Life After Sentence of Death: What Becomes of Individuals Under Sentence of Death After Capital Punishment Legislation is Repealed or Invalidated

Akron Law Review Akron Law Review

Volume 54

Issue 2

Criminal Justice Reform Issue

Article 3

2021

Life After Sentence of Death: What Becomes of Individuals Under Life After Sentence of Death: What Becomes of Individuals Under

Sentence of Death After Capital Punishment Legislation is Sentence of Death After Capital Punishment Legislation is

Repealed or Invalidated Repealed or Invalidated

James R. Acker

Brian W. Stull

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Individuals Under Sentence of Death After Capital Punishment Legislation is Repealed or

Invalidated,"

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267

LIFE AFTER SENTENCE OF DEATH:

HAT BECOMES OF INDIVIDUALS UNDER SENTENCE OF

DEATH AFTER CAPITAL PUNISHMENT LEGISLATION IS

REPEALED OR INVALIDATED

James R. Acker*

Brian W. Stull**

I. Introduction ........................................................... 268

II. Historical Practices in the United States .................. 276

A. American Jurisdictions Which Have Repealed or

Judicially Invalidated their Death-Penalty Laws 276

B. Execution Practices in Jurisdictions Following

Legislative Repeal or Judicial Invalidation of

Death-Penalty Statutes ..................................... 278

1. Alaska ........................................................ 278

2. Arizona....................................................... 279

3. Colorado..................................................... 282

4. Connecticut................................................. 284

5. Delaware .................................................... 286

6. District of Columbia .................................... 287

7. Hawaii ........................................................ 287

8. Illinois ........................................................ 288

9. Iowa ........................................................... 290

10. Kansas ........................................................ 291

11. Maine ......................................................... 293

12. Maryland .................................................... 294

13. Massachusetts ............................................. 295

14. Michigan .................................................... 296

15. Minnesota ................................................... 297

16. Missouri ..................................................... 298

17. New Hampshire .......................................... 299

19. New Mexico ............................................... 302

* Emeritus Distinguished Teaching Professor, School of Criminal Justice, University at Albany.

** Senior Staff Attorney, American Civil Liberties Union, Capital Punishment Project.

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20. New York ................................................... 303

21. North Dakota .............................................. 305

22. Oregon ....................................................... 306

23. Rhode Island............................................... 310

24. South Dakota .............................................. 311

25. Tennessee ................................................... 312

26. Vermont ..................................................... 313

27. Virginia ...................................................... 315

28. Washington................................................. 316

29. West Virginia ............................................. 317

30. Wiscons in ................................................... 318

III. International Practice: Abolition and Post-Abolition

Executions ............................................................. 319

A. Canada ............................................................ 320

B. The United Kingdom........................................ 320

C. Europe and Other Countries Worldwide............ 322

IV. Juveniles and the Death Penalty .............................. 325

V. Conclusion ............................................................. 327

I. I

NTRODUCTION

What should become of individuals who are awaiting execution

following the repeal or judicial invalidation of capital punishment

legislation? Having lawfully been sentenced to death, should their

executions go forward? Or since death is no longer an authorized

punishment in their jurisdiction, should their capital sentences be

invalidated and replaced by life imprisonment? In states debating the

abolition of capital punishment, and in states that have taken that step, the

fate of individuals who have previously been sentenced to death looms

large, complicating repeal initiatives and raising urgent questions in the

aftermath of abolition. The ethically, politically, and legally fraught issue

of whether offenders previously sentenced to death should or can be

executed following a jurisdiction’s elimination of capital punishment has

repeatedly surfaced and inevitably must be confronted by the legislatures,

governors, and occasionally the courts, in states that have considered and

recently carried out the abolition of capital punishment.

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2020] LIFE AFTER SENTENCE OF DEATH 269

In the continuing ebb and flow of support for the death penalty

throughout the nation’s history,

the advantage, at least temporarily, has

begun to tip in favor of the opponents of capital punishment. Public

opinion polls reflect that Americans’ enthusiasm for the death penalty has

steadily eroded over the past quarter-century. When asked if they were “in

favor of the death penalty for a person convicted of murder,” 80% of

Gallup Poll respondents replied affirmatively in 1996, compared to just

56% in 2019,

and 55% in 2020.

Provided with a specific choice between

punishments for murder, the death penalty or life imprisonment without

the possibility of parole, in 2019 a decisive majority expressed a

preference for incarceration over execution: 60% to 36%. This marked the

first time in the 34 years the Gallup Poll has posed the question that most

respondents favored the imprisonment option.

Even more dramatic trends are evident in practice. Death-sentencing

rates have plummeted over time. While 300 or more offenders were

dispatched annually to the nation’s death rows during the mid-1990s, just

34 new death sentences were imposed nationwide in 2019,

and 18 in

2020.

Executions have declined from a modern death-penalty era high of

1. See James R. Acker, American Capital Punishment Over Changing Times: Policies and

Practices, in HANDBOOK ON CRIME AND DEVIANCE 395 (Marvin D. Krohn, Nicole Hendrix, Gina

Penly Hall, & Alan J. Lizotte eds., Springer 2d ed., 2019).

2. Jeffrey M. Jones, Americans Now Support Life in Prison Over the Death Penalty, GALLUP

(Nov. 25, 2019), https://news.gallup.com/poll/268514/americans-support-life-prison-death -

penalty.aspx [https://perma.cc/7QF7-LFS6].

3. Death Penalty, GALLUP, https://news.gallup.com/poll/1606/death-penalty.aspx

[https://perma.cc/FTK7-Y9ZW].

4. Id.

5. The Death Penalty in 2019: Year End Report, DEATH PENALTY INFO. CTR., 1, 8 (2019),

https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-y ear-end -reports/the-death-

penalty-in-2019-year-end-report [https://perma.cc/CH3J-LWYZ]. The new death sentences were

meted out in only 12 jurisdictions: seven in Florida; six in Ohio; four in Texas; three in California,

Georgia, and North Carolina; two in Pennsylvania and South Carolina; and one in Alabama, Arizona,

Oklahoma, and under federal authority. Id. at 11. Forty-three death sentences were imposed in 2018,

a year in which an estimated 16,214 murders and non-negligent manslaughters were committed

nationwide. Id. at 8; Uniform Crime Reports, 2018 Crime in the United States, FED. BUREAU OF

INVESTIGATION, https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/topic-

pages/murder [https://perma.cc/LHF8-JLTT]. That total includes murders and non-negligent

manslaughters in both death-penalty and nondeath-penalty states, and of course not all of the criminal

homicides committed in death-penalty jurisdictions would qualify as capital murder. See Table 5

Crime in the United States, FED. BUREAU OF INVESTIGATION (2018), https://ucr.fbi.gov/crime-in-the-

u.s/2018/crime-in-the-u.s.-2018/topic-pages/tables/table-5 [https://perma.cc/P5EE-37J6] (providing

state-by-state breakdown of murders and non-negligent manslaughters committed in 2018).

6. The Death Penalty in 2020: Year End Report, DEATH PENALTY INFO. CTR, at 1,

https://reports.deathpenaltyinfo.org/year-end/YearEndReport2020.pdf [https://perma.cc/UZ93-

X7YK].

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98 in 1999,

to 22 conducted in 2019,

and 17 in 2020.

Twenty-seven

states now authorize capital punishment, a sharp reduction from the thirty-

eight that did in 2007.

Amidst debates about abolition or retention of capital punishment,

the question of what will become of individuals currently under sentence

of death if capital punishment legislation is repealed has emerged as a

prominent sticking point.

Its resolution is as consequential as it is

7. The Supreme Court’s decision invalidating capital sentencing statutes as inconsistent with

the Eighth Amendment in Furman v. Georgia, 408 U.S. 238 (1972), and its subsequent decisions in

Gregg v. Georgia, 428 U.S. 153 (1976) and companion cases, which upheld revised guided-discretion

death penalty laws, mark the beginning of the modern capital punishment era. See generally Carol S.

Steiker & Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment, 101 THE

J. OF CRIM. L & CRIMINOLOGY 643 (2016).

The first execution under the new sentencing regimes occurred in 1977 when Gary Gilmore’s death

sentence was carried out by a Utah firing squad. See Deborah W. Denno, The Firing Squad as ‘A

Known and Available Alternative Method of Execution’ Post-Glossip, 49 U. MICH. J.L. REFORM 749,

757–58 (2016); see generally Welsh S. White, Defendants Who Elect Execution, 48 U. PITT. L. REV.

853 (1987).

8. The Death Penalty in 2019: Year End Report, supra note 5, at 1.

9. The Death Penalty in 2020: Year End Report, supra note 6, at 1.

10. Since 2007, eight states have legislatively repealed their death-penalty statutes (Colorado,

Connecticut, Illinois, Maryland, New Hampshire, New Jersey, New Mexico, and Virginia), while

courts in three states have invalidated death-penalty laws on constitutional grounds and legislatures

have not reenacted valid capital-sentencing statutes (Delaware, New York, and Washington). The

District of Columbia also has repealed the death penalty legislatively. In three of the twenty-seven

states that have retained the death penalty, gubernatorial moratoria on executions are in effect. Capital

punishment is authorized under federal law and under United States Military law. See, DEATH

PENALTY INFO. CTR., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state

[https://perma.cc/4PXZ-6Q6D]. More specific information is provided subsequently about the

jurisdictions that no longer authorize capital punishment. See State by State, infra note 32 and

accompanying text.

11. In Connecticut, for example, the fate of Joshua Komisarjefsky and Steven Hayes, the death-

sentenced murderers of members of the Petit family, loomed as a major point of contention with

respect to abolition efforts in the state. See, e.g., Christina Ng, Family Massacre Survivor William

Petit Opposes Repeal of CT Death Penalty, ABC NEWS (Apr.

4, 2012), https://abcnews.go.com/US/family-massacre-survivor-william-petit-repeal-connecticut-

death/story?id=16072574 [https://perma.cc/S9BM-WEGK]; Mary Ellen Godin, Connecticut Senate

Votes to Repeal Death Penalty in State, REUTERS (Apr. 5, 2012), https://www.reuters.com/article/us-

usa-deathpenalty-connecticut/connecticut-senate-votes-to-repeal-death-pen alty-in-state-

idUSBRE83406N20120405 [https://perma.cc/C4Z8-5UUS].

In New Hampshire, where legislative repeal of the death penalty took effect May 30, 2019, much

debate centered on the fate of the single offender under sentence of death, Michael Addison. See Evan

Allen, As N.H. Considers Repealing the Death Penalty, the Lone Man on Death Row Looms Large,

BOST. GLOBE (May 17, 2019), https://www.bostonglobe.com/metro/2019/05/17/considers-repealing-

death-penalty-lone-man-death-row-looms-large/00KkWfffEcsmba4Lmq2cRJ/story.html

[https://perma.cc/BW3C-VLHC].

Similar controversy ensued in Colorado, where three offenders were under sentence of death while

debate about repealing Colorado’s death penalty law unfolded. When Governor Jared Polis signed

repeal legislation on March 23, 2020, he commuted the offenders’ death sentences to life

imprisonment without parole. See Valerie Richardson, ‘Polis Hijacks Justice’: Democrat Loses Fight

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controversial. For example, in 2016, California voters were asked to

decide through a ballot initiative whether the state’s death penalty should

be eliminated and replaced with life imprisonment without parole.

The

fate of the state’s nearly 750 death row inmates hung in the balance,

because the measure was expressly made retroactive.

The proposition

narrowly failed,

leaving the previously imposed death sentences

undisturbed. At the other end of the death row spectrum, when New

Hampshire repealed its capital punishment law in 2019,

the measure’s

prospective application left the death sentence of the lone offender

awaiting execution unaffected.

to Keep Son’s Killers on Death Row in Colorado, WASHINGTON TIMES (Mar. 25, 2020),

https://www.washingtontimes.com/news/2020/mar/25/jared-polis-colorado-death-penalty-repeal-

blasted-/ [https://perma.cc/CG7J-7893]; Neil Vigdor, Colorado Abolishes Death Penalty and

Commutes Sentences of Death Row Inmates, N.Y. TIMES (Mar. 23, 2020),

https://www.nytimes.com/2020/03/23/us/colorado-death-penalty-repeal.html

[https://perma.cc/CEA8-DSAE ]. See Colo. Exec. Orders, infra notes 60 & 61 and accompanying

text.

See also Kevin Barry, From Wolves, Lambs (Part I): The Eighth Amendment Case for Gradual

Abolition of the Death Penalty, 66 FLA. L. REV. 313, 315–25 (2014) [hereinafter Barry I].

12. The full text of the ballot initiative was styled as the Justice That Works Act of 2016 and

presented to the voters in California as Proposition 62. Mike Farrell, Justice That Works Act of 2016,

OFF. OF THE CAL. ATT’Y GEN (Sept. 15, 2015), https://www.oag.ca.gov/system/

files/initiatives/pdfs/15-0066%20%28Death%20Penalty%29.pdf [https://perma.cc/A562-VY78].

13. On October 1, 2016, 745 individuals were under sentence of death in California. See

Deborah Fins, Death Row U.S.A. Fall 2016, NAACP LEGAL DEF. & EDUC. FUND, INC. (Oct. 1, 2016),

1, 39–45, https://www.naacpldf.org/wp-content/uploads/DRUSAFall2016.pdf [https://

perma.cc/4WXU-XQL6].

14. Farrell, supra note 12, provided in part:

SEC. 10. Retroactive Application of Act

(a) In order to best achieve the purpose of this act as stated in Section 3 and to achieve

fairness, equality and uniformity in sentencing, this act shall be applied retroactively.

(b) In any case where a defendant or inmate was sentenced to death prior to the effecti ve

date of this act, the sentence shall automatically be converted to imprisonment in the state

prison for life without the possibility of parole under the terms and conditions of this act.

The State of California shall not carry out any execution following the effective date of

this act. . . .

15. Voters rejected the proposition by a margin of 53.15% to 46.85%. See California

Proposition 62, Repeal of the Death Penalty, BALLOTPEDIA, https://ballotpedia.org/

California_Proposition_62,_Repeal_of_the_Death_Penalty_(2016) [https://perma.cc/5BY2-2FJ5 ];

California Proposition 62 — Repeal Death Penalty — Results: Rejected, N.Y. TIMES (Aug. 1, 2017),

https://www.nytimes.com/elections/2016/results/california-ballot-measure-62-repeal-death -penalty

[https://perma.cc/8QKS-N8M4].

16. N.H. REV. STAT. ANN. § 630:1, III (2019). See infra note 148 and accompanying text.

17. See Mark Berman, New Hampshire Abolishes Death Penalty After Lawmakers Override

Governor, WASH. POST

(May 30, 2019), https://www.washingtonpost.com/national/new-hampshire-will-abandon-deat h-

penalty-after-lawmakers-override-governor/2019/05/30/d0bdec8e-824c-11e9-bce7-

40b4105f7ca0_story.htm [https://perma.cc/T226-3EYD] (noting that the death sentence of Michael

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When the repeal of capital punishment legislation is under

consideration, not only is the abstract proposition of whether the death

penalty should be abandoned or retained at issue, but also whether the

death sentences lawfully imposed on past offenders for their very real and

often heinous murders—crimes that have claimed the lives of identifiable

victims and irretrievably altered the lives of victims’ survivors

—would,

should, or must be rendered nullities and replaced with life

imprisonment.

Parsing the moral,

legal,

political,

and

philosophical

dimensions of these questions, which must inevitably be

confronted in active death-penalty jurisdictions, is fraught with

complexities. For instance: Would executing offenders under sentence of

death for their previously committed crimes following the repeal of death

penalty legislation continue to be justified (or demanded) in the name of

retribution?

Could executing previously sentenced murderers possibly

Addison, the only person under sentence of death in New Hampshire, remained undisturbed, although

Addison did not face imminent execution). See infra notes 150–153 and accompanying text.

18. See generally WOUNDS THAT DO NOT BIND: VICTIM-BASED PERSPECTIVES ON THE

DEATH PENALTY (James R. Acker & David Karp, eds., 2006).

19. “‘When we talk about the death penalty in the abstract, there’s a growing movement toward

abolition because of concerns about fairness, accuracy, discrimination, and cruelty,’ Northeastern

University law professor Daniel Medwed said. ‘But on a granular level, in an individual case, it gets

complicated.’” Allen, supra note 11.

20. See Barry I, supra note 11, at 332–36.

21. Id. at 336–85; see generally Kevin Barry, From Wolves, Lambs (Part II): The Fourteenth

Amendment Case for Gradual Abolition of the Death Penalty, 35 CARDOZO L. REV. 1829 (2014)

[hereinafter Barry II].

22. See Kevin Barry, Going Retro: Abolition for All, 46 LOY. U. CHI. L.J. 669, 674 (2015)

(“The primary reason why states are repealing [death-penalty laws] prospectively only is, not

surprisingly, political.”).

23. Immanuel Kant’s views on capital punishment include the oft-cited passage: “ Even if a

civil society were to dissolve itself by common agreement of all its members (for example, if the

people inhabiting an island decide to separate and disperse themselves around the world), the last

murderer remaining in prison must first be executed, so that everyone will duly receive what his

actions are worth and so that the bloodguilt thereof will not be fixed on the people because they failed

to insist on carrying out the punishment; for if they fail to do so, they may be regarded as accomplices

in this public violation of legal justice.” IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF

JUSTICE 102 (John Ladd trans. Hackett Publishing Company, Inc. 2d ed. 1999). See Don E. Scheid,

Kant’s Retributivism, 93 ETHICS 262, 279 (1983). For other philosophical perspectives on the death

penalty in general, see Tom Sorell, Aggravated Murder and Capital Punishment, 10 J. APPLIED PHIL.

201 (1993); see generally David Heyd, Hobbes on Capital Punishment, 8 HIST. PHIL. Q. 119 (1991).

24. A majority of the Supreme Court in State v. Santiago, 122 A.3d 1 (Conn. 2015) answered

this question in the negative, drawing a contrast between public retribution and private vengeance:

Finally, it bears emphasizing that, to the extent that the statutory history of P.A. 12-5 [the

repealed legislation] reveals anything with respect to the legislature’s purpose in

prospectively abolishing the death penalty while retaining it for the handful of individuals

now on death row, it is that the primary rationale for this dichotomy was neither deterrence

nor retribution but, rather, vengeance—the Hyde to retribution’s Jekyll. Vengeance, unlike

retribution, is personal in nature; it is motivated by emotion, and may even relish in the

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have general deterrence value in a post-repeal era, when the death penalty

no longer is a threatened punishment?

Would executing offenders under

suffering of the offender. Accordingly, vengeance traditionally has not been considered a

constitutionally permissible justification for criminal sanctions. See Ford v. Wainwright,

477 U.S. 399, 410 (1986) (finding no retributive value in “the barbarity of exacting

mindless vengeance”). On the contrary, ”[i]t is of vital importance to the defendant and to

the community that any decision to impose the death sentence be, and appear to be, based

on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 358 (1977)

(plurality opinion).

There are, no doubt, cases in which the line between a principled commitment to

retributive justice and an impermissible acquiescence to private vengeance is a gray one.

There is every indication, however, that P.A. 12-5 was crafted primarily to maintain the

possibility of executing two particular offenders—the much reviled perpetrators of the

widely publicized 2007 home invasion and murder of three members of Cheshire’s Petit

family.

Id. at 71–72 (citation and footnote omitted). See also id. at 173 (Eveleigh, J., concurring) (“ Vengeance

has no place in the orderly administration of justice by a civilized society. It certainly can never serve

as the justification for the death penalty in today’s world. My review of the text and legislative history

of the public act under consideration, No. 12-5 of the 2012 Public Acts (P.A. 12-5), leads me to the

inescapable conclusion that vengeance was the motivating factor underlying the enactment of the

provisions allowing the eleven men on death row to be executed while eliminating the death penalty

for crimes committed in the future.”). But see Barry I, supra note 21, at 371–73; Robert Blecker,

Death is Only Justice, N.Y. POST (Mar. 30, 2011), https://nypost.com/2011/03/30/death-is-only-

justice [https://perma.cc/3UNE-G53M].

25. Considering this question in State v. Santiago, 122 A.3d 1, 57 (Conn. 2015), the

Connecticut Supreme Court had no difficulty concluding that the death penalty could have no possible

deterrent value following repeal of the capital punishment statute:

Turning first to deterrence, we observe that it is clear that, with the passage of P.A. 12-5

[the repealed legislation], any deterrent value the death penalty may have had no longer

exists. As Justice Harper explained in his dissent in Santiago I: “The ultimate test of this

deterrence claim is whether the state, by executing some of its citizens, better achieves the

unquestionably legitimate goal of discouraging others from committing similar crimes. As

a general matter, the empirical evidence regarding deterrence is inconclusive. Following

the abolition of the death penalty for all future offenses committed in Connecticut,

however, it is possible to determine the exact number of potential crimes that will be

deterred by executing the defendant in this case. That number is zero.” (Emphasis omitted;

footnote omitted.) State v. Santiago, [49 A.3d 566, 700 (Conn. 2012)] (Harper, J.,

concurring in part and dissenting in part).

While conceding that the argument that executing offenders following legislative repeal of the death

penalty would operate as a deterrent for future prospective murderers “is a somewhat harder case”

than finding continuing retributive value, Professor Barry nevertheless has offered an argument:

How, one might ask, can the death penalty deter future offenders if no future offender will

ever be put to death? The answer is that by imposing the death penalty against those

currently on death row, prospective-only repeal “communicate[s] to all criminals that they

will be held to account for their crimes in the manner in which the law provides when they

commit them.” Through prospective-only repeal, the legislature is making absolutely clear

to future offenders that it means what it says-that they should be under no illusion that a

change in law tomorrow will spare them the consequences of their actions today.

Offenders sentenced to death will not benefit from the subsequent repeal of the death

penalty, any more than future offenders sentenced to life in prison without the possibility

of parole (LWOP) will benefit from some yet-to-be-enacted repeal of LWOP down the

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sentence of death after repeal legislation is enacted heighten the

arbitrariness of capital sentencing practices to impermissible levels, in that

otherwise indistinguishable offenders who commit otherwise

indistinguishable crimes are spared the risk of execution simply because

the death penalty is no longer in effect?

Questions of this nature are important and demand attention;

however, the thrust of this Article lies elsewhere. The focus is not on

normative considerations, including the justice or fairness of executing

offenders who are under sentence of death at the time death-penalty

legislation is repealed or invalidated. Nor do we dwell on utilitarian

considerations such as whether measurable costs or benefits of carrying

out executions following repeal or invalidation of the death penalty will

likely ensue. The current objective is more modest. Rather than explore

what should happen, our goal is to document what has happened

historically to offenders who are on death row, awaiting execution, at the

time capital punishment laws are repealed or judicially invalidated. In

addition to embodying the political, ethical, and prudential judgments

made over time, past practices regarding whether executions have been

carried out in jurisdictions after sentences of death are no longer

road. “ Future offenders beware,” the legislature is saying. “You get what we say you get,

not what we say as modified by what we haven’t said yet (in future legislation).”

Barry I, supra note 11, at 373–74 (footnotes and citation omitted).

26. See State v. Santiago, 122 A.3d 1, 128 (Conn. 2015) (Eveleigh, J., concurring):

[T]he arbitrariness in the present case stems from the effective date provision of the act,

which, in effect, renders the date on which a defendant commits his crime an eligibility

factor for the death penalty. I fail to see how this scheme, which permits the imposition of

the death penalty for a capital felony committed at any time prior to 11:59 p.m. on April

24, 2012, but rejects categorically the imposition of the death penalty for the same conduct

or even substantially more heinous acts carried out two minutes later, is in any way distinct

from the constitutionally infirm schemes rejected by the United States Supreme Court in

Furman [v. Georgia, 408 U.S. 238 (1972)]. The circumstances that I describe strike me as

exactly the sort of wanton and freakish imposition of the death penalty that runs afoul of

the eighth amendment of the United States constitution.

See also id. at 111–12. But see Barry I, supra note 11, at 381–82 (footnote omitted):

Because the legislature’s decision to repeal a law has nothing to do with a jury’s decision

to sentence a person to death, and has everything to do with the separation of powers

between the judicial and legislative branches, Furman is inapplicable to prospective-only

repeal. As the Court in Gregg [v. Georgia, 428 U.S. 153, 195 (1976) (plurality opinion)]

made clear, if “the sentencing authority is apprised of the information relevant to the

imposition of [a] sentence and provided with standards to guide its use of the information,”

the risk of an arbitrary and capricious sentence in violation of the Eighth Amendment is

removed. The sentence does not suddenly become arbitrary and capricious because the

legislature decides to repeal the death penalty prospective-only at some later date. In short,

Furman concerns whether a jury’s sentence of death was arbitrary and capricious, not

whether a state’s eventually carrying out that sentence might be.

See generally id. at 378–83.

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authorized are directly relevant to the Supreme Court’s determination of

whether, as applied, the death penalty violates the Eighth Amendment’s

prohibition against cruel and unusual punishments.

Perhaps surprisingly, death-penalty repeals, and occasionally cycles

of repeal and reinstatement, have occurred with some frequency over

time, and in many jurisdictions. Ascertaining what has happened

historically to offenders awaiting execution at the time capital punishment

laws have been repealed or invalidated is of immediate interest to one

aspect of the Supreme Court’s death penalty jurisprudence. While giving

content to the Eighth Amendment’s prohibition against cruel and unusual

punishments, the justices have consistently “been guided by ‘objective

indicia,’ . . . [including] state practice with respect to executions,”

help determine whether capital punishment policies are consistent with

“the evolving standards of decency that mark the progress of a maturing

society.”

The initial section of this Article examines jurisdictions within the

United States that have transitioned from authorizing capital punishment

to abandoning it, either temporarily or permanently, to determine whether

offenders who were under sentence of death at the time of legislative

repeal or judicial invalidation have been executed.

The next section

27. Kennedy v. Louisiana, 554 U.S. 407, 421 (2008) (quoting Roper v. Simmons, 543 U.S.

551, 563 (2005)).

28. Chief Justice Warren’s plurality opinion in Trop v. Dulles, 356 U.S. 86, 101 (1958),

observed that “[t]he [Eighth] Amendment must draw its meaning from the evolving standards of

decency that mark the progress of a maturing society.” The plurality opinion in Gregg v. Georgia,

428 U.S. 153, 173 (1976), endorsed this principle while rejecting the argument that the Eighth

Amendment prohibits capital punishment for aggravated murder. In doing so, the justices relied in

part on juries’ sentencing practices, noting that “the actions of juries in many States since Furman [v.

Georgia, 408 U.S. 238 (1972)] are fully compatible with the legislative judgments, reflected in the

new statutes, as to the continued utility and necessity of capital punishment in appropriate cases. At

the close of 1974 at least 254 persons had been sentenced to death since Furman, and by the end of

March 1976, more than 460 persons were subject to death sentences.” Id. at 182 (plurality opinion).

In later cases, the justices have looked to execution practices while resolving Eighth Amendment

challenges in contexts including whether capital punishment is permissible for the crime of raping an

adult (Coker v. Georgia, 433 U.S. 584, 596–97 (1977) (plurality opinion)) or a child (Kennedy v.

Louisiana, 554 U.S. 407, 433–34 (2008)); for juvenile offenders (Thompson v. Oklahoma, 487 U.S.

815, 832–33 (1988) (plurality opinion); Id. at 852–53 (O’Connor, J., concurring in the judgment);

Stanford v. Kentucky, 492 U.S. 361, 373–74 (1989); Roper v. Simmons, 543 U.S. 551, 564–65

(2005)); for intellectually disabled offenders (Atkins v. Virginia, 534 U.S. 304, 316 (2002)); and for

offenders convicted of felony murder who did not personally kill their victim (Enmund v. Florida,

458 U.S. 782, 794–95 (1982)).

29. The information provided in this section relies in part on the Brief of Amici Curiae, Legal

Historians & Scholars, Connecticut v. Santiago, 305 Conn. (filed Dec. 2, 2012). Brian W. Stull

authored this brief, with the assistance of Alex V. Hernandez. The Legal Historians and Scholars

supporting the brief included Professors James R. Acker, Stuart Banner, William J. Bowers, Dr. Scott

Christianson, David Garland, James S. Liebman, Michael Meltsner, Richard Moran, Michael L.

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offers analogous information about international practices, with specific

attention given to the Canadian and British experiences. The last section

explores whether any 16- or 17-year-old offenders were executed in states

that raised the minimum age of death-penalty eligibility to 18 after their

death sentences were imposed, but before the Supreme Court ruled in

2005 that the Eighth Amendment prohibits the capital punishment of

offenders younger than 18.

In short, these investigations have uncovered no cases in which

executions have gone forward under those circumstances.

II. H

IST ORICAL PRACTICES IN THE UNITED STATES

Several jurisdictions within the United States have abandoned capital

punishment, either permanently or temporarily, following a period when

death-penalty laws were in effect and utilized. We first identify those

jurisdictions and the years in which they did and did not authorize capital

punishment. We then summarize the execution practices in those

jurisdictions during the times that their death-penalty laws were no longer

in effect.

A. American Jurisdictions Which Have Repealed or Judicially

Invalidated their Death-Penalty Laws

The following American jurisdictions do not currently authorize

capital punishment because they have repealed or courts have invalidated

their death-penalty laws:

Alaska (repeal March 30, 1957)

Colorado (repeal July 1, 2020)

Connecticut (repeal April 25, 2012)

Delaware (judicial invalidation Aug. 2, 2016)

District of Columbia (repeal Feb. 26, 1981)

Hawaii (repeal June 5, 1957)

Radelet, Austin Sarat, and Franklin E. Zimring. In State v. Santiago, 122 A.3d 1 (Conn. 2015), the

Connecticut Supreme Court invalidated Connecticut’s death penalty on state constitutional grounds

and also invalidated the sentences of all offenders then on the state’s death row. See also M. Watt

Espy & John Ortiz Smykla, Executions in the United States, 1608-2002: The Espy File, INTER-U.

CONSORTIUM FOR POL. & SOC. RES. (Jul. 20, 2016), https://www.icpsr.umich.edu/

icpsrweb/NACJD/studies/8451 [https://perma.cc/Q8XA-Q97W] [hereinafter ICPSR: The Espy File];

M. Watt Espy, M. Watt Espy Papers, 1730-2008, U. AT ALB., NAT’L DEATH PENALTY ARCHIVE,

https://archives.albany.edu/description/catalog/apap301 [https://perma.cc/DLS2-HRVQ]; DEATH

PENALTY INFO. CTR. (Dec. 16, 2020), https://deathpenaltyinfo.org/ [https://perma.cc/JRG3-P4CK].

30. Roper v. Simmons, 543 U.S. 551 (2005).

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Illinois (repeal July 1, 2011)

Iowa (repeal July 4, 1965)

Maine (repeal March 17, 1887)

Maryland (repeal Oct. 1, 2013)

Massachusetts (judicial invalidation Oct. 18, 1984)

Michigan (repeal March 1, 1847)

Minnesota (repeal April 22, 1911)

New Hampshire (repeal May 30, 2019)

New Jersey (repeal Dec. 17, 2007)

New Mexico (repeal July 1, 2009)

New York (judicial invalidation Oct. 23, 2007)

North Dakota (repeal March 19, 1915)

Rhode Island (repeal Feb. 11, 1852)

Vermont (repeal Apr. 15, 1965)

Virginia (repeal July 1, 2021)

Washington (judicial invalidation Oct. 11, 2018)

West Virginia (repeal June 18, 1965)

Wisconsin (repeal July 12, 1853)

The following states repealed capital punishment laws in the pre-

Furman

era and later reinstated them:

Arizona (repeal Dec. 8, 1916, reinstated Dec. 5, 1918)

Colorado (repeal June 29, 1897, reinstated July 31, 1901)

Delaware (repeal Apr. 2, 1958, reinstated Dec. 18, 1961)

Iowa (repeal May 1, 1872, reinstated May 26, 1878)

Kansas (repeal Jan. 30, 1907, reinstated March 11, 1935)

Maine (repeal Feb. 21, 1876, reinstated March 13, 1883)

Missouri (repeal Apr. 13, 1917, reinstated July 8, 1919)

New Mexico (partial repeal March 31, 1969, reinstated March 30,

1979)

New York (partial repeal June 1, 1965, reinstated March 7, 1995)

31. Following its repeal of the death penalty in 1852, the Rhode Island legislature reinstated

capital punishment for murder committed by a life-term prisoner in 1872. That provision was never

used and was rendered unconstitutional by virtue of the Supreme Court’s ruling in Furman v. Georgia,

408 U.S. 238 (1972). Legislation was enacted in 1973 which mandated capital punishment for murder

committed by a prisoner. This provision was ruled unconstitutional in 1979. See infra note 211 and

accompanying text.

32. Considerable information about state death-penalty laws and practice is available at State

by State, DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/state-and-federal-info/state-by-

state [https://perma.cc/98UX-2FUZ].

33. Furman v. Georgia, 408 U.S. 238 (1972).

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Oregon (repeal Dec. 3, 1914, reinstated May 21, 1920; repeal Nov.

30, 1964, reinstated Dec. 7, 1978)

South Dakota (repeal Feb. 15, 1915, reinstated Jan. 27, 1939)

Tennessee (partial repeal March 27, 1915, (for murder, but not for

rape or for murder committed by life term prisoner), reinstated for murder

Jan. 27, 1919)

Washington (repeal March 22, 1913, reinstated March 14, 1919)

B. Execution Practices in Jurisdictions Following Legislative Repeal

or Judicial Invalidation of Death-Penalty Statutes

The execution practices within jurisdictions that have legislatively

repealed or judicially invalidated their capital punishment laws are

detailed below.

1. Alaska

Legislative repeal March 30, 1957

No executions following 1957 repeal

Twelve executions were carried out in Alaska during its territorial

days,

the first in 1869 and the last on April 4, 1950.

The Alaska

Territorial Legislature abolished capital punishment in 1957, enacting a

measure which stated: “The death penalty is and shall hereafter be

abolished as punishment in Alaska for the commission of any crime.”

34. State by State, supra note 32.

35. Alaska became a state in 1959 and entered the union as the 49th state on January 3, 1959.

Alaska’s History, ALASKA PUB. LANDS INFO. CENTS., https://www.alaskacenters.gov/explore/

culture/history [https://perma.cc/H9NC-WJUL].

36. ICPSR: The Espy File, supra note 29, at Alaska, V16(2), V14. The last person executed in

Alaska was Eugene LaMoore, who was hanged April 14, 1950. Id. See also JOHN F. GALLIHER,

LARRY W. KOCH, DAVID PATRICK KEYS & TERESA J. GUESS, AMERICA WITHOUT THE DEATH

PENALTY: STATES LEADING THE WAY 123 (Northeastern U. Press 2002); Executions in the U.S. 1608-

2002: The ESPY File Executions by State, DEATH PENALTY INFORMATION CENTER 1,

https://files.deathpenaltyinfo.org/legacy/documents/ESPYstate.pdf [https://perma.cc/UJM5-7MPU]

[hereinafter “DPIC, Executions in the U.S.”]; Melissa S. Green, The Death Penalty in Alaska, 25

ALASKA JUST. F. 11 (2009).

37. Green, supra note 36; Averil Lerman, Capital Punishment in Territorial Alaska: The Last

Three Executions, 9 FRAME OF REFERENCE 6, 16–19 (1998); GALLIHER ET AL., supra note 36, at 124

& n. 34 (citing Territory of Alaska: Session Laws, Resolutions, and Memorials, Laws of Alaska (30

March 1957), ch. 132, at 263).

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Capital punishment has not been authorized since,

and no executions

were conducted in the state after 1950, including the post-repeal period.

2. Arizona

Legislative repeal Dec. 8, 1916

No executions following repeal through reinstatement

Legislative reinstatement Dec. 5, 1918

First post-repeal execution April 16, 1920

The last of three executions conducted in Arizona in 1916 took place

when Miguel Peralta was hanged on July 7.

Almost exactly five months

later, on December 8, 1916, a voter initiative became effective which

abolished the state’s death penalty.

The state reenacted death-penalty

legislation through a referendum just two years later, with reinstatement

38. State by State, supra note 32 (identifying Alaska as a state without the death penalty);

Thompson v. Oklahoma, 487 U.S. 815, 826 n. 25 (1988) (plurality opinion) (identifying Alaska as a

state that does not authorize capital punishment, and citing Territory of Alaska, Session Laws, 1957,

ch. 132, 23d Sess., an Act abolishing the death penalty for the commission of any crime; see ALASKA

STAT. ANN. § 12.55.015 (West 1987) (“Authorized sentences” do not include the death penalty; §

12.55.125, Sentences of imprisonment for felonies” do not include the death penalty). ALASKA STAT.

ANN. § 12.55.015 (1987) (“Authorized sentences” do not include the death penalty; § 12.55.125,

“Sentences of imprisonment for felonies” do not include the death penalty).

39. See Execution Database (Alaska), DEATH PENALTY INFO. CENT.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Alaska

[https://perma.cc/5AJ6-36BS] (no executions in Alaska in database chronicling executions in the

United States 1977 to present); Green, supra note 36.

40. DPIC, Executions in the U.S., supra note 36, at 39; Executions Prior to 1992 & Execution

Methods, ARIZ. DEPT. OF CORRECTIONS, https://corrections.az.gov/public-resources/deat h-

row/executions-prior-1992-execution-methods [https://perma.cc/XQ6S-J446]. See also ICPSR: The

Espy File, supra note 29, at Arizona, V16(4), V14.

41. Arizona Death Penalty History, ARIZ. DEPT. OF CORR., https://corrections.az.gov/public-

resources/death-row/arizona-death-penalty-history [https://perma.cc/65WZ-X64K]; John F. Galliher,

Gregory Ray, & Brent Cook, Abolition and Reinstatement of Capital Punishment During the

Progressive Era and Early 20

Century, 83 J. CRIM. L. & CRIMINOLOGY 538, 552 (1992). See Ex

parte Faltin, 254 P. 477, 478 (Ariz. 1927) (quoting the initiative measure:

Be it enacted by the people of the state of Arizona:

Section 1. That paragraph 173, chapter I, title VIII, Penal Code, of the Revised Statutes of

Arizona, 1913 [authorizing punishment of death for murder in the first degree], be and the

same is hereby amended so as to read as follows:

173. Every person guilty of murder in the first degree shall suffer imprisonment for life,

and every person guilty of murder in the second degree shall be confined in the State Prison

for not less than ten years. No person convicted of the crime of murder shall be

recommended for pardon, commutation or parole by the board of pardons and paroles

except upon newly discovered evidence establishing to the satisfaction of all the members

of said board his or her innocence of the crime for which conviction was secured.

Sec. 2. All acts and parts of acts in conflict with this act are hereby repealed.).

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taking effect December 5, 1918.

The first post-repeal execution occurred

April 16, 1920, when Simplicio Torrez was hanged for a murder

committed May 1, 1919.

In January 1917, the Arizona Pardon Board

commuted the sentences of prisoners who were on death row when the

repeal legislation became effective.

One inmate, William Faltin, had

been sentenced to death in 1913 for a murder committed in 1912. He was

found “insane,” or incompetent for execution, in December 1915 and

retained that status when the repeal legislation went into effect in

December 1916. He was certified as “sane” in August 1917, and remained

in prison at the time he sought release in 1927 through a writ of habeas

corpus. In denying his release, the Arizona Supreme Court further

declined to invalidate his death sentence or rule that a sentence of life

imprisonment should be substituted. The court reasoned that the repeal

legislation had not invalidated the death sentence originally imposed in

1913, and that because the death penalty had been reinstated in 1918, there

42. The reinstatement measure restored the law as it existed prior to repeal, and provided:

“Every person guilty of murder in the first degree shall suffer death or imprisonment in the territorial

prison for life, at the discretion of the jury trying the same, or, upon the plea of guilty, the court shall

determine the same; and every person guilty of murder in the second degree is punishable by

imprisonment in the territorial prison not less than ten years.” Ex parte Faltin, 254 P. 477, 477 (Ariz.

1927) (quoting the initiative measure and prior legislation); Arizona Death Penalty History, supra

note 41.

The short period of abolition was decisively repudiated by the voters, a result apparently fueled in

part by highly publicized killings committed by individuals who purportedly boasted that without a

death penalty they could commit murder without being unduly concerned about the consequences.

Galliher, et al., supra note 41, at 562–64.

43. Executions Prior to 1992 & Execution Methods, ARIZ. DEPT. OF CORR.,

https://corrections.az.gov/public-resources/death-row/executions-prior-1992-execution-methods

[https://perma.cc/XB27-63TN]; Documentation for the Execution of Simplicio Torrez, 1920-04-16,

U. ALBANY NAT’L DEATH PENALTY ARCHIVE, https://archives.albany.edu/concern/

daos/gb19fd98m?locale=en#?c=0&m=0&s=0&cv=0&xywh=-2081%2C1203%2C7573%2C4868

[https://perma.cc/MNG9-X9X5] [hereinafter DEATH PENALTY ARCHIVE].

44. Shortly after repeal of Arizona’s death penalty law, in 1917, the Arizona Pardon Board

commuted the death sentences of prisoners remaining on death row. Arizona’s Death Penalty: A

Chronological History, ARIZONA SHERIFF, Mar. 1977 (reproducing prior news articles, including

Hangings Abolished, PHOENIX MESSENGER, Jan. 13, 1917 (noting commutations)).

The Arizona Department of Corrections, Rehabilitation and Reentry, maintains an Historical Prison

https://corrections.az.gov/historical-prison-register-d#Bac-El-Cle [https://perma.cc/RY7B-FM35]

((A-D) and thereafter for surnames (E-I, J-L, M-S, and T-Z)). The records indicate when prisoners

were received on death row and when and how they left death row. Inspection of those records reveals

no inmates who were received on death row before the repeal legislation went into effect on Dec. 6,

1916 were executed thereafter; all were subsequently released, died in prison, or no release date is

indicated.

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existed no barrier to carrying it out.

The following year, in 1928, Faltin’s

sentence was commuted to life imprisonment.

In 2019, Arizona’s capital sentencing law was amended by removing

three aggravating factors from prior law that designated what types of

murder were death-penalty eligible, and narrowing a fourth aggravating

factor.

The full extent of the consequences of this narrowing are

currently unknown, but, in a ruling likely to be reviewed by the Arizona

Supreme Court, a trial court has recently vacated a death sentence

supported only by an aggravating circumstance that no longer exists.

45. Ex parte Faltin, 254 P. 477, 477 (Ariz. 1927).

46. Faltin’s death sentence was commuted to life and he died of natural causes in prison. Life

Termers Skip in the Night, PRESCOTT EVENING COURIER, Dec. 28, 1939, at 1, 8 (“ In 1928, [Faltin’s

death] sentence was commuted to life imprisonment by the parole board.”). See also Historical Prison

https://corrections.az.gov/historical-prison-register-e-i [https://perma.cc/BJD4-D5RB] (indicating

that William Faltin was received in prison Apr. 15, 1913, and remained confined until he died Jan.

15, 1953).

47. The aggravating factors making murder death penalty-eligible under current Arizona law

are itemized in ARIZ. REV. STAT. § 13-751 (F) (LexisNexis 2019). The three aggravating facto rs

eliminated from prior law, ARIZ. REV. STAT. § 13-751 (F) (LexisNexis 2012) are (F)(3) “In the

commission of the offense the defendant knowingly created a grave risk of death to another person or

persons in addition to the person murdered during the commission of the offense,” (F)(13) “The

offense was committed in a cold, calculated manner without pretense of moral or legal justification,”

and (F)(14) “The defendant used a remote stun gun or an authorized remote stun gun in the

commission of the offense.” See Dillon Rosenblatt, GOP Bill Scales Back Death Penalty Eligibility,

ARIZ. CAPITOL TIMES (Feb. 22, 2019), https://azcapitoltimes.com/news/2019/02/22/gop-bill-scales-

back-death-penalty-eligibility/ [https://perma.cc/DG3G-NSXP] (“Dale Baich, who heads the capital

habeas unit of the Federal Public Defender’s Office in Arizona, said the latter two aggravators are

used very infrequently, which is why the bill would eliminate them; the first is used more often.”). In

addition to eliminating these three aggravating factors, the legislation substantially narrowed the

“pecuniary gain” aggravating circumstance under (F)(5), making it now applicable only in “ murder-

for-hire” circumstances. Compare ARIZ. REV. STAT. § 13-751 (F) (5) (LexisNexis 2012) (“ T he

defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of

anything of pecuniary value.”) with ARIZ. REV. STAT. § 13-751 (F) (3) (LexisNexis 2019) (“T he

defendant procured the commission of the offense by payment or promise of payment, of anything of

pecuniary value, or the defendant committed the offense as a result of payment, or a promise of

payment, of anything of pecuniary value.”).

48. In State v. Greene, Order, No. CR-21-0082-PC (Pima Co. Sup. Ct. Feb. 2, 2021), a superior

court judge vacated the death sentence of Beau John Greene. This was because Greene’s death

sentence had only been supported by the former pecuniary-value aggravator set out in ARIZ. REV.

STAT. § 13-751 (F) (5) (LexisNexis 2012), but was not factually supported under the narrowed version

of the aggravator that contemplates murder-for-hire scenarios. The State of Arizona has petitioned the

Arizona Supreme Court to review this lower-court decision. See State’s Pet. For Review, State v.

Greene, 2021 WL 2368153 (March 4, 2021). Greene had originally been sentenced to death based on

an additional aggravating factor – that his killing was especially heinous, cruel, or depraved. State v.

Greene, 967 P.2d 106, 114–116 (Ariz. 1998). The Arizona Supreme Court, however, found the

evidence of that aggravator insufficient. Id. One reason the consequences and reach of the 2019

narrowing remains uncertain is that in many cases, unlike Greene’s, additional still-valid aggravating

circumstances will remain.

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3. Colorado

Legislative repeal June 29, 1897

No executions following repeal through legislative reinstatement

Legislative reinstatement July 31, 1901

First post-repeal execution March 6, 1905

Legislative repeal July 1, 2020

The last three executions conducted in Colorado prior to the State’s

1897 repeal of its death-penalty law took place on the same day, June 26,

1896.

Governor Alva Adams signed the repeal bill March 29, 1897 and

the legislation became effective 90 days later, on June 29. The statute

abolishing capital punishment and providing for life imprisonment for

murder was explicitly prospective in its terms. It provided that, “Any

murder which shall have been committed before this Act takes effect shall

be inquired of, prosecuted, and punished in accordance with the law in

force at the time such murder was committed.”

Governor Adams,

however, commuted the death sentences of five men who, though

sentenced to death very near the time of the repeal (either before or after),

were not protected by the repeal because their crimes took place before it

went into effect. Thus, in April 1897, after the repeal bill was signed but

before the legislation took effect, he commuted the death sentences of two

men convicted of murder and sentenced to death in 1896.

Another

offender committed murder in April 1897 and was convicted and

sentenced to death in June,

while two others killed their victim in 1896

and were convicted and sentenced to death in September 1897.

Governor Adams’ commutations ensured that neither those who

committed a capital crime before the repeal became effective nor those

sentenced to death under prior law would be executed after the repeal

legislation took effect.

Colorado reinstated capital punishment on July

49. DPIC, Executions in the U.S., supra note 36 (executions of William Holt, Albert Noble,

and Deonecio Romero); MICHAEL L. RADELET, THE HISTORY OF THE DEATH PENALTY IN COLORADO

202–03 (U. Press of Colorado 2017).

50. RADELET, supra note 49, at 42 (quoting 1897 Colo. Sess. Laws ch. 35).

51. Id. at 252 (discussing cases of Walter Davis and Allen Hense (or Hence) Downen).

52. Id. at 253 (discussing case of John (Jack) Cox).

53. Id. at 252–53 (discussing cases of Jose M. (J.M.) Lucero and Juan Duran).

54. Id. at 42–43 (“Three men were sentenced to death . . . in 1897 for murder that predated

June 29, 1897—after the death penalty abolition bill was signed but before it took effect. . . . Governor

Adams subsequently commuted all three death sentences.”).

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31, 1901.

The first execution carried out under the reinstituted death-

penalty law did not occur until March 6, 1905, when Azel Galbraith was

hanged for a murder committed in 1904.

Colorado’s contemporary, post-Furman

death-penalty law was

repealed effective July 1, 2020 by virtue of a bill passed by the legislature

and signed by Governor Jared Polis on March 23, 2020.

The repeal was

explicitly prospective:

For offens es charged on or after July 1, 2020, the death penalty is not a

sentencing option for a defendant convicted of a Class 1 Felony in the

State of Colorado. Nothing in this section commutes or alters the sen-

tence of a defendant convicted of an offense charged prior to July 1,

2020. This section does not apply to a person currently serving a sen-

tence of death. Any death sentence in effect July 1, 2020 is valid.

Three individuals were under sentence of death when the repeal bill was

signed.

On March 23, 2020, Governor Polis commuted the death

sentences of all three men to life imprisonment without the possibility of

parole. The governor explained that his commutation decision in each

case was

. . . consistent with the abolition of the death penalty in the State of Col-

orado, and consistent with the recognition that the death penalty cannot

be, and never has been, administered equitably in the State of Colo-

rado. . . . My decision today is not a commentary on the moral or ethical

implications of the death penalty in our society; rather it is a reflection

of current law in Colorado, where the death penalty has been abol-

ished.

55. Michael L. Radelet, Capital Punishment in Colorado: 1859-1972, 74 U. COLO. L. REV.

885, 912 n.121 (2003) (citing 1901 Colo. Sess. Laws 153–54). See also Galliher, et al., supra note

41, at 560.

56. RADELET, supra note 49, at 203; DPIC, Executions in the U.S., supra note 36; DEATH

PENALTY ARCHIVE, Documentation for the Execution of Azel Galbraith, 1905-03-06,

https://archives.albany.edu/concern/daos/dj52wd72h#?c=0&m=0&s=0&cv=0&xywh=-425%2C-

119%2C4930%2C3169 [https://perma.cc/Y4XH-ZCKU].

57. Furman v. Georgia, 408 U.S. 238 (1972).

58. S. B.20-100 (Colo. 2020); see COLO. REV. STAT. § 16-11-901 (2020).

59. S.B. 20-100 (Colo. 2020), supra note 58, § 1.

60. See Neil Vigdor, Colorado Abolishes Death Penalty and Commutes Sentences of Death

Row Inmates, N.Y. TIMES (Mar. 23, 2020), https://www.nytimes.com/2020/03/23/us/colorado-death-

penalty-repeal.html [https://perma.cc/3FFY-9ZDQ] (The 3 offenders whose death sentences were

commuted were Robert Ray, Sir Mario Owens, and Nathan Dunlap).

61. Colo. Exec. Order No. C 2020 001 (Mar. 23, 2020),

https://drive.google.com/drive/folders/1JxREHjhuS2VvZ3z6XK__btHIn5rHSQil

[https://perma.cc/8QKJ-3QPJ] for Commutation of Sentence (offender 89148) [Nathan Dunlap];

Colo. Exec. Order, No. C 2020 002 (Mar. 23, 2020), https://drive.google.com/drive/folders/

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In related decisions, the prosecutors in two capital trials that were

underway when the repeal bill was signed withdrew their pursuit of death

sentences, citing the governor’s decision to commute the capital sentences

of the three offenders on death row.

4. Connecticut

Legislative repeal April 25, 2012

Judicial invalidation of death penalty on state constitutional grounds

August 25, 2015, removing death sentences of all on death row

No post-repeal executions

Connecticut’s death penalty was repealed by legislation enacted on

April 25, 2012. The repeal was explicitly made prospective, applying only

to crimes committed on or after the statute’s enactment date.

Eleven

1JxREHjhuS2VvZ3z6XK__btHIn5rHSQil [https://perma.cc/8QKJ-3QPJ] for Commutation of

Sentence (offender 135951) [Sir Mario Owens]; Colo. Exec. Order No. C 2020 003 (Mar. 23, 2020),

https://drive.google.com/drive/folders/1JxREHjhuS2VvZ3z6XK__btHIn5rHSQil

[https://perma.cc/8QKJ-3QPJ] for Commutation of Sentence (offender 133752) [Robert Ray].

62. Conor McCormick Cavanagh, Prosecutors Drop Death Penalty Possibility in Adams

County Case, WESTWORD (Mar. 30, 2020), https://www.westword.com/news/prosecutors-drop-

possible-death-penalty-sentence-in-dearing-case-11678065 [https://perma.cc/G9MT-

MG63](quoting District Attorney Dave Young, regarding the murder trial of Dreion Dearing); Shelly

Bradbury, Death Penalty Dropped in Colorado’s Last Pending Capital Case, DENVER POST (Apr.

14, 2020), https://www.denverpost.com/2020/04/14/colorado-springs-murder-death-penalt y-

coronado-shooting/ [https://perma.cc/P8FD-2TBT] (concerning the murder trial of Marco Garcia-

Bravo).

63. See CONN. GEN. STAT. ANN. § 53a-35a (West 2013):

Imprisonment for felony committed on or after July 1, 1981. Definite sentence. Authorized

term.

(1)(A) For a capital felony committed prior to April 25, 2012, under the provisions of

section 53a-54b in effect prior to April 25, 2012, a term of life imprisonment without the

possibility of release unless a sentence of death is imposed in accordance with section 53a-

46a, or (B) for the class A felony of murder with special circumstances committed on or

after April 25, 2012, under the provisions of section 53a-54b in effect on or after April 25,

2012, a term of life imprisonment without the possibility of release . . . .

CONN. GEN. STAT. ANN. § 53a-45 (West 2012) Murder: Penalty; waiver of jury trial;

finding of lesser degree.

(a) Murder is punishable as a class A felony in accordance with subdivision (2) of section

53a-35a unless it is a capital felony committed prior to April 25, 2012, punishable in

accordance with subparagraph (A) of subdivision (1) of section 53a-35a, murder with

special circumstances committed on or after April 25, 2012, punishable as a class A felony

in accordance with subparagraph (B) of subdivision (1) of section 53a-35a, or murder

under section 53a-54d.

CONN. GEN. STAT. ANN. § 53a-54e (West 2012) Construction of statutes re capital felony

committed prior to April 25, 2012.

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individuals were under sentence of death in the state when the repeal

legislation became effective.

All of their sentences were vacated and

replaced with sentences of life imprisonment without parole after the

Connecticut Supreme Court’s 2015 ruling in State v. Santiago that capital

punishment violated the state constitution.

The decision specifically

held that offenders under sentence of death prior to the repeal statute’s

taking effect could not be executed and that the legislature’s directive that

abolition of the death penalty was prospective only was constitutionally

invalid.

Connecticut’s last execution was carried out May 13, 2005.

No executions were conducted following the 2012 legislative repeal of the

state’s capital punishment law.

The provisions of subsection (t) of section 1-1 and section 54-194 shall apply and be given

full force and effect with respect to a capital felony committed prior to April 25, 2012,

under the provisions of section 53a-54b in effect prior to April 25, 2012.

64. See Death Row U.S.A., NAACP LEGAL DEF. & EDUC. FUND, INC.,

https://www.naacpldf.org/wp-content/uploads/DRUSA_Summer_2012.pdf [https://perma.cc/Q6CR-

P4DV] (Page 47 indicates that 11 individuals were under sentence of death in Connecticut on July 1,

2012); Death Row U.S.A., NAACP LEGAL DEF. & EDUC. FUND, INC., https://www.naacpldf.org/wp-

content/uploads/DRUSA_Spring_2012.pdf [https://perma.cc/UUX3-7C5B] (Page 48 indicates that

the same 11 individuals under sentence of death in Connecticut on April 1, 2012). The 11 offenders

then under sentence of death in Connecticut were Lazale Ashby, Robert Breton, Jessie Campbell,

Sedrick Cobb, Steven Hayes, Joshua Komisarjevsky, Russell Peeler, Richard Reynolds, Todd Rizzo,

Eduardo Santiago, Jr., and Daniel Webb. Id.

65. State v. Santiago, 122 A.3d 1 (Conn. 2015). The Connecticut Supreme Court reaffirmed

this decision in State v. Peeler, 140 A.3d 811 (Conn. 2016).

66. State v. Santiago, 122 A.3d 1, 9 (Conn. 2015) (“[W]e are persuaded that following its

prospective abolition, this state’s death penalty no longer comports with contemporary standards of

decency and no longer serves any legitimate penological purpose. For these reasons execution of those

offenders who committed capital felonies prior to April 25, 2012, would violate the state

constitutional prohibition against cruel and unusual punishment.”). In a concurring opinion, and

relying on the Eighth Amendment as well as the Connecticut Constitution, Justice Eveleigh cited and

discussed several federal and other state court rulings and historical practices supporting the

conclusion that offenders under sentence of death at the time death penalty laws were repealed or

significantly restricted could not thereafter be lawfully executed. Id. at 177–95. But see Barry I, supra

note 11, at 344–52 (citing and discussing decisions in which courts have declined to give retroactive

effect to changes in death-penalty laws). See also id. at 352–57, 374–78 (citing and discussing court

decisions that have given retroactive application to changes in death-penalty laws).

67. Michael Ross waived further judicial review of his capital conviction and sentence, and on

May 13, 2005 was the last person to be executed in Connecticut. See State v. Ross, 849 A.2d 648

(Conn. 2004); Caycie D. Bradford, Waiting to Die, Dying to Live: An Account of the Death Row

Phenomenon from a Legal Viewpoint, 5 INTERDISC J. HUM. RTS L. 77, 83 (2011); Executions

Database (filter Connecticut), DEATH PENALTY INFOR. CTR,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Connecticut

[https://perma.cc/WF7M-5STQ].

68. DPIC, supra note 67.

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5. Delaware

Legislative repeal April 2, 1958

No executions post-repeal to reinstatement

Reinstatement December 18, 1961

Judicial invalidation August 2, 2016

No executions following invalidation

Delaware repealed its death-penalty law on April 2, 1958.

Capital

punishment legislation was reenacted three years later, on December 18,

1961.

The last execution in the state prior to the 1958 repeal took place

in 1946.

The next did not occur until well after reinstatement, in the

modern death penalty era, in 1992.

Delaware carried out its last

execution on April 4, 2012.

Four years later, on August 2, 2016, the

Delaware Supreme Court invalidated the state’s death-penalty law in Rauf

v. State,

ruling that the sentencing provisions violated the Sixth

Amendment right to trial by jury.

This decision was given retroactive

effect,

thus invalidating the death sentences of the 17 individuals then

on the state’s death row.

No executions were carried out following the

69. See Death Row, DEL. DEP’T. CORRECTIONS, https://doc.delaware.gov/views/

deathrow.blade.shtml [https://perma.cc/QDW3-4DV3]; 51 Del. Laws 742 (1958).

70. Death Row, supra note 69 (In 1961, “[t]he Delaware Legislature passed a bill reinstating

the death penalty, but Governor Elbert N. Carvel vetoed the bill on December 12. However, both the

Senate and House overrode the veto, so on December 18 the death penalty was reinstated.”); 53 Del.

Laws 801 (1961).

71. Forrest Sturdivant was executed May 10, 1946. DPIC, Executions in the U.S., supra note

36.

72. Steven Brian Pennell was executed March 14, 1992. Id. See Death Row Executions, DEL.

DEP’T. CORR., https://doc.delaware.gov/views/executions.blade.shtml [https://perma.cc/7NP3-

A2B7].

73. Death Row Executions supra note 72 (execution of Shannon Johnson, April 20, 2012);

Execution Database (Delaware), DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/

executions/execution-database?filters%5Bstate%5D=Delaware [https://perma.cc/MD2E-7YY4].

74. Rauf v. State, 145 A.3d 430 (Del. 2016) (per curiam).

75. In making its decision, the Delaware Supreme Court relied on the United States Supreme

Court’s decision in Hurst v. Florida, 136 S.Ct. 616 (2016). See Rauf v. State, 145 A.3d 430, 433 (Del

2016) (per curiam) (“[T]he majority’s collective view [is] that Delaware’s current death penalty

statute violates the Sixth Amendment role of the jury as set forth in Hurst.”). See generally Sheri

Lynn Johnson, John H. Blume, Theodore Eisenberg, Valerie P. Hans & Martin T. Wells, The

Delaware Death Penalty: An Empirical Study, 97 IOWA L. REV. 1925, 1929–31 (2012) (describing

the evolution of Delaware’s capital-sentencing provisions, including the legislative decision in 1991

to replace jury sentencing with judge sentencing).

76. Powell v. State, 153 A.3d 69 (Del. 2016) (per curiam).

77. Id. See Death Row U.S.A., NAACP LEGAL Def. & EDUC. FUND, INC.,

https://www.naacpldf.org/wp-content/uploads/DRUSAFall2016.pdf [https://perma.cc/225L-BRJS]

(as of Oct. 1, 2016, 17 individuals were under sentence of death in Delaware); Esteban Parra,

Delaware’s Last Two Death Row Inmates Sentenced to Life In Prison, DEL. ONLINE (Mar. 13, 2018),

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Delaware Supreme Court’s decision in Rauf v. State,

and the legislature

has not acted to replace the invalidated statute.

6. District of Columbia

Legislative repeal Feb. 26, 1981

No executions after repeal

No executions have occurred in the District of Columbia since

1957.

The death-penalty law then in effect was rendered

unconstitutional by the Supreme Court’s dec ision in Furman v. Georgia.

On December 17, 1980, the Council of the District of Columbia voted

unanimously to repeal the invalidated death penalty statute, which

lingered on the books. The Death Penalty Repeal Act of 1980 took effect

February 26, 1981.

No death sentences have since been imposed or

carried out in Washington D.C.

7. Hawaii

Legislative repeal June 5, 1957

No executions subsequent to repeal

Hawaii became a state in 1959.

It has never authorized the death

penalty during statehood.

The last execution under civilian authority in

territorial Hawaii was carried out in 1944.

The Hawaiian Territorial

https://www.delawareonline.com/story/news/local/2018/03/13/delawares-last-death-row-inmates-

resentenced-life-prison-tuesday/407863002/ [https://perma.cc/A6RG-ZEVB].

78. Execution Database (Delaware), supra note 73.

79. DPIC, Executions in the U.S., supra note 36 (showing execution of Robert Carter, April

26, 1957); ICPSR: The Espy File, supra note 29, at Washington, D.C. V16(11), V14 (indicating no

executions after 1957); Execution Database (District of Columbia), DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-

database?filters%5Bstate%5D=District%20of%20Columbia [https://perma.cc/JUH6-7RZZ]

(indicating no executions 1977 to date).

80. See United States v. Lee, 489 F.2d 1232, 1246–47 (D.C. Cir. 1973) (invalidating sentence

of death imposed under 22 D.C. Code § 2404 in light of Supreme Court’s ruling in Furman v. Georgia,

408 U.S. 238 (1972)).

81. D.C. Law § 3-113 (1981).

82. Hawaii Statehood, August 21, 1959, NAT’L ARCHIVES, THE CTR. FOR LEGIS. ARCHIVES,

https://www.archives.gov/legislative/features/hawaii [https://perma.cc/EG2V-DSEU].

83. See HAW. REV. STAT. § 706-656(1) (2014) (life imprisonment without possibility of parole

is punishment for first-degree murder committed by persons 18 years of age or older).

84. ICPSR: The Espy File, supra note 29, at Hawaii V16 (15), V14; (no executions after 1944);

Jonathan Y. Okamura, Application and Abolition: Race and Capital Punishment in Territorial

Hawai’i, https://scholarspace.manoa.hawaii.edu/bitstream/10125/64730/jokamura.pdf

[https://perma.cc/7NEC-4JJB] (identifying the 1944 execution of Adriano Domingo as the last one

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legislature passed a bill abolishing the death penalty on June 4, 1957, and

Governor Samuel Wilder King signed the repeal legislation the next day.

Two men, Joseph Josiah and Sylvestre Adoca, were under sentence of

death at the time the repeal legislation went into effect.

Governor

William F. Quinn commuted Josiah’s sentence to life imprisonment in

1958, after Josiah’s appeal to set aside his 1954 conviction and death

sentence was rejected.

The Governor also commuted Adoca’s death

sentence, thus ensuring that no one would be executed under Hawaii law

after the repeal legislation took effect.

8. Illinois

Legislative repeal July 1, 2011

No post-repeal executions

The last execution in Illinois occurred when Andrew Kokoraleis died

by lethal injection on March 17, 1999.

Governor George Ryan issued

four pardons and commuted the death sentences of the remaining

individuals on Illinois’ death row when he left office in January 2003.

A moratorium on executions remained in effect over the next several

years, although offenders continued to be sentenced to death. On March

9, 2011, Illinois Governor Patrick Quinn signed legislation repealing the

carried out in Hawaii); Joseph Theroux, A Short History of Hawaiian Executions, 1826–1947, 25 THE

HAWAIIAN J. OF HIST. 147, 147 (1991). Later executions in Hawaii in 1945 and 1947 were carried

out under military authority. Id. at Appendix II (noting military executions of Cornelius Thomas, on

August 1, 1945, and of Garlon Mickles, on April 22, 1947).

85. H.B. 706 (Haw 1957), cited in Theroux, supra note 84, at 153–54. “The bill became Act

282 . . . .” Id. at 154. See also Okamura, supra note 84, at 66.

86. Theroux, supra note 84, at 154.

87. Okamura, supra note 84, at 67 (citing Quinn Will Commute Death Term, HONOLULU

ADVERTISER, March 26, 1958, at A1, A4).

88. Quinn Will Commute Death Term, supra note 87, at A1. See also ICPSR: The Espy File,

supra note 29, at Hawaii V16(15), V14 (last execution in Hawaii through 2002 occurred in 1944);

Execution Database (Hawaii), DEATH PENALTY INFO. CTR. (no executions in Hawaii in 1977 or

later), https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Ha wai i

[https://perma.cc/PX9N-N6HK].

89. Execution Database (Illinois), DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Illinois

[https://perma.cc/5MWC-YCXX].

90. See Austin Sarat, Putting A Square Peg in A Round Hole: Victims, Retribution, and George

Ryan’s Clemency, 82 N.C. L. REV. 1345–46, n.2 (2004); Rob Warden, How and Why Illinois

Abolished the Death Penalty, 30 L. & INEQ. 245, 269–70 (2012); Leigh B. Bienen, Capital

Punishment in Illinois in the Aftermath of the Ryan Commutations: Reforms, Economic Realities, and

a New Saliency for Issues of Cost, 100 J. OF CRIM. L. & CRIMINOLOGY 1301, 1306–07 (2010).

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state’s death penalty.

The repeal bill became effective July 1, 2011. It

specified: “Beginning on the effective date of this amendatory Act . . . ,

notwithstanding any other law to the contrary, the death penalty is

abolished and a sentence to death may not be imposed.”

Fifteen men

were under sentence of death in Illinois when the repeal bill was passed.

Governor Quinn commuted all their death sentences when he signed the

repeal legislation.

The death penalty has not been reinstated in Illinois and no

executions were carried out following the repeal of the state’s capital

punishment law.

91. Illinois Governor Signs Bill Ending Death Penalty, Marking the Fewest States with Capital

Punishment Since 1978, DEATH PENALTY INFO. CTR. (Mar. 9, 2011),

https://deathpenaltyinfo.org/news/illinois-governor-signs-bill-ending-death-penalty-marking-the-

fewest-states-with-capital-punishment-since-1978 [https://perma.cc/2CBU-HYYQ].

92. 725 ILL. COMP. STAT. 5/119-1(a) (2011); Warden, supra note 90.

93. List of Clemencies Since 1976, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/facts-and-research/clemency/list-of-clemencies-since-1976

[https://perma.cc/9UNW-QWGT]. See also Death Row U.S.A., NAACP LEGAL DEF. AND EDUC.

FUND, INC., at 49–50 (Winter 2011), https://www.naacpldf.org/wp-

content/uploads/DRUSA_Winter_2011.pdf [https://perma.cc/C4QR-8BS7] (identifying sixteen

individuals on Illinois’ death row as of January 1, 2011); Death Row U.S.A., NAACP LEGAL DEF.

AND EDUC. FUND, INC., at 1 (Spring 2011), https://www.naacpldf.org/wp-

content/uploads/DRUSA_Spring_2011.pdf [https://perma.cc/D98A-9PUK] (“In March 2011, a bill

abolishing the death penalty passed in Illinois, effective July 1, 2011. Gov. Quinn commuted the death

sentences of all Illinois prisoners.”). While signing the bill repealing the state’s death-penalty law,

Governor Quinn said, in part:

Since our experience has shown that there is no way to design a perfect death penalty

system, free from the numerous flaws that can lead to wrongful convictions or

discriminatory treatment, I have concluded that the proper course of action is to abolish it.

With our broken system, we cannot ensure justice is achieved in every case. For the same

reason, I have also decided to commute the sentences of those currently on death row to

natural life imprisonment, without the possibility of parole or release. I have found no

credible evidence that the death penalty has a deterrent effect on the crime of murder and

that the enormous sums expended by the state in maintaining a death penalty system would

be better spent on preventing crime and assisting victims’ families in overcoming their

pain and grief. To those who say that we must maintain a death penalty for the sake of the

victims’ families, I say that it is impossible not to feel the pain of loss that all these families

share or to understand the desire for retribution that many may hold. But, as I heard from

family members who lost loved ones to murder, maintaining a flawed death penalty system

will not bring back their loved ones, will not help them to heal and will not bring closure

to their pain. Nothing can do that. We must instead devote our resources toward the

prevention of crime and the needs of victims’ families, rather than spending more money

to preserve a flawed system.

Statement from Governor Pat Quinn on Senate Bill 3539, DEATH PENALTY INFO. CTR.,

https://files.deathpenaltyinfo.org/legacy/documents/ILGovernorStatement.pdf

[https://perma.cc/UXN5-NEP2]. See also Warden, supra note 90, at 245, n.2.

94. See DEATH PENALTY INFO. CTR., supra note 89.

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9. Iowa

Legislative repeal May 1, 1872

No executions during repeal period through reinstatement

Legislative reinstatement May 26, 1878

First post-repeal execution Dec. 16, 1887

Legislative repeal July 4, 1965

No executions following repeal

Iowa retained the death penalty when it became a state in 1846.

The

last execution occurred in 1865, before its 1872 repeal legislation took

effect.

The legislature first repealed the state’s capital punishment law

May 1, 1872.

Considerable drama preceded the repeal because the Iowa

Supreme Court had affirmed the murder conviction and death sentence of

William Stanley in late February 1872 and Governor Cyrus Carpenter set

April 12, 1872 as Stanley’s execution date. On April 8, with the execution

imminent, the Iowa House passed a resolution asking the governor to

delay Stanley’s execution to enable the Legislature to consider abolition

legislation. The state Senate adopted the resolution the following day and

the governor granted Stanley a one-month reprieve. An abolition bill

passed the House on April 19 and the Senate on April 20. Stanley was

thus spared execution, in keeping with the legislative intent to eliminate

the capital sanction.

Iowa reinstated capital punishment on May 26, 1878, just six years

after enacting the 1872 repeal statute.

No one was executed in Iowa

between the 1872 repeal and the 1878 reinstatement. The next execution

95. GALLIHER ET AL., supra note 36, at 170.

96. ICPSR: The Espy File, supra note 29, at Iowa V16(19), V14; DPIC, Executions in the U.S.

1608-2002: The ESPY File, DEATH PENALTY INFO. CTR., at 117,

https://files.deathpenaltyinfo.org/legacy/documents/ESPYyear.pdf [https://perma.cc/6SEN-U49B]

(execution of Benjamin McComb, February 17, 1865).

97. 1872 Iowa Acts 139; GALLIHER ET AL., supra note 36, at 170.

98. Richard Acton, The Magic of Undiscovered Effort: The Death Penalty in Early Iowa, 1838-

1878, 30 ANNALS OF IOWA 721, 730–37 (Winter 1991), https://ir.uiowa.edu/

cgi/viewcontent.cgi?article=9507&context=annals-of-iowa [https://perma.cc/YY2K-S3WD]. “ The

1872 legislature . . . had to consider more than a theoretical argument: it had to decide whether George

Stanley should hang. As a leading member of the House wrote four days before the scheduled

execution, ‘This brings home to every legislator the responsibility of saying whether a fellow being

shall be killed by the State.’ Faced with the actual decision of whether a man should live or die, the

legislature voted overwhelmingly that he should live.” Id. at 749–50.

99. 1878 Iowa Acts 150–51; GALLIHER ET AL., supra note 36, at 171; Acton, supra note 98, at

749.

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was carried out in 1887.

100

The last execution conducted under state

authority in Iowa took place in 1962.

101

Three years later, on February 24,

1965, the Iowa Legislature voted once again to repeal the state’s death-

penalty law.

102

The legislation became effective later that year, on July

103

One month before the Legislature voted to abolish the death penalty,

Governor Harold Hughes commuted the death sentence of Leon Tice, the

lone offender then awaiting execution in Iowa.

104

No one has been

executed in Iowa following the 1965 repeal.

105

10. Kansas

Legislative repeal Jan. 30, 1907

No executions during repeal period through reinstatement

Legislative reinstatement March 11, 1935

First post-reinstatement execution March 10, 1944

Kansas repealed its death-penalty legislation on January 30, 1907.

106

The last execution carried out under state authority took place 37 years

earlier, when William Dickson was hanged on August 8, 1870.

107

100. ICPSR: The Espy File, supra note 29; DEATH PENALTY INFO. CTR., supra note 96, at 116

(execution of Chester Bellows, December 16, 1887).

101. Charles Kelly was executed on September 9, 1962. DEATH PENALTY INFO. CTR., supra

note 96, at 117. The ICPSR database depicts a 1963 execution occurring in Iowa. ICPSR: The Espy

File, supra note 29. However, that execution, of Victor Feguer on March 15, 1963, was carried out

under federal authority rather than state law. See DEATH PENALTY INFO. CTR., supra note 29, at 117;

Federal Government Set to Resume Executions, N.Y. TIMES, Mar. 14, 1995,

https://www.nytimes.com/1995/03/14/us/federal-government-set-to-resume-executions.html

[https://perma.cc/T98M-GYBL] (“The last civilian executed by the Federal Government was Victor

Feguer, who was hanged in Iowa in 1963 for murder and kidnapping.”).

102. See Laws of the Sixty-First General Assembly (Iowa), Ch. 435, H.F. 8 “ Death Penalty

Abolished,” approved Feb. 24, 1965.

103. 1965 Iowa Acts 827–28; GALLIHER ET AL., supra note 36, at 176–77.

104. George Mills, Death Order is Commuted to Life Term, DES MOINES REGISTER, Jan. 10,

1965, at 1, https://www.newspapers.com/clip/36579656/leon-tice-family-history-p-1/

[https://perma.cc/ANM5-CQ7Q]. See also DICK HAWS, IOWA AND THE DEATH PENALTY: A

TROUBLED RELATIONSHIP 1834-1965, 298 (2010).

105. ICPSR: The Espy File, supra note 29; DEATH PENALTY INFO. CTR., supra note 96.

106. Louise Barry, Legal Hangings in Kansas, 18 KAN. HIST. Q. 279, 281 n.12 (1959),

https://www.kshs.org/publicat/khq/1950/1950august_barry.pdf [https://perma.cc/P8DV-XWYH].

The repeal legislation, stated in part: “ Persons convicted of murder in the first degree shall be punished

by confinement and hard labor in the Penitentiary of the state of Kansas for life . . . .” Id. at 279

(quoting 1907 Kan. Sess. Laws, 188). See also 1907 Kan. Sess. Laws 299; Galliher, et al., supra note

41, at 545 & n.47 (citing 1907 Kan. Sess. Laws 188).

107. Barry, supra note 106, at 282. Three later executions occurred in Kansas during the 1880s

(Lee Mosier in 1887, and Jake Tobler and Joe Tobler in 1888), but all were carried out under federal

authority. Id. See also ICPSR: The Espy File, supra note 29, at Kansas V16(20), V14; DEATH

PENALTY INFO. CTR., supra note 93, at 133.

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Sentiment about capital punishment was divided in the state, and in 1872

legislation was enacted that required a delay of at least one year between

the imposition of a death sentence and its execution. The legislation

further required the governor to issue an execution warrant before a death

sentence could be carried out. Although murderers continued to be

sentenced to death in the 1870s and into the early 20

century, Kansas

governors declined to sign warrants authorizing executions.

108

Numerous

individuals consequently were on Kansas’s death row when the 1907

repeal legislation became effective.

109

In 1908, in response to petitions

filed by two persons who had been sentenced to death prior to the repeal

legislation’s enactment, the Kansas Supreme Court ruled that capital

sentences that had been imposed prior to the death-penalty law’s repeal

remained valid.

110

Although several inmates thus remained under

sentence of death after the repeal of the state’s death penalty law, none

108. Barry, supra note 106, at 280; Michael Church, Capital Punishment, 1870-1907, KAN. ST.

HIST. SOC’Y: KAN. MEMORY BLOG (Jan. 24, 2008),

https://www.kansasmemory.org/blog/post/28195390 [https://perma.cc/4GV4-ASU7]; Galliher, et al.,

supra note 41, at 545–46.

109. Barry, supra note 106, at 297 (“By the last of June 1906, the [Kansas] penitentiary’s death-

sentence population had increased to 60 men. This was the maximum number; two years later there

were 57 and by 1915 only 14.”) (footnotes omitted).

110. In re Schneck, 96 P. 43 (Kan. 1908). Neither In re Schneck nor the companion case of Ex

parte Stewart, 96 P. 45 (Kan. 1908) (per curiam) involved a constitutional challenge. The defendant

in Schneck was charged with a murder allegedly committed in February 1907, prior to the effective

date of the repeal legislation. He argued that he was eligible for release on bail because the death

penalty had been abolished. The court held that murder committed prior to the repeal legislation

becoming effective remained a capital crime, and hence was not bailable:

It is urged on behalf of the petitioner that, as the criminal action against him was not

commenced until after the repeal of the statute imposing the death penalty, the penalty of

death cannot be imposed upon him, if he be convicted, and therefore the crime charged is

not a capital offense, and is bailable. Had the Legislature in the enactment of the

amendment which changes the penalty provided to what cases the amendment should be

applicable with reference to the time of its passage, the special provision would control.

In the absence, however, of any such provision, the general provision in section 7342

applies. The disputed question, then, hinges upon the meaning of the words “ penalty

incurred” as used in the general provision. . . .

The penalty is imposed by the court after the fact of guilt is legally determined. It is

incurred when the act for which the law prescribed the penalty is committed. It follows,

then, since the crime is charged to have been committed before the repeal of the statute

prescribing the penalty of death, that the repeal and amendment does not affect the penalty

of the crime charged, and, assuming that the proof is evident and the presumption great,

the petitioner is not entitled to bail.

In re Schneck, 96 P., at 44–45 (1908). See generally “Abolition of death penalty as affecting right to

bail of one charged with murder in first degree,” 8 A.L.R. 1352 (Originally published in 1920). The

defendants in Schneck and Stewart, Frank Schneck and Mollie Stewart, were later paroled. The

Kansas Archives in Topeka contain their parole papers, copies of which are on file with Brian Stull.

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were executed.

111

Kansas reinstated capital punishment for murder

through legislation that became effective March 11, 1935.

112

The first

execution under this law did not take place until Ernest Hoefgen was

hanged on March 10, 1944 for a murder committed in 1943.

113

11. Maine

Legislative repeal Feb. 21, 1876

No executions occurred between 1876 repeal and 1883 reinstatement

Reinstatement March 13, 1883

First post-reinstatement execution April 17, 1885

Legislative repeal March 17, 1887

No post-repeal executions

The Maine Legislature repealed the state’s death-penalty law for the

first time through a measure approved on February 21, 1876. The repeal

was made prospective, applying only to offenses committed after the

statute’s enactment.

114

However, no executions were carried out while the

legislative repeal was in effect. Two executions in 1875 were the last ones

conducted before the repeal legislation was passed.

115

No other executions

took place in the state until after the Legislature reinstated the death

penalty for murder on March 13, 1883.

116

The only post-reinstatement

111. Barry, supra note 106, at 279, 282; Galliher, et al., supra note 41, at 571.

112. 1935 Kan. Sess. Laws 234; Galliher, et al., supra note 41, at 571, n.237 (citing 1935 Kan.

Sess. Laws 234).

113. DEATH PENALTY INFO. CTR., supra note 96, at 133 (execution of Ernest Hoefgen, March

10, 1944); Barry, supra note 21, at 298; DEATH PENALTY ARCHIVE, Documentation for the Execution

of Ernest Hoefgen, 1944-03-10, https://archives.albany.edu/concern/

daos/1z40m411t#?c=0&m=0&s=0&cv=0&xywh=-65%2C134%2C4902%2C3151

[https://perma.cc/4JXT-8ZYA]; A History of Capital Punishment in Kansas Through 1994, WICHITA

EAGLE (Oct. 5, 2015), https://www.kansas.com/news/local/crime/article37624236.html

[https://perma.cc/338H-HYCM].

114. 1876 Me. Laws 82 was styled: “ An Act to abolish the Death Penalty and to regulate the

manner of Applying for Pardons in certain cases.” In relevant part it provided: “ SECT. 1. The penalty

of death, as a punishment for crime, is hereby abolished. SECT. 2. All crimes now punishable with

death shall hereafter be punished by imprisonment at hard labor for life.” The repeal applied

prospectively: “‘SECT. 8. The provisions of this act shall not apply to offences committed before the

same goes into effect.” 1876 Me. Laws 82,

http://lldc.mainelegislature.org/Open/Laws/1876/1876_PL_c114.pdf [https://perma.cc/AU54-

3TKN]. See also 1876 Me. Laws 81; GALLIHER, ET AL., supra note 36, at 59.

115. ICPSR: The Espy File, supra note 29 at Maine V16(23), V14; DEATH PENALTY INFO. CTR.,

supra note 93, at 186 (execution of John Gordon, June 25, 1875; execution of Louis Wagner, June

25, 1875). See Edward Schriver, Reluctant Hangman: The State of Maine and Capital Punishment,

1820-1887, 63 NEW ENGLAND Q. 271, 281–82 (1990).

116. 1883 Me. Laws 205, http://lldc.mainelegislature.org/Open/Laws/1883/1883_PL_c205.pdf

[https://perma.cc/2QJA-K6FZ]. See also 1883 Me. Laws 169; GALLIHER, ET AL., supra note 36, at

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executions occurred in Maine in 1885,

117

two years after the reinstatement

legislation took effect. All three men executed in 1885 were convicted of

murders that were committed after the 1883 law restored the death

penalty.

118

These were the last executions conducted in Maine. The

Legislature abolished capital punishment for murder on March 17,

1887.

119

The death penalty has not been restored in Maine and no later

executions have been carried out in the state.

120

12. Maryland

Legislative repeal October 1, 2013

No executions following repeal

Maryland’s death penalty was repealed by legislation which became

effective October 1, 2013.

121

Five individuals were under sentence of

death when the repeal legislation went into effect.

122

None were executed.

59. See generally Schriver, supra note 115, at 284. A companion provision specified that capital

punishment for treason and arson was abolished. 1883 Me. Laws 247,

http://lldc.mainelegislature.org/Open/Laws/1883/1883_PL_c247.pdf [https://perma.cc/6KXN-

ECDJ].

117. ICPSR: The Espy File, supra note 29, at Maine V16(23), V14; DEATH PENALTY INFO.

CTR., supra note 93, at 186 (execution of Raffaele Capone, April 17, 1885; execution of Carmine

Santore, April 17, 1885; execution of Daniel Wilkinson, November 20, 1885). See also Capital

Punishment, ME., AN ENCYCLOPEDIA, https://maineanencyclopedia.com/capital-punishment/

[https://perma.cc/5UTD-LYF3].

118. Daniel Wilkinson murdered a police officer, William Lawrence, on September 3, 1883.

Raffaele Capone and Carmine Santore murdered Paschual Coscia in February 1884. Schriver, supra

note 115, at 284.

119.

1887 Me. Laws 133 (death penalty is abolished), http://lldc.mainelegislature.org/Open/Laws/1887/

1887_PL_c133.pdf [https://perma.cc/7A98-44U2]. See also 1887 ME. LAWS 104; Schriver, supra

note 115, at 285; GALLIHER, ET AL., supra note 36, at 59–60.

120. ICPSR: The Espy File, supra note 29, at Maine V16(23), V14; DEATH PENALTY INFO.

CTR., supra note 93, at 186; DEATH PENALTY INFO. CTR., Execution Database, Maine,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Maine

[https://perma.cc/EZB4-4MRY] (no executions carried out in Maine 1977 or later); Schriver, supra

note 115, at 287.

121. S.B. 276, 433rd Sess. of the Gen. Assemb. (Md. 2013) (repealing death penalty and

substituting life imprisonment without the possibility of parole for first degree murder). See MD.

CODE ANN. CRIM. LAW § 2-2-1(b)(1) (West, 2019) (providing for punishment of life imprisonment

without parole or life imprisonment for first-degree murder). Governor Martin O’Malley signed the

death penalty repeal bill May 2, 2013. See Maryland: Governor Signs Repeal of the Death Penalty,

N.Y. TIMES (May 2, 2013), https://www.nytimes.com/2013/05/03/us/maryland-governor-signs-

repeal-of-the-death-penalty.html [https://perma.cc/5ABG-6NRS].

122. NAACP LEGAL DEF. AND EDUC. FUND, INC., Death Row U.S.A., at 53 (Fall 2013),

https://www.naacpldf.org/wp-content/uploads/DRUSA_Fall_2013.pdf [https://perma.cc/BKP3-

NNY5] (identifying the five men then on Maryland’s death row: John Booth, Heath William Burch,

Vernon Evans, Anthony Grandison, and Jody Lee).

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John Booth-El, formerly known as John Booth, died of natural causes in

April 2014.

123

Governor Martin O’Malley commuted the sentences of the

four remaining offenders on death row to life imprisonment without

parole upon leaving office in January 2015.

124

The death penalty has not

been reinstated in Maryland and no executions have occurred in the state

following enactment of the 2013 repeal legislation.

125

13. Massachusetts

Judicial invalidation Oct. 18, 1984

No later executions

The last executions in Massachusetts were carried out in 1947,

126

when two men were electrocuted pursuant to a law later rendered

unconstitutional by the Supreme Court’s decision in Furman v.

Georgia.

127

Legislative attempts to reintroduce the death penalty in the

123. See Jeff Barker & Jonathan Pitts, Demise of Death Row Inmate Rekindles Debate Over

Capital Punishment, THE BALT. SUN (April 28, 2014),

https://www.baltimoresun.com/news/crime/bs-xpm-2014-04-28-bs-md-death-row-man-dies-

20140428-story.html [https://perma.cc/3UHL-FREX]. Booth’s original death sentence was vacated

when the Supreme Court ruled that victim impact evidence was improperly admitted during the

penalty-phase of his trial. Booth subsequently was resentenced to death and thus remained on

Maryland’s death row when he died in 2014. Id.; Booth v. Maryland, 482 U.S. 496 (1987) overruled

by Payne v. Tennessee, 501 U.S. 808 (1991); Booth v. State, 608 A.2d 162 (Md. 1992).

124. See List of Clemencies Since 1976, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/facts-and-research/clem ency/list-of-clemencies -since-1976

[https://perma.cc/CB8C-9QBY] (Governor O’Malley commuted the death sentences of Heath Burch,

Vernon Evans, Anthony Grandison, and Jody Lee in 2015); State and Federal Info, Maryland, DEATH

PENALTY INFO. CTR., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/maryl and

[https://perma.cc/5KQQ-J6HX]; Michael Dresser & Erin Cox, O’Malley Plans to Commute

Sentences of Maryland’s Four Death Row Inmates, THE BALT. SUN (Dec. 31, 2014, 8:52 PM),

https://www.baltimoresun.com/politics/bs-md-death-row-commutations-20141231-story.html

[https://perma.cc/L72K-2E4B].

125. Execution Database, (Maryland), DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Maryland

[https://perma.cc/STV5-5YVH] (no executions have been carried out in Maryland since December 5,

2005, when Wesley Baker died by lethal injection).

126. ICPSR: The Espy File, supra note 29, at Massachusetts V16(25), V14; DEATH PENALTY

INFO. CTR., supra note 96, at 176 (execution of Phillip Bellino, May 9, 1947; execution of Edward

Gertsen, May 9, 1947).

127. Furman v. Georgia, 408 U.S. 438 (1972). When Furman was decided, Massachusetts, in

common with other states, authorized capital punishment at the jury’s unfettered discretion. The

Supreme Court ruled in Furman that capital-sentencing laws that failed to limit and guide sentencing

discretion presented too great of a risk of arbitrariness and hence violated the Eighth Amendment’s

prohibition against cruel and unusual punishments. Massachusetts’s death-penalty law in effect at that

time consequently was declared unconstitutional. See Stewart v. Massachusetts, 408 U.S. 845, 845

(1972) (per curiam); Commonwealth v. Harrington, 323 N.E.2d 895, 901 (Mass. 1975).

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state during the post-Furman era were invalidated by the Massachusetts

Supreme Judicial Court on state constitutional grounds.

128

The most

recent judicial invalidation occurred in Commonwealth v. Colon-Cruz

(1984), in which the state high court ruled that the statutory scheme

authorizing capital punishment unconstitutionally burdened rights to trial

by jury and against compelled self-incrimination.

129

The Massachusetts

Legislature has not enacted legislation to cure the constitutional defects in

the 1982 statute in the aftermath of this ruling. Massachusetts

consequently remains without a valid death-penalty law and no executions

have since taken place within the state.

130

14. Michigan

Legislative repeal March 1, 1847

No post-repeal executions

128. See Commonwealth v. O’Neal, 339 N.E.2d 676, 677 (Mass. 1975) (mandatory death

penalty for rape-murder constitutes cruel or unusual punishment in violation of Article 26 of the

Declaration of Rights of the Massachusetts Constitution); Dist. Attorney for the Suffolk Dist. v.

Watson, 411 N.E.2d 1274, 1287 (Mass.1980) (holding the penalty of death is impermissibly cruel

under Article 26 of the Declaration of Rights of the Massachusetts Constitution). Thereafter, as

explained in Commonwealth v. Colon-Cruz, 470 N.E.2d 116, 117–18 (Mass. 1984):

On November 2, 1982, the voters approved a constitutional amendment which added a

second and third sentence to art. 26: “ No provision of the Constitution, however, shall be

construed as prohibiting the imposition of the punishment of death. The general court may,

for the purpose of protecting the general welfare of the citizens, authorize the imposition

of the punishment of death by the courts of law having jurisdiction of crimes subject to

the punishment of death.” Art. 116 of the Amendments to the Massachusetts Constitution.

This amendment had been adopted by joint sessions of the General Court in the years 1980

and 1982.

On December 15, 1982, both houses of the General Court enacted c. 554 of the Acts of

1982, providing for capital punishment in certain cases of murder in the first degree. The

act was approved by the Governor on December 22, 1982, and took effect on January 1,

1983, to apply to offenses committed on or after the effective date. St.1982, c. 554, § 8.

129. Commonwealth v. Colon-Cruz, 470 N.E.2d 116 (Mass. 1984). The court ruled that

provisions of the capital punishment statute enacted in 1982:

violate art. 12 of the Declaration of Rights of the Massachusetts Constitution. They

impermissibly burden both the right against self-incrimination and the right to a jury trial

guaranteed by that article. We base this conclusion on the fact that according to the terms

of [the statute], the death penalty may be imposed, if at all, only after a trial by jury. Those

who plead guilty in cases in which death would be a possible sentence after trial thereby

avoid the risk of being put to death. The inevitable consequence is that defendants are

discouraged from asserting their right not to plead guilty and their right to demand a trial

by jury. For this reason, . . . [the statutory provisions] are not in compliance with the

Constitution of the Commonwealth of Massachusetts.

Id. at 124 (footnote omitted).

130. See Execution Database (Massachusetts), DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Massachusetts [htt

ps://perma.cc/Y464-5ATA] (no executions in Massachusetts 1977 or later).

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Michigan became the first state to abolish the death penalty for

murder, doing so through legislation that took effect March 1, 1847.

131

The last execution occurred in Michigan in 1836,

132

before Michigan

became a state.

133

No execution has ever been carried out under state

authority.

134

A provision prohibiting capital punishment was incorporated

into the 1963 Michigan Constitution.

135

15. Minnesota

Legislative repeal April 22, 1911

No post-repeal executions

Capital punishment was abolished in Minnesota by legislation

enacted April 22, 1911.

136

The last execution was carried out in the state

when William Williams was hanged on February 13, 1906.

137

Two men

131. 1846 Mich. Pub. Acts 658 (“ Section 1. All murder which shall be perpetrated by means of

poison or lying in wait, or any other kind of willful, deliberate, and premeditated killing, or which

shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary,

shall be deemed murder of the first degree, and shall be punished by solitary confinement at hard

labor in the state prison for life.”). Prior legislation had authorized capital punishment for first-degree

murder. Michigan Revised Statutes ch. 3 sec. 1 (1837 adjourned session and 1838 regular session).

Capital punishment remained available in Michigan for treason, although that provision was never

used. GALLIHER ET AL., supra note 36, at 11.

132. ICPSR: The Espy File, supra note 29 at Michigan. V16(26), V14; DEATH PENALTY INFO.

CTR., supra note 96, at 186 (execution of Wau-Bau-Ne-Me-Kee July 1836). An execution was carried

out under federal authority in Michigan in 1938. Id. (execution of Anthony Chebatoris, July 8, 1938);

see Michael Mannheimer, The Unusual Case of Anthony Chebatoris: The ‘New Deal for Crime’ and

the Federal Death Penalty in Non-Death States, 70 SYRACUSE L. REV. (forthcoming 2020),

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3436500 [https://perma.cc/V96D-PJKN].

133. Michigan became a state January 26, 1837. See Michigan, HISTORY (Apr. 29, 2020),

https://www.history.com/topics/us-states/michigan [https://perma.cc/6DUM-EN3T].

134. ICPSR: The Espy File, supra note 29, at Michigan V16(26), V14; DEATH PENALTY INFO.

CTR., supra note , at 186 (noting executions in Michigan in 1836 and 1938 and none thereafter). The

1938 execution occurred under federal authority. See ICPSR: The Espy File, supra note 29 at

Michigan; Execution Database (Michigan), DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Michigan

[https://perma.cc/YC9A-Z7LN] (no executions 1977 or later).

135. MICH. CONST. art. IV, § 46 (“No law shall be enacted providing for the penalty of death.”).

136. See Galliher, et al., supra note 41, at 554 (citing 1911 Minn. Laws 572); Capital

Punishment in Minnesota, MINN. ST. L. LIBR., https://mn.gov/law-library/legal-topics/capital-

punishment-in-minnesota.jsp [https://perma.cc/S6J6-ZKFE] (“ The death penalty was abolished by

the legislature in 1911,” citing 1911 Minn. Laws 387). See generally JOHN BESSLER, LEGACY OF

VIOLENCE: LYNCH MOBS AND EXECUTIONS IN MINNESOTA (2006).

137. ICPSR: The Espy File, supra note 29, at Minnesota V16(27), V14; DEATH PENALTY INFO.

CTR., supra note 93, at 189; MINN. ST. L. LIBR., supra note 136; Galliher, et al., supra note 41, at 553

(describing hanging, which was prolonged for nearly 15 minutes because of a miscalculation

concerning the drop and the length of the rope); GALLIHER ET. AL., supra note 36, at 81. No later

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were under sentence of death when the repeal bill was being considered

in April 1911, Michelangelo Rossi and Martin O’Malley. The State Board

of Pardons commuted both men’s death sentences to life imprisonment

immediately before Governor Adolph Eberhart signed the repeal

legislation.

138

16. Missouri

Legislative repeal Apr. 13, 1917

No post-repeal executions prior to reinstatement

Legislative reinstatement July 8, 1919

First post-reinstatement execution Aug. 12, 1921

Capital punishment was briefly prohibited in Missouri, between

April 13, 1917,

139

when repeal legislation took effect, and July 8, 1919,

140

when the death penalty was reinstated.

141

The last executions prior to the

1917 repeal took place August 8, 1916 when Andrew Black and Harry

Black were hanged.

142

The first post-reinstatement executions occurred in

executions were conducted in Minnesota. Id.; DEATH PENALTY INFO. CTR., Execution Database

(Minnesota), https://deathpenaltyinfo.org/executions/execution-

database?filters%5Bstate%5D=Minnesota [https://perma.cc/964Z-YSX9] (no executions 1977 or

later).

138. John D. Bessler, The ‘Midnight Assassination Law’ and Minnesota’s Anti-Death Penalty

Movement, 1849-1911, 22 WILLIAM MITCHELL L. REV. 577, 691–98 (1992) (discussing the cases of

Martin O’Malley and Michelangelo Rossi).

139. Act of April 13, 1917 (Laws 1917, at 246), quoted in State v. Lewis, 201 S.W. 80, 85

(1918):

Section 1. Capital Punishment Not to be Imposed.––From and after the taking effect of

this act it shall be unlawful in this state to take human life as a punishment for crime, and

no court shall impose capital punishment as a penalty for crime.

Sec. 2. Repealing Conflicting Laws.––All acts and parts of acts inconsistent or in conflict with this

act are hereby repealed.

See also 1917 Mo. Laws 246; Galliher, et al., supra note 41, at 555. The repeal legislation apparently

was not codified before capital punishment was reinstated by legislation enacted in 1919. See Ellen

Elizabeth Guillot, Abolition and Restoration of the Death Penalty in Missouri, in CAPITAL

PUNISHMENT 124–26 (Thorsten Sellin, ed., N.Y.: Harper & Row 1967) (reprinting 284 Annals of the

American Academy of Political and Social Science 105–09 (1952)).

140. 1919 Mo. Laws 778; Galliher, et al., supra note 41, at 565, n.190 (citing 1919 Mo. Laws

778).

141. Calls for reinstatement of the death penalty intensified as a result of highly publicized

killings, including of law enforcement officers. The measure reinstating capital punishment was

passed during a special legislative session that Governor Fredrick Gardner called in July 1919 to allow

the state legislature to consider ratification of the Nineteenth Amendment to the United States

Constitution. Guillot, supra note 139, at 129–31.

142. ICPSR: The Espy File, supra note 29, at Missouri V16(29), V14; DEATH PENALTY INFO.

CTR., supra note 96, at 194.

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1921,

143

each as punishment for a murder the condemned men jointly

committed in November 1920,

144

i.e., after the 1919 replacement

legislation became effective. In 1918 the Missouri Supreme Court

considered and rejected the argument made by Ora Lewis, who had been

convicted of a murder committed in 1916 and sentenced to death on

January 10, 1917, that his death sentence could not be carried out because

the state’s death penalty had been abolished by the 1917 repeal

legislation.

145

The Court relied on state law limiting post-offense

ameliorative changes in sentencing laws to persons who had not yet been

sentenced.

146

Lewis, however, would not be executed. The governor commuted his

death sentence, stating that to allow the execution to be carried out

following enactment of the repeal legislation “would be against ‘the will

of the people as expressed in the new law.’”

147

It thus appears that no one

under sentence of death in Missouri when the 1917 repeal legislation

became effective was executed.

17. New Hampshire

Legislative repeal May 30, 2019

No post-repeal executions; one offender remains under death

sentence

New Hampshire abolished capital punishment through legislation

that took effect May 30, 2019.

148

The repeal applied prospectively, “to

persons convicted of capital murder on or after the effective date of this

143. ICPSR: The Espy File, supra note 29, at Missouri V16(29), V14; DEATH PENALTY INFO.

CTR., supra note 96, at 194–95 (execution of Charles Jacoy, Aug. 12, 1921; execution of John Carroll,

Sept. 12, 1921). But see HARRIET C. FRAZIER, DEATH SENTENCES IN MISSOURI, 1803-2005: A

HISTORY AND COMPREHENSIVE REGISTRY OF LEGAL EXECUTIONS, PARDONS, AND COMMUTATIONS

208 (2006) (indicating that an execution was carried out in 1920).

144. State v. Carroll, 232 S.W. 699 (Mo. 1921); DEATH PENALTY ARCHIVE, Documentation for

the Execution of John

Carroll, Charles Jacoy, 1921-09-12, https://archives.albany.edu/concern/daos/ft849231f?locale=en#

?c=0&m=0&s=0&cv=0&xywh=134%2C110%2C5508%2C3541 [https://perma.cc/6ULJ-4Z9S].

145. State v. Lewis, 201 S.W. 80 (Mo. 1918).

146. Id. at 85–86.

147. FRAZIER, supra note 143, at 170.

148. N.H. REV. STAT. ANN. § 630:1, III (2019). In enacting the statute, the state legislature

overrode Governor Chris Sununu’s veto. See Kate Taylor & Richard J. Oppel, Jr., New Hampshire,

With a Death Row of 1, Ends Capital Punishment, N.Y. TIMES (May 30, 2019),

https://www.nytimes.com/2019/04/11/us/death-penalty-new-hampshire.html

[https://perma.cc/C6QC-8K5W]; N.H. 21st State to Abolish Death Penalty!, N.H. COAL. TO ABOLISH

THE DEATH PENALTY (May 31, 2019), http://nodeathpenaltynh.org/nh-is-21st-state-to-abolish-the-

death-penalty/ [https://perma.cc/G2V9-HGBX].

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act.”

149

A single offender, Michael Addison, was under sentence of death

when the repeal legislation took effect.

150

Addison’s conviction

151

and

death sentence

152

were upheld on appeal by the New Hampshire Supreme

Court. Further litigation remains before judicial review in his case is

exhausted.

153

New Hampshire last carried out an execution in 1939.

154

18. New Jersey

Legislative repeal Dec. 17, 2007

No executions following repeal

New Jersey abolished capital punishment through legislation enacted

December 17, 2007.

155

The legislation provided that offenders then under

149. H.R. 455 166th Session of the General Court (N.H. 2019). The entire bill, H.B. 455,

provided:

Be it Enacted by the Senate and House of Representatives in General Court convened:

42:1 Homicide; Capital Murder. Amend RSA 630:1, III to read as follows:

<< NH ST § 630:1 >>

III. A person convicted of a capital murder [] shall be sentenced to imprisonment for life

without the possibility for parole.

42:2 Applicability. Section 1 of this act shall apply to persons convicted of capital murder

on or after the effective date of this act.

42:3 Effective Date. This act shall take effect upon its passage.

(Approved: Enacted in accordance with Article II, Part 44, of the N.H. Constitution

without signature of the Governor, May 30, 2019).

150. NAACP LEGAL DEF. AND EDUC. FUND, INC., Death Row U.S.A., at 55 (Summer 2019),

https://www.naacpldf.org/wp-content/uploads/DRUSASummer2019-1.pdf [https://perma.cc/225Y-

DSPB]; NAACP LEGAL DEF. AND EDUC. FUND, INC., Death Row U.S.A., at 55 (Spring 2019),

https://www.naacpldf.org/wp-content/uploads/DRUSASpring2019.pdf [https://perma.cc/KE99-

BY3K]. Addison was convicted and sentenced to death for the murder of Manchester, New

Hampshire police officer Michael Briggs. See Evan Allen, As N.H. Considers Repealing the Death

Penalty, the One Man on Death Row Looms Large, BOS. GLOBE (May 17, 2019, 1:42 PM),

https://www.bostonglobe.com/metro/2019/05/17/considers-repealing-death-penalty-lone-man-

death-row-looms-large/00KkWfffEcsmba4Lmq2cRJ/story.html [https://perma.cc/AUQ7-CCNK].

151. State v. Addison, 87 A.3d 1 (N.H. 2013).

152. State v. Addison, 116 A.3d 551 (N.H. 2015), cert. denied 136 S. Ct. 812 (2016).

153. Personal communication, James Acker, with attorney Jonathan Cohen, Concord, N.H.,

February 21, 2020. See also Ethan DeWitt, Capital Beat: After Death Penalty Repeal, What’s Next

for Michael Addison, CONCORD MONITOR (June 1, 2019, 10:44 PM),

https://www.concordmonitor.com/Capital-Beat-After-death-penalty-repeal-what-s-next-for -

Michael-Addison-25934408 [https://perma.cc/4VVU-2655].

154. ICPSR: The Espy File, supra note 29, at New Hampshire V16(33), V14; DEATH PENALTY

INFO. CTR., supra note 93, at 236 (execution of Howard Long, July 14, 1939); DEATH PENALTY IN FO.

CTR., Execution Database (New Hampshire), https://deathpenaltyinfo.org/executions/execution -

database?filters%5Bstate%5D=New%20Hampshire [https://perma.cc/X345-EKBN] (no executions

1977 or later).

155. An Act to Eliminate the Death Penalty and Allow for Life Imprisonment Without

Eligibility for Parole, Pub. L. No. 2007, c. 204 5 1 (codified at N.J. Stat. Ann. § 2C:11-3 (West Supp.

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sentence of death would have their sentences converted to life

imprisonment without the possibility of parole upon filing a petition for

resentencing within 60 days.

156

That provision was rendered moot when

Governor Jon Corzine commuted the death sentences of the eight men on

New Jersey’s death row the day before the repeal legislation took effect.

157

No executions occurred following the repeal. The last execution in New

Jersey took place in 1963.

158

2008)). See generally Aaron Scherzer, The Abolition of the Death Penalty in New Jersey and Its

Impact on Our Nation’s ‘Evolving Standards of Decency’, 15 MICH. J. OF RACE & L. 223 (2009).

156. N.J. STAT. ANN. § 2C:11-3b (West 2017). (“ An inmate sentenced to death prior to the date

of the enactment [Dec. 17, 2007] of this act, upon motion to the sentencing court and waiver of any

further appeals related to sentencing, shall be resentenced to a term of life imprisonment during which

the defendant shall not be eligible for parole. Such sentence shall be served in a maximum security

prison. Any such motion to the sentencing court shall be made within 60 days of the enactment of this

act. If the motion is not made within 60 days the inmate shall remain under the sentence of death

previously imposed by the sentencing court.”).

157. List of Clemencies Since 1976, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/facts-and-research/clem ency/list-of-clemencies -since-1976

[https://perma.cc/CB8C-9QBY] (Governor Corzine commuted the death sentences of Marko Bey,

David Cooper, Ambrose Harris, Nathaniel Harvey, Sean Kenney, John Martini, Jessie

Timmendequas, and Brian Wakefield on Dec. 16, 2007); Governor Corzine’s Remarks on Eliminating

Death Penalty in New Jersey, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/stories/governor-corzines-remarks-on-eliminating-death-penalty-in-

new-jersey [https://perma.cc/X6AU-SASQ]; Jeremy S. Peters, Corzine Signs Bill Ending Executions,

Then Commutes Sentences of Eight, N.Y. TIMES (Dec. 18, 2007),

https://www.nytimes.com/2007/12/18/nyregion/18death.html [https://perma.cc/J9XA-VQBQ].

Governor Corzine’s remarks in explanation of his decision to commute the offenders’ death sentences

were, in part, as follows:

Now, make no mistake: by this action, society is not forgiving these heinous crimes or acts

that have caused immeasurable pain to the families and brought fear to society. The

perpetrators of these actions deserve absolutely no sympathy and the criminals deserve the

strictest punishment that can be imposed without imposing death. That punishment is life

in prison without parole. . . . Let me repeat: this bill does not forgive or in any way condone

the unfathomable acts carried out by the eight men now on New Jersey’s death row. They

will spend the rest of their lives in jail. . . . This commutation action provides legal

certainty that these individuals will never again walk free in our society. These

commutations, along with today’s bill signing, brings to a close in New Jersey the

protracted moral and practical debate on the death penalty. Our collective decision is one

for which we can be proud.

Governor Corzine’s Remarks on Eliminating Death Penalty in New Jersey, DEATH PENALTY INFO.

CTR., (original paragraph indentations omitted) (Dec. 17, 2007),

https://deathpenaltyinfo.org/stories/governor-corzines-remarks-on-eliminating-death-penalty-in-

new-jersey [https://perma.cc/3ZMG-67CD].

158. ICPSR: The Espy File, supra note 29, at New Jersey V16(34), V14; DEATH PENALTY INFO.

CTR., supra note 93, at 247 (execution of Ralph Hudson, January 22, 1963); DEATH PENALTY INFO.

CTR., Execution Database (New Jersey), https://deathpenaltyinfo.org/executions/execution-

database?filters%5Bstate%5D=New%20Jersey [https://perma.cc/UH5M-U4FF] (no executions in

New Jersey 1977 or later).

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19. New Mexico

Legislative narrowing March 31, 1969

Full reinstatement March 30, 1979

No executions between narrowing and reinstatement

Legislative repeal July 1, 2009

No post-repeal executions

Judicial invalidation of remaining death sentences June 28, 2019

In 1969, New Mexico’s Legislature abolished the death penalty for

all crimes except for the murder of law enforcement officers and for those

who commit “a second capital felony after time for due deliberation

following commission of a capital felony.”

159

The law expressly revoked

all then existing death sentences, transforming the punishment to life

imprisonment.

160

New Mexico had last performed an execution nine years

earlier, in 1960.

161

In 1975, New Mexico enacted a mandatory death-sentencing

scheme, which the New Mexico Supreme Court invalidated in light of

Woodson v. North Carolina.

162

In 1979, New Mexico enacted a new

statute, reinstating the death penalty.

163

New Mexico repealed this law

effective July 1, 2009.

164

The repeal applied prospectively, “to crimes

committed on or after July 1, 2009.”

165

Two offenders were then under

sentence of death, Timothy Allen and Robert Fry.

166

They remained the

only inhabitants of New Mexico’s death row when the New Mexico

Supreme Court ruled in June 2019 that their death sentences were invalid

because they were disproportionate to the sentences imposed in

159. 1969 N.M. LAWS 415.

160. Id.

161. DEATH PENALTY INFO. CTR., supra note 96, at 249.

162. State v. Rondeau, 553 P.2d 688, 692 (N.M. 1976) (applying Woodson v. North Carolina,

428 U.S. 280 (1976) to invalidate N.M. STAT. ANN. § 40A-29-2 (West 1975)).

163. 1979 N.M. Laws 522.

164. N.M. STAT. ANN. § 31-18-14 (West 2009) (establishing life imprisonment without the

possibility of parole as punishment for capital felonies, and repealing N.M. STAT. ANN § 31-18-14.1

(West 1978) (authorizing death penalty for capital felonies). See generally Death Penalty Repealed

in New Mexico, N.Y. TIMES (Mar. 18, 2009), https://www.nytimes.com/

2009/03/19/us/19execute.html [https://perma.cc/2DW7-7MSH].

165. H.B. No. 285 § 6 (N.M. 2009). See generally Ch. 11, H.B. No. 285, New Mexico 2009

Session Laws, “An Act Relating to Capital Felony Sentencing, Abolishing the Death Penalty,

Providing for Life Imprisonment Without Possibility of Release or Parole.” See also Fry v. Lopez,

447 P.3d 1086, 1091, n.1 (N.M. 2019).

166. See NAACP LEGAL DEF. AND EDUC. FUND, INC., Death Row U.S.A., at 51, 53 (Winter

2007), https://www.naacpldf.org/wp-content/uploads/DRUSA_Winter_2007.pdf [https://perma.cc/

C8NP-P6Q5].

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comparable cases.

167

No executions were carried out in New Mexico

following the 2009 repeal of the state’s death-penalty law.

168

20. New York

Legislative narrowing June 1, 1965

No subsequent executions

Judicial invalidation June 7, 1973

Legislative enactment March 7, 1995

Judicial invalidation June 24, 2004; Oct. 23, 2007

No subsequent executions

The last executions were carried out in New York in 1963.

169

Two

years later, on June 1, 1965, the state’s death-penalty law was significantly

narrowed, authorizing punishment by death only for the deliberate and

premeditated murder of a peace officer or for murder committed by a life

167. Fry v. Lopez, 447 P.3d 1086, 1092 (N.M. 2019) (“ Guided by our recognition that our

Legislature intended for comparative proportionality review to protect against the arbitrary imposition

of the death penalty, we conclude that there is no meaningful basis for distinguishing Fry and Allen

from the many similar cases in which the death penalty was not imposed. Because Petitioners’ death

sentences are statutorily disproportionate to the penalties imposed in similar cases, we remand each

case to the district court to impose a sentence of life imprisonment.”).

168. The last execution in New Mexico occurred November 6, 2001, with the lethal injection of

Terry Clark. Execution Database (New Mexico), DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=New%20M exico

[https://perma.cc/8GT7-FR6M]. See also Fry v. Lopez, 447 P.3d 1186, 1100 (N.M. 2019) (“ Although

New Mexico has authorized the use of capital punishment since before statehood, the death penalty

has been infrequently imposed. Only one person has been executed since the enactment of the pre-

repeal capital sentencing scheme in 1979. That person was Terry Clark, whose execution took place

on November 6, 2001. Before Clark, New Mexico had not executed anyone since David Cooper

Nelson in 1960. Only fifteen people, including Fry and Allen, have been sentenced to death since the

enactment of the pre-repeal capital sentencing scheme in 1979. With the exception of Clark, none of

these death sentences resulted in an execution.”) (footnote and citations omitted).

169. Frederick Charles Wood was executed March 21, 1963, for a murder committed in 1960.

Eddie Lee Mays was executed August 15, 1963, for a 1961 murder. DANIEL ALLEN HEARN, LEGAL

EXECUTIONS IN NEW YORK STATE, 1639-1963 280–82 (McFarland & Co., Jefferson, N.C. 1997). See

also ICPSR: The Espy File, supra note 29, at New York V16(36), V14; DEATH PENALTY INFO. CTR.,

supra note 96, at 286 (Frederick Woods, executed March 21, 1963; listing execution of Eddie Lee

Mays June 15, 1963). The correct date of Mays’ execution is August 15, 1963, as noted in DANIEL

ALLEN HEARN, LEGAL EXECUTIONS IN NEW YORK STATE, 1639-1963 280–82 (McFarland & Co.,

Jefferson, N.C. 1997). See The Last Electrocution, N.Y. TIMES (Mar. 7, 1995),

https://www.nytimes.com/1995/03/07/nyregion/the-last-electrocution.html [https://perma.cc/VE5U-

RDCG]. No later executions were carried out in New York after 1977. See Execution Database (New

York), DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/executions/execution-

database?filters%5Bstate%5D=New%20York [https://perma.cc/U3KJ-D254].

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term prisoner.

170

No one would be executed under this or subsequent

legislation. Five individuals whose murders would not qualify as capital

crimes under the narrowing legislation were under sentence of death when

the provisions took effect in 1965. Governor Nelson Rockefeller

announced his decision to commute their death sentences, explaining: “In

view of my action today of approving the bill with respect to capital

punishment, it is also my intention that, without inquiring into the

individual merits of each case, persons now convicted and sentenced to

capital punishment, who are not subject to capital punishment under the

new law, will be granted executive clemency and their sentences

commuted to life imprisonment, when their cases have run their courses

in the courts.”

171

The capital punishment laws that were in effect in New York during

the 1960s were found unconstitutional in the aftermath of the Supreme

Court’s decision in Furman v. Georgia.

172

The initial attempts by the state

legislature to enact capital sentencing provisions that complied with

Furman and later Supreme Court decisions also were invalidated by the

New York Court of Appeals.

173

Multiple bills passed by the Legislature

to implement the death penalty were vetoed by New York governors

beginning in the late 1970s into the 1990s.

174

The state remained without

viable death-penalty legislation until September 1, 1995, when a bill

signed by Governor George Pataki became effective.

175

No offenders

sentenced to death under that statute were executed. All had their

170. N.Y. PENAL LAW § 1045 (McKinney 1965). Prior legislation authorized capital

punishment for the much broader category of first-degree murder. See James R. Acker, New York’s

Proposed Death Penalty Legislation: Constitutional and Policy Perspectives, 54 ALBANY L. REV.

515, 520–25 (1990). The statute underwent minor revisions in 1967. Id. at 527. An additional category

of murder, the killing of an employee of a jail or correctional institution, was made death-penalt y

eligible in 1971. Id. at 528 (citing Act of July 6, 1971, ch. 1205, sec. 1, § 125.30(1)(a)(ii), 1971 N.Y.

Laws 3122–23).

171. NEW YORK STATE, PUBLIC PAPERS OF NELSON A. ROCKEFELLER 1965, 829 (1965), quoted

in Acker, supra note 170, at 526 n.59. The five individuals whose death sentences were commuted

were David Coleman, Manfredo Correa, Edward LeBelle, Anthony Portelli, and Jerome Rosenberg.

Id., at 526 n.60.

172. Furman v. Georgia, 408 U.S. 238 (1972). Pursuant to Furman, the New York Court of

Appeals invalidated the state’s death penalty provisions in People v. Fitzpatrick, 399 N.E.2d 139

(N.Y. 1973), cert. denied, 414 U.S. 1033 (1973).

173. See People v. Davis, 371 N.E.2d 456 (N.Y. 1977), cert. denied, 435 U.S. 998 (1978), cert.

denied, 438 U.S. 914 (1978) (People v. James); People v. Smith, 468 N.E.2d 879 (N.Y. 1984), cert.

denied, 469 U.S. 1277 (1985). See Acker, supra note 170, at 532–33.

174. Acker, supra note 170, at 535–36; James R. Acker, When the Cheering Stopped: An

Overview and Analysis of New York’s Death Penalty Legislation, 17 PACE L. REV. 41, 43 (1996).

175. N.Y. CRIM. PROC. LAW § 400.27 (McKinney 1995). See generally Acker, When the

Cheering Stopped: An Overview and Analysis of New York’s Death Penalty Legislation, supra note

174.

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sentences invalidated by New York Court of Appeals decisions in 2004

176

and 2007,

177

which concluded that the law’s sentencing provisions

violated the state constitution. The New York Legislature did not act to

correct the constitutional infirmities. New York consequently is without

valid capital punishment legislation and no one in the state is under

sentence of death or subject to execution.

21. North Dakota

Legislative repeal for all crimes except murder by life prisoner and

treason: March 19, 1915

No post-repeal executions

Legislative repeal for remaining crimes: July 1, 1975

No post-repeal executions

The death penalty was abolished in North Dakota through legislation

which took effect March 19, 1915, for all crimes except treason and

murder committed by a prisoner serving a life term sentence.

178

The

Legislature was aware when it enacted the repeal legislation that a

convicted murderer, Joe Milo, was under sentence of death and was

scheduled to be executed in August.

179

The repeal legislation was drafted

to have retroactive application and it was enacted with an “emergency

clause” that made it effective immediately.

180

The statute provided:

“Every person who has been or may be hereafter convicted of murder in

the first degree shall be punished by confinement at hard labor in the State

Penitentiary for life.”

181

Milo was spared execution as a result of the

legislation.

182

The vestigial provisions of the state law that authorized

capital punishment for treason and murder committed by a life term

prisoner were never used and were formally repealed when North Dakota

enacted sweeping changes to its criminal code which took effect in

176. People v. LaValle, 817 N.E.2d 341, 366 (N.Y. 2004).

177. People v. Taylor, 878 N.E.2d 969, 988 (N.Y. 2007).

178. 1915 N.D. Laws 76; Galliher, et al., supra note 41, at 556–57 (citing N.D. House Bill 33);

Justice Dale V. Sandstrom, Four Murder Trials Since the Last Execution in 1905, STATE OF N.D.

COURTS, https://www.ndcourts.gov/about-us/history/four-capital-murder-trials-since-the-last-

execution-in-1905 [https://perma.cc/TGZ5-5JRD].

179. Sandstrom, supra note 178.

180. Sandstrom, supra note 178; Galliher, et al., supra note 41, at 556.

181. 1915 N.D. Laws 76.

182. Sandstrom, supra note 178.

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1975.

183

The last execution in North Dakota occurred when John Rooney

was hanged for murder on October 17, 1905.

184

22. Oregon

Repeal Dec. 3, 1914 through voter initiative and state constitution

amendment

No post-repeal executions through reinstatement

Reinstatement May 21, 1920 through special election and approval

of state constitution amendment

Repeal Nov. 30, 1964 through voter initiative and state constitution

amendment

No post-repeal executions through reinstatement

Reinstatement Dec. 7, 1978 through voter initiative

No post-reinstatement executions through judicial invalidation

Judicial invalidation January 20, 1981

No post-invalidation executions through reinstatement

Reinstatement through 1984 voter initiative

First post-reinstatement execution Sept. 6, 1996

As a result of a voter initiative which passed in November 1914, an

amendment to the Oregon Constitution took effect December 3, 1914,

which provided: “The death penalty shall not be inflicted upon any person

under the laws of Oregon. The maximum punishment which may be

inflicted shall be life imprisonment.”

185

The death penalty was reinstated

by Oregon voters at a special election which approved an amendment to

183. Sandstrom, supra note 178 (indicating that the provisions were enacted in 1973 and became

effective July 1, 1975); Thompson v. Oklahoma, 487 U.S. 815, 826 n. 25 (1988) (plurality opinion)

(citing N.D. Cent. Code, ch. 12-50 (1985)), “The Death Sentence and Execution Thereof,” repealed

by 1973 N.D. Laws, ch. 116, § 41, effective July 1, 1975); GALLIHER ET AL., supra note 36, at 100;

Frank Vyzralek, Murder and death by hanging: Capital crimes and criminals executed in northern

Dakota Territory and North Dakota, 1885-1905, STATE OF N.D. COURTS,

https://www.ndcourts.gov/about-us/history/murder-and-death-by-hanging [https://perma.cc/B98V-

NBS7].

184. ICPSR: The Espy File, supra note 29, at North Dakota V16(38), V14; DPIC, Executions

in the U.S., supra note 36, at 235; Execution Database (North Dakota), DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=North%20Dakota

[https://perma.cc/S42D-VD9A ] (ceasing executions after 1977). See generally Rooney v. North

Dakota, 196 U.S. 319 (1905) (upholding death sentence against ex post facto challenge based on

change in location of execution from county jail to state penitentiary, with additional passage of time

between imposition of sentence and execution).

185. See WILLIAM R. LONG, A TORTURED HISTORY: THE STORY OF CAPITAL PUNISHMENT IN

OREGON 31–33 (2001). The provision was incorporated into the OR. CONST. as Article I, § 36. Id. at

31.

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the state constitution that became effective May 21, 1920. The amendment

provided: “The penalty for murder in the first degree shall be death, except

when the trial jury in its verdict recommended life imprisonment, in which

case the penalty shall be life imprisonment.”

186

Oregon retained the death

penalty until November 30, 1964, the effective date of another amendment

to the state constitution that was approved by the voters. That amendment

repealed the 1920 constitutional provision and thus allowed legislation to

take effect that removed statutory authorization for the death penalty and

fixed the maximum punishment for murder at life imprisonment.

187

Oregon remained without capital punishment legislation until December

7, 1978, when the death penalty was reinstated through a voter

initiative.

188

In 1981, in State v. Quinn,

189

the Oregon Supreme Court

ruled that the capital sentencing provisions violated the right to trial by

jury and invalidated the statute. Three years later, in 1984, voters passed

ballot measures that approved a state constitution amendment specifying

capital punishment as the penalty for aggravated murder,

190

and that

amended the capital punishment statute to provide for jury sentencing and

thus cure the infirmity identified by the Oregon Supreme Court in State v.

Quinn.

191

Throughout Oregon’s back-and-forth history with the death

penalty,

192

no one who was under sentence of death at the time a capital

punishment law was repealed or invalidated by judicial decision was

186. Id. at 35 (quoting OR. CONST. art. I, § 37. “Article I, section 38, of the state constitution . . .

restore[d] the sections implementing the death penalty from Lord’s Oregon Laws whose effect had

been nullified by the vote to abolish capital punishment in 1914.”). Id. See also Hugo A. Bedau,

Capital Punishment in Oregon, 1903-64, 45 OR. L. REV. 1, 1 n.2 (1965). See generally Robert H.

Dann, Capital Punishment in Oregon, 284 ANNALS OF THE AM. ACAD. OF POL. & SOC. SCI. 110

(1952).

187. See Bedau, supra note 186, at 1 n.4; LONG, supra note 185, at 53.

188. LONG, supra note 185, at 60 (citing OR. REV. STAT. §§ 163.115 (1), (3) (1978)).

189. State v. Quinn, 623 P.2d 630 (1981), overruled on other grounds, State v. Hall, 115 P.3d

908 (Or. 2005).

190. OR. CONST. art. I § 40 (“Notwithstanding sections 15 and 16 of this Article, the penalty for

aggravated murder as defined by law shall be death upon unanimous affirmative jury findings as

provided by law and otherwise shall be life imprisonment with minimum sentence as provided by

law.”).

191. Oregon’s 1984 Death-Penalty Statute, OR. REV. STAT. §163.150 (2011). See Aliza B.

Kaplan, Oregon’s Death Penalty: The Practical Reality, 17 LEWIS & CLARK L. REV. 1, 11–12 (2013).

See generally, Oregon Death Penalty, OR. DEPT. OF CORR.,

https://www.oregon.gov/doc/about/Pages/oregon-death-penalty.aspx [https://perma.cc/6T44-BCSJ ].

192. LONG, supra note 185; See also Paul J. De Muniz & Lee N. Gilgan, Sentenced to Death

for Life, Part II (2016), https://oadp.org/news/sentenced-to-death-for-life-part -2

[https://perma.cc/PK39-S5NP].

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executed.

193

The last executions prior to the 1914 state constitutional ban

on the death penalty occurred in 1913.

194

Governor Oswald West

commuted the death sentences of John Arthur Pender and Lloyd Wilkins,

the two men who were on death row when the voters approved the 1914

measure, to life imprisonment.

195

The first execution following

reinstatement of the death penalty in May 1920 occurred November 5,

1920, when Emmett Bancroft was hanged for a murder committed in July

of that year.

196

Governor Mark Hatfield commuted the death sentences of

the three individuals who were on Oregon’s death row in November 1964

when voters rescinded the death penalty and reinstated life imprisonment

as punishment for murder.

197

The last person executed before that action

was Leroy McGauhey, who died in the gas chamber on August 20,

1962.

198

No later executions would take place in the state until 1996, when

Douglas Franklin Wright died by lethal injection.

199

The reach of Oregon’s death penalty law was significantly narrowed

with the enactment of Senate Bill 1013, which became effective

September 29, 2019.

200

The bill’s provisions “apply to crimes committed

before, on or after the effective date of this 2019 Act that are the subject

of sentencing proceedings occurring on or after the effective date of this

193. See Bedau, supra note 186, at 6 (“Oregon has twice abolished the death penalty, when a

total of five persons were under sentence of death (two in 1914, three in 1964), all of whose sentences

were promptly commuted . . . .”).

194. ICPSR: The Espy File, supra note 29, at Oregon V16(41), V14; DPIC, Executions in the

U.S., supra note 36, at 306 (Charles Humphrey and George Humphrey were executed March 22,

1913; Frank Seymour and Mike Spanos were executed October 31, 1913; and Oswald Hansel was

executed November 17, 1913).

195. LONG, supra note 185, at 32–33; Bedau, supra note 186, at 6.

196. ICPSR: The Espy File, supra note 29, at Oregon. V16(41), V14; DPIC, Executions in the

U.S., supra note 36, at 306; Bedau, supra note 186, at 20 n.78 (noting that Bancroft, who was

unrepresented by counsel and pled guilty and whose case was not appealed, was executed in 1920);

DEATH PENALTY ARCHIVE, Documentation for the Execution

of Emmett Bancroft, 1920-11-05, https://archives.albany.edu/concern/daos/kd17d714b?locale=en#?

c=0&m=0&s=0&cv=0&xywh=-586%2C107%2C4619%2C2969 [https://perma.cc/QHL4-U3Q2]

(murder by Emmett Bancroft committed July 25, 1920).

197. LONG, supra note 185, at 53 n.40 (“The three who had their sentences commuted to life

imprisonment were Jeannace June Freeman, Larry W. Shipley and Herbert F. Mitchell.”); Bedau,

supra note 186, at 6; Oregon Death Penalty, OR. DEPT. OF CORR., supra note 191.

198. ICPSR: The Espy File, supra note 29, at Oregon V16(41), V14; DPIC, Executions in the

U.S., supra note 36, at 307; LONG, supra note 185, at 50–51.

199. ICPSR: The Espy File, supra note 29, at Oregon V16(41), V14; DPIC, Executions in the

U.S., supra note 36, at 307; Execution Database (Oregon), DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Oregon

[https://perma.cc/4XMP-37P3 ] (execution of Douglas Wright, Sept. 6, 1996); Oregon Death Penalty,

supra note 191.

200. Or. S.B. 1013 (Ch. 635, 2019 Laws).

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2019 Act.”

201

Under prior law, the offense of aggravated murder, made

punishable by death, was defined as an intentional criminal homicide

accompanied by proof of one or more of twelve aggravating factors,

202

some of which included subparts, such as specifying multiple victims that

defined the murder as being death-penalty eligible.

203

The new law

defined aggravated murder more restrictively, by including only five

aggravating factors and requiring proof that the killing was “premeditated

and committed intentionally” for all but one of those aggravating

factors.

204

In September 2019, when those statutory changes became

201. Id. at § 30.

202. OR. REV. STAT. § 163.115 (2011).

203. OR. REV. STAT. § 163.095 (2011):

(1)(a) The defendant committed the murder pursuant to an agreement that the defendant

receive money or other thing of value for committing the murder.

(b) The defendant solicited another to commit the murder and paid or agreed to pay the

person money or other thing of value for committing the murder.

jurisdiction of any homicide, the elements of which constitute the crime of murder as

defined in ORS 163.115 or manslaughter in the first degree as defined in ORS 163.118.

(d) There was more than one murder victim in the same criminal episode as defined

in ORS 131.505.

(e) The homicide occurred in the course of or as a result of intentional maiming or torture

of the victim.

(f) The victim of the intentional homicide was a person under the age of 14 years.

(2)(a) The victim was one of the following and the murder was related to the performance

of the victim’s official duties in the justice system:

(A) A police officer as defined in ORS 181A.355;

(B) A correctional, parole and probation officer or other person charged with the duty of

custody, control or supervision of convicted persons;

(D) A judicial officer as defined in ORS 1.210 ;

(E) A juror or witness in a criminal proceeding;

(F) An employee or officer of a court of justice; or

(G) A member of the State Board of Parole and Post-Prison Supervision;

(b) The defendant was confined in a state, county or municipal penal or correctional

facility or was otherwise in custody when the murder occurred.

164.055.

(d) Notwithstanding ORS 163.115 (1)(b) , the defendant personally and intentionally

committed the homicide under the circumstances set forth in ORS 163.115 (1)(b) .

(e) The murder was committed in an effort to conceal the commission of a crime, or to

conceal the identity of the perpetrator of a crime.

(f) The murder was committed after the defendant had escaped from a state, county or

municipal penal or correctional facility and before the defendant had been returned to the

custody of the facility.

204. OR. REV. STAT. § 163.095 (2020). As used in Or. Rev Stat. § 163.095 (2020) and this

section, “aggravated murder” means:

(1) Criminal homicide of two or more persons that is premeditated and committed

intentionally and with the intent to:

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effective, 31 offenders were on Oregon’s death row.

205

It currently is

unclear whether or how many individuals under sentence of death at the

time of the new sentencing legislation’s enactment will be affected by the

changes.

23. Rhode Island

Legislative repeal Feb. 11, 1852

No post-repeal executions

Legislative enactment of death penalty for murder by life term

prisoner, 1872

Legislation mandating death penalty for murder by prisoner, 1973

Judicial invalidation of mandatory death penalty for prisoner, 1979

Legislative repeal of mandatory death penalty for prisoner who kills

another prisoner, 1984

The last execution in Rhode Island occurred when John Gordon was

hanged on February 14, 1845.

206

Controversy surrounding Gordon’s

(a) Intimidate, injure or coerce a civilian population;

(b) Influence the policy of a government by intimidation or coercion; or

kidnapping or aircraft piracy; or

(2) Murder in the second degree, as defined in ORS 163.115, that is:

(a)(A) Committed while the defendant was confined in a state, county or municipal penal

or correctional facility or was otherwise in custody; and

(B) Committed after the defendant was previously convicted in any jurisdiction of any

homicide, the elements of which constitute the crime of aggravated murder under this

section or murder in the first degree under section 3 of this 2019 Act;

(b) Premeditated and committed intentionally against a person under 14 years of age;

801.395, and related to the performance of the victim’s official duties; or

(d) Premeditated, committed intentionally against a correctional, parole and probation

officer or other person charged with the duty of custody, control or supervision of

convicted persons, and related to the performance of the victim’s official duties.

205. Death Row U.S.A. Fall 2019, NAACP LEGAL DEF. & EDUC. FUND, INC. p. 55 (Oct. 1,

2019), https://www.naacpldf.org/wp-content/uploads/DRUSAFall2019.pdf [https://perma.cc/3L92-

FT24 ].

206. ICPSR: The Espy File, supra note 29, at Rhode Island V16(44), V14; DPIC, Executions in

the U.S., supra note 36, at 339 (indicating execution occurred February 13, 1845). Other authorities

identify February 14, 1845 as the date of the execution. Philip E. Mackey, ‘The Result May Be

Glorious’—Anti-Gallows Movement in Rhode Island 1836-1852, 33 R. I. HIST. 19, 23 (Feb. 1974);

The Murder of Amasa Sprague, and the Irishman Persecuted for the Crime, NEW ENGLAND HIST.

SOC’Y, https://www.newenglandhistoricalsociety.com/murder-amasa-sprague-irishman-pers ecuted -

crime/ [https://perma.cc/8DCZ-A27R]; Michael S. Pezzullo, Book Review, The Hanging and

Redemption of John Gordon: The True Story of Rhode Island’s Last Execution, 62 R. I. BAR J. 33, 35

(May/June 2014), https://www.ribar.com/UserFiles/File/May-June_2014_Jrnl.pdf

[https://perma.cc/M4H5-HA56]. See Execution Database, Rhode Island, DEATH PENALTY INFO.

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execution helped stimulate a movement to eliminate capital punishment

in the state.

207

The movement succeeded when Rhode Island enacted

legislation abolishing the death penalty on February 11, 1852.

208

Twenty

years later, in 1872, a statute was enacted providing for the death penalty

for murder committed by a life term prisoner.

209

That statute failed to

comply with the Supreme Court’s decision a century later in Furman v.

Georgia,

210

and in 1973 Rhode Island enacted legislation providing for

mandatory capital punishment for murder committed by any prisoner.

211

No one was executed under either the 1872 or the 1973 provision. The

Rhode Island Supreme Court declared the mandatory death penalty law

unconstitutional in 1979,

212

and subsequent legislation removed the

capital punishment provision and provided life imprisonment as the

maximum penalty for murder.

213

24. South Dakota

Legislative repeal February 15, 1915

No post-repeal executions through reinstatement

Legislative reinstatement, January 27, 1939

First post-reinstatement execution April 8, 1947

South Dakota authorized capital punishment until February 15, 1915,

when legislation took effect repealing the state’s death penalty law.

214

The

last execution prior to the enactment of the repeal legislation occurred in

CTR., https://deathpenaltyinfo.org/executions/execution-

database?filters%5Bstate%5D=Rhode%20Island [https://perma.cc/6VKT-WN2J ] (indicating no

executions occurred in Rhode Island 1977 or later).

207. See PAUL F. CARANCI, THE HANGING AND REDEMPTION OF JOHN GORDON: THE TRUE

STORY OF RHODE ISLAND’S LAST EXECUTION (2013); Patrick T. Conley, Death Knell for the Death

Penalty: The Gordon Murder Trial and Rhode Island’s Abolition of Capital Punishment, 34 R. I. BAR

J. 1 (1986); Mackey, supra note 206, at 23–24; GALLIHER ET AL., supra note 36, at 222.

208. 1852 R.I. PUB. LAWS 12; Mackey, supra note 206, at 28 n.2 (citing MS. Journal House Jan.

Session 1852, Acts, Resolves General Assembly (Providence, 1852) 12).

209. Id. at 29; GALLIHER ET AL., supra note 36, at 222. See State v. Cline, 397 A.2d 1309, 1309

(R.I. 1979).

210. Furman v. Georgia, 408 U.S. 238 (1972).

211. R.I. GEN. LAWS § 11-23-2 (1973), cited in State v. Cline, 397 A.2d, at 1310; GALLIHER ET

AL., supra note 36, at 223.

212. State v. Cline, 397 A.2d 1309 (R.I. 1979).

213. R.I. GEN. LAWS § 11-23-2 (1984). See Thompson v. Oklahoma, 487 U.S. 815, 826 n.1

(1988) (plurality opinion), (citing State v. Cline, 387 A.2d 1309 (R.I. 1979) and noting that R.I. GEN.

LAWS § 11-23-2 (Supp. 1987) does not authorize the death penalty for murder).

214. Carol Jennings, State Historical Society Researches Capital Punishment in South Dakota,

https://history.sd.gov/archives/forms/exhibits/capitolpunishment.pdf [https://perma.cc/9XZZ-

VS7L]; 1915 S.D. SESS. LAWS 335; Galliher, et al., supra note 41, at 547–49.

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1913.

215

South Dakota remained without capital punishment until 1939,

when legislation reinstating the death penalty took effect.

216

executions were carried out under this statute until 1947, when George

Sitts died in the electric chair as punishment for a 1946 murder.

217

Six

decades passed until the next state execution, which occurred in 2007

pursuant to South Dakota’s post-Furman death penalty legislation.

218

25. Tennessee

Legislative repeal of death penalty for murder March 27, 1915, with

retention for rape and murder by life term prisoners

No post-repeal executions for murder through reinstatement

Legislative reinstatement of death penalty for murder Jan. 27, 1919

First post-reinstatement execution for murder Sept. 3, 1920

With the exception of a short period in the 1970s following the

Supreme Court’s decision in Furman v. Georgia,

219

Tennessee has never

been without the death penalty.

220

The state did, however, briefly

eliminate capital punishment for murder (other than murder committed by

life term prisoners), while retaining the death penalty for rape, through

215. ICPSR: The Espy File, supra note 29, at South Dakota V16(46), V14; DPIC, Executions

in the U.S., supra note 36, at 359 (execution of Joseph Richman, December 3, 1913); Frequently

Asked Questions, Capital Punishment, S.D. DEPT. OF CORR., https://doc.sd.gov/

about/faq/capitalpunishment.aspx [https://perma.cc/7SRA-QPFW ].

216. 1939 S.D. SESS. LAWS 166; Galliher, et al., supra note 41, at 572 & n.244 (citing 1939 S.D.

CODIFIED LAWS 30).

217. ICPSR: The Espy File, supra note 29, at South Dakota V16(46), V14; DPIC, Executions

in the U.S., supra note 36, at 359 (execution of George Sitts, April 8, 1947); Jennings, supra note

214; Frequently Asked Questions, Capital Punishment, S. D. DEPT. OF CORR.,

https://doc.sd.gov/about/faq/capitalpunishment.aspx [https://perma.cc/ZJ64-U2KV ]; Danielle

Ferguson, A History of Capital Punishment in South Dakota, AP NEWS (Nov. 14, 2019),

https://apnews.com/4fb31a3fb78949ca801691edfbcb786b [https://perma.cc/E9JG-YWQC].

218. Execution Database, South Dakota, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=South%20Dakota

[https://perma.cc/3ENQ-VCZA] (stating Elijah Page was executed July 11, 2007); Frequently Asked

Questions, Capital Punishment, S.D. DEPT. OF CORR., https://doc.sd.gov/

about/faq/capitalpunishment.aspx [https://perma.cc/4HRC-GHJ4 ]. See State v. Page, 709 N.W.2d

739 (S.D. 2006). No executions were carried out in South Dakota after George Sitts’s 1947 execution

until 2007. See ICPSR: The Espy File, supra note 29, at South Dakota V16(46), V14; DPIC,

Executions in the U.S., supra note 36, at 359.

219. Furman v. Georgia, 408 U.S. 238 (1972).

220. See Capital Punishment Chronology, TENN. DEPT. OF CORR.,

https://www.tn.gov/content/dam/tn/correction/documents/chronology.pdf [https://perma.cc/GQ8V-

X76E].

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legislation that became effective March 27, 1915.

221

The law discarding

capital punishment for murder was repealed January 27, 1919,

222

and

thereafter the death penalty was again authorized for that crime. The death

penalty’s retention for rape was apparently motivated by racial

concerns,

223

and the three executions that occurred during the interim

when capital punishment was not available for murder involved Black

defendants who had been convicted of rape.

224

The last execution in

Tennessee prior to the temporary repeal took place May 9, 1913, for a

robbery-murder.

225

The first post-reinstatement execution for murder

occurred September 3, 1920,

226

for a murder committed June 19, 1919,

227

i.e., following enactment of the January 27, 1919 reinstatement

legislation.

26. Vermont

Legislative repeal for most offenses Apr. 15, 1965

No post-repeal executions

Judicial invalidation by Furman v. Georgia (1972)

221. 1915 TENN. PUB. ACTS 181; Galliher, et al., supra note 41, at 558 (citing 1915 TENN. PUB.

ACTS 181).

222. TENN. PUB. ACTS 5; Galliher, et al., supra note 41, at 564 (citing 1919 TENN. PUB. ACTS

5).

223. Galliher, et al., supra note 41, at 556–58; MARGARET VANDIVER, LETHAL PUNISHMENT:

LYNCHINGS AND LEGAL EXECUTIONS IN THE SOUTH 162 (Rutgers U. Press, 2006); STUART BANNER,

THE DEATH PENALTY: AN AMERICAN HISTORY, 221–22 (2002); K. B. Turner & Yolanda Y. Harper,

An Overview of Capital Punishment in Tennessee: Patterns of Legal Executions, 1782-2010, 49 CRIM.

L. BULLETIN (2013); Carol S. Steiker & Jordan M. Steiker, Capital Punishment: A Century of

Discontinuous Debate, 100 J. OF CRIM. L. & CRIMINOLOGY 643, 649–52 (2010).

224. DPIC, Executions in the U.S., supra note 36, at 365 (execution of Julius Morgan, July 13,

1916; execution of Eddie Alsup and J.D. Williams, July 8, 1918); Tennessee Executions, TENN. DEPT.

OF CORR., https://www.tn.gov/correction/statistics-and-information/executions/tennessee-

executions.html [https://perma.cc/JMA2-5VBQ]. But see Galliher, et al., supra note 41, at 564

(“During the year prior to reinstatement, there were four legal executions in the state, three rapists

and one previously convicted murderer who killed a fellow inmate.”). The authors do not provide a

citation in support of this statement, which is inconsistent with the authorities noted above.

225. DPIC, Executions in the U.S., supra note 36, at 365 (execution of Pat Mulloy); see also

ICPSR: The Espy File, supra note 29, at Tennessee V16(47), V14.

226. DPIC, Executions in the U.S., supra note 36, at 366 (execution of Lorenzo Young); see

also ICPSR: The Espy File, supra note 29, at Tennessee V16(47), V14; Tennessee Executions, TENN.

DEPT. OF CORR., https://www.tn.gov/correction/statistics-and-information/executions/tennessee-

executions.html [https://perma.cc/3732-NQTG].

227. See DEATH PENALTY ARCHIVE, Documentation for the execution of Lorenzo Young, 1920-

09-03,

https://archives.albany.edu/concern/daos/j6731b302?locale=en#?c=0&m=0&s=0&cv=0&xywh=-

2075%2C-15%2C7556%2C4857 [https://perma.cc/9VGB-8WH8].

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No legislative reenactment and legislative designation of life

imprisonment as punishment for murder 1987

Vermont has abolished capital punishment and no executions have

occurred in the state in its post-abolition era. The last person executed in

Vermont was Donald Demag, who died in the electric chair December 8,

1954.

228

The last person sentenced to death in Vermont was Lionel Goyet,

following his 1956 conviction for murder.

229

Governor Joe Johnson later

commuted Goyet’s death sentence to life imprisonment.

230

In 1965 the

Vermont Legislature eliminated capital punishment for almost all

offenses.

231

No attempt was made to reinstate capital punishment

following the Supreme Court’s decision in Furman v. Georgia.

232

228. ICPSR: The Espy File, supra note 29, at Vermont V16(50), V14; DPIC, Executions in the

U.S., supra note 36, at 442; Execution Database, Vermont, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Vermont

[https://perma.cc/ATN3-CVT8] (noting no executions 1977 or later).

229. See State v. Goyet, 132 A.2d 623 (Vt. 1957); Wilson Ring, 50 Years Later, Vt. Revisits

Executions: Defining 1955 Case Shadows New Trial, BOS. GLOBE (May 1, 2005),

http://archive.boston.com/news/local/massachusetts/articles/2005/05/01/50_years_later_vt_revisits_

executions/?page=full [https://perma.cc/2E27-4UEY]. A 1962 first-degree murder trial, which

entailed a possible capital sentence, resulted in a conviction for second-degree murder. Id.

230. Ring, supra note 229; Gov. Johnson Saves Goyet from Chair, RUTLAND DAILY HERALD p.

1 (Nov. 4, 1957), https://www.newspapers.com/clip/34807819/gov-johnson-saves-goyet-from-chair/

[https://perma.cc/UD89-SW6M]. The governor cited multiple reasons in explanation of his decision

to commute the sentence, including a change in Vermont’s insanity defense that may have affect ed

Goyet’s trial, and also “ the abolishment of the mandatory death penalty by the Legislature, a split

Supreme Court decision on Goyet’s appeal, and a spotless criminal record prior to the murder.” Id.

231. 1965 Vt. Acts & Resolves 28; Charles S. Lanier, The Death Penalty in the Northeast, 10

CRIMINAL JUSTICE POL’Y REV. 7, 18 (1999); Executions 1930-1965, U.S. DEPT. OF JUSTICE, NAT’L

PRISONER STAT. p. 1 (June 1966) (“The twelfth State to abolish the death sentence was Vermont; on

April 15, 1965, Governor Philip H. Hoff signed legislation eliminating the death penalty for the crimes

of murder, kidnapping for ransom, treason, and killing or destruction of vital property by a group

during wartime.”); Michael Mello, Certain Blood for Uncertain Reasons: A Love Letter to the

Vermont Legislature on Not Reinstating Capital Punishment, 32 VT. L. REV. 765, 768 n.21 (2008);

see generally Vermont Death Penalty Information Center Podcast, DEATH PENALTY INFO. CTR.,

https://files.deathpenaltyinfo.org/legacy/podcast/resources/Vermont.pdf [https://perma.cc/7KN6-

2PN9].

232. Furman v. Georgia, 408 U.S. 238 (1972). See Mello, supra note 231, at 768; GALLIHER ET

AL., supra note 36, at 224. See Stanford v. Kentucky, 492 U.S. 361, 384 n.1 (1988) (Brennan, J.,

dissenting) (“ The 15th State to have rejected capital punishment altogether is Vermont. Vermont

repealed a statute that had allowed capital punishment for some murders. See Vt. Stat. Ann., Tit. 13,

§ 2303 (1974 and Supp.1988). The State now provides for the death penalty only for kidnaping with

intent to extort money. § 2403. Insofar as it permits a sentence of death, § 2403 was rendered

unconstitutional by our decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346

(1972), because Vermont’s sentencing scheme does not guide jury discretion, see Vt. Stat. Ann., Tit.

13, §§ 7101-7107 (1974). Vermont’s decision not to amend its only law allowing the death penalty in

light of Furman and its progeny, in combination with its repeal of its statute permitting capital

punishment for murder, leads to the conclusion that the State rejects capital punishment.”).

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Subsequent legislation, enacted in 1987, established life imprisonment

without parole as the maximum punishment for murder.

233

27. Virginia

Legislative repeal July 1, 2021

No post-repeal executions

The first execution on American soil occurred in Virginia’s

Jamestown Colony in 1608 when the colony executed George Kendall,

who was convicted of espionage, by firing squad.

234

Virginia carried out

its last execution on July 6, 2017, lethally injecting William Morva in

punishment for two murders.

235

During the more than four centuries

spanning those events, Virginia executed more persons than any other

jurisdiction in America.

236

The state’s lengthy history of administering

capital punishment came to an end July 1, 2021, when legislation

233. VT. STAT. ANN. tit. 13, § 2303 (a) (1) (West 2020). See Death Penalty Information Center

PODCAST, supra note 231; Mariessa Dobrick, History Space: First Use of VT Electric Chair,

BURLINGTON FREE PRESS (Mar. 17, 2018), https://www.burlingtonfreepress.com/

story/news/2018/03/17/history-space-first -use-vt-electric-chair/33032839/ [https://perma.cc/7PVR-

WAYC]; Lanier, supra note 231.

234. John D. Bessler, Capital Punishment Law and Practices: History, Trends, and

Developments, in AMERICA’S EXPERIMENT WITH CAPITAL PUNISHMENT 19, 19 (James R. Acker,

Robert M. Bohm & Charles S. Lanier, eds., Carolina Academic Press, 3d ed. 2014).

235. Associated Press, Virginia Executes William Morva Using Controversial Three-Drug

Mixture, THE GUARDIAN (July 7, 2017), https://www.theguardian.com/us-news/2017/jul/07/virginia-

executes-william-morva-using-controversial-three-drug-mixture [https://perma.cc/5EKJ-V4ZB];

Execution Database, Virginia, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Virginia

[https://perma.cc/W5W7-QWAB]. Corey Johnson was executed January 14, 2021, for multiple

murders committed in Virginia, but he was executed under federal authority. Id. See Hailey Fuchs,

U.S. Executes Corey Johnson for 7 Murders in 1992, N. Y. TIMES (Jan. 15, 2021),

https://www.nytimes.com/2021/01/15/us/corey-johnson-execution.html [https://perma.cc/PT7L-

GJCP].

236. Hailey Fuchs, Virginia Becomes First Southern State to Abolish the Death Penalty, NEW

YORK TIMES (Mar. 24, 2021), https://www.nytimes.com/2021/03/24/us/politics/virginia-death-

penalty.html [https://perma.cc/PJL3-EU3A]; Virginia Becomes 23d State and the First in the South

to Abolish the Death Penalty, DEATH PENALTY INFO CTR.,

https://deathpenaltyinfo.org/news/virginia-becomes-23rd-state-and-the-first-in-the-south-to-abolish-

the-death-penalty [https://perma.cc/9ZME-TFF6]. Approximately 1,387 individuals were executed in

colonial Virginia and during the period of Virginia’s statehood. ICPSR: The Espy File, supra note 29,

at Virginia V16(51) (listing 1,361 executions between 1608 and 2002); Execution Database, Virginia,

DEATH PENALTY INFO. CTR., https://deathpenaltyinfo.org/executions/execution-

database?filters%5Bstate%5D=Virginia [https://perma.cc/4NHP-F4PT] (listing 26 executions carried

out under state law between 2003 and 2017). The 2021 execution of Corey Johnson included in the

DPIC listing for Virginia executions was carried out under federal authority. See Fuchs, supra note

235.

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abolishing the death penalty took effect.

237

Two men were on Virginia’s

death row when Governor Ralph Northam signed the repeal bill.

238

The

new law converted their sentences of death to sentence of life

imprisonment without parole, stipulating that “any person under a

sentence of death imposed for an offense committed prior to July 1, 2021,

who has not been executed by July 1, 2021, shall have his sentence

changed to life imprisonment . . . .”

239

28. Washington

Legislative repeal March 22, 1913

No executions following repeal through reinstatement

Legislative reinstatement March 14, 1919

First post-reinstatement execution April 1, 1921

Judicial invalidation Oct. 11, 2018

No post-invalidation executions

Washington abolished the death penalty through legislation which

took effect March 22, 1913.

240

The last execution prior to the repeal of the

state’s death-penalty law occurred April 21, 1911.

241

Legislation

reinstating the death penalty became effective March 14, 1919.

242

executions occurred during the six-year repeal period. The first execution

following reinstatement took place April 1, 1921, when Johann Schmitt

was hanged for a murder committed December 23, 1919.

243

Washington

retained the death penalty thereafter and re-enacted capital punishment

237. Virginia Senate Bill No. 1165 (Virginia 2021 First Special Session).

238. See Fuchs, supra note 236 (identifying the two death-sentenced individuals as Anthony

Juniper and Thomas A. Porter). Governor Northam signed the bill repealing the state’s death penalty

on March 24, 2021. Id.

239. Virginia Senate Bill No. 1165 § 3 (Virginia 2021 First Special Session).

240. 1913 Wash. Sess. Laws 581; Galliher, et al., supra note 41, at 547 n.61 (citing 1913 Wash.

Laws Ch. 167, H.B. 200, at 581).

241. DPIC, Executions in the U.S., supra note 36, at 443 (execution of Frederick Jahns); see

also ICPSR: The Espy File, supra note 29 at Washington V16(53), V14.

242. 1919 Wash. Sess. Laws 112; Galliher et al., supra note 41, at 567 n.09 (citing 1919 Wash.

Sess. Laws 112). See generally Norman S. Hayner & John R. Cranor, The Death Penalty in

Washington State, 284 ANNALS OF THE AM. ACAD. OF POL. & SOC. SCI. 101 (1952) https://www.

jstororg.libproxy.albany.edu/stable/1029448?seq=1#metadata_info_tab_contents

[https://perma.cc/2JZK-V72R].

243. DPIC, Executions in the U.S., supra note 36, at 443; DEATH PENALTY ARCHIVE,

Documentation for the Execution of Johann Schmitt, https://archives.albany.edu/

concern/daos/c534g365f?locale=en#?c=0&m=0&s=0&cv=0&xywh=-147%2C7%2C4885%2C3140

[https://perma.cc/3CUF-EEKU]; see also ICPSR: The Espy File, supra note 29, at Washington

V16(53).

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legislation in the wake of Furman v. Georgia.

244

Five individuals were

executed in Washington during the post-Furman era, the last one in

2010.

245

In 2018, the Washington Supreme Court invalidated the state’s

death-penalty law, ruling that it had been administered in an arbitrary and

racially discriminatory manner in violation of the state constitution.

246

Eight individuals were under sentence of death in Washington at the time

of that decision,

247

and all consequently were resentenced to life

imprisonment.

248

29. West Virginia

Legislative repeal June 18, 1965

No post-repeal executions

Legislation abolishing the death penalty in West Virginia became

effective June 18, 1965.

249

By its terms, the law applied prospectively as

well as to past death sentences:

Capital punishment is hereby abolished for all offenses against the laws

244. Furman v. Georgia, 408 U.S. 238 (1972). See WASH. REV. CODE § 10.95.030 et seq.

(2014). Washington’s post-Furman capital punishment legislation took different forms and its

sentencing procedures were invalidated on several occasions by the Washington Supreme Court. See

State v. Gregory, 147 P.3d 621, 628–29 (Wash. 2018).

245. Execution Database, Washington, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Washington

[https://perma.cc/GS6G-AVGY] (Westley Dodd, executed January 5, 1993; Charles Campbell,

executed May 27, 1994; Jeremy Sagastegui, executed October 13, 1998; James Elledge, executed

August 28, 2001; Cal Brown, executed September 10, 2010).

246. See generally State v. Gregory, 147 P.3d 621 (Wash. 2018).

247. Death Row U.S.A. Fall 2018, NAACP LEGAL DEF. & EDUC. FUND, INC., p. 59 (Oct. 1,

2018), https://www.naacpldf.org/wp-content/uploads/DRUSAFall2018.pdf [https://perma.cc/ST6N-

V4FP].

248. See State v. Gregory, 147 P.3d 621, 642 (Wash. 2018) (“ Pursuant to RCW 10.95.090, ‘i f

the death penalty established by this chapter is held to be invalid by a final judgment of a court which

is binding on all courts in the state, the sentence for aggravated first degree murder . . . shall be life

imprisonment.’ All death sentences are hereby converted to life imprisonment.”); Paige Cornwell,

List of Inmates Whose Sentences are Changed from Death Row to Life In Prison, SEATTLE TIMES

(Oct. 11, 2018), https://www.seattletimes.com/seattle-news/list-of-inmates-whose-sentences-are-

changed-from-death-row-to-life-in-prison/ [https://perma.cc/J4CP-XGY8].

249. 1965 W. Va. Acts 207; GALLIHER ET AL., supra note 36, at 193 & n.30 (citing 1965 West

Virginia Acts ch. 40 at 204); Executions 1930-1965, U.S. DEPT. OF JUSTICE, NAT’L PRISONER STAT.,

p. 1 (June 1966) (“Governor Hulett C. Smith signed a bill on March 18, 1965, eliminating capital

punishment for the offenses of murder, kidnapping for ransom, kidnapping the victim of a crime as a

hostage, rape, carnal knowledge, and treason—this measure became effective 90 days after passage,

on June 18, 1965.”); Stan Bumgardner & Christine Kreiser, ‘Thy Brother’s Blood’: Capital

Punishment, IX, No. 4 & X, No. 1, W. VA. HIST. SOC’Y Q. (1996),

http://www.wvculture.org/history/wvhs/wvhs941.html [https://perma.cc/KRU7-M9X3] (citing

House Bill 517 and noting that it became effective 90 days after Governor Smith signed the bill).

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of the state of West Virginia, and no person heretofore or hereafter con-

victed of any offense in violation of said laws shall be executed, irre-

spective of whether the crime was committed, the conviction had, or the

sentence imposed, before or after the enactment of this section.

250

Ernest Stevenson was under sentence of death when the repeal legislation

was signed in March 1965,

251

but Governor Hulett C. Smith announced

that he would commute his sentence and Stevenson was not executed.

252

The last West Virginia execution, that of Elmer Bruner for a murder

committed in 1957, took place in 1959.

253

30. Wisconsin

Legislative repeal July 12, 1853

No post-repeal executions

Wisconsin abolished the death penalty through legislation that took

effect July 12, 1853.

254

The last person executed in the state was John

McCaffary, who was hanged on August 21, 1851, before a crowd of an

estimated 2,000 to 3,000 onlookers, for murdering his wife by drowning

250. W. VA. CODE § 61-11-2 (1965).

251. See State v. Stevenson, 127 S.E.2d 638 (W. Va. 1962), cert. denied, 372 U.S. 938 (1963).

252. States Seek End of Death Penalty, N.Y. TIMES p.23 (Mar. 8, 1965),

https://timesmachine.nytimes.com/timesmachine/1965/03/08/101533072.html?pageNumber=23

[https://perma.cc/65A4-LFHS] (“ There is only one prisoner in the state [of West Virginia] now

sentenced to death. He is Ernest Stevenson, 27 years old, who was convicted four years ago of killing

a seafood market-employe [sic] in Huntington. Governor Smith has said that he will commute

Stevenson’s sentence if the Legislature abolishes the death penalty.”); Bumgardner & Kreiser, supra

note 249 (“ Appeals saved the life of [a] Huntington man, Ernest Stevenson. Convicted of murder in

1961, Stevenson was still awaiting execution when the state abolished the death penalty in 1965.”).

253. See State v. Bruner, 105 S.E.2d 140 (W.Va. 1958); DPIC, Executions in the U.S., supra

note 36, at 450 (execution of Elmer Bruner, April 3, 1959); Bumgardner & Kreiser, supra note 249

(“The state acted in the role of executioner for the final time on April 3, 1959. Elmer David Brunner

was convicted of murdering a wealthy Huntington woman during a break-in on May 27, 1957.”). But

see ICPSR: The Espy File, supra note 29, at West Virginia, V16(54), V14 (erroneously listing

execution in 2000 in West Virginia, following a 1959 execution); There were no executions after

1977. Execution Database, West Virginia, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=West%20Virginia

[https://perma.cc/22RP-TCT9].

254. 1853 Wis. Sess. Laws 100–01; GALLIHER ET AL., supra note 36, at 36 (citing Assembly

Bill 67 (1853)). The repeal legislation provided: “ Section 1. In all convictions under the statutes of

this State, for the crime of murder in the first degree, the penalty shall be imprisonment in the state

prison, during the life of the person so convicted; and the punishment for death, for such offence, is

hereby abolished. Sec. 2. All acts and parts of acts, contravening the provisions of this act, are hereby

repealed. Approved, July 12, 1853.” 1853 Wisconsin Session Laws 100–01,

http://docs.legis.wisconsin.gov/1853/related/acts/103.pdf [https://perma.cc/2SJW-DDQA].

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her.

255

Wisconsin has not re-enacted death-penalty legislation and no later

executions have occurred in the state.

256

III. I

NTERNATIONAL PRACTICE: ABOLITION AND POST -ABOLITION

EXECUTIONS

The Supreme Court has deemed “the climate of international

opinion”

257

to be of interest in its determination of the constitutionality of

capital punishment for different crimes and offenders. While ruling in

Roper v. Simmons that the Constitution prohibits the execution of

offenders younger than 18 at the time of their crimes, Justice Kennedy’s

majority opinion explained that “at least from the time of the Court’s

decision in Trop [v. Dulles], the Court has referred to the laws of other

countries and to international authorities as instructive for its

interpretation of the Eighth Amendment’s prohibition against ‘cruel and

unusual punishments.’”

258

The laws enacted in other countries may not be

explicit about whether executions can or should be carried out following

255. ICPSR: The Espy File, supra note 29, at Wisconsin, V16(55), V14; DPIC, Executions in

the U.S., supra note 36, at 445. See also GALLIHER ET AL., supra note 36, at 35 (citing Carrie Cropley,

The Case of John McCaffary, WIS. MAG. OF HIST. 35 (State Historical Society 288 (1951)); The Death

Penalty in Wisconsin, WIS. HIST. SOC’Y, https://www.wisconsinhistory.org/Records/Article/CS2816

[https://perma.cc/29A8-86LR]; Murderer’s Execution Restraints, WIS. HIST. SOC’Y,

https://www.wisconsinhistory.org/Records/Article/CS2783 [https://perma.cc/E5FY-X3UD].

256. ICPSR: The Espy File, supra note 29, at Wisconsin, V16(55), V14; DPIC, Executions in

the U.S., supra note 36, at 445; Execution Database, Wisconsin, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/executions/execution-database?filters%5Bstate%5D=Wisconsin

[https://perma.cc/N47L-TD9U] (no executions 1977 or later).

257. Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (plurality opinion) (citing Trop v. Dulles,

356 U.S. 86, 102 (1958) (plurality opinion)).

258. Roper v. Simmons, 543 U.S. 551, 575 (2005) (citing and quoting Trop v. Dulles, 356 U.S.

86, 102–03 (1958)) (plurality opinion) (“The civilized nations of the world are in virtual unanimity

that statelessness is not to be imposed as punishment for crime.”). The opinion continued:

[S]ee also Atkins [v. Virginia, 536 U.S. 304, 317, n. 21 (2002)] (recognizing that “ within

the world community, the imposition of the death penalty for crimes committed by

mentally retarded offenders is overwhelmingly disapproved”); Thompson [v. Oklahoma,

487 U.S. 815, 830-831, and n. 31 (1988)] (plurality opinion) (noting the abolition of the

juvenile death penalty “by other nations that share our Anglo-American heritage, and by

the leading members of the Western European community,” and observing that “[w]e have

previously recognized the relevance of the views of the international community in

determining whether a punishment is cruel and unusual”); Enmund [v. Florida, 458 U.S.

782, 796-797, n. 22 (1982)] (observing that “ the doctrine of felony murder has been

abolished in England and India, severely restricted in Canada and a number of other

Commonwealth countries, and is unknown in continental Europe”); Coker [v. Georgia,

433 U.S. 584, 596, n. 10 (1977)] (plurality opinion) (“ It is . . . not irrelevant here that out

of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for

rape where death did not ensue”).

Id. at 575–76.

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the abolition of capital punishment, but the actual practices are much

clearer. It does not appear that executions in other countries, including

Canada, Great Britain, throughout Europe, or elsewhere in the world, have

gone forward under such circumstances.

A. Canada

Canada abolished its death penalty through legislation that became

effective July 26, 1976.

259

The last executions in Canada occurred

December 11, 1962, when two men were hanged for separate murders.

260

Following those executions, “all death sentences were commuted by the

government of the day.”

261

Among those spared execution was Mario

Gauthier, who had been sentenced to death May 14, 1976, or slightly more

than two months before the abolition legislation was enacted.

262

B. The United Kingdom

On November 9, 1965, the Murder (Abolition of the Death Penalty)

Act 1965

263

became effective, suspending capital punishment for murder

259. Abolition of the Death Penalty 1976, CORR. SERV. CAN., https://www.csc-

scc.gc.ca/text/pblct/rht-drt/08-eng.shtml [https://perma.cc/B9Z5-8W74]. See also Paul Gendreau &

Wayne Renke, Capital Punishment, THE CANADIAN ENCYCLOPEDIA (2016),

https://www.thecanadianencyclopedia.ca/en/article/capital-punishment [https://perma.cc/7Q34-

4P2Z] (noting that, “ In 1998, Canada eliminated the death penalty for military members, thus

becoming a fully abolitionist country when it comes to state executions.”).

260. Richard Clark, Executions in Canada, from 1860 to Abolition, CAP. PUNISHMENT U.K.,

http://www.capitalpunishmentuk.org/canada.html [https://perma.cc/E2X6-2LMV] (noting that

Arthur Lewis and Ronald Turpin were executed December 11, 1962). See also Abolition of the Death

Penalty 1976, CORR. SERV. CAN., https://www.csc-scc.gc.ca/text/pblct/rht-drt/08-eng.shtml

[https://perma.cc/E9U9-2VFJ].

261. Abolition of the Death Penalty 1976, CORR. SERV. CAN., https://www.csc-

scc.gc.ca/text/pblct/rht-drt/08-eng.shtml [https://perma.cc/E9U9-2VFJ]. See also Prisoners

Sentenced to Death in Canada, 1867-1976, An Inventory of Case Files in the Fonds of the Department

of Justice, NAT’L ARCHIVES OF CAN. 27 (1994),

https://data2.archives.ca/pdf/pdf001/p000001052.pdf [https://perma.cc/H8JU-QG3H] (identifying 11

offenders not executed because of “ abolishment of death penalty.”).

262. Richard Clark, Executions in Canada, from 1860 to Abolition, CAP. PUNISHMENT U.K.,

http://www.capitalpunishmentuk.org/canada.html [https://perma.cc/YHG7-55K6]; Prisoners

Sentenced to Death in Canada, 1867-1976, An Inventory of Case Files in the Fonds of the Department

of Justice, NAT’L ARCHIVES OF CAN. 132 (1994),

https://data2.archives.ca/pdf/pdf001/p000001052.pdf [https://perma.cc/BP4W-9NSD].

263. Murder (Abolition of Death Penalty) Act 1965, 1965 c. 71:

An Act to abolish capital punishment in the case of persons convicted in Great Britain of

murder or convicted of murder or a corresponding offence by court-martial and, in con-

nection therewith, to make further provision for the punishment of persons so convicted.

1 Abolition of death penalty for murder.

(1) No person shall suffer death for murder, and a person convicted of murder shall. . . be

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for a period of five years and instead mandating life imprisonment for that

offense. The Act applied in England, Scotland, and Wales. Parliament

made the abolition of the death penalty for murder permanent in 1969.

The death penalty subsequently was abolished in the United Kingdom for

all other crimes, including arson in the Royal Dockyards, high treason,

piracy, and military offenses.

264

At the time the 1965 Act went into effect,

17 men were under sentence of death in Britain, including David Steven

Chapman, whose sentence was imposed November 1, 1965, or just eight

days prior to the Act’s effective date. With the passage of the Act, all 17

offenders had their sentences reprieved and none were executed.

265

The

last two executions in England occurred August 13, 1964; the last

execution in Scotland took place August 15, 1963; the last execution in

Northern Ireland was carried out December 20, 1961; and the last

execution in Wales occurred May 6, 1958.

266

sentenced to imprisonment for life. . . .

(3) For the purpose of any proceedings on or subsequent to a person’s trial on a charge of

capital murder, that charge and any plea or finding of guilty of capital murder shall be

treated as being or having been a charge, or a plea or finding of guilty, of murder only;

and if at the commencement of this Act a person is under sentence of death for murder,

the sentence shall have effect as a sentence of imprisonment for life.

UK Legislation, Murder (Abolition of Death Penalty) Act 1965,

http://www.legislation.gov.uk/ukpga/1965/71 [https://perma.cc/G892-RCUP].

264. Julian B. Knowles, The Abolition of the Death Penalty in the United Kingdom: How It

Happened and Why It Still Matters, THE DEATH PENALTY PROJECT: LONDON, 53–56 (2015),

https://www.deathpenaltyproject.org/wp-content/uploads/2017/12/DPP-50-Years-on-pp1-68-1.pdf

[https://perma.cc/V9EE-TNAQ]. See also Frederick C. Millett, Will the United States Follow England

(and the Rest of the World) in Abolishing Capital Punishment?, 6 PIERCE L. REV. 547 (2008); Richard

Clark, Timeline of Capital Punishment in Britain, CAP. PUNISHMENT U.K.,

http://www.capitalpunishmentuk.org/timeline.html [https://perma.cc/2J2P-26GE].

265. Richard Clark, The Abolition of Hanging in Britain, CAP. PUNISHMENT U.K.,

http://www.capitalpunishmentuk.org/abolish.html [https://perma.cc/CTA5-8Z9K]; Knowles, supra

note , at 53.

266. Knowles, supra note , at 50 (footnotes omitted):

The last executions in England (and the United Kingdom) took place on 13 August 1964.

Peter Anthony Allen was hanged at Walton Prison in Liverpool and Gwynne Owen Evans

was hanged at Strangeways Prison in Manchester, both for the murder of John Alan West

on 7 April 1964.The last execution in Scotland was that of Henry John Burnett on 15

August 1963 in Craiginches Prison, Aberdeen, for the murder of seaman Thomas Guyan.

The last execution in Northern Ireland was that of Robert McGladdery at Crumlin Road

Gaol, Belfast, on 20 December 1961, for the murder of Pearl Gamble. The last execution

in Wales was that of Vivian Teed in Swansea on 6 May 1958, for the murder of William

Williams.

Id. at 51 (footnote omitted):

The last person sentenced to death in the United Kingdom was 19-year-old William

Holden in 1973 for the capital murder of a British soldier during the Troubles. His sentence

was commuted to life imprisonment in 1973, and in 2012 his conviction was quashed by

the Court of Appeal of Northern Ireland on the basis of fresh evidence that showed he may

have been questioned unlawfully.

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C. Europe and Other Countries Worldwide

The post-abolition execution practices of countries throughout

Europe and elsewhere appear to be consistent with those of Canada and

the United Kingdom. Although the data are more difficult to confirm,

which makes their reliability less certain, information compiled and made

available by Amnesty International and other sources suggests that,

historically, executions have not occurred worldwide following the repeal

of capital punishment laws.

267

Information is provided in the chart below

indicating when capital punishment was abolished in the several countries

noted, and when the last executions took place in those countries. No

countries reported carrying out executions after abolishing capital

punishment.

Europe

Country

Date of Abolition

Ordinary

Crimes

268

Date of Abolition

All Crimes

Last Execution

Albania

September 2000

2007

June 25, 1992

Andorra

1990

Oct. 18, 1943

Armenia

2003

Feb. 1991

Austria

June 30, 1950

February 1968

March 24, 1950

Belgium

Aug. 1, 1996

August 1950

(1863 – civilian)

Bosnia-

Herzegovina

Nov. 1998

1975

Bulgaria

Dec. 12, 1998

Nov. 4, 1989

Croatia

1990

Feb. 1987

See also Richard Clark, The End of Capital Punishment in Europe, CAP. PUNISHMENT U.K.,

http://www.capitalpunishmentuk.org/europe.html [https://perma.cc/8R39-4L9B].

267. Abolitionist and Retentionist Countries as of July 2018, AMNESTY INT’L (July 2018),

https://www.amnesty.org/download/Documents/ACT5066652017ENGLISH.pdf

[https://perma.cc/9N4D-CMUK]; Richard Clark, Capital Punishment in the British Commonwealth,

CAP. PUNISHMENT U.K., http://www.capitalpunishmentuk.org/common.html [https://perma.cc/

EZU2-592R ]; Richard Clark, The End of Capital Punishment in Europe, CAP. PUNISHMENT U.K.,

http://www.capitalpunishmentuk.org/europe.html [https://perma.cc/Z2P8-HLSD].

Countries for which specific information about the date of last execution is not provided are not

included in the above tables. See also ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A

WORLDWIDE PERSPECTIVE (5th ed. 2015); Roger Hood & Carolyn Hoyle, Abolishing the Death

Penalty Worldwide: The Impact of a ‘New Dynamic, 38 CRIME & JUSTICE 1 (2009); Stefanie

Neumeier & Wayne Sandholtz, The Transnational Legal Ordering of the Death Penalty, 4 UC IRVI NE

J. OF INT’L., TRANS. & COMP. L. 124 (2019).

268. While identifying countries that have abolished capital punishment for “ordinary crimes

only,” Amnesty International explains that some countries’ “laws provide for the death penalty only

for exceptional crimes such as crimes under military law or crimes committed in exceptional

circumstances.” Amnesty International Global Report: Death Sentences and Executions, AMNESTY

INT’L 55 (2020), https://www.justice.gov/file/1272316/download [https://perma.cc/K4AL-9T7V].

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Cyprus

Dec. 15, 1983

April 19, 2002

June 13, 1962

Czech

Republic

July 1, 1990

June 8, 1989

Denmark

1933

1993

1892 (civilian)

1950 (war crimes)

Estonia

March 18, 1998

Sept. 11, 1991

Finland

May 5, 1972

Dec. 2, 1959

1943 (civilian)

1944 (war crime)

France

Oct. 1981

Sept. 10, 1977

Georgia

Nov. 11, 1997

1995

Germany

East Germany

Dec. 18, 1987

1975 (murder)

1981 (treason)

West Germany

Dec. 18, 1987

1949 (murder)

1951 (military)

Gibraltar

Nov. 8, 1965

1931 (murder)

1944 (war crime)

Greece

Dec. 1993

2004

Aug. 25, 1972

Hungary

Oct. 24, 1990

July 14, 1988

Iceland

1928

Feb. 12, 1940

Jan. 12, 1830

Ireland

July 11, 1990

Apr. 20, 1954

Italy

Dec. 22, 1947

269

1994

March 4, 1947

(ordinary)

March 5, 1947(war

crimes)

Latvia

April 15, 1999

2012

Jan. 1996

Liechtenstein

1979

Jan. 1, 1989

Feb. 26, 1785

Lithuania

Dec. 21, 1998

July 12, 1995

Luxembourg

May 17, 1949

Aug. 7, 1948 (murder)

Feb. 24, 1949 (war

crime)

Macedonia

1991

1988

Malta

Oct. 4, 1971

March 21, 2000

July 5, 1943

Moldava

Feb. 21, 1996

1985

Monaco

Dec. 17, 1962

1847

Montenegro

June 18, 2002

Jan. 29, 1981

Netherlands

Sept. 17, 1870

April 11, 1982

Oct. 31, 1860 (murder)

March 21, 1952 (war

crime)

Norway

Jan. 1, 1905

1979

Feb. 25, 1876 (murder)

Aug. 29, 1948 (war

crime)

Poland

Sept. 1, 1998

Apr. 21, 1988

Portugal

July 1, 1867

April 1977

Apr. 22, 1846 (murder)

During WWI (war

crimes)

Romania

Jan. 7, 1990

Dec. 25, 1989

269. Art. 27 Costituzione [Cost.] (It.). https://www.gazzettaufficiale.it [https://perma.cc/XGS7-

85N5].

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Serbia

Nov. 5, 2001

Feb. 1992

Slovenia

Sept. 1989

1959

Spain

Dec. 23, 1978

Nov. 14, 1995

Sept. 27, 1975

Sweden

June 3, 1921

July 1, 1973

Nov. 23, 1910

Switzerland

Jan. 1, 1942

1992

Oct. 18, 1940 (murder)

Dec. 7, 1944 (war

crime)

Turkey

Aug. 8, 2002

2004

1983 (murder)

Oct. 25, 1984 (military)

Ukraine

March 22, 2000

March 11, 1997

Uzbekistan

2008

2005

Vatican City

1969

July 9, 1870

Non-European Countries

Country

Date of Abolition

Ordinary Crimes

Date of Abolition

All Crimes

270

Last Execution

Australia

1984

1985

1967

Benin

2016

1987

Bhutan

2004

1964

Bolivia

1997

2009

1974

Brazil

1979

1855

Burkina Faso

2018

1988

Cape Verde

1981

1835

Chile

2001

1985

Colombia

1910

1909

Congo

(Republic of)

2015

1982

El Salvador

1983

1973

Fiji

1979

2015

1964

Gabon

2010

1985

Guatemala

2017

2000

Guinea

2016

2017

2001

Guinea-Bissau

1993

1986

Haiti

1982

1972

Honduras

1956

1940

Israel

1954

1962 (war crimes)

Madagascar

2015

1958

Mauritius

1995

1987

Mexico

2005

1961

Mongolia

2017

2008

Mozambique

1990

1986

Namibia

1990

1988

Nepal

1990

1997

1979

New Zealand

1961

1989

1957

270. Amnesty Int’l, supra note 268

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Nicaragua

1979

1930

Panama

1922

1903

Paraguay

1992

1928

Peru

1979

Philippines

2006

2000

Rwanda

2007

1998

San Marino

1848

1865

1468

Senegal

2004

1967

South Africa

1995

1997

1991

Surinam e

2015

1982

Togo

2009

1978

IV. J

UVENILES AND THE DEATH PENALTY

A final inquiry concerns the status of juvenile offenders, age 17 or

younger, who were sentenced to death in states that later raised the

minimum age of death-eligibility to 18. We limit this inquiry to

occurrences prior to the Supreme Court’s 2005 ruling in Roper v.

Simmons,

271

which took the decision about executions for these offenders

away from the states. Roper established the constitutional floor for death-

penalty eligibility as age 18 at the time of offense. Although sentenced

under laws authorizing their execution, no juveniles who committed their

crimes while younger than 18 were executed in the states that later raised

the age of capital punishment eligibility to 18 before Roper was decided

and would have spared them.

272

In Thompson v. Oklahoma (1988), the Supreme Court held that the

Eighth Amendment prohibits capital punishment for offenders age 15 or

younger at the time they committed their crimes.

273

At that time, 11 states

specified 18 as the minimum age for death-penalty-eligibility in their

capital punishment statutes.

274

271. 543 U.S. 551 (2005).

272. All offenders who committed their crimes before age 18 and still remained on death row

at the time Roper was decided were spared by Roper regardless of state-law changes because U.S.

Supreme Court jurisprudence makes retroactive new substantive constitutional rules “prohibiting a

certain category of punishment for a class of defendants because of their status or offense.” Penry v.

Lynaugh, 492 U.S. 302, 330 (1989).

273. Thompson v. Oklahoma, 487 U.S. 815, 826 n. 25 (1988) (plurality opinion).

274. Id. at 829 n. 30 (1988) (plurality opinion) (“ California (Cal. Penal Code Ann. § 190.5 (West

1988)) (age 18); Colorado (COLO. REV. STAT. § 16-11-103(1)(a) (1986)) (age 18); Connecticut

(CONN. GEN. STAT. § 53a-46a(g)(1) (1985)) (age 18); Illinois (Ill. Rev. Stat., ch. 38, ¶ 9-1(b) (1987))

(age 18); Maryland (MD. ANN. CODE, Art. 27, § 412(f) (1988)) (age 18); Nebraska (NEB. REV. STAT.

§ 28-105.01 (1985)) (age 18); New Jersey (N.J. Stat. Ann. §§ 2A:4A-22(a) (1987), 2C:11-3(g) (West

Supp.1988)) (age 18); New Mexico (N.M. STAT. ANN. §§ 28-6-1(A), 31-18-14(A) (1987)) (age 18);

Ohio (OHIO REV. CODE ANN. § 2929.02(A) (1984)) (age 18); Oregon (ORE. REV. STAT. §§ 161.620,

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The year following the decision in Thompson, in Stanford v.

Kentucky (1989),

275

the justices ruled that the Eighth Amendment did not

preclude the capital punishment of 16 and 17-year-old offenders. At the

time of the Court’s decision in Stanford, 12 death-penalty states specified

18 as the minimum age for death-eligibility.

276

In Roper v. Simmons (2005),

277

the Court held that executing

offenders who committed their crimes while younger than age 18 no

longer comported with the Eighth Amendment’s prohibition against cruel

and unusual punishments, thus abrogating Stanford v. Kentucky. By that

time, even though Stanford had permitted states to execute offenders who

were under 18 at the time of their offense, five more states that had

previously permitted such punishments – Indiana, Montana, South

Dakota, Washington, and Wyoming – abolished the practice.

278

More than

seventy juveniles were under sentence of death, in 13 states, at the time of

this decision.

279

Six states had executed offenders who had committed

murder before turning 18 in the 16 years since Stanford was decided.

280

However, none of those executions occurred in a state that had raised its

419.476(1) (1987)) (age 18); Tennessee (TENN. CODE ANN. §§ 37-1-102(3), (4), 37-1-103, 37-1-

134(a)(1) (1984 and Supp.1987)) (age 18).”).

275. Stanford v. Kentucky, 492 U.S. 361 (1989).

276. Id. at 370–71 & n. 2 (1989) (“The following States preclude capital punishment of

offenders under 18: California (CAL. PENAL CODE ANN. § 190.5 (West 1988)); Colorado (COLO. REV.

STAT. § 16-11-103(1)(a) (1986)); Connecticut (CONN. GEN. STAT. § 53a-46a(g)(1) (1989)); Illinois

(ILL. REV. STAT., ch. 38, ¶ 9-1(b) (1987)); Maryland (MD. ANN., CODE, Art. 27, § 412(f)

(Supp.1988)); Nebraska (NEB. REV. STAT. § 28-105.01 (1985)); New Hampshire (N.H. REV. STAT.

ANN. § 630:5(XIII) (Supp.1988)); New Jersey (N.J. STAT. ANN. § 2A:4A-22(a) (West 1987) and

2C:11-3(g) (West Supp.1988)); New Mexico (N.M. STAT. ANN. §§ 28-6-1(A), 31-18-14(A) (1987));

Ohio (OHIO REV. CODE ANN. § 2929.02(A) (1987)); Oregon (ORE. REV. STAT. §§ 161.620 and

419.476(1) (1987)); Tennessee (TENN. CODE ANN. §§ 37-1-102(3), 37-1-102(4), 37-1-103, 37-1-

134(a)(1) (1984 and Supp.1988).”).

277. Roper v. Simmons, 543 U.S. 551 (2005).

278. Id. at 564, 579–80 (App. B). See also Brief for Respondent at 38–41, Roper v. Simmons,

2004 WL 1947812 (U.S.), (“When Stanford was decided, 11 states set the minimum age for the death

penalty at 18. Since Stanford, seven additional states and the federal government have done so.

Specifically, in 1993, the Supreme Court of Washington construed its death-penalty statute not to

permit the execution of those under 18 at the time of the offense. See State v. Furman, 858 P.2d 1092,

1103 (Wash. 1993). When Kansas reinstated the death penalty in 1994, it set the minimum age at 18.

See KAN. STAT. ANN. § 21-4622. New York likewise set the minimum age at 18 when it reinstated

the death penalty in 1995. See N.Y. PENAL LAW § 125.27. Montana established a statutory minimum

age of 18 in 1999, see MONT. CODE ANN. § 45-5-102, as did Indiana in 2002, see IND. CODE ANN. §

35-50-2-3. Most recently, in March of this year both Wyoming and South Dakota raised the minimum

age for the death penalty to 18. See WYO. STAT. ANN. § 6-2-101(b); S.D. CODIFIED LAWS § 23A-

27A-42.”) (internal footnotes omitted).

279. Roper v. Simmons, 543 U.S. at 596 (O’Connor, J., dissenting) (“In all, there are currently

over 70 juvenile offenders on death row in 12 different States (13 including respondent).”) (internal

citation omitted).

280. Id. at 595 (O’Connor, J., dissenting) (internal citation omitted).

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minimum age of death penalty-eligibility to 18 after previously

authorizing juvenile offenders to be sentenced to death.

281

The only states

with juvenile offenders under sentence of death on February 28, 2005, the

date Roper v. Simmons was decided, were those retaining laws authorizing

the capital punishment of 16 or 17-year-old offenders.

282

It thus appears that no juveniles who were sentenced to death in states

that originally authorized capital punishment for 16- or 17-year-old

offenders, but subsequently raised the minimum age for death-eligibility

to 18 prior to the Supreme Court’s decision in Roper v. Simmons,

remained under sentence of death when Roper was decided, or were

executed after relevant state laws raised the minimum age.

V. C

ONCLUSION

Debates about the retention or abolition of death-penalty laws have

intensified recently throughout the country. Points of contention tend to

center on disputed principles of justice, morality, and disagreements about

the costs and benefits of capital punishment. While debates continue,

more than 2,600 individuals currently remain on the nation’s death

rows.

283

As the more abstract policy issues dominate discussions about

the future of the death penalty, the fate of those awaiting execution looms

in the background. If capital punishment is abolished, the question of

whether the current denizens of death row should be executed pursuant to

the law in effect when they committed their crimes, or whether they

281. The six states in which offenders were executed after Stanford v. Kentucky was decided,

who were younger than 18 when they committed their crimes, were Louisiana, Texas, Missouri,

Georgia, Virginia, and Oklahoma. Victor L. Streib, The Juvenile Death Penalty Today: Death

Sentences and Executions for Juvenile Crimes, January 1, 1973-February 28, OHIO N. U.,

https://files.deathpenaltyinfo.org/legacy/documents/StreibJuvDP2005.pdf [https://perma.cc/RE2L-

KTDH]. The five states that had renounced capital punishment for offenders younger than 18 since

Stanford v. Kentucky was decided were Indiana, Montana, South Dakota, and Wyoming, by statute,

and Washington, by judicial decision.

282. The states authorizing capital punishment for offenders who committed their crimes while

juveniles were Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Kentucky,

Louisiana, Mississippi, Missouri, Nevada, New Hampshire, North Carolina, Oklahoma,

Pennsylvania, South Carolina, Texas, Utah, and Virginia. Roper v. Simmons, 543 U.S. 551, 579 (App.

A) (2005). The states with juvenile offenders under sentence of death when Roper was decided were

Alabama (13); Arizona (4), Florida (3), Georgia (2), Louisiana (4), Mississippi (5), Nevada (1) North

Carolina (4), Pennsylvania (2), South Carolina (3), Texas (29), and Virginia (1). Case Summaries of

Juvenile Offenders Who Were on Death Row in the United States, DEATH PENALTY INFO. CTR.,

https://deathpenaltyinfo.org/stories/case-summaries-of-juvenile-offenders-who-were-on-death-row-

in-the-united-states [https://perma.cc/L5NH-XVQG].

283. Death Row U.S.A. Winter 2020, NAACP LEGAL DEF. & EDUC. FUND, INC., p. 1 (2020),

https://www.naacpldf.org/wp-content/uploads/DRUSAWinter2020.pdf [https://perma.cc/SRJ3-

TBZF].

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328 AKRON LAW REVIEW [54:267

should be spared execution because the law no longer permits death

sentences to be imposed must be confronted.

Although disagreements about the purposes and fair administration

of criminal punishment, political considerations, the interests of murder

victims’ survivors, and other factors combine to make answers to this

question elusive, in practice, the issue has been resolved with striking

uniformity. Historically, in this country and throughout the world, the

apparent universal practice has been to spare individuals from execution

if they are under sentence of death at the time capital punishment laws are

repealed or invalidated. Despite the principled, political, and pragmatic

disagreements about execution policies following the repeal or judicial

invalidation of death-penalty legislation, these actions speak loudly, and

quite arguably more loudly than words, as actions often do.

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