Death Penalty: Lethal Injection on Trial

(Updated August 2, 2006)

The death penalty is on hold in eight of the 38 states to adopt capital punishment since 1977 as courts and state lawmakers wrestle with fears of executing the innocent, the emerging role of DNA evidence and new assaults on use of lethal injection. Although the public still favors capital punishment, support has slipped and the number of executions and new death sentences is trending down. A fresh batch of legal obstacles — including new court scrutiny of the use of lethal injection and of doctors' role in administering fatal doses - clouds what still is a controversial social issue in the United States.

Currently, New York's death penalty has been struck down by the state's highest court and moratoriums against the death penalty are in place in Illinois and New Jersey. In addition, executions are temporarily suspended in California, Delaware, Florida, Louisiana and Missouri pending court rulings on challenges against lethal injection.

New Jersey, which has not executed any prisoners since adopting the death penalty in 1982, set a precedent in January 2006 when its Legislature became the first to adopt a death penalty moratorium. Signed into law by out-going Gov. Richard Codey (D), the moratorium will be in effect until a state commission completes an investigation of the state's capital punishment system. A gubernatorial-imposed moratorium has been in effect in Illinois for six years.

Court challenges against lethal injection are pending in at least a dozen states. Federal judges in Missouri and Delaware in July p ut executions by lethal injection on hold until questions over how the procedure is carried out can be resolved.

California suspended all executions when no medical professional would agree to administer the fatal dose, as required by a federal court ruling on Feb. 14, 2006. Executions will be suspended until a federal judge completes the state's first hearings on the constitutionality of lethal injection.

Louisiana also has suspended all executions since 2002 as the state contests a lawsuit over how lethal injections are administered.

The outcome of these cases may address several emerging issues concerning lethal injection, including how much pain it causes and what role medical professionals should play in ending the lives of prisoners.

The U.S. Supreme Court, which outlawed the execution of juveniles under age 18 in March 2005 and of the severely retarded in 2002, has not agreed to consider the constitutionality of lethal injection or any other form of execution. However, the Supreme Court ruled in June that d eath row inmates can file last-minute challenges to lethal injection after they've exhausted their regular appeals.

The ruling, which came from a case filed by a Florida death row inmate, gives the nation's 3,300 death row inmates a new tool to contest how they are put to death. The nation's highest court has never ruled on the constitutionality of a specific type of execution.

Lethal injection is the primary or exclusive form of execution in 37 of the 38 states that have capital punishment laws. Nebraska remained the sole exception after its highest court in July upheld the electric chair as the state's only form of execution. Kansas and New York had their death penalty systems struck down as unconstitutional in 2004. The U.S. Supreme Court reinstated Kansas' death penalty law in June. Lawmakers in New York rejected legislation to reinstate the death penalty in 2005.

In Massachusetts, lawmakers voted by a 2-to-1 ratio against a proposal by Gov. Mitt Romney (R) to impose the death penalty in November 2005. Public support of the death penalty has slipped over time but remains firmly in favor of capital punishment. An October 2005 Gallup Poll found that 64 percent of Americans favor the death penalty for murder, down from 80 percent support in 1994. However, the advent of modern DNA analysis and recent revelations of innocent men being sentenced to death may be contributing to a steady decline in the application of the death penalty. Sixty prisoners were executed in 2005, one more than a nine-year low of 59 in 2004 and down 39 percent since peaking at 98 in 1999. Only 16 of the 38 states with death penalty statutes carried out executions in 2005, down from 18 states the year before. On Dec. 2, 2005, Kenneth Boyd of North Carolina became the 1,000th person executed in the U.S. since the nation's highest court in 1976 declared the death penalty legal if statutes are properly written. Fewer death sentences were handed down in 2005 than in any year since 1976, according to the Death Penalty Information Center (DPIC), a nonprofit group that has been critical of capital punishment in practice. The official number of prisoners sentenced to death will not be released from the U.S. Bureau of Justice Statistics until November 2006, but DPIC estimated that juries handed down fewer than 100 new death sentences in 2005, down nearly 70 percent from the all-time high of 320 death sentences in 1996.

The declining number of death sentences follows a trend by lawmakers and the judiciary over the past 30 years to narrow the scope of capital punishment by tightening state sentencing statutes and banning the execution of specific groups of people, including the mentally insane, severely retarded, and juvenile defendants younger than 18.

Plummeting murder rates nationwide also account for part of the reduction in death sentences. According to the Department of Justice, the number of murders declined 31 percent from 23,326 in 1995 to 16,137 in 2004. Allowing one year for trial and sentencing, death sentences decreased by 70 percent from 318 in 1995 to an estimated 96 in 2005. Significantly, the nation's murder rate has not changed much since 1999, while executions and death sentences dropped at their fastest rates.

Experts point to other factors contributing to the waning of the death penalty. Concerns over flaws in the way death sentences are carried out caused Illinois Gov. George Ryan (R) in 2000 to impose a statewide moratorium on executions and then to commute the death sentences of all 167 prisoners on death row before leaving office in 2003. Ryan, now on trial in Chicago for unrelated corruption charges, cited state investigations that uncovered police corruption and racial bias in the state's capital punishment system that resulted in the exoneration and release of 12 death row inmates.

The Illinois Legislature has passed several reforms intended to persuade current Democratic Gov. Rod Blagojevich to lift the moratorium, but he has said the system is far from fixed. Ten men have been sentenced to death in Illinois since Ryan emptied death row.

Advocates for abolishing the death penalty say Illinois' problems were not isolated but typical of capital punishment systems nationwide.

They point to mistakes that have lead to the exoneration and release of 123 men from death row in 25 states since 1973, including nearly 30 in the past three years, according to DPIC. Capital punishment supporters say that nearly half of those exonerations were due to prosecutorial misconduct or lack of evidence on retrial. They say that there is no evidence an innocent person has ever been executed and that states should be more concerned with making sure killers don't get off scot-free because of faulty prosecution.

Then-Gov. Mark Warner (D) of Virginia set a precedent in January 2006 by ordering the first-ever review of DNA evidence involving an already executed man. Although the review upheld the guilt of Roger K. Coleman, who was executed in 1992, it may open the door for similar challenges, advocates say. Modern DNA analysis also may be making it harder rather than easier for prosecutors to secure the death penalty. Prosecutors have commented that popular crime TV shows such as "CSI: Crime Scene Investigation" have made it harder to secure death sentences — or even lesser convictions — because juries now expect to see ironclad scientific evidence such as DNA before voting for the ultimate punishment. At the state and local level, many prosecutors, victims' advocates and lawmakers remain staunch supporters of the death penalty, which they view as a necessary and effective deterrent to crime.

Although there have been only three executions at the federal level, the Clinton and Bush administrations have greatly expanded the potential use of capital punishment for some drug and terrorism crimes. Former U.S. Attorney General John D. Ashcroft directed his prosecutors to seek the death penalty in many cases, sometimes overruling local prosecutors who had decided against it.

Constitutional experts say the current U.S. Supreme Court is unlikely to accept any cases seeking to overturn the death penalty system. However, there are several legal challenges in state and federal courts that could impact the way the death penalty is carried out. The Supreme Court outlawed the execution of juveniles who committed crimes when below age 18 in March 2005, sparing the lives of 72 juvenile offenders waiting on death row nationwide. This was the high court's first decision on the death penalty since 2002, when it banned the execution of the severely retarded.

2006 U.S. Supreme Court rulings :
  • Hill v. McDonough-- The court ruled in June that a death row inmate in Florida could file a last-minute challenge to the state's lethal injection procedures even though he had exhausted his regular appeals . The ruling did not address the constitutionality of lethal injection but set the stage for a test of the constitutionality of the procedure.
  • House v. Bell -- The court ruled in June that a Tennessee death row inmate can get a new trial based on new DNA evidence.
  • Kansas v. Marsh- The court reinstated Kansas' 1994 death penalty law, which was struck down by the state's high court in 2004. The high court ruled that during the death sentencing phase of a trial the state's practice of imposing the death penalty in cases of a tied jury is not unconstitutional.
Pending state actions :
  • Federal judges in Missouri and Delaware in July p ut executions by lethal injection on hold until questions over how the procedure is carried out can be resolved.
  • California suspended executions indefinitely in February 2006 because medical professionals refused to administer a lethal injection as required by a federal judge. The judge had agreed with a complaint by the defendant that prison officials were not qualified to administer the lethal injection without the supervision of qualified medical personnel. Hearings are scheduled in May 2006 before the same judge to consider whether California's method of lethal injection violates the constitutional ban against cruel and unusual punishment.
  • Louisiana has halted all executions since 2002 as the state fights a lawsuit over the mix of drugs used for lethal injections and how executioners are trained. 
  • New Jersey courts ordered the state department of corrections to re-examine its lethal injection procedure in 2004 before carrying out what would have been the state's first execution. Legislation was signed by the governor in January 2006 to impose a moratorium and study the state's death penalty system.
  • Legal challenges against lethal injection also are pending in Indiana, Kentucky, Maryland, North Carolina, Ohio, Oklahoma, Tennessee, Texas and Virginia, according to DPIC.

This "Backgrounder" is a work in progress and will be updated as warranted.
You can find a great deal of information on the death penalty, including statistics, reports, analysis and commentary, on the following Web sites. will list other helpful resources as we find them.

The Death Penalty Information Center
A nonprofit group funded by grants and private contributions, provides a wealth of facts and statistics, issues reports critical of the death penalty.
A Web site maintained by Justice For All , an advocacy group lobbying for victims' rights and funded by private and corporate membership, tracks death penalty related issues and legislation. Go to its Death Penalty Links page for comprehensive links to dozens of related Web sites.

National Coalition to Abolish the Death Penalty
Created in 1976 after the Supreme Court reinstated the death penalty and funded by private donations and grants, NCADP supports grassroots lobbying against capital punishment. Its Web site provides news and statistics, also tracks pending executions.

1000 Death Penalty Links
Large collection of death penalty links compiled on the Web site of Steven D. Stewart, the prosecuting attorney for Clark County, Ind., who supports the death penalty.

Contact Kavan Peterson at

Related Stories