NEW SCHOLARSHIP: History Says Those Left on Death Row After Capital Punishment Statutes are Struck Down or Repealed Should Not be Executed

“What should become of individuals who are awaiting execution following the repeal or judicial invalidation of capital punishment legislation?,” ask authors James R. Acker (pictured, left) and Brian W. Stull (pictured, right) in a recent article published in the Akron Law Review. If history is a guide, they say, the prisoners’ lives should be spared.

In Life After Sentence of Death: What Becomes of Individuals Under Sentence of Death After Capital Punishment Legislation is Repealed or Invalidated, published as part of the law journal’s 2021 Criminal Justice Reform Issue, Acker, an emeritus distinguished teaching professor in the University of Albany’s School of Criminal Justice, and Stull, a senior staff attorney at the American Civil Liberties Union Capital Punishment Project, analyzed what happened to prisoners who were on death row in each of the 30 U.S. states that, at some point in their history, abolished capital punishment. The researchers found that while death penalty repeal laws frequently abolish the death penalty only for future crimes or future cases, no one has ever been executed in the United States after the death penalty has been abolished in their jurisdiction. That outcome was the same, they noted, whether abolition occurred as a result of legislative repeal or judicial invalidation of the state’s capital punishment statute.

Acker and Stull also surveyed international practices, looking for post-abolition executions in Canada, the United Kingdom, Europe, and other countries worldwide. Again, they found no examples of prisoners being executed under vestigial death-penalty statutes. And they investigated whether any 16- or 17-year-old death-sentenced offenders were executed in states that subsequently raised the minimum age of death-penalty eligibility to 18. Here, too, the answer was none.

The authors take no position on what the fate should be for individuals left on death row after a non-retroactive abolition of the death penalty. “[D]isagreements 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,” they write. However, they say, “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.”

“[T]hese actions,” they write, “speak loudly, and quite arguably more loudly than words, as actions often do.”

Four Utah Prosecutors Urge Legislature to Repeal and Replace Death Penalty

Four Utah district attorneys, representing counties that comprise 57.5% of the state’s population, have urged the state legislature and Utah Governor Spencer Cox to enact legislation to repeal and replace Utah’s death penalty.

In an open letter to Cox and the legislature released September 14, 2021, Salt Lake County District Attorney Sim Gill, Grand County Attorney Christina Sloan, Summit County Attorney Margaret Olson, and Utah County Attorney David Leavitt — two Republicans and two Democrats — called capital punishment “a grave defect” in the operation of the law “that creates a liability for victims of violent crime, defendants’ due process rights, and for the public good.”

The four prosecutors wrote, “the death penalty in Utah today is a permanent and irreversible sentence within an imperfect system. It fails to deter crime. It retraumatizes victims. It disproportionately applies to minorities. It is expensive. And it makes plea negotiations coercive.” Endorsing legislation proposed September 8 by State Representative Lowry Snow and State Senator Daniel McCay, the prosecutors said “[t]he Legislature would better serve Utah by replacing the death sentence with [a] 45 years to life term,” permitting aggravated murder in the state to be punishable by a sentence of life without parole, 45 years to life, or 25 years to life.

The prosecutors unveiled their letter in a news conference hosted by Gill and attended by Leavitt and Olson. Gill, whose office serves the nearly 1.2 million people in Utah’s largest County, stressed the untrustworthiness of the justice system to perfectly protect the innocent. Noting that one death-row prisoner has been exonerated for every nine people executed since capital punishment resumed in the U.S. in the 1970s, Gill said, “If a pilot was good only 90% of the time at landing the plane, we would say that person shouldn't be flying.” Leavitt, whose office serves the 665,000-person Utah County, the second largest in the state, was more blunt. “The death penalty,” he said, “is simply a big lie that we tell ourselves to help us believe that we’re making a difference.”

Snow and McCay emphasized the death penalty’s adverse impact on family members of murder victims in their earlier news conference announcing the repeal effort. Olson returned to that theme at the prosecutors’ news conference. “Instead of the death penalty providing closure to victims,” she said, “the constitutional appeals that follow mean a death sentence will take decades to impose if it ever happens. … Since the year 2000, more men have died of old age on death row [in Utah] than by execution.”

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