14% of Death Row a Product of Non-Unanimous Verdicts or Judicial Override of Jury Votes for Life
The U.S. death row population has fallen below 2,300 for the first time since 1989, according to data compiled for the Legal Defense Fund (LDF) Death Row USA census, marking the latest milestone in 23 consecutive years of U.S. death-penalty decline.
LDF’s Fall 2023 issue of Death Row USA (DRUSA), released May 13, reports that 2,262 men and women were imprisoned on state, federal, or military death rows in the United States or faced continuing jeopardy of death in pending capital retrial or resentencing proceedings as of October 31, 2023. The last time LDF recorded a smaller U.S. death row population was in July 1989, when DRUSA reported that 2,210 death-sentenced people faced jeopardy of execution.
A Death Penalty Policy Project (“DP3”) review of the data found that the convictions or death sentences of 162 of the individuals in the Fall 2023 census had been overturned in the courts pending appeal by prosecutors or awaiting retrial or resentencing proceedings. That left 2,100 men and women with active death sentences. Excluding death-sentenced individuals in jurisdictions with formal moratoria on executions (California, Pennsylvania, and the federal civilian death row), LDF reported that 1,333 people faced active and enforceable death sentences.
For the first time, the DRUSA census also measured the disproportionate impact of death sentences imposed by judges after non-unanimous jury votes favoring death or overriding jury votes for life. Using sentencing data collected by DP3, LDF reported in its Spring 2023 DRUSA (also released May 13) that 326 people currently at risk of execution had been condemned under these outlier practices. Alabama and Florida alone accounted for 324 of the non-unanimous/judicial override sentences, or 14.0% of the U.S. death row population. By contrast, 150 people facing the death penalty in Alabama or Florida were sentenced to death by unanimous juries or in cases in which defendants waived juries in favor of judicial sentencing — 7.6% of the those death sentences imposed nationwide.
More than three-quarters of those facing execution in Alabama as of April 1, 2023 (129 of 167, or 77.2%) had been sentenced to death despite the votes of one or more jurors for life. Nearly three-fifths of Alabama’s death row (98 people, 58.6%) were condemned following non-unanimous jury recommendations of death; nearly one in five (31 cases, 18.6%) were sentenced to die despite their juries having voted for life.
Alabama no longer permits judicial override but has refused to overturn the death sentences of those sentenced to death under that practice.
Even more individuals in jeopardy of execution in Florida on April 1, 2023 had their death sentences imposed following non-unanimous jury votes for death or as a result of judicial override of a jury’s recommendation for life. 193 of the 307 death-row prisoners or individuals facing capital retrial or resentencings — 62.9% of Florida’s death row — were sentenced under these procedures, 191 with one or more jurors dissenting from a recommendation of death and two by judicial override of a jury-recommended life sentence.
As of April 1, the death sentences of 69 of the state’s death-sentenced prisoners had been overturned in the courts, most because of the unconstitutionality of the state’s prior judicial sentencing statute. By October 1, according to the Fall 2023 DRUSA, the number facing execution because of non-unanimity had fallen to 180, largely a result of non-capital outcomes in those reversed cases.
Florida repealed its law permitting judicial override and non-unanimous death sentences in 2016, but did not apply those changes to prior cases. After three jurors voted to impose a life sentence on Nikolas Cruz because of evidence of his mental illness, Florida reversed course. Its death penalty law now permits trial judges to impose death sentences even if one third of the jurors in the case have chosen life — the most lax standard in the nation for jury capital sentencing.
Missouri is the third state in which individuals with jurors who voted for life are on death row: Lance Shockley and Craig Wood. Both were judicially sentenced to death under the state’s “hung jury” sentencing statute, which requires the trial judge to independently determine a defendant’s sentence if the capital sentencing jury in the case does not reach a unanimous sentencing recommendation. Missouri trial judges have the power to impose a death sentence even if as many as eleven jurors vote for life, as happened in the case of former death-row prisoner Marvin Rice in 2017. The Missouri Supreme Court later overturned Rice’s death sentence on unrelated grounds and a new trial judge ultimately resentenced him to life.
Death Row Down More than 4% in One Year
The 2,262 men and women reported by DRUSA as sentenced to death or facing continuing jeopardy of execution in pending capital retrial or resentencing proceedings as of October 1, 2023 are 101 fewer than the 2,363 reported to be on death row in LDF’s Fall 2022 DRUSA. That represents a 4.3% one-year drop and a more than 39% decline from the 3,717 who faced active death sentences or the possibility of capital resentencing when death row peaked in July 2001. More than half of the one-year decline came in jurisdictions with moratoria on execution, whose combined death-row populations fell to 804 from a reported 855. The moratorium jurisdictions account for 35.5% of those on death row or facing possible reimposition of reversed death sentences as of October 1, 2023.
California’s 647-person death row, down by 21 (3.1%) over the course of a year, remained the nation’s largest, still more than double that of any other state. Florida’s death row fell from 316 to 298 (5.7%), the first time in 34 years it had fewer than 300 individuals sentenced to death or facing potential capital resentences. Texas (185), Alabama (167), and North Carolina (139) were the only other states with more than 125 people on death row or facing potential capital resentencing proceedings.
Nationwide, 57.7% of those on death row or in jeopardy of capital resentencing were individuals of color. 42.3% were White, 40.9% were Black, 13.9% were Latinx, 1.9% were Asian, and 1.0% were Native American. Among states with at least 10 prisoners on death row, Texas (74.1%), Nebraska (72.7%), Louisiana (71.3%), California (66.9%), and Mississippi (66.7%) had the highest percentage of individuals of color on death row. BIPOC individuals also comprised 60% or more of those on death row or facing potential capital resentencings in North Carolina (61.2%) and Georgia (60.0%), and more than 59% of the death-row populations of Oklahoma (59.5%), Ohio (59.2%), and Pennsylvania (59.1%).
LDF recorded 50 women on death row as of October 1, 2023, or 2.1% of the national death-row population.
Here are links to the Spring, Summer, and Fall 2023 Death Row USA issues.
The Death Penalty Policy Project (“DP3”) is a 501(c)(3) non-profit organization housed within the Phillips Black Inc. public interest legal practice. DP3 provides information, analysis, and critical commentary on capital punishment and the role the death penalty plays in mass incarceration in the United States.