The case for why the death penalty should be abolished rests on evidence that has only grown stronger over the past fifty years: at least 202 people sentenced to die have later been proven innocent, no reliable study shows the punishment deters murder, capital trials cost taxpayers millions more than life-without-parole prosecutions, and who ends up on death row depends on the victim’s race, the county line, and the quality of a defendant’s lawyer. Capital punishment remains legal in 27 states, but only a small number carry out executions in any given year, and courts have steadily narrowed who can be sentenced to it. The gap between the law on the books and any defensible justification for keeping it has become difficult to bridge.
Innocent People Are Sentenced to Death
Since 1973, at least 202 people sentenced to death in the United States have been exonerated after evidence proved they did not commit the crime that put them on death row.1Death Penalty Information Center. Innocence Some waited decades for DNA testing, recanted witness testimony, or other new evidence to clear them. Those 202 are only the cases where the exoneration actually happened. An unknown number of innocent people have already been executed, and no legal process exists to undo that.
The courts make it extraordinarily difficult to stop an execution based on new evidence of innocence. In Herrera v. Collins (1993), the Supreme Court held that a claim of actual innocence, standing alone, does not entitle a prisoner to federal relief if the original trial was procedurally fair.2Justia. Herrera v Collins, 506 US 390 (1993) A defendant generally must show both new evidence and a separate constitutional violation at trial. A prisoner can have strong proof of innocence and still lack a legal pathway to present it.
The causes behind these wrongful convictions are well documented. Eyewitness misidentification, false confessions obtained under coercive interrogation, flawed forensic evidence, and jailhouse informants with motives to lie recur with enough frequency that researchers categorize them. A prison sentence imposed on an innocent person can be reversed. An execution cannot. That difference, by itself, is the strongest single argument against the punishment.
It Does Not Deter Murder
The most common defense of capital punishment is that it discourages people from killing. The evidence does not support that claim. In 2012, the National Research Council reviewed more than three decades of studies on the relationship between the death penalty and homicide rates and concluded that the existing research “should not be used to inform judgments about the effect of the death penalty on homicide rates.”3National Academies. Deterrence and the Death Penalty (2012) Every study the panel examined suffered from methodological flaws that made its conclusions unreliable in either direction.
Part of the problem is that executions are too rare to measure. Only about 15 percent of people sentenced to death since 1976 have actually been executed.4National Academies. Current Research Not Sufficient to Assess Deterrent Effect of the Death Penalty Death sentences are regularly overturned on appeal, commuted, or left unexecuted for decades. If a would-be killer faces roughly an 85 percent chance of avoiding execution even after being sentenced to death, the threat loses most of its theoretical power. States without the death penalty have not experienced higher murder rates than their neighbors that retain it.
It Costs Far More Than Life Without Parole
Capital cases consume far more public money than cases where prosecutors seek life without parole. A 2021 Ohio Legislative Service Commission report, drawing on studies from multiple states, found capital cases cost between 2.5 and 5 times more than non-capital cases. Some states spend $1 million to $3 million more per capital case than they would on an equivalent life-without-parole prosecution.5Death Penalty Information Center. What to Know: Costs and the Death Penalty
The additional cost starts before the trial does. Under Gregg v. Georgia (1976), capital trials must follow a two-phase structure: a guilt phase, then a separate sentencing phase where jurors weigh aggravating and mitigating factors.6Justia. Gregg v Georgia, 428 US 153 (1976) Jury selection can stretch for weeks because every prospective juror must be individually screened through death qualification. After conviction, every death sentence triggers automatic appellate review, followed by multiple rounds of state and federal post-conviction challenges. Courts require these appeals because an error cannot be undone. State-level studies consistently show that post-conviction costs in capital cases run roughly 47 percent higher than in non-capital cases.7Death Penalty Information Center. State Studies on Monetary Costs Every dollar spent on this system is a dollar unavailable for law enforcement, victim services, or other public safety needs.
Race, Geography, and Money Decide Who Dies
The death penalty is not applied evenly. Research consistently shows that the race of the victim, more than the severity of the crime, predicts who ends up on death row. Defendants convicted of killing white victims are significantly more likely to be sentenced to death than those convicted of killing Black or Latino victims. The pattern has been documented across multiple states and decades of data.
The Supreme Court saw this evidence and declined to act on it. In McCleskey v. Kemp (1987), the defendant presented a rigorous statistical analysis showing that defendants in Georgia were far more likely to be sentenced to death when the victim was white. The Court accepted the validity of the data but ruled that statistical evidence of racial disparity is not enough to overturn a specific death sentence. A defendant must prove that the prosecutors or jurors in their own case acted with discriminatory intent.8Justia. McCleskey v Kemp, 481 US 279 (1987) That standard is nearly impossible to meet, and the decision insulated the capital system from challenges based on systemic racial patterns.
Geography compounds the problem. Whether a defendant faces the death penalty often depends less on what they did than on where they did it. Local prosecutors have broad discretion, and neighboring counties within the same state can take dramatically different approaches. One county may seek death in every eligible case while the next never does. The Supreme Court first identified this randomness in Furman v. Georgia (1972), striking down existing death penalty statutes because the sentence was being imposed so arbitrarily it lacked any consistent legal basis.9Justia. Furman v Georgia, 408 US 238 (1972) States responded by rewriting their statutes, and the Court approved the new frameworks in Gregg. But socioeconomic status still predicts outcomes. Defendants who cannot afford experienced private counsel are more likely to be sentenced to death than those with the resources to mount a serious defense. The structural problems Furman identified have not been solved.
The Supreme Court Has Already Narrowed It
The Eighth Amendment prohibits “cruel and unusual punishments,” and courts interpret that phrase through what the Supreme Court calls “evolving standards of decency.”10Congress.gov. US Constitution – Eighth Amendment Punishments once considered acceptable can become unconstitutional as society’s values shift, and the Court has repeatedly used this reasoning to carve categories of people and crimes out of death penalty eligibility.
In Roper v. Simmons (2005), the Court ruled that the Eighth and Fourteenth Amendments forbid executing anyone who was under 18 at the time of their crime.11Justia. Roper v Simmons, 543 US 551 (2005) Three years earlier, Atkins v. Virginia (2002) held that executing a person with an intellectual disability is unconstitutional, though it left states to work out their own procedures for identifying who qualifies.12Death Penalty Information Center. Continuing Issues: Determining Intellectual Disability After Atkins In Kennedy v. Louisiana (2008), the Court held that the death penalty is unconstitutional for any crime against an individual that does not result in the victim’s death, including child rape.13Justia. Kennedy v Louisiana, 554 US 407 (2008)
Severe mental illness sits in a narrower space. The Court has not categorically banned execution of people with mental illness. Under Ford v. Wainwright and Panetti v. Quarterman, a prisoner cannot be executed if their mental state is so impaired that they cannot understand why the government is putting them to death.14Congress.gov. Amdt8.4.9.7 Cognitively Disabled and Death Penalty That test focuses on competency at the moment of execution rather than mental state at the time of the crime, leaving a gap that abolition advocates have long criticized. Each of these decisions rests on the finding that applying capital punishment to a particular group violates contemporary standards. The question the Court has not yet answered is whether those standards have moved far enough to make the punishment itself unconstitutional across the board.
The Methods Are Failing
How the government carries out executions has become its own crisis. Pharmaceutical companies have largely refused to let their products be used in lethal injections, forcing states to turn to compounding pharmacies, gray-market suppliers, or older methods. Electrocution remains authorized in eight states, lethal gas in seven, firing squads in three, and hanging in one.
Challenging a method under the Eighth Amendment has become nearly impossible. In Glossip v. Gross (2015), the Court ruled that a prisoner must do more than show a lethal injection protocol risks severe pain. The prisoner must also identify a known and available alternative that would significantly reduce that risk.15Justia. Glossip v Gross, 576 US 863 (2015) Bucklew v. Precythe (2019) extended that requirement to all method-of-execution claims, including those from prisoners with rare medical conditions.
In January 2024, Alabama became the first state to carry out an execution using nitrogen hypoxia, a method that had never been tested on a human subject. Witnesses reported that the prisoner, Kenneth Smith, appeared conscious for several minutes, shaking and writhing on the gurney.16Death Penalty Information Center. “The World is Watching”: Witnesses Report Kenneth Smith Appeared Conscious, Shook and Writhed During First-Ever Nitrogen Hypoxia Execution The Supreme Court denied Smith’s emergency request to block the nitrogen execution over the dissents of three justices, one of whom called him a “guinea pig” for an untested method.
Policy Lurches With Each Administration
The federal system shows how unstable the punishment has become. After 13 federal executions in the final months of the first Trump administration, no federal execution took place after 2021. In late 2024, President Biden commuted 37 federal death sentences to life without parole, leaving only three people on federal death row as of early 2026.17Death Penalty Information Center. Department of Justice Releases Memo Calling for Expansion of Federal Death Penalty and New Methods
The direction reversed sharply in 2025. Attorney General Pamela Bondi lifted the federal execution moratorium on February 5, 2025, and directed federal prosecutors to seek the death penalty in all “appropriate cases” under a January 2025 executive order. The Department of Justice has also instructed the Bureau of Prisons to reinstate the single-drug lethal injection protocol used in earlier federal executions and to prepare the firing squad, electrocution, and lethal gas as backups. A sentence pursued aggressively by one administration and commuted by the next is difficult to describe as the most carefully considered judgment the legal system can make.
Most States Have Effectively Stopped
Even where the death penalty remains on the books, the trend is sharply downward. Executions peaked at 98 in 1999 and have fallen to around 25 per year recently. Only 26 new death sentences were imposed nationwide in 2024.18Death Penalty Information Center. The Death Penalty in 2024 The national death row population has been shrinking since 2000.
Several states with capital statutes have effectively stopped using them through executive action. Governors in California, Oregon, Pennsylvania, and Ohio have imposed moratoria on executions, and Oregon’s governor commuted all death sentences in the state in 2022.19Death Penalty Information Center. State by State The 27-state count overstates actual practice. When a punishment is this rare and this geographically concentrated, the constitutional argument that it has become “unusual” gains real force.
The United States Stands Apart
More than 70 percent of the world’s countries have abolished the death penalty in law or practice.20Death Penalty Information Center. International The United Nations has repeatedly called for a global moratorium on executions. The Second Optional Protocol to the International Covenant on Civil and Political Rights commits its signatories to abolish capital punishment entirely, requiring that “no one within the jurisdiction of a State Party shall be executed.”21OHCHR. Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty The United States has not ratified it.
Keeping the death penalty has practical costs in international legal cooperation. Countries that have abolished capital punishment routinely refuse to extradite suspects to the United States unless prosecutors guarantee they will not seek a death sentence.22Death Penalty Information Center. Consular Rights, Foreign Nationals and the Death Penalty On executions, the United States now sits in the company of China, Iran, Saudi Arabia, and North Korea. The weight of the evidence against capital punishment — innocent people on death row, no deterrent effect, excessive cost, uneven application, failing methods, and policy that swings with each election — points in one direction. Abolition is the response that matches what the evidence actually shows.