The history of the death penalty runs from the Code of Hammurabi in the eighteenth century B.C. to a present-day American system that is legal in 27 states, abolished in 23, and shrinking in both new sentences and executions. Roughly two-thirds of the world’s nations have ended the practice, and the United States is now the only Western democracy that still carries it out. The arc has three broad movements: an ancient and early-modern period in which death was an unremarkable tool of statecraft, an Enlightenment-driven contraction that narrowed the offenses and eventually the eligible defendants, and a modern constitutional and practical decline that continues today.
Ancient Codes and the Retributive Model
The earliest known death penalty laws appear in the Code of Hammurabi, the Babylonian legal text from around the eighteenth century B.C. The Code prescribed death for twenty-five different offenses, including theft and giving false testimony in a capital trial, and its logic of proportional retribution is often summarized as “an eye for an eye.”1Wikipedia. Code of Hammurabi Centralizing the power to punish was itself the point: state-administered execution replaced private vengeance.
Ancient Athens went further. The Draconian Code, attributed to the lawgiver Draco around 621 B.C., prescribed death for nearly every criminal offense, and contemporaries said the laws had been written in blood rather than ink.2Britannica. Draconian Laws Roman law then refined the practice through the Twelve Tables. Capital crimes included composing slanderous songs against another person, secretly cutting another person’s crops at night, and deliberately burning a building or stored grain; even false testimony could send a person off the Tarpeian Rock.3The Latin Library. The Law of the Twelve Tables Across all three systems, death served to protect social order, property, and the authority of the state.
The English Bloody Code and Its Transfer to America
By the late eighteenth century, English law had accumulated a list of capital offenses known as the “Bloody Code.” The number of crimes carrying the death penalty grew from roughly fifty in 1688 to over two hundred by 1815, sweeping in acts as minor as cutting down a tree or stealing livestock.
English settlers carried these traditions to North America. Virginia’s “Divine, Moral and Martial Laws” of 1612 authorized death for offenses ranging from stealing grapes from a vineyard to trading with Native Americans without permission; forty-eight of the code’s fifty-one provisions carried the death penalty.4Colonial Williamsburg. For The Colony in Virginea Britannia. Lawes Divine, Morall and Martiall The code blended criminal regulation with religious obligation, making blasphemy and failure to attend church services punishable by execution.5Encyclopedia Virginia. Articles, Laws, and Orders, Divine, Politic and Martial for the Colony of Virginia Massachusetts based its capital offenses heavily on biblical interpretation. The specific crimes varied by colony, but reliance on execution as the primary instrument of justice did not.
Enlightenment Reform and the First Abolitions
The intellectual challenge to capital punishment came from a twenty-six-year-old Italian nobleman. In On Crimes and Punishments (1764), Cesare Beccaria argued that every punishment exceeding what was strictly necessary to protect society amounted to tyranny, and that the certainty of punishment mattered far more than its severity.6National Constitution Center. On Crimes and Punishments (1764)
The ideas moved quickly into post-revolutionary American lawmaking. Thomas Jefferson drafted a bill proposing that Virginia limit the death penalty to murder and treason and replace execution for other felonies with hard labor.7University of Chicago Press. Thomas Jefferson, A Bill for Proportioning Crimes and Punishments The Virginia legislature rejected the proposal by a single vote.8Thomas Jefferson Encyclopedia. Bill 64 Pennsylvania made the first successful structural change in 1794 by dividing murder into degrees, so that only deliberate, premeditated killings qualified for a death sentence.9H2O Open Casebook. Pennsylvania Statute
Michigan then went further than any jurisdiction had gone before. In 1846, the state abolished the death penalty for all crimes except treason, becoming the first English-speaking government in the world to do so by statute.10Michigan Legislature. House Legislative Analysis – Death Penalty for First Degree Murder No one was ever executed under the treason exception. Public anxiety about executing innocent people drove the decision, and that concern would only intensify over the next two centuries.
The Search for a “Humane” Method
For most of American history, execution meant a public hanging. New York broke from that pattern in 1889 by adopting the electric chair, promoted as delivering near-instantaneous death.11Library of Congress. Electric Chair: Topics in Chronicling America The first electrocution, on William Kemmler in 1890, was widely reported as a failure requiring multiple jolts, but the method spread anyway. Nevada introduced the gas chamber in the 1920s, executing Gee Jon in 1924. Oklahoma passed the first lethal injection statute in 1977, and that method eventually became dominant nationwide.
The most recent addition is nitrogen hypoxia. Alabama carried out the first execution by this method on January 25, 2024, on Kenneth Smith. As of 2026, five states have authorized nitrogen hypoxia, though some restrict it to situations in which lethal injection drugs are unavailable or the condemned person chooses the method. Each new technique has been introduced with assurances of painlessness, and each has produced its own controversies.
Furman, Gregg, and the Modern Sentencing Framework
The most serious legal crisis for the American death penalty came in 1972. In Furman v. Georgia, the Supreme Court struck down every existing death penalty statute in the country, finding that capital punishment as then administered was so arbitrary that it violated the Eighth Amendment’s ban on cruel and unusual punishment.12Justia U.S. Supreme Court Center. Furman v. Georgia, 408 U.S. 238 (1972) The decision did not declare the death penalty unconstitutional in principle; it invalidated statutes that gave juries essentially unchecked sentencing discretion.13Congress.gov. Amdt8.4.9.3 Furman and Moratorium on Death Penalty The result was a nationwide moratorium.
States rewrote their laws, and four years later the Court upheld Georgia’s new statute in Gregg v. Georgia. The approved model required a bifurcated trial: first, a jury determines guilt; then a separate sentencing hearing follows in which the jury weighs specific aggravating and mitigating factors, and at least one statutory aggravating circumstance must be proven beyond a reasonable doubt before a death sentence can be imposed.14Justia U.S. Supreme Court Center. Gregg v. Georgia, 428 U.S. 153 (1976) That structure remains the basic architecture of capital sentencing today.
Narrowing Who Can Be Executed
Over the next three decades, the Court removed specific categories of people and crimes from eligibility, invoking what it called an “evolving standard of decency” under the Eighth Amendment.
Atkins v. Virginia (2002) held that executing people with intellectual disabilities is unconstitutional.15Justia U.S. Supreme Court Center. Atkins v. Virginia, 536 U.S. 304 (2002) Atkins left states to define the disability, and some adopted a rigid IQ cutoff of 70. The Court corrected that in Hall v. Florida (2014), ruling that a strict IQ threshold ignores the inherent margin of error in testing; when a defendant’s score falls within that margin, roughly 75 or below, courts must consider additional evidence of adaptive functioning.16Justia U.S. Supreme Court Center. Hall v. Florida, 572 U.S. 701 (2014)
Roper v. Simmons (2005) prohibited executing anyone who was under eighteen at the time of the crime.17Justia U.S. Supreme Court Center. Roper v. Simmons, 543 U.S. 551 (2005) Three years later, Kennedy v. Louisiana drew another line: the death penalty cannot be imposed for any crime against an individual that does not result in, and was not intended to result in, death. The case involved the rape of a child, and the Court held capital punishment for non-homicide offenses against individuals categorically unconstitutional.18Justia U.S. Supreme Court Center. Kennedy v. Louisiana, 554 U.S. 407 (2008)
The Court has been more permissive about methods. In Baze v. Rees (2008), it upheld the standard three-drug lethal injection protocol, holding that a method violates the Eighth Amendment only if it presents a “substantial risk of serious harm” and the state has refused to adopt a feasible, readily available alternative without a legitimate reason.19Justia U.S. Supreme Court Center. Baze v. Rees, 553 U.S. 35 (2008) The ruling acknowledged that some risk of pain is inherent in any execution, and it has governed lethal injection challenges since.
Race and Innocence
In McCleskey v. Kemp (1987), a death row inmate presented the Baldus study, which analyzed over two thousand Georgia murder cases from the 1970s. Defendants who killed white victims were far more likely to receive a death sentence than those who killed Black victims, and Black defendants who killed white victims faced the highest likelihood of all. The Court acknowledged the findings but ruled 5-4 that statistical evidence of systemic racial disparity, standing alone, was not enough to prove an Eighth Amendment violation; a defendant would need to show that decision-makers in their specific case acted with discriminatory purpose.20Justia U.S. Supreme Court Center. McCleskey v. Kemp, 481 U.S. 279 (1987) The ruling effectively closed the courthouse door to statistical challenges.
Innocence has proved harder to contain. As of early 2026, more than 200 people sentenced to death since 1972 have been formally exonerated, representing over two percent of all death sentences imposed in that period. The emergence of DNA testing in the 1990s accelerated exonerations and forced a broader reckoning with the reliability of capital convictions. Congress responded in 2004 with the Innocence Protection Act, part of the Justice for All Act, which created a federal right to post-conviction DNA testing for prisoners who can show that testing could produce new material evidence raising a reasonable probability of innocence.
The Federal Death Penalty
The federal government maintains its own capital punishment system alongside the states. Federal capital cases typically involve crimes on federal property, offenses that cross state lines, acts of terrorism, or killings connected to large-scale drug trafficking. The federal death row population has always been much smaller than the combined state total.
Federal cases drew national attention in 2020 and 2021, when the government carried out thirteen executions in six months after a seventeen-year hiatus. The incoming administration imposed a moratorium on federal executions in 2021, citing concerns that the lethal injection protocol risked causing unnecessary pain and suffering. That moratorium lasted until April 2026, when the Department of Justice formally rescinded it and announced it would resume seeking and carrying out lawful death sentences for federal prisoners who have exhausted their appeals.21United States Department of Justice. The Justice Department Takes Actions to Strengthen the Federal Death Penalty Clemency for federal death row inmates rests solely with the President, unlike the varied state systems where governors, pardon boards, or some combination hold that authority.
Where the Death Penalty Stands Now
By nearly every measure, the American death penalty is contracting. New death sentences peaked in 1986 at 348 per year and had fallen to 21 by 2022. Executions reached their modern peak in 1999 and have declined steadily since.22Bureau of Justice Statistics. Capital Punishment, 1999 At the start of 2025, roughly 2,100 people remained on death rows across the country, a population that has shrunk in most recent years as exonerations, commutations, and natural deaths outpace new sentences.
Several forces drive the decline. Capital litigation typically costs millions per case once trial and decades of appeals are counted, which has made the death penalty financially impractical for many jurisdictions. Life without parole gives prosecutors and juries a way to permanently incapacitate dangerous offenders without a capital trial. Governors in several states have used clemency to commute death sentences or impose execution moratoria, sometimes citing innocence or procedural concerns. And persistent difficulty obtaining lethal injection drugs has created logistical barriers some states have been unable or unwilling to overcome.
The global picture runs even more sharply toward abolition. When Amnesty International began tracking the issue in 1977, only 16 countries had abolished the death penalty. That number now exceeds 110. Whether the American decline continues, reverses, or stalls will depend on the same tension that has shaped capital punishment since Hammurabi: how far a society is willing to let the state go in the name of order.