In the United States, capital punishment (also known as the death penalty) is a legal penalty in 27 states (of which two, Oregon and Wyoming, have no inmates sentenced to death), throughout the country at the federal level, and in American Samoa. It is also a legal penalty for some military offenses. Capital punishment has been abolished in the other 23 states and in the federal capital, Washington, D.C. It is constitutionally permitted only for murder, with permissibility for use for crimes against the state not having been legally decided. Although it is a legal penalty in 27 states, only 21 of them have authority to execute death sentences, with the other 6 subject to moratoriums.
There were no executions in the United States between 1967 and 1977. In 1972, the Supreme Court of the United States struck down capital punishment statutes in Furman v. Georgia, reducing all pending death sentences to life imprisonment. Subsequently, a majority of states enacted new death penalty statutes, and the court affirmed the legality of the practice in the 1976 case Gregg v. Georgia. Since then, more than 8,500 defendants have been sentenced to death; of these, more than 1,605 have been executed. Most executions are carried out by states. Since 1973, at least 200 people sentenced to death have been exonerated, about 2.2% of those sentenced.
In 2019, the Trump administration's Department of Justice announced its plans to resume executions for federal crimes. On July 14, 2020, Daniel Lewis Lee became the first inmate executed by the federal government since 2003. Thirteen federal death row inmates were executed, all under Trump. The last and most recent federal execution during the first Trump administration was of Dustin Higgs, who was executed on January 16, 2021. On July 1, 2021, Attorney General Merrick Garland imposed a moratorium on federal executions. In April 2022, 2,414 people were on federal or state death row.
On December 23, 2024, President Joe Biden commuted the sentences of 37 of the 40 individuals on federal civilian death row to life imprisonment without the possibility of parole; 3 people remain on federal death row. Pursuant to Executive Order 14164, signed by Donald Trump on January 20, 2025, the first day of his second term, then-Attorney General Pam Bondi issued a memorandum on February 5, 2025 that rescinded the Garland moratorium on federal executions. The memorandum also directed the Justice Department to strengthen the death penalty and seek its application by prosecutors whenever reasonable.
Today, laws generally prohibit members of the general public from attending executions in the United States, though journalists and selected individuals may witness them. The last public execution in the U.S. took place in Kentucky on August 14, 1936, before a crowd of 20,000 people. This was followed by a period from 1936 to 1937 during which executions were semi-public, after which most states began requiring executions to be held privately. Timothy McVeigh's 2001 execution was viewed by over 200 people, mainly victims' families, via closed-circuit TV.
History British colonial rule
Capital punishment in the United States can be traced to early colonial Virginia. The first recorded death sentence in the British North American colonies was carried out in 1608 on Captain George Kendall, who was executed by firing squad at the Jamestown colony for spying on behalf of the Spanish government. 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.
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.
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. The Fourteenth Amendment adopted in 1868 also requires a due process of law for deprivation of life by any states.due process Retrieved 15 May 2024 The federal death penalty was restricted to a small category of crimes. Death penalty was carried out according to local customs. 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.”
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) 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. Three justices raised concerns about racial bias. 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.History of a ‘remarkable intervention’ Retrieved 16 May 2024
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". The next day, columnist Barry Schweid wrote that it was "unlikely" that the death penalty could exist anymore in the United States.
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.
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.
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.
The same day, in Woodson v. North CarolinaWoodson v. North Carolina, and Roberts v. Louisiana,Roberts v. Louisiana, , the Court struck down 5–4 statutes imposing a death sentence without allowing the sentencer to consider mitigating evidence. 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. 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.
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.
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.
The abolition and reform movement was more successful in Europe. 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, and in 1977 in France.
Supreme Court narrows capital offenses