Twenty-seven states authorize capital punishment and 23 have abolished it, so the death penalty by state breaks down roughly in half, with wide variation in methods, procedures, and whether executions actually happen. The federal government and the U.S. military run their own capital punishment systems on top of that. Three of the 27 “death penalty states” are only technically active: their governors have blocked executions by executive order while the statutes stay on the books.
The 27 States That Authorize the Death Penalty
The states with capital punishment statutes in force are Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming.1Bureau of Justice Statistics. Capital Punishment, 2023 – Statistical Tables
Authority on paper doesn’t translate to use. Kansas hasn’t executed anyone since before 1976. Wyoming’s last execution was in 1992. Kentucky, Montana, Nevada, and North Carolina haven’t carried one out in over a decade.2Death Penalty Information Center. States With No Recent Executions These dormant states occupy a middle ground: they technically allow executions but functionally look like abolitionist jurisdictions. Texas, Oklahoma, Missouri, and Alabama, by contrast, carry out executions with relative frequency.
The 23 States That Have Abolished It
Twenty-three states have ended capital punishment by legislation. Michigan led the way in 1847, Wisconsin followed in 1853, and Washington became the most recent to abolish in 2023. The full abolitionist list also includes Alaska, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, Virginia, and West Virginia.
Virginia’s 2021 repeal is notable because the state had historically carried out more executions than almost any other. Colorado repealed in 2020 and the governor commuted the sentences of the remaining death row inmates. Legislative abolition is harder to reverse than a governor’s moratorium: restoring capital punishment requires a new statute, not just a change in political will.
Where Governors Have Imposed a Moratorium
In California, Oregon, and Pennsylvania, governors have used executive authority to halt executions while the underlying statutes remain in effect.3Governor of California. Governor Gavin Newsom Orders a Halt to the Death Penalty in California Death sentences are still imposed by juries, appeals move through the courts, and inmates stay on death row. The governor just won’t sign death warrants.
A moratorium lasts only as long as the political will behind it. A successor can lift it without legislative involvement. That played out federally in early 2025 when Attorney General Pamela Bondi lifted the moratorium on federal executions her predecessor had imposed, restoring the federal government’s ability to schedule and carry out sentences.4White House. Restoring the Death Penalty and Protecting Public Safety
The Federal and Military Death Penalty
The federal government runs its own capital punishment system under 18 U.S.C. Chapter 228, independent of what any state does.5Office of the Law Revision Counsel. 18 US Code Chapter 228 – Death Sentence Federal capital cases typically involve crimes under national jurisdiction: acts of terrorism, murder of federal law enforcement officers, large-scale drug trafficking resulting in death, and similar offenses. In January 2025, President Trump signed an executive order directing the Attorney General to “pursue the death penalty for all crimes of a severity demanding its use,” with particular emphasis on the murder of law enforcement officers and capital crimes committed by noncitizens unlawfully in the country.4White House. Restoring the Death Penalty and Protecting Public Safety
The U.S. military also retains capital authority under the Uniform Code of Military Justice. Fifteen military offenses can carry a death sentence, though many, including desertion and disobeying a superior officer’s orders, only qualify during wartime. The military hasn’t carried out an execution since before 1976.2Death Penalty Information Center. States With No Recent Executions
Authorized Execution Methods
Lethal injection is the primary method almost everywhere capital punishment exists, including at the federal level. Some states use a three-drug sequence (an anesthetic, a paralytic, and a drug to stop the heart). Others have moved to a single dose of pentobarbital.
Most states also authorize at least one backup. These alternatives exist in part because lethal injection drugs have become hard to obtain: pharmaceutical manufacturers refuse to supply them, and litigation has complicated procurement. The secondary methods currently authorized across various states are:
- Electrocution, authorized in states including Alabama, Florida, South Carolina, and Tennessee. South Carolina is the only state where electrocution is the default rather than a backup.
- Nitrogen hypoxia, the newest method, authorized in Alabama, Mississippi, and Oklahoma. Alabama carried out the first-ever nitrogen hypoxia execution on January 25, 2024, when it executed Kenneth Smith. The method causes death by replacing breathable air with pure nitrogen.6Death Penalty Information Center. Witnesses Report Kenneth Smith Appeared Conscious, Shook and Writhed During First-Ever Nitrogen Hypoxia Execution
- Firing squad, authorized in Idaho, Mississippi, Oklahoma, South Carolina, and Utah. Idaho’s governor signed a 2025 law making the firing squad the state’s primary execution method, the only state in the country to do so, effective July 1, 2026.7Death Penalty Information Center. Idaho Governor Signs Legislation Authorizing Firing Squad as States Primary Execution Method
- Lethal gas, still on the books in Arizona, California, Missouri, and Wyoming, though rarely used.8Death Penalty Information Center. Authorized Methods by State
How States Choose Between Authorized Methods
When a state authorizes more than one method, specific rules decide which one applies. The approaches fall into a few categories: inmate choice within a deadline, automatic defaults when drugs are unavailable, or a hierarchy set entirely by the legislature.
South Carolina requires the inmate to choose between lethal injection, the electric chair, or the firing squad in writing at least 14 days before the scheduled execution. If the inmate doesn’t choose, electrocution is the default. Arizona ties the choice to the date of the crime: inmates sentenced for offenses committed before November 23, 1992, can pick between lethal injection and lethal gas, and anyone who doesn’t choose gets lethal injection automatically.9Arizona Legislature. Arizona Revised Statutes 13-757 – Method of Infliction of Sentence of Death
Mississippi and Oklahoma statutes create a cascading fallback: lethal injection first, nitrogen hypoxia next if injection is unavailable or ruled unconstitutional, then electrocution, and finally the firing squad as a last resort.8Death Penalty Information Center. Authorized Methods by State These provisions exist because drug availability problems have repeatedly delayed scheduled executions, and legislatures want a way to carry out a court order no matter what.
Who Can Face the Death Penalty
Not every murder qualifies. State statutes define specific aggravating circumstances that make a homicide death-eligible. Common ones include contract killings, the murder of a law enforcement officer, killings committed during another felony such as robbery or sexual assault, and murders involving multiple victims. Prosecutors have to prove at least one statutory aggravating factor during the sentencing phase of a capital trial.
The Supreme Court has placed hard limits on which crimes can carry a death sentence. In Coker v. Georgia (1977) and Kennedy v. Louisiana (2008), the Court held that the Eighth Amendment bars the death penalty for crimes that do not result in the victim’s death; rape, including child rape, cannot be punished by execution.10Justia. Kennedy v Louisiana, 554 US 407 (2008) The Kennedy opinion left open an exception for offenses against the state, including treason, espionage, and terrorism, where the death penalty may remain constitutional even without a victim’s death.11Supreme Court of the United States. Kennedy v Louisiana Federal law reflects that carve-out, listing both treason and espionage among capital offenses.
Two bright-line rules apply in every jurisdiction. In Roper v. Simmons (2005), the Court held that the Eighth and Fourteenth Amendments prohibit executing anyone who was under 18 at the time of the crime; the age that matters is the defendant’s age when the offense occurred, not at trial or sentencing.12Justia. Roper v Simmons, 543 US 551 (2005) In Atkins v. Virginia (2002), the Court banned the execution of individuals with intellectual disabilities as constitutionally disproportionate.13Justia. Atkins v Virginia, 536 US 304 (2002) Applying Atkins has proven complicated. States use different clinical standards, and disputes over IQ testing continue to generate litigation. The Court referenced an IQ threshold around 70 as a benchmark, but no single score is dispositive; courts also consider deficits in adaptive behavior and whether the condition appeared before age 18.
Clemency: Who Has the Final Say
After the courts are finished, the last avenue is executive clemency. The structure varies significantly by state:
- Governor acts alone in Alabama, California, Kentucky, Mississippi, North Carolina, Oregon, South Carolina, South Dakota, and Wyoming.
- Governor needs board approval in Arizona, Florida, Idaho, Louisiana, Oklahoma, Pennsylvania, and Texas. Pennsylvania requires a unanimous board recommendation, and in Florida the governor sits on the board.
- Governor receives a non-binding recommendation in Arkansas, Indiana, Kansas, Missouri, Montana, Ohio, and Tennessee.
- A board decides independently in Georgia, Nebraska, Nevada, and Utah.
For federal death row prisoners, only the President has the power to grant a pardon or commute a sentence. Clemency grants in capital cases are rare at both the state and federal level, but governors do occasionally commute death sentences to life without parole based on concerns about trial fairness, new evidence, or broader objections to capital punishment.