China is not the first nation to introduce old age into the capital punishment debate. Mongolia, Mexico, and Guatemala have all prohibited execution for those aged 60 and over. Russia and Kazakhstan have prohibited execution for those aged 65 and over, and Sudan has prohibited execution for those aged 70 and over.

The United States, one of the few Western democracies that still retains capital punishment, does not have laws in place constraining execution for the aged. But despite the relative frequency of executions in America, executions of the elderly remain rare. Since the reinstatement of the death penalty in 1976, only four individuals over the age of 70 have been executed, and all of those have taken place since 2002, according to Prof. Elizabeth Rapaport of the University of New Mexico School of Law.

Unlike China, the delay between gavel and gallows is long in the United States, averaging eight to 12 years in many states with large death rows. Individuals can spend decades awaiting execution before they exhaust all available appeals. This has led to an increasingly geriatric death row population and a range of constitutional concerns about the legality of such long waits. Few of the individuals making these claims were seniors when they were sentenced.

Although international courts have found long waits on death row illegal, no such ruling has been rendered in the United States. The “Lackey Claim,” named for the Texas prisoner who argued that the 17 years he spent on death row amounted to cruel and unusual punishment, is now being made regularly in federal courts. The claim has not been successful so far, according to Prof. Rapaport, but there are strong indications that some members of the Supreme Court would consider such a case and that a Lackey Claim may soon be heard before the nation’s highest judicial body.

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