T he death penalty, they say, is dying. And in many important respects, this is true. Support for capital punishment has decreased dramatically. In 1998, there were nearly 300 new death sentences imposed in the United States. In 2018, there were just 43. In the past decade alone, six states have abolished the death penalty by legislation or court order, while four more have imposed moratoriums on executions. Abolition is increasingly embraced by conservatives, who have spearheaded repeal efforts in a number of states, most recently and energetically in Wyoming. This trend is partly rooted in research that continues to expose enduring problems with the death penalty, particularly its racism, arbitrary application, and failure to deliver on claims of public safety. Such findings are significant, but they are also familiar. They mirror the very same evidence that led the U.S. Supreme Court to strike down the death penalty more than 47 years ago in its historic decision in Furman v. Georgia. Decided amid dampening support for the death penalty and a long pause on executions, Furman declared that the death penalty was arbitrarily and capriciously applied. There were clear signs of racial bias and no evidence that it worked as a deterrent. Nevertheless, the response to Furman was swift: States immediately began enacting new death penalty laws designed to pass constitutional muster. Just four years after Furman, in 1976, the court upheld a new set of statutes in Gregg v. Georgia, signaling the start of the “modern” death penalty era.

Although the past few decades have ushered in significant reforms — such as improvements in the quality of capital defense, a major factor in reducing new death sentences — states continue to carry out executions in the face of serious questions about the influence of racism, mental illness, or intellectual disability; biased, shoddy, or simply incomplete police investigations; prosecutorial misconduct and woefully deficient defense lawyering; and the persistent influence of junk forensic science. The failure to grapple with these problems has high stakes. The case of Rodney Reed is only the most recent example of a state rushing toward an execution despite serious concerns over innocence. Reed’s execution date was one of a slew of executions Texas planned to carry out through early December — a group of cases that illustrate all too clearly the problems plaguing capital convictions. Scores of people have been exonerated from death row across the country, and research published by the National Academy of Sciences suggests that there are hundreds more innocent individuals facing execution. Given this landscape, there is vanishingly little doubt that innocent individuals have been put to death — including in Texas, which has executed more than 550 people since 1976, far more than any other state.

People hold hands while praying during a protest against the execution of Rodney Reed on Nov. 13, 2019, in Bastrop, Texas. Photo: Nick Wagner/Austin American-Statesman via AP

Collecting the Data As the 40th anniversary of the U.S. Supreme Court’s decision in Gregg v. Georgia neared in 2016, it seemed clear to us that the death penalty remained as problematic today as it was in 1972. But we wondered what the numbers would show. We were curious not only about who was on death row in the country’s remaining death penalty states, but how many people had been removed from death row — a sizable but largely invisible population in the ongoing death penalty debate. As far as we could tell, this particular dataset did not exist. So we decided to compile one ourselves. We began collecting information on individuals sentenced to death starting on July 2, 1976, the day Gregg was announced. Such data would allow us to see who had ended up on death row, where they were from, and the outcome of each case. The goal was to create a high-level snapshot of four decades of “modern” capital punishment. We set out to collect information about every individual sentenced to die by the federal government, the U.S. military, and states with an “active” death penalty — those jurisdictions that still hand out death sentences or carry out executions, even if they’re rare. We also included states that had ended capital punishment but where people remained on death row. No sooner did we begin collecting data than states began to drop off our list. Delaware’s death penalty was struck down by the state Supreme Court in August 2016, with the last two condemned men resentenced last year. In New Mexico, which ended capital punishment in 2009, the last remaining death sentences were reduced to life this year. In October 2018, Washington effectively abolished the death penalty by court order. For the most part, however, the scope of the project remained unchanged. Our first step was to contact prison officials with the federal government and in each of our target states to ask for a full roster of individuals sentenced to death row beginning in July 1976. We also asked for specific data points: dates of birth, race, gender, sentencing dates, and current status. This last item is where things got tricky. It’s relatively easy to find lists of people who are on death row or have been executed, but each of these categories represents a minority of the individuals sentenced to die. The greatest number of people sentenced to death since the summer of 1976 are no longer on death row, not because they were executed but for a host of other reasons: They’ve died or killed themselves; they have been exonerated or had their sentence commuted; or they’ve been resentenced to a lesser term. Many have been released from prison. This population of people no longer on death row makes up a stunning 43 percent of The Intercept’s dataset.

The lack of care in collecting such important data was fairly shocking — especially when you consider that pro-death penalty prosecutors and politicians tell us these cases represent the “worst of the worst.”

As we began to receive records, it became clear that much of what we were getting from the government was flawed. States like Florida and Texas — both extremely active death penalty states with robust sunshine laws — had the data on hand and were quick to provide it. Texas publishes most of its data online, but many other states simply do not track the information we were trying to find, or do so in a haphazard way that leads to incomplete and inaccurate data. What we learned was that the states’ record-keeping is abysmal, on balance. Oklahoma told us that the information probably existed in hardcopy form but would be difficult to locate. The corrections department hadn’t had a computer upgrade since the early ’90s, and the documents were likely stored somewhere in a vast warehouse. Louisiana, where death row is housed at the Supermax prison known as Angola, gave us a copy of the so-called Angola Death Book, a binder full of details on a seemingly random assortment of cases. We were told that the Death Book had never before been released. After we questioned the accuracy of Nebraska’s public information regarding people no longer on death row, officials eliminated it from their website. The lack of attention and care in collecting and storing such important data was fairly shocking — especially when you consider that pro-death penalty prosecutors and politicians always tell us that these cases represent the “worst of the worst,” people so dangerous it is necessary to murder them on our collective behalf. But perhaps even more vexing is the fact that the Bureau of Justice Statistics, an agency within the Department of Justice, collects detailed demographic and other data about states’ death-row populations, yet Congress has blocked its public disclosure. Although BJS has made some of its findings available in annual reports, the U.S. Code specifically exempts that research from public release, despite the fact that the majority of the collected information is a matter of public record. We were denied access. Although we initially believed that the data collection would be a relatively straightforward task, it soon became clear that we would have to find alternate sources of information. Much of this data was acquired via a network of attorneys across the country, including lawyers in public defender offices at the state or federal level. Other sources were connected to advocacy groups, and some had individually been tracking this data in their respective states. Another important resource was a series of quarterly reports published since the mid-1970s by the NAACP’s Legal Defense Fund, titled “Death Row USA,” which offers a running, state-by-state list of individuals sentenced to death. The reports include racial information for each individual and details about those who have been executed, including who abandoned their appeals and “volunteered” to die. The reports were particularly useful in trying to put together a list of people sentenced to death in Oklahoma, where the state could not provide any records concerning individuals removed from death row for a reason other than execution. We were able to use the NAACP documents going back to 1976 to create a list of 160 people who had been removed from death row there. Finally, we undertook extensive online research to fill in various gaps, using the Death Penalty Information Center to keep our data current, and archival news reports, court opinions, and other sources to find information on older cases. Once the dataset was largely complete, our next step was to provide it to a small group of lawyers and academics for review. They helped find additional errors and encouraged us to move forward. Though a wealth of research and data on capital punishment has been collected by others — notably the Death Penalty Information Center and law professor Brandon Garrett, whose research has long informed our reporting — it was clear that our dataset could build upon such resources and reveal even more about the country’s capital punishment system.

Graphic: Soohee Cho/The Intercept

A Failed Policy The end result finally came together in the fall of 2019. It includes 7,335 individual entries from 29 states and the federal government. Some of the numbers from our dataset may appear to conflict with statistics that are widely cited when referring to the death penalty in the U.S. For example, in June, the country marked a grim milestone: the 1,500th execution since the Gregg decision. In contrast, our dataset contains 1,448 executions. This is because our dataset is limited to sentences handed down since Gregg in death penalty jurisdictions that remain active. Nonetheless, the dataset provides a damning portrait of capital punishment in the U.S. Of the 7,335 entries, 1,448 people have been executed, 20 percent of the total. Even those who insist that executions are effective in combating crime must concede that this indicates a failed public policy. Some 2,752 remain on death row, roughly 38 percent of the total. The single largest group of people are no longer on death row. Out of 3,135 entries, more than 2,000 have been resentenced and hundreds have been released. Hundreds more have died while awaiting execution; this group makes up 8 percent of our dataset.

Of the 7,335 entries, 1,448 people have been executed, 20 percent of the total. Even those who insist that executions are effective in combating crime must concede that this indicates a failed public policy.