The history of the death penalty in the United States begins with a firing squad at Jamestown in 1608 and runs through four centuries of expansion, reform, constitutional upheaval, and steep modern decline. Capital punishment has survived a Supreme Court shutdown, outlasted the abolition movements that swept most of the Western world, and now sits in an unusual position: 23 states have abandoned it, executions have fallen to historic lows, and the federal government has moved to expand its use even as the broader trend runs the other way.
Colonial Beginnings
English colonists brought capital punishment with them as part of their legal inheritance. The English “Bloody Code” imposed death for more than 200 offenses by the early 1800s, many of them minor by modern standards.1National Justice Museum. The Bloody Code Colonial legislatures adapted that framework, often making it harsher.
The first recorded execution in the English colonies came in 1608, when Captain George Kendall was shot by firing squad at Jamestown for spying for Spain.2Justia. Furman v. Georgia, 408 US 238 (1972) Virginia’s “Lawes Divine, Morall and Martiall,” compiled in 1612, stands as the most extreme early example. It made death the punishment for offenses that had nothing to do with violence: gathering grapes from a vineyard, trading with Native Americans without authorization, or repeatedly breaking the Sabbath could all end at the gallows.3The Colonial Williamsburg Official History and Citizenship Site. For The Colony in Virginea Britannia Lawes Divine Morall and Martiall
The Massachusetts Bay Colony’s 1641 Body of Liberties took a different route, grounding its twelve capital offenses in biblical citations. Witchcraft and blasphemy both carried death, with specific scripture listed alongside each offense as justification.4Mass.gov. Witchcraft Law Up to the Salem Witchcraft Trials of 1692 Religion, politics, and criminal law were tightly braided together from the start.
Nineteenth-Century Reforms
Degrees of Murder
The first serious dent in the death penalty’s reach came not from an abolition campaign but from a change in sentencing structure. In 1794, Pennsylvania became the first state to divide murder into degrees, reserving death for first-degree murder, meaning killings that were willful and premeditated. Before the reform, anyone convicted of murder faced mandatory execution regardless of circumstances. The idea spread quickly and gave juries room to impose prison sentences instead of death when a killing wasn’t planned. It probably spared more lives than any abolition campaign of the era.
The End of Public Executions
For most of American history, executions were public. Crowds gathered, vendors sold food, and events sometimes turned into something closer to a carnival than a solemn act of justice. By the mid-1800s, reformers argued that public hangings brutalized spectators rather than deterring crime, and states began moving executions behind prison walls. The last public execution in the United States was the hanging of Rainey Bethea in Kentucky in 1936.
Michigan Abolishes First
In 1846, Michigan became the first English-speaking government in the world to abolish the death penalty, keeping it only for treason.5Wikipedia. Capital Punishment in Michigan No one was ever actually tried for treason against Michigan, and the state formally eliminated that last exception in 1963. The decision predated similar moves in Europe by decades. Other states trimmed their lists of capital crimes or gave judges more sentencing discretion, but full abolition remained rare.
The Progressive Wave and the 1930s Peak
Between 1907 and 1917, nine states either abolished the death penalty entirely or narrowed it to a handful of offenses like treason or killing a police officer. This wave rode the broader Progressive movement, which favored scientific approaches to crime and treated rehabilitation as more productive than retribution. The momentum broke during World War I, when fears of radicalism and espionage pushed several states to reinstate capital punishment.
The Great Depression then drove executions to their highest levels in American history. Between 1930 and 1947, the United States averaged 151 executions per year, with the 1930s decade averaging roughly 167.6Department of Justice. Description of Trends in the Number of Persons Executed Economic desperation, rising crime, and public fear combined to make it the deadliest era for state-sanctioned killing in the country’s history.
Furman, Gregg, and the Constitutional Turning Point
The Supreme Court effectively shut down capital punishment in 1972 with Furman v. Georgia. In a fractured 5-4 decision, the justices held that existing death penalty statutes violated the Eighth Amendment’s ban on cruel and unusual punishment because they gave juries unlimited discretion, producing arbitrary and racially skewed results.2Justia. Furman v. Georgia, 408 US 238 (1972) Every justice in the majority wrote separately, and they didn’t agree on why the death penalty was unconstitutional as applied. More than 600 people on death row across the country had their sentences reduced to life in prison.
The ruling didn’t declare capital punishment unconstitutional in every case. It told states that if they wanted to keep executing people, they needed statutes with clear standards to guide jury decisions. Within four years, 35 states had passed new laws.
The Court tested those laws in Gregg v. Georgia in 1976. Georgia, Florida, and Texas had adopted a bifurcated trial system: one phase determined guilt, and a separate sentencing phase weighed specific aggravating and mitigating factors before deciding whether death was warranted. The Court approved the approach, and executions resumed.7Justia. Gregg v. Georgia, 428 US 153 (1976) The framework Gregg established still governs capital sentencing today: a separate sentencing hearing, specific aggravating circumstances that make a defendant eligible for death, and mandatory consideration of mitigating evidence.
Who Can Be Executed Today
Over the past two decades, the Supreme Court has carved out categorical exemptions that steadily narrowed the pool of people who can legally be executed.
- In Atkins v. Virginia (2002), the Court ruled 6-3 that executing people with intellectual disabilities violates the Eighth Amendment, reasoning that diminished intellectual capacity reduces moral culpability.8Justia. Atkins v. Virginia, 536 US 304 (2002)
- In Roper v. Simmons (2005), the Court held 5-4 that the Constitution forbids executing anyone who was under 18 at the time of the crime.9Justia. Roper v. Simmons, 543 US 551 (2005)
- In Kennedy v. Louisiana (2008), the Court struck down a state statute allowing the death penalty for the rape of a child when the victim did not die, holding more broadly that no crime against an individual where the victim survives can be punished with death.10Library of Congress. Kennedy v. Louisiana, 554 US 407 (2008)
After Kennedy, capital punishment in the United States is effectively limited to murder cases involving adult defendants without intellectual disabilities, plus a narrow set of federal offenses like treason and espionage where death does not depend on an individual victim.
Race and the McCleskey Ruling
Racial disparities have shadowed capital punishment throughout American history, and the numbers are stark. The most rigorous study of the question, conducted by Professor David Baldus, examined more than 2,000 murder cases in Georgia during the 1970s. It found that defendants charged with killing white victims received the death penalty in 11% of cases, compared to just 1% for defendants charged with killing Black victims. After controlling for 39 non-racial variables, defendants whose victims were white were still 4.3 times more likely to be sentenced to death.11Cornell Law Institute. McCleskey v. Kemp, 481 US 279 (1987)
Warren McCleskey, a Black man sentenced to death for killing a white police officer, brought that evidence to the Supreme Court in 1987. The Court acknowledged the disparities but ruled 5-4 that McCleskey needed to prove the decision-makers in his specific case acted with discriminatory intent, not that the system as a whole produced racially biased outcomes.11Cornell Law Institute. McCleskey v. Kemp, 481 US 279 (1987) Justice Brennan’s dissent called the ruling “a fear of too much justice.” McCleskey was executed in 1991.
How Executions Have Been Carried Out
The search for a “humane” way to kill condemned prisoners has driven changes in method throughout American history, though results have often fallen short of the promise. Hanging and firing squads dominated the colonial and early national periods. In 1890, New York introduced the electric chair with the execution of William Kemmler, intended as a quicker, less painful alternative to the noose.12Library of Congress. Electric Chair – Topics in Chronicling America The execution required two shocks after Kemmler regained consciousness following the first. Nevada introduced the gas chamber in 1924, and lethal injection arrived in 1977 when Oklahoma became the first state to adopt a three-drug protocol.
Each new method was marketed as more humane than the last, but data on executions from 1890 through 2010 found lethal injection had the highest rate of problems: 7.12% of lethal injections were classified as botched, compared to 5.4% for the gas chamber, 3.12% for hanging, and 1.92% for electrocution. Firing squads recorded no botched executions across 34 cases.
The Innocence Problem
Nothing has done more to erode confidence in capital punishment than the growing list of people sentenced to die for crimes they didn’t commit. Since 1973, at least 202 people have been exonerated from death row after their convictions were overturned and all related charges dropped. That works out to roughly one exoneration for every eight executions carried out during the same period.
DNA evidence changed the landscape. In 1993, Kirk Bloodsworth became the first death row prisoner in the United States exonerated through DNA testing. Half of all death row exonerations have taken more than a decade to secure, and 17 exonerations between 2010 and 2021 came after the prisoner had already spent 25 years or more awaiting execution. Several states that abolished the death penalty in recent years cited the risk of executing innocent people as a primary reason.
The Federal Death Penalty
Federal capital punishment has always run on a separate track from the states and has been used far more sparingly. Federal law authorizes death for offenses including treason, espionage, and certain murders committed under federal jurisdiction.13Office of the Law Revision Counsel. 18 USC Chapter 228 – Death Sentence For nearly two decades after Congress reinstated the federal death penalty in 1988, no federal executions took place. Timothy McVeigh’s execution in June 2001 for the Oklahoma City bombing broke the drought, and two more federal executions followed during the George W. Bush administration.
The most concentrated period of federal execution activity came at the end of President Trump’s first term, when the federal government carried out 13 executions in six months between July 2020 and January 2021. Attorney General Merrick Garland imposed a moratorium in July 2021. In January 2025, President Trump signed an executive order directing the Attorney General to “pursue the death penalty for all crimes of a severity demanding its use” and lifting the moratorium.14The White House. Restoring The Death Penalty And Protecting Public Safety The order specifically directed federal prosecutors to seek death sentences for the murder of law enforcement officers and for capital crimes committed by undocumented immigrants, regardless of other factors.
Where Things Stand Now
The numbers show a practice in steep decline. Executions reached a modern peak of 98 in 1999, spread across 20 states.15Bureau of Justice Statistics. Capital Punishment, 1999 By 2024, that number had dropped to 25 executions in nine states. Only 26 new death sentences were imposed nationwide in 2024, a fraction of the numbers seen in the 1990s. Falling violent crime rates, the availability of life-without-parole sentences, concerns about wrongful convictions, and the higher cost of capital cases have all contributed. Study after study has found that pursuing a death sentence costs significantly more than a life-without-parole case, largely because of extended trial proceedings, mandatory appeals, and specialized defense counsel.
The geography has also narrowed. Twenty-three states have abolished capital punishment, and several others keep it on the books but haven’t carried out an execution in decades. Virginia’s abolition in 2021 was symbolically powerful. The state had executed more people than any other in American history and ranked second only to Texas in the modern era. Among states that retain the death penalty, use is concentrated in a handful of counties in Texas, Florida, and Arizona, which account for a wildly disproportionate share of death sentences nationwide. Where a murder happens often matters more than the facts of the case in determining whether the death penalty is sought.
Whether the recent federal push to expand capital punishment reverses the broader trend remains open. The constitutional framework from Gregg still stands, the categorical exemptions from Atkins, Roper, and Kennedy remain intact, and the practical obstacles of cost, error rates, and shrinking drug supplies for lethal injection continue to limit how often the penalty is actually carried out.