Death Penalty in the United States: “Conditions That Are Completely Devoid of Humanity”

This conversation took place in February 2025 and has been edited for length and clarity.

Janika Spannagel: We know each other through Ramiro Gonzales, a former death row inmate who was executed by the State of Texas in June 2024 for a rape and murder he committed in 2001. You were part of the legal team at the University of Texas who worked on his case. I had been exchanging letters with Ramiro for about 15 years, and I visited him in prison once. I feel that my personal connection with Ramiro really helped me understand in a more profound way how inhumane the US death penalty system is. So I thought we could start our conversation by talking about his case – how did you end up working with Ramiro in the first place?

Thea Posel:

I graduated Law School in 2016, and I came to Texas to work at the Capital Punishment Center. There were three men scheduled for execution that summer. Ramiro at the time was represented by a solo practitioner who had been appointed by the court. He didn’t work with an office with funding of its own or an investigator. So when I arrived at the law clinic in August 2016, my colleague Raoul Schonemann had just agreed to help on the case. It’s my first week in Texas, my first week as a lawyer. That was the first time I met Ramiro. And I worked on his case for eight years, until he was executed last year.

When I was visiting Ramiro in 2023, you and I met up in Austin, and discussed his case, in particular the legal appeal that had been filed the previous year. Can you describe what this was about and why you think that should have mattered in his case?

So, the federal government in the United States has allowed each individual state to structure their capital punishment system individually, as long as they meet some minimum constitutional guarantees. In Texas, after someone is convicted of a crime where they are eligible for the death penalty, the jury has to find unanimously and beyond a reasonable doubt that there is a probability that the defendant will again commit criminal acts of violence that would constitute a “continuing threat to society”. This unique structure means that in Texas, we almost always see expert testimony by psychiatrists or psychologists who opine that, in fact, this person will be a future danger, and that testimony carries great weight with juries. In Ramiro’s case, the state retained a psychiatrist, Dr. Edward Gripon, who evaluated him when he was in jail awaiting trial. At the time he opined that Ramiro had antisocial personality disorder and would be a future danger, and he cited some studies saying that people with convictions like Ramiro’s had recidivism rates over 80%. Those studies specifically have been disproven in the years since then. But more importantly, from knowing Ramiro, from seeing the progress he’d made while incarcerated, we knew that he truly wasn’t a threat to anybody. So we asked Dr. Gripon to meet with Ramiro again, and to his credit he agreed. In 2022, he came to the conclusion as well that, indeed, Ramiro did not pose a threat to society as a 40 year old man and he retracted his diagnosis of an antisocial personality disorder. Since such a disorder is an immutable characteristic, this necessarily means he could not have had it at trial either. So our argument at that point was that the evidence on which the state relied to secure this death sentence is false. We were trying to show that the preconditions for both a death sentence and a lawful execution were not present in Ramiro’s case, and he should not be subjected to the death penalty.

What was the court’s response to that?

We got very little traction in the courts. The Court of Criminal Appeal did stay the execution just before the date it was scheduled in June 2022, to allow additional legal proceedings to occur. But the lower court simply agreed with the State who filed a brief saying that none of this should matter because there was still additional evidence—introduced at the 2006 trial—that Ramiro was dangerous. So without an opportunity to present the facts underlying our claims, the courts determined that we had not met any burden sufficient to entitle Ramiro to relief. The Court of Criminal Appeals affirmed the trial court’s decision, and the State sought another execution date against Ramiro in February of 2024, which is when we received the date that was June 26th of 2024, and that was ultimately when he was executed.

You described the role of psychiatrists in these death penalty trials. In this particular case, the expert actually changed his mind. Do you think that was merely based on Ramiro’s individual case, or would you say there is a general rethinking about the professional ethics among psychiatrists in these cases?

I think in this particular scenario, it really was based on an individual assessment done by the psychiatrist, I think Dr. Gripon had a true change of opinion based on what he saw in Ramiro. In terms of the larger psychiatric profession, there was resistance to the idea [of this kind of testimony] as far back as the 1980s. The Texas death penalty scheme and the use of expert witnesses in this way was challenged and went all the way up to the Supreme Court. The American Psychiatric Association actually filed an amicus brief saying: We don’t condone this and don’t believe that we can make these predictions with the degree of certainty that would make it reliable in a capital proceeding. The Supreme Court rejected those arguments, saying that we make predictions of human behavior all the time in other settings, like parole or pretrial decisions. So the court, in what I think is a legal fiction, said this is no different. And so Texas’ whole scheme has been consistently approved of in the face of repeated challenges – including the ones we raised in this case: one in 2022, challenging the facts of Ramiro’s case with the state’s own expert witness; and then again in 2024, when we attacked on a broader scale, the idea of requiring these determinations of future threat and then allowing no mechanism to revisit them.

You mentioned earlier that it’s a jury who makes the decision about the death sentence, which is the case across US states. Why is the composition of juries in capital cases so contentious?

Juries are the bedrock of the American criminal legal system, or so we’re told. The idea behind this is that juries are supposed to be the conscience of the community. However, we also have, by case law, rules in the United States that jurors may not sit on a capital case unless they are willing to impose the death penalty. Right now, support for the death penalty is right around 50% – if half of society are excluded from jury service precisely in capital cases because of their hesitations towards the death penalty, then capital juries are not actually representative of the American society as a whole. These jurors also usually share very little in common with capital defendants who almost entirely have previously experienced deep trauma, institutional discrimination, system failure, abuse, neglect, brain damage, all of these things that jurors likely don’t have personal experience with. So the task of establishing empathy in the jurors for the life history of this person and convincing them of the redeeming qualities of someone that seems completely foreign to them means that the task of capital advocacy is much more difficult than just establishing a legal defense and cross-examining state witnesses.

If we take Ramiro as an example: he was 41 years old when he was executed for a crime that he committed at 18. So he spent his entire adult life in prison, most of that on death row, which in Texas means de facto solitary confinement. They have a tiny slit as a window in their cell. The cells are very small. So I wanted to ask whether such a lengthy imprisonment is typical for death row cases, and how you see inmates coping with this reality?

In terms of the length of confinement, it really varies around the country. The average stay on death row in Texas right now is about 14 years. In California, they have almost 600 people on death row but the last execution was in 2006. So what they’re sentenced to in California basically is life imprisonment with the possibility of execution. In states like Texas, where executions are a real phenomenon, the stays are much shorter. But because of the realities of judicial review and the fact that there are so many people under a sentence of death means that people tend to have long waits on death row. […] While the length of time in solitary confinement for our clients is torture, the length of time between sentence and execution often allows for the development of facts that can really be beneficial to the client. So that’s the kind of tension that we as advocates deal with.
In terms of how people cope with these conditions, there’s an array of reactions, but many people on death row miraculously find ways to carry on. There are a number of extremely creative men, excellent writers, fantastic artists. Ramiro, as you know, was a really talented artist and spent a lot of his time drawing and painting and creating things for people that he loved. […] And then, of course, for people with mental health issues or even those who came in without them, solitary confinement is psychologically damaging. So some people aren’t able to find this kind of inner strength and suffer really deleterious psychiatric effects. But many people have this really incredible will to become as human as they possibly can in these conditions that are completely devoid of humanity.

The conditions on death row in Texas in particular are considered among the worst in the country. There was a lawsuit filed in 2023 to challenge the conditions at Polunsky Unit, where all of Texas’ male death row inmates are housed. What is the status of this lawsuit and do you see these conditions changing any time soon?

The lawsuit was filed on behalf of all the men on death row in Texas; the government of Texas has filed a motion to dismiss it. It’s currently still pending in the courts. In terms of the conditions themselves, a lot of what goes on day-to-day for the men in these prisons is dependent on the warden and they often rotate wardens through the system after a certain period of time. Several years ago, the Polunsky Unit received a new warden, Warden Dickerson. He began to institute some religious-based programming that allowed men like Ramiro to have more contact with each other and with the outside world; more than they had since death row moved to the Polunsky Unit at the end of the 1990s. Before that, they were in conditions that resembled much more that of general population. They had group recreation time, were able to work. But there was a very high-profile escape from that unit, and while nobody really got away […], it led the state to completely overhaul its death row system and send everybody under a sentence of death to this severe isolated unit in which they’re all held in solitary confinement. So since then, things have been very dire. When Warden Dickerson took control of Polunsky, he started to make these changes and the mood on death row was pretty hopeful. While the conditions were still deplorable, he provided more opportunities and allowing people to demonstrate that they could manage more communication. […] While the religious focus of the programming was distasteful to certain people, which I understand, the fact is that it allowed for kind of growth, development, introspection, community, in ways that felt really transformative for a lot of the men. There has been a new warden since 2023, and under his tenure, conditions have regressed. […] I’m hopeful in the long term that things will improve. And we have seen that if given additional responsibilities, men on death row will use them to better themselves.

The US Constitution prohibits cruel and unusual punishment, but the death penalty has remained unaffected by this provision. Can you explain why?

The Eighth Amendment to the US Constitution is the ban on cruel and unusual punishment. Beginning in the early 1900s, the court began to interpret that provision to assess the propriety of certain punishments by what they called the “evolving standards of decency”. More recently, the Supreme Court has interpreted that provision to ban the death penalty for certain categories of offenses – the death penalty is now only available for homicide offenses (although that is potentially changing) – and to ban the execution of individuals who were under the age of 18 when they committed the crime. […] The Supreme Court also held that the evolving standards of decency prohibit the execution of people who are intellectually disabled. […] In the early 2010s, many people thought that we were moving towards judicial abolition of the death penalty in the United States within a decade. But Donald Trump was able to place three members on the Supreme Court, which means there’s now a super-majority of conservatives who take this moral, originalist interpretive position on the constitution. And in 2019, there was a Supreme Court case called Bucklew v. Precythe, which was a challenge to a lethal injection method. And Justice Neil Gorsuch, who was one of the newer judges appointed by Trump, wrote the opinion and he said “the Constitution allows for capital punishment”. So we know that the current Supreme Court, for the next generation or so, believes that capital punishment is per se constitutional.

If we look at how the numbers of executions have evolved in the US over the 20th century, there was a peak in the 1930s at around 200 executions per year, but then it rapidly declined in the late 1940s and 50s. There were actually no executions carried out for almost a decade between the late 60s and 70s. Can you talk about what was going on there?

There are a number of factors that people generally accept to be contributing to that dip in executions. The 1960s and 70s in the United States were a time of burgeoning civil rights, social attitudes were changing. There was attention paid to race discrimination in ways that our society hadn’t really openly acknowledged before, and with it understanding of the racially discriminatory application of the death penalty. The Supreme Court was also expanding the constitutional definition of civil rights, including the incorporation of the Bill of Rights to the states. Until then, these guarantees only applied to the federal government. By interpreting them as applying to the individual states, there were suddenly much more constitutional protections, so state defendants’ abilities to appeal expanded, which slowed down the process. As people were starting to see that there were real problems in the administration of capital punishment, its use and support for its use both dipped.

So this explains why the executions decreased and then temporarily stopped. But we also see that they increased again in the 1970s, so what happened there?

As the appetite for capital punishment was dropping in the general public, there was an organized effort by the Legal Defense Fund (LDF) of the NAACP, one of the first racial justice organizations in the United States. They began to look at the death penalty in practice and identify certain constitutional problems that they thought would lead to a Supreme Court ruling finally holding the practice unconstitutional once and for all. So they developed a coordinated strategy, […] and brought challenges in several states, and they came to the court together in a case called Furman v. Georgia in 1972. In that case, in a 5:4 decision, every judge wrote their own opinion, which was an extremely rare occurrence. But five judges agreed with the idea that the death penalty, as it was practiced in the United States at the time, was unconstitutional. Because of the decline in both the imposition of death sentences and the public opinion, many people thought that this would be the end of the death penalty in the United States. Few people anticipated the backlash that resulted from this Furman decision, in which states rushed to pass new statutes that would address the constitutional concerns that the justices had identified: chiefly arbitrariness and application, the lack of narrowing the people who were exposed to death penalty in the first place, and the absolute lack of proportionality in the sentence [which led to extremely disparate results and left room for discrimination]. Those new statutes were eventually challenged and came up to the Supreme Court together in 1976, which determined that they sufficiently met the constitutional concerns that had been identified four years before, allowing states to resume capital punishment under the constitutional regulation structure that we still have today.

After this, we see that the executions are climbing up until 1999, from where the numbers start to slow down again, both in the number of executions but also the number of death sentences handed down. How would you explain that?

Some of the factors that we believe to be contributing to that drop include the development of capital defense as a specialty, meaning the practice of representation improved. […] And some larger societal factors included the advent of DNA evidence, so we were able to demonstrate conclusively that there were a number of truly innocent people on death row. That led several states to put moratoriums on executions to study this phenomenon. Illinois, for example, had about 100 people on death row and had about ten exonerations at once. So the Republican governor of Illinois said: Look, I don’t oppose the death penalty, but I’m uncomfortable with the fact that we’re getting this wrong 1 in 10 times, I want to study this more. The study he commissioned convinced him that the problems with the death penalty were so severe that he commuted the sentences of everybody on death row in Illinois at the time to a life without parole. The advent of life without parole as a sentence, I think, is another contributing factor. It provided this sentence that addressed many of society’s concerns without necessitating death sentence and execution. The general public became more aware of the realities of life without parole in the US system, which I personally think is also a human rights violation, but we have to attack from the top. So there was a lot of attention on exonerations, innocence, the problems with a lot of forensic science methodologies that were determined to be actually just junk. As the public’s awareness of that grew, I think the willingness of society to just automatically write people off and sentence them to death reduced as well.

Last year there was a major news story about Alabama being the first state that used asphyxiation with nitrogen gas as a new method to carry out executions. Why did they try out this new method and what is the significance of it?

For most of the latter half of the 20th century, lethal injection was the chief method of execution in the United States and for a long time, States were using a three-drug cocktail. It started with a paralytic, so that it appeared to be a medicalized and sanitized procedure. We know that there was actually a lot of pain involved, but because the person being executed was paralyzed, it wasn’t apparent to anybody observing which allowed for this kind of farce, that this is a humane process. Some really brilliant advocacy – actually a lot of European work – led to the major drug companies who are producing the contents of this three-cocktail, to institute what we call end-use agreements in their drugs. So states could not use these drugs for capital punishment, which led to a shortage of the methodology that most states had adopted by law. So there was a drop in executions in the 2010s, in large part because there was an execution drug shortage. But what this led states to do is either revise their protocols to use a single drug. Midazolam is the first drug that was adopted, and that led to some really horrific botched executions in a number of states, including Oklahoma and Arizona. Texas resorted to just ordering the drugs from abroad, from some shady places. […] So, as people started to challenge lethal injection as cruel and unusual, there was a decision by the Supreme Court in 2008, Baze v. Rees, which gave us the rule that a person trying to challenge the method of execution by a state has to point both to a substantial risk of serious harm that would result from the execution method and offer an alternative method that would be more preferable and feasible. So states started to pass laws that authorize different methods of punishment, some bringing back the firing squad, the electric chair, to provide alternatives and force the defendants to choose between them. There was a really horrific execution in Alabama in the past month through nitrous oxide. States are bringing back gas chambers. And I think that’s a trend that we’ll see moving forward, particularly with our new administration federally.

That brings me to my last couple of questions. President Trump issued an executive order in February 2025 to “restore the death penalty and protect public safety”. He describes the death penalty there as “the ultimate deterrent”. Since this zfmr issue is about the question of how to weigh security considerations with human rights issues, I wanted to ask you specifically about this claim. Is there a case to be made that the death penalty can actually contribute to public safety in deterring potential offenders from committing these crimes?

There is no reliable evidence that validates that claim. The National Academy of Sciences, in 2012, did a comprehensive report of all of the deterrence studies that existed at that time and found fundamental flaws in all of them. They found that existing research is “not informative about whether capital punishment decreases, increases or has no effect” on homicide. They recommended that these studies should therefore not influence policy judgments because they’re unreliable. It’s simply untrue that people are actually taking this deliberative action and comparing, am I going to commit a crime where I could be exposed to capital punishment, or am I going to hold off because I don’t want the death penalty? That’s not how people work, particularly when they’re in these acute states that lead to these capital crimes. Ramiro himself has told me that he didn’t even know there was a death penalty, right? He grew up in Texas, but he wasn’t thinking about that at the time. This is just a kind of myth about human decision-making. In fact, if you compare homicide rates in states with and without the death penalty, they tend to be lower in states without the death penalty. Of course, that’s a really complex statistical thing to untangle, but there’s absolutely no credible evidence that the death penalty deters crime.

How do you think Trump’s executive order and the attorney general’s ensuing memorandum will change the situation? On the federal level but also in individual states, since it also said that the attorney general will assist in implementing the death penalty at state level. What does that mean on the ground, and what does it mean for your own work?

My own practice tends to be focused on state court sentences, trials and appeals. So for me, it may not change in the ways that it will change for my friends who work in federal defender offices. I do anticipate that this administration will be stretching the bounds of capital eligibility and seeking the death penalty in many more eligible cases on the federal level. I do believe that they’re going to try to execute the three men who remain on federal death row now [whose death sentences were not commuted by President Biden]. I also think it could affect the funding and budgets of existing offices that provide defense of the death penalty housed in the federal government. It can affect federal review of state court judgments, which is a feature of our system now by statute (but that could theoretically be taken away by an act of Congress). The idea that the federal government is going to assert itself into state court prosecutions, and support state governments in seeking the death penalty, flies in the face of our traditional separation of federal and state governments, but it appears that they are likely going to be providing federal funds to state prosecutors or encouraging policies that heighten the number of cases that state prosecutors seek the death penalty in. Overall, it’s going to embolden states with an appetite to pursue the death penalty to do so. One of the major kind of checks on states to the death penalty in previous times has been federal review, confirmation that all of the constitutional protections have, in fact, been observed. And if there is less faith that that will be carefully checked by the federal government, I think states are going to feel more empowered to seek the death penalty and pursue it. We’ve already seen states pass laws bringing back the death penalty for non-homicide offenses under the theory that the Supreme Court will be willing to roll back some of the amendment protections that were developed over the past century, and I think that could come to fruition. And finally, I think the changes will most affect states like California, for example, where the death penalty serves a more symbolic function and where it hasn’t really been utilized as it has in Texas. With this federal push for the death penalty, these states might start carrying out executions again.