The Demographics of Death Row in 2023
More on the Death Penalty's Decline and Statistics Regarding the Legal Status of Those Facing Jeopardy of Execution
Last week, a DP3 analysis of death-row data compiled by the Legal Defense Fund (LDF) reported that the number of people on death row or facing possible capital resentencing across the United States had reached a three-decade low, but that even as death row shrank in size it became more racially disproportionate. Today, in a numbers-heavy posting, we take a look at that decline, the status of the cases of those sentenced to death or facing capital resentencing, and the current demographics of U.S. death row.
Tracking Death Row’s Decline
According to the Winter 2023 edition of Death Row USA (DRUSA), LDF’s latest quarterly death-row census, 2,331 men and women were imprisoned on state, federal, or military death rows in the United States or faced continuing jeopardy of death in pending capital retrial or resentencing proceedings as of January 1, 2023. That marked a more than 37% decline from the 3,717 men and women who, when death row peaked in July 2001, faced active death sentences or continuing jeopardy that a death sentence that had been overturned would be reimposed.
The last time fewer people were on U.S. death rows was in the Spring of 1990, when the May 2, 1990 DRUSA counted 2,327 prisoners on state or federal death rows or facing capital resentencings.
According to the Bureau of Justice Statistics, U.S. death row has declined in size every year since 2001, as the number of individuals freed from death row after their death sentences have been overturned has outstripped the number of new death sentences imposed and increasing numbers of aging death row prisoners die in custody. The decrease has occurred at the same time that the number of annual executions in the United States has plummeted.
Tables from Tracy L. Snell, Capital Punishment, 2020 – Statistical Tables, Bureau of Justice Statistics, December 2021.
The biggest declines in the U.S. death-row population have followed major court decisions declaring state death-penalty statutes or practices unconstitutional, legislative abolition of capital punishment, and gubernatorial grants of universal clemency. But mostly, there has been a steady erosion of death row. In January 2003, DRUSA reported 3,692 individuals on death row or facing jeopardy of capital resentencing, just 25 individuals and 0.7% off the peak. But as the long-term 85% annual decline in new death sentences accelerated, so did the drop in the national death-row population.
By January 2008, DRUSA reported 3,309 individuals on death row or facing jeopardy of resentencing, a 10.4% decline (383 people) highlighted by Governor George Ryan’s universal grant of clemency (4 pardons, 167 commutations) to Illinois’ death row. Five years later, in January 2013, the number was down another 5.6% (184 people) to 3,125. In the next five years, there was an 11.4% decline, as a net total of another 357 people came off death row, with the Winter 2018 DRUSA reporting a death-row population of 2,768.
The Winter 2023 DRUSA reveals that the net number of people sentenced to death or facing reimposition of the death penalty has declined by another 437 people — or 15.8% — in the five years since. The net population of death row declined by 78 (2.8%) to 2,690 as of January 1, 2019; by 70 (2.6%) in 2019; by 92 (3.5%) in 2020 and another 92 (3.6%) in 2021; before falling by 105 (4.3%) to 2,331 at the close of last year.
The Status and Demographics of Death Row
What “death row” means and how many people are on it is not as simple a concept as one might initially assume. The most expansive concept of death row, which is encompassed by the broadest of LDF’s numbers, is everyone who has been sentenced to death who still faces the possibility of execution. That includes individuals whose convictions or death sentences have been overturned on appeal but whose death sentences could be reinstated on appeal or reimposed in pending capital retrial or resentencing proceedings.
A second possible measure of death row looks at how many individuals have “active death sentences” — that is, everyone currently sentenced to death whose conviction or death sentence has not been reversed in the courts. That conception of death row counts everyone with presumptively valid death sentences, excludes those with final grants of penalty-phase relief (who are still prisoners, but presumptively innocent of death), those with final grants of trial relief (who are pre-trial detainees and presumptively innocent of all charges), and those whose grants of trial or penalty relief are not yet final and could be reversed by another court on appeal.
My personal view is that the first of these is an overcount and the second an undercount. The most accurate count of death row — though it is virtually impossible to provide in real time — combines those with active death sentences and those whose death sentences are presumptively invalid but technically still in effect because their grants of relief are not yet final and could be reversed on appeal. The best estimate of that is provided by the Death Penalty Information Center’s Death Penalty Census database, which contains the status of more than 9,700 death sentences imposed between the Supreme Court’s 1972 decision in Furman v. Georgia and January 1, 2021.
The search on the Death Penalty Information Center Death Penalty Census that tells you how many people were on death row as of January 1, 2021.
The DPIC database, which is in the process of being updated to 2022, counts 2,283 people as being on death rows across the U.S., facing death sentences imposed in 2,309 trial proceedings. DPIC identifies another 220 people who, at the start of 2021, were in jeopardy of being resentenced to death in pending retrial or resentencing proceedings. (26 people had death sentences in more than one county or multiple death sentences for separate offenses in a single county.)
LDF’s Winter 2023 Death Row USA, however, is the most up-to-date assessment of the size of death row. As I mentioned above, LDF listed 2,331 men and women as being on death row or facing continuing jeopardy of death at the start of 2023. 191 of those individuals — just under one in twelve — were either awaiting retrial or resentencing after their convictions or death sentences had been overturned in the courts or had received grants of relief that were still subject to prosecutorial appeal. Excluding those cases, the number of people facing active death sentences in the United States fell to 2,140.
832 people, comprising 35.7% of those on death row or facing possible reimposition of reversed death sentences as of January 1, 2023, were in jurisdictions with moratoria on executions (California, Pennsylvania, and federal civilian death row). Adding to that the 144 cases from non-moratorium jurisdictions whose death sentences have been reversed, LDF calculated that 976 death sentences, representing 41.9% of all active cases in which a death sentence had been imposed, were currently unenforceable. LDF reported that the death sentences of 1,356 death-row prisoners were currently enforceable.
California’s 665-person death row was the nation’s largest. Although it had declined by 27 prisoners during 2022, it remained more than double that of any other state. Florida’s death row declined by more than 5% in 2022, from 330 to 313, mostly as a result of non-capital resentencings of individuals whose unconstitutional non-unanimous death sentences had been overturned. Texas (192) and Alabama (167) were the only other states with more than 150 death-row prisoners, down from eight states with 150 or more death sentenced prisoners at the death penalty’s peak in 2001.
Nationwide, 42.4% of those on death row or in jeopardy of capital resentencing were White, 41.0% were Black, 13.8% were Latinx, 1.9% were Asian, and 1.0% were Native American, continuing a pattern of increasing racial disproportionality. Among states with at least 10 prisoners on death row, Texas (74.0%), Nebraska (72.7%), Louisiana (71.4%), California (66.9%), and Mississippi (66.7%) had the highest percentage of individuals of color on death row. BIPOC individuals also comprised more than 60% of those on death row or facing potential capital resentencings in Pennsylvania (61.8%), Georgia (61.0%), and North Carolina (60.7%).
Fifty people on death row as of January 1, 2023 had been tried and sentenced to death as women (2.1%). Including those identified by the Alice Project of the Cornell Center for the Death Penalty Worldwide as having transitioned since being sentenced to death, 54 U.S. death-row prisoners (2.3%) were women. Amber McLaughlin, who was tried and sentenced to death as Scott McLaughlin, was executed by the state of Missouri on January 3, 2023. She was the first trans woman executed in the United States.
The Death Penalty Policy Project (“DP3”) is a 501(c)(3) non-profit organization housed within the Phillips Black Inc. public interest legal practice. DP3 provides information, analysis, and critical commentary on capital punishment and the role the death penalty plays in mass incarceration in the United States.