Omnes vulnerant, postuma necat; all the hours wound, the last one kills: the lengthy stay on death row in America.

• Author: Tongue, Megan Elizabeth

1. INTRODUCTION

   The Bureau of Justice Statistics has compiled statistical analyses showing that the average amount of time an inmate spends on death row has steadily increased over the past thirty years. (1) In fact, the shortest average amount of time an inmate spent on death row during that time period was seventy-one months in 1985, or roughly six years, with the longest amount of time being 198 months, or sixteen and one half years, in 2012. (2) This means that the amount of time an inmate spends on death row has almost tripled over the past few decades. (3)

   Missouri has increased its rate of executions in recent years and tied with Texas for administering the most executions in 2014. (4) Between 1989 and 2014, the average stay on death row in Missouri was a little over twelve years, with the average stay for Missouri prisoners between 2013 and 2014 being roughly twenty years. (5) With the rapid rate of executions, a Missouri post-conviction attorney reports that her clients are now becoming "more stressed," as inmates that her clients have been living with for ten to fifteen years are just now being executed. (6) Arizona, Georgia, Florida, Missouri, Ohio, Oklahoma, and Texas are the only states to have executed any of their death row inmates in the past year. (7) Many states have only executed three or fewer inmates since the reinstatement of the death penalty in 1976; yet, they continue to retain the death penalty as a potential punishment for first-degree murder. (8)

   Although many states rarely, if ever, execute their inmates, all states that currently have the death penalty have inmates on their death row. (9) How long is too long for these inmates to wait for a punishment they may never receive? If states are unwilling or unable to execute in a timely fashion, then are these inmates effectively experiencing life without parole with only the remote possibility of death at the hands of the state?

   Why inmates spend so long on death row and the accompanying mental ramifications are discussed in Part II. Part III discusses the response of American courts to the lengthy stays of inmates on death row. Next, Part IV discusses the international opinion on America's lengthy stay on death row, international tribunal holdings on the matter, the philosophical implications of a lengthy stay on death row, and possible solutions. Finally, Part V concludes this Note, finding that abolition of the death penalty is the best solution.

2. BACKGROUND: THE CONSEQUENCES OF A LONG STAY ON DEATH ROW

   This Part discusses the appeals process for death row inmates and additionally exposes some of the factors giving rise to the lengthy stay on death row. Following that, Part II.B. describes the mental suffering that an inmate endures while on death row, and Part II.C. defines "Death Row Phenomenon."

   1. Why the Long Wait?

      The reason there is so much time between sentencing and execution is the appellate process. If a defendant is sentenced to death after the guilt and sentencing phases of trial, his sentence is automatically appealed to the state's highest court. (10) Then, if the conviction is not overturned, the defendant can petition the Supreme Court of the United States on federal constitutional grounds. (11) If the Supreme Court denies certiorari, the defendant can then make a state post-conviction appeal to the original trial court judge. (12)

      It is on this post-conviction appeal to the original trial court judge that the defendant can raise issues outside of the record, such as incompetent counsel, new evidence, Brady violations, etc. (13) After appealing to the trial court judge, the defendant can subsequently appeal to the state's intermediate appellate court and then to the state's highest court. (14) If the state's highest court upholds the conviction, the defendant can petition the Supreme Court of the United States again on issues outside of the record. (15)

      If the defendant appeals to the Supreme Court, and certiorari is denied, state appeals have been exhausted. (16) It is at this point that the defendant can move on to federal appeals, starting with a federal habeas corpus petition, which is limited to federal issues and is filed with the U.S. District Court. (17) If the U.S. District Court hears the case, the defendant can appeal to the U.S. Court of Appeals. (18) If the Court of Appeals overturns the conviction, the state may have the opportunity to re-try the defendant, which starts the appellate process all over again. (19) But, if the Court of Appeals upholds the defendant's conviction, a final appeal can be made to the Supreme Court of the United States. (20) After that appeal, the defendant has effectively exhausted all possible appeals, but can now file for executive clemency with the governor, who can grant the defendant more time before execution or a lesser sentence. (21) If these petitions fail, then an execution warrant is either issued by the governor, the state's highest court, or the trial court judge. Generally, the department of corrections only has so much time to fulfill that warrant and execute the prisoner. (22) But, in many instances, courts or the governor's counsel take many years to issue these warrants, which is why states like Kansas have prisoners on death row but have not executed anyone since 1976. (22)

      These appeals take several years, if not decades, to complete. In attempt to limit the number of years these appeals can take, Congress enacted the Antiterrorism Effective Death Penalty Act ("AEDPA") in 1996 to create a statute of limitations on federal appeals from state judgments in death penalty cases. (24) The state is still able to decide how many appeals the defendant may have within that state, but the AEDPA limits how many appeals the federal government can allow. (25) If the defendant wishes to file a second appeal in federal court, it will be dismissed, except under exceptional circumstances, and a second appeal will only be heard if the Court of Appeals allows the District Court to hear it. (26) Furthermore, the Court of Appeals has only thirty days to make this decision after the petition is tiled. (27) This causes an abbreviated timeline for the federal appeals process.

      Another outcome of the AEDPA is that federal courts are now required to give priority to death penalty cases "over all noncapital matters." (28) In theory, this would assist in shortening the length of stay on death row by encouraging judges to hear capital cases before other hearings on their docket. Part of the intent of the AEDPA is to keep defendants from abusing the habeas corpus process and to shorten the delay between sentencing and execution. (29)

      However, Valerie Leftwich, a post-conviction capital defense attorney in Missouri, stated that the AEDPA actually hurts capital cases by streamlin the appellate process. (30) These shortened periods take away the necessary time to investigate issues on appeal, which prevents her from providing the quality of counsel she wants to provide. (31) Ultimately, the AEDPA makes her job more difficult, but she admits that Congress has met its goal because this statute speeds up executions. (32) But does abbreviating the federal appeals process make the death penalty any more effective if the appropriate amount of time required to build an adequate defense is unavailable?

      As a result of the lengthy appeals process, an inmate can spend an inordinate amount of time on death row awaiting his sentence. But what effect does this have on him? What are the psychological consequences of telling someone he has been sentenced to death and then asking him to sit and wait years for his execution day to come?

   2. Psychological Ramifications of the Lengthy Stay

      Dr. Johnnie L. Gallemore, Jr., completed a study on eight men who were sentenced to death and noted the effect their prison time had on them. (33) According to Dr. Gallemore, one of the "most stressful of all human experiences is the anticipation of death at a specific moment in time and in a known manner." (34) Dr. Gallemore conducted numerous medical tests on these inmates over a two-year period to see how the health of the inmates changed while on death row. (35)

      He found what was to be expected: severe depression. (36) During observation, one of the inmates seemed to reach a state of total psychosis from his experiences on death row, and upon further study, showed that he was suffering from extreme paranoia and delusions. (37) Another inmate showed signs of depression upon the initial interview and by the end of the two-year period had resorted to severe self-mutilation. (38) A third inmate appeared adequate after the first interview, but by the end of Dr. Gallemore's study, the inmate had been psychiatrically evaluated twenty-five times, complaining of insomnia and anxiety, and requesting a multitude of medications. (39) He was hospitalized after only twenty months on death row because he hoarded the medication he had received and suffered a serious drug overdose. (40) It remains unclear whether suicide was his intention. (41)

      This study came at a very interesting time in this country's history of imposing the death penalty. It was in 1972 that Dr. Gallemore's article was published, which was the same year that the Supreme Court of the United States struck down the states' death penalty statutes, as their implementation was considered unconstitutional. (42) Dr. Gallemore cautioned that if the death penalty were not reinstated, careful consideration would need to be given to those that had already spent so long on death row. (43) He warned that, in states where a commuted life sentence may offer an opportunity for parole, death row inmates may not be able to safely reenter society, and they may pose a danger to the public as a result of the psychological toll of death row. (44)

      In the years since Dr. Gallemore's study, psychiatrists have been diagnosing the psychosis that accompanies time spent on death row...