The Washington PostDemocracy Dies in Darkness

Most states have the death penalty. Few actually carry out executions.

A chair is removed Wednesday from the death penalty chamber at San Quentin State Prison in California. Gov. Gavin Newsom (D) signed an executive order on Wednesday, placing a moratorium on the death penalty. (California Department of Corrections and Rehabilitation/AP)

The execution chamber at the San Quentin State Prison near San Francisco has never been used, an $853,000 facility that has sat empty for more than a decade.

After a federal judge assailed the old chamber as dimly lit and “poorly designed,” California constructed a new one to carry out sentences for inmates on the country’s largest death row. But since it was completed in early 2008, the state — facing legal challenges to its lethal injection procedures — has not carried out a single execution.

Then on Wednesday, after Gov. Gavin Newsom (D) signed an order declaring a moratorium on executions and shutting down the San Quentin chamber, officials began dismantling the same facility the state upgraded and never used.

While Newsom’s order effectively maintains the status quo in California, it means that the state will retain its place among many where death chambers have remained dormant in recent years. Kentucky last carried out an execution in 2008. California and three other states — North Carolina, Nevada and Montana — all carried out their last death sentences in 2006. In Pennsylvania, the last execution was in 1999, when Gary Heidnik was executed by injection for murdering two women he had held captive in his home.

California Gov. declares moratorium two months after taking office

The news in California highlights the broader reality of American capital punishment, which has dwindled dramatically in recent years. While a majority of states still have the death penalty on the books, only a handful regularly carry out these sentences. And although more than 2,600 people sit on death rows nationwide, many are in states where executions are on hold, leaving unclear how many of these sentences will ever be carried out.

In some states, the death penalty has been frozen or abolished by officials, the courts or a combination of both. Authorities in some states that retain the practice say they have no lethal injection drugs and are not trying to obtain any. In other places, officials have sought to carry out death sentences but have faced legal hurdles or been unable to obtain the chemicals needed for lethal injections amid resistance from drug companies.

“In some ways we are more enamored with the idea of the death penalty than the reality of carrying it out,” said Elisabeth Semel, director of the Death Penalty Clinic at the University of California at Berkeley, who has represented many people facing the death penalty.

“It’s the notion that we should have in our back pocket the ability to kill that really horrible person, that person that we each envision as the worst in the worst,” Semel said. “There’s some emotional need to have that power. And yet when it comes to effectuating it, it becomes very complicated for people.”

Supporters of capital punishment argue that the death penalty is necessary as a deterrent and should be available for heinous crimes. Supreme Court Justice Stephen G. Breyer has questioned whether the death penalty as a whole is constitutional, describing it as unreliable, arbitrary and plagued by delays, and assailed California’s system in a 2016 dissent.

Newsom’s order gives the 737 people on California’s death row a reprieve, at least as long as he is in office. While the order does not prevent any planned executions — none were scheduled — Newsom noted that 25 death row inmates had exhausted their appeals and could have had execution dates set.

His order says that “death sentences are unevenly and unfairly applied to people of color, people with mental disabilities, and people who cannot afford costly legal representation.” Newsom also noted in his order that people have been sentenced to death and later found innocent. According to the Death Penalty Information Center, five of the 164 people given death sentences and later exonerated were in California, a statistic Newsom highlighted when he announced his decision.

“In an ideal world, we wouldn’t be prosecuting death any longer,” Newsom said. He later added: “I cannot sign off on executing hundreds and hundreds of human beings knowing — knowing — that among them will be innocent human beings.”

Drug companies don’t want to be involved in executions, so they’re suing to keep their drugs out

Since the turn of the century, use of the death penalty has sharply declined. In 1999, there were 98 executions nationwide carried out by 20 states, according to records kept by the Death Penalty Information Center, a Washington nonprofit group. Last year, there were 25 executions in eight states.

Thirty states retain the death penalty, along with the federal government and the U.S. military, according to the Death Penalty Information Center. Of the 20 states that have no death penalty, eight have shifted that way since 2007, including Maryland, Illinois and Washington state, where the Supreme Court last year struck it down.

The list of states that still have capital punishment includes places such as California and Pennsylvania, homes to sizable death rows and governors who have imposed moratoriums on executions. Wyoming also still has the practice but has an empty death row, and in North Carolina, a court-ordered stay has been blocking executions for years.

States still seeking executions have run into a sizable roadblock in recent years: the pharmaceutical industry, which has pushed back against using its drugs in executions and has tightened restrictions on how such drugs are sold.

In some cases, pharmaceutical firms have gone to court to prevent usage of their drugs in lethal injections. The tactic prevented an execution in Nevada last year that would have used fentanyl, the powerful synthetic opioid, but failed to block a string of lethal injections in Arkansas in 2017. A month after the Nevada execution was halted, Nebraska carried out a lethal injection using fentanyl, the first time that happened nationwide and that state’s first execution in 21 years.

Nebraska and Nevada turned to fentanyl as multiple states have looked to new drug combinations or other execution methods to carry out death sentences. Tennessee last year expanded its use of the electric chair, while Florida adopted a new anesthetic in 2017 that had not been used in an execution. Ohio Gov. Mike DeWine (R) last week said he was delaying three executions to give corrections officials more time to develop a new lethal-injection method after a judge denounced the existing protocol.

‘It was fundamentally unfair.’ A prosecutor apologizes for helping put an innocent man on death row

In Oklahoma, officials said last year they would use nitrogen gas for all executions going forward, an unprecedented change that has not been used yet. A spokesman for the state Department of Corrections said this week that the state has not come up with a protocol for carrying out such executions, writing in an email that officials were “still working on the method — finding the technology we would use to execute an inmate with inert gas.”

Death row populations are getting older — and, in some cases, inmates are dying before sentences are carried out. California has carried out 13 executions since 1978. During that same span, 120 other death row inmates have died, mostly because of natural causes or suicides, according to the California Department of Corrections and Rehabilitation.

“What we have right now is a symbolic death penalty,” Michael Hestrin, the Riverside County district attorney, said of California’s system. “And I don’t think that’s a good thing. Sentences should be carried out, or they shouldn’t be handed down.”

Hestrin, who as a prosecutor secured seven death sentences, said the death penalty “should be reserved for the most egregious aggravated murder cases.” He also criticized Newsom’s move, saying it “subverts the will” of Californians, who in 2012 and 2016 voted down proposals to abandon the death penalty.

How Nebraska went from repealing the death penalty to resume executions in three years

Jeff Landry, the Louisiana attorney general, also criticized Newsom and described lengthy delays after appeals have been exhausted as unfair to crime victims’ relatives. He said states make promises to them when prosecutors decide — typically after consulting with those same relatives — to seek death.

“You’ve got to remember that behind every crime is a victim,” said Landry, a Republican. “Where there’s a conviction, a sentencing, that’s . . . a contract between the victim and the state saying, ‘Look, we’re going to make you whole.’ In other words, we’re going to do our part to make sure that justice is carried out.”

Semel, head of the Death Penalty Clinic, said that although the United States is not a monolith and different states have moved in different directions over the past two decades, there has been a clear trend.

“Death sentences are down. Executions are down,” Semel said. But, she added, “There are clearly some states in which the death penalty is deeply entrenched.”