racist Backlash

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Elmer Branch in his cell on death row in the Ellis Unit of the Texas Department of Corrections on March 5, 1972.

Photo: Ed Kolenovsky/AP

On the day the Supreme Court announced its decision in Furman v. Georgia, 45 men were on death row at the Ellis Unit in Huntsville, Texas. Newspapers described how the men erupted in cheers after the news came over their TVs and radios. Many believed that it was the end of capital punishment. The day after the ruling, on June 30, 1972, the San Antonio Express published a photo of the Texas electric chair with the caption “May Never Be Used Again.”

More than half of the 589 people spared by Furman were black. Among them was Elmer Branch, on death row in Texas. Twenty years old at the time of his arrest — and with a reported IQ of 67 — Branch had been sentenced to die for raping an elderly white woman in Vernon, Texas. He swore that he was innocent, but he was found guilty on the basis of eyewitness identification and a shoe print that matched his sneakers. When the Supreme Court announced that it would consider Furman back in 1971, the justices also took Branch’s case, along with another rape case out of Georgia. All three cases involved black defendants and white victims.

During the oral argument before the Supreme Court, Branch’s lawyer invoked the racism underlying his client’s case. A black man convicted of rape in Texas, he said, “has an 88 percent chance of receiving a death penalty,” compared to the 22 percent chance faced by non-black defendants. As in the rest of the South, such statistics were a direct legacy of lynchings and racial terror. The vast majority of the state’s death sentences handed out for rape came from East Texas, which once held the highest population of enslaved people in the state.

Furman, decided 5-4, was a tenuous and fractured ruling. Each justice wrote his own opinion, only two of which expressed opposition to capital punishment itself, rather than to how it was being applied. Most had little to say about racism, although the issue loomed large over the decision. The road that led to Furman had been paved in the 1960s by the NAACP Legal Defense Fund, which had embarked on a data-driven mission that exposed racial bias in rape cases. As Justice Thurgood Marshall noted in his concurrence in Furman, of 455 people executed in the United States for rape since 1930, 405 had been black.

Nevertheless, lawyers had repeatedly failed to impress the courts with such statistics. Judges rejected the racial evidence as insufficient — although it is clear today that the deeper concern was that acknowledging racism would undermine the entire criminal justice system. The Supreme Court would eventually decide in McCleskey v. Kemp that racism in death sentences was inevitable, inoculating capital punishment from being challenged along racial lines. In the meantime, Furman was decided on the less controversial question of arbitrariness: the conclusion that the death penalty was “wantonly” and “freakishly” imposed, with no rhyme or reason guiding who should live and who should die.

While the Furman court mostly steered clear of race, the reaction to the ruling was fueled by racist fearmongering. Georgia’s segregationist lieutenant governor called the decision a “license for anarchy, rape, and murder,” according to Evan Mandery in “A Wild Justice: The Death and Resurrection of Capital Punishment.” At a press conference, President Richard Nixon, who’d won election on a wave of racially incendiary “law and order” rhetoric, defended executions as a deterrent. That day, Mandery writes, “legislators in five states announced plans to enact new death penalty statutes.”

Support for the death penalty skyrocketed. According to Mandery, in the last Harris Poll prior to Furman, 47 percent of respondents supported the death penalty, with 42 percent opposed. After Furman, a Harris Poll found 59 percent in favor. By the end of 1972, Florida became the first to pass a new death penalty law, followed by a slew of states the next year. Although they varied from place to place, the statutes fell into two broad categories: laws that made the death penalty mandatory for certain crimes, thus ensuring uniformity, and laws that created bifurcated trials, to give judges and juries discretion at the sentencing phase.

But Texas did something unique. Like other states, it authorized the death penalty in specific circumstances, such as cases involving the killing of a police officer. And like other states, it split trials into a guilt phase and a sentencing phase. But unlike other states, Texas crafted three questions, or “special issues,” for the jury, which would decide whether a defendant would live or die:

  1. whether the crime had been committed “deliberately” and with the expectation that the victim would die
  2. “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” and
  3. whether the killing was “unreasonable” in response to any provocation by the victim.

If jurors unanimously answered “yes” to the three questions, the defendant would be automatically sent to death row.

The Texas statute came together hastily. Legislators rushed to pass the bill before Memorial Day. The final version of the bill was an attempt to compromise between a mandatory statute passed by the House and a discretionary statute passed by the Senate, with some additional language thrown in. One of the authors of the law told The Atlantic in 2016 that he could not recall where he got the language around future dangerousness, while an opponent to the measure said, “It was made up out of thin air.”

When he signed it into law on June 14, 1973, Gov. Dolph Briscoe used a silver pen belonging to a slain Bexar County deputy sheriff, with the officer’s father looking on. The law went into effect immediately. Although many applauded the measure, there were also some notable critics. In a July op-ed, the publisher of the Huntsville Item, who had witnessed 189 Texas executions, dismissed the statute’s new provisions as “legal window dressing.” There was no meaningful difference between the old and new laws, he argued. The real deciding factor about who would live or die would come down to those who could “employ the best defense lawyer.”

Returning to the court to argue Jurek in the spring of 1976, famed NAACP lawyer Anthony Amsterdam warned the justices about how the Texas law was being applied. The case of petitioner Jerry Lane Jurek, who had been convicted of raping and killing a child, “was tried under this statute exactly the way it would have been tried before Furman,” he said. The question of life or death came down to “supposedly factual questions, which are simply predictive judgments.” The process was “no less arbitrary” than before.

On July 2, 1976, the court disagreed. That same day, a Texas jury sentenced Edward William Cortez to death — the first death sentence in the new era.

Deliberate and Unreasonable

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A gurney, used for execution by lethal injection, at the Texas Department of Corrections in Huntsville, Texas, on Dec. 6, 1982.

Photo: Ed Kolenovsky/AP

Despite the green light from the Supreme Court — and with hundreds of people sent to death row in the years between Furman and Gregg — prison officials were not exactly poised to resume executions. Many of the nation’s death chambers had been repurposed. “A prison barber cut hair in Arkansas’s electric chair,” according to Mandery. “Pennsylvania employed its death chamber as office space. … Idaho’s held medical equipment.” The superintendent of Nevada’s prison system had told the press prior to the 1976 ruling that he did not know whether the state’s gas chamber still worked — and he did not intend to find out until he had to. After Gregg, the Colorado warden who had overseen the country’s last execution in 1967 decried capital punishment as discriminatory: “The larger number by far of those condemned are minority people.”

Legal scholars reiterated their warnings about Texas’s law in the wake of Jurek. In a 1976 speech lambasting the statute, Yale law professor Charles Black Jr. pointed out the absurd redundancy of the questions posed to juries. The first question — whether the crime had been committed “deliberately” — was a prerequisite for winning a conviction for first-degree murder. The third question — whether the homicide was “unreasonable” in response to any provocation — would be similarly addressed during the guilt phase. But especially vague and pernicious was the second question, Black said. The notion that a jury could predict “future dangerousness” had no supporting evidence. It seemed inevitable that jurors would base their answers on pre-existing notions of criminality.

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

The Intercept’s dataset contains individuals sentenced to die since July 2, 1976, in active death penalty jurisdictions, including 29 states and the federal government.

Graphic: Soohee Cho/The Intercept

As Texas prepared to restart executions in 1982 using the modern invention of lethal injection — the first state in the country do so — the nation’s death row population had reached record heights. The percentage of people of color on death row was on the rise, including in Texas. In 1981 the state handed down death sentences to 11 black men, 10 white men, and two Latinos. In 1982, it was 12 black men, 12 white men, and five Latinos. One veteran death penalty lawyer bluntly told AP that the future dangerousness provision of the Texas law “practically guarantees the death penalty for anyone who’s black or Mexican.” After all, he said, those are the people who whites believe are “more likely to commit crimes of violence to start with.”

A judge with the Texas Court of Criminal Appeals also expressed unease with this aspect of the law. “I can’t ever see putting a person to death on the basis of some psychiatrist going in and interviewing somebody and testifying that this person is likely to commit crimes of violence in the future,” he told AP. But that’s precisely what happened. In 1983, the U.S. Supreme Court heard a case involving a man who had been sentenced to death after psychiatrist James Grigson testified that the defendant would pose a future danger. After the court ruled for the state, Grigson came to be notorious, eventually earning the title “Dr. Death” and testifying in 167 capital cases.

Texas was eventually forced to amend its law after 1989, when the U.S. Supreme Court found that it had failed to enable a jury to weigh mitigating evidence before sentencing a man with an intellectual disability. But the future dangerousness provision remained — and it continues to reverberate to this day. In 2017, the Supreme Court overturned the death sentence of Duane Buck, whose own trial attorneys had relied on a psychologist who testified that black people were more likely to pose a continuing threat to society. Defending Buck’s death sentence, Texas insisted that the testimony had only played a minor role in the case, but Chief Justice John Roberts rejected the argument. “When a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record,” he wrote. “Some toxins can be deadly in small doses.”

The Intercept’s death row dataset is a living document, available on Github, that we will continue to update as new death sentences are meted out, old convictions are overturned, and executions continue. If you have relevant information, please email us at deathrow@theintercept.com.

The Power To Kill

What Happens When a Reform Prosecutor Stands Up to the Death Penalty

STANDING BEHIND A podium outside the Orlando courthouse, Aramis Ayala, the elected state prosecuting attorney for Florida’s Orange and Osceola counties, announced that after extensive research, discussion, and reflection, she had decided that she could no longer seek the death penalty for defendants charged by her office. “My duty is to seek justice, which is fairness, objectivity, and decency,” she said. “I am prohibited from making the severity of sentences the index of my effectiveness.”

In many ways, Ayala’s announcement in the winter of 2017 should not have been a terribly newsworthy event. Death penalty prosecutions across the country have declined precipitously over the last decade, prompted by mounting evidence that capital punishment does not serve as a deterrent and is extremely expensive, exceedingly fallible, and racist in practice. As juries are increasingly disinclined to impose death sentences, only a dwindling number of prosecutors in isolated geographic pockets regularly continue to seek them. Recent research indicates that officials in just 2 percent of counties are responsible for the majority of the nation’s death sentences — meaning that, for all intents and purposes, Ayala’s decision to stand down was hardly unique.

What made it newsworthy, and touched off a political firestorm, was her decision to say it all out loud.

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

State Attorney Aramis Ayala in her Orlando, Fla., office on Nov. 22, 2019.

Photo: Zack Wittman for The Intercept

At the time, Ayala’s office was facing the prosecution of a man named Markeith Loyd, who had killed his pregnant ex-girlfriend and then an Orlando police officer — exactly the kind of case that supporters of capital punishment point to as necessitating the ultimate penalty. Ayala’s decision to seek life in prison for Loyd earned the ire of then-Gov. Rick Scott, who quickly declared that he “completely” disagreed with her decision and would use his executive power to remove the case from her office and give it to an elected prosecutor from another jurisdiction. Ayala, he said, “has made it clear that she will not fight for justice.”

The conflict speaks to just how much power prosecutors have within the criminal justice system, including when it comes to deciding who should die — and what can happen when a reform-minded prosecutor like Ayala counters an entrenched political narrative of what justice looks like.

Indeed, an extensive dataset compiled by The Intercept of individuals sent to death row in active death penalty jurisdictions since July 2, 1976, the start of the “modern” death penalty era, reveals capital punishment as a failed public policy, just as Ayala said. Our set includes 7,335 death sentences from 29 states and the federal system. A staggering 43 percent of this population is no longer on death row — but not because they were executed. Instead, thousands have had their sentences reduced, hundreds have died while awaiting execution, and still hundreds more have been exonerated or released from prison.

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

The Intercept’s dataset contains individuals sentenced to die since July 2, 1976, in active death penalty jurisdictions, including 29 states and the federal government.

Graphic: Soohee Cho/The Intercept

Florida’s experiment with capital punishment is a similar failure. Of the 992 people sentenced to death since 1976, 88 have been executed; just 9 percent of the total. Meanwhile, 528 of them — 53 percent — have been released from their death sentences. The vast majority of those individuals have been resentenced to life behind bars, either with or without the possibility of parole. Fifty-nine people once condemned have been released from prison, including 23 who were exonerated. Florida has the highest number of death-row exonerations in the country.“I was focused on the facts,” Ayala said of her announcement during an interview with The Intercept. “I believed that my job as a leader in this community is to speak the truth, is to explain to people the direction that we are headed, why we’re headed that way, and how this is what is best for the community that I serve.”

“I never expected to be on a first-name basis with the governor of the state of Florida,” she added. “I absolutely had no intent nor did I foresee that happening. In retrospect, understanding the dynamics and the unspoken commitment to the death penalty by those in power, now I get it. It’s a tragedy, but I do get it.”

The Machinery of Death

As a young assistant prosecutor in Polk County in 2002, fresh out of law school, Ayala considered the death penalty as part of a system of “equitable” punishments. “There are a ton of crimes in the state of Florida that result in a life sentence — and in Florida, a life sentence is an actual, true life sentence. You die in prison,” she said. “Knowing there are non-homicide crimes that can result in that, my mindset originally was that based upon equity, then yes, the next highest sentence would be not just a life sentence, but the loss of your life.” That sort of breezy acceptance of the death penalty fit within the prosecutorial culture she had come up in, which “tends to have this idea that the more successful you are, the more severe the penalties are,” she said. “It’s almost a reward to reach the stage in your career to have the authority and power to kill someone.”

Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

Ayala walks up to the Orange County Courthouse in Orlando, Fla., on Nov. 22, 2019.

Photo: Zack Wittman for The Intercept

The annals of the American death penalty are riddled with such prosecutors. “Cowboy” Bob Macy, who spent 21 years as the district attorney in Oklahoma County, Oklahoma, and personally secured 54 death sentences, kept a personalized set of baseball cards on his desk that featured his “accomplishments.” The courts found misconduct in more than a third of the cases Macy tried, and three defendants he condemned were later exonerated. Donald Myers, who secured 39 death sentences over a 40-year career as the top prosecutor in Lexington County, South Carolina, was known as “Doctor Death.” He had a penchant for excluding jurors based on race and using racist language to describe black defendants. In his zeal to secure a death sentence, Myers committed misconduct in nearly half of the capital cases he tried, the courts later found. Six death sentences were overturned specifically because of his misconduct, according to a 2016 report from the Fair Punishment Project.

“It is, I would say, a somewhat perverted culture that dehumanizes not just the person we’re killing, but dehumanizes ourself and our sense of loss,” Ayala said. “That was the culture in which I grew up.”

In 2004, Ayala moved to Orlando and took a job as a public defender, where she saw the other side of things. She understood the seriousness of the crimes her clients were charged with, but also saw them as people shaped by their experiences and circumstances. “It changed everything,” she said. “I … started seeing the human side of the criminal justice system” and understanding that the facts of the case go beyond the criminal charges.

“It’s almost a reward to reach the stage in your career to have the authority and power to kill someone.”

After roughly a decade, Ayala went back to prosecuting cases as an assistant state attorney in the Orlando office she now runs. She was there for two years before running for election in 2016; her victory that November made headlines in part because she would become the first black elected prosecutor in Florida history.

Notably, Ayala had not campaigned on the death penalty — mostly, she said, because there was no functional death penalty in Florida at the time. Indeed, within the span of a year, both the U.S. and Florida Supreme Courts had ruled the state’s statutory scheme unconstitutional. Following the U.S. high court’s January 2016 ruling in Hurst v. Florida, the state court decided that the decision should apply retroactively, which meant that upwards of 200 death-row inmates might have to be resentenced — more than 50 percent of the state’s death-row population. At the time of Ayala’s election, Florida’s capital punishment system had essentially unraveled, forcing the state Legislature to rewrite its death penalty statute in order to pass constitutional muster.

It was after Ayala assumed office in January 2017 that she realized capital punishment was no longer just a matter of front-line prosecution or defense; it was now a matter of policy — a policy that she would have to invoke, one that would require her to switch on the machinery of death. On the campaign trail, she’d promised “prosecutorial accountability,” she recalled. Determining whether to seek the death penalty certainly fit into that frame. She did the research — including into the circumstances of the Loyd case — and then made her decision, which she delivered that day in February.

It wasn’t knee-jerk or emotional, Ayala said. “I think that all informed decisions should evolve,” she explained. “If we are in the same place on any topic over a 10-, 20-year period, that problem is bigger than the issue.”

How Is That Proper?

To say that this didn’t go over well with Scott — or the Florida Legislature — would be an understatement. In all, Scott reassigned 24 aggravated murder cases to another elected state attorney. Ayala took him to court, arguing that he had overstepped his bounds and interfered with her prosecutorial discretion.

The idea of prosecutorial discretion is axiomatic. Prosecutors are charged with seeing that justice is done, which naturally includes the power to decide who to charge, how to charge them, and what punishment to seek. In taking away an entire class of cases because he didn’t personally agree with Ayala’s decisions, Scott was upsetting that balance of power and crossing state constitutional lines, according to Ayala’s lawyer, Roy Austin. As Austin argued before the Florida Supreme Court in the summer of 2017, there was nothing in the law that required Ayala to seek the death penalty, only a requirement that a defendant be notified if she intended to do so.

Although this was the same court that had only recently found Florida’s capital punishment statute unconstitutional, throwing the fate of more than half the state’s death convictions into doubt, several of the judges were now wringing their hands over the idea that Ayala’s decision would throw the system into chaos. “You’re going to have a situation where in the state of Florida, you’re going to have one circuit with the death penalty and another without it, all over the place,” then-Chief Justice Jorge Labarga noted. “How is that proper?”

“Your Honor,” Austin replied, “that is exactly what happens right now.”

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Wyoming-Death-Penalty_Woolf_05-1575220255 The Abolitionists: A Push to Repeal the Death Penalty Gains Ground Across the Western United States Featured Top Stories U.S. [your]NEWS

Left/Top: Florida state Rep. Bob Cortes holds up a letter he sent Gov. Rick Scott in support of a reassignment of first-degree murder cases from Ayala’s office during a press conference on April 4, 2017, in Tallahassee, Fla. Right/Bottom: Ayala, center, listens as her lawyer, Roy Austin, right, speaks to the press in Tallahassee on June 28, 2017, after asking the Florida Supreme Court to return murder cases reassigned by Scott.Photos: Phil Sears/AP; Brendan Farrington/AP

Eight counties have not sent anyone to Florida’s death row since 1976, according to The Intercept’s dataset. And, as it is across the country, elsewhere in the state the number of death penalty convictions varies widely, often far out of proportion to the local population. Miami-Dade County is the state’s most populous, with roughly 2.8 million residents. Since 1976, Miami-Dade has sent 114 people to death row, according to the dataset. By contrast, Duval County, which has a population of under 1 million, has sent 107. Orange and Osceola counties, where Ayala is the chief prosecutor, have a combined population of roughly 1.8 million and sent just 50 people to death row over the last 43 years.

In the end, the court sided with Scott in a 5-2 opinion. By saying she would not seek the death penalty, the court ruled, Ayala was not utilizing her discretion, she was eschewing it.

If you look at the challenges reform prosecutors across the country have faced, “it all has to do with questioning our use of discretion,” said Ayala. “And when you understand and look at the history of discretion, when more than 99 percent of the elected prosecutors in the country were white and/or male, it’s now that we’re having the conversation that discretion is something that is questioned.”

As Ayala’s case was making its way through the courts, the Legislature slashed the budget of her office by more than $1 million and cut 21 positions. Still, Scott’s decision to punt the cases to another prosecutor didn’t really change anything. To date, the majority of the transferred cases are still pending. A number of them are awaiting rehearing in light of the Hurst decision. The cases that have gone to trial have so far resulted in life sentences — including the Loyd case.

Wanton and Freakish

Ayala is not alone in facing backlash for challenging longstanding prosecutorial practices, including where the death penalty is concerned. In St. Louis County, Missouri, Prosecuting Attorney Wesley Bell has taken heat from the police union and at least one state lawmaker for a series of reforms, including a decision not to seek the death penalty in a high-profile murder and rape case. After Bell said he would change the office’s policies on handling certain crimes, Republican state Rep. Jim Murphy filed a bill that would allow the state attorney general to take over cases the prosecutor declined to pursue. “A prosecutor’s job is to enforce the laws,” Murphy told Mother Jones. “He can have a case-by-case discretion, but certainly not discretion to just become the king.” (The bill did not pass.)

Then there’s Philadelphia District Attorney Larry Krasner, arguably the country’s most prominent reform prosecutor, who has also earned a healthy dose of official ire. State lawmakers passed a bill that would allow Philadelphia police to sidestep the DA and take certain crimes directly to the state AG for prosecution. In July, Krasner’s office filed an extraordinary brief with the state Supreme Court, arguing that the death penalty should be found unconstitutional. To come to that conclusion, his office had studied 155 death sentences handed down in Philadelphia between 1978 and the end of 2017, just before Krasner took office. The results were dismal: A majority of the defendants were poor and had received deficient legal representation. Seventy-two percent of the cases were eventually overturned, the majority resulting in a lesser sentence. Nearly everyone from the county left on death row is black.

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District Attorney Larry Krasner in a staff meeting on Oct. 17, 2018, in Philadelphia.

Photo: Christopher Lee/VII Mentor Program/Redux

“These facts call into question the constitutionality of the death penalty as it has been applied in the county where it has been most actively employed,” Krasner wrote. “To be clear: The problem is not with the statute, but rather with its application.” But crafting a statute that “comports” with constitutional standards has not happened, the brief argued, as revealed by the high reversal rate showing that death sentences have been applied in a “wanton and freakish, arbitrary and capricious manner.”

The Pennsylvania District Attorneys Association balked. The problem was legislative, not constitutional, they argued, and the fact that the cases were overturned didn’t mean the underlying death sentences were unwarranted. “On the contrary,” they wrote, “that appellate courts have determined that the standards or procedures were not followed in a particular case is evidence that the standards and procedures — which include a robust appellate process — work.”

On September 27, the Pennsylvania Supreme Court declined to find the state’s law unconstitutional, saying it would continue to assess the fairness of the law on a case-by-case basis.

A Dangerous Culture

The same hostility and cries of abuse of discretion have not been leveled at the countless prosecutors who have used their power to justify repeatedly seeking the death penalty.

Prosecutors like Lynne Abraham, a longstanding predecessor of Krasner’s dubbed the “Queen of Death,” described herself as “passionate” about the death penalty, which, in 1995, she told the New York Times Magazine was “manifestly correct.” During her tenure, the office secured 108 death sentences — including many that were overturned and cited in Krasner’s brief as proof that the system is dysfunctional. Just as the Pennsylvania District Attorneys Association argued this summer, Abraham claimed that mistakes eventually ferreted out by the appellate courts — often despite opposition from the state — merely meant the system worked.

More recently, there’s the example of Jackie Lacey, the first black female district attorney in Los Angeles County. Even as California’s capital punishment system has all but collapsed under its own weight, with Gov. Gavin Newsom issuing a moratorium on executions and going so far as to dismantle the state’s death chamber, Lacey has continued to press forward with capital cases. Over the last seven years, she has far outpaced most other jurisdictions, securing 22 death sentences, all against people of color. In nine of those cases, the defendants were represented by lawyers who “were previously or subsequently disbarred, suspended, or charged with misconduct,” according to a report from the American Civil Liberties Union. “A tenth defendant had a lawyer who repeatedly fell asleep through his trial.” In a statement to the Los Angeles Times, Lacey said she only sought the death penalty in a small fraction of crimes and would continue to do so unless capital punishment was abolished.

Meanwhile, California provides another stark example of the outsized role jurisdiction plays in determining who will get a death sentence. Riverside County has roughly a quarter of the residents of Los Angeles County, but over the same seven-year period, according to The Intercept’s dataset, prosecutors there sentenced 28 people to death, 25 of them people of color.

But for all the prosecutors and other officials who have been vocal defenders of the death penalty, a growing number of veteran practitioners have been adding their voices to those like Krasner and Ayala.

In Nevada, former Washoe County prosecutor Thomas Viloria has been increasingly passionate and public in calling for his state to finally abolish the death penalty. Back in the mid-1990s, he was awarded his office’s Top Trial Dog award. The plaque hangs on the wall in his office in Reno. Among the engravings is the phrase “Justice Demands Death,” the closing line Viloria would offer jurors when trying capital cases. He doesn’t believe that anymore.

In an interview with The Intercept, he recalled the jury returning a death sentence in one of his cases. He could “feel a wave coming off the jury, of energy,” he said. “It didn’t feel good. It just felt bad. Evil.” He couldn’t stop thinking about it. He lay in bed that night wondering “whether this is the right thing that we really ought to be doing.” It was not, he concluded. “The process is so random in terms of the ultimate decision to seek the death penalty,” often vested in a single elected prosecutor. “If you’ve got a culture of un-enlightenment” within the DA’s office, he said, “it’s dangerous, very dangerous.”

When Law and Justice Don’t Align

In late May, Ayala posted a video to her office’s Facebook page. In it, she sits at a conference room table looking intently into the camera. She describes wanting to be a lawyer since she was a young girl — fifth grade, to be exact — and the evolution of her thinking and practice that brought her to the state attorney’s office. She says that seeking justice, increasing diversity, and raising the standard of prosecutorial accountability have been her priorities, while also expanding “our thinking as it relates to prosecutorial culture and the traditions within prosecution and the administration of justice.”

Yet, despite her accomplishments, she had a big announcement to make: She would not be running for re-election in 2020. After the Florida Supreme Court’s ruling, she said, it had become “abundantly clear to me that death penalty law in the state of Florida is in direct conflict with my view and my vision for the administration of justice.”

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Ayala, at home in Windermere, Fla., says goodbye to her daughters, Aliyah and Alanah, before her husband, David Ayala, drives them to school on Nov. 22, 2019.

Photo: Zack Wittman for The Intercept

If anything, Ayala’s confrontation with the governor and the Supreme Court over the limits of her ability to reform the system from within has steeled her position. “My job as a prosecutor is the pursuit of justice,” she told The Intercept. “I believed, naively, that law and justice would align in this situation, and they don’t, so there’s absolutely no way that I can take an oath, genuinely knowing that I am intending to pursue justice as a state attorney, when the law has impeded that by saying that I have to seek death.”

Ayala has already removed herself from the process as much as possible. She created a panel of lawyers within her office who are tasked with deciding whether to seek the death penalty in individual cases. To date, under this arrangement, the office has filed an intent to pursue death in seven cases.

In the meantime, Ayala has just over a year left in office and said she intends to continue to press forward with reform efforts. “When prosecutors are being mindful of reform efforts, it is for the good of this country. It is for humanizing people,” she said. “It is for building a better rapport with our communities because we also know that people who trust the … criminal justice process are more likely to respond positively to law enforcement. When you respond positively to law enforcement and you can rely on law enforcement, it makes us all safe,” she continued. “It ultimately is for safety versus the badge of honor for being the harshest in this field.”

The Intercept’s death-row dataset is a living document, available on GitHub, that we will continue to update as new death sentences are meted out, old convictions are overturned, and executions continue. If you have relevant information, please email us at deathrow@theintercept.com.

Counting The Condemned

By Any Measure, Capital Punishment Is a Failed Policy

HE DEATH PENALTY, they say, is dying. And in many important respects, this is true. Support for capital punishment has decreased dramatically. In 1998, there were nearly 300 new death sentences imposed in the United States. In 2018, there were just 43. In the past decade alone, six states have abolished the death penalty by legislation or court order, while four more have imposed moratoriums on executions. Abolition is increasingly embraced by conservatives, who have spearheaded repeal efforts in a number of states, most recently and energetically in Wyoming.

This trend is partly rooted in research that continues to expose enduring problems with the death penalty, particularly its racism, arbitrary application, and failure to deliver on claims of public safety. Such findings are significant, but they are also familiar. They mirror the very same evidence that led the U.S. Supreme Court to strike down the death penalty more than 47 years ago in its historic decision in Furman v. Georgia. Decided amid dampening support for the death penalty and a long pause on executions, Furman declared that the death penalty was arbitrarily and capriciously applied. There were clear signs of racial bias and no evidence that it worked as a deterrent. Nevertheless, the response to Furman was swift: States immediately began enacting new death penalty laws designed to pass constitutional muster. Just four years after Furman, in 1976, the court upheld a new set of statutes in Gregg v. Georgia, signaling the start of the “modern” death penalty era.

Although the past few decades have ushered in significant reforms — such as improvements in the quality of capital defense, a major factor in reducing new death sentences — states continue to carry out executions in the face of serious questions about the influence of racism, mental illness, or intellectual disability; biased, shoddy, or simply incomplete police investigations; prosecutorial misconduct and woefully deficient defense lawyering; and the persistent influence of junk forensic science.

The failure to grapple with these problems has high stakes. The case of Rodney Reed is only the most recent example of a state rushing toward an execution despite serious concerns over innocence. Reed’s execution date was one of a slew of executions Texas planned to carry out through early December — a group of cases that illustrate all too clearly the problems plaguing capital convictions. Scores of people have been exonerated from death row across the country, and research published by the National Academy of Sciences suggests that there are hundreds more innocent individuals facing execution. Given this landscape, there is vanishingly little doubt that innocent individuals have been put to death — including in Texas, which has executed more than 550 people since 1976, far more than any other state.

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People hold hands while praying during a protest against the execution of Rodney Reed on Nov. 13, 2019, in Bastrop, Texas.

Photo: Nick Wagner/Austin American-Statesman via AP

Collecting the Data

As the 40th anniversary of the U.S. Supreme Court’s decision in Gregg v. Georgia neared in 2016, it seemed clear to us that the death penalty remained as problematic today as it was in 1972. But we wondered what the numbers would show. We were curious not only about who was on death row in the country’s remaining death penalty states, but how many people had been removed from death row — a sizable but largely invisible population in the ongoing death penalty debate. As far as we could tell, this particular dataset did not exist. So we decided to compile one ourselves. We began collecting information on individuals sentenced to death starting on July 2, 1976, the day Gregg was announced. Such data would allow us to see who had ended up on death row, where they were from, and the outcome of each case. The goal was to create a high-level snapshot of four decades of “modern” capital punishment.

We set out to collect information about every individual sentenced to die by the federal government, the U.S. military, and states with an “active” death penalty — those jurisdictions that still hand out death sentences or carry out executions, even if they’re rare. We also included states that had ended capital punishment but where people remained on death row.

No sooner did we begin collecting data than states began to drop off our list. Delaware’s death penalty was struck down by the state Supreme Court in August 2016, with the last two condemned men resentenced last year. In New Mexico, which ended capital punishment in 2009, the last remaining death sentences were reduced to life this year. In October 2018, Washington effectively abolished the death penalty by court order.

For the most part, however, the scope of the project remained unchanged. Our first step was to contact prison officials with the federal government and in each of our target states to ask for a full roster of individuals sentenced to death row beginning in July 1976. We also asked for specific data points: dates of birth, race, gender, sentencing dates, and current status. This last item is where things got tricky. It’s relatively easy to find lists of people who are on death row or have been executed, but each of these categories represents a minority of the individuals sentenced to die.

The greatest number of people sentenced to death since the summer of 1976 are no longer on death row, not because they were executed but for a host of other reasons: They’ve died or killed themselves; they have been exonerated or had their sentence commuted; or they’ve been resentenced to a lesser term. Many have been released from prison. This population of people no longer on death row makes up a stunning 43 percent of The Intercept’s dataset.

The lack of care in collecting such important data was fairly shocking — especially when you consider that pro-death penalty prosecutors and politicians tell us these cases represent the “worst of the worst.”

As we began to receive records, it became clear that much of what we were getting from the government was flawed. States like Florida and Texas — both extremely active death penalty states with robust sunshine laws — had the data on hand and were quick to provide it. Texas publishes most of its data online, but many other states simply do not track the information we were trying to find, or do so in a haphazard way that leads to incomplete and inaccurate data.

What we learned was that the states’ record-keeping is abysmal, on balance. Oklahoma told us that the information probably existed in hardcopy form but would be difficult to locate. The corrections department hadn’t had a computer upgrade since the early ’90s, and the documents were likely stored somewhere in a vast warehouse. Louisiana, where death row is housed at the Supermax prison known as Angola, gave us a copy of the so-called Angola Death Book, a binder full of details on a seemingly random assortment of cases. We were told that the Death Book had never before been released. After we questioned the accuracy of Nebraska’s public information regarding people no longer on death row, officials eliminated it from their website.

The lack of attention and care in collecting and storing such important data was fairly shocking — especially when you consider that pro-death penalty prosecutors and politicians always tell us that these cases represent the “worst of the worst,” people so dangerous it is necessary to murder them on our collective behalf. But perhaps even more vexing is the fact that the Bureau of Justice Statistics, an agency within the Department of Justice, collects detailed demographic and other data about states’ death-row populations, yet Congress has blocked its public disclosure. Although BJS has made some of its findings available in annual reports, the U.S. Code specifically exempts that research from public release, despite the fact that the majority of the collected information is a matter of public record. We were denied access.

Although we initially believed that the data collection would be a relatively straightforward task, it soon became clear that we would have to find alternate sources of information. Much of this data was acquired via a network of attorneys across the country, including lawyers in public defender offices at the state or federal level. Other sources were connected to advocacy groups, and some had individually been tracking this data in their respective states.

Another important resource was a series of quarterly reports published since the mid-1970s by the NAACP’s Legal Defense Fund, titled “Death Row USA,” which offers a running, state-by-state list of individuals sentenced to death. The reports include racial information for each individual and details about those who have been executed, including who abandoned their appeals and “volunteered” to die. The reports were particularly useful in trying to put together a list of people sentenced to death in Oklahoma, where the state could not provide any records concerning individuals removed from death row for a reason other than execution. We were able to use the NAACP documents going back to 1976 to create a list of 160 people who had been removed from death row there.

Finally, we undertook extensive online research to fill in various gaps, using the Death Penalty Information Center to keep our data current, and archival news reports, court opinions, and other sources to find information on older cases.

Once the dataset was largely complete, our next step was to provide it to a small group of lawyers and academics for review. They helped find additional errors and encouraged us to move forward. Though a wealth of research and data on capital punishment has been collected by others — notably the Death Penalty Information Center and law professor Brandon Garrett, whose research has long informed our reporting —  it was clear that our dataset could build upon such resources and reveal even more about the country’s capital punishment system.

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The Intercept’s dataset contains individuals sentenced to die since July 2, 1976, in active death penalty jurisdictions, including 29 states and the federal government.

Graphic: Soohee Cho/The Intercept

A Failed Policy

The end result finally came together in the fall of 2019. It includes 7,335 individual entries from 29 states and the federal government.

Some of the numbers from our dataset may appear to conflict with statistics that are widely cited when referring to the death penalty in the U.S. For example, in June, the country marked a grim milestone: the 1,500th execution since the Gregg decision. In contrast, our dataset contains 1,448 executions. This is because our dataset is limited to sentences handed down since Gregg in death penalty jurisdictions that remain active.

Nonetheless, the dataset provides a damning portrait of capital punishment in the U.S. Of the 7,335 entries, 1,448 people have been executed, 20 percent of the total. Even those who insist that executions are effective in combating crime must concede that this indicates a failed public policy.

Some 2,752 remain on death row, roughly 38 percent of the total. The single largest group of people are no longer on death row. Out of 3,135 entries, more than 2,000 have been resentenced and hundreds have been released. Hundreds more have died while awaiting execution; this group makes up 8 percent of our dataset.

Of the 7,335 entries, 1,448 people have been executed, 20 percent of the total. Even those who insist that executions are effective in combating crime must concede that this indicates a failed public policy.

In 32 percent of the cases represented in the dataset, individuals have ultimately been resentenced, meaning that courts have intervened to correct errors that occurred at trial. In other words, roughly a third of all death penalty prosecutions were flawed in some way that required readjudication. We call this the basic failure rate of the capital punishment system.

Fifteen states had above-average failure rates — some far above it. In Colorado, the failure rate for capital cases is at least 63 percent; in South Carolina, it is 60 percent. Idaho, Indiana, Kentucky, and Pennsylvania have failure rates of 50 percent or more.

In these cases, involving 2,373 individuals, the vast majority were ultimately resentenced to a lesser term in prison, most often to life (with or without parole). The remaining individuals were resentenced to death row, to a discrete term of years, or to time served and released. In fact, within the dataset are at least 333 people who have been released from prison after being on death row; at least 132 have been exonerated.

When it came to race, our findings were startling, if not entirely shocking. The disproportionate punishment of defendants of color — and black people specifically — is one of the death penalty’s defining historical characteristics. But our dataset shows that rather than becoming more equitable over time as new death sentences become rarer across the country, the death penalty appears to be more racially biased than ever. In state after state, our data showed that the percentage of people of color sentenced to death in recent years is larger than in the decade immediately following Gregg.

The numbers are especially stark in states that are home to the country’s largest death-row populations. In the first full decade after Gregg, people of color made up 51 percent of those sentenced to death in Texas. This percentage has grown to 75 percent in the past 10 years. In California, people of color made up 52 percent of those sentenced to death after Gregg, compared to 78 percent in the last 10 years. In Florida, the proportion jumped from 40 percent to 52 percent over the same two periods. And in Oklahoma people of color leapt from 28 percent of those sentenced to die in the decade after Gregg to 80 percent in the last 10 years.

Notes on Record-Keeping

Despite years of work, the dataset remains incomplete. One problem we found was a slew of missing names across states from the late 1970s and early 1980s. This is because, although Gregg may broadly mark the beginning of the “modern” death penalty era, many states had to repeatedly revise their new statutes before they could withstand judicial review. Although people condemned to die under such statutes were generally resentenced, the process varied from state to state — and information about these early cases can be hard to come by. Then there is the sizable set of names missing from our data altogether: the men and women sentenced to die in the chaotic era after Furman and before Gregg. Hundreds were pulled into the system during this time, and these invisible cases are an emblem of the false distinction between the so-called modern death penalty era and everything that came before.

As we prepared to make this data public, we wanted to be transparent about the ways in which we sacrificed nuance and detail in favor of simplicity and cohesion.

RACE: As our reviewing experts pointed out, some of the most important evidence showing bias in our death penalty system is revealed by the race of the victim in a given case. Numerous studies have shown that a defendant’s chance of receiving a death sentence is far higher if the victim is white. In fact, a report published this past August revealed that in Georgia — whose death penalty law provided the model for other states back in 1976 — defendants convicted of killing a white victim are 17 times more likely to be executed. While some lawyers and academics seek to track such data in some jurisdictions, there was no way to obtain it for all the states and cases represented in our dataset.

Another limitation is in the categories we use to classify race. In order to standardize the information we received — and in an effort to reconcile the myriad ways that different states categorize death-row populations according to race — we settled on five broad categories: Asian, black, Hispanic or Latino, Native American, and white. Where we had no racial information or were unable to reliably classify an individual, we used the category “other or unknown.” Such labels are, of course, woefully inadequate in capturing the true racial and ethnic makeup of death rows across the country. Unfortunately, so were the materials we drew upon to form the dataset to begin with. A more accurate accounting of race would be a project unto itself and not one we could responsibly undertake based on the information upon which we were relying.

DATE OF BIRTH: Fourteen states provided date-of-birth information; eight provided none. The remaining seven states provided some combination of information — some provided birthdates only for people currently on death row, while others provided the data only for people formerly on death row. Where full birthdates were not provided or we could not find them, we used published reports citing a person’s age to determine the most likely year of birth.

SUICIDES AND “VOLUNTEERS”: In all, our data contains 103 individuals who killed themselves while on death row. We feel certain that this is an undercount, in part because the results of death investigations aren’t always reported or made public. The data also probably undercounts the number of people who have given up their appeals and “volunteered” for execution, which is tricky to confirm absent an acknowledgement from the individual defendant or their lawyer. Our data contains 132 volunteers.

ON DEATH ROW: This field does not adequately capture the current status of all individuals in this category, particularly those in the middle of the appellate process. At any given time, a number of individuals will be caught in limbo: They’ve had their conviction overturned, but that decision is pending on appeal; they may have had their conviction or sentence overturned but are awaiting retrial or resentencing.

EXONERATED: There are two main sources for tracking wrongful convictions: the National Registry of Exonerations and the Death Penalty Information Center. To determine who in our data had been exonerated, we adopted the registry’s definition, which does not rely solely on a court’s declaration of innocence. Applying this definition to individuals sentenced to death since July 2, 1976, across 29 states and the federal system, we identified 132 people exonerated after being sentenced to death.

CURRENT SENTENCE: Among the data are individuals who have been retried and resentenced multiple times after their first death penalty conviction, including individuals resentenced to death row more than once. Our data reflects each defendant’s most recent sentence.

SENTENCING DATE: This can either be the date a jury handed down or recommended a death sentence or the day the defendant was later formally sentenced by the judge. Some states — most notably Texas — provided the date a person was received by the prison system, rather than the sentencing date. Typically, the incarceration date will follow fairly close to sentencing, though there are exceptions. In some cases, we could only narrow the sentencing date down to a particular year. Finally, although we have aimed to provide the original sentencing dates for all individuals, several of our entries are likely to reflect resentencing dates. Reversals in capital cases were common in the aftermath of Gregg. Some states, like Ohio, saw their new death penalty laws overturned, leading to mass resentencings. But others, like California, were repeatedly ordered to provide new trials or resentencing hearings in individual cases. Although some were resentenced to life, many others were sent back to death row. We have found that state records frequently fail to account for original sentencing dates in such cases. It is likely that the number of people we have designated as “resentenced” is lower than the actual total.

COMMUTATIONS: People often conflate resentencing and commutation. In our dataset, a commutation denotes an executive branch action that reduced an individual’s sentence. Our data contains 68 commutations.

DUPLICATE ENTRIES: Within the data, we found a handful of people who had been sentenced to death in multiple states. We have counted at least eight such cases. In other words, our dataset contains 7,335 unique entries, not individuals.

After years of work to complete The Intercept’s death-row dataset, we nonetheless continue to find holes and inaccuracies. But we are sharing it publicly now because we believe that it is a unique and useful resource for anyone seeking to research capital punishment in today’s death penalty states.

We also believe that it provides a disturbing look at capital punishment as a whole. It strongly demonstrates across a number of metrics that the death penalty is a routinely fallible and ultimately failed policy. Nearly half of everyone sentenced to death since 1976 in the country’s active death penalty jurisdictions are no longer on death row, but not because they were executed. Hundreds have been released from prison; thousands are serving a lesser prison term. More than 130 have been exonerated. The thousands who have been resentenced demonstrate that capital prosecutions are flawed in at least a third of all death penalty convictions.

Far from delivering on the Supreme Court’s promise of a fairer and more equitable system in Gregg, the death penalty is as arbitrary as ever. People of color not only remain overrepresented as a whole, but these discrepancies appear to be getting worse — even as death sentences decline year after year. Nationally and in the country’s leading death penalty states, the percentage of people of color sentenced to die in recent years is becoming larger than the percentage sentenced four decades ago.

We hope that our findings will lead to further research. The Intercept’s death-row dataset is a living document, available on Github, that we will continue to update as new death sentences are meted out, old convictions are overturned, and executions continue. We welcome input. If you have information relevant to our dataset, please email us at deathrow@theintercept.com.

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