Academic journal article Missouri Law Review

Omnes Vulnerant, Postuma Necat; All the Hours Wound, the Last One Kills: The Lengthy Stay on Death Row in America

Academic journal article Missouri Law Review

Omnes Vulnerant, Postuma Necat; All the Hours Wound, the Last One Kills: The Lengthy Stay on Death Row in America

Article excerpt

I. INTRODUCTION

The Bureau of Justice Statistics has compiled statistical analyses showing that the average amount of time an inmate spends on death row has steadily increased over the past thirty years. (1) In fact, the shortest average amount of time an inmate spent on death row during that time period was seventy-one months in 1985, or roughly six years, with the longest amount of time being 198 months, or sixteen and one half years, in 2012. (2) This means that the amount of time an inmate spends on death row has almost tripled over the past few decades. (3)

Missouri has increased its rate of executions in recent years and tied with Texas for administering the most executions in 2014. (4) Between 1989 and 2014, the average stay on death row in Missouri was a little over twelve years, with the average stay for Missouri prisoners between 2013 and 2014 being roughly twenty years. (5) With the rapid rate of executions, a Missouri post-conviction attorney reports that her clients are now becoming "more stressed," as inmates that her clients have been living with for ten to fifteen years are just now being executed. (6) Arizona, Georgia, Florida, Missouri, Ohio, Oklahoma, and Texas are the only states to have executed any of their death row inmates in the past year. (7) Many states have only executed three or fewer inmates since the reinstatement of the death penalty in 1976; yet, they continue to retain the death penalty as a potential punishment for first-degree murder. (8)

Although many states rarely, if ever, execute their inmates, all states that currently have the death penalty have inmates on their death row. (9) How long is too long for these inmates to wait for a punishment they may never receive? If states are unwilling or unable to execute in a timely fashion, then are these inmates effectively experiencing life without parole with only the remote possibility of death at the hands of the state?

Why inmates spend so long on death row and the accompanying mental ramifications are discussed in Part II. Part III discusses the response of American courts to the lengthy stays of inmates on death row. Next, Part IV discusses the international opinion on America's lengthy stay on death row, international tribunal holdings on the matter, the philosophical implications of a lengthy stay on death row, and possible solutions. Finally, Part V concludes this Note, finding that abolition of the death penalty is the best solution.

II. BACKGROUND: THE CONSEQUENCES OF A LONG STAY ON DEATH ROW

This Part discusses the appeals process for death row inmates and additionally exposes some of the factors giving rise to the lengthy stay on death row. Following that, Part II.B. describes the mental suffering that an inmate endures while on death row, and Part II.C. defines "Death Row Phenomenon."

A. Why the Long Wait?

The reason there is so much time between sentencing and execution is the appellate process. If a defendant is sentenced to death after the guilt and sentencing phases of trial, his sentence is automatically appealed to the state's highest court. (10) Then, if the conviction is not overturned, the defendant can petition the Supreme Court of the United States on federal constitutional grounds. (11) If the Supreme Court denies certiorari, the defendant can then make a state post-conviction appeal to the original trial court judge. (12)

It is on this post-conviction appeal to the original trial court judge that the defendant can raise issues outside of the record, such as incompetent counsel, new evidence, Brady violations, etc. (13) After appealing to the trial court judge, the defendant can subsequently appeal to the state's intermediate appellate court and then to the state's highest court. (14) If the state's highest court upholds the conviction, the defendant can petition the Supreme Court of the United States again on issues outside of the record. …

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