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In the United States, capital punishment is a legal penalty throughout the country at the federal level, in 27 states, and in American Samoa.[b][1] It is also a legal penalty for some military offenses. Capital punishment has been abolished in 23 states and in the federal capital, Washington, D.C.[2] It is usually applied for only the most serious crimes, such as aggravated murder. Although it is a legal penalty in 27 states, 20 states currently have the ability to execute death sentences, with the other seven, as well as the federal government, being subject to different types of moratoriums.
The United States is one of four advanced democracies, along with Japan, Singapore, and Taiwan, and one of 54 countries worldwide where the death penalty is applied regularly.[3][4][5][6][7][8]
The existence of capital punishment in the United States can be traced to early colonial Virginia.[9] 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 at the time.[10] 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 8,700 defendants have been sentenced to death;[11] of these, more than 1,550 have been executed.[12][13] At least 190 people who were sentenced to death since 1972 have since been exonerated, about 2.2% or one in 46.[14][15] As of April 13, 2022, about 2,400 to 2,500 convicts are still on death row.[16]
The Trump administration's Department of Justice announced its plans to resume executions for federal crimes in 2019. On July 14, 2020, Daniel Lewis Lee became the first inmate executed by the federal government since 2003.[17] Thirteen federal death row inmates have been executed since federal executions resumed in July 2020, all under Trump. The last and most recent federal execution was of Dustin Higgs, who was executed on January 16, 2021.[18] On July 1, 2021, Attorney General Merrick Garland announced that a moratorium on the federal death penalty was being reinstated.[19]
As of March 2024[update], there were 42 inmates on federal death row.[20]
History
Pre-Furman history
The first recorded death sentence in the British North American colonies was carried out in 1608 on Captain George Kendall,[21] who was executed by firing squad[22] at the Jamestown colony for spying on behalf of the Spanish government.[23] 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.[24]
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.[25] The Fourteenth Amendment adopted in 1868 also requires a due process of law for deprivation of life by any states.
The Espy file,[26] compiled by M. Watt Espy and John Ortiz Smykla, lists 15,269 people executed in the United States and its predecessor colonies between 1608 and 1991. From 1930 to 2002, there were 4,661 executions in the United States; about two-thirds of them in the first 20 years.[27] Additionally, the United States Army executed 135 soldiers between 1916 and 1961 (the most recent).[28][29][30]
Early abolition movement
 | This section needs additional citations for verification. (October 2021) |
Three states abolished the death penalty for murder during the 19th century: Michigan (which has never executed a prisoner and is the first government in the English-speaking world to abolish capital punishment)[31] 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 Gregg v. Georgia include Minnesota in 1911, Vermont in 1964, Iowa and West Virginia in 1965, and North Dakota in 1973. Hawaii abolished the death penalty in 1948 and Alaska in 1957, both before their statehood. Puerto Rico repealed it in 1929 and the District of Columbia in 1981. 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; Arizona reinstated the death penalty in 1918 and Oregon in 1978. In Oregon, the measure reinstating the death penalty was overturned by the Oregon Supreme Court in 1981, but Oregon voters again reinstated the death penalty in 1984.[32] Puerto Rico and Michigan are the only two U.S. jurisdictions to have explicitly prohibited capital punishment in their constitutions: in 1952 and 1964, respectively.
Constitutional law developments
Capital punishment was used by 6 of 50 states in 2022. They were Alabama, Arizona, Mississippi, Missouri, Oklahoma and Texas.[33] Government executions, as reported by Amnesty International, took place in 20 of the world's 195 countries. The Federal government of the United States, which had not executed a prisoner since 2003, did so in 2020, in an effort led by President Donald Trump and Attorney General William Barr.
Executions for various crimes, especially murder and rape, occurred from the creation of the United States up to the beginning of the 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.[34]
The possibility of challenging the constitutionality of the death penalty became progressively more realistic after the Supreme Court of the United States decided on 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. Also 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, 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 Supreme Court has never ruled the death penalty to be per se unconstitutional. 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. Stewart and William O. Douglas worried explicitly about racial discrimination in enforcement of the death penalty. 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. This decision was reached by the suspicion that many states, particularly in the South, were using capital punishment as a form of legal lynching of African-American males, inasmuch as almost all executions for non-homicidal rape in the Southern states involved a black perpetrator, and this suspicion was fueled by cases such as the Martinsville Seven, when seven African-American men were executed by Virginia in 1951 for the gang rape of a white woman.
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".[10] The next day, columnist Barry Schweid wrote that it was "unlikely" that the death penalty could exist anymore in the United States.[35]
Capital punishment reinstated (1976)
Instead of abandoning capital punishment, 37 states enacted new death penalty statutes that attempted to address the concerns of White and Stewart in Furman. Some states responded by enacting mandatory death penalty statutes which prescribed a sentence of death for anyone convicted of certain forms of murder. White had hinted that such a scheme would meet his constitutional concerns in his Furman opinion. Other states adopted "bifurcated" trial and sentencing procedures, with various procedural limitations on the jury's ability to pronounce a death sentence designed to limit juror discretion.
On July 2, 1976, the U.S. Supreme Court decided Gregg v. Georgia[36] and upheld 7–2 a Georgia procedure in which the trial of capital crimes was bifurcated into guilt-innocence and sentencing phases. At the first proceeding, the jury decides the defendant's guilt; if the defendant is innocent or otherwise not convicted of first-degree murder, the death penalty will not be imposed. At the second hearing, the jury determines whether certain statutory aggravating factors exist, whether any mitigating factors exist, and, in many jurisdictions, weigh the aggravating and mitigating factors in assessing the ultimate penalty – either death or life in prison, either with or without parole. The same day, in Woodson v. North Carolina[37] and Roberts v. Louisiana,[38] the court struck down 5–4 statutes providing a mandatory death sentence.
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 (who had waived all of his appeal rights) were executed prior to 1984.
Following the decision, the use of capital punishment in the United States soared.[39] This was in contrast to trends in other parts of advanced industrial democracies where the use of capital punishment declined or was prohibited.[39] Members of the Council of Europe comply with the European Convention of Human Rights which prohibits capital punishment. The last execution in the UK took place in 1964,[40] and in 1977 in France.
Supreme Court narrows capital offenses
In 1977, the Supreme Court's Coker v. Georgia decision barred the death penalty for rape of an adult woman. Previously, the death penalty for rape of an adult had been gradually phased out in the United States, and at the time of the decision, Georgia and the Federal government were the only two jurisdictions to still retain the death penalty for this offense.
In the 1980 case Godfrey v. Georgia, the U.S. Supreme Court ruled that murder can be punished by death only if it involves a narrow and precise aggravating factor.[41]
The U.S. Supreme Court has placed two major restrictions on the use of the death penalty. First, the case of Atkins v. Virginia, decided on June 20, 2002,[42] held that the execution of intellectually disabled inmates is unconstitutional. Second, in 2005, the court's decision in Roper v. Simmons[43] struck down executions for offenders under the age of 18 at the time of the crime.
In the 2008 case Kennedy v. Louisiana, the court also held 5–4 that the death penalty is unconstitutional when applied to non-homicidal crimes against the person, including child rape. Only two death row inmates (both in Louisiana) were affected by the decision.[44] Nevertheless, the ruling came less than five months before the 2008 presidential election and was criticized by both major party candidates Barack Obama and John McCain.[45]
Repeal movements and legal challenges
In 2004, New York's and Kansas' capital sentencing schemes were struck down by their respective states' highest courts. Kansas successfully appealed the Kansas Supreme Court decision to the United States Supreme Court, which reinstated the statute in Kansas v. Marsh (2006), holding it did not violate the U.S. Constitution. The decision of the New York Court of Appeals was based on the state constitution, making unavailable any appeal. The state lower house has since blocked all attempts to reinstate the death penalty by adopting a valid sentencing scheme.[46] In 2016, Delaware's death penalty statute was also struck down by its state supreme court.[47]
In 2007, New Jersey became the first state to repeal the death penalty by legislative vote since Gregg v. Georgia,[48] followed by New Mexico in 2009,[49][50] Illinois in 2011,[51] Connecticut in 2012,[52][53] and Maryland in 2013.[54] The repeals were not retroactive, but in New Jersey, Illinois and Maryland, governors commuted all death sentences after enacting the new law.[55] In Connecticut, the Connecticut Supreme Court ruled in 2015 that the repeal must be retroactive. In New Mexico, capital punishment for certain offenses is still possible for National Guard members in Title 32 status under the state's Code of Military Justice (NMSA 20–12), and for capital offenses committed prior to the repeal of the state's death penalty statute.[56][57]
Nebraska's legislature also passed a repeal in 2015, but a referendum campaign gathered enough signatures to suspend it. Capital punishment was reinstated by popular vote on November 8, 2016. The same day, California's electorate defeated a proposal to repeal the death penalty, and adopted another initiative to speed up its appeal process.[58]
On October 11, 2018, Washington state became the 20th state to abolish capital punishment when its state Supreme Court deemed the death penalty unconstitutional on the grounds of racial bias.[59] The state later abolished it through legislation passed in 2023.[60]
New Hampshire became the 21st state to abolish capital punishment on May 30, 2019, when its state senate overrode Governor Sununu's veto by a vote of 16–8.[61]
Colorado became the 22nd state to abolish capital punishment when governor Jared Polis signed a repeal bill on March 23, 2020, and commuted all existing death sentences in the state to life without parole.[62]
Virginia became the 23rd state to abolish capital punishment, and the first Southern state to do so when governor Ralph Northam signed a repeal bill on March 24, 2021, and commuted all existing death sentences in the state to life without parole.[63][64]
Since Furman, 11 states have organized popular votes dealing with the death penalty through the initiative and referendum process. All resulted in a vote for reinstating it, rejecting its abolition, expanding its application field, specifying in the state constitution that it is not unconstitutional, or expediting the appeal process in capital cases.[32]
The advocacy group Conservatives Concerned About the Death Penalty is creating a national network of Republican and Libertarian legislators at the state level to introduce bills aimed at abolishing or limiting the death penalty. The issue is framed along the values of pro-life, limited government, and fiscal responsibility.[65]
States that have abolished the death penalty
A total of 23 states, plus the District of Columbia and Puerto Rico have abolished the death penalty for all crimes. Below is a table of the states and the date that the state abolished the death penalty.[66][67][68][69][70][71][72][73] Michigan became the first English-speaking territory in the world to abolish capital punishment in 1847. Although treason remained a crime punishable by the death penalty in Michigan despite the 1847 abolition, no one was ever executed under that law, and Michigan's 1962 Constitutional Convention codified that the death penalty was fully abolished.[74] Vermont has abolished the death penalty for all crimes, but has an invalid death penalty statue for treason.[75] When it abolished the death penalty in 2019, New Hampshire explicitly did not commute the death sentence of the sole person remaining on the state's death row.[76][77]