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The State of the Death Penalty in the United States

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The Death Penalty in the United States

Capital punishment in the United States is an ever-evolving issue. Early in our country’s history, the death penalty was applied to seemingly trivial offenses like trading with Native Americans and horse theft. On the other hand, many states today have completely abolished the death penalty. These two extremes illustrate the ambivalent relationship the US legal system has with the death penalty.

This presentation will briefly explore the most crucial aspects of the death penalty in the United States and discuss when the death penalty applies and where it’s imposed, the evolution of views on the death penalty, when the death penalty may not be applied and an overview of the modern methods of execution.

Some crimes are considered so heinous that the state can impose the death penalty on the perpetrator convicted of that crime. These crimes are called “capital crimes.” The punishment for a capital crime is death, which is imposed and carried out by the state. Capital crimes are usually versions of murder. However, other possible capital crimes include espionage, treason, trafficking large quantities of drugs[1] and aggravated kidnapping.[2] Finally, certain classes of offenders, such as minors, may never have the death penalty imposed on them no matter how heinous the crime.

Currently, 31 states[3], the federal government, and the military can, by their own laws, impose the death penalty. In addition, four states have the death penalty on the books but have governors who have declared a moratorium on capital punishment.[4] It should be noted that even when people are sentenced to death, a majority of cases result in the death sentences being overturned on appeal, either through a change in sentence (usually to life in prison) or overturning the conviction.[5]

The Evolution of the Modern Death Penalty in the United States

For most of the history of the United States, the Supreme Court did not weigh in on the constitutionality of the death penalty. Instead, the Court left the issue to the states. In 1972, however, the Court issued a landmark decision on the death penalty that marks the beginning of modern death penalty law.

In Furman v. Georgia,[6] the Court held the death penalty was then being applied arbitrarily and inconsistently and thus amounted to cruel and unusual punishment, which is disallowed under the Eighth Amendment of the United States Constitution. The Court found that racial bias had been playing a substantial role in the imposition of the death penalty and held that such a sentencing structure failed to meet “prevailing standards of civilized conduct.”[7]

The decision imposed a de facto moratorium on the death penalty in all jurisdictions. Many states rushed to revise their death penalty statutes to comply with the dictates of Furman. Four years later, those new death penalty statutes were put to the test in Gregg v. Georgia.[8]

In Gregg, the defendant was convicted of two counts of armed robbery and two counts of murder. After finding that two aggravating circumstances existed, a jury sentenced Gregg to death under Georgia’s new capital punishment statute. In Gregg, the Court held that death penalty statutes could be constitutional if they did not suffer the defects that prompted the Court to stop executions in Furman.

The Court’s primary concern in Furman was that since juries had insufficient guidance, they could impose the death penalty arbitrarily and inconsistently. However, the new Georgia death penalty statute required that the jury find a statutorily approved aggravating factor. Since the jury’s ability to impose the death penalty was curtailed by the legislature, the death penalty could not be imposed in an arbitrary and inconsistent manner.[9]

Where Death Penalty Is Not Allowed

            Since Furman and Gregg, most death penalty decisions have focused on whether applicable statutes have met the requirements under Gregg. These decisions have established that the death penalty is inappropriate in some cases. For example, the death penalty is NOT a permitted punishment where:

-          The defendant was convicted of a non-fatal assault,

-          There was no intent to kill,

-          Minor defendants, and

-          Mentally disabled defendants.

Non-fatal Assaults

In 1977, the Supreme Court ruled that non-fatal rape was not a capital crime. [10] In Coker v. Georgia, the defendant, an escaped felon, had raped a woman during the commission of an armed robbery. He was sentenced to death for the non-fatal rape. The Court stated that the death penalty was grossly disproportionate and excessive punishment where the defendant did “not unjustifiably take human life.”

For thirty years, Coker was applied only to cases where the victim was an adult. Some states still classified child rape as a capital offense. However, in 2008, the Supreme Court ruled that these laws were unconstitutional. The death penalty cannot be imposed for a non-fatal assault, regardless of the victim’s age.[11] In that case, Kennedy v. Louisiana, the Court ruled that the death penalty could be imposed only for an intent-to-kill murder.

Intent to Kill

            Intent to kill is not always necessary for a murder conviction. For example, murder may apply where death resulted from conduct that evinces a depraved indifference to human life or when a death occurs during the course or continuance of the commission of a felony.[12] However, the death penalty can only be imposed where there is an intent to kill. Capital murder requires specific intent to cause death.[13]

Minor Defendant

In 2005, the Supreme Court made the death penalty unconstitutional for someone who committed the crime before the age of 18.[14]  In setting aside the death sentence of a 17 year-old murderer, the Court reasoned that children under the age of 18:

-          have underdeveloped senses of maturity,

-          are more susceptible to negative external pressures, and

-          do not have a character that is “as well formed as that of an adult.”

Mentally Disabled Defendant

In 2002, although Daryl Atkins had abducted, robbed and murdered his victim, the Supreme Court prevented his execution because he was evaluated and determined to be mentally impaired by an expert evaluator. [15]  The Court reasoned that mentally impaired defendants are not as culpable as typical defendants. Additionally, the death penalty’s effectiveness in deterring potential murderers is reduced when the criminal is mentally impaired. The Court left the determination of what constitutes mental impairment to the states. Until 2014, many states used a standard IQ test to determine mental capacity. In 2014, the Court held that IQ alone was not enough and required courts to consider other factors.[16] As of 2017, many states are still in the process of determining factors to determine a defendant’s competency.[17]

Methods of Execution

Methods of execution vary state-by-state and depend on states’ histories and court decisions. Still, lethal injection is, far and away, the primary method of execution in the United States.

Since 1982, 32 states, the federal government, and the military have adopted lethal injection as their primary method of execution. From 1982 to 1992, authorities developed a three-drug protocol of sodium thiopental, pancuronium bromide, and potassium chloride to cause death. Beginning in 2009, that protocol began to change. Presently, eight states use a one-drug protocol, an overdose of an anesthetic, and the other entities continue to use multiple drug protocols. [18]

Other Methods

Some states have secondary methods of execution, which permit them to execute criminals in other manners. States have secondary methods of execution available for two reasons. First, some states allow the convicted person the choice of how to be executed. Second, some states want to be prepared in case lethal injection is found to be unconstitutional or the necessary drugs become unavailable.

The secondary method of execution varies from state to state. For example, upon the choice of the condemned, Alabama allows execution by electrocution, Arizona by gas chamber, Delaware by hanging, and Mississippi by firing squad.

Most states and the federal government still employ the death penalty. However, they can only do so within a limited set of circumstances. The Supreme Court’s approach to death penalty cases has cause a trend away from capital punishment. Our nation’s views on the death penalty are constantly evolving. These viewpoint changes will undoubtedly impact death penalty laws in the future.


[1] 18 U.S.C. 3591(b)

[2] Ex. Colorado: C.R.S. 18-3-301.

[3] The 19 states that do not have the death penalty are: Alaska, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. Also the District of Columbia.

[4] Colorado, Oregon, Pennsylvania, Oregon.

[5] Washington Post, March 17, 2015.

[6] Furman v. Georgia, 408 U.S. 238 (1972).

[7] State v. Gardner, 947 P.2d 630, 646 (1997).

[8] Gregg v. Georgia, 428 U.S. 153 (1976).

[9] Id. at 206-07.

[10] Coker v. Georgia, 433 U.S. 584 (1977).

[11] Kennedy v. Louisiana, 554 U.S. 407 (2008).

[12] See, e.g., N.Y. Pen. Law § 125.25

[13] See Kennedy v. Louisiana, 554 U.S. 407 (2008).

[14] Roper v. Simmons, 543 U.S. 551 (2005).

[15] Atkins v. Virginia, 536 U.S. 304 (2002).

[16] 134 S. Ct. 1986 (2014).

[17] Moore v. Texas, 137 S. Ct. 1039 (2017).