Capital punishment in the United States is authorized in 27 states, by the federal government, and by the U.S. military, though the practice has narrowed sharply over the past several decades through Supreme Court rulings, state repeals, gubernatorial moratoriums, and practical obstacles like shortages of lethal-injection drugs. Roughly 2,100 people sit on death row nationwide, and more than half have been there over 18 years. The United States remains one of the few Western democracies that still carries out executions.
Where Things Stand Now
Not every state that authorizes the death penalty actually uses it. Three retention states, California, Oregon, and Pennsylvania, operate under gubernatorial moratoriums that halt executions without repealing the statute. Courts in those states can still impose death sentences and inmates remain on death row, but no execution dates are set while the moratoriums hold. The remaining 23 states and the District of Columbia have abolished capital punishment through legislation or court decisions.
The federal government can seek a death sentence under the Federal Death Penalty Act of 1994, codified at 18 U.S.C. §§ 3591–3598.1Office of the Law Revision Counsel. 18 USC 3591 – Sentence of Death In December 2024, President Biden commuted the sentences of 37 federal death row inmates to life without the possibility of parole, leaving only a handful of federal prisoners still facing execution. The military maintains its own capital authority under the Uniform Code of Military Justice, but no service member has been executed since 1961.
Execution activity swings from year to year. After about 25 executions in 2024, the number climbed to 47 across 11 states in 2025, with Florida alone carrying out 19. Prisoners who are ultimately executed typically spend more than a decade on death row first, and many spend much longer.
Who Cannot Be Executed
Modern death penalty law grew out of two Supreme Court decisions in the 1970s. Furman v. Georgia (1972) struck down every existing death penalty statute in the country as arbitrary and therefore cruel and unusual under the Eighth Amendment.2Justia U.S. Supreme Court Center. Furman v. Georgia – 408 U.S. 238 (1972) Four years later, Gregg v. Georgia allowed states to reinstate the punishment if they used a separate sentencing phase built around specific aggravating and mitigating factors.
Since then, the Court has placed several categorical limits on who the government can put to death:
- Anyone who was under 18 at the time of the offense, under Roper v. Simmons (2005).3Justia U.S. Supreme Court Center. Roper v. Simmons – 543 U.S. 551 (2005)
- Defendants with intellectual disabilities, under Atkins v. Virginia (2002), which requires courts to evaluate cognitive ability and adaptive functioning before a death sentence can stand.4Justia U.S. Supreme Court Center. Atkins v. Virginia – 536 U.S. 304 (2002)
- Defendants convicted of crimes against an individual where the victim did not die, under Kennedy v. Louisiana (2008). The Court held that capital punishment must be “reserved for the worst of crimes” that take the victim’s life.5Justia U.S. Supreme Court Center. Kennedy v. Louisiana – 554 U.S. 407 (2008)
- Prisoners who cannot understand why they are being executed or the nature of the punishment, under Ford v. Wainwright (1986). An execution must be postponed until competency is restored.6Cornell Law Institute. Ford v. Wainwright – 477 U.S. 399 (1986)
One boundary on Kennedy is worth flagging. It addresses crimes against individual victims, not crimes against the state. Treason and espionage remain death-eligible at the federal level even when no individual victim dies.
What Crimes Are Death-Eligible
At the state level, first-degree murder with at least one aggravating factor is essentially the only crime that can lead to a death sentence. A defendant cannot be sentenced to death for murder alone. During a separate sentencing phase after a guilty verdict, the prosecution must prove at least one specific aggravating circumstance. Lists vary by state, but the most common aggravators include killing a law enforcement officer, murdering multiple victims, and committing murder during another serious felony like robbery, kidnapping, or sexual assault.7Office of the Law Revision Counsel. 18 USC 3592 – Mitigating and Aggravating Factors to Be Considered in Determining Whether a Sentence of Death Is Justified
Federal law reaches further. Treason, defined as waging war against the United States or giving aid and comfort to its enemies, carries a potential death sentence.8Office of the Law Revision Counsel. 18 USC Chapter 115 – Treason, Sedition, and Subversive Activities Espionage involving classified defense information is another federal capital offense.9Congressional Research Service. Federal Capital Punishment – Recent Executive Action Large-scale drug trafficking that results in death can also qualify, particularly under the “drug kingpin” provisions targeting continuing criminal enterprises.10U.S. Department of Justice. Reviving the Federal Death Penalty and Lifting the Moratorium on Federal Executions Federal capital charges apply even when the crime occurred in a state that has abolished the death penalty.
Aggravators are only half the sentencing equation. Juries must also weigh mitigating factors that counsel against death: significantly impaired mental capacity, extreme duress, a minor role in the offense, no significant criminal history, or severe emotional disturbance at the time of the crime. The statute leaves an open-ended category for any other aspect of the defendant’s background or the circumstances of the offense.7Office of the Law Revision Counsel. 18 USC 3592 – Mitigating and Aggravating Factors to Be Considered in Determining Whether a Sentence of Death Is Justified
The jury’s verdict on death must be unanimous. Every juror must agree that at least one aggravating factor exists, and every juror must vote for death. A single holdout forces the court to impose a different sentence, typically life without the possibility of release.11Office of the Law Revision Counsel. 18 USC 3593 – Special Hearing to Determine Whether a Sentence of Death Is Justified
Methods of Execution
Lethal injection is the primary method in virtually every death penalty state. The procedure typically uses a sequence of drugs to render the inmate unconscious, stop breathing, and halt the heart. Some protocols rely on a single large dose of a barbiturate; others use a multi-drug combination. Drug shortages have become a persistent problem, since major pharmaceutical manufacturers refuse to sell their products for use in executions. That has pushed some states toward compounded drugs from non-traditional sources and others toward alternative methods.
Several states authorize backup methods when lethal injection is unavailable:
- Electrocution, authorized in roughly seven states, usually as a secondary option the inmate can choose or that the state can use if injection drugs are unavailable.
- Nitrogen hypoxia, now authorized in five states: Alabama, Arkansas, Louisiana, Mississippi, and Oklahoma. Alabama carried out the first-ever nitrogen execution in January 2024. The inmate breathes pure nitrogen through a mask, displacing oxygen. Federal appeals courts have upheld the method against Eighth Amendment challenges, with one circuit court finding that breathing pure nitrogen causes unconsciousness in under a minute. The Supreme Court has not yet ruled definitively on the method.
- Firing squad, authorized in five states, most as a backup. Idaho is set to make the firing squad its primary method effective July 2026.
- Lethal gas (hydrogen cyanide), still on the books in a handful of states but used only rarely in the modern era.
- Hanging, still authorized in a few states but not used since the 1990s.
What a Capital Case Costs
Death penalty cases cost dramatically more than comparable non-capital murder prosecutions. State audits across more than a dozen states have found capital cases running three to ten times more expensive than similar cases where death is not sought. The most rigorous cost study found that a single death sentence in Maryland cost nearly $2 million more than a comparable non-capital case.
The expenses start before trial. Capital defendants are constitutionally entitled to two qualified defense attorneys, extensive expert witnesses for both the guilt and penalty phases, and a thorough investigation into the defendant’s life history for mitigation evidence. The trial itself typically lasts four times longer than a non-capital murder trial, and jury selection alone can take weeks.
After conviction, capital cases move through multiple layers of review: direct appeal, state post-conviction proceedings, and federal habeas corpus. These proceedings generate thousands of hours of legal work on both sides. Housing death row inmates costs two to three times more per year than housing someone in the general prison population, because death row facilities require single-cell housing, heightened security, and additional staffing. Add up the trial, decades of appeals, and specialized incarceration, and the total cost of a single death penalty case routinely exceeds what it would cost to imprison the same person for life.
Wrongful Convictions and DNA Testing
The risk of executing an innocent person is not theoretical. Since 1973, more than 190 people sentenced to death in the United States have been exonerated and released from death row. Some were cleared by DNA evidence, others through recanted testimony, prosecutorial misconduct uncovered years later, or the identification of the actual perpetrator. A peer-reviewed study published in the Proceedings of the National Academy of Sciences estimated that at least 4.1% of all defendants sentenced to death are innocent.
Federal law provides some safeguards. The Innocence Protection Act, passed as part of the Justice for All Act of 2004, established a right to post-conviction DNA testing for federal prisoners and created the Kirk Bloodsworth Post-Conviction DNA Testing Grant Program, which helps states cover the costs of DNA testing for inmates who maintain their innocence.12Office of the Law Revision Counsel. 34 USC 40727 – Kirk Bloodsworth Post-Conviction DNA Testing Grant Program The program is named for Kirk Bloodsworth, the first death row inmate in the United States exonerated through DNA evidence, in 1993. Access to post-conviction DNA testing varies significantly at the state level.
Clemency
Even after every appeal is exhausted, a death sentence can be reduced through executive clemency. For state prisoners, the governor holds the power to commute a death sentence to life imprisonment, sometimes acting on the recommendation of a state pardon or parole board. In some states the governor has sole discretion. In others, a board must first recommend clemency before the governor can act.
For federal prisoners, the President has the constitutional power to “grant Reprieves and Pardons for Offences against the United States.”13Congress.gov. Overview of Pardon Power – Constitution Annotated President Biden used this authority in December 2024, commuting the death sentences of 37 federal inmates to life without the possibility of parole. That single act emptied most of federal death row. A future president could direct the Department of Justice to resume seeking federal death sentences, but the commuted sentences themselves cannot be reversed.
Racial and Geographic Disparities
The death penalty does not fall evenly across racial groups or regions. More than 75% of defendants who have been executed were sentenced to death for killing white victims, even though roughly half of all homicide victims in the United States are Black. A 1990 Government Accountability Office review of the research found that in 82% of studies examined, the race of the victim influenced the likelihood of a capital charge or death sentence: defendants who killed white victims were significantly more likely to face execution than those who killed Black victims.
Geography matters nearly as much. A small number of counties produce a wildly outsized share of death sentences. The vast majority of U.S. counties have never sent anyone to death row, while a concentrated handful, mostly in the South and Southwest, account for most of the country’s death sentences and executions. Whether a defendant faces the death penalty often depends less on the severity of the crime than on where it was committed and which prosecutor’s office handles the case. These patterns have persisted for decades despite reforms intended to reduce arbitrariness.