Capital punishment in the United States

Capital crimes

Aggravated murder

Aggravating factors for seeking capital punishment of murder vary greatly among death penalty states. California has twenty-two. Some aggravating circumstances are nearly universal, such as robbery-murder, murder involving rape of the victim, and murder of an on-duty police officer.

Several states have included child murder to their list of aggravating factors, but the victim's age under which the murder is punishable by death varies. In 2011, Texas raised this age from six to ten.

In some states, the high number of aggravating factors has been criticized on account of giving prosecutors too much discretion in choosing cases where they believe capital punishment is warranted. In California especially, an official commission proposed, in 2008, to reduce these factors to five (multiple murders, torture murder, murder of a police officer, murder committed in jail, and murder related to another felony). Columnist Charles Lane went further, and proposed that murder related to a felony other than rape should no longer be a capital crime when there is only one victim killed.

Aggravating factors in federal court

In order for a person to be eligible for a death sentence when convicted of aggravated first-degree murder, the jury or court (when there is not a jury) must determine at least one of sixteen aggravating factors that existed during the crime's commission. The following is a list of the 16 aggravating factors under federal law.

1. The murder was committed while committing another felony.
2. Offender was convicted of a separate felony involving a firearm prior to the aggravated murder.
3. Being convicted of a separate felony where death or life imprisonment was authorized prior to the aggravated murder.
4. Being convicted of any separate violent felony prior to the aggravated murder.
5. The offender put the lives of one or more other persons in danger of death during the commission of the crime.
6. The offender committed the crime in an especially cruel, heinous, or depraved manner.
7. The offender paid another party to commit the murder.
8. The offender received payment for committing the murder.
9. The murder was committed after significant premeditation or planning.
10. The offender was previously convicted of at least two drug offenses.
11. The victim would not have been able to defend themselves while being attacked.
12. The offender was previously convicted of a federal drug offense.
13. The offender was involved in a long-term business of selling drugs to minors.
14. A high-ranking official was murdered, such as the president of the United States, the leader of another country, or a police officer.
15. The offender was previously convicted of sexual assault or child rape.
16. During the crime's commission, the offender killed or tried to kill multiple people.

Crimes against the state

The opinion of the court in Kennedy v. Louisiana says that the ruling does not apply to "treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State".

Treason, espionage and large-scale drug trafficking are all capital crimes under federal law. Treason is also punishable by death in six states (Arkansas, California, Georgia, Louisiana, Mississippi, and South Carolina). Large-scale drug trafficking is punishable by death in two states (Florida and Missouri), and aircraft hijacking in two others (Georgia and Mississippi). Vermont has an invalidated pre-Furman statute allowing capital punishment for treason despite abolishing capital punishment in 1965.

Legal process

The legal administration of the death penalty in the United States typically involves five steps: prosecutorial decision to seek the death penalty, sentencing, direct review, state collateral review, and federal habeas corpus.

Decision to seek the death penalty

While judges in criminal cases can usually impose a harsher prison sentence than the one demanded by prosecution, the death penalty can be handed down only if the prosecutor has specifically decided to seek it.

In the decades since Furman, new questions have emerged about whether or not prosecutorial arbitrariness has replaced sentencing arbitrariness. A study by Pepperdine University School of Law published in Temple Law Review, surveyed the decision-making process among prosecutors in various states. The authors found that prosecutors' capital punishment filing decisions are marked by local "idiosyncrasies", and that wide prosecutorial discretion remains because of overly broad criteria. California law, for example, has 22 "special circumstances", making nearly all first-degree murders potential capital cases.

A 2016 study by Harvard Law School's Fair Punishment Project found that five prosecutors had been responsible for at least 440 death sentences in their counties, amounting to roughly one in seven prisoners then awaiting execution in the United States. The study highlighted substantial variation in the use of the death penalty among counties, including within states that authorized capital punishment. This variation was consistent with Stephen Breyer's observation that the imposition of the death penalty could depend heavily on the county in which a defendant was tried, raising questions about the fairness of its application.

A proposed remedy against prosecutorial arbitrariness is to transfer the prosecution of capital cases to the state attorney general.

In 2017, Florida governor Rick Scott removed all capital cases from local prosecutor Aramis Ayala because she decided to never seek the death penalty no matter the gravity of the crime.

Sentencing

Of the 27 states with the death penalty, 25 require the sentence to be decided by the jury, and 23 require a unanimous decision by the jury.

Two states do not use juries in death penalty cases:

• In Nebraska the sentence is decided by a three-judge panel, which must unanimously agree on death, and the defendant is sentenced to life imprisonment if one of the judges is opposed.
• Montana is the only state where the trial judge decides the sentence alone.

Two states do not require a unanimous jury decision:

• In Alabama, at least 10 jurors must concur, and a retrial happens if the jury deadlocks.
• In Florida, at least 8 jurors (two-thirds) must concur, and the prosecution can pursue a retrial if the jury deadlocks.

In all states in which the jury is involved, only death-qualified prospective jurors can be selected in such a jury, to exclude both people who will always vote for the death sentence and those who are categorically opposed to it. However, the states differ on what happens if the penalty phase results in a hung jury:

• In five states (Alabama, Arizona, California, Kentucky and Nevada), a retrial of the penalty phase will be conducted before a different jury (the common-law rule for mistrial).
• In two states (Indiana and Missouri), the judge will decide the sentence.
• In the remaining states, a hung jury results in a life sentence, even if only one juror opposed death. Federal law also provides that outcome.

The first outcome is referred as the "true unanimity" rule, while the third has been criticized as the "single-juror veto" rule.

In most jurisdictions, capital cases are conducted in two distinct phases: a guilt phase, during which the jury determines whether the defendant committed the charged offense, and a penalty phase, where sentencing considerations such as aggravating and mitigating factors are evaluated.

Direct review

If a defendant is sentenced to death at the trial level, the case then goes into a direct review. The direct review process is a typical legal appeal. An appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether the decision was legally sound or not. Direct review of a capital sentencing hearing will result in one of three outcomes. If the appellate court finds that no significant legal errors occurred in the capital sentencing hearing, the appellate court will affirm the judgment, or let the sentence stand. If the appellate court finds that significant legal errors did occur, then it will reverse the judgment, or nullify the sentence and order a new capital sentencing hearing. If the appellate court finds that no reasonable juror could find the defendant eligible for the death penalty, then it will order the defendant acquitted, or not guilty, of the crime for which he/she was given the death penalty, and order him sentenced to the next most severe punishment for which the offense is eligible. In 1995, about 60 percent of capital punishment decisions were upheld during direct review.

State collateral review

At times when a death sentence is affirmed on direct review, supplemental methods to oppose the judgment, though less familiar than a typical appeal, do remain. These supplemental remedies are considered collateral review, that is, an avenue for upsetting judgments that have become otherwise final. Where the prisoner received his death sentence in a state-level trial, as is usually the case, the first step in collateral review is state collateral review, which is often called state habeas corpus. (If the case is a federal death penalty case, it proceeds immediately from direct review to federal habeas corpus.) Although all states have some type of collateral review, the process varies widely from state to state. Generally, the purpose of these collateral proceedings is to permit the prisoner to challenge his sentence on grounds that could not have been raised reasonably at trial or on direct review. Most often, these are claims, such as ineffective assistance of counsel, which requires the court to consider new evidence outside the original trial record, something courts may not do in an ordinary appeal. State collateral review, though an important step in that it helps define the scope of subsequent review through federal habeas corpus, is rarely successful in and of itself. In 1995, out of the roughly 47% cases which didn't survive postconviction review at the state level, 6 percent of death sentences were overturned on state collateral review.

To reduce litigation delays, other states require convicts to file their state collateral appeal before the completion of their direct appeal, or provide adjudication of direct and collateral attacks together in a "unitary review".

Federal habeas corpus

Federal habeas corpus is a type of collateral review, and it is the only way that state prisoners may attack a death sentence in federal court (other than petitions for certiorari to the United States Supreme Court after both direct review and state collateral review). The purpose of federal habeas corpus is to ensure that state courts, through the process of direct review and state collateral review, have done a reasonable job in protecting the prisoner's federal constitutional rights. Prisoners may also use federal habeas corpus suits to bring forth new evidence that they are innocent of the crime, though to be a valid defense at this late stage in the process, evidence of innocence must be truly compelling. In 1995, 21 percent out of the 68 percent death penalty cases which didn't survive postconviction review were reversed through federal habeas corpus.

James Liebman, a professor of law at Columbia Law School, stated in 1996 that his study found that when habeas corpus petitions in death penalty cases were traced from conviction to completion of the case, there was "a 40 percent success rate in all capital cases from 1978 to 1995". Similarly, a study by Ronald Tabak in a law review article puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47 percent of the habeas petitions filed by death row inmates were granted".

The increase in successive habeas petitions prompted concerns that prisoners and their attorneys were manipulating the process through repeated and last-minute filings. Bryan Stevenson argued that these concerns were overstated, pointing instead to the shortage of funded postconviction counsel, which left a small number of attorneys handling excessive caseloads and scrambling to take cases as execution deadlines approached. Nevertheless, this perception of abuse contributed to political pressure for restrictions that culminated in the Antiterrorism and Effective Death Penalty Act (AEDPA).

The Supreme Court's habeas decisions in the 1980s and 1990s focused heavily on capital cases, and federal courts set aside state judgments in capital cases at substantially higher rates than they did in noncapital cases. AEDPA's restrictions therefore had a particularly significant effect on capital habeas cases, against a backdrop of continuing debate over federal review and the finality of state-court judgments.

AEDPA also created a separate expedited habeas procedure for capital cases, with shorter filing and processing deadlines. The procedure was available only to states that provided qualified and experienced counsel in state postconviction proceedings, with the aim of making state review more thorough and reducing the need for lengthy federal habeas proceedings. Congress amended the provisions in the PATRIOT Reauthorization Act. The changes conferred the determination of whether a state fulfilled the requirements to the U.S. attorney general, with a possible appeal of the state to the United States Court of Appeals for the District of Columbia Circuit. In May 2026, the Department of Justice issued a new rule implementing the amended provisions to fast-track executions.

Section 1983

The Civil Rights Act of 1871 – codified at 42 U.S.C. § 1983 – allows complainants to bring lawsuits against state actors to protect their federal constitutional and statutory rights.

While direct appeals are normally limited to just one and automatically stay the execution of the death sentence, Section 1983 lawsuits are unlimited, but the petitioner will be granted a stay of execution only if the court believes he has a likelihood of success on the merits.

Traditionally, Section 1983 was of limited use for a state prisoner under sentence of death because the Supreme Court has held that habeas corpus, not Section 1983, is the only vehicle by which a state prisoner can challenge his judgment of death. In the 2006 Hill v. McDonough case, however, the United States Supreme Court approved the use of Section 1983 as a vehicle for challenging a state's method of execution as cruel and unusual punishment in violation of the Eighth Amendment. The theory is that a prisoner bringing such a challenge is not attacking directly his judgment of death, but rather the means by which that the judgment will be carried out. Therefore, the Supreme Court held in the Hill case that a prisoner can use Section 1983 rather than habeas corpus to bring the lawsuit. Yet, as Clarence Hill's own case shows, lower federal courts have often refused to hear suits challenging methods of execution on the ground that the prisoner brought the claim too late and only for the purposes of delay.

Execution warrant

While the execution warrant is issued by the governor in several states, in the vast majority it is a judicial order, issued by a judge or by the state supreme court at the request of the prosecution.

The warrant usually sets an execution day. Some states instead provide a longer period, such as a week-long or 10-day window to carry out the execution. This is designated to avoid issuing a new warrant in case of a last-minute stay of execution that would be vacated only few days or few hours later.

Distribution of sentences

In recent years there has been an average of one death sentence for every 200 murder convictions in the United States.

The majority of death row inmates have a prior felony conviction.

According to the Death Penalty Information Center, the top three factors determining whether a convict gets a death sentence in a murder case are not aggravating factors, but instead the location the crime occurred (and thus whether it is in the jurisdiction of a prosecutor aggressively using the death penalty), the quality of legal defense, and the race of the victim (murder of white victims being punished more harshly).

Economic factors

Economic factors affect the outcome of capital cases. Empirical research has linked erroneous death sentences to inadequate legal representation, which can disproportionately affect defendants who cannot afford private counsel. Limited resources may hinder defense attorneys' ability to investigate and present mitigating evidence, potentially affecting the jury's sentencing decision.

Women

Women account for a small share of death sentences, death-row prisoners, and executions in the United States. Most women executed at the state level were executed in Texas, Oklahoma, or Florida. As of May 20, 2021, the Death Penalty Information Center reports that there are 51 women on death row. 17 women have been executed since 1976, compared to 1,516 men during the same time period.

Race

African Americans accounted for 34 percent of people executed since 1976, while Whites accounted for 56 percent. Black people accounted for 40 percent of those sentenced to death, compared with 42 percent for Whites. Black and Latino people are disproportionately represented among those sentenced to death relative to their shares of the population.

Since January 1, 1973, 108 out of the 200 total exonerations have been African Americans. African Americans account for about 54% of all exonerations. 54 percent of people wrongfully convicted and sentenced to death in the United States are black; 64 percent are non-white in general.

In a 1998 study, David Baldus and George Woodworth found that Black defendants were nearly four times as likely to receive a death sentence as otherwise comparable defendants. Some researchers have attributed this disparity in part to the racial composition of prosecutors in death penalty jurisdictions, who are overwhelmingly white men.

Race of victims

Legal scholar Tanya Kateri Hernandez examined McCleskey v. Kemp (1987) in the context of unconscious racial bias in capital sentencing. The Baldus study, introduced by McCleskey, found that the race of the victim was a significant factor in death sentencing outcomes in Georgia, with cases involving white victims more likely to result in a death sentence. The U.S. Supreme Court acknowledged that the victim's race was the most influential factor identified by the study but held that the statistical disparity did not establish intentional discrimination in McCleskey's particular case.

African Americans account for approximately 50 percent of murder victims. Among those sentenced to death, however, about 80 percent were sentenced for killing white victims. A 2007 study of 1,560 people sentenced to death in 16 states found that Black defendants who killed white victims were more likely to be executed.

Hispanic and Latino

Approximately 13.5% of death row inmates are of Hispanic or Latino descent. In 2019, individuals identified as Hispanic and Latino Americans accounted for 5.5% of homicides. The death penalty exhortation rate for Hispanic and Latino Americans is 8.6%.

Other races

Approximately 1.81% of death row inmates are of Asian descent.

Racial breakdown of sentences by state

The geographic distribution of capital punishment in the United States has a strong correlation with the history of slavery and lynchings. States where slavery was legal before the Civil War also saw high numbers of lynchings after the Civil War and into the 20th century. These states include Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee. These states also have the highest rates of capital punishment sentences and executions today.

Capital punishment is still in force in 26 states, which include the following: Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Wyoming. Of these, Oklahoma, Texas, Delaware, Missouri, and Alabama make up the top five states with the highest rate of executions per capita. However, Texas, Oklahoma, Virginia, Florida, and Missouri are the top five states with the highest number of executions–Texas alone has imposed 570 executions since 1976.

The racial makeup of the people sentenced to death reveals a disproportionate representation of Black people. Consider the following states with the highest execution rates per capita (defined as executions per 100,000 residents):

Among states

The distribution of death sentences among states is loosely proportional to their populations and murder rates. California, which is the most populous state, also has the largest death row, with almost 600 inmates. Wyoming, which is the least populous state, has nobody on death row.

But executions are more frequent (and happen more quickly after sentencing) in conservative states. Texas, which is the second most populous state in the Union, carried out over 500 executions during the post-Furman era, more than a third of the national total. California has carried out only 13 executions during the same period, and has carried out none since 2006.

Alabama

Capital punishment in Alabama: Alabama's death penalty sentences persist as it declines among many other states in the U.S. The state continues to have one of the nation's highest rates of death sentences per capita. As of April 1, 2022, there are currently 80 Black people and 84 white people on death row. Though the Black and white populations are both about half of the total death row population in Alabama, Black people are represented at a disproportionately high number considering they make up only 27% of Alabama's general population.

Alabama has the highest per capita rate of death sentences. This is because Alabama was one of the few states that allowed judges to override a jury recommendation in favor of life imprisonment, a possibility it removed in March 2017.

Texas

Capital punishment in Texas: Texas is the state with the highest number of cumulative executions since 1976. Black people make up about 45% of the death row population in Texas, though only make up about 13% of the state's general population.

Oklahoma

Capital punishment in Oklahoma: Oklahoma is the state with the second highest number of cumulative executions since 1976. Black people make up 46% of death sentences in Oklahoma County, though only make up 16% of the county's total population.

It is also the only state that has four methods of execution, while most others only have one or two methods. These methods of execution include: lethal injection, nitrogen hypoxia, electrocution, and firing squad.

Virginia

Capital punishment in Virginia: The death penalty in Virginia came to an end on March 24, 2021, when the state became the second Southern state to abolish the death penalty (West Virginia having been the first, in 1965). Prior to abolition, Virginia had some of the most executions out of any state since 1976, as well as the most executions overall in the pre-Furman v. Georgia era. It is also the latest state to abolish death penalty. Virginia has the shortest time on average between death sentence and execution (less than eight years) and has executed 113 offenders since 1976 with only five remaining on death row as of June 2017.

Notable capital punishment cases

George Stinney Jr.

In 1944, 14-year-old African-American George Stinney Jr. was convicted of murdering two white girls. He was the youngest person in the United States to be sentenced to death. Stinney was executed by electrocution within 80 days of the murders. In 2014, Stinney's convictions were vacated and he was exonerated on the grounds that his 6th amendment rights had been violated. It was found Stinney's interrogation had included coercion, and an absence of counsel and of parental guidance. Police said that Stinney had confessed, but no signed confession was ever produced. The Judge who overturned the conviction wrote that: "Stinney's appointed counsel made no independent investigation, did not request a change of venue or additional time to prepare the case, he asked little or no questions on cross-examination of the State's witnesses and presented few or no witnesses on behalf of his client based on the length of trial. He failed to file an appeal or a stay of execution." Stinney's sister said in a 2009 affidavit that she was with Stinney on the day of the murders, but she was never called to testify during the trial.

John Wayne Gacy

John Wayne Gacy was convicted in 1980 of murdering 33 young men and boys in Illinois between 1972 and 1978, making his conviction at the time the largest number of homicides attributed to a single individual in U.S. legal history. Gacy was sentenced to death and executed by lethal injection at Stateville Correctional Center on May 10, 1994.

Lena Baker

Lena Baker was a Black woman who was wrongfully convicted of the murder of her abuser in 1945. In Georgia, Baker served as a maid for a handicapped white man; she faced regular sexual and physical abuse from him. Despite the town terrorizing Baker to leave the relationship, her abuser would equally threaten her with violence if she ever left. Weeks before his death, he started holding Baker prisoner in his gristmill for numerous days. Baker was able to escape the mill, but when she came back, her abuser threatened her with an iron bar. After a struggle, Baker took ahold of his pistol and shot the man in self-defense.

The all-white, all-male jury did not empathize with Baker's case of self-defense as a survivor of her slave-like conditions, including sexual and physical abuse. In less than a day, the jury found Baker guilty of capital murder, which happened to result in a mandatory death sentence in Georgia at the time. After failed appeals, reviews, and the abandonment of her legal representation, Lena Baker was executed by electrocution in 1945. About 60 years following Baker's death, her family, with the help of the Prison and Jail Project, requested a posthumous pardon. Their efforts succeeded in 2005 when Baker was granted a full and unconditional pardon from the Georgia Board of Pardons and Paroles because there was a lack of evidence to demonstrate Baker's intent to kill. If the justice system had been careful with the evidence, they would have noted Baker's conviction did not qualify as capital murder and should have resulted in a sentence other than the death penalty.

Roger Coleman

Roger Coleman was convicted in 1982 of the rape and murder of his sister-in-law and sentenced to death. He maintained his innocence throughout his incarceration, and his claims became the subject of extensive media coverage and support from opponents of the death penalty. His appeals included efforts to obtain a new trial, but he was executed in 1992. The case received renewed attention after his execution when DNA evidence was analyzed, making it only the second case in the United States in which DNA testing was conducted on evidence from an executed prisoner. In January 2006, Virginia Governor Mark Warner announced that the testing had conclusively established Coleman's guilt.

Sacco and Vanzetti

Nicola Sacco and Bartolomeo Vanzetti were Italian immigrants and anarchists who were convicted in 1921 of murdering a guard and a paymaster during a 1920 armed robbery in Braintree, Massachusetts. Their trial and conviction became internationally controversial amid allegations of anti-Italian, anti-immigrant, and anti-anarchist prejudice, as well as conflicting evidence and claims of wrongful conviction. Appeals and other efforts to obtain a new trial were unsuccessful, and the two men were executed in the electric chair at Charlestown State Prison on August 23, 1927. Their case generated worldwide protests and remained the subject of controversy after their deaths. In 1977, Massachusetts Governor Michael Dukakis issued a proclamation stating that they had been unfairly tried and convicted.

Ted Bundy

Ted Bundy was convicted of multiple murders in Florida and sentenced to death. After escaping custody twice while facing murder charges in Colorado, Bundy fled to Florida, where he committed three murders for which he received three death sentences in two trials. He was executed in the electric chair at Florida State Prison on January 24, 1989.

Timothy McVeigh

Timothy McVeigh was convicted of the Oklahoma City bombing, which killed 168 people, including 19 children, and injured hundreds more. McVeigh, a Gulf War veteran who had developed antigovernment views, said he intended the bombing as retaliation for the federal government's actions at the Waco siege and Ruby Ridge. He was convicted in 1997 of federal offenses including using a weapon of mass destruction and sentenced to death. McVeigh was executed by lethal injection at the Federal Correctional Complex in Terre Haute, Indiana, on June 11, 2001. He was the first person executed by the federal government since 1963 and did not pursue further appeals or seek a stay of execution.

Troy Davis

Troy Davis was convicted of the 1989 murder of police officer Mark MacPhail in Savannah, Georgia, and sentenced to death in 1991. Seven prosecution witnesses testified that they had seen Davis shoot MacPhail, while two others testified that Davis had confessed. The murder weapon was never recovered, although ballistic evidence linked bullets found at the scene to another shooting for which Davis was convicted. Davis maintained his innocence throughout his incarceration, and his case attracted support from human rights organizations, public figures, and political and religious leaders. After several scheduled executions were stayed, the Supreme Court of the United States ordered an evidentiary hearing in 2010 to consider new evidence concerning his innocence. The federal district court upheld the conviction, finding that several witness affidavits did not constitute recantations and that the evidence did not clearly establish Davis's innocence. After subsequent appeals and a request for clemency were denied, Davis was executed by lethal injection in Georgia on September 21, 2011.

Methods

Of the 27 states with the death penalty, 22 provide lethal injection either as the sole method of execution, or as the primary method applying by default (if available) when the convict does not select one.

The five other states include South Carolina, which provides electrocution as the primary method, and Idaho, which provides firing squad as the primary method, while Louisiana, Mississippi and Missouri allow the department of corrections to select the method.

Several states continue to use the three-drug protocol for lethal injection: firstly an anesthetic, secondly pancuronium bromide, a paralytic, and finally potassium chloride to stop the heart. Eight states have used a single-drug protocol, instead using a single anesthetic.

While some state statutes specify the drugs required in executions, the majority do not.

Pressures from anti-death penalty activists have led to supply-chain disruptions of the chemicals used in lethal injections. Hospira, the only U.S. manufacturer of sodium thiopental, stopped making the drug in 2011, citing "[Hospira] would have to prove that it wouldn’t be used in capital punishment." In 2016, it was reported that more than 20 U.S. and European drug manufacturers including Pfizer (the owner of Hospira) had taken steps to prevent their drugs from being used for lethal injections.

Since then, some states have used other anesthetics, such as pentobarbital, etomidate, or fast-acting benzodiazepines or sedatives like midazolam. In 2009, following the failed execution of Romell Broom, Ohio began using a one drug protocol of thiopental sodium intravenously for lethal injections, or an intramuscular injection of midazolam and hydromorphone if an IV site could not be established.

Many states have since bought lethal injection drugs from foreign suppliers, and most states have made it a criminal offense to reveal the identities of drug suppliers or execution team members. In November 2015, California adopted regulations allowing the state to use its own public compounding pharmacies to make the chemicals.

Lethal injection was held to be a constitutional method of execution by the U.S. Supreme Court in three cases: Baze v. Rees (2008), Glossip v. Gross (2015), and Bucklew v. Precythe (2019).

State-selected methods

In the following states, the method is selected by the department of corrections among:

• Lethal injection and gas chamber in Missouri
• Lethal injection, nitrogen hypoxia and electrocution in Louisiana
• Lethal injection, nitrogen hypoxia, electrocution and firing squad in Mississippi

Offender-selected methods

In the following states, death row inmates with an execution warrant may choose to be executed by a way other than the state default-method:

• Nitrogen hypoxia in Alabama
• Gas chamber in California
• Electrocution in Alabama and Florida
• Lethal injection or firing squad in South Carolina

In five states an alternate method (firing squad in Utah, gas chamber in Arizona, and electrocution in Arkansas, Kentucky and Tennessee) is possible only when the inmate was sentenced to death for crimes committed prior to a specified date (usually when the state switched from the earlier method to lethal injection). In states that abolished death penalty, people sentenced to death for a crime before the date of the abolition may retroactively be subjected to death penalty. Those states' methods are:

• lethal injection in Colorado
• lethal injection in New Hampshire, unless this method is "impractical", in which case hanging would be the method

The most recent executions by methods other than injection are as follows (all chosen by the inmate):

Backup methods

Depending on the state, the following alternative methods are statutorily provided in case the primary method is either found unconstitutional by a court or unavailable for practical reasons:

• Nitrogen hypoxia in Alabama and Oklahoma
• Lethal Injection in Idaho
• Gas chamber in California and Wyoming
• Electrocution in Arkansas, Florida, Kentucky, Oklahoma and Tennessee
• Firing squad in Oklahoma, South Carolina and Utah
• Hanging in New Hampshire (where repeal of the death penalty in 2019 is not retroactive, and the state still has one death row inmate)

Several states including Oklahoma, Tennessee and Utah, have added back-up methods recently (or have expanded their application fields) in reaction to the shortage of lethal injection drugs.

Some states such as Alabama, Florida and Tennessee have a larger provision dealing with execution methods unavailability, requiring their state departments of corrections to use "any constitutional method" if both lethal injection and electrocution are found unconstitutional. This was designed to make unnecessary any further legislative intervention in that event, but the provision applies only to legal (not practical) infeasibility.

Oklahoma became in 2015 the first state to have adopted the nitrogen option. After struggling for years to design a nitrogen execution protocol and to obtain a proper device for it, Oklahoma announced in February 2020 it abandoned the project after finding a new reliable source of lethal injection drugs and has since resumed executions.

In March 2018, Alabama became the third state (after Oklahoma and Mississippi) to make nitrogen hypoxia available, and became the first when it successfully executed Kenneth Eugene Smith at William C. Holman Correctional Facility.

Federal executions

The method of execution of federal prisoners for offenses under the Violent Crime Control and Law Enforcement Act of 1994 is that of the state in which the conviction took place. If the state has no death penalty, the judge must choose a state with the death penalty for carrying out the execution.

The federal government has a facility (at U.S. Penitentiary Terre Haute) and regulations only for executions by lethal injection, but the United States Code allows U.S. Marshals to use state facilities and employees for federal executions.

Military courts

The method of execution for death sentences imposed by military courts is lethal injection, and the Bureau of Prisons agreed to let the U.S. Armed Forces use its civilian facility for that purpose.

Execution attendance

The last public execution in the U.S. was that of Roscoe Jackson in Galena, Missouri, on May 21, 1937.

It was the last execution in the nation at which the general public was permitted to attend without any legally imposed restrictions. "Public execution" is a legal phrase, defined by the laws of various states, and carried out pursuant to a court order. Similar to "public record" or "public meeting", it means that anyone who wants to attend the execution may do so.

Around 1890, a political movement developed in the United States to mandate private executions. Several states enacted laws which required executions to be conducted within a "wall" or "enclosure", or to "exclude public view". Most state laws currently use such explicit wording to prohibit public executions, while others do so only implicitly by enumerating the only authorized witnesses.

All states allow news reporters to be execution witnesses for information of the general public, except Wyoming which allows only witnesses authorized by the condemned. Several states also allow victims' families and relatives selected by the prisoner to watch executions. An hour or two before the execution, the condemned is offered religious services and to choose their last meal (except in Texas which abolished it in 2011).

The execution of Timothy McVeigh on June 11, 2001, was witnessed by over 200 people, most by closed-circuit television. Most were survivors, or relatives of victims of, the 1995 Oklahoma City Bombing, for which McVeigh had been sentenced to death.

Public opinion

Gallup, Inc. has monitored support for the death penalty in the United States since 1937. Gallup surveys documented a sharp increase in support for capital punishment between 1966 (42%) and 1994 (80%). In the late 1990s, support began to wane, falling to 53% in a 2024 telephone calls survey.

Pew Research polls have measured in 2020 support for the death penalty to be 65% when a panel responds to a self-administered online survey, and 52% when asked by live telephone interviewers. The gap between the two methods was wider for Democratic-leaning voters, with 32% of them approving capital punishment by phone and 49% online, compared to a difference of 74% versus 83% for Republican-leaning voters.

In 2021, Ipsos conducted a multinational online survey on capital punishment among 55 countries. It showed 67% of Americans favoring the death penalty, more than any European Union country, but lower than Japan and South Korea.

Support levels vary depending on the question's wording. When asked in 2019 by Gallup to choose which do they think is the better penalty for murder, 36% of polled persons selected the death penalty, and 60% life imprisonment with absolutely no possibility of parole. This was the highest percentage choosing life without parole since the first time the question was asked in 1985.

A 2019 study for the Rose Institute of State and Local Government surveyed respondents online about specific crimes. The two receiving the highest support for a capital sentence were raping and murdering a child (80%) and killing dozens of people as part of a terrorist attack (75%). The two that received the lowest support were killing someone after breaking into their home (52%) and killing someone in the course of a robbery (49%).

Debate

In October 2009, the American Law Institute voted to disavow the framework for capital punishment that it had created in 1962, as part of the Model Penal Code, "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment". A study commissioned by the institute had said that experience had proved that the goal of individualized decisions about who should be executed and the goal of systemic fairness for minorities and others could not be reconciled. As of 2017, 159 prisoners have been exonerated due to evidence of their innocence.

Additionally, in 2021–22, states such as South Carolina have experienced a shortage of the drugs used to make the lethal cocktail and some inmates have had to choose between death by electric chair or death by firing squad (aiming for the heart). Critics note that these other methods are more likely to induce pain in the inmate during execution and that these methods of execution have a high risk of being botched.

Botched executions

One of the main arguments against the use of capital punishment in the United States is that there has been a long history of botched executions. University of Colorado Boulder Professor Michael L. Radelet described a "botched execution" as an execution that causes the prisoner to suffer for a long period of time before they die.

A study found that at least 34 of the 749 executions carried out in the U.S. between 1977 and 2001, or 4.5%, involved "unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner". The rate of these "botched executions" remained steady over the period. A study published in The Lancet in 2005 found that in 43% of cases of lethal injection, the blood level of hypnotics in the prisoner was insufficient to ensure unconsciousness. Nonetheless, the Supreme Court ruled in 2008 (Baze v. Rees), again in 2015 (Glossip v. Gross), and a third time in 2019 (Bucklew v. Precythe), that lethal injection does not constitute cruel and unusual punishment.

Opponents to the death penalty note that the lethal injection, the most common method of carrying out the death penalty, can oftentimes cause executed individuals to remain conscious for several minutes after administering the injection, causing them to feel severe pain in their veins. The "three drug cocktail" consists of midazolam, a sedative, vecuronium bromide, a paralytic, and potassium chloride, which stops the heart. Opponents note that the midazolam in particular may mask the executed individual's pain and suffering. Opponents argue that this causes unnecessary pain and suffering on the executed individual and constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.

The following is a short list of examples of botched executions that have occurred in the United States.

• William Kemmler was the first person executed in the electric chair, in 1890. After being pronounced dead after 17 seconds, he was found to be still alive. The current was applied a second time, for two minutes, to complete the death.
• In Arizona, it took Joseph Wood two hours to die after being injected.
• In Alabama, the execution of Doyle Hamm was called off after prison medical staff spent nearly three hours attempting to insert an IV that could be used to administer the lethal injection drugs. In the process, the execution team punctured Hamm's bladder and femoral artery, causing significant bleeding.
• In Florida, Jesse Joseph Tafero had flames burst from his hair during an electrocution.
• Wallace Wilkerson died after 27 minutes in pain after the firing squad failed to shoot him in the heart. Because of this, the constitutionality of the use of the firing squad was questioned. The Supreme Court of the United States affirmed that the firing squad did not violate the Eighth Amendment in the case Wilkerson v. Utah (1879).
• In New Mexico, Thomas Ketchum was decapitated when his body fell through the trap door during his hanging.
• In Mississippi, Jimmy Lee Gray died after being in the gas chamber for nine minutes. During the procedure, Gray thrashed and banged his head against the metal pole behind his head while struggling to breathe.

Austin Sarat, a professor of jurisprudence and political science at Amherst College, in his book Gruesome Spectacles: Botched Executions and America's Death Penalty, found that from 1890 to 2010, 276 executions were botched out of a total of 8,776, or 3.15%, with lethal injections having the highest rate. Sarat writes that between 1980 and 2010 the rate of botched executions was higher than ever: 8.53 percent. Death penalty experts found that 36.8% of all executions attempted or completed in 2022 (all lethal injections) were botched.

In August 2025, Tennessee executed Byron Black, a case that drew criticism from witnesses and legal experts for procedural errors and prolonged delays during the process.

Cost

Another argument in the capital punishment debate is the cost. Because death penalty cases are highly specialized, with defense counsel performing duties and functions that differ from those in ordinary criminal cases, representing a capital defendant competently requires substantially greater resources. The bifurcated nature of capital trials, the need for extensive investigation into a defendant's personal history and background, and the complexity of the law make capital cases more costly and difficult to litigate than ordinary criminal trials. Many states provide no counsel for capital prisoners in state post-conviction proceedings, while inadequate funding, standards, and qualified attorneys in other states have limited the effectiveness of representation. The failure to provide adequate funding does not eliminate the costs of capital litigation but shifts them to capital defendants, who bear the consequences of inadequate representation, and to pro bono lawyers and other defense professionals who provide services that states otherwise would have to fund.

Inadequate legal representation

Inadequate legal representation has been identified as a significant problem in capital cases. Congress defunded postconviction defender organizations in 1996, while many states continued to provide inadequate funding for capital defense and appointed lawyers with limited experience or disciplinary histories. Reports from Tennessee, Georgia, and Pennsylvania documented failures to investigate capital cases and present potentially mitigating evidence, as well as the appointment of inexperienced counsel. The American Bar Association identified inadequate and undercompensated counsel as a principal failing of the capital punishment system. Supreme Court decisions including Williams v. Taylor (Michael Williams) (2000), Wiggins v. Smith (2003), and Rompilla v. Beard (2005) subsequently found ineffective assistance of counsel in capital cases, including failures to investigate and present mitigating evidence during sentencing.

Post-conviction innocence claims

In 2009, the Supreme Court held that there is no constitutional right post-conviction DNA testing for convicted prisoners. Forty-eight states have post-conviction DNA testing statutes. However, fewer than half the states have statutes that give inmates time and money for post-conviction DNA testing. There is widespread public support for such a system.

Theories of punishment

As of 2025, four of the 38 OECD member states (the United States, Israel, Japan, and South Korea) retain capital punishment. However, South Korea has observed an unofficial moratorium on executions since 1997.

Deterrence

The murder rate is highest in the South (6.5 per 100,000 in 2016), where 80% of executions are carried out, and lowest in the Northeast (3.5 per 100,000), with less than 1% of executions. A report by the US National Research Council in 2012 stated that studies claiming a deterrent effect are "fundamentally flawed" and should not be used for policy decisions. According to a survey of the former and present presidents of the country's top academic criminological societies, 88% of these experts rejected the notion that the death penalty acts as a deterrent to murder.

Opponents

Amnesty International opposes capital punishment because it breaches human rights, in particular the right to life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment. Other groups oppose capital punishment on moral grounds.

Reform Judaism has formally opposed the death penalty since 1959, when the Union of American Hebrew Congregations (now the Union for Reform Judaism) resolved "that in the light of modern scientific knowledge and concepts of humanity, the resort to or continuation of capital punishment either by a state or by the national government is no longer morally justifiable." The resolution goes on to say that the death penalty "lies as a stain upon civilization and our religious conscience." In 1979, the Central Conference of American Rabbis, the professional arm of the Reform rabbinate, resolved that, "both in concept and in practice, Jewish tradition found capital punishment repugnant" and there is no persuasive evidence "that capital punishment serves as a deterrent to crime."

The Fiqh Council of North America, a group of Muslim scholars in the United States, has issued a fatwa calling for a moratorium on capital punishment in the United States until various preconditions in the legal system are met.

The advocacy group Conservatives Concerned About the Death Penalty is creating a national network of Republican and Libertarian legislators at the state level to introduce bills aimed at abolishing or limiting the death penalty. The issue is framed along the values of pro-life, limited government, and fiscal responsibility.

Supporters

Advocates of the death penalty say that it deters crime, is a good tool for prosecutors in plea bargaining, improves the community by eliminating recidivism by executed criminals, provides "closure" to surviving victims or loved ones, and is a just penalty.

Some law enforcement organizations, and some victims' rights groups support capital punishment.

Clemency and commutations

Clemency, through which the governor or president of the jurisdiction can unilaterally reduce or abrogate a death sentence, is an executive rather than judicial process.

In death penalty states, the governor usually has the discretionary power to commute a death sentence or to stay its execution. In some states the governor is required to receive an advisory or binding recommendation from a separate board. In a few states like Georgia, the board decides alone on clemency. At the federal level, the power of clemency belongs to the President of the United States.

The largest number of clemencies was granted in January 2003 in Illinois when outgoing Governor George Ryan, who had already imposed a moratorium on executions, pardoned four death-row inmates and commuted the sentences of the remaining 167 to life in prison without the possibility of parole. When Governor Pat Quinn signed legislation abolishing the death penalty in Illinois in March 2011, he commuted the sentences of the fifteen inmates on death row to life imprisonment.

Previous post-Furman mass clemencies took place in 1986 in New Mexico, when Governor Toney Anaya commuted all death sentences because of his personal opposition to the death penalty rendering it unenforceable in the state and paving the way for its eventual abolition in 2009. In 1991, outgoing Ohio Governor Dick Celeste commuted the sentences of eight prisoners, among them all four women on the state's death row thus postponing the resumption of death penalty until the early 21st century. And during his two terms (1979–1987) as Florida's governor, Bob Graham, although a strong death penalty supporter who had overseen the first post-Furman involuntary execution as well as 15 others, agreed to commute the sentences of six people on the grounds of doubts about guilt or disproportionality.

On December 14, 2022, outgoing Oregon governor Kate Brown commuted the death sentences of all 17 inmates on Oregon's death row to life imprisonment without parole, citing the death penalty's status as "an irreversible punishment that does not allow for correction [...] and never has been administered fairly and equitably" and calling it "wasteful of taxpayer dollars" while questioning its ability to function as a deterrence to crime. Governor Brown also ordered the dismantling of Oregon's lethal injection chamber and death row. Prior, Oregon had an ongoing official moratorium set by prior governor John Kitzhaber in 2011 and had not carried out any executions since that of Harry Charles Moore in 1997; furthermore, in 2019, the Oregon State Senate amended the state's death penalty statutes to significantly reduce the number of crimes that warranted the death penalty, thereby invalidating many of the state's active death sentences. In 2021, David Ray Bartol's death sentence was overturned on the grounds of it being a "disproportionate punishment" in violation of Oregon's state constitution, which death penalty experts and abolitionist advocates said would provide the rationale for the eventual overturning of every other death sentence in Oregon. Brown is the third Oregon governor to commute every standing death sentence in the state, after Governor Robert D. Holmes, who commuted every death sentence passed during his tenure from 1957 to 1959, and Governor Mark Hatfield, who commuted every death sentence in the state after Oregon temporarily abolished the death penalty in accordance with a statewide vote in 1964.

Moratoria and reviews on executions

All executions were suspended through the country between September 2007 and April 2008. At that time, the United States Supreme Court was examining the constitutionality of lethal injection in Baze v. Rees. This was the longest period with no executions in the United States since 1982. The Supreme Court ultimately upheld this method in a 7–2 ruling.

In addition to the states that have no valid death penalty statute, the following 11 states and 2 jurisdictions either have an official moratorium on executions or have had no executions for more than ten years as of 2026:

Since 1976, four states have only executed condemned prisoners who voluntarily waived any further appeals: Pennsylvania has executed three inmates, Oregon two, Connecticut one, and New Mexico one. In the last state, Governor Toney Anaya commuted the sentences of all five condemned prisoners on death row in late 1986.

In California, United States District Judge Jeremy Fogel suspended all executions in the state on December 15, 2006, ruling that the implementation used in California was unconstitutional but that it could be fixed. California Governor Gavin Newsom declared an indefinite moratorium on March 13, 2019; he also ordered the closure and dismantling of the death chamber. In 2023, Governor Newsom ordered the relocation of death row inmates out of death row and to different prisons across the country "to phase out the practice of segregating people on death row based solely on their sentence," although no inmates were offered commutations or re-sentencing hearings related to these developments. Relocated death row inmates who obtained jobs in prison would have 70 percent of their earnings sent to their victims' families.

The CDCR says the move allows the state "to phase out the practice of segregating people on death row based solely on their sentence." No inmates will be re-sentenced and no death row commutations offered, officials say.

On November 25, 2009, the Kentucky Supreme Court affirmed a decision by the Franklin County Circuit Court suspending executions until the state adopts regulations for carrying out the penalty by lethal injection.

In November 2011, Oregon Governor John Kitzhaber announced a moratorium on executions in Oregon, canceling a planned execution and ordering a review of the death penalty system in the state.

On February 13, 2015, Pennsylvania Governor Tom Wolf announced a moratorium on the death penalty. Wolf will issue a reprieve for every execution until a commission on capital punishment, which was established in 2011 by the Pennsylvania State Senate, produces a recommendation. The state had not executed anyone since Gary M. Heidnik in 1999.

On July 25, 2019, U.S. Attorney General William Barr announced that the federal government would resume executions using pentobarbital, rather than the three-drug cocktail previously used. Five convicted death row inmates were scheduled to be executed in December 2019 and January 2020. On November 20, 2019, U.S. District Judge Tanya Chutkan issued a preliminary injunction preventing the resumption of federal executions. Plaintiffs in the case argued that the use of pentobarbital may violate the Federal Death Penalty Act of 1994. The stay was lifted in June 2020 and four executions were rescheduled for July and August 2020. On July 14, 2020, Daniel Lewis Lee was executed. He became the first convict executed by the federal government since 2003. Overall, thirteen federal prisoners were executed during the presidency of Donald Trump between July 2020 and January 2021. The last convict executed was Dustin Higgs on January 16, 2021. On July 1, 2021, U.S. Attorney General Merrick Garland halted all federal executions pending review of the changes made under the Trump administration.

On January 20, 2025, Donald Trump issued Executive Order 14164 as one of many presidential orders he issued on the first day of his second term. It requests that the Attorney General, and thus the Department of Justice, pursue the death penalty in all federal cases whose severity makes its use appropriate. The order also requests that, whenever legal and appropriate, the Justice Department "pursue Federal jurisdiction and seek the death penalty" for the specific federal capital offenses of murder of a law enforcement officer as well as any capital crimes committed by illegal aliens in the US. On February 5, 2025, U.S. Attorney General Pam Bondi formally rescinded the Biden administration's moratorium on the federal death penalty. Bondi also stated the Justice Department's intention to strengthen the death penalty and seek to apply it whenever appropriate for a capital crime, and to assist states in the implementation of death sentences.

Execution statistics

A total of 1683 people have been executed in the United States since the US Supreme Court resumed executions in 1976. The Espy file, compiled by M. Watt Espy and John Ortiz Smykla, lists 15,269 people executed in the United States and its predecessor colonies between 1608 and 1991. From 1930 to 2002, there were 4,661 executions in the United States; about two-thirds of them in the first 20 years. Additionally, the United States Army executed 160 soldiers between 1942 and 1961, the most recent being John A. Bennett.

As of mid-2025, the number of new death sentences remained at historically low levels, while the number of executions increased compared to 2024.

• First execution: Gary Mark Gilmore on January 17, 1977
• Last execution: Curtis Wilkie Beasley Sr. on September 29, 2026