The death penalty in the US works through a layered process that begins with a capital murder charge and, if it ends in execution at all, usually does so about 19 years later. Twenty-seven states and the federal government authorize capital punishment.1Death Penalty Information Center. Death Row Overview A defendant must be convicted of a killing that involved a specific aggravating factor, sentenced to death by a unanimous jury in a separate sentencing hearing, and then move through three stages of appeals before a governor or the President has one last chance to intervene. Roughly 2,100 people currently sit on death row waiting for that process to run its course.
Where the Death Penalty Still Applies
Twenty-seven states retain capital punishment, but four of them — California, Pennsylvania, Oregon, and Ohio — have active gubernatorial moratoriums that keep their death rows populated while halting executions. Twenty-three states and the District of Columbia have abolished the practice entirely through legislation or court rulings.2Death Penalty Information Center. State by State
The federal government runs a separate system under the Federal Death Penalty Act of 1994, which covers crimes including treason, espionage, and certain drug trafficking offenses that result in death.3Office of the Law Revision Counsel. 18 USC 3591 – Sentence of Death Federal jurisdiction reaches into abolitionist states when a crime involves national interests, so a defendant charged with terrorism, espionage, or murder on federal land could face a federal death sentence no matter where it occurred. All federal death row inmates are held at the United States Penitentiary in Terre Haute, Indiana.
Who Can Be Sentenced to Death
A death sentence requires a conviction for capital murder: a killing that involved at least one aggravating factor the prosecution has proven beyond a reasonable doubt. Common aggravators include killing a law enforcement officer, murder for financial gain, and killings carried out in an especially cruel manner.4Death Penalty Information Center. Aggravating Factors by State If the jury finds no aggravating factor, the death penalty is off the table regardless of how severe the crime seems otherwise.
Supreme Court rulings have placed constitutional limits on who can be executed:
- People with intellectual disabilities cannot be executed. Atkins v. Virginia (2002) held that doing so violates the Eighth Amendment.5Justia. Atkins v Virginia, 536 US 304 (2002)
- Anyone under 18 at the time of the crime is ineligible under Roper v. Simmons (2005).6Justia. Roper v Simmons, 543 US 551 (2005)
- Crimes against individuals that did not result in the victim’s death cannot be punished by execution. Kennedy v. Louisiana (2008) applied this even to child rape, while leaving open the possibility that crimes against the state like treason or espionage could still qualify.7Justia. Kennedy v Louisiana, 554 US 407 (2008)
- An accomplice who did not kill, attempt to kill, or intend to kill cannot be executed under Enmund v. Florida (1982).
Mitigating Evidence
At sentencing, the defense counters aggravating factors with mitigating evidence. The Supreme Court has held that juries must be allowed to consider any mitigating evidence a juror finds relevant. That typically includes childhood abuse, mental illness, intellectual impairment, youth, lack of a prior criminal record, and a minor role in the killing. Mitigation specialists often spend months or years investigating a defendant’s life history to document trauma, neurological conditions, and family circumstances. The jury then weighs that evidence against the aggravators and decides whether death is the appropriate sentence.
The Two-Phase Capital Trial
Capital trials are split in two. First comes the guilt phase, where the jury decides whether the defendant committed the charged offense. If the verdict is guilty, the same jury returns for a separate sentencing hearing. The prosecution presents aggravating evidence, the defense presents mitigation, and the jurors deliberate again.
In nearly every jurisdiction, a death sentence requires a unanimous jury verdict.8Death Penalty Information Center. When Jurors Do Not Agree, Should a Death Sentence Be Imposed A single holdout juror can block an execution. If the jury cannot agree, the sentence typically defaults to life without parole.
How the Appeals Process Works
Every death sentence triggers an appeals process that unfolds in three stages, and courts move slowly at every step because a life is at stake.
- Direct appeal. This is automatic for everyone sentenced to death. The case goes to the state’s highest appellate court, which reviews the trial record for legal errors. Issues are limited to what appears in that record.
- State post-conviction review. The defendant can now raise issues outside the trial record, including ineffective legal representation, juror misconduct, or newly discovered evidence. Strict filing deadlines apply, and missing one can permanently end a defendant’s appeals.
- Federal habeas corpus. The final stage is limited to federal constitutional claims. The petition moves from a U.S. District Court to a U.S. Court of Appeals, if permission is granted, and ultimately to the U.S. Supreme Court as a last resort.
As of 2020, inmates spent an average of nearly 19 years on death row before execution, up from about 11 years in 2000. That lengthening reflects the complexity of the appeals process and the thoroughness courts and defense attorneys bring to any case where execution is the outcome.
Clemency as the Last Off-Ramp
Even after appeals end, a death sentence can still be reduced or overturned through executive clemency. For federal prisoners, that power rests with the President alone. At the state level, procedures vary.9Death Penalty Information Center. Clemency Procedures by State Some states give the governor sole authority. Others require a recommendation from an advisory board before the governor can act. A few put the decision entirely in a board’s hands.
These structural differences matter in practice. In states requiring a unanimous board recommendation before the governor can act, clemency is extraordinarily rare. In states where the governor decides alone, a single executive’s judgment controls whether a person lives or dies. Commutations usually reduce a death sentence to life without parole rather than ending in release. Full pardons in capital cases are rare and generally follow exoneration based on new evidence of innocence.
Methods of Execution
Lethal injection is the default method in nearly every jurisdiction that carries out executions.10Death Penalty Information Center. Authorized Methods by State Protocols use either a single drug, typically pentobarbital, or a three-drug combination that induces unconsciousness, stops breathing, and then stops the heart. Many states have had trouble obtaining these drugs because pharmaceutical manufacturers and distributors increasingly refuse to supply them for executions, which has led to secrecy laws shielding the identities of drug suppliers.
Other authorized methods exist mostly as backups, available when lethal injection drugs cannot be obtained or when the inmate chooses them:11National Conference of State Legislatures. States and Capital Punishment
- Electrocution remains an alternative in several states, using a specially designed chair and a high-voltage current.
- Nitrogen hypoxia is the newest method. A mask delivers pure nitrogen, replacing breathable air and causing death through oxygen deprivation. Alabama carried out the first nitrogen hypoxia execution in American history on January 25, 2024, and Louisiana and Arkansas have since authorized it as well.10Death Penalty Information Center. Authorized Methods by State
- Firing squad is authorized in a small number of states, with multiple shooters firing at a target placed over the inmate’s heart.
- Hanging and lethal gas remain on the books in a few jurisdictions but are rarely if ever used.
What Happens on Execution Day
In the final 24 hours, the inmate is moved from their regular cell to a “death watch” cell near the execution chamber, with constant staff supervision. A final meal is typically offered, though rules around it vary widely by state. Some set spending limits, others restrict requests to items available in the prison kitchen, and a few have eliminated the tradition.
Once appeals are exhausted and no stay is in effect, a specialized team escorts the inmate to the chamber. Officials confirm with the governor’s office and attorney general that no last-minute legal intervention has occurred. The inmate is secured to a gurney or chair, given the chance to make a final statement, and the execution proceeds.
Witnesses watch from a separate observation room through a glass partition. The group usually includes state representatives, a small number of media reporters, members of the victim’s family, and a limited number of the inmate’s guests. Under Ramirez v. Collier (2022), states cannot categorically ban a condemned person’s spiritual advisor from praying aloud or offering physical comfort in the chamber.12Supreme Court of the United States. Ramirez v Collier, No. 21-5592 (2022) Most states now allow a spiritual advisor to remain present during the execution itself. Afterward, a medical professional or coroner certifies the death and records the official time.
The Current Federal Direction
Federal policy on who gets charged capitally shifted sharply in early 2025. The Biden administration had imposed a moratorium on federal executions and, shortly before leaving office, commuted the death sentences of 37 federal prisoners to life without parole. In January 2025, a new executive order directed the Attorney General to pursue the death penalty for “all crimes of a severity demanding its use,” with particular emphasis on murders of law enforcement officers and capital crimes committed by undocumented immigrants.13The White House. Restoring the Death Penalty and Protecting Public Safety The Department of Justice formally rescinded the moratorium and authorized seeking death sentences against 44 defendants.14U.S. Department of Justice. The Justice Department Takes Actions to Strengthen the Federal Death Penalty
The same order directed the Attorney General to help states obtain lethal injection drugs, to evaluate whether the 37 commuted prisoners could be charged with state capital crimes, and to seek the overruling of Supreme Court precedents that limit capital punishment.13The White House. Restoring the Death Penalty and Protecting Public Safety The practical effect is that federal prosecutors are now actively seeking death sentences again, including in states that have abolished the death penalty under their own laws.