With the start of 2020 state legislative sessions, several states are considering legislation aimed at either repealing or narrowing use of the death penalty. The death penalty remains an authorized punishment in 29 states, the federal government, and the U.S. military, but repeal efforts continue to gain momentum. Twenty-one states have abolished the death penalty and four others have instituted governor-imposed moratoriums. As of January 2020, 33 states either have abolished the death penalty entirely or have not executed any prisoners in at least a decade. In recent years, repeal efforts have gained the support of bipartisan lawmakers and constituents alike. The results of an October 2019 Gallup poll indicated that 60% of Americans polled prefer a sentence of life without the possibility of parole to the death penalty, marking the first time a majority of the Americans polled took this stance since Gallup began asking the question 34 years ago.
In January 2020, Arizona lawmakers introduced SB 1250, which would exempt defendants with severe mental illness at the time of the offense from the death penalty. The bill is co-sponsored by a group of ten state senators and representatives, all Democrats, including Senator Juan Mendez and Representative Richard Andrade. The bill, which has only received partisan support thus far, is currently being considered in the Senate Judiciary and Rules Committee. The bill outlines specific disorders that make a defendant eligible for the exemption, including schizophrenia, bipolar disorder and major depressive disorder. Supporters of a severe mental illness exemption argue that these diseases affect a person’s thinking and impulses, thereby making them less culpable.
Death penalty abolition appears to be swiftly approaching in Colorado. Colorado lawmakers introduced SB 20-100 in January 2020. State lawmakers in both Houses voted to pass and send the bill to the governor at the end of February 2020. SB 20-100 marked the state’s sixth such attempt in the last 12 years. In previous years, when Republicans and Democrats each controlled one House, repeal efforts failed to get the bipartisan support necessary to pass. Despite Democrats establishing control of all centers of state political power in the 2018 election, repeal efforts continued to fail as a result of internal party division.
This time, the state Senate voted 19-13 to advance the bill to the Colorado House of Representatives, where the bill was adopted on a 38-27 vote. Notably, ahead of the Senate vote, dozens of family members of murder victims held a press conference in support of repeal and discussed their experiences with Colorado’s death penalty system. Many of the same family members gave related testimony during a committee hearing. In 2019, a similar repeal effort narrowly failed after Democrats faced opposition from Senator Rhonda Fields (D) and Representative Tom Sullivan (D). Senator Fields’ son and son’s fiancée were killed by two of the men on Colorado’s death row, and Representative Sullivan’s son was killed in the 2012 Aurora theater shooting, which was prosecuted as a death penalty case. Both have continued to oppose repeal measures. Other Colorado lawmakers also expressed opposition, including Republican Senator Bob Gardner, who proposed presenting the option to repeal to voters via ballot measure. In 2020, lawmakers were given more time to consider the bill, in response to criticism that the 2019 process was too rushed and not deliberative enough. Additionally, in 2020 there was increased support among bipartisan lawmakers and state religious leaders. Despite continued opposition by some, this year’s efforts placed Colorado on track to become the 22nd U.S. state to abolish the death penalty.
Governor Polis indicated that he will sign the bill into law when it reaches his desk. When the bill is enacted into law, it will repeal capital punishment in the state beginning July 1, 2020, and replace it with a sentence of life without the possibility of parole. While SB 20-100 does not propose to alter the sentences of the three men on Colorado’s death row, Governor Jared Polis has indicated he would consider commuting the remaining death sentences to life in prison although no individual decisions have been made. The state’s ability to carry out executions is uncertain, in any case. State law requires the use of sodium thiopental for lethal injections, but the ability to acquire this drug is unclear given that manufacturers have significantly restricted access to it in recent years. Colorado has not been an active execution state, with Gary Lee Davis’ 1997 execution marking the state’s first and only execution after the death penalty’s reinstatement in 1976.
In January 2020, Kentucky lawmakers introduced HB 237, which would prevent seriously mentally ill defendants from receiving the death penalty. The bill does not exclude everyone with some form of mental illness from capital punishment, but it would exempt defendants with certain severe disorders such as schizophrenia and major depressive disorder. The bill has received significant bipartisan support, with 32 Republican and Democratic representatives listed as co-sponsors, including Representative Chad McCoy (R) and Representative Charles Booker (D). HB 237 is currently under consideration in the House. In February 2020, a companion bill to HB 237 was introduced in the Kentucky state Senate. SB 154 is co-sponsored by both Republican and Democratic lawmakers and would serve the same purpose as HB 237. Following a hearing that included testimony by both opponents and proponents of the bill, the Kentucky Senate Judiciary Committee passed the bill out of committee. It is now poised for a vote in the full Senate.
While nearly 70 people are currently on Louisiana’s death row, the state’s last execution occurred a decade ago, with the January 2010 execution of Gerald Bordelon. This de facto moratorium is the result of litigation and supply issues surrounding the state’s lethal injection drug protocol, as well as the increasing support for death penalty repeal among both bipartisan lawmakers and religious leaders in recent years. In 2019, a bill proposing abolition of the death penalty passed committees in both houses before being withdrawn following a failed floor vote in the state Senate, but Louisiana lawmakers decided to give repeal another attempt. In February 2020, state Representative Kyle M. Green Jr. pre-filed HB 38, marking the state’s latest push to abolish capital punishment. HB 38 would eliminate the death penalty as an available punishment and would apply retroactively, requiring prisoners currently on death row to be resentenced. Louisiana’s legislative session began March 9.
In January 2020, Oklahoma Representative Jason Dunnington introduced HB 2876, which would abolish Oklahoma’s death penalty. In a press release introducing the bill, Representative Dunnington detailed primary objections to the continued use of the death penalty, including: cost to taxpayers, lack of conclusive evidence to support the penalty’s deterrent value, continued exonerations, and testimonials in support of abolition by victims’ families. Although all executions were halted in Oklahoma in 2015 following a series of problems with the state’s lethal injection protocol, the following year voters approved an amendment to enshrine the death penalty in the state’s constitution by adding a section that now reads that “any method of execution shall be allowed, unless prohibited by the United States Constitution.”
In 2014, a state investigation into the execution of Clayton Lockett determined that a single intravenous line failed, causing the drugs to be administered locally instead of directly into his bloodstream. The next year, the wrong drug was used during the 2015 execution of Charles Warner. No executions have been carried out since. These incidents resulted in a federal lawsuit that challenged the state’s execution procedures. The lawsuit ended in a 2015 agreement requiring Oklahoma to adopt a new execution protocol and then wait at least five months before seeking execution dates. The state has taken steps to update its protocol by adding additional checks, including verifying execution drugs at each step and mandating additional training for execution teams. In February 2020, officials announced the state will recommence executions after securing a reliable supply of the drugs needed for lethal injection. The attorney general’s office has notified the state criminal appeals court of its intent to resume executions, triggering a five month wait period before any executions can be scheduled, pursuant to the lawsuit settlement. In response to the state’s announcement, several Oklahoma death row prisoners filed a motion to reopen the 2015 federal lawsuit, alleging that the state’s new execution plans fail to comply with the Joint Stipulation by not establishing specific protocols and training procedures. There are currently 48 people on Oklahoma’s death row.
In January 2020, Virginia lawmakers introduced HB 85/SB 449, which would have repealed the death penalty, applying to both future prosecutions and those currently on Virginia’s death row. Despite support for the bills, the Virginia Senate has since decided to delay consideration of death penalty repeal until its 2021 legislative session. Just days before consideration was delayed, a group of 21 current and former prosecutors in the state, including two former attorneys general, vocalized support for the abolition repeal bills. In a letter sent to state lawmakers, the group of prosecutors referred to the death penalty as “a failed government program,” pointing to the financial cost and inefficiency, uneven application, lack of deterrent impact, and potential for wrongful convictions. The group urged lawmakers to consider the merits of a sentence of life without the possibility of parole, including: preservation of limited resources, increased finality to victims’ families, the opportunity to free the wrongfully convicted, and ensuring the “most dangerous criminals” will die in prison without the publicity that capital punishment brings.
Despite delaying consideration of repeal until next year, the Virginia legislature is also considering other death penalty reform in 2020. SB 116 would exempt defendants who had a severe mental illness at the time of the offense from the death penalty. The bill establishes procedures for determining whether a defendant had a severe mental illness at the time of the offense and provides for the appointment of expert evaluators. Unlike other severe mental illness exemption bills, which list eligible disorders, SB 116 defines severe mental illness as “exhibit[ing] active psychotic symptoms that substantially impair a person’s capacity to (i) appreciate the nature, consequences, of wrongfulness of the person’s conduct; (ii) exercise rational judgment in relation to a person’s conduct; or (iii) conform the person’s conduct to the requirements of law.” SB 116 has passed the full Senate and is now under consideration in the House. Virginia lawmakers also introduced SB 270, which passed the state Senate in February and would amend pre-existing law in order to ensure heightened transparency in the state’s execution process. The bill declassifies the sources of lethal injection drugs and the identity of any outsourcing facility that enters into an execution-related contract with the state. Additionally, the bill would make such information subject to Virginia Freedom of Information Act requests.
Virginia currently has three prisoners on death row, and no new death sentences have been imposed since 2011. The last execution in the state occurred in 2017 when severely mentally ill prisoner William C. Morva was executed. Since the reinstatement of the state’s death penalty in 1976, Virginia has carried out 113 executions, making it second only to Texas for most executions carried out in the same period.
For the third consecutive year, the Washington state Senate passed bipartisan legislation which would repeal the state’s death penalty. Lawmakers considered SB 5339, which proposed repealing the death penalty in favor of life without parole. In February, the state Senate passed the bipartisan legislation and it was sent to the House for consideration, where it had stalled in previous years. After lawmakers heard testimony in support of and opposition to the measure, SB 5339 successfully passed out of the House Committee on Public Safety. In 2019, a similar bill passed the Senate but failed after it was not called for a vote in the House. In 2018 the Washington Supreme Court ruled that the death penalty, as administered in the state, was unconstitutional because it was arbitrary and racially biased. The ruling also stated that the existing death sentences in the state were to be converted to life without the possibility of parole. If passed, SB 5339 would effectively make permanent the 2018 ruling by repealing the death penalty rather than attempting to revise the state’s death penalty law to make it constitutional. Washington’s most recent execution occurred in 2010, and in 2014 Governor Jay Inslee put a moratorium on executions in the state. Governor Inslee has indicated that he will sign the bill if it makes it to his desk.
In February, Republican State Representative Jared Olsen filed HB 166, the state’s latest attempt at death penalty repeal. The bill narrowly failed to get the votes needed to be introduced to the legislature. The last execution in Wyoming occurred in 1992. There are currently no prisoners on Wyoming’s death row after a 2014 ruling that vacated the death sentence of the sole occupant due to ineffective assistance of trial counsel. Wyoming lawmakers have introduced repeal bills the past several years. In 2019, a similar repeal bill received more support than initially anticipated. It cleared the House and several committee votes before ultimately seeing defeat in the Senate.
The 2020 repeal bill faced a significant obstacle that was not present in 2019. In even-numbered years, Wyoming dedicates the legislative session primarily to the state budget, and the introduction of any bill unrelated to budget hinges on a two-thirds vote. Representative Olsen asked his fellow lawmakers to introduce the bill so that it could at least advance to a committee where testimony could be heard. However, in February the bill narrowly failed introduction when it fell three votes short of the 40 needed to be introduced to the legislature.