The history of the death penalty stretches from Babylonian legal codes written around 1750 B.C. to a fractured modern American system in which 23 states and the District of Columbia have abolished capital punishment entirely. Along the way, the practice was expanded by English common law, transplanted to the American colonies, challenged by Enlightenment philosophers, restricted by nineteenth-century reformers, reshaped by the U.S. Supreme Court, and narrowed by a steady sequence of constitutional rulings about who can be executed and for what.
Ancient Codes and Lex Talionis
The earliest known death penalty laws appear in the Code of Hammurabi, the Babylonian legal code from roughly 1750 B.C., which prescribed death for 25 different crimes. The code embedded the principle of lex talionis, that punishment should mirror the harm inflicted. Law 196 held that if a man blinded another, his own eye would be blinded in return.1Yale Law School Lillian Goldman Law Library. The Code of Hammurabi Many of Hammurabi’s capital provisions dealt with unprovable accusations, fraud, and property offenses, so execution functioned as much to enforce social order as to avenge victims.
Around 621 B.C., the Athenian lawgiver Draco introduced a code so severe that later writers said the laws were “written in blood.” Death was prescribed for nearly all criminal offenses, however minor. The original code did not last, but the word “draconian” survived as shorthand for disproportionate punishment.
England’s Bloody Code
English common law built on these foundations and eventually pushed capital punishment to an extreme. Beginning in the early eighteenth century, Parliament kept adding crimes to the list of capital offenses in what historians call the Bloody Code. By the late 1700s, English law listed more than 200 offenses punishable by death, including cutting down trees, stealing from a rabbit warren, pickpocketing goods worth a shilling, and destroying turnpike roads.2National Justice Museum. What Was the Bloody Code The strategy was intimidation: property rights and social hierarchies enforced by the gallows.
Enforcement was inconsistent. Juries often refused to convict when the penalty seemed absurd for the offense, and pardons were common. Even so, the Bloody Code shaped English legal culture for more than a century, and settlers crossing the Atlantic carried those traditions with them.
The Enlightenment Case Against Execution
The philosophical groundwork for abolition was laid decades before any government acted. In 1764, the Italian jurist Cesare Beccaria published On Crimes and Punishments, which systematically attacked the death penalty on moral and practical grounds. Beccaria argued that the sole legitimate purpose of punishment was deterrence, and that any penalty exceeding what was necessary to maintain social order amounted to tyranny.3National Constitution Center. On Crimes and Punishments He questioned whether a political body acting as a “cool moderator” of human passions could justify torment and cruelty, and he denounced capital punishment as incompatible with a just society.
His work rippled outward quickly. It influenced framers of the U.S. Constitution, contributed to early reform movements in Europe, and gave abolitionists a coherent intellectual framework they had not previously had.
Colonial America and the Early Republic
European settlers brought England’s capital punishment traditions to the colonies. The first recorded execution in the new world took place in 1608 in the Jamestown settlement, when Captain George Kendall was shot for spying on behalf of Spain.4Justia U.S. Supreme Court Center. Furman v. Georgia, 408 U.S. 238 (1972) – Section: History Virginia’s early legal framework, the Lawes Divine, Morall and Martiall, mandated death for offenses that would strike a modern reader as administrative, including trading with indigenous groups without official permission.5The Colonial Williamsburg Official History and Citizenship Site. For The Colony in Virginea Britannia – Lawes Divine, Morall and Martiall
Standards varied enormously between colonies. The Massachusetts Bay Colony leaned heavily on Old Testament scripture and listed capital offenses alongside the verses used to justify them, including worshipping other gods, witchcraft, blasphemy, adultery, and kidnapping. Other regions, such as South Jersey, rarely imposed death for non-violent offenses, favoring restitution and fines. Those regional differences foreshadowed the state-by-state patchwork that still defines American death penalty law.
Nineteenth-Century Reform and the First Abolition
The 1800s brought the first sustained push to limit capital punishment in the United States. Reformers argued that public hangings had become rowdy spectacles that degraded public morals rather than deterring crime, and legislators moved executions behind prison walls, converting them from community events into closed bureaucratic procedures.
The most significant legal milestone came in 1846, when Michigan became the first English-speaking jurisdiction in the world to abolish capital punishment by statute, eliminating it for murder and all lesser crimes and retaining it only for treason.6Michigan Legislature. House Joint Resolution H – Death Penalty for First Degree Murder
The same era saw discretionary sentencing introduced in capital cases. Before those reforms, death sentences were mandatory for anyone convicted of a capital crime; judges and juries had no alternative. Giving juries the power to choose between execution and life imprisonment acknowledged that not every killing warranted the same response, and that shift toward individualized sentencing would later become a constitutional requirement.
How Execution Methods Changed
Early American executions relied almost exclusively on hanging and firing squads. The late nineteenth century brought a push for methods described by proponents as faster and more humane, starting with the electric chair. New York adopted electrocution in 1889, and on August 6, 1890, William Kemmler became the first person executed by electric chair. The execution was badly botched, requiring a second shock after Kemmler regained consciousness, but the method spread regardless.7Library of Congress. Electric Chair – Topics in Chronicling America
Nevada introduced the gas chamber in 1921, and the first execution using lethal gas took place on February 8, 1924, when Gee Jon was killed with cyanide fumes. Oklahoma became the first state to authorize lethal injection in 1977, and Texas carried out the first lethal injection execution on December 7, 1982, when Charles Brooks Jr. was put to death. Lethal injection eventually became the dominant method across most of the country.
Drug Shortages and Nitrogen Gas
Starting around 2010, pharmaceutical companies began refusing to supply drugs for executions, and traditional sources dried up. States turned to compounding pharmacies, which mix drugs to order and operate outside standard FDA approval, to obtain pentobarbital and other execution drugs. The shortage also prompted a search for new methods entirely. Oklahoma authorized nitrogen hypoxia in 2015, followed by Mississippi in 2017 and Alabama in 2018. On January 25, 2024, Alabama carried out the world’s first nitrogen gas execution, killing Kenneth Smith. United Nations experts described the method as untested and warned it could constitute torture, and witness accounts reported that Smith appeared conscious and shook for several minutes after the gas was administered.
The Constitutional Reckoning
For most of American history, the constitutionality of the death penalty was simply assumed. That changed in 1972, when the Supreme Court decided Furman v. Georgia. In a fractured decision with no majority opinion, the Court held that the death penalty as then applied constituted cruel and unusual punishment under the Eighth and Fourteenth Amendments.8Justia U.S. Supreme Court Center. Furman v. Georgia, 408 U.S. 238 (1972) The ruling nullified the capital punishment laws of 39 states and the District of Columbia and removed the death sentences of roughly 600 prisoners nationwide. The core problem, as the justices saw it, was arbitrariness: who lived and who died depended more on race, geography, and luck than on the severity of the crime.
States moved quickly to redraft their statutes. The key innovation was the bifurcated trial, which separates the guilt phase from the sentencing phase and requires juries to weigh specific aggravating and mitigating factors before imposing death. In 1976, the Court upheld those revised procedures in Gregg v. Georgia, ruling that the death penalty was not inherently unconstitutional so long as it was applied through a fair and standardized process that allowed for individualized consideration.9Justia U.S. Supreme Court Center. Gregg v. Georgia, 428 U.S. 153 (1976) Executions resumed, and the following two decades saw a dramatic expansion in both death sentences and the pace of executions.
Race and the McCleskey Decision
The arbitrariness concerns that drove Furman never fully went away, especially regarding race. In 1987, the Court confronted the issue in McCleskey v. Kemp. The defendant presented the Baldus study, which analyzed over 2,000 murder cases in Georgia and found that defendants who killed white victims were far more likely to receive a death sentence than those who killed Black victims, with Black defendants who killed white victims facing the highest likelihood of all.10Justia U.S. Supreme Court Center. McCleskey v. Kemp, 481 U.S. 279 (1987)
The Court acknowledged the statistical disparity but held it wasn’t enough. To win an Eighth or Fourteenth Amendment claim, a defendant had to prove that the decisionmakers in their specific case acted with discriminatory intent, not merely that the system as a whole produced racially skewed outcomes. The ruling effectively closed the courthouse door to systemic racial bias claims in capital cases. Justice Brennan’s dissent called the decision “a fear of too much justice.”
Narrowing Who Can Be Executed
Even as executions accelerated in the 1980s and 1990s, the Supreme Court began carving out categorical exceptions, applying the Eighth Amendment’s “evolving standards of decency” framework to remove entire groups from death row eligibility.
In Atkins v. Virginia (2002), the Court held that executing defendants with intellectual disabilities violates the Eighth Amendment. The majority concluded that a growing number of states had abandoned the practice and that the goals of capital punishment, deterrence and retribution, applied with diminished force to offenders with reduced culpability.11Justia U.S. Supreme Court Center. Atkins v. Virginia, 536 U.S. 304 (2002)
Three years later, Roper v. Simmons (2005) extended the same logic to juvenile offenders, prohibiting the death penalty for anyone who was under 18 at the time of the crime. The Court overruled its own 1989 precedent, finding that national consensus had shifted and that adolescents’ diminished maturity and greater vulnerability to outside pressures made them categorically less deserving of the ultimate punishment.12Justia U.S. Supreme Court Center. Roper v. Simmons, 543 U.S. 551 (2005)
Then in 2008, Kennedy v. Louisiana restricted the death penalty based on the crime itself. The Court held that the Eighth Amendment bars capital punishment for the rape of a child when the crime did not result in, and was not intended to result in, the victim’s death.13Legal Information Institute. Kennedy v. Louisiana, 554 U.S. 407 (2008) Together, those decisions established that capital punishment is constitutionally reserved for the most serious homicide offenses committed by fully culpable adult defendants.
The Federal Death Penalty
The federal government has maintained its own parallel death penalty system, though it has used it far less frequently than the states. In 1988, President Reagan signed the Anti-Drug Abuse Act, which created an enforceable federal death penalty for murders connected to certain drug trafficking operations. The provision targeted “drug kingpins,” but its reach extended to low-ranking members of organizations with as few as five people, so long as the individual was involved in a killing.
The Federal Death Penalty Act of 1994 dramatically expanded the scope, bringing the number of death-eligible federal offenses to approximately 60, ranging from terrorism and espionage to carjacking resulting in death. Federal executions remained rare. After a 17-year pause, the federal government carried out a burst of executions in 2020 and 2021, and the Biden administration’s Justice Department subsequently ordered a moratorium on federal executions.
Where the Death Penalty Stands Today
The modern American landscape is defined by contraction. Twenty-three states and the District of Columbia have abolished the death penalty outright, and four additional states have active gubernatorial holds on executions: California, Pennsylvania, Oregon, and Ohio.14Death Penalty Information Center. State by State As of early 2025, roughly 2,067 people remained on death rows across the country, a number that has been declining steadily.
The innocence problem has been one of the most powerful forces driving that decline. Since 1973, at least 200 people have been exonerated from death row after evidence emerged that they were wrongfully convicted. Each exoneration erodes public confidence in the system’s accuracy.
Global Context
The United States is increasingly an outlier among democracies. Approximately 150 countries have either abolished the death penalty or maintain moratoria on its use, and only 15 countries carried out executions in 2024, the lowest number ever recorded. The United Nations General Assembly has repeatedly called for a worldwide moratorium, with 123 countries voting in favor of the most recent resolution. Among developed democracies, the United States stands nearly alone in retaining the practice.
Whether the trajectory bends toward full abolition or stabilization remains genuinely uncertain. New methods like nitrogen gas suggest some states are investing in the practice’s continuation, while the steady accumulation of abolition statutes, exonerations, and constitutional restrictions points the other direction. What is clear is that the arc has moved away from the Bloody Code’s 200 capital offenses and toward an ever-narrower application, with courts and legislatures still working out exactly how narrow is narrow enough.