Capital punishment in the United States

British colonial rule

Capital punishment in the United States can be traced to early colonial Virginia.^[21] The first recorded death sentence in the British North American colonies was carried out in 1608 on Captain George Kendall,^[22] who was executed by firing squad^[23] at the Jamestown colony for spying on behalf of the Spanish government.^[24] Executions in colonial America were also carried out by hanging. The hangman's noose was one of the various punishments the Puritans of the Massachusetts Bay Colony applied to enforce religious and intellectual conformity on the whole community.^[25]

Constitutional law developments

Executions for various crimes, especially murder and rape, occurred from the creation of the United States up to the early 1960s. Until then, "save for a few mavericks, no one gave any credence to the possibility of ending the death penalty by judicial interpretation of constitutional law", according to abolitionist Hugo Bedau.^[26]

The Bill of Rights adopted in 1789 included the Eighth Amendment which prohibited cruel and unusual punishment. The Fifth Amendment was drafted with language implying a possible use of the death penalty, requiring a grand jury indictment for "capital crime" and a due process of law for deprivation of "life" by the government.^[27] The Fourteenth Amendment adopted in 1868 also requires a due process of law for deprivation of life by any states.^[28] The federal death penalty was restricted to a small category of crimes. Death penalty was carried out according to local customs.^[29]: 1696 The Supreme Court has never ruled the death penalty to be per se unconstitutional.

Pre-Furman history

The possibility of challenging the constitutionality of the death penalty became progressively more realistic after the Supreme Court of the United States decided Trop v. Dulles in 1958. The Supreme Court declared explicitly, for the first time, that the Eighth Amendment's cruel and unusual punishment clause must draw its meaning from the “evolving standards of decency that mark the progress of a maturing society,” rather than from its original meaning. This approach built on the Court's earlier statement in Weems v. United States (1910) that the meaning of the Eighth Amendment was “not fastened to the obsolete” but could acquire new meaning “as public opinion becomes enlightened by a humane justice.”^[30]

Three states abolished the death penalty for murder during the 19th century: Michigan (which only executed 1 prisoner and is the first government in the English-speaking world to abolish capital punishment)^[31] in 1847, Wisconsin in 1853, and Maine in 1887. Rhode Island is also a state with a long abolitionist background, having repealed the death penalty in 1852, though it was available for murder committed by a prisoner between 1872 and 1984.

Other states which abolished the death penalty for murder before Furman v. Georgia (1972) include Minnesota in 1911, Vermont in 1964, Iowa and West Virginia in 1965. Hawaii abolished the death penalty in 1948 and Alaska in 1957, both before their statehood. Arizona and Oregon abolished the death penalty by popular vote in 1916 and 1964 respectively, but both reinstated it, again by popular vote, some years later.

In the 1932 case Powell v. Alabama, the court made the first step of what would later be called "death is different" jurisprudence, when it held that any indigent defendant was entitled to a court-appointed attorney in capital cases – a right that was only later extended to non-capital defendants in 1963, with Gideon v. Wainwright.

Capital punishment suspended (1972)

In Furman v. Georgia (1972), the U.S. Supreme Court considered a group of consolidated cases. The lead case involved an individual convicted under Georgia's death penalty statute, which featured a "unitary trial" procedure in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment. The last pre-Furman execution was that of Luis Monge on June 2, 1967.

In a 5–4 decision, the Supreme Court struck down the impositions of the death penalty in each of the consolidated cases as unconstitutional in violation of the Eighth and Fourteenth Amendments of the United States Constitution. The five justices in the majority did not produce a common opinion or rationale for their decision, however, and agreed only on a short statement announcing the result. The narrowest opinions, those of Byron White and Potter Stewart, expressed generalized concerns about the inconsistent application of the death penalty across a variety of cases, but did not exclude the possibility of a constitutional death penalty law.^[32] Three justices raised concerns about racial bias.^[33] Thurgood Marshall and William J. Brennan Jr. expressed the opinion that the death penalty was proscribed absolutely by the Eighth Amendment as cruel and unusual punishment.^[34]

The Furman decision caused all death sentences pending at the time to be reduced to life imprisonment, and was described by scholars as a "legal bombshell".^[3] The next day, columnist Barry Schweid wrote that it was "unlikely" that the death penalty could exist anymore in the United States.^[35]

Capital punishment reinstated (1976)

The replacement of Justice William O. Douglas by Justice John Paul Stevens in 1975 shifted the Supreme Court's position on capital punishment and weakened Furman's prospects of ending the death penalty.^[36]

As American society became more polarized in the mid-1970s, public opinion also divided over capital punishment. Rather than abandoning it, at least two-thirds of the states adopted new death penalty statutes that sought to address the concerns raised by White and Stewart in Furman.^[37]

The Supreme Court upheld three of the new capital sentencing statutes in separate decisions: Gregg v. Georgia (1976), Proffitt v. Florida (1976), and Jurek v. Texas (1976). The Georgia and Florida statutes used "guided discretion" and provided juries with lists of aggravating and mitigating circumstances in a bifurcated proceeding with separate guilt and sentencing phases. The Texas capital sentencing statute, Article 37.071 of the Texas Code of Criminal Procedure, required juries to answer three specific questions ("special issues") before imposing the death penalty. The Supreme Court concluded that these procedures provided adequate safeguards to ensure that juries had clear standards for deciding who should receive the death penalty while allowing individualized consideration of capital cases. These sentencing procedures have since been the subject of multiple Supreme Court cases.^[38]

The same day, in Woodson v. North Carolina^[39] and Roberts v. Louisiana,^[40] the Court struck down 5–4 statutes imposing a death sentence without allowing the sentencer to consider mitigating evidence.^[41] Two influential decisions further defined the role of mitigating evidence in capital sentencing. Lockett v. Ohio (1978) invalidated an Ohio law that narrowly restricted the mitigating factors a sentencer could consider, requiring consideration of the defendant's character, record, and circumstances of the offense offered in mitigation. Four years later, Eddings v. Oklahoma (1982) vacated the death sentence of a 16-year-old defendant because the sentencing process did not give mitigating circumstances the required individualized consideration.^[42] After these decisions, many principles of criminal procedure were developed or strengthened through litigation in capital cases, including requirements for effective assistance of counsel, disclosure of exculpatory evidence by prosecutors, and prohibitions on racial discrimination in jury selection. The resulting expansion of procedural protections became known as "super due process" or "death is different" jurisprudence.^[43]

Death sentences increased dramatically after Gregg v. Georgia, but the retroactive application of these newly developed procedural rules required courts to reconsider cases in which death sentences had already been decided. By the late 1970s, federal courts were reversing more than half of the capital cases reviewed through habeas corpus.^[44]

Executions resumed on January 17, 1977, when Gary Gilmore went before a firing squad in Utah. Although hundreds of individuals were sentenced to death in the United States during the 1970s and early 1980s, only ten people besides Gilmore were executed before 1984.^[45]

The abolition and reform movement was more successful in Europe.^[46] Members of the Council of Europe agreed to comply with the European Convention of Human Rights which prohibited capital punishment. The last execution in the UK took place in 1964,^[47] and in 1977 in France.

Supreme Court narrows capital offenses

In Coker v. Georgia (1977), the Supreme Court barred the death penalty for the rape of an adult woman. Previously, the death penalty for rape of an adult had been gradually phased out in the United States, and at the time of the decision, Georgia and the Federal government were the only two jurisdictions to still retain the death penalty for this offense.

In Godfrey v. Georgia (1980), the U.S. Supreme Court ruled that murder can be punished by death only if it involves a narrow and precise aggravating factor.^[48]

The Supreme Court has categorically banned the death penalty for juveniles and people with intellectual disabilities.

In Kennedy v. Louisiana (2008), the court also held 5–4 that the death penalty is unconstitutional when applied to non-homicidal crimes against the person, including child rape. Only two death row inmates (both in Louisiana) were affected by the decision.^[49] Nevertheless, the ruling came less than five months before the 2008 presidential election and was criticized by both major party candidates Barack Obama and John McCain.^[50]

Moratoriums, repeal and exonerations

As of 2025^[update], 23 states and Washington D.C. have repealed the death penalty.^[54] Illinois halted executions in 2000 after 13 death-row prisoners were found to have been wrongfully convicted. In 2003, Governor George Ryan commuted the sentences of more than 160 death-row prisoners stating "I no longer shall tinker with the machinery of death". Other states also temporarily halted executions or considered abolition, with abolition bills introduced in 12 states in 1999.^[55]

A study led by James Liebman of Columbia Law School concluded that 68 percent of capital sentences involved serious error. In the past 30 years, 108 death-row prisoners in 25 states were released after presenting evidence of innocence. Other prisoners had their sentences commuted to life imprisonment or were released from death sentences after pleading to lesser charges. Advances in DNA evidence also contributed to the exoneration of death-row prisoners and were cited as influencing public attitudes toward capital punishment.^[56] As of 2013, over 140 persons sentenced to death, since 1973, had their convictions overturned or received full pardons.^[57]: 760 Eighteen of them have been exonerated on the basis of DNA evidence.^[57]: 792

Modern era

Capital punishment in the United States has undergone significant transformations from its colonial origins to the modern era, with developments influenced by both domestic legal changes and comparative perspectives from other nations.^[87]

In 1982, Texas carried out the first execution by lethal injection in world history and lethal injection subsequently became the preferred method throughout the country, displacing the electric chair.^[88] From 1976 to March 15, 2026, there were 1,660 executions, of which 1,469 were by lethal injection, 163 by electrocution, 19 by gas, 3 by hanging, and 6 by firing squad.^[89] The South had the great majority of these executions, with 1,344; there were 206 in the Midwest, 92 in the West, and only 4 in the Northeast. No state in the Northeast has conducted an execution since Connecticut, now abolitionist, in 2005. The state of Texas alone conducted 596 executions, over 1/3 of the total; the states of Texas, Florida, and Oklahoma make up over half the total.^[90] 17 executions have been conducted by the federal government.^[91] Executions increased in frequency until 1999; 98 prisoners were executed that year. Since 1999, the number of executions has greatly decreased, and the 17 executions in 2020 were the fewest since 1991.^[7] A 2016 poll conducted by Pew Research, found that support nationwide for the death penalty in the U.S. had fallen below 50% for the first time since the beginning of the post-Gregg era.^[92]

The death penalty became an issue during the 1988 presidential election. It came up in the October 13, 1988, debate between the two presidential nominees George H. W. Bush and Michael Dukakis, when Bernard Shaw, the moderator of the debate, asked Dukakis, "Governor, if Kitty Dukakis [his wife] were raped and murdered, would you favor an irrevocable death penalty for the killer?" Dukakis replied, "No, I don't, and I think you know that I've opposed the death penalty during all of my life. I don't see any evidence that it's a deterrent, and I think there are better and more effective ways to deal with violent crime." Bush was elected, and many, including Dukakis himself, cite the statement as the beginning of the end of his campaign.^[93]

On July 25, 2019, Attorney General William Barr ordered the resumption of federal executions after a 16-year hiatus, and set five execution dates for December 2019 and January 2020.^{[94][95][96][97]} After the Supreme Court upheld a stay on these executions,^[98] the stay was lifted in June 2020 and four executions were rescheduled for July and August 2020.^[99] The federal government executed Daniel Lewis Lee on July 14, 2020. He became the first convict executed by the federal government since 2003.^[11] Before Trump's term ended in January 2021, the federal government carried out a total of 13 executions.^[100]

After years of a steady decline of executions, executions in 2025 have increased dramatically over previous years.^[101][102] Forty-seven people, all male, were executed in the United States in 2025, thirty-nine by lethal injection, five by nitrogen hypoxia, and three by firing squad.^[103][104] The number of executions in 2025 became the highest number to be carried out in the United States in 16 years.^[105]

Black Americans and capital punishment

Under the post–Civil War Black Codes, there was often little practical difference between racialized punishment through the penal system and extrajudicial violence.^[106] Police and other law-enforcement officials sometimes participated alongside civilians in acts of violence, blurring the boundary between criminal punishment and lynching. In Brown v. Mississippi (1936), the Supreme Court confronted this overlap when three Black men were tortured by a mob that included a deputy sheriff, who beat and repeatedly hanged one of them from a tree to obtain confessions to murder. The men were subsequently convicted and sentenced to death based on those confessions. The Supreme Court reversed the convictions, holding that convictions obtained through such state-inflicted violence violated the Due Process Clause of the Fourteenth Amendment. The decision effectively abolished the practice of using torture by law-enforcement officials to obtain confessions and demonstrated that state participation in racial violence could not be treated as a lawful means of criminal punishment.^[107]

During and following the Civil Rights era, laws were introduced to prevent illegal lynchings by the general public. Although more than 6,500 lynchings occurred between 1865 and 1950 according to the Equal Justice Initiative, lynching did not become a federal crime until 2022 under the Emmett Till Antilynching Act, which was signed into law by President Joe Biden, over a hundred years after Antilynching legislation was first proposed.^[108]

Groups like the NAACP's Legal Defense Fund (LDF) have continuously worked and continue to work on abolishing capital punishment based on its historically racist associations with enslavement and lynching, and also its disproportionate impact on racial minority communities.^[109]

Women's history and capital punishment

In 1632, 24 years after the first recorded male execution in the colonies, Jane Champion became the first woman known to have been lawfully executed. She was sentenced to death by hanging after she was convicted of infanticide; around two-thirds of women executed in the 17th and early 18th centuries were convicted of child murder.^[110][111]

Women accounted for just one fifth of all executions between 1632 and 1759, in the colonial United States.^[110] The second half of the 17th century saw the executions of 14 women accused of witchcraft during the witch hunt hysteria and the Salem Witch Trials; 80 percent of the accused were women.^[112]

Other notable female executions include Mary Surratt, Velma Barfield, and Wanda Jean Allen. Mary Surratt was executed by hanging in 1865 after being convicted of co-conspiring to assassinate Abraham Lincoln.^[113] Margie Velma Barfield was convicted of murder and when she was executed by lethal injection in 1984, she became the first woman to be executed since the ban on capital punishment was lifted in 1976.^[114] Wanda Jean Allen was convicted of murder in 1989 and had a high-profile execution by lethal injection in January 2001. She was the first black woman to be executed in the US since 1954.^[115] Allen's appellate lawyers did not deny her guilt, but claimed that prosecutors capitalized on her low IQ, race and homosexuality in their representations of her as a murderer at trial. This approach did not work.^[116]

In the 20th century in the pre-Furman era (1900 - 1972), there were 38 women executed.^[117] The states with the highest numbers of executed women during that period were New York with 7 women (while an 8th woman, Ethel Rosenberg was executed in New York state at Sing Sing Prison in 1953, this was a federal execution), California with 4 women executed (Juanita Spinelli in 1941, Louise Peete in 1947, Barbara Graham in 1955, and Elizabeth Ann Duncan in 1962, with the latter being the last woman executed in any state in the pre-Furman era^[118]), and Alabama, Louisiana, Mississippi and Ohio with 3 women each.^[117] Notably, there were no executions of women in Texas during that period, and the execution of Karla Faye Tucker in Texas in 1998 was the first execution in Texas in 135 years, since Chipita Rodriguez had been executed in 1863.^[119] By contrast, since 1976, one third of all women executed were executed by Texas (see List of women executed in the United States since 1976).

The federal government executes women infrequently. Ethel Rosenberg, convicted of espionage, was executed in the electric chair on 19 June 1953, and Bonnie Brown Heady, convicted of kidnapping and murder, was executed in the gas chamber later that same year on 18 December. Since Heady, only one more woman has been executed by the federal government: Lisa Montgomery, convicted of killing a pregnant woman and cutting out and kidnapping her baby, by lethal injection on 13 January 2021. Her execution had been stayed while her lawyers argued that she had mental health issues, but the Supreme Court lifted the stay.^[120][121]

The second woman, Christa Pike, convicted in 1996 in Tennessee, of first degree murder of a fellow Job Corps dormitory resident, remains on death row. Her execution, scheduled for 30 September 2026, was halted as botched after she survived two lethal injections.^[122] To allow for a more thorough review of whether evidence of the sexual abuse of minors was sufficiently taken into account during sentencing, the United States Supreme Court shortly thereafter lifted the stay issued by the Court of Appeals for the Sixth Circuit, thereby authorizing the execution.^[123] Pike is hospitalized after two failed lethal injections.^[124]

Aggravated murder

Aggravating factors for seeking capital punishment of murder vary greatly among death penalty states. California has twenty-two.^[125] Some aggravating circumstances are nearly universal, such as robbery-murder, murder involving rape of the victim, and murder of an on-duty police officer.^[126]

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.^[127]

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).^[128] 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.^[129]

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".^[133]

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),^[134] 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.^[135]

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.^[136]

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.^[137]

A proposed remedy against prosecutorial arbitrariness is to transfer the prosecution of capital cases to the state attorney general.^[138]

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.^[139]

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.^[140]
• Montana is the only state where the trial judge decides the sentence alone.^[141]

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.^[142]
• In Florida, at least 8 jurors (two-thirds) must concur, and the prosecution can pursue a retrial if the jury deadlocks.^[143]

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:^[144][145]

• 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).^[146]
• 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.^[147]

The first outcome is referred as the "true unanimity" rule, while the third has been criticized as the "single-juror veto" rule.^[148]

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.^[149]

Direct review

If a defendant is sentenced to death at the trial level, the case then goes into a direct review.^[150] 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.^[151] 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.^[150] 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.^[152] 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.^[152] In 1995, about 60 percent of capital punishment decisions were upheld during direct review.^{[153]: 29 [154]: 1097}

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.^[155] 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.^[156] 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.^[157] 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.^{[153]: 29  [154]: 1097}

To reduce litigation delays, other states require convicts to file their state collateral appeal before the completion of their direct appeal,^[158] or provide adjudication of direct and collateral attacks together in a "unitary review".^[159]

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.^[160] In 1995, 21 percent out of the 68 percent death penalty cases which didn't survive postconviction review were reversed through federal habeas corpus.^{[153]: 29 [154]: 1097}

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".^[161] 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".^[162]

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).^[163]

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.^[164]

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.^[165] 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.^{[166][167][168]}

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.^[169]

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.^[170] 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.^[171]

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.^[174]

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.^[175] 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,^[175] compared to 1,516 men during the same time period.^[176]

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.^[177][178] Black and Latino people are disproportionately represented among those sentenced to death relative to their shares of the population.^[179][180]

Since January 1, 1973, 108 out of the 200 total exonerations have been African Americans.^[181] 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.^[181]

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.^[182][183]

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.^{[191][192][193]}

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.^[202] 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.^[202] Police said that Stinney had confessed, but no signed confession was ever produced.^[203] 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.^[203]

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.^[204] In Georgia, Baker served as a maid for a handicapped white man; she faced regular sexual and physical abuse from him.^[204] Despite the town terrorizing Baker to leave the relationship, her abuser would equally threaten her with violence if she ever left.^[204][205] Weeks before his death, he started holding Baker prisoner in his gristmill for numerous days.^[204] Baker was able to escape the mill, but when she came back, her abuser threatened her with an iron bar.^[204] After a struggle, Baker took ahold of his pistol and shot the man in self-defense.^[205]

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.^[206] 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.^[206] After failed appeals, reviews, and the abandonment of her legal representation, Lena Baker was executed by electrocution in 1945.^[206] About 60 years following Baker's death, her family, with the help of the Prison and Jail Project, requested a posthumous pardon.^[207] 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.^[207] 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.

State-selected methods

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

• Lethal injection and gas chamber in Missouri^[223][224]
• Lethal injection, nitrogen hypoxia and electrocution in Louisiana^[225][226]
• Lethal injection, nitrogen hypoxia, electrocution and firing squad in Mississippi^[227]

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:^[209]

• 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:^{[208][209][228]}

• Nitrogen hypoxia in Alabama and Oklahoma
• Lethal Injection in Idaho
• Gas chamber in California and Wyoming
• Electrocution in Arkansas, Florida, Kentucky,^[229] 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.^[209][230]

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.^{[231][232][233]}

Oklahoma became in 2015 the first state to have adopted the nitrogen option.^[234] 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.^[235]

In March 2018, Alabama became the third state (after Oklahoma and Mississippi) to make nitrogen hypoxia available,^[236] and became the first when it successfully executed Kenneth Eugene Smith at William C. Holman Correctional Facility.^[237]

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.^[238][239]

Military courts

The method of execution for death sentences imposed by military courts is lethal injection,^[240] and the Bureau of Prisons agreed to let the U.S. Armed Forces use its civilian facility for that purpose.^[241]

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.^[263]

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.^[264] 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.^[265] 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.^[266][267]

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.^[268] The "three drug cocktail" consists of midazolam, a sedative, vecuronium bromide, a paralytic, and potassium chloride, which stops the heart.^[269] 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.^[270]

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.^[271]
• In Arizona, it took Joseph Wood two hours to die after being injected.^[272]
• 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.^[273][274]
• In Florida, Jesse Joseph Tafero had flames burst from his hair during an electrocution.^[275]
• Wallace Wilkerson died after 27 minutes in pain after the firing squad failed to shoot him in the heart.^[276] 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).^[277]
• In New Mexico, Thomas Ketchum was decapitated when his body fell through the trap door during his hanging.^[278]
• 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.^[279]

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.^[275] Death penalty experts found that 36.8% of all executions attempted or completed in 2022 (all lethal injections) were botched.^[280]

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.^[281]

Cost

Another argument in the capital punishment debate is the cost.^[258][282] 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.^[283]

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.^[284]

Post-conviction innocence claims

In 2009, the Supreme Court held that there is no constitutional right post-conviction DNA testing for convicted prisoners.^[57]: 799 Forty-eight states have post-conviction DNA testing statutes.^[57]: 799 However, fewer than half the states have statutes that give inmates time and money for post-conviction DNA testing.^[57]: 799 There is widespread public support for such a system.^[57]: 799

Theories of punishment

As of 2025, four of the 38 OECD member states (the United States, Israel, Japan, and South Korea) retain capital punishment.^[9] However, South Korea has observed an unofficial moratorium on executions since 1997.^[285]

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.^[286] 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."^[287] The resolution goes on to say that the death penalty "lies as a stain upon civilization and our religious conscience."^[287] 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."^[287]

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.^[288]

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.^[289]

Supporters

Advocates of the death penalty say that it deters crime, is a good tool for prosecutors in plea bargaining,^[290] 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.