The Slow Wheels of Furman's Machinery of Death

I. INTRODUCTION Shortly after receiving my law license at the age of twenty-four, I served as co-counsel on the initial appeal of Carl Buntion, who had been sentenced to death for the 1990 capital murder of a Houston police officer. In 1995, the Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal. (1) Buntion thereafter filed habeas corpus actions in the state and federal courts and, after fourteen years of post-conviction litigation, eventually was granted a new capital-sentencing hearing because of constitutionally defective jury instructions at his original sentencing. (2) Texas again sought, and ultimately obtained, the death penalty at Buntion's re-sentencing hearing in 2012. (3) As I write this article, now in my mid-forties, Buntion has been under a sentence of death for nearly two decades. Based on the likelihood of delays resulting from his next round of appeals, I estimate that Buntion, who was nearly seventy-two when he was re-sentenced to death, (4) will end up having lived for three decades on death row before eventually being executed (assuming that he does not die of natural causes first). Buntion's extended time on death row is hardly aberrational. According to the Justice Department's Bureau of Justice Statistics, which collects and publishes data concerning both federal and state death-row inmates, the average condemned inmate in 2010 (the most recent year for which data are reported) spent nearly fifteen years under a sentence of death before being executed. (5) Notably, the BJS's statistics significantly understate the actual average because the data are based solely on executed inmates' time on death row following their "most recent sentencing date[s]." (6) The years that executed inmates spent on death row in connection with earlier death sentences that were reversed on appeal (followed by new death sentences at re-sentencing) are excluded from the BJS data in computing averages. Because half or more of all death sentences have been reversed on appeal in the modern era, (7) often after many years of litigation, and because subsequent re-sentencings often result--as in Buntion's case--in new death sentences, (8) the actual average likely is closer to twenty years than to fifteen. (9) If current trends continue to hold, the average delay between sentencing and execution will not decrease and very well may increase. The figure below, (10) based on BJS's annual data from 1984 through 2010, shows a trend line of increasing average times between imposition of a death sentence and execution during the past three decades. (As noted, these data under-represent the average total time that executed inmates spent on death row in connection with both initial and subsequent death sentences. The figure nevertheless offers a good depiction of the trend line.) [FIGURE OMITTED] Some simple math concerning incoming and outgoing inmates on death row accounts for the growing delays. The size of death row in the United States has remained stable during the past fifteen years or so--between 3,000 and 3,600 inmates each year since 1995 (remaining at around 3,200 since 2005). (11) From 1995 through 2010, the number of inmates added to death row annually always has substantially exceeded the annual number of executions. (12) The number of death sentences has ranged from a high of 315 in 1996 to a low of 104 in 2010. (13) By comparison, the annual number of executions has been much smaller; in 1999, there were ninety-eight executions (the high point in the modern era), while the average from 2006 to 2010 was only forty-six per year. (14) A stable population of death-row inmates--virtually all of whom are pursing multiple rounds of appeal that postpone their execution dates (15)--and a decreasing number of annual executions necessarily means an increase in the average time between imposition of a death sentence and execution. Additional BJS data also suggest the likelihood of increasing average delays. …