State of the Facts
The US is one of the few countries where the death penalty is legal as a criminal punishment, but the number of states prohibiting the death penalty has grown. Six states outlawed capital punishment between 2010 to 2021. Other states stopped performing executions due to a governor’s order or a state Supreme Court ruling. The number of executions is also falling nationwide: after reaching a peak of 98 in 1999, executions declined in 16 of the following 22 years.
A set of Supreme Court cases from the 1970s determined the legality of American capital punishment. The 1972 Furman v. Georgia Supreme Court ruling effectively banned the death penalty by saying the methods used were a violation of the Eighth Amendment’s ban on cruel and unusual punishment.
The court’s decision led to procedural reforms for states and new Supreme Court rulings. In 1976, the court ruled that Georgia, Texas, and Florida had made suitable revisions to the death penalty, so it was no longer a cruel and unusual punishment. State-level executions resumed in 1977, while the federal government did not reestablish the death penalty until 1988.
As of 2022, the death penalty is legal in 30 states. Twenty states and Washington, DC ban the death penalty. Three states where executions are legal have a moratorium: California, Oregon, and Pennsylvania. As of 2022, there is also a moratorium on federal executions. Four other states can legally use the death penalty but have no prisoners on death row as of at least 2020; three of these converted all remaining death row inmates’ sentences to life sentences because of state supreme court rulings.
In 2021, Virginia became the first Southern state to ban capital punishment.
In total, the federal government and 26 states had prisoners on death row at the end of 2020.
States use the death penalty more often than the federal government.
The Bureau of Justice Statistics reports that the federal government had 51 prisoners with death sentences in December 2020, executing 16 prisoners from 1977 to 2021: two in 2001, one in 2003, 10 in 2020, and three in 2021.
In contrast, states had 2,418 prisoners on death row at the end of 2020. Thirty-four states had 1,524 executions between 1977 and 2021.
Texas accounted for 38% of all executions from 1977 to 2021. Texas had three people executed in 2021, more than any other state and matching the number of executions by the federal government that year. There were 206 people on death row in Texas at the end of 2020.
California had 703 people on death row in 2020, more than any other state. However, it has executed 13 people since 1977. Its last execution was in 2006. California Gov. Gavin Newsom put a moratorium on capital punishment in March 2019.
Lethal injection is the most common method of execution in the US; it is approved in all 30 states where capital punishment is legal. Electrocution is the second most common method, approved in eight states. Some states allow other methods, such as hanging or firing squad.
Until recently, only lethal injection was approved for federal executions. The Justice Department updated its guidelines in 2020 to allow federal executions by any method approved in the state in which the execution takes place. However, no federal executions have taken place by any method other than lethal injection since the rule change.
Complications from lethal injections have stopped some states from using capital punishment. In 2015, Oklahoma stopped executing death row inmates after problems with an execution where the inmate took 43 minutes to die and verbally expressed pain during the process. An autopsy as part of a state grand jury investigation revealed the state was using potassium acetate instead of the state-approved potassium chloride for lethal injections. The state resumed executions in 2021 using the approved chemical.
Arizona halted executions in 2014 after a lethal injection execution took 15 doses and almost two hours to complete.
Some pharmaceutical companies have prohibited using their drugs for executions, making it more difficult for states to get the medications needed to use lethal injection for executions.
Death row prisoners are more likely to be Black compared to the total US population. In 2020, 41% of all death row inmates were Black compared to 13% of the nation. Black Americans are the only race category with a disproportionate number of death row inmates compared to the overall US population.
Hispanic ethnicity data was not reported for death row inmates in 2020.
Executed inmates are also more likely than the overall US population to be Black and not Hispanic. Demographic data on executed inmates includes Hispanic ethnicity but does not report it by racial group, so it’s not possible to make direct comparisons to death row race data.
There are also differences in educational attainment between the death row population and the total US population. About 47% of death row inmates in 2020 had completed 11th grade or less, compared to about 10% of the nation’s population.
In 2020, 98% of death row prisoners were male.
Not all death row prisoners are executed. Some inmates have their sentence commuted to a life sentence or have their conviction or sentence overturned by courts. Others sometimes die before their execution.
About 18% of those sentenced to death since 1977 were executed. Twenty-nine percent remained on death row at the end of 2020, while 53% left death row in some other way, such as dying before execution or by having a conviction overturned.
In 2020, 108 inmates left death row. About 16% were executed. Forty-two died before execution. About 42% had their conviction or sentence overturned.
The average number of years a prisoner spends on death row is increasing. From 1977 to 2021, the average time from sentence to execution was 12 years. That increased to 17 years from 2010 to 2019.
The average 2020 death row inmate had been on death row for 19 years.
Murder can be a capital offense in every state where the death penalty is legal. Other crimes punishable by death vary by state. Twenty-nine out of 30 states allow for the death penalty for crimes only if there were aggravating factors such as previous violent felony convictions or whether someone died during a criminal act.
There are 41 federal capital offenses, 31 of which are specific types of murder. Three crimes that are capital offenses solely on the federal level are espionage, genocide, and civil rights offenses resulting in death.
About 68% of all death row inmates in 2020 had a prior felony conviction. Ten percent were previously convicted of homicide. Four in 10 were in the criminal justice system at the time of their capital offense; 6% were incarcerated or had escaped from incarceration, 27% were on probation or parole, and 8% had charges pending against them.
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