The fol­low­ing infor­ma­tion is tak­en from the Bureau of Justice Statistics: Capital Punishment and is the sta­tis­ti­cal data of the death-row pop­u­la­tion for12/​31/​2019.

• 56.1% of the death-row pop­u­la­tion is White,41.4% is Black,1.6% is Asian/​Native Hawaiian/​Other Pacific Islander, and .8% is American Indian/​Alaska Native.BJS records Hispanic/​Latino ori­gin as eth­nic­i­ty, not race, how­ev­er, and many Latinx pris­on­ers (who com­prise15.1% of death row) are list­ed byBJS as White.
• Men make up98% of those on death row; women make up 2%
• The medi­an edu­ca­tion lev­el of death-row pris­on­ers is 12^th grade.
• 55.5% of death-row pris­on­ers have nev­er mar­ried;19.6% are divorced or sep­a­rat­ed;21.3% are cur­rent­ly mar­ried; and3.6% are widowed.
• 28.2% of death-row pris­on­ers are age25 to44. and54.8% are50 or older.
• 9.5% of death-row pris­on­ers had a pri­or homicide conviction.
• 67.8% had pri­or felony convictions.

The fol­low­ing infor­ma­tion is tak­en from the Bureau of Justice Statistics: Capital Punishment and is the sta­tis­ti­cal data of the death-row pop­u­la­tion for12/​31/​2008 (the last year that this data was publicly reported.)

• Among all pris­on­ers under sen­tence of death, half were age20 to29 at the time of arrest;10.5% were age19 or younger; and1% were age55 or older.
• The aver­age age at time of arrest was 29 years.

The Aging of the Death Row Population

America’s death row pop­u­la­tion is aging sig­nif­i­cant­ly: Five hun­dred and sev­en­ty-four pris­on­ers were60 years old or old­er as of2019. That fig­ure rep­re­sents a grow­ing senior death row pop­u­la­tion, which num­bered just39 in1996. Some death row seniors com­mit­ted crimes late in life, but many are there at such advanced age because of the inevitable slow­ness of the cap­i­tal appeals process. Unlike elder­ly pris­on­ers in the gen­er­al pop­u­la­tion, death row seniors typ­i­cal­ly are not housed in prison geri­atric facil­i­ties or placed in​“end of life” pro­grams, but rather are often seg­re­gat­ed in indi­vid­ual cells with­in special facilities.

Legal schol­ars have argued that exe­cut­ing peo­ple who have become so old is incon­sis­tent with human­i­tar­i­an val­ues.​“Dead man walk­ing is one thing,” said Jonathan Turley, a George Washington University law pro­fes­sor who has worked with old­er pris­on­ers.​“Dead man being pushed along to the exe­cu­tion cham­ber in a wheel­chair is anoth­er thing.” (USA Today, February10, 2005).

On December9,2021, Oklahoma exe­cut­ed79-year-oldBigler Stouffer, its old­est death-row-pris­on­er and the old­est per­son to be exe­cut­ed in that state.James Frazier, Ohio’s old­est death-row pris­on­er, was sched­uled to be exe­cut­ed October20,2021, beforedying ofCOVID on November19,2020. He suf­fered from demen­tia fol­low­ing a series of strokes, could not walk, and required the assis­tance of aides to com­plete dai­ly tasks. His lawyers had filed a peti­tion to bar his exe­cu­tion on grounds of mental incompetency.

In2018, one year after exe­cut­ing75-year-old Thomas Arthur, Alabama exe­cut­ed83-year-oldWalter Moody, the old­est per­son and only octo­ge­nar­i­an put to death in the United States since exe­cu­tions resumed in1977. A DPIC analy­sis of U.S. exe­cu­tion data found that only three of the944 pris­on­ers exe­cut­ed in the United States between1977 and2004 had been aged65 or old­er. That total was matched in the first six months of2019, with the exe­cu­tions of Billie Coble (70), Donnie Johnson (68), and Robert Long (65). In23 years of exe­cu­tions between1977 and the close of the20^th cen­tu­ry, only ten pris­on­ers aged60 or old­er were exe­cut­ed. Forty-five pris­on­ers aged60 or old­er were exe­cut­ed between January2010 and June2019,23 since 2015 alone.

With the aging of death row, states and courts are grap­pling with how issues of age-relat­ed phys­i­cal and men­tal decline affect exe­cu­tions. In2004, a 74-year-old man was put to death in Alabama for a mur­der he com­mit­ted in1977. Before his exe­cu­tion, J.B. Hubbard for­got who he was at times because of demen­tia. He suf­fered from colon and prostate can­cer, and he was so weak that oth­er inmates some­times walked him to the show­er and combed his hair. (Washington Post, August6, 2004).

Ohio tried and failed to exe­cute ter­mi­nal­ly ill69-year-old Alva Campbell (pic­tured) in November2017. Campbell was afflict­ed with lung can­cer, chron­ic obstruc­tive pul­monary dis­ease, res­pi­ra­to­ry fail­ure, prostate can­cer, and severe pneu­mo­nia; he relied on a colosto­my bag, need­ed oxy­gen treat­ments four times a day, and required a walk­er for even lim­it­ed mobil­i­ty. After fail­ing four times to find a suit­able vein in which to set an intra­venous exe­cu­tion line, Ohio called off the exe­cu­tion. Governor John Kasich grant­ed Campbell a tem­po­raryreprieve and resched­uled his exe­cu­tion for June2019. Campbelldied of his ter­mi­nal ill­ness less than six months later.

The U.S. Supreme Court stayed the exe­cu­tion of67-year old Alabama pris­on­er Vernon Madison in2018 based on con­cerns that he was incom­pe­tent to be exe­cut­ed. Madison suf­fered mul­ti­ple severe strokes that caused him brain dam­age, vas­cu­lar demen­tia, and ret­ro­grade amne­sia. The strokes also left him with slurred speech, legal­ly blind, incon­ti­nent, and unable to walk inde­pen­dent­ly. In addi­tion to hav­ing no mem­o­ry of the offense, he can no longer recite the alpha­bet past the let­ter G, soils him­self because he does not know there is a toi­let in his cell, asks that his moth­er — who is dead — be informed of his strokes, and plans to move to Florida when he is out of jail. The State of Alabama had argued that Madison’s demen­tia was not a bar to exe­cu­tion, but in a 2019 rul­ing, the U.S. Supreme Court ruled that cog­ni­tive issues asso­ci­at­ed with demen­tia could ren­der a pris­on­er incom­pe­tent to be executed.

International Perspectives
 

Numerous inter­na­tion­al human rights treaties explic­it­ly pro­hib­it gov­ern­ments from sub­ject­ing indi­vid­u­als to​“cru­el, inhu­man or degrad­ing treat­ment or pun­ish­ment.” The pro­hi­bi­tion is among the core prin­ci­ples includ­ed in theUniversal Declaration of Human Rights in1948 short­ly after the for­ma­tion of the United Nations (Article5), theInternational Covenant on Civil and Political Rights (Article7), theConvention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Preamble and Article16), and theConvention on the Rights of Persons with Disabilities (Article17), among oth­er human rights instru­ments. A grow­ing body of inter­na­tion­al case law sug­gests that extend­ed con­fine­ment on death row under threat of exe­cu­tion con­sti­tutes cru­el, inhu­man, or degrading punishment.

In his dis­sent­ing state­ment inElledge v. Florida in1998, Justice Stephen Breyer not­ed that British jurists have sug­gest­ed that the Bill of Rights of1689 – a key part of English com­mon law that Breyer described as​“rel­e­vant to the inter­pre­ta­tion of our own Constitution” – may pro­hib­it some delays as cru­el and unusu­al. In a land­mark1993 rul­ing, the Judicial Committee of the Privy Council – the British court that serves as the high­est appeals court for Caribbean Commonwealth coun­tries – ruled that exe­cut­ing pris­on­ers after they had already spent more than five years on death row was​“inhu­mane and degrad­ing,” amount­ing to uncon­sti­tu­tion­al dou­ble pun­ish­ment. Such pris­on­ers, the court held, must have their death sen­tences com­mut­ed to life in prison. (The Independent, Nov.3, 1993).

The committee’s sev­en Law Lords did not rule that the death penal­ty itself was uncon­sti­tu­tion­al. But​“there is an instinc­tive revul­sion against the prospect of hang­ing a man after he has been held under sen­tence of death for many years,” they wrote.​“What gives rise to this instinc­tive revul­sion? The answer can only be our human­i­ty. We regard it as an inhu­man act to keep a man fac­ing the agony of exe­cu­tion over a long extend­ed peri­od of time.” (Ibid). The deci­sion, known as thePratt and Morgan rul­ing, result­ed in the com­mu­ta­tion of scores of death sen­tences in Jamaica, Bermuda, Barbados, and Trinidad and Tobago, cut­ting the death row pop­u­la­tion of English-speak­ing Caribbean nations by more than half. (The Miami Herald, September8, 1998).

The Supreme Court of Canada, which does not have the death penal­ty, ruled in2001 that two Canadian cit­i­zens charged with mur­der in Washington state could be extra­dit­ed to the United States only with the guar­an­tee that they would not receive the death penal­ty. The Canadian court found that the poten­tial for long incar­cer­a­tions before exe­cu­tion was a​“rel­e­vant con­sid­er­a­tion” in deter­min­ing whether extra­di­tion vio­lates prin­ci­ples of​“fun­da­men­tal jus­tice.” (United States v. Burns, S.C.R.283,353,123, cit­ed inFoster v. Florida,2002).

In2009, the President of Kenya com­mut­ed the death sen­tences of all of the coun­try’s more than4,000 death row pris­on­ers to life, cit­ing the wait to face exe­cu­tion as​“undue men­tal anguish and suffering.”

Death Row Syndrome/​Death Row Phenomenon

Psychologists and lawyers in the United States and else­where have argued that pro­tract­ed peri­ods in the con­fines of death row can make pris­on­ers sui­ci­dal, delu­sion­al and insane. Some have referred to the liv­ing con­di­tions on death row – the bleak iso­la­tion and years of uncer­tain­ty as to time of exe­cu­tion – as the​“death row phe­nom­e­non” and the psy­cho­log­i­cal effects that can result as​“death row syn­drome.” The ori­gins of these con­cepts are often traced to the1989 extra­di­tion hear­ings of Jens Soering, a German cit­i­zen who was charged with mur­ders in Virginia in1985 and who fled to the United Kingdom.

Soering argued to the European Court of Human Rights that the con­di­tions he would face dur­ing the lengthy peri­od between sen­tenc­ing and exe­cu­tion would be as psy­cho­log­i­cal­ly dam­ag­ing as torture.

The court agreed. In its rul­ing that he could not be sent to a place that would sen­tence him to death, the court cit­ed not the death penal­ty itself, but rather the​“Death Row phe­nom­e­non” in which pris­on­ers spent years await­ing exe­cu­tion while their cas­es were appealed. (Associated Press, July27,1989). Soering was extra­dit­ed in1990, but only with the pros­e­cu­tors’ promise not to seek the death penalty.

TheSoeringcase has been cit­ed as prece­dent in inter­na­tion­al extra­di­tion cas­es, though today courts in coun­tries with­out the death penal­ty often will not extra­dite to the United States because of the pos­si­bil­i­ty of exe­cu­tion itself, regard­less of how long the wait on death row, since the death penal­ty itself is seen as a vio­la­tion of human rights.

Conclusion

The time that U.S. pris­on­ers spend on death row has got­ten increas­ing­ly longer in recent years and rais­es ques­tions about the con­sti­tu­tion­al­i­ty of this added pun­ish­ment. Although the U.S. Supreme Court has not addressed this issue, it has been repeat­ed­ly cit­ed as a seri­ous con­cern by death penal­ty experts in the U.S. and by courts out­side the U.S. Shortening the time on death row would be dif­fi­cult with­out either a sig­nif­i­cant allo­ca­tion of new resources or a risky cur­tail­ment of necessary reviews.

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