Here are the core facts about the death penalty in the United States: capital punishment is legal in 27 states, the federal system, and the U.S. military; roughly 2,100 people sit on death row; executions are concentrated in a small number of counties; the Supreme Court has barred its use against juveniles, people with intellectual disabilities, and defendants who cannot understand their punishment; and the average wait between sentence and execution now runs about 19 years. Twenty-three states and the District of Columbia have abolished it, and four retentionist states are under gubernatorial moratoriums.
Where Capital Punishment Is Legal
Twenty-seven states keep the death penalty on the books. Twenty-three states and the District of Columbia have abolished it, either through legislation or by court ruling. Among the states that retain it, four have active gubernatorial moratoriums halting executions. The federal government and the U.S. military also maintain capital punishment authority.
The modern system is a product 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.1Justia. Furman v. Georgia, 408 U.S. 238 (1972) Gregg v. Georgia (1976) upheld the rewritten statutes that followed, endorsing the bifurcated trial in which guilt and sentencing are decided in separate proceedings under statutory guidelines.2Justia. Gregg v. Georgia, 428 U.S. 153 (1976) That framework still governs every capital sentencing system in the country.
Who Cannot Be Sentenced to Death
The Supreme Court has ruled several categories of defendants and offenses off-limits under the Eighth Amendment. These bars apply nationwide regardless of state statutes.
- Anyone under 18 at the time of the crime, under Roper v. Simmons (2005).3Justia. Roper v. Simmons, 543 U.S. 551 (2005)
- People with intellectual disabilities, under Atkins v. Virginia (2002), though states retain some discretion in defining the clinical threshold.4Justia. Atkins v. Virginia, 536 U.S. 304 (2002)
- Prisoners who cannot understand the punishment being imposed or why it is being imposed, under Ford v. Wainwright (1986). This covers dementia and similar conditions even when the defendant was competent at trial.5Justia. Ford v. Wainwright, 477 U.S. 399 (1986)
- Defendants convicted of crimes against an individual where the victim did not die, including child rape, under Kennedy v. Louisiana (2008). Crimes against the state such as treason and espionage remain theoretically eligible.6Justia. Kennedy v. Louisiana, 554 U.S. 407 (2008)
In practice, death sentences are reserved for adult defendants of sound mind convicted of murder with aggravating circumstances. The Federal Death Penalty Act of 1994 also lists offenses such as treason, espionage, and certain drug-trafficking murders as capital-eligible at the federal level.7Office of the Law Revision Counsel. 18 U.S. Code 3591 – Sentence of Death
How a Death Sentence Is Imposed
A capital conviction alone does not produce a death sentence. After a guilty verdict, the same jury reconvenes for a separate sentencing hearing and weighs aggravating factors against mitigating ones.
The prosecution must prove at least one statutory aggravating factor beyond a reasonable doubt, and the jury’s finding must be unanimous. Federal aggravators include committing the killing in an especially cruel manner involving torture, killing for financial gain or payment, and murdering a law enforcement officer, judge, or other federal official engaged in their duties.8Office of the Law Revision Counsel. 18 USC 3592 – Mitigating and Aggravating Factors to Be Considered in Determining Whether a Sentence of Death Is Justified State lists differ but commonly include multiple victims, killing during another felony, and a prior record of violent crime.
Mitigating evidence works differently. The defense need only show its existence by a preponderance of the evidence, and a single juror who finds a mitigating factor can weigh it regardless of what other jurors conclude.9Office of the Law Revision Counsel. 18 USC 3593 – Special Hearing to Determine Whether a Sentence of Death Is Justified Common mitigators include childhood abuse or neglect, mental illness, the defendant’s age, a lack of prior criminal history, and a minor role in the killing. The prosecution’s path to death is unanimous and beyond a reasonable doubt; the defense’s path against it needs one juror persuaded by a lower standard.
How Executions Are Carried Out
Lethal injection remains the primary method. The typical protocol runs midazolam to induce unconsciousness, a paralytic agent, and potassium chloride to stop the heart. Some states use a single large dose of a barbiturate instead.
Other methods are authorized and, in some cases, back in use:
- Nitrogen hypoxia. Alabama carried out the first nitrogen gas execution in American history in January 2024, and Louisiana adopted the method shortly after. Both executions drew criticism after witnesses reported visible signs of distress lasting far longer than officials had predicted.
- Firing squad. South Carolina carried out a firing squad execution in 2025, the first in the country in 15 years.
- Electrocution. Still authorized as an alternative in several states, though rarely used.
- Lethal gas and hanging. Retained in a few state statutes as backup options, but neither has been used in years.
One reason states have looked to alternatives is the shrinking supply of lethal injection drugs. Major pharmaceutical companies have refused to sell their products for use in executions, and European export restrictions have cut off another supply line. At least 16 states have enacted secrecy laws since 2010 that shield the identity of drug suppliers from public records requests, and every state that has carried out an execution in the past decade now operates under some form of secrecy provision.
Death Row: Population, Geography, and Time
Roughly 2,100 people currently sit on death row. About 42 percent are white, 41 percent are Black, and 15 percent are Hispanic. Black Americans make up approximately 13 percent of the general population but more than 40 percent of those sentenced to die.
Death sentences are heavily concentrated geographically. Fewer than 2 percent of U.S. counties account for more than half of the death row population and more than half of all executions carried out since 1976. Over 80 percent of counties have never executed anyone in that time, and just 15 counties are responsible for more than 30 percent of all executions since the death penalty was reinstated.10Death Penalty Information Center. The 2% Death Penalty: The Geographic Arbitrariness of Capital Punishment in the United States Whether a defendant faces a death sentence often turns on the county where the case is prosecuted.
Annual execution counts have swung sharply. Executions peaked in 1999 at 98 across 20 states, the highest total since 1951.11Bureau of Justice Statistics. Capital Punishment, 1999 The number declined for most of the following two decades, then reversed in 2025 with 47 executions, nearly double the 25 in 2024. Florida alone accounted for 19 of the 2025 total, or 40 percent. New death sentences imposed by juries have also declined substantially since the 1990s.
Waits are long. More than half of current death row inmates have been there for over 18 years, and the average time between sentencing and execution for those actually put to death has climbed to roughly 19 years.12Bureau of Justice Statistics. Capital Punishment, 2023 – Statistical Tables Most people sentenced to death will die of natural causes in prison rather than by execution.
Wrongful Convictions
Since 1973, at least 202 people sentenced to death in the United States have been exonerated after evidence of their innocence emerged, meaning a court vacated the conviction and the prosecution dismissed all charges or the defendant was acquitted at retrial. DNA evidence has driven many of these outcomes. Witness recantation and prosecutorial misconduct account for many others. The rate works out to roughly one exoneration for every eight to nine executions.
Federal law provides a mechanism for post-conviction DNA testing. Under 18 U.S.C. ยง 3600, a prisoner can file a written motion asserting actual innocence, and the court must order testing if the evidence was never tested or can now be tested with substantially more advanced technology, a proper chain of custody exists, and the results could raise a reasonable probability that the applicant did not commit the offense.13Office of the Law Revision Counsel. 18 USC 3600 – DNA Testing Most states have their own post-conviction DNA testing statutes, with standards that vary widely.
What Capital Cases Cost
Death penalty cases are dramatically more expensive than non-capital murder prosecutions. Capital trials require specialized defense counsel (often two attorneys), extensive mitigation investigation, a larger jury pool, and a longer jury selection process. The bifurcated structure keeps the courtroom occupied for weeks or months longer than a standard murder case. One widely cited estimate places the additional cost of a capital trial at roughly $1.5 million above what a life-without-parole case would cost.
After sentencing, years of mandatory appeals and habeas corpus proceedings consume more judicial resources, and death row housing costs more than general population incarceration because of higher security requirements. Since most death sentences are eventually overturned or the inmate dies of other causes before execution, the system often produces life-in-prison outcomes at an inflated price.
The bill falls hardest on the county where the trial takes place. Research on Texas counties found that property tax rates rise by an average of 0.005 percentage points in years with a capital trial, and public safety spending drops by an average of $1.2 million as counties redirect funds to legal costs.14Cato Institute. On the Public Finance of Capital Punishment Small and mid-size counties have raised property taxes or cut police staffing to fund a single case.
Clemency
Executive clemency is the last opportunity to stop an execution once courts have finished. The President holds sole clemency power over federal death sentences. At the state level the structure varies: some governors have unilateral authority, others can act only after a recommendation from a clemency board, and in a few states the board itself makes the final decision.
A commutation reduces the sentence, typically to life without parole. A reprieve delays the execution temporarily, often for further review. A full pardon is theoretically possible but extraordinarily rare in capital cases. Governors grant clemency sparingly.