Faculty of law blogs / UNIVERSITY OF OXFORD

The Uncertainty of De Facto Moratoria and Persistence of Death Row Phenomenon


Lyle C May
Journalist incarcerated on North Carolina's death row
Julia Udell
Oxford MSc Criminology and Criminal Justice student


Time to read

4 Minutes

Over 15 years have passed since North Carolina’s last execution. Most of those on the state's death row still remember Samuel Flippen, who protested his innocence all the way to the gurney. In the years since his state-sanctioned murder, a de facto moratorium has prevailed in North Carolina similar to that in several other U.S. states. The moratoria across the country have largely been secured through gubernatorial and state court orders, often involving challenges to methods of execution. As a result, for many on death row, the threat of execution is not presently imminent. Despite this reduced urgency, the experience of long-term incarceration on death row is its own torturous punishment. No matter the type or conditions of confinement, mental pain and suffering is inescapable.

The changing contours of the death penalty call for an expansion of the concept of “death row phenomenon.” This phenomenon was initially set out in 1989 by the European Court of Human Rights in Soering v United Kingdom, in which the Court denied the extradition of a man to the United States, contending he would suffer during a protracted wait on Virginia’s death row before his execution. The concept is characterized by circumstances that cause psychological and physical trauma to those awaiting execution, and it is especially associated with solitary confinement. The United States has yet to acknowledge death row phenomenon—despite the country’s brutal prison conditions and prolonged delays between sentencing and execution. However, the phenomenon has become a fixture of international jurisprudence, recognized by the European Court of Human Rights, the U.K. Judicial Committee of the Privy Council, and the U.N. Human Rights Committee. Despite international recognition, there is no agreed upon definition of death row phenomenon. Scholars debate its necessary conditions, and there is no consensus on whether the concept still applies in the absence of the threat of imminent death or use of solitary confinement. 

A more expansive understanding of death row phenomenon can account for the range of death penalty experiences—each brutal in their own way. The severe and often irreparable physical and psychological damage caused by long-term solitary confinement is well documented. Less familiar is the brutality of prolonged congregate confinement in an inactive death penalty state. North Carolina is one of the few U.S. jurisdictions with congregate death row confinement, defined by its open cell blocks where people eat, engage in recreation, and otherwise interact as they would in non-death row maximum security facilities. This environment is highly surveilled and strictly controlled, which exacerbates mental illness and creates barriers to socializing and forming relationships. Though less isolated than solitary confinement, this form of incarceration does not reduce the psychological trauma of decades under the threat of state-sanctioned murder. And although de facto moratoria have made executions less imminent, the fear of lethal injection persists as long as the death penalty remains lawful.

Fencing outside an American prison
Photo credit: @danManzin via freeimages.com.

Life in prison with an ever-looming possibility of execution is the most extreme form of punishment—one that has driven some to drop their appeals in acts of state-assisted suicide. When a government threatens an individual’s life, the resulting fear is pervasive and the danger never dissipates. The threat lurks in thoughts about the future, daydreams, and attempts to escape through books. That threat is reinforced by seemingly innocuous labels such as "death row inmate," endless rules constraining prison life, painful memories of friends who were put to death, solidarity with those sentenced and executed in other jurisdictions, and society's support of a retributive and dysfunctional criminal legal system. However far removed in time the threat of execution may be, it remains a crushing weight on the minds of those condemned. The experience of confinement on death row, even in places with de facto moratoria, still produces death row phenomenon. 

Another element of the capital punishment landscape which expands the concept of death row phenomenon is the sentence of life without parole (LWOP). There are nearly 56,000 people serving LWOP in the United States. By contrast, in England and Wales, as of June 2021, there were 60 people serving this sentence. Long framed as a desired alternative to the death penalty, LWOP is increasingly recognized as a form of prolonged execution, with Pope Francis terming it “a death penalty in disguise.” As such, this sentence (often called, more accurately, “death in prison”) falls within the parameters of death row phenomenon, as people languish behind bars for decades, slowly aging with no hope for release. However, even if the experience of a life sentence were excluded from the phenomenon, the threat of converting a death sentence to LWOP can exacerbate trauma for those on death row, especially in states without active executions. Being resentenced to LWOP can extinguish the hope of a successful appeal and exacerbate psychological deterioration. Although it reduces the threat of immediate and violent execution and can enable people to obtain less severe conditions of incarceration, it may also lead to new difficulties, since LWOP cases receive less legal assistance, less media attention, and less public outrage than their capital counterparts. Moreover, in some states resentencing from a death sentence to LWOP can entirely foreclose commutation and other paths to release. 

Confinement on death row varies widely across the United States, and so too does the experience of death row phenomenon. The kinds of torment brought by de facto moratoria, congregate confinement, and the threat and reality of resentencing to LWOP are distinct from the experience of solitary confinement under imminent threat of death but are nonetheless as substantial. For people confined on North Carolina’s death row, the experience of Samuel Flippen’s state-sanctioned murder surely exacerbated death row phenomenon. During the 15 years since, despite the subsequent halt in executions, the phenomenon has persisted. This more expansive understanding of death row phenomenon should compel not only an end to executions themselves, but also to all experiences of incarceration which entail foregone conclusions of death. 

Julia Udell is a graduate student at the Oxford Centre for Criminology and an intern for the Death Penalty Research Unit (DPRU).

Lyle C. May is a journalist incarcerated on North Carolina’s death row.