States and Capital Punishment

8/11/2021

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Capital punishment is currently authorized in 27 states, by the federal government and the U.S. military. In recent years, New Mexico (2009), Illinois (2011), Connecticut (2012), Maryland (2013), New Hampshire (2019), Colorado (2020) and Virginia (2021) have legislatively abolished the death penalty, replacing it with a sentence of life imprisonment with no possibility for parole. The Nebraska Legislature also abolished capital punishment in 2015, but it was reinstated by a statewide vote in 2016. Additionally, courts in Washington and Delaware recently ruled that the states' capital punishment laws are unconstitutional. States across the country will continue to debate its fairness, reliability and cost of implementation.

Status of Capital Punishment in the States

Recent State Enactments

Since 2015, 25 states enacted 66 new laws addressing state systems of capital punishment. Trends include expanding or limiting aggravating factors, modifying execution methods and procedures, changing trial and appellate procedures, modifying laws to comply with litigation outcomes and repealing the practice all together. Search recent enactments by topic, state, year, and keyword with NCSL's Capital Punishment Enactment Database.

Methods of Execution

Lethal injection is currently the primary method of execution in 28 of the 29 states that authorize executions. Texas was the first state to use the method, in 1982.

In 2021, South Carolina became the first state to depart from using lethal injection as a primary execution method. It is the only state in which electrocution is primary, with firing squad and lethal injection, authorized by statute as secondary methods of execution.

In addition to South Carolina, 15 other states have a secondary method of execution authorized by statute. Laws in Alabama, Arkansas, Mississippi, New Hampshire, Oklahoma, Tennessee, Utah and Wyoming provide a secondary option if lethal injection is found to be unconstitutional and/or unavailable. Arizona*, Kentucky, Tennessee and Utah all have a choice of secondary methods for offenders who were sentenced before the introduction of lethal injection. And Alabama, California*, Florida, Missouri, Virginia and Washington have other methods that are available if the offender requests an alternative. Secondary methods of execution include electrocution, lethal gas, hanging, nitrogen hypoxia, and firing squad.

*See case law in each state to determine the constitutionality of secondary methods. For example, see La Grand v. Stewart, 173 F.3d 1144 (1999).

The purple states only have a single method: lethal injection. Blue states have secondary methods of execution. Click on those states to display details on secondary methods. The gray states do not have capital punishment.

Note that Colorado and New Hampshire prospectively abolished capital punishment. In Colorado, the governor commuted the sentences of those on death row, but defendants with pending cases at the time of abolition are still eligible for execution and the execution statute is still valid. In New Hampshire one individual remains on death row.

The purple states only have a single method: lethal injection and blue states have both a primary and a secondary method. Click on those states to display details on specific methods. The gray states do not have capital punishment.

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Significant Litigation

Over the past decade, several U.S. Supreme Court rulings have narrowed the death penalty’s application in the states. The court has abolished the death penalty for mentally disabled offenders (Atkins v. Virginia, 2002), juvenile offenders (Roper v. Simmons, 2005), and for those convicted of raping a child where death was not the intended or actual result (Kennedy v. Louisiana, 2008) – each ruling states that the execution of such individuals is unconstitutional, violating cruel and unusual punishment. In addition, the court has required that juries and not judges find facts that make a defendant eligible for capital punishment (Ring v. Arizona, 2002), and impose a sentence of death (Hurst v. Florida, 2016).

State courts have also had an impact. The Delaware Supreme Court issued a decision on August 2, 2016 striking down the state’s death penalty statute, ruling that it violated the Sixth Amendment as interpreted by the U.S. Supreme Court decision Hurst v. Florida. The Delaware attorney general announced that he will not appeal the decision of the state court and legislation would be required to reinstate capital punishment in the state. The Washington Supreme Court also recently struck down the state's death penalty on October 11, 2018. This was the fourth time the court has ruled the state's capital punishment law unconstitutional, calling it "invalid because it is imposed in an arbitrary and racially biased manner."

The Washington Supreme court issued a decision on October 11, 2018 striking down the state’s death penalty statute as applied. This decision was the fourth time the Washington Supreme Court has ruled the state’s capital punishment law unconstitutional. The court wrote that the “death penalty is invalid because it is imposed in an arbitrary and racially biased manner,” and found that the law as applied violates Article I, Section 14 of the state constitution because it fails to serve any legitimate penological goal.

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