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Death Penalty Information Center Death Penalty Report Dec 2009

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THE DEATH PENALTY IN 2009:
YEAR END REPORT
Death Penalty Information Center
December 2009

Fewest Death Sentences Since Death Penalty
Reinstated in 1976
As Costs Rose in a Time of Economic Crisis, Eleven
States Considered Abolishing Death Penalty

Death Penalty Statistics
Executions*
New Inmates Under Death Sentence**
Death Row population (as of July 1)^
Percentage of executions by region:
South (45 executions)
Midwest (7)
West (0)
Northeast (0)
TEXAS (24)

States With Death Penalty
Exonerations
Since 1973

Executions Since 1976
Texas
Virginia
Oklahoma

2009

2008

1999

52
106
3,279

37
111
3,307

98
284
3,625

87%
13%
0%
0%
46%

95%
5%
3%
0%
49%

75%
12%
12%
1%
36%

35

36

38

9

4

8

139
1,188
447
105
91

*As of Dec. 17, 2009, with no more executions scheduled this year.
**1999 and 2008-Bureau of Justice Statistics; 2009-DPIC research - through
Dec. 16, 2009.
^NAACP Legal Defense Fund, "Death Row USA"

Death sentences
continued to decline in 2009,
with this year having the
fewest death sentences since
the death penalty was
reinstated in 1976. Death
sentences reached a high of
328 in 1994 and have
dropped 63% in the past
decade. The number of new
death sentences for the year
is projected to be 106, the
seventh straight year of
decline.
The drop in death
sentences was particularly
pronounced in Texas and
Virginia, the two leading
states in carrying out
executions. During the
1990s, Texas averaged 34
death sentences per year
and Virginia averaged 6.
This year, Texas had 9 death
sentences and Virginia one.

Eleven states considered
legislative proposals to repeal the death penalty in 2009, a considerable increase from previous
years. New Mexico became the 15th state to end the death penalty when Gov. Richardson signed the
law in March. The Connecticut legislature voted to abolish the death penalty, but the governor

Year End Report 2009 p. 2

vetoed the bill. Legislation to end capital punishment passed one house of the legislature in
Colorado and Montana, and came close to passage in Maryland.
The costs of the death penalty became an increasingly important issue as states faced severe
budget deficits. High expenses with no measurable benefits were frequently cited in legislative
debates about the death penalty. The costs for pursuing even a single capital case caused some
prosecutors to reconsider seeking the death penalty, and may have contributed to the decline in
death sentences in 2009.

Executions by
State

2009

2008

24
6
5
3
3
3
2
2
2
1
1
0
0
52

18
0
2
4
3
2
3
2
0
0
0
2
1
37

Texas
Alabama
Ohio
Virginia
Georgia
Oklahoma
South Carolina
Florida
Tennessee
Indiana
Missouri
Mississippi
Kentucky
TOTALS

Executions rose in 2009 compared to last year, partly
because of the de facto moratorium on executions for 4 months
of 2008 as the Supreme Court addressed the lethal injection
controversy. There were 52 executions this year, with no more
scheduled; last year there were 37. The number of executions
this year was still 47% less than that recorded ten years ago.
Only 11 of the 35 states with the death penalty carried out an
execution in 2009. Eighty-seven percent of executions this year
were in the south, and over half of those were in Texas.

Innocence Cases Remained Prominent

Nine men who had been sentenced to death were
exonerated and freed in 2009, the second highest number of
exonerations since the death penalty was reinstated. The
inmates freed this year spent a combined 121 years between
their death sentence and exoneration. Nathson Fields (IL),
Daniel Moore (AL) and Herman Lindsey (FL) were acquitted at
re-trials after their convictions were overturned. In the case of
Herman Lindsey, a unanimous Florida Supreme Court held there was insufficient evidence to
support his conviction: "[T]he State failed to produce any evidence in this case placing Lindsey at
the scene of the crime at the time of the murder. . . . Indeed, we find that the evidence here is equally
consistent with a reasonable hypothesis of innocence." Ronald Kitchen (IL), Paul House (TN),
Michael Toney (TX), Yancy Douglas (OK), Peris Powell (OK), and Robert Springsteen (TX) had all
charges dismissed after their convictions were overturned. (Michael Toney died in a car crash just
one month after his release.) The total number of exonerations since 1973 is now 139.
14
12

12

8

6

6

6

6

5
4
2

2

2008

2006

2004

2003

2000

1998

1999

1996

1
1997

1
1993

1990

1988

1989

1
1987

0
1985

1981

1982

1979

1980

1977

1978

1975

1976

1973

0
1974

2
1

1995

2
0

4
3

1994

2
1

1983

1

1984

1

1986

2
1

4
3

2005

3

2009

4

5

2007

4

1992

4

1991

4

4

9

8

2001

8

2

9

Exonerations
by Year
8

2002

10

In an important development on the issue of innocence discussed below, the U.S. Supreme
Court granted a stay of execution and an extraordinary evidentiary hearing to Troy Davis of
Georgia. In Texas, a prominent forensic scientist commissioned by a state legislative panel reported

Year End Report 2009 p. 3

that arson evidence used to convict and sentence Cameron Todd Willingham to death failed to
show any crime had been committed. Willingham was executed in 2004. The expert's report
concurred with similar reports on the same case from leading forensic scientists commissioned by
the Chicago Tribune and the Innocence Project in New York. As reported in an article in The New
Yorker magazine, the jury at Willingham's trial was misled by faulty evidence to believe he had set
the fire that resulted in the death of his three children. One day before the presentation of a report
by forensic expert Craig Beyler to the Texas Forensic Science Commission, Governor Rick Perry
replaced the chair and two other members of the Commission, and the investigation into the
possible wrongful execution of Willingham has been put on hold.

High Cost of the Death Penalty Meets the Economic Recession
As the country faced an economic crisis this year, the death penalty was increasingly seen as an
enormously expensive and wasteful program with no clear societal benefits. In a time of painful
budget cutbacks resulting in furloughed workers, closed libraries and the early release of prisoners,
states were pouring money into a badly flawed system rather than assisting law enforcement in
areas that demonstrably increase safety. Many states considered whether maintaining such a costly
system was really being smart on crime.
In a national poll released in 2009, the nation’s police chiefs ranked the death penalty last in their
priorities for effective crime reduction. The officers did not believe the death penalty acted as a
deterrent to murder, and they rated it as one of most inefficient uses of taxpayer dollars in fighting
crime (see chart below). Criminologists concurred that the death penalty does not reduce the
number of murders.

Most Efficient Use of Taxpayers' Money
Expanded resources for police

72

Community policing

65

Hiring more police

64

Longer prison sentences

52

Drug and alcohol programs

43

Neighborhood watch programs

35

Anti-gang efforts

27

Imposing death penalty more often

27
0

10

20

30

40

50

60

70

80

Percent Ranking Item as Highly Efficient

Maintaining a system with nearly 3,300 people on death row while continuing to conduct
expensive and unpredictable capital trials is becoming increasingly expensive and harder to justify.
Many legislators this year concluded that money spent to preserve this failing system could better be
directed to effective programs that make society safer.

Year End Report 2009 p. 4

California is spending an estimated $137 million per year on a death penalty system that its own
state commission labeled "dysfunctional" and "broken." Florida is spending approximately $51
million per year on the death penalty, amounting to a cost of $24 million for each execution it carries
out. A recent study in Maryland found that the bill for the death penalty over a twenty-year period
will be $186 million, translating into a cost of $37 million per execution. Other states like New York
and New Jersey spent well over $100 million on a system that produced no executions, and both
recently abandoned the practice.

Decline in Death Sentences
According to DPIC's projections, the annual number of death sentences continued to drop in
2009. The Bureau of Justice Statistics recently released sentencing numbers for 2008 that showed a
drop from the previous year. According to BJS, 119 people were sentenced to death in 2007 and 111
in 2008. DPIC's research indicates the number of new death sentences in 2009 will be 106.
The decline in death sentences has occurred in all four regions of the country, with close to a 50%
drop in each region when the current decade is compared to the 1990s. Although California
experienced an increase in death sentences this year, from 14 in 2008 to 29 in 2009, the sentences
were restricted to only a handful of counties, with most regions in the state producing no death
sentences in 2009. California has the largest death row in the country with approximately 690
inmates. The state is planning to build a new, expanded death row costing about $400,000,000.
Nationally, the size of death row continued to decline after increasing every year from 1976 until
1999. As of July 1, 2009, there were 3,279 inmates on death row. The federal system, however, grew
between 2000 and 2009, particularly during the prior administration, tripling from 19 to 58.

Legislation in 2009
The high costs of death penalty prosecutions coupled with the absence of tangible benefits for
the safety of society contributed to many states reconsidering the death penalty in 2009. New
Mexico abolished the death penalty after considerable debate. Governor Bill Richardson said he
would have vetoed such a bill a few years ago, but his views had shifted. "I'm struggling with my
position, but I definitely have softened my view on the death penalty,” he said shortly before
signing the bill. He found the alternative of life in prison without parole “to be a strong
punishment” and called the cost of the death penalty “a valid reason in this era of austerity and tight
budgets.”
In Colorado, a bill to end the state’s death penalty and to use the resultant financial savings to
investigate the state's more than 1,300 unsolved crimes passed the House but was defeated by one
vote in the Senate. More than 500 residents who had lost friends and family to unsolved murders
pushed for the bill, which was introduced by House Majority Leader Paul Weissman. It was
estimated that 3 in 10 killers in the state have not been caught, and catching more killers would be a
more effective deterrent than capital punishment and a better use of state funds. “Any other
program that cost [so] much and was used so little would be the first to go,” said Weissman.
Howard Morton, of Families of Homicide Victims and Missing Persons, said, "Our position is very
simple. Why talk about penalties when we haven't even caught [them]? Let's do first things first.
These murderers are living in our neighborhoods."
Montana also passed an abolition bill in one house of the legislature. Republican Senator Roy
Brown said his pro-life views would be at odds with supporting capital punishment. To the
argument made by some that opposing abortion protects innocent life while capital punishment
takes the life of a guilty person, Brown responded, "That is pretty simple, pretty concise and easy to
understand--but . . . is it always a guilty life?" He added, "Yes, mistakes do happen."

Year End Report 2009 p. 5

DEATH ROW INMATES BY
STATE (July 1, 2009)
California
690
Florida
403
Texas
342
Pennsylvania
225
Alabama
200
Ohio
176
N. Carolina
169
Arizona
129
Georgia
108
Tennessee
92
Oklahoma
86
Louisiana
84
Nevada
78
S. Carolina
63
Mississippi
60
U. S. Government
58
Missouri
52
Arkansas
43
Kentucky
36
Oregon
33
Delaware
19
Idaho
18
Indiana
17
Virginia
16
Illinois
15
Nebraska
11
Connecticut
10
Kansas
10
Utah
10
Washington
9
U.S. Military
8
Maryland
5
Colorado
3
South Dakota
3
Montana
2
New Mexico*
2
New Hampshire
1
Wyoming
1
Total death row 3,279

Maryland came close to abolishing the death penalty after a state
legislative commission strongly recommended abolition and a cost
study concluded the bill for the state's 5 executions would be $186
million. The legislature instead opted to drastically restrict the capital
punishment law, making it very difficult to impose a death sentence.
Casper Taylor, Jr., a long-time Maryland House of Delegates member
and former supporter of the death penalty, concluded it was time to
end the practice. “In 28 years in the Maryland House of Delegates,
nine as speaker, I cast thousands of votes,” wrote Taylor. “I have few
regrets. But there is one vote I wish I could take back - my 1978 vote
to reinstate the death penalty in Maryland. Today, that vote haunts
me. Since reinstatement, Maryland's 30 years of experience with the
death penalty have been a colossal failure. I now believe that life in
prison without the possibility of parole is a better alternative. The
majority of Marylanders agree.”
Kansas Republican Senator Carolyn McGinn sponsored a bill to
replace the death penalty with a sentence of life without parole. She
explained that in light of the state’s budget deficit, Kansas was
looking at ways to reduce government spending, “One policy change
being considered is whether the death penalty is worth its higher cost
to Kansas citizens, versus the alternative sentence of life in prison
without parole we now have on the books." She added, "The
estimated median cost of a case in which the death sentence was
given was about 70% more than the median cost of a non-death
penalty murder case.” Her bill passed out of the Senate Judiciary
Committee and will be considered in 2010.
Connecticut's Senate voted 19-17 to end capital punishment, after
the House of Representatives approved the bill 90-56. However, the
bill was vetoed by Gov. Jodi Rell. State Senate President Pro Tempore
Donald Williams expressed hope that the governor would sign the
bill, given the turn of events in the legislature, "History has been
made in the state legislature. We have seen a sea change in the state
House of Representatives and the state Senate, and I think it reflects
something that's going on across the country. . . I think it's very
important that we stress that what we're talking about now is a very
certain sentence of life in prison, without the chance of parole. . . I
would hope the governor would reflect upon the evidence."

Lethal injection continued to be controversial in 2009. Ohio was
forced
to halt all executions after it failed to carry out the execution of
(8 inmates in the national total
received two death sentences in
Romell Broom in September. After jabbing Broom repeatedly for two
different states.)
hours with an IV-needle in an unsuccessful attempt to find a suitable
*Abolished death penalty for
vein, the warden asked the governor to stop the process. An attempt
future cases.
to put Broom back in the execution chamber a week later was quickly
stopped by the courts, and his case remains in litigation. Ohio has since become the first state to
switch to a one-drug protocol instead of the 3-drug protocol used by other states. Shortly after
announcing this new procedure, Ohio executed Kenneth Biros on December 8.
Executions are on hold in California, Maryland, Kentucky, and in the federal system because of
challenges to the 3-drug protocol and the lack of public review before its adoption. North
Carolina's law remains unsettled. After abandoning electrocution as its method of execution,
Nebraska adopted lethal injection, but the final protocols have not yet been approved.

Year End Report 2009 p. 6

The American Law Institute withdrew the part of its Model Penal Code concerned with capital
punishment because of the "current intractable institutional and structural obstacles to ensuring a
minimally adequate system for administering capital punishment." ALI's recommendations for
making the death penalty less arbitrary had been adopted in 1962 and were cited extensively by the
U.S. Supreme Court in Gregg v. Georgia in 1976, the decision that allowed a revised death penalty to
be reinstated. Many states mirrored ALI's model in their statutes. Now that legal framework is no
longer supported by the very organization that proposed it because the guidelines have failed to
produce the fairness it sought to ensure.

Supreme Court Cases Hint at Future Directions
Time on Death Row
On March 9 the U.S. Supreme Court declined to
review a challenge to the excessive time spent on death row by many inmates, but
two Justices expressed concerns about the legal issue raised. William Thompson has
been on death row in Florida for 32 years. He claimed this excessive time amounted
to cruel and unusual punishment under the Eighth Amendment. Justice John Paul
Stevens called the treatment of the defendant during his 32 years on death row
“dehumanizing,” noting that Thompson “has endured especially severe conditions
of confinement, spending up to 23 hours per day in isolation in a 6- by 9-foot cell”
and has experienced two stays of execution “only shortly before he was scheduled to be put to
death.” He added that neither retribution nor deterrence were served in such a case and “a
punishment of death after significant delay is ‘so totally without penological justification that it
results in the gratuitous infliction of suffering.’” Justice Breyer separately dissented to the Court's
inaction. (Thompson v. McNeil; see also Johnson v. Bredesen, similarly denying review on Dec. 2).
Innocence
On August 17 the Court ordered a new evidentiary hearing for Georgia death row
inmate Troy Davis, whose case has drawn worldwide attention because of new evidence of his
possible innocence. For the first time in nearly 50 years, the Court favorably responded to a petition
sent directly to them, rather than as an appeal from lower courts. With only two Justices writing in

Year End Report 2009 p. 7

dissent, the Court ordered a lower federal court to hear Davis's evidence: "The District Court should
receive testimony and make findings of fact as to whether evidence that could not have been
obtained at the time of trial clearly establishes petitioner’s innocence."
Since Davis' initial conviction in 1991, at least seven eyewitnesses against him have recanted
their testimony, and significant new evidence points to another suspect as the actual killer. Justice
Stevens, with Justices Breyer and Ginsburg concurring, wrote, "The substantial risk of putting an
innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.
. . . [I]magine a petitioner in Davis’s situation who possesses new evidence conclusively and
definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s
reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses
to endorse such reasoning." An amicus brief had been filed on Davis's behalf by former members of
the judiciary and law enforcement officials, including former U.S. Attorney and Georgia
Congressman Bob Barr and the former director of the FBI William S. Sessions. (In re Troy Anthony
Davis).
Post-Traumatic Stress
On November 30 the Court overturned the death sentence of George
Porter, a Korean War veteran from Florida who had been convicted of murder in 1988. The Court
found Porter's trial lawyer had failed to investigate and present ample mitigating evidence,
including the fact that Porter's battle service in the war left him severely traumatized. Without
dissent the Court stated, "Petitioner George Porter is a veteran who was both wounded and
decorated for his active participation in two major engagements during the Korean War; his combat
service unfortunately left him a traumatized, changed man. His commanding officer’s moving
description of those two battles was only a fraction of the mitigating evidence that his counsel failed
to discover or present during the penalty phase of his trial in 1988." (Porter v. McCollum).

New Voices
This year again, many people from areas of traditional death penalty support questioned the
wisdom of this punishment. For some it was a moral choice as the dangers of executing the
innocent became even more apparent. For others, the costs and burdens of the death penalty now
outweigh any benefit it might produce:
Mark White, former governor of Texas and active death penalty supporter
"There is a very strong case to be made for a review of our death penalty
statutes and even look at the possibility of having life without parole so we don’t
look up one day and determine that we as the State of Texas have executed
someone who is in fact innocent."
Jason Nemes, former director of the Kentucky Administrative Office of the Courts
"We've got a system in Kentucky where there's not enough money for public advocates, for
prosecutors, for drug courts, family courts, for juvenile services, for rehabilitation programs, and
we're using the money we have in a way I think is unwise. Every dollar that goes to our ineffective
capital punishment system is a dollar taken away from other needs. . . . The benefit to public safety
is low. Are we really protecting the public?"
Richard A. Viguerie, leading conservative spokesman
"The fact is, I don't understand why more conservatives don't oppose the
death penalty. . . [It] is, after all, a system set up under laws established by
politicians (too many of whom lack principles); enforced by prosecutors (many
of whom want to become politicians—perhaps a character flaw?—and who
prefer wins over justice); and adjudicated by judges (too many of whom
administer personal preference rather than the law). . . . Conservatives have

Year End Report 2009 p. 8

every reason to believe the death penalty system is no different from any politicized, costly,
inefficient, bureaucratic, government-run operation, which we conservatives know are rife with
injustice."
Rebecca Coleman, Chief of Police, Jackson, Mississippi
[I am] "not sure that the average criminal would consider the death penalty before they commit a
crime. . . . I would look at more proactive means to serve as a deterrent to crime, as opposed to
looking at it [reactively]. . . . [I would put] programs in place to educate our kids to know the
benefits of good behavior as opposed to behavior . . . that ultimately would have them end up on
death row."
James Fry, former Dallas County Assistant District Attorney
Fry changed his mind about the death penalty after learning that he had
prosecuted and convicted an innocent man for rape. “For years, Texas has led
the nation in the number of executions. Why don't we now strive to lead the
nation in a new direction: reforming a justice system in urgent need of
reform? . . . . For years I supported capital punishment, but I have come to
believe that our criminal justice system is incapable of adequately
distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life
and death.”

Conclusions
The principal story of 2009 was the impact of the deep economic crisis facing the country. As
states were forced to cut essential services, many leaders concluded the death penalty was a
wasteful government program that should be considered for repeal. Eleven states debated bills to
abolish the death penalty. New Mexico joined New Jersey and New York as states that recently
ended the death penalty. Other states such as Maryland, Colorado, Montana, and Connecticut came
close to the same choice this year.
The huge costs of the death penalty were mirrored by its lack of benefits. Death sentences
continued to decline, having now dropped over 60% since 328 people were sentenced to death in
1994. The problem of innocence, which has been a catalyst for many of the changes surrounding the
death penalty, remained prominent in 2009. Nine new exonerations brought the national total to 139
since 1973.
A poll of police chiefs, coupled with the opinions of prominent officials, revealed that the death
penalty is under broad reconsideration by those with experience in law enforcement. The chiefs put
the death penalty last on their list of priorities for a safer society. They and many leading citizens
would rather see the millions spent on the death penalty directed to more reliable measures to fight
crime. As the economic crisis continues in the year ahead, the death penalty will face heightened
scrutiny.

Death Penalty Information Center
Washington, D.C.
(202) 289-2275 • dpic@deathpenaltyinfo.org
www.deathpenaltyinfo.org
The Death Penalty Information Center is a non-profit organization serving the media and the public with
analysis and information on capital punishment. The Center provides in-depth reports, conducts briefings for
journalists, promotes informed discussion, and serves as a resource to those working on this issue. Richard
Dieter, DPIC’s Executive Director, wrote this report with assistance from DPIC staff. Further sources for facts
and quotes in it are available upon request. The Center is funded through the generosity of individual donors
and foundations, including the Roderick MacArthur Foundation, the Open Society Institute, and the European
Commission. The views expressed in this report are those of DPIC and should not be taken to reflect the
opinion of its donors.

 

 

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