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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

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.[30] The Fourteenth Amendment adopted in 1868 also requires a due process of law for deprivation of life by any states.

The Espy file,[31] 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 U.S., about two-thirds of them in the first 20 years.[32] Additionally, the United States Army executed 135 soldiers between 1916 and 1955 (the most recent).[33][34][35]

Three states abolished the death penalty for murder during the 19th century: Michigan (which has never executed a prisoner since achieving statehood) 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 Rhode Island is also a state with a long abolitionist background, having repealed the death penalty in 1852, though it was theoretically available for murder committed by a prisoner between 1872 and 1984.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

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.[36] 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.

Capital punishment was used by only 5 of 50 states in 2020. They were Alabama, Georgia, Missouri, Tennessee and Texas. Government executions, reported Amnesty International, took place in only 20 of the world's 195 countries. The federal government though which had not executed for 16 years did so in 2020, pushed by Donald Trump and his nominee 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.[37]

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 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 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.

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

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.

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".[15] The next day, columnist Barry Schweid wrote that it was "unlikely" that the death penalty could exist anymore in the United States.[38]

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[39] 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[40] and Roberts v. Louisiana,[41] 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 Gregg v. Georgia[39] 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[40] and Roberts v. Louisiana,[41] 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 actually executed prior to 1984.

Following the decision, the use of capital punishment in the United States soared.[42] This was in contrast to trends in other parts of advanced industrial democracies where the use of capital punishment declined or was prohibited.[42]

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 U.S. 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.[43]

T

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.[43]

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,[44] held that the execution of intellectually disabled inmates is unconstitutional. Second, in 2005, the court's decision in Roper v. Simmons[45] 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.[46] 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.[47]

In 2004, New York 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, who 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.[48] In 2016, Delaware's death penalty statute was also struck down by its state supreme court.[49]

In 2007, New Jersey became the first state to repeal the death penalty by legislative vote since Gregg v. Georgia,[50] followed by New Mexico in 2009,[51]

In 2007, New Jersey became the first state to repeal the death penalty by legislative vote since Gregg v. Georgia,[50] followed by New Mexico in 2009,[51][52] Illinois in 2011,[53] Connecticut in 2012,[54][55] and Maryland in 2013.[56] The repeals were not retroactive, but in New Jersey, Illinois and Maryland, governors commuted all death sentences after enacting the new law.[57] In Connecticut, the Connecticut Supreme Court ruled in 2015 that the repeal must be retroactive. New Mexico is the only state with remaining death row inmates and no civilian death penalty statute for capital crimes committed post-repeal. Capital punishment for certain offenses is still possible for National Guard members in Title 32 status under the New Mexico Code of Military Justice (NMSA 20-12), and for capital offenses committed prior to the repeal of New Mexico's death penalty statute.[58][59]

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.[60]

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.[61]

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.[62]

Colorado became the 22nd state to abolish capital punishment when governor Jared Polis signed a repeal bill on 23 March 2020 and commuted all existing death sentences in the state to life without parole.[63]

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.[36]

A total of 21 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.[64][65][66][67][68][69][70][71] 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.[72] Additionally, Vermont has abolished the death penalty for all crimes except treason.[73] Two states denoted with a dagger abolished the death penalty for new crimes but still have people remaining on death row for previous crimes.

From 1976 to 9 November 2020, there were 1,526 executions, of which 1,346 were by lethal injection, 163 by electrocution, 11 by gas inhalation, 3 by hanging, and 3 by firing squad.[74] The South had the great majority of these executions, with 1,245; there were 189 in the Midwest, 86 in the West, and only 4 in the Northeast. No state in the Northeast has conducted an execution since Connecticut, now abolitionist, in 2005. The state of Texas alone conducted 569 executions, over 1/3 of the total; the states of Texas, Virginia, and Oklahoma combined make up over half the total, with 794 executions between them.[75] 8 executions have been conducted by the federal government. Executions increased in frequency until 1999; 98 prisoners were executed that year. Since 1999, the number of executions has greatly decreased, and the 20 executions in 2016 were the fewest since 1991. There has been a small increase since 2016, with 22 executions in 2019.[17]

The death penalty became an issue during the 1988 presidential election. It came up in the October 13, 1988, debate between the two presidential nominees George H. W. Bush and Michael Dukakis, when Bernard Shaw, the moderator of the debate, asked Dukakis, "Governor, if Kitty Dukakis [his wife] were raped and murdered, would you favor an irrevocable death penalty for the killer?" Dukakis replied, "No, I don't, and I think you know that I've opposed the death penalty during all of my life. I don't see any evidence that it's a deterrent, and I think there are better and more effective ways to deal with violent crime." Bush was elected, and many, including Dukakis himself, cite the statement as the beginning of the end of his campaign.[76]

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act to streamline the appeal process in capital cases. The bill was signed into law by President Bill Clinton, who had endorsed capital punishment during his 1992 presidential campaign.

A study found that at least 34 of the 749 executions carried out in the U.S. between 1977 and 2001, or 4.5%, involved "unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner". The rate of these "botched executions" remained steady over the period.[77] A study published in The Lancet in 2005 found that in 43% of cases of lethal injection, the blood level of hypnotics in the prisoner was insufficient to ensure unconsciousness.[78] Nonetheless, the Supreme Court ruled in 2008 (Baze v. Rees), again in 2015 (Glossip v. Gross), and a third time in 2019 (Bucklew v. Precythe), that lethal injection does not constitute cruel and unusual punishment.[79][80]

On July 25, 2019, Attorney General William Barr ordered the resumption of federal executions after a 16-year hiatus, and set five execution dates for December 2019 and January 2020.[81][82][83][84] After the Supreme Court upheld a stay on these executions,[85] the stay was lifted in June 2020 and four executions were rescheduled for July and August 2020.[86] The federal government executed Daniel Lewis Lee on July 14, 2020. He became the first convict executed by the federal government since 2003.[23]

1988 presidential election. It came up in the October 13, 1988, debate between the two presidential nominees George H. W. Bush and Michael Dukakis, when Bernard Shaw, the moderator of the debate, asked Dukakis, "Governor, if Kitty Dukakis [his wife] were raped and murdered, would you favor an irrevocable death penalty for the killer?" Dukakis replied, "No, I don't, and I think you know that I've opposed the death penalty during all of my life. I don't see any evidence that it's a deterrent, and I think there are better and more effective ways to deal with violent crime." Bush was elected, and many, including Dukakis himself, cite the statement as the beginning of the end of his campaign.[76]

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act to streamline the appeal process in capital cases. The bill was signed into law by President Bill Clinton, who had endorsed capital punishment during his 1992 presidential campaign.

A study found that at least 34 of the 749 executions carried out in the U.S. between 1977 and 2001, or 4.5%, involved "unanticipated problems or delays that caused, at least arguably, unnecessary agony for the prisoner or that reflect gross incompetence of the executioner". The rate of these "botched executions" remained steady over the period.[77] A study published in The Lancet in 2005 found that in 43% of cases of lethal injection, the blood level of hypnotics in the prisoner was insufficient to ensure unconsciousness.[78] Nonetheless, the Supreme Court ruled in 2008 (Baze v. Rees), again in 2015 (Glossip v. Gross), and a third time in 2019 (Bucklew v. Precythe), that lethal injection does not constitute cruel and unusual punishment.[79][80]

On July 25, 2019, Attorney General William Barr ordered the resumption of federal executions after a 16-year hiatus, and set five execution dates for December 2019 and January 2020.[81][82][83][84] After the Supreme Court upheld a stay on these executions,[85] the stay was lifted in June 2020 and four executions were rescheduled for July and August 2020.[86] The federal government executed Daniel Lewis Lee on July 14, 2020. He became the first convict executed by the federal government since 2003.[23]

In 1632, 24 years after the first recorded male execution in the colonies, Jane Champion became the first woman known to have been lawfully executed. She was sentenced to death by hanging after she was convicted of infanticide; around two-thirds of women executed in the 17th and early 18th centuries were convicted of child murder. A married woman, it is not known whether Champion's illicit lover, William Gallopin, also convicted of their child's murder, was also executed, although it appears he was so sentenced.[87][88] For the Puritans, infanticide was the worst form of murder.[89]

Women accounted for just one fifth of all executions between 1632 and 1759, in the colonial United States. Women were more likely to be acquitted, and the relatively low number of executions of women may have been impacted by the scarcity of female laborers. Slavery was not yet widespread in the 17th century mainland and planters relied mostly on Irish indentured servants, which is dif

Women accounted for just one fifth of all executions between 1632 and 1759, in the colonial United States. Women were more likely to be acquitted, and the relatively low number of executions of women may have been impacted by the scarcity of female laborers. Slavery was not yet widespread in the 17th century mainland and planters relied mostly on Irish indentured servants, which is different than the hereditary chattel slavery experience of Africans. To maintain subsistence levels in those days everyone had to do farm work, including women. These needs were met by unmarried Irish women who arrived in the early colonies as indentured servants after they were forced to leave Ireland as a result of rising rents, crop failures and disruption in the linen industry. Many were transported as part of what some call the "white slave trade", and were often poor women, prostitutes, or criminals who were brought to the United States against their will.[90]

The second half of the 17th century saw the executions of 14 women and 6 men who were accused of witchcraft during the witch hunt hysteria and the Salem Witch Trials. While both men and women were executed, 80% of the accusations were towards women, so the list of executions disproportionately affected men by a margin of 6 (actual) to 4 (expected), i.e. 50% more men were executed than expected from the percentage of accused who were men.[91]

Other notable female executions include Mary Surratt, Margie Velma Barfield and Wanda Jean Allen. Mary Surratt was executed by hanging in 1865 after being convicted of co-conspiring to assassinate Abraham Lincoln.[92] Margie Velma Barfield was convicted of murder and when she was executed by lethal injection in 1984, she became the first woman to be executed since the ban on capital punishment was lifted in 1976.[93] Wanda Jean Allen was convicted of murder in 1989 and had a high-profile execution by lethal injection in January 2001. She was the first black woman to be executed in the US since 1954.[94] Allen's lawyers did not deny her guilt, but claimed that prosecutors capitalized on her low IQ, race and homosexuality in their representations of her as a murderer at trial. The tactic did not work.[95]

The federal government executes women infrequently. Ethel Rosenberg was executed for espionage on June 19, 1953, and Bonnie Brown Heady was executed for kidnapping and murder later that same year on December 18. Since Heady's execution, the federal government has not executed a woman. However, the execution of Lisa Montgomery, convicted of killing a pregnant woman and cutting out and kidnapping her baby, has been scheduled for December 8, 2020.[96]

In 1642, the first ever juvenile, Thomas Graunger, was sentenced to death in Plymouth Colony, Massachusetts, for bestiality. Since then, 361 other juveniles have been sentenced to the death penalty. Kent v. United States (1966), turned the tides for juvenile capital punishment sentencing when it limited the waiver discretion juvenile courts had. Before this case, juvenile courts had the freedom to waiver juvenile cases to criminal courts without a hearing, which did not make the waiving process consistent across states. Thoughts about abolishing the death penalty started happening between 1983 and 1986. In 1987, Thompson v. Oklahoma, the Supreme Court threw away Thompson's death sentence due to it being cruel and unusual punishment.[97]

It was not until Roper v. Simmons that the juvenile death penalty was abolished due to the United States Supreme Court finding that the execution of juveniles is in conflict with the Roper v. Simmons that the juvenile death penalty was abolished due to the United States Supreme Court finding that the execution of juveniles is in conflict with the Eighth Amendment and Fourteenth Amendment, which deal with cruel and unusual punishment. Prior to abolishing the juvenile death penalty in 2005, any juvenile aged 16 years or older could be sentenced to death in some states, the last of whom was Scott Hain, executed in Oklahoma in 2003 for burning two people to death in a robbery at age 17.[98] Since 2005, there have been no executions nor discussion of executing juveniles in the United States.

Aggravating factors for seeking capital punishment of murder vary greatly among death penalty states. California has twenty-two.[99] Some aggravating circumstances are nearly universal, such as robbery-murder, murder involving rape of the victim, and murder of an on-duty police officer.[100]

Several states have included child murder to their list of aggravating factors, but the victim's age under which the murder is punishable by death varies. In 2011, Texas raised this age from six to ten.[101]

In some states, the high number of aggravating factors has been criticized on account of giving prosecutors too much discretion in choosing cases where they believe capital punishment is warranted. In California especially, an official commission proposed, in 2008, to reduce these factors to five (multiple murders, torture murder, murder of a police officer, murder committed in jail, and murder related to another felony).[102] Columnist Charles Lane went further, and proposed that murder related to a felony other than rape should no longer be a capital crime when there is only one victim killed.[103]

Aggravating factors in federal court

In order for a person to be eligible for a death sentence when convicted of aggravated first-degree murder, the jury or court (when there is not a jury) must determine at least one of sixteen aggravating factors that existed during the crime's commission. The following is a list of the 16 aggravating factors under federal law.[104]

  1. Murder while committing another felony.[105]
  2. Offender was convicted of a separate felony involving a firearm prior to the aggravated murder.
  3. Being convicted of a separate felony where death or life imprisonment was authorized prior to the aggravated murder.
  4. Bei

    Several states have included child murder to their list of aggravating factors, but the victim's age under which the murder is punishable by death varies. In 2011, Texas raised this age from six to ten.[101]

    In some states, the high number of aggravating factors has been criticized on account of giving prosecutors too much discretion in choosing cases where they believe capital punishment is warranted. In California especially, an official commission proposed, in 2008, to reduce these factors to five (multiple murders, torture murder, murder of a police officer, murder committed in jail, and murder related to another felony).[102] Columnist Charles Lane went further, and proposed that murder related to a felony other than rape should no longer be a capital crime when there is only one victim killed.[103]

    In order for a person to be eligible for a death sentence when convicted of aggravated first-degree murder, the jury or court (when there is not a jury) must determine at least one of sixteen aggravating factors that existed during the crime's commission. The following is a list of the 16 aggravating factors under federal law.[104]

    1. Murder while committing another felony.[105]
    2. Offender was convicted of a separate felony involving a firearm prior to the aggravated murder.
    3. Being convicted of a separate felony where death or life imprisonment was authorized prior to the

      The opinion of the court in Kennedy v. Louisiana says that the ruling does not apply to "treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State".[109]

      Since no one is on death row for such offenses, the court has yet to rule on the constitutionality of the death penalty applied for them.

      Treason, espionage and large-scale drug trafficking are all capital crimes under federal law. Treason is also punishable by death in six states (Arkansas, California, Georgia, Louisiana, Mississippi, and Missouri). Large-scale drug trafficking is punishable by death in two states (Florida and Missouri),[110] and aircraft hijacking in two others (Georgia and Mississippi). Vermont still has a pre-Furman statute providing the death penalty for treason despite removing capital punishment for murder in 1965.[111]

      Legal process

      The legal administration of the death penalty in the United States typically involves five critical steps: (1) prosecutorial decision to seek the death penalty (2) sentencing, (3) direct review, (4) state collateral review, and (5) federal habeas corpus.

      Clemency, through which the Governor or President of the jurisdiction can unilaterally reduce or abrogate a death sentence, is an executive rather than judicial process.[112]

      Decision to seek the death penaltyTreason, espionage and large-scale drug trafficking are all capital crimes under federal law. Treason is also punishable by death in six states (Arkansas, California, Georgia, Louisiana, Mississippi, and Missouri). Large-scale drug trafficking is punishable by death in two states (Florida and Missouri),[110] and aircraft hijacking in two others (Georgia and Mississippi). Vermont still has a pre-Furman statute providing the death penalty for treason despite removing capital punishment for murder in 1965.[111]

      The legal administration of the death penalty in the United States typically involves five critical steps: (1) prosecutorial decision to seek the death penalty (2) sentencing, (3) direct review, (4) state collateral review, and (5) federal habeas corpus.

      Clemency, through which the Governor or President of the jurisdiction can unilaterally reduce or abrogate a death sentence, is an Governor or President of the jurisdiction can unilaterally reduce or abrogate a death sentence, is an executive rather than judicial process.[112]

      While judges in criminal cases can usually impose a harsher prison sentence than the one demanded by prosecution, the death penalty can be handed down only if the accuser has specifically decided to seek it.

      In the decades since Furman, new questions have emerged about whether or not prosecutorial arbitrariness has replaced sentencing arbitrariness. A study by Pepperdine University School of Law published in Furman, new questions have emerged about whether or not prosecutorial arbitrariness has replaced sentencing arbitrariness. A study by Pepperdine University School of Law published in Temple Law Review, surveyed the decision-making process among prosecutors in various states. The authors found that prosecutors' capital punishment filing decisions are marked by local "idiosyncrasies", and that wide prosecutorial discretion remains because of overly broad criteria. California law, for example, has 22 "special circumstances", making nearly all first-degree murders potential capital cases.[113]

      A proposed remedy against prosecutorial arbitrariness is to transfer the prosecution of capital cases to the state attorney general.[114]

      In 2017, Florida governor Rick Scott removed all capital cases from local prosecutor Aramis Ayala because she decided to never seek the death penalty no matter the gravity of the crime.[115]

      Of the 28 states with the death penalty, 26 require the sentence to be decided by a jury, and 25 require a unanimous decision by that jury.

      The only state which does not require a unanimous jury decision is Alabama. In Alabama, at least 10 jurors must concur. A retrial happens if the jury deadlocks.[116]

      Nebraska is the only state in which the sentence is decided by a three-judge

      The only state which does not require a unanimous jury decision is Alabama. In Alabama, at least 10 jurors must concur. A retrial happens if the jury deadlocks.[116]

      Nebraska is the only state in which the sentence is decided by a three-judge panel. If one of the judges on the panel opposes death, the defendant is sentenced to life imprisonment.[117]

      Montana is the only state where the trial judge decides the sentence alone.[118]

      In all states in which the jury is involved, only death-qualified veniremen can be selected in such a jury, to exclude both people who will always vote for the death sentence and those who are categorically opposed to it.

      However, the states differ on what happens if the penalty phase results in a hung jury:[119][120]

      The first outcome is referred as the "true unanimity" rule, while the third has been criticized as the "single-juror veto" rule.[122]

      Direct review

      If a defendant is sentenced to death at the trial level, the case then goes into a direct review.[123] The direct review process is a typical legal appeal.

      If a defendant is sentenced to death at the trial level, the case then goes into a direct review.[123] The direct review process is a typical legal appeal. An appellate court examines the record of evidence presented in the trial court and the law that the lower court applied and decides whether the decision was legally sound or not.[124] Direct review of a capital sentencing hearing will result in one of three outcomes. If the appellate court finds that no significant legal errors occurred in the capital sentencing hearing, the appellate court will affirm the judgment, or let the sentence stand.[123] If the appellate court finds that significant legal errors did occur, then it will reverse the judgment, or nullify the sentence and order a new capital sentencing hearing.[125] Lastly, if the appellate court finds that no reasonable juror could find the defendant eligible for the death penalty, a rarity, then it will order the defendant acquitted, or not guilty, of the crime for which he/she was given the death penalty, and order him sentenced to the next most severe punishment for which the offense is eligible.[125] About 60 percent survive the process of direct review intact.[126]

      State collateral review

      The distribution of death sentences among states is loosely proportional to their populations and murder rates. California, which is the most populous state, also has the largest death row, with over 700 inmates. Wyoming, which is the least populous state, has only one condemned man.

      But executions are more frequent (and happen more quickly after sentencing) in conservative states. Texas, which is the second most populous state in the Union, carr

      Alabama has the highest per capita rate of death sentences. This is because Alabama was one of the few states that allowed judges to override a jury recommendation in favor of life imprisonment, a possibility it removed in March 2017.[145][146]

      The distribution of death sentences among states is loosely proportional to their populations and murder rates. California, which is the most populous state, also has the largest death row, with over 700 inmates. Wyoming, which is the least populous state, has only one condemned man.

      But executions are more frequent (and happen more quickly after sentencing) in conservative states. Texas, which is the second most populous state in the Union, carried out over 500 executions during the post-Furman era, more than a third of the national total. California has carried out only

      But executions are more frequent (and happen more quickly after sentencing) in conservative states. Texas, which is the second most populous state in the Union, carried out over 500 executions during the post-Furman era, more than a third of the national total. California has carried out only 13 executions during the same period, and has carried out none since 2006.[147][148][149]

      African Americans made up 41% of death row inmates while making up only 12.6% of the general population. They have made up 34% of those actually executed since 1976. However, this is an under-representation relative to the proportion of convicted murderers; 52.5% of all homicide offenders between 1980 and 2008 were African Americans.[150]

      Approximately 13.5% of death row inmates are of Hispanic or Latino descent, while they make up 17.4% of the general population.[151]

      Approximately 1.81% of death row inmates are of Asian descent,[152

      Approximately 13.5% of death row inmates are of Hispanic or Latino descent, while they make up 17.4% of the general population.[151]

      Approximately 1.81% of death row inmates are of Asian descent,[152] though Asians comprise an estimated 5.6% of the total population.[citation needed]

      As of October 1, 2016, the Death Penalty Information Center reports that there are 54 women on death row. This constitutes 1.86% of the total death row population. 16 women have been executed since 1976,[153] compared to 1,426 men during the same time period,[154] meaning women comprised only 1.1% of executions in the first 40 years following Gregg. No women have been executed in the United States since the end of 2016 compared to 82 men,[155] reducing the above statistic to 1.05%.[citation needed]

      Since 1608, 15,391 lawful executions are confirmed to have been carried out in jurisdictions of, or now of, the United States, of these, 575, or 3.6%, were women. Women account for ​150 death sentences, ​167Since 1608, 15,391 lawful executions are confirmed to have been carried out in jurisdictions of, or now of, the United States, of these, 575, or 3.6%, were women. Women account for ​150 death sentences, ​167 people on death row, and ​1100 people whose executions are actually carried out. While always comparatively rare, women are significantly less likely to be executed in the modern era than in the past. All 8 Federal executions carried out since 1976 have been of men. Of the 16 women executed on the state level, most took place in either Texas (6), Oklahoma (3) or Florida (2) and were demographically, 25% (4) African-American, with the rest (12) being white of any ethnicity. Historically, the states that have executed the most women are California, Texas and Florida; though unlike Texas and Florida, California has not executed a woman in the post-Furman era. The racial breakdown of women sentenced to death is 61% white, 21% black, 13% Latina, 3% Asian, and 2% American Indian.[153]

      All 28 states with the death penalty for murder provide lethal injection as the primary method of execution. Vermont's remaining death penalty statute for treason provides electrocution as the method of execution.[73]

      Some states allow other methods than lethal injection, but only as secondary methods to be used merely at the request of the prisoner or if lethal injection is unavailable.[156][157]

      Several states continue to use the historical three-drug protocol: firstly an anesthetic, secondly pancuronium bromide, a paralytic, and finally potassium chloride to stop the heart.[158] Eight states have used a single-drug protocol, inflicting only an overdose of a single anesthetic to the prisoner.[158]

      While some state statutes specify the drugs required, a majority do not, giving more flexibility to prison officers.[158]

      Pressures from anti-death penalty activists and shareholders have made it difficult for correctional services to get the chemicals. Hospira, the only U.S. manufacturer of sodium thiopental, stopped making the drug in 2011.[159] In 2016, it was reported that more than 20 U.S. and European drug manufacturers including Pfizer (the owner of Hospira) had taken steps to prevent their drugs from being used for lethal injections.[159][160][161]

      Since then, some states have used other anesthetics, such as pentobarbital, etomidate,[162] or fast-acting benzodiazepines like midazolam.[163] Many states have since bought lethal injection drugs from foreign furnishers, and most states have made it a criminal offense to reveal the identities of furnishers or execution team members.[159][164] In November 2015, California adopted regulations allowing the state to use its own public compounding pharmacies to make the chemicals.[165]

      In 2009, Ohio approved the use of an intramuscular injection of 500 mg of hydromorphone (a 333-fold lethal overdose for an opioid-naive person)[166] and a supratherapeutic dose of midazolam as a backup means of carrying out executions when a suitable vein cannot be found for intravenous injection.[167][156][157]

      Several states continue to use the historical three-drug protocol: firstly an anesthetic, secondly pancuronium bromide, a paralytic, and finally potassium chloride to stop the heart.[158] Eight states have used a single-drug protocol, inflicting only an overdose of a single anesthetic to the prisoner.[158]

      While some state statutes specify the drugs required, a majority do not, giving more flexibility to prison officers.[158]

      Pressures from anti-death penalty activists and shareholders have made it difficult for correctional services to get the chemicals. Hospira, the only U.S. manufacturer of sodium thiopental, stopped making the drug in 2011.[159] In 2016, it was reported that more than 20 U.S. and European drug manufacturers including Pfizer (the owner of Hospira) had taken steps to prevent their drugs from being used for lethal injections.[159][160][161]

      Since then, some states have used other anesthetics, such as pentobarbital, etomidate,[162] or fast-acting benzodiazepines like midazolam.[163] Many states have since bought lethal injection drugs from foreign furnishers, and most states have made it a criminal offense to reveal the identities of furnishers or execution team members.[159][164] In November 2015, California adopted regulations allowing the state to use its own public compounding pharmacies to make the chemicals.[165]

      In 2009, Ohio approved the use of an intramuscular injection of 500 mg of hydromorphone (a 333-fold lethal overdose for an opioid-naive person)[166] and a supratherapeutic dose of midazolam as a backup means of carrying out executions when a suitable vein cannot be found for intravenous injection.[167][168]

      Lethal injection was held to be a constitutional method of execution by the U.S. Supreme Court in three cases: Baze v. Rees (2008), Glossip v. Gross (2015), and Bucklew v. Precythe (2019).[169][170]

      In the following states, death row inmates with an execution warrant may choose to be executed by:[157]

      • Electrocution in Alabama, Florida, Kentucky, South Carolina, Tennessee and Virginia.
      • Lethal gas in Arizona and California.
      • Firing squad in Utah, Missis

        In four states (Arizona, Kentucky, Tennessee and Utah), the alternative method is offered only to inmates sentenced to death for crimes committed prior to a specified date (usually when the state switched from the earlier method to lethal injection).

        When an offender chooses to be executed by a means different from the state default method, which is always lethal injection, he/she loses the right to challenge its constitutionality in court. See Stewart v. LaGrand, 526 U.S. 115 (1999).

        The last executions by methods other than injection are as follows (all chosen by the inmate):

State/District/Territory Year Last
execution
Alaska 1957 1950
Colorado 2020 1997
Connecticut
Meth

When an offender chooses to be executed by a means different from the state default method, which is always lethal injection, he/she loses the right to challenge its constitutionality in court. See Stewart v. LaGrand, 526 U.S. 115 (1999).

The last executions by methods other than injection are as follows (all chosen by the inmate):

Depending on the state, the following alternative methods are statutorily provided in the event that lethal injection is either found unconstitutional by a court or unavailable for practical reasons:[156][157][171]

  • Electrocution in Arkansas, Florida, Kentucky,[172] Mississippi, Oklahoma, South Carolina and Tennessee.
  • Lethal gas in Alabama, California, Mississippi, Missouri, Oklahoma and Wyoming.
  • Firing squad in Mississippi, Oklahoma and Utah.

Three states (Oklahoma, Tennessee and Utah) have added back-up methods recently in 2014 or 2015 (or have expanded their application fields) in reaction to the shortage of lethal injection drugs.[173]

Oklahoma and Mississippi are the only states allowing more than two methods of execution in their statutes, providing lethal injection, nitrogen hypoxia, electrocution and firing squad to be used in that order in the event that all earlier methods are unavailable. The nitrogen option was added by the Oklahoma Legislature in 2015 and has never been used in a judicial execution.[174] After struggling for years to design a nitrogen execution protocol and to obtain a proper device for it, Oklahoma announced in February 2020 it abandoned the project after finding a new reliable source of lethal injection drugs.[175]

Some states such as Florida have a larger provision dealing with execution methods unavailability, requiring their state departments of corrections to use "any constitutional method" if both lethal injection and electrocution are found unconstitutional. This was designed to make u

Three states (Oklahoma, Tennessee and Utah) have added back-up methods recently in 2014 or 2015 (or have expanded their application fields) in reaction to the shortage of lethal injection drugs.[173]

Oklahoma and Mississippi are the only states allowing more than two methods of execution in their statutes, providing lethal injection, nitrogen hypoxia, electrocution and firing squad to be used in that order in the event that all earlier methods are unavailable. The

Oklahoma and Mississippi are the only states allowing more than two methods of execution in their statutes, providing lethal injection, nitrogen hypoxia, electrocution and firing squad to be used in that order in the event that all earlier methods are unavailable. The nitrogen option was added by the Oklahoma Legislature in 2015 and has never been used in a judicial execution.[174] After struggling for years to design a nitrogen execution protocol and to obtain a proper device for it, Oklahoma announced in February 2020 it abandoned the project after finding a new reliable source of lethal injection drugs.[175]