The execution of Brian Dorsey in Missouri on Tuesday, despite an extraordinary campaign asking for his sentence to be commuted, brought into focus the issue of the death penalty in the US – one of the few countries in the western world that still uses corporal punishment.
Dorsey, 52, was executed for the 2006 murders of his cousin and her husband, after the number of people executed in the US rose to 24 in 2023, from 18 in 2022.
The numbers do little, however, to illustrate how unevenly the death penalty is applied in the country: and the growing opposition to capital punishment among Americans.
“It is an act of state violence that we’re using as a punishment,” said Elyse Max, co-director of Missourians to Abolish the Death Penalty.
“We learn in kindergarten that if you get hit, you don’t hit back. You tell someone. And it’s kind of that basic philosophy of you cannot solve violence with more violence.”
Twenty people were executed in five states in 2023: Missouri, Oklahoma, Florida, Texas and Alabama. Seven states sentenced people to death: Alabama, Arizona, California, Florida, Louisiana, North Carolina and Texas.
But states are deeply divided over whether they execute people convicted of crimes. The death penalty has been abolished in 23 states, and in the District of Colombia and Puerto Rico. Some of the 27 states that still have the death penalty have not executed anyone for years.
Others, like Texas and Florida, where the rightwing governor, Ron DeSantis, signed a law last year which made it easier for juries to recommend a death sentence, have been responsible for a disproportionate amount of executions in recent years.
Max said the divide has a base in history.
“Missouri is considered the state outside of the south that had the most racial terror lynchings. We can even look and drill down into specific counties in Missouri that are high use death penalty counties, those are counties that had the most racial terror lynchings,” she said.
“And so you see this culture of fear, this culture of hate that’s embedded in certain parts and areas. And that’s how you end up with these types of sentencing.
“Kansas [which neighbors Missouri] was not a slave state: they haven’t executed in 10 years. Missouri was a slave state, and I think some of that is still lingering in our criminal justice system, certainly in our policing and in other systems that were spawned from that time period.”
Even within the 27 states that still have capital punishment, “the death penalty is really local in its application”, said Robin Maher, executive director of the Death Penalty Information Center, a non-profit organization which researches the death penalty but does not take a position on capital punishment itself.
“Where the death penalty is being used is just in a small number of jurisdictions, where it has been culturally used for a good many years, and where we have elected officials who are making those decisions, not the American public,” Maher said.
There is evidence that Americans’ opinions on the death penalty are changing. A Gallup poll in late 2023 found that 53% of Americans favor the death penalty for a person convicted of murder compared to more than 70% in the 1990s. (In the 2023 Gallup poll 44% were opposed to the death penalty for murder, and 2% had no opinion.)
Prosecutors – who have the ability to push for the death penalty – are elected to their positions, so in some counties may see a benefit in saying they will pursue execution in certain cases.
The same can happen higher up the chain. State governors have the ability to commute death sentences or award clemency, but in Missouri, Mike Parson, the state’s governor, has shown a particular zeal for the death penalty: the state has executed 10 people during his tenure.
Dorsey’s current lawyers have said he was poorly represented in his original case, owing to the public defender system which was in place at Missouri at the time. That system paid Dorsey’s attorneys a flat fee for his representation, which advocates said meant less time was spent on his case.
Dorsey shot his cousin Sarah Bonnie, and her husband to death in 2006 – lawyers later argued that he lacked the intent necessary to be guilty of first-degree murder, which is punishable by death, as he was under a drug-induced psychosis at the time. Parson declined to commute Dorsey’s sentence, despite a petition for clemency from more than 70 correctional officers.
“It should be really very disturbing that we nonetheless executed this, despite understanding fully that he did not get adequate or competent, legal representation at trial,” Maher said.
Despite some improvements in recent years, the amount of money state counties provide for public defense lawyers has been historically underfunded, Maher said.
“We’ve had flat fees, we have had some counties put out contracts for the lowest bid and award all of their defense work to the lowest bidder, [which means] you will almost be guaranteed to get terrible representation with that sort of contract.”
There is also huge racial disparity among those sentenced to death. Since 1976, 34% of the people executed in the US have been Black, despite Black people making up 13.4% of the US population, according to DPIC figures.
As of January 2023, there were 2331 people on death row in the US, according to the NAACP Legal Defense Fund. About 41.9% of those were White, and 41.2% were Black.
Committing a crime against a white person is far more likely to draw a death sentence compared to crimes where the victim is a person of color. In 2023, 79% of the people executed had been found guilty of crimes involving white victims.
Between 1976 and 2022, DPIC reported, there have been 2104 victims in cases which led to the death penalty. About 82% of the victims in those cases were white, 9% were Black, and 7.5% were Latino (2% were identified as other races, according to DPIC).
“So many of these decisions are made by prosecutors who may consciously or unconsciously bring their own biases,” Maher said.
“It’s pervasive, it’s through the entire system. We also know that, you know, because of the way the juries are selected in death penalty cases, many people of color are excluded from juries. And we know that that has an effect on how juries deliberate and how they view defendants of color.”
Over the past decades, states that do practice the death penalty have encountered increasing difficulty in acquiring drugs used in the lethal injection process, amid a boycott by pharmaceutical companies. It has led to experimentation with novel execution methods, with three states authorizing the use of nitrogen gas to execute people.
Alabama was the first to use nitrogen gas, when the state killed Kenneth Smith in January. Despite Alabama claiming the method was “perhaps the most humane method of execution ever devised”, the Montgomery Advertiser reported that after the nitrogen was administered “Smith writhed and convulsed on the gurney. He took deep breaths, his body shaking violently with his eyes rolling in the back of his head.”
Since Smith was executed, three of the largest manufacturers of medical-grade nitrogen gas in the US have barred their products from being used in executions.
The death penalty has not been used in the UK since 1964, while France last used it in 1977, and formally abolished it in 1981. It has been abolished within the European Union, and in all European countries apart from Russia – which has a moratorium in place and has not killed anyone since 1999 – and Belarus.
The decline in support for the death penalty, has given hope to advocates who believe the US should follow the more than 140 countries that have abolished the practice.
“I think if the current trends are any indication, and the historical data are any indication, the use of the death penalty will continue to decline,” Maher said.
“The public understands that the death penalty is enormously expensive, that it doesn’t provide any deterrent value, and that it doesn’t keep them any safer.”
