National Strategy to End the Death Penalty (2023-2027)
Updated J une 30, 2022
The Strategy
The American death penalty is intertwined with the nation’s original sin of slavery, its legacy of
lynching, and the constructs of fear, oppression, vengeance, and racism that shaped and
continue to burden the criminal legal system. That system, and most pointedly the
administration of the death penalty, targets the most vulnerable in our society — people with
mental illness, intellectual disability, histories of childhood trauma and abuse, addiction, and
societal challenges, including racism and poverty. To execute damaged people is the epitome of
America’s failure to provide healing and care, and shamefully reflects a readiness to declare
huge swaths of the population disposable. It is a story that must be told.
In the last four years, four states have ended the death penalty through the legislative or judicial
process, bringing the total number of states without the death penalty to 23, plus the District of
Columbia. Four additional states and the federal government have some form of executive
moratorium on executions and 14 states (including three of those with moratoriums) have not
carried out an execution in 10 or more years--meaning three-quarters of all states are not using
the death penalty. Due to a combination of dogged lawyering, crucial legislative reforms,
gubernatorial action, advocacy, effective communications and judicial victories; the number of
individuals languishing on death row has declined. As of J anuary 1, 2022, there were 2,272
individuals on death row nationally, compared to a high of 3,593 in 2000 - a 37% decrease.
The death penalty abolition movement also continues to grow and expand its base of
supporters, as well as its influence in the national media landscape. The movement has been
dominating traditional media coverage and shaping the media narrative successfully for more
than 10 years. This next phase will require us to expand our use of digital technology to reach
even wider audiences and to push the envelope on messaging that connects the death penalty
to our country’s history of racial terror lynchings while evolving our messaging to identify more
effective, restorative responses to violence.
Even in places that continue to cling to the death penalty, overall usage is down. The last time
we saw more than 50 death sentences in one year was 2014, and in the last two years we saw
just 18. The annual number of executions has remained low despite an unprecedented federal
execution spree under President Trump. While the COVID 19 pandemic may have helped
suppress these numbers, the trend had been moving downward for more than two decades.
Executions are a more difficult number to predict than sentences because they are a lagging
indicator of trends that occurred 15 or 20 years earlier, but drug supply issues still plague many
states even as others try to find new methods of killing and pass secrecy laws to shield their
actions. Despite several states resuming executions after prolonged delays, executions rates
are unlikely to return to the high levels we saw in the 1990s.
Until the U.S. Supreme Court ends the death penalty once and for all, the goal for our
movement is clear, abolition by attrition. The current Supreme Court is hostile to Eighth
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Amendment challenges and is unlikely to find the death penalty unconstitutional at this time.
The good news is that the attrition strategy is working and momentum is on our side. The
movement is unified behind a shared strategy and vision that focuses on ending the death
penalty in as many states and jurisdictions as possible and reducing the use of capital
punishment everywhere else using advocacy, litigation, research, and communications until we
reach a point where national abolition is possible. In 2018, we laid out six five-year benchmarks
for measuring progress, but within four years, our movement had surpassed most of these
goals. These achievements, and the challenges we've faced along the way, inform the next
phase of our collective plan.
Five-Year Outcomes
We have updated our benchmarks based on progress in the past four years, and we have laid
out the scope of work that will be necessary to achieve each of them.
Outcome #1: Legislative or judicial repeal victories in at least three states.
Our goal is to achieve at least 25 states that have formally ended the death penalty by 2025 and
a majority of states by 2027. By examining the attributes of successful repeal campaigns from
the past five years, we can focus our movement's resources on the handful of states that
already share several of these key attributes over the next five years while also supporting
states that are showing signs of progress towards one or more of the key indicators.
The 11 death penalty repeal wins that have occurred since 2007 were the result of multi-year
campaigns. There were several important criteria in place leading up to these victories:
The state had moved away from a cultural attachment to the death penalty through extremely
low or no use. A state that has the death penalty on the books but never uses it is not getting
value out of the policy. Key stakeholders are no longer invested. Frustration with the policy is
high, and itis easier for advocates and communications experts to lift up key messages and
advocate for ending it. J udicial repeal is also less complicated in states with small death rows.
One category of low-use states includes those states that have very few people on death row
and virtually no new death sentences or executions. New Hampshire had just one person on
death row and no executions in 80 years when it abolished the death penalty in 2019, Virginia
had not sentenced anyone to death in 10 years and had two people on death row, Colorado had
three people on death row and no executions since 1997, and Washington had just eight people
on death row and an executive moratorium. Several of the states with promising repeal
campaigns over the last few years have infrequent use and small death rows. In Kansas,
another state with infrequent use, there has been considerable effort spent developing a state
constitutional challenge to the death penalty.
Another category of low-use states includes those where the system is bogged down with
seemingly intractable issues that have delayed or stopped executions and created bipartisan
frustration. These quasi low-use states are more challenging because they have larger death
rows and more stakeholders who are attached to the status quo, but the cost of maintaining
these bloated dysfunctional systems is also higher. Ohio has 135 people on death row but no
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ability to carry out executions, creating space for dialogue about whether the policy is worth
keeping. This has led the governor to halt all executions. In Nevada, which came close to
repealing in 2021, executions have been delayed for more than 16 years while support for
repeal is building. Lack of use is consistently one of the arguments made in favor of repeal in
the legislature and arguments before the court. For these reasons, we will continue to invest in
campaigns in no or low use states when they also exhibit other key attributes.
A coalition of organizations and individuals in the state were organized and mobilized to give
public cover to the decision makers. A successful legislative or judicial repeal effort needs
prominent supporters from across the political spectrum, as well as specific community leaders
in key legislative districts who can help take a bill over the line. The campaign needs diverse
voices, including victims, law enforcement, leaders and communities of color, faith leaders, and
Conservatives to show that support for repeal is widespread. Leaders of color are essential to
the development and implementation of successful messaging and organizing strategies to
connect the current day legal system with historical oppression and the need for broad reform.
The broader death penalty abolition movement should support and empower this leadership and
become allies in the implementation of these strategies. In Virginia, it took a dedicated effort
organizing Black faith leaders who galvanized support within the Legislative Black Caucus to
push Democratic leadership over the edge for repeal. The campaign also had support from
nearly two dozen victims' families and more than a dozen prosecutors. Connecticut mobilized
more than 100 victims’ families to speak out for repeal during its successful legislative
campaign. States that are close to repeal will have developed large, diverse stakeholder
networks that they can mobilize in favor of repeal. The campaign team needs strong leadership
who can work with in-state coalition members and national organizations to bring maximum
resources to the effort. They also need to understand how strategic communications and
organizing work together to support legislative efforts. These efforts also help lay the
groundwork for judicial repeal.
Political opportunity exists to move a bill or bring a legal challenge in the next year or two.
Repeal has only been won in the legislature when there were strong champions from both
parties who were well connected and powerful within their respective parties. There must also
be a path through the political process for legislative success. Support from Conservatives has
been essential, even in states where the governorship and both houses of the legislature are
controlled by Democrats. In states where the legislative process is controlled by just a handful of
people in leadership, rather than a more open and democratic process, it has been more difficult
to overcome individual opponents who occupy these gatekeeper roles. Ensuring a state has
strong champions and a process by which to move a bill is key for winning repeal.
We need to continue investing in states that have multiple indicators suggesting they are
seriously contemplating repeal while also beginning to invest in the next wave of states that
have some of the same attributes. We cannot predict which combination of factors will create
the perfect storm for repeal at any given time, but we know from experience that we need to
have serious investments occurring in half a dozen states or more in order to average one major
victory per year.
Outcome #2: Keep death sentences under 30/year
Given that reduced use is essential to change, keeping death sentences low is a key goal.This
outcome is primarily achieved by supporting independent, non-profit litigation organizations that
are successfully assisting local trial attorneys to prevent new death sentences, increasing the
use of mitigation, and investing in training for capital trial attorneys. In several of the states with
the highest number of death sentences, Florida, Arizona, California, and Texas, we continue to
invest in pre-trial mitigation and case consulting to try to reduce new sentences even further. In
low-use jurisdictions, we deploy nimble and strategic legal assistance to try to prevent new
sentences. In 2020 and 2021, the country saw just 18 new death sentences annually.
Community efforts to encourage county prosecutors to seek death less and resolve older cases
often have also been successful. As part of our work to reduce death sentences and strengthen
and broaden our relationships with the criminal justice reform movement, we are working closely
with local criminal and racial justice coalitions to demand more humane practices in prosecutors’
offices.
In addition to these approaches, we are always looking for strategic opportunities to pass
legislation that makes it more difficult to obtain death verdicts, such as bills that increase the
standards for evidence, jury equity, or the quality of defense. Both Ohio and Kentucky have
passed bills to exempt persons with severe mental illness from the death penalty and
Tennessee passed a bill that will allow the presentation of evidence of intellectual disability
using a modern standard of diagnosis. In California, several bills, including a Racial J ustice Act,
a jury equity bill, and a bill on intellectual disability, were passed in 2020 to reduce new
sentences and the size of death row. In 2019, both Oregon and Arizona passed bills to
significantly narrow their death penalty statutes. Florida will be pursuing an SMI bill in 2023, and
Oregon may consider legislation to prevent “death-qualifying” juries.
Based on developments in the last few years, we have lowered this benchmark from 40 to 30
new sentences per year.
Outcome #3: Keep executions under 30/year
Capital litigators have been successfully keeping executions at bay by chipping away at the
death penalty through the courts, including using state constitutional challenges to decrease the
size of death row. North Carolina litigators had a huge success when the state supreme court
issued a 6-1 decision holding that more than 100 people on North Carolina's death row cannot
have their right to challenge systemic racism taken away and they can present statistical
evidence of racism to get their death sentences reviewed. In Florida, 150 individuals who were
sentenced by non-unanimous juries have been guaranteed new sentencing hearings. These
types of challenges have resulted in a drop in the number of individuals on death row. In
addition, numerous individuals have been removed from Texas’ death row because of
successful reforms and litigation guaranteeing the use of modern scientific standards for
evaluating intellectual disability.
Policy advocates and communications professionals working together with litigators have been
tremendously helpful in lifting up unusual voices and concerns about the death penalty in
clemency campaigns and in support of moratoriums. Advocates have also built strong
relationships with influencers in the state who can impact governors, attorneys general, and
parole boards. In Oklahoma and Texas, advocates, working in tandem with litigators were able
to win bipartisan support and clemency for J ulius J ones and a new evidence hearing for Melissa
Lucio. In Ohio, attorneys and advocates created an environment where the current governor
was able to halt all executions based on the difficulties of legally obtaining lethal injection drugs.
In Tennessee, a state which carried out seven executions in the past three years after a 10 year
hiatus, the governor has temporarily paused executions while investigating why the state has
not been able to follow its own execution protocols. Executive moratoriums are also in place
federally, as well as in California, Oregon, and Pennsylvania. Pennsylvania’s moratorium could
be lifted depending on the outcome of the November election, but they may still face challenges
acquiring lethal injection drugs.
Unfortunately, several states that had not carried out executions over the last few years due to
ongoing litigation, have resumed executions, including Arizona and Oklahoma. We expect to
see more executions scheduled in these states. In 2021, South Carolina also passed a law
allowing for the electric chair or firing squad if lethal injection drugs are unavailable, and they
are now attempting to schedule their first executions in more than 10 years.
Executions are very difficult to stop once they have been scheduled, but the movement is most
effective when advocates and litigators work hand in hand to implement strategies aimed at
saving individual lives. When an execution is approaching, the primary purpose is to save a life,
as opposed to other opportunities to fight more broadly against the death penalty. Successful
advocacy campaigns around cases have been an essential tool to bring more people into our
movement. Millions of people have taken action to stop executions. Our movement needs to
work together to identify the best ways to keep these new supporters engaged in our work
through successful digital and list building strategies that turn one-time action takers into long-
term supporters. We have hired an experienced digital strategist to help the movement design
strategies to do just this.
While the number of executions carried out by some states over the last few years was kept low
due to the COVID pandemic, the number carried out by the federal government under the
Trump administration was unprecedented. The Biden administration is not likely to carry out any
executions now that there is a formal federal moratorium on executions but this could change if
someone new is elected in 2024. We have kept this benchmark the same due to the
unpredictability of executions.
Outcome #4: Major executive action in at least two jurisdictions
We continue to see opportunities for executive action in several states and there is an ongoing
campaign at the federal level as well. In California and North Carolina, there are concerted
campaigns underway to urge Democratic governors to commute the sentences of individuals on
death row. California has the largest death row in the country with nearly 700 individuals, and
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North Carolina has the fifth largest death row population with 139 men and women. In North
Carolina, the governor has unilateral authority to grant clemency, and in California, the governor
may commute some sentences unilaterally while others must be approved by a majority of the
members of the state Supreme Court. There is also a strategic campaign aimed at President
Biden urging him to commute the sentences of the 44 individuals who remain on the federal
death row. Republican governors in Ohio and Utah may also be prevailed upon to become more
vocal advocates for repeal or in the case of Ohio, to grant commutations in some cases. We will
continue to search for other opportunities to pursue executive action based on future electoral
outcomes. In Tennessee, advocates and attorneys will attempt to make the temporary pause on
executions more extensive.
Outcome #5: Maintain regular media coverage highlighting the flaws and racism in the
death penalty and emphasizing that there are more effective responses to violence. We
have learned that convincing the public and decision makers to let go of the death penalty
requires a combination of messages to achieve success. Our movement has been dominating
the media narrative around the death penalty for more than a decade and has been very
successful at lifting up messages about the risk of executing innocent people, bias in the
system, the high cost of the death penalty, bipartisan support for repeal, and the harm that the
process inflicts on victims’ families. Our movement has also found a way to humanize
individuals who have committed terrible acts of violence by highlighting how childhood trauma,
age, and other impairments such as mental illness and intellectual disabilities influence who is
sentenced to death.
In the past two years, tough on crime rhetoric has once again dominated the political sphere
and legal reform advocates are under attack as a fear of crime grips the nation. Because our
movement has been so successful naming the death penalty’s flaws and building bipartisan
support, we are not yet seeing a widespread call to increase use of the death penalty. However,
the rise in violence, and the political rhetoric surrounding it, will likely hamper our efforts and we
must respond. Responding to this rhetoric requires a two pronged approach. First we must push
back against misrepresentations about both the level of violent crime and the causes. Second,
we should begin identifying more effective responses to crime in our messaging. It is no longer
enough to limit our messaging to just naming what's wrong with the death penalty, we must now
also name the specific strategies that are more effective at preventing violence and helping
those harmed. It is essential that all of us who are trying to transform an ineffective and overly
punitive legal system into one that supports healing work together on narrative shifting so that
decision makers and the broader public will support strategies that are effective. We must
collaborate with the broader reform community to make sure our messaging is in sync. Our
movement needs to build relationships with experts in the violence reduction and prevention
community and work with them to lift up their messaging and their strategies. From now on,
every op-ed, every public education forum, every meeting with a decision maker that addresses
the death penalty should also include information about more effective responses to violence.
In addition to identifying more effective responses to violence, we must also build upon our
communications exposing the death penalty’s inexorable connection to racial oppression and
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lynching, and demonstrate how racial bias and unfairness persist today. We must also explain
how ending the death penalty is essential to achieving meaningful, comprehensive criminal legal
reform. Emphasizing the connection of the death penalty to the country’s history of racial terror
provides further reason for states—who have the death penalty but rarely use it—to take the
final step of ending it.
Conclusion
Our movement's strategy has proven effective over the last decade with major wins in more
than a dozen states. By applying the learnings from the past decade to this next phase of work,
we can move even closer to realizing our ultimate goal of death penalty abolition. However, in
order to achieve the goals set out in this strategy, we must also make strides towards building a
more equitable movement. First, if we care about racism and racial equity in the world, we must
also care about it within our own structures and organizations. Secondly, we also recognize that
building equity builds the power essential to achieving our goals. While new leaders of color are
joining our movement, organizations historically led by white people must make space,
empower them to lead, and lift up their ideas. It is also imperative to invite organizations led by
leaders of color into our collaboration. Finally, we must commit to ongoing training, learning, and
self-reflection about how we can continue to improve equity in our own organizations. This can
be uncomfortable, but the commitment to learning is essential to success.
