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Spending Decades on Death Row: Is it Constitutional?

It has been 40 years since the United States Supreme Court reversed one of its own rulings and decided that the death penalty is, after all, constitutional. The passage of time, however, has not curtailed the often-heated debates that surround this contentious issue.

Professor Russell Christopher, who joined the TU Law faculty in 2002, is a scholar in criminal law and procedure. He has published research in leading law journals that explores one key aspect of the death penalty that nearly every court in the US has refused to consider and that has attracted growing attention among many legal scholars — the time spent on death row.

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One of Christopher’s principal arguments is that prisoners often spend decades on death row between the time they are sentenced in court until they are executed. Nationally, the average time that a prisoner resides on death row is 16 years. In California and Florida, the average time is 25 years. Many inmates never even meet their executioner. Due to long-term death row incarceration (DRI), they often die of causes related to old age before their sentence can be carried out.

Christopher contends that prisoners who endure long-term DRI are subjected to an additional form of punishment beyond the death sentence. Punishment that goes beyond the original sentence, he says, amounts to an excessive (or disproportionate) form of punishment, which the Supreme Court’s rulings forbid. “For some capital offenders,” he argues, “the death penalty has become… punishment in the form of life imprisonment without the possibility of parole, plus capital punishment.”

Death penalty proponents counter that long-term DRI is due to “the prisoner’s choice” to have his or her case subjected to the judicial system’s lengthy appeals process, so residing on death row for decades is the prisoner’s fault. Therefore, the argument goes, a capital offender cannot delay execution via interminable appeals and, at the same time, claim that the delay in execution and the decades spent on death row constitute cruel and unusual punishment.

Yet, the appeals process in death penalty cases is automatic and mandatory under many state laws. In addition, the Constitution provides anyone convicted of a crime with the right to appeal that conviction as far as the federal judicial process allows, as well as the right to be free from cruel and unusual punishment. Prisoners who opt for the former, Christopher argues, cannot be forced to waive or forfeit the latter.

Therefore, he contends, “It is the state, not the prisoner, that has chosen to impose, and must administer, capital punishment, and it must do so in a constitutional manner. And it is the state’s actions, often due to lack of financial resources to handle a court system’s case load, that cause a prisoner to sit in solitary confinement for so many years while his case is appealed.” Sometimes, he notes, the consequence of satisfying one constitutional right can violate another.

As for a solution, Christopher argues that capital offenders have a right to speed and accuracy in their cases as well as due process and freedom from excessive punishment. “If the state cannot meet these constitutional requirements,” he says, “and execute a condemned person within a reasonable amount of time — for example, five years — his death sentence should be converted to life imprisonment without the possibility of parole.”

Professor Christopher’s articles on long-term DRI can be found in the The UC Davis Law Review (February 2016), The Washington & Lee Law Review (June 2015) and The Minnesota Law Review (December 2014).