People executed in the United States in 2023 had spent an average of 279 months on death row before their sentences were carried out. That is just over 23 years, and it is the figure the Bureau of Justice Statistics reports for the average time on death row from sentencing to execution.1Bureau of Justice Statistics. Capital Punishment, 2023 – Statistical Tables Prisoners still under a death sentence at the end of 2023 had already been waiting an average of 21.7 years, and most will wait longer still.
The length is not an accident or a backlog problem. It is what the modern capital appeals system produces when it works as designed.
How the Average Has Grown
Executions resumed in 1977 after the Supreme Court’s 1976 decision in Gregg v. Georgia. In the earliest years, the wait was short by current standards. Between 1977 and 1983, the 11 people executed had spent an average of 58 months on death row. By 1985, the average was 71 months, just under six years.2Bureau of Justice Statistics. Capital Punishment, 1985
The trajectory has moved in one direction since. In 2020, the average time from sentence to execution was 227 months, about 19 years.3Death Penalty Information Center. Bureau of Justice Statistics: Death Row Below 2,500 First Time in 29 Years After 20 Consecutive Years of Decline, Average Time on Death Row Reaches 19.4 Years By 2021 it had risen to 233 months.4Death Penalty Information Center. Bureau of Justice Statistics Reports 2021 Showed 21st Consecutive Year of Death Row Population Decline The 279-month figure for 2023 is nearly five times the 1980s average, and it reflects a population of people sentenced decades ago whose cases are only now reaching an end. More recent sentences are still working through review.
More people leave death row today through resentencing, commutation, or natural death than through execution. Gary Alvord, sentenced in Florida in 1974, spent nearly 40 years on death row before dying of natural causes in 2013.
The Appeals That Produce the Wait
No single step causes the delay. A capital case moves through several layers of review, and it cannot skip any of them.
Direct Appeal in State Court
After sentencing, the case goes automatically to the highest court in the state. The defendant does not have to ask for this appeal; the law requires it. Review focuses on errors in the trial itself, such as improper jury instructions or evidence that should not have been admitted.5California Department of Justice. A Victim’s Guide to the Capital Case Process In states with large capital dockets, simply getting counsel appointed and a brief filed can take years.
State Post-Conviction Review
If the conviction survives direct appeal, the defendant can file a state post-conviction petition. This stage allows claims based on facts that were never part of the trial record. The most common is that the trial lawyer performed so poorly the defendant was denied the effective counsel the Constitution requires. These petitions typically require new investigations, witness interviews, and evidentiary hearings, and they add several more years.
Federal Habeas Corpus and AEDPA
Once every state option is exhausted, the case moves into federal court through a petition for a writ of habeas corpus. The federal court examines whether the state proceedings violated the U.S. Constitution or federal law based on the record that already exists.6Office of the Law Revision Counsel. 28 U.S. Code 2254 – State Custody; Remedies in Federal Courts It is not a new trial.
Congress tried to compress this stage with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA set a one-year filing deadline for habeas petitions, running from the date the state conviction becomes final.7Office of the Law Revision Counsel. 28 U.S. Code 2244 – Finality of Determination It also raised the standard for overturning a state ruling: the state decision must be not merely wrong but unreasonably wrong under clearly established Supreme Court precedent.6Office of the Law Revision Counsel. 28 U.S. Code 2254 – State Custody; Remedies in Federal Courts And it restricted second or successive petitions.
Even with those constraints, the federal stage still consumes years. District court decisions can be appealed to a federal circuit court. From there, the defendant can petition the U.S. Supreme Court. The federal pipeline routinely runs five to ten years on its own, stacked on top of the state appeals that came before.
Fights Over Execution Methods
A less obvious driver of delay is litigation over how executions are carried out. Lethal injection remains the primary method in 28 states and the federal government, but the drugs used have shifted repeatedly as pharmaceutical companies have refused to supply their products for executions.
Much of the litigation has centered on midazolam, a sedative that critics argue does not reliably render a person unconscious before the second and third drugs are administered. Courts have required prisoners challenging a drug protocol to identify a readily available alternative method that would cause less pain, a burden that produces years of discovery, expert testimony, and appeals. Some states have been ordered to disclose their drug suppliers; others have fought disclosure through secrecy laws.
Courts have issued restraining orders on specific drug supplies, stayed scheduled executions, and prompted governors to halt executions while new protocols are developed. Alternative methods bring their own challenges. Five states now permit nitrogen hypoxia, and Alabama and Louisiana have used it. Idaho will make the firing squad its primary method effective July 2026. Each new method restarts the constitutional challenge cycle.
Constitutional Limits on Who Can Be Executed
Two categorical exemptions from the death penalty require their own rounds of litigation, sometimes late in a case.
In Atkins v. Virginia (2002), the Supreme Court held that executing a person with an intellectual disability violates the Eighth Amendment.8Justia Law. Atkins v Virginia, 536 US 304 (2002) Qualifying requires significantly below-average intellectual functioning, substantial deficits in adaptive skills, and onset before age 18. States define the specifics differently, some using a hard IQ ceiling of 70 and others a broader assessment. As of late 2025, the Supreme Court was considering whether courts may weigh the cumulative effect of multiple IQ scores.
Earlier, in Ford v. Wainwright (1986), the Court ruled that the Eighth Amendment prohibits executing a person who is mentally incompetent, meaning the person cannot understand the punishment or the reason for it.9Justia Law. Ford v Wainwright, 477 US 399 (1986) Competency can change during decades of confinement, so the state must evaluate it before proceeding. Psychiatric examinations, evidentiary hearings, and appeals follow.
Why the National Average Hides Wide Differences
The 279-month figure is a national average, and individual states diverge sharply from it.
Texas reports an average of about 11 years on death row before execution, roughly half the national number. Alabama executed the most people in 2024, with six, followed by Texas with five.
California is at the opposite extreme. It has the largest death row population in the country, though it recently dropped below 600 for the first time in 25 years after dozens of resentencings in 2024. The state has not executed anyone since 2006, and a formal moratorium has been in place since 2019. Many California inmates have already waited far longer than the national average with no resolution scheduled.
Since 2009, seven states have legislatively abolished the death penalty: Colorado, Connecticut, Illinois, Maryland, New Hampshire, New Mexico, and Virginia. Twenty-seven states still authorize it. In 2024, only nine states carried out executions, and together they executed 25 people.
Why Courts Tolerate the Length
Since 1973, at least 202 people sentenced to death in the United States have been exonerated. DNA testing has been directly responsible for 21 of those exonerations, part of 375 total DNA exonerations documented through 2020. Post-conviction DNA testing did not exist when most of those defendants were sentenced, and it took years for courts to develop rules allowing access to biological evidence and for the technology itself to become reliable enough to overturn convictions.
One commonly cited estimate suggests that roughly one in every 25 people sentenced to death is likely innocent. Whether or not that ratio is precise, it explains why courts, legislatures, and governors have been reluctant to shorten the process even as its length draws criticism.
The Human Cost of the Wait
Most death-row prisoners are held in conditions that amount to long-term solitary confinement. Cells typically range from 36 to just over 100 square feet and hold a steel bed, a toilet, and a small writing surface. In more than 80 percent of states with death rows, prisoners get one hour or less of daily exercise, often in a cage or enclosed pen. Meals arrive through a slot in the door. Many prisoners go years without fresh air or sunlight.10Office of Justice Programs. Death Before Dying: Solitary Confinement on Death Row
Psychiatrists have described a pattern they call death row syndrome: severe anxiety, delusions, and suicidal tendencies produced by extreme isolation combined with the unresolved prospect of execution. Suicide rates among death-row inmates have been estimated at roughly 113 per 100,000, about ten times the national average and six times the rate in the general prison population.
The length of confinement has itself become a legal issue. Since Justice John Paul Stevens raised the question in Lackey v. Texas in 1995, prisoners have argued that executing someone after decades on death row is itself cruel and unusual. Justice Stephen Breyer later called the delays a strong basis for finding an execution inhumane.11Death Penalty Information Center. The Supreme Court and Time on Death Row The Supreme Court has never squarely ruled on the claim.