On Wednesday, the state of Oklahoma was scheduled to execute Richard Glossip, the first execution in the state since January and the 21st execution in the country this year.
Hours before the execution, the state's Court of Criminal Appeals granted Glossip a two-week stay of execution so that it can consider a last-minute filing by Glossip's lawyers. Without further order from the court, however, the execution will proceed on Sept. 30.
While the Supreme Court's June decision to allow Oklahoma to continue to use midazolam as part of its three-drug execution protocol was a loss for opponents of the death penalty — who were attacked at oral arguments by Justice Samuel Alito as waging a "guerrilla war" against executions — the decision itself was overshadowed in some ways by a dissenting opinion by Justice Stephen Breyer.
"In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems," Breyer, joined by Justice Ruth Bader Ginsburg wrote. "Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed."
Breyer's reference to 1976 was to the Supreme Court's decision upholding the death penalty laws considered in Gregg v. Georgia as constitutional. The decision ended a four-year moratorium on executions in the country that had resulted from the court's 1972 ruling in Furman v. Georgia that the implementation of the death penalty was unconstitutional.
In detailing the reasons why he and Ginsburg called for reconsideration after nearly 40 years of whether the death penalty itself is unconstitutional, Breyer laid out three defects: unreliability of the death penalty process, arbitrariness of how that process is implemented, and delays in the process that undermine its purposes. "Perhaps as a result ... most places within the United States have abandoned its use," Breyer wrote.
As part of its coverage of the death penalty in America, BuzzFeed News will be updating this map as needed to provide a visual answer — along with descriptions below — to the question of where the death penalty is used in the U.S.
Active Death Penalty Law
Thirteen states with the death penalty and with an execution in the past 5 years: For several months this year, only Texas and Missouri conducted executions. The states are the only known two that have both wanted to proceed with executions and have been able to secure pentobarbital, a single execution drug that was not at issue in the recent Supreme Court case. As September turned to October, both Georgia and Virginia also held executions.
Earlier this year, Florida also held an execution, in January.
Over the past five years, however, eight other states also have conducted executions, with several of them planning to conduct executions over the coming six months.
In Ohio, Gov. John Kasich put off all executions in 2015, and recently extended that through 2016, but they are scheduled to resume in January 2017.
Ten states with the death penalty and no moratorium, but no executions in the past 5 years:
In many states, however, the death penalty remains the law but actual executions have all but ended.
In Kansas, the most recent executions took place in 1965 and included Perry Smith and Richard Hickock — the killers of the Clutter family made famous by Truman Capote nonfiction novel In Cold Blood.
New Hampshire last executed someone in 1939.
In other states, the death penalty has been used since executions resumed in the U.S. again in 1976, but not recently. In Wyoming, for example, only one person has been executed since Gregg, and he was executed in 1992.
Four states with a governor-imposed moratorium on executions: Halts on executions in Colorado, Oregon, and Washington have taken executions off the table in those states without much pushback, but Pennsylvania Gov. Tom Wolf's decision to set a moratorium has been challenged by the Philadelphia district attorney. The state's Supreme Court heard arguments recently on whether Wolf has the authority to issue continual, indefinite reprieves on executions in the state.
Four states with a court-imposed moratorium on executions: A federal court declared California's death penalty system to be unconstitutional, although the state has had executions on hold for various reasons since 2006. The state appealed the most recent ruling, and an appeal was heard earlier this year by the 9th Circuit Court of Appeals.
A Montana judge ruled that the state could not conduct executions using its current execution protocol under its current statute because, the judge found, pentobarbital is not "ultra-fast acting barbiturate," as the law requires.
A federal court in Oklahoma approved an agreement there between state officials and death row inmates that put the death penalty on hold for now, while an investigation into the state's multiple execution drug mix-ups proceeds.
The Arkansas Supreme Court, meanwhile, placed executions there on hold pending the outcome of litigation challenging the constitutionality of the state's new execution law.
One state with death penalty abolition referendum pending: Although the Nebraska legislature — over Gov. Pete Ricketts's veto — passed legislative repeal of the state's death penalty, a group, backed by Ricketts, has collected and submitted signatures seeking to put the measure up to a vote in 2016.
No Death Penalty
There are 18 states with no death penalty: The states include Alaska and Hawaii, which never had the death penalty as a punishment since becoming states.
Among the states without the death penalty, Connecticut has the notable distinction of having had the death penalty legislatively repealed and declared to be unconstitutional by the state's Supreme Court. This happened because the state's legislative repeal of the death penalty was not retroactive, leading those remaining on death row to successfully challenge their continued death sentences.
The lack of retroactivity in legislative death penalty repeal is also the reason why two people remain on New Mexico's death row, despite the fact that the death penalty there was repealed six years ago.
Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, DC. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.
Contact Chris Geidner at firstname.lastname@example.org.
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