Death Penalty Laws: 50-State Survey

Nearly half the states in the U.S. have abolished or otherwise abandoned the death penalty. Many of the remaining states have paused executions for reasons such as governor-issued moratoriums, court orders, or simply the unavailability of drugs needed to perform lethal injections. Most states with the death penalty use lethal injection as the primary method of execution, but some allow for alternative methods in certain situations. Alternative methods may include lethal gas, electrocution, or firing squad.

Opponents of the death penalty tend to argue that it violates the Eighth Amendment of the U.S. Constitution. This provision in the Bill of Rights forbids “cruel and unusual punishment.” By interpreting the Eighth Amendment, the U.S. Supreme Court has shaped the scope of capital punishment. Its 1972 decision in Furman v. Georgia essentially caused a nationwide moratorium on the death penalty, due to concerns about its arbitrary or discriminatory application. Four years later, the Court ruled in Gregg v. Georgia that the death penalty does not categorically violate the Eighth Amendment. This allowed capital punishment to resume in states that chose to retain it by adjusting their laws to account for constitutional concerns.

Subsequent Supreme Court decisions have narrowed the application of the death penalty in states where it remains in effect. For example, Atkins v. Virginia prohibited executing intellectually disabled offenders, while Ropers v. Simmons struck down the death penalty for people who were under 18 when they committed a capital offense. Perhaps the most influential Supreme Court decision on this topic, though, came in Kennedy v. Louisiana in 2008. Writing for the Court, Justice Anthony Kennedy explained that “resort to the [death] penalty must be reserved for the worst of crimes.” The Court thus set out a rule that for crimes against individuals, “the death penalty should not be expanded to instances where the victim’s life was not taken.” (The decision did not address crimes against the state, which the Court defined to include treason, espionage, terrorism, and “drug kingpin activity.”)

Criminal trials for capital offenses are usually divided into two phases. The first phase involves deciding whether the defendant is guilty of the crime. If they are, the proceedings advance to the second phase, which involves deciding whether the death penalty is warranted, or whether an alternative sentence like life imprisonment should be imposed. This penalty phase often requires weighing aggravating and mitigating factors, although the specific rules governing the process vary by state.

The federal government continues to make the death penalty available for about 60 serious federal crimes, almost all of which involve homicide. (Federal law also permits the death penalty for espionage, treason, and trafficking huge amounts of drugs.) The federal death penalty may be imposed even if the crime was committed in a state that has abolished the death penalty. However, the U.S. Department of Justice has placed a moratorium on executions.

Click on a state below to find out more about whether, when, and how the death penalty may be imposed under the laws of that state.

Alabama Death Penalty Laws

Alabama law makes the death penalty available for various forms of murder. Capital offenses include murder during first-degree kidnapping, first-degree robbery, first-degree or second-degree rape, first-degree or second-degree sodomy, first-degree or second-degree burglary, first-degree or second-degree sexual abuse, or first-degree or second-degree arson. Capital punishment also may be imposed for murder for hire or money, multiple murders in one act or course of conduct, murder of a public official related to their position, murder of a law enforcement officer while they were on duty or because of their job, murder of a first responder operating in an official capacity, murder of a victim under 14, murder in the presence of a child under 14 if the victim was the child’s parent, murder of someone who had received a protective order against the defendant, or murder of someone who was subpoenaed to testify in a legal proceeding due to their role as a witness.

Further capital offenses include murder committed by using a deadly weapon from a vehicle, murder committed by using a deadly weapon from outside a dwelling while the victim was in a dwelling, murder involving unlawfully taking control of an aircraft, murder committed while under sentence of life imprisonment, or murder by a defendant who was convicted of another murder in the previous 20 years.

A defendant may not be sentenced to death unless at least one of the aggravating circumstances described in Section 13A-5-49 exists. The prosecution has the burden of proving the existence of any aggravating circumstances beyond a reasonable doubt. However, if the verdict convicting the defendant establishes that an aggravating circumstance was proven beyond a reasonable doubt at trial, this will be considered to have been proven beyond a reasonable doubt for sentencing purposes as well.

Alaska Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

The Alaska Territorial Legislature abolished the death penalty in 1957. Thus, Alaska has never had capital punishment since it became a state.

Arizona Death Penalty Laws

  • Death penalty: Yes, but executions are paused while procedures are reviewed
  • Execution method: Lethal injection (inmate may choose lethal gas if convicted for offense committed before November 23, 1992)
  • Key laws: Arizona Revised Statutes Section 13-751 et seq.

Arizona law makes the death penalty available for first-degree murder. This is defined in part as causing the death of another person with premeditation, while intending or knowing that the conduct will cause death, or causing the death of a law enforcement officer in the line of duty while intending or knowing that the conduct will cause death to a law enforcement officer. In addition, first-degree murder may occur when the defendant causes the death of any person while in the course of and in furtherance of any of certain other offenses or in immediate flight from one of those offenses. These include sexual conduct with a minor, sexual assault, molestation of a child, terrorism, certain drug crimes, drive-by shootings, kidnapping, burglary, arson, robbery, escape, child abuse, or unlawful flight from a pursuing law enforcement vehicle.

Section 13-751 provides that the jury will impose a death sentence if they find one or more of the aggravating circumstances enumerated in Section 13-751(F) and determine that there are no mitigating circumstances that are sufficiently substantial to call for leniency.

In 2023, Governor Katie Hobbs ordered a review of execution procedures in Arizona and paused executions while it is pending. Hobbs stated that an execution would not occur under her administration “until the people of Arizona can have confidence that the state is not violating the law” in carrying out executions.

Arkansas Death Penalty Laws

  • Death penalty: Yes, although the state does not have the drugs for lethal injection
  • Execution method: Lethal injection; if invalidated by court, electrocution
  • Key laws: Arkansas Code Section 5-4-601 et seq.

Arkansas law makes the death penalty available for various forms of murder, which are known as capital murder. These include causing the death of someone else with the premeditated and deliberated purpose of causing the death of a person, causing the death of a law enforcement officer (or firefighter, judge, teacher, military personnel, or certain others) when they are acting in the line of duty with the premeditated and deliberated purpose of causing their death, or causing the death of someone else with the premeditated and deliberated purpose of causing the death of a public office holder or candidate. Further forms of capital murder include causing the death of another person for hire, causing the death of any person after being hired to cause the death of someone other than that person, and purposely causing the death of another person after premeditation and deliberation while incarcerated in the Division of Correction or the Division of Community Correction.

Capital murder also may be charged in certain situations when a defendant caused a death while showing extreme indifference to the value of human life under the circumstances. These include knowingly causing the death of someone who was 14 or younger if the defendant was 18 or older, as well as purposely discharging a firearm from a vehicle at a person or at a vehicle or building that the defendant should have known to be occupied by a person.

Finally, capital murder may be charged if the defendant committed any of certain felonies, and the defendant or an accomplice caused the death of someone else in the course of and in furtherance of the felony, or in immediate flight from the felony, under circumstances showing an extreme indifference to the value of human life. These crimes include terrorism, rape, kidnapping, vehicular piracy, robbery, aggravated robbery, residential or commercial burglary, aggravated residential burglary, certain serious drug crimes, and first-degree escape. A distinctive provision covers arson, which may lead to a capital murder charge if the defendant commits this crime, and the defendant or an accomplice causes the death of someone else in the course of and in furtherance of the felony, or in immediate flight from the felony.

A jury will impose a death sentence if they unanimously return written findings that an aggravating circumstance (as defined by Section 5-4-604) exists beyond a reasonable doubt, aggravating circumstances outweigh all mitigating circumstances found to exist beyond a reasonable doubt, and aggravating circumstances justify a sentence of death beyond a reasonable doubt.

Arkansas also makes the death penalty available for treason.

As of late 2022, the Arkansas Department of Corrections did not have the drugs needed to perform a lethal injection, although the Department was reportedly searching for more drugs.

California Death Penalty Laws

  • Death penalty: Yes, but governor-imposed moratorium on executions
  • Execution method: Lethal injection or lethal gas (inmate’s choice); if either is invalidated, the other will be used
  • Key laws: California Penal Code Section 190 et seq.; Section 3600 et seq.

California law makes the death penalty available for first-degree murder. State law defines first-degree murder in part as murder perpetrated by means of a destructive device or explosive, a weapon of mass destruction, the knowing use of certain forms of ammunition, poison, lying in wait, torture, or any other kind of willful, deliberate, and premeditated killing. In addition, first-degree murder may be charged when the defendant committed murder while perpetrating arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, or various sex crimes, or when the defendant committed murder by intentionally discharging a firearm from a vehicle at someone outside the vehicle with the intent to inflict death.

Section 190.2 provides that a defendant who is found guilty of first-degree murder may be sentenced to death if one of the “special circumstances” enumerated in that section applies. Section 190.3 further provides that the jury will consider and be guided by the aggravating and mitigating circumstances described in that section and will impose a death sentence if they conclude that the aggravating circumstances outweigh the mitigating circumstances.

California also technically makes the death penalty available for treason.

Governor Gavin Newsom imposed a moratorium on executions in 2019. In 2022, Newsom announced that California will dismantle its death row and place inmates who have been sentenced to death in various maximum security prisons, while repurposing the death row facility for other uses.

Colorado Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Colorado abolished the death penalty in 2020. When Governor Jared Polis signed the repeal into effect, he also commuted the sentences of the inmates who were on death row at the time.

Connecticut Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Connecticut abolished the death penalty in 2012. This applied only prospectively to crimes that had not yet been committed, but the Connecticut Supreme Court held in 2015 that the death penalty could not be imposed on pre-existing death row inmates because this violated the Connecticut Constitution.

Delaware Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Delaware abandoned the death penalty in 2016, based on a Delaware Supreme Court decision. The Court struck down the death penalty procedures for violating the Delaware Constitution, and the state has not revised them.

Florida Death Penalty Laws

Florida law makes the death penalty available for first-degree murder, which is defined in part as the unlawful killing of a human being when perpetrated from a premeditated design to cause that person’s death or someone else’s death. First-degree murder also may be charged when someone is unlawfully killed by a person who is perpetrating any of certain serious crimes, such as certain drug trafficking offenses, arson, sexual battery, robbery, burglary, kidnapping, escape, aggravated child abuse, aggravated abuse of an elderly person or disabled adult, aircraft piracy, unlawfully discharging a destructive device or bomb, carjacking, home invasion robbery, aggravated stalking, murder of someone else, resisting an officer with violence, aggravated fleeing or eluding with serious bodily injury or death, acts of terrorism, or human trafficking. Finally, first-degree murder may involve the unlawful death of a person that resulted from the unlawful distribution of any of certain controlled substances by someone who was 18 or older, when the substance was the proximate cause of death of the user.

Section 921.141 provides that a jury considering whether a defendant should be sentenced to death or to life imprisonment must unanimously find at least one of the aggravating factors enumerated in that section for the defendant to be eligible for a death sentence. If the defendant waived their right to sentencing by jury, the court may impose a death sentence only after finding that at least one aggravating factor has been proven to exist beyond a reasonable doubt.

Florida also makes the death penalty available for certain drug trafficking crimes. Section 921.142 provides special rules for capital drug trafficking felonies.

Florida technically makes the death penalty available for sexual battery against a child, but this likely would violate the Eighth Amendment.

Georgia Death Penalty Laws

Georgia law makes the death penalty available for murder, which is defined in part as causing the death of another person unlawfully and with malice aforethought. (This may involve either a deliberate intention to unlawfully take the life of another person, shown by external circumstances capable of proof, or situations in which there is no considerable provocation, and all the circumstances of the killing show an abandoned and malignant heart.) In addition, a person commits murder when they cause the death of another person in the commission of a felony, regardless of whether they acted with malice. However, the death penalty may be imposed only when at least one of the statutory aggravating circumstances described in Section 17-10-30 is found.

Section 17-10-30 also makes the death penalty available for treason or aircraft hijacking, regardless of whether there are any aggravating circumstances. (The Georgia criminal code classifies aircraft hijacking among “crimes against the person,” so the constitutionality of this provision is unclear.) Certain non-homicide crimes against individuals, such as rape, armed robbery, and kidnapping for ransom, technically carry the possibility of a death sentence, but this likely would violate the Eighth Amendment.

Hawaii Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Hawaii abolished the death penalty in 1957 when it was still a territory. Thus, Hawaii has never had capital punishment since it became a state.

Idaho Death Penalty Laws

Idaho law provides that a person convicted of first-degree murder will be liable for the death penalty if they killed another person, intended a killing, or acted with reckless indifference to human life, regardless of whether they directly committed the acts that caused the death.

First-degree murder is defined in part as murder perpetrated by poison, lying in wait, torture with various intents, or any kind of willful, deliberate, and premeditated killing. It also may involve the murder of a law enforcement officer, executive officer, judge, prosecutor, officer of the court, or fireman while they were carrying out their official duties (and the perpetrator knew that), a murder committed by someone already under a sentence of first-degree or second-degree murder, a murder committed by someone in a penal institution, or a murder committed by someone while escaping from a penal institution. Finally, a murder committed while perpetrating aggravated battery on a child under 12 years old, arson, rape, robbery, burglary, kidnapping, mayhem, an act of terrorism, or the use of a weapon of mass destruction, biological weapon, or chemical weapon is considered first-degree murder.

However, a death sentence will not be imposed unless the jury (or the judge if the defendant waives their right to a jury) finds beyond a reasonable doubt that at least one statutory aggravating circumstance listed in Section 19-2515 is present. If there is a statutory aggravating circumstance, the defendant must be sentenced to death unless there are mitigating circumstances that are sufficiently compelling that the death penalty would be unjust. If a jury decides the sentence, it must not direct a death sentence unless it unanimously finds a statutory aggravating circumstance and unanimously determines that the death penalty must be imposed.

Idaho technically also makes the death penalty available for first-degree kidnapping if the kidnapped person is not “liberated unharmed,” but this likely would violate the Eighth Amendment in situations when the kidnapped person suffered non-fatal harm.

Illinois Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Illinois abolished the death penalty in 2011. The repeal applied only prospectively to future crimes, but Governor Pat Quinn commuted the sentences of inmates on death row at the time.

Indiana Death Penalty Laws

Indiana law makes the death penalty available for murder by someone who was at least 18 when the crime was committed. Indiana law defines murder as knowingly or intentionally killing another person, or killing another person while committing any of certain crimes. These include arson, burglary, child molestation, consumer product tampering, kidnapping, rape, robbery, human trafficking, child sexual trafficking, or promotion of human labor trafficking, human sexual trafficking, child sexual trafficking, or sexual trafficking of a younger child, as well as various drug trafficking or manufacturing offenses.

Before a death sentence may be imposed, the jury or the court must find that the state has proved beyond a reasonable doubt that at least one of the aggravating circumstances enumerated in Section 35-50-2-9 exists. The jury or the court also must find that any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.

In 2023, Governor Eric Holcomb stated that Indiana does not have an inventory of lethal injection drugs but continues to explore ways to obtain them.

Iowa Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Iowa abolished the death penalty in 1965. Several efforts to reinstate it since then have failed.

Kansas Death Penalty Laws

Kansas law makes the death penalty available for certain forms of murder, known as capital murder. This may be charged based on an intentional and premeditated killing in the commission of kidnapping or aggravated kidnapping that was committed with the intent to hold a person for ransom, an intentional and premeditated killing as part of a contract of murder for hire, an intentional and premeditated killing by an inmate or prisoner, an intentional and premeditated killing of a law enforcement officer, the intentional and premeditated killing of multiple people as part of the same act or course of conduct, the intentional and premeditated killing of a child under the age of 14 in the commission of kidnapping or aggravated kidnapping with the intent to commit a sex offense, or the intentional and premeditated killing of a victim of rape, criminal sodomy, or aggravated criminal sodomy during or after the crime.

The death penalty may be imposed only if the jury finds unanimously and beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in Section 21-6624 exists, and that the existence of any aggravating circumstances is not outweighed by any mitigating circumstances that are found to exist. In cases in which a defendant waived their right to a jury, the judge will follow the same rules in deciding whether to impose a death sentence.

In 2023, litigation was launched to challenge the constitutionality of the Kansas death penalty. Kansas has not executed anyone in over half a century.

Kentucky Death Penalty Laws

Kentucky law makes the death penalty available for murder, which is defined in part as causing the death of another person with intent to cause a death (not necessarily of that person), except when the defendant acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse. Murder also may be charged when a person wantonly engaged in conduct that created a grave risk of death to another person and thereby caused the death of another person, such as when the defendant operated a vehicle under circumstances showing an extreme indifference to human life.

Kentucky law also provides that kidnapping may be charged as a capital offense when the victim dies during the kidnapping or dies after the kidnapping due to injuries suffered during the kidnapping, not being released in a safe place, or being released in circumstances that were intended or should have been known to cause the victim’s death. This type of kidnapping is essentially a form of homicide.

Section 532.025 requires a judge to instruct the jury that they must consider any mitigating or aggravating circumstances that are authorized by law, as well as any of the aggravating or mitigating circumstances enumerated in that section, if they are supported by the evidence. (The judge must perform the same evaluation if they are determining the sentence without a jury.) The death penalty must not be imposed unless at least one of the statutory aggravating circumstances has been found.

In 2010, a judge ordered a stay of executions in Kentucky. Under a 2020 settlement agreement, the Kentucky Department of Corrections has formed a work group to review and amend the regulations regarding the death penalty. Efforts to lift the stay of executions will not resume until the regulations are amended.

Louisiana Death Penalty Laws

Louisiana law makes the death penalty available for first-degree murder. This may be charged in situations such as when the offender had a specific intent to kill or inflict great bodily harm on multiple people, the offender had a specific intent to kill or inflict great bodily harm on a law enforcement officer or fireman while they were on duty or due to their status, the offender had a specific intent to kill or inflict great bodily harm and was involved in a contract of murder for hire, the offender had a specific intent to kill or inflict great bodily harm on a victim who was a witness to a crime due to their testimony, the offender had a specific intent to kill or inflict great bodily harm on a correctional facility employee or a taxi driver, the offender had a specific intent to kill or inflict great bodily harm on someone who was under 12 years old or was 65 or older, or the offender had a specific intent to kill or inflict great bodily harm on a victim who was subject to an order protecting them from the offender.

First-degree murder also may be charged when the offender had a specific intent to kill or inflict great bodily harm while they were engaged in ritualistic acts, aggravated or second-degree kidnapping, aggravated escape, aggravated arson, aggravated or first-degree rape, forcible or second-degree rape, aggravated burglary, armed robbery, assault by drive-by shooting, first-degree or second-degree robbery, simple robbery, terrorism, cruelty or second-degree cruelty to juveniles, or various controlled substances offenses. Finally, it may be charged when the offender had a specific intent to kill or inflict great bodily harm and had previously acted with a specific intent to kill or inflict great bodily harm, resulting in the death of at least one person.

A death sentence must not be imposed unless the jury finds that at least one statutory aggravating circumstance (as enumerated in Article 905.4) exists and determines that the death sentence should be imposed after considering any mitigating circumstances. The court must instruct the jury about all of the statutory mitigating circumstances (as enumerated in Article 905.5) and the statutory aggravating circumstances, but the court may decline to instruct the jury on aggravating circumstances not supported by evidence.

Louisiana also makes the death penalty available for treason. It technically makes the death penalty available for first-degree rape of a child, but this would violate the Eighth Amendment.

A shortage of lethal injection drugs currently prevents Louisiana from scheduling executions.

Maine Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Maine abolished the death penalty in 1887, inspired in part by a scandal over a botched hanging two years earlier.

Maryland Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Maryland abolished the death penalty in 2013. Over the previous decade or so, the state briefly had a moratorium on executions and then drastically narrowed the scope of the death penalty to murder cases that met certain strict requirements, so abolition was unsurprising.

Massachusetts Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Massachusetts abandoned the death penalty in 1984 when the Massachusetts Supreme Judicial Court ruled that the death penalty statute violated the Massachusetts Constitution. The Massachusetts General Court (the state legislature) has amended the statute defining the punishment for murder to remove references to capital punishment.

Michigan Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Michigan abolished the death penalty for murder in the 1840s. The current version of the Michigan Constitution, which took effect in 1964, prohibits enacting a law that provides for capital punishment.

Minnesota Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Minnesota abolished the death penalty in 1911, influenced in part by a botched hanging in 1906.

Mississippi Death Penalty Laws

Mississippi law makes the death penalty available for capital murder, which involves the killing of a human being without the authority of law in certain situations. Capital murder may be charged when the defendant killed a law enforcement officer, judge, prosecutor, prison guard, or fireman (or others) while they were acting in their official capacity, the defendant killed an elected official while knowing that they were an elected official, the defendant was already under a sentence of life imprisonment, the defendant detonated a bomb or explosive device, the defendant offered or received something of value for committing the murder, the defendant committed murder on educational property, the defendant killed three or more people in one act or course of conduct, the defendant killed more than three people in a three-year period, or the defendant killed a witness or informant for the government due to their status as a witness or informant.

In addition, capital murder may be charged when the defendant was committing any of certain crimes, such as rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with a child under 12 years old, or felonious abuse or battery of a child, regardless of whether the defendant intended to cause the death.

For a jury to impose a death sentence, it must find in writing that the defendant actually killed, attempted to kill, intended that a killing take place, or contemplated that lethal force would be employed. In addition, the jury must find in writing that sufficient aggravating circumstances exist (as enumerated in Section 99-19-101) and that there are insufficient mitigating circumstances (as enumerated in the same section) to outweigh the aggravating circumstances.

Mississippi also makes the death penalty available for treason and aircraft piracy. (The constitutionality of the aircraft piracy provision is not fully clear.)

Missouri Death Penalty Laws

Missouri law makes the death penalty available for first-degree murder, which is defined as knowingly causing the death of another person after deliberation on the matter. A jury (or a judge in a jury-waived trial) must consider whether a statutory aggravating circumstance enumerated in Section 565.032 is established by the evidence beyond a reasonable doubt and, if so, whether the evidence as a whole justifies a death sentence. The judge or jury has the discretion to consider all the evidence that it finds to be in aggravation or mitigation, including evidence that was received during the guilt phase of the trial and evidence that supports any of the statutory aggravating or mitigating circumstances enumerated in Section 565.032. A jury will be instructed that each juror must consider any evidence that they personally consider to be aggravating or mitigating.

Montana Death Penalty Laws

Montana law makes the death penalty available for deliberate homicide. This is defined in part as purposely or knowingly causing the death of another person. Deliberate homicide also may be charged if the defendant committed or was legally accountable for robbery, sexual intercourse without consent, arson, burglary, kidnapping, aggravated kidnapping, felonious escape, assault with a weapon, aggravated assault, or any other forcible felony if the defendant or anyone legally accountable for the crime caused the death of another person in the course of the felony or during their flight thereafter.

The court must take into account the aggravating and mitigating circumstances enumerated in Section 46-18-303 and Section 46-18-304, respectively, when deciding whether to impose a death sentence on a defendant. The court will impose a death sentence if the jury (or judge if the defendant waived a jury trial) found one or more aggravating circumstances beyond a reasonable doubt, or the defendant pleaded guilty to the offense and admitted to one or more aggravating circumstances, and there are no mitigating circumstances that are sufficiently substantial to call for leniency.

Montana technically makes the death penalty available for aggravated kidnapping in general, and for aggravated assault or aggravated kidnapping in official detention. However, this likely would violate the Eighth Amendment. Montana also technically makes the death penalty available for offenders who commit multiple serious sex offenses, but again this likely would violate the Eighth Amendment.

In 2015, a Montana judge placed a hold on executions in the state, finding that its lethal injection protocol violated the statutory requirement that an “ultra-fast-acting barbiturate” be used. Attempts to revise the law to address this issue have stalled so far.

Nebraska Death Penalty Laws

Nebraska law makes the death penalty available for first-degree murder. This is generally defined as killing another person purposely and with deliberate and premeditated malice, or by administering poison or causing it to be administered. First-degree murder also may be charged if a defendant killed another person while perpetrating first-degree sexual assault, arson, robbery, kidnapping, hijacking of any public or private means of transportation, or burglary. Finally, the statute provides that this crime may involve purposely procuring the conviction and execution of an innocent person through willful and corrupt perjury.

The death penalty may be imposed only when the aggravating circumstances existing in connection with the crime outweigh the mitigating circumstances. Section 29-2523 describes both aggravating and mitigating circumstances. A panel of three judges decides whether the death penalty is appropriate in a particular case. They must consider whether the aggravating circumstances that were determined to exist justify imposing a death sentence, whether sufficient mitigating circumstances exist that approach or exceed the weight of the aggravating circumstances, or whether a death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant.

In 2023, the Nebraska Department of Correctional Services confirmed that it does not have the drugs needed to carry out lethal injections.

Nevada Death Penalty Laws

Nevada law makes the death penalty available for first-degree murder. This is defined in several ways, including murder perpetrated by poison, lying in wait, torture, or any other kind of willful, deliberate, and premeditated killing. It also covers murder committed in the perpetration of an act of terrorism, murder committed to avoid or prevent the lawful arrest of any person or to achieve the escape of any person from legal custody, or murder committed on school property or at a school-sponsored activity in certain circumstances. In addition, first-degree murder may be charged if the defendant committed murder while perpetrating sexual assault, kidnapping, arson, robbery, burglary, home invasion, sexual abuse of a child, sexual molestation of a child under 14 years old, child abuse, or abuse of an older person or vulnerable person.

At the penalty hearing, evidence may be presented about aggravating and mitigating circumstances related to the offense, defendant, or victim, or any other matter that is relevant. Section 200.033 provides certain aggravating circumstances in first-degree murder cases, which the state may introduce if this has been disclosed to the defendant before the hearing, while Section 200.035 provides mitigating circumstances in these cases. (Section 200.035 also generally provides that any other mitigating circumstance may be considered beyond those enumerated in the statute.) A jury may impose a death sentence only if it finds at least one aggravating circumstance and also finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstances found.

In December 2022, Governor Steve Sisolak stated that Nevada does not have “the wherewithal to carry out the death sentence,” due to litigation and problems with getting the drugs for lethal injections.

New Hampshire Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

New Hampshire abolished the death penalty in 2019. A defendant convicted of “capital murder” will be sentenced to life imprisonment without the possibility of parole. However, the repeal of the death penalty law was not retroactive. New Hampshire has one inmate on death row, who may still face execution, likely by lethal injection.

New Jersey Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

New Jersey abolished the death penalty in 2007. It has been replaced by life imprisonment without the possibility of parole. The sentences of the inmates who were on death row at the time have been commuted to life imprisonment without parole.

New Mexico Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

New Mexico abolished the death penalty in 2009. Although the law applied only prospectively and did not affect current death row inmates, the New Mexico Supreme Court vacated their sentences in 2019 and ordered that they be sentenced to life imprisonment.

New York Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

New York abandoned the death penalty in 2004 when the New York Court of Appeals (the highest court in the state) ruled that the death penalty procedures in the state violated the New York Constitution. The sentences of inmates on death row at the time were ultimately commuted to life imprisonment, and execution equipment has been removed from the death chamber.

North Carolina Death Penalty Laws

North Carolina law makes the death penalty available for first-degree murder. This is defined in part as a murder that is perpetrated by means of a weapon of mass destruction, poison, lying in wait, imprisonment, starving, torture, or any other willful, deliberate, and premeditated killing. First-degree murder also includes a murder that is committed in the perpetration of arson, a sex crime (including rape), robbery, kidnapping, burglary, or another felony that is committed with the use of a deadly weapon.

In addition, if a murder was perpetrated with “malice” and committed against a spouse, ex-spouse, or other current or former romantic or sexual partner, and the perpetrator previously was convicted of any of certain enumerated offenses involving the same victim, this will trigger a rebuttable presumption that the murder was a willful, deliberate, and premeditated killing, which would support a charge of first-degree murder. (Malice involves an inherently dangerous act or omission that was done in a reckless and wanton manner, showing a mind lacking regard for human life and social duty.)

A jury may recommend a death sentence only if it finds at least one statutory aggravating circumstance beyond a reasonable doubt, the statutory aggravating circumstance or circumstances are sufficiently substantial to call for the death penalty, and any mitigating circumstance or circumstances are insufficient to outweigh the aggravating circumstance or circumstances. Section 15A-2000 provides lists of aggravating and mitigating circumstances.

As of 2023, ongoing litigation over lethal injections has contributed to a pause in executions. North Carolina has not executed anyone since 2006.

North Dakota Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

North Dakota abolished the death penalty in 1973. Over the previous several decades, it had imposed the death penalty only for treason and murder committed by an inmate already serving a sentence of life imprisonment.

Ohio Death Penalty Laws

Ohio law makes the death penalty available for aggravated murder. This is defined in part as purposely causing the death of someone else with prior calculation and design. Aggravated murder also involves purposely causing the death of someone who was under 13 at the time of the offense, purposely causing the death of someone while being under detention due to being guilty of a felony (or while breaking that detention), or purposely causing the death of a law enforcement officer, first responder, or military member when certain circumstances are present. Finally, aggravated murder may be charged when a defendant purposely caused a death while they were committing or fleeing after committing any of certain crimes, including kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, terrorism, escape, or trespass in a habitation when a person was or was likely to be present there.

Section 2929.04 provides that the death penalty may not be imposed unless at least one aggravating circumstance listed in that statute is specified in the indictment and proved beyond a reasonable doubt. If the prosecution succeeds in doing this, certain mitigating factors that are also listed in the statute must be considered. The existence of any of these mitigating factors does not preclude a death sentence, but they must be weighed against the aggravating circumstances.

A jury will recommend a death sentence only if it finds beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. The court then will impose a death sentence only if it also finds beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. If the defendant waives their right to a jury trial, a three-judge panel will decide the sentence. Similarly, the panel will impose a death sentence only if it finds beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors.

In December 2020, Governor Mike DeWine said that Ohio has an “unofficial moratorium” on executions due to its inability to get the drugs needed to perform lethal injections. In 2023, DeWine postponed an execution scheduled for that year to 2027, citing continuing problems involving the willingness of pharmaceutical companies to provide these drugs to the state.

Oklahoma

Oklahoma law makes the death penalty available for first-degree murder. This is defined in part as causing the death of another person unlawfully and with malice aforethought. (“Malice” means a deliberate intention to unlawfully take away the life of a human being, shown by external circumstances that are capable of proof.) First-degree murder also may be charged when the death of a child resulted from the defendant either willfully torturing or using unreasonable force on a child or maliciously injuring or maiming a child. In addition, this crime may be charged when the defendant solicited someone else unlawfully and with malice aforethought to cause the death of another person in furtherance of certain serious drug crimes, or when the defendant intentionally caused the death of a law enforcement officer or correctional officer or employee while they were performing their duties.

Finally, a defendant may face a first-degree murder charge, even if they acted without malice, if the death of a person resulted from a crime in which they were involved. Crimes that may trigger this charge include shooting a firearm with intent to kill, intentionally discharging a firearm or another deadly weapon into a dwelling, forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, eluding an officer, first-degree burglary, first-degree arson, unlawfully distributing or manufacturing controlled dangerous substances, or trafficking in illegal drugs, among others.

The death penalty must not be imposed unless at least one of the statutory aggravating circumstances listed in Section 21-701.12 is found beyond a reasonable doubt, or if any aggravating circumstance is outweighed by the finding of one or more mitigating circumstances.

Oklahoma also technically makes the death penalty available for offenders who commit multiple serious sex offenses against children, but this likely would violate the Eighth Amendment.

Oregon Death Penalty Laws

Oregon law makes the death penalty available for aggravated murder. This is defined in part as criminal homicide of multiple people that is premeditated and committed intentionally, with the intent to intimidate, injure, or coerce a civilian population or have certain effects on a government. It also is defined as second-degree murder that is committed by a defendant in custody who was previously convicted of certain types of homicide, as well as second-degree murder that is premeditated and committed intentionally against a person who was under 14 years old, or premeditated and committed intentionally against a police officer or correctional officer related to their official duties.

In a sentencing hearing in a death penalty case, the court will instruct the jury to find that the defendant should not receive a death sentence if one or more of the jurors believe that the defendant should not receive a death sentence after considering any aggravating evidence and any mitigating evidence concerning any aspect of the defendant’s character or background, or any circumstances of the offense and any victim impact evidence.

Oregon has had a moratorium on executions since 2011. Governor Kate Brown commuted the sentences of all remaining death row inmates to life imprisonment without parole in 2022, and the state has closed its death row facility.

Pennsylvania Death Penalty Laws

Pennsylvania law makes the death penalty available for first-degree murder and first-degree murder of a law enforcement officer. First-degree murder is broadly defined as an intentional killing, while first-degree murder of a law enforcement officer is defined as intentionally killing a law enforcement officer who is performing their duties, while knowing that the victim is a law enforcement officer.

A jury must issue a death sentence if they unanimously find at least one aggravating circumstance specified in 42 Pennsylvania Consolidated Statutes Section 9711 and no mitigating circumstance, or if the jury unanimously finds one or more aggravating circumstances that outweigh any mitigating circumstances. Otherwise, a jury must issue a sentence of life imprisonment.

Pennsylvania has had a moratorium on executions since 2015. In 2023, Governor Josh Shapiro announced that he will not issue any execution warrants and urged the legislature to abolish the death penalty.

Rhode Island Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Rhode Island abolished the death penalty in 1852. It was reinstated in the 1870s for murder committed by an inmate sentenced to life imprisonment. In 1973, Rhode Island revised the law to impose a mandatory death sentence for murder by inmates in state prisons. However, the Rhode Island Supreme Court struck down this law in 1979, and it was removed from the statutes five years later.

South Carolina Death Penalty Laws

  • Death penalty: Yes, but uncertain whether and how executions can be conducted (details of recent developments below)
  • Execution method: Electrocution, but inmate can choose firing squad or lethal injection, if available (note the ongoing uncertainty over execution methods, described below)
  • Key laws: South Carolina Code of Laws Section 16-3-20 et seq.; Section 24-3-510 et seq.

South Carolina law makes the death penalty available for murder. This is defined very generally as the killing of any person with malice aforethought, either express or implied.

Section 16-3-20 lists potential aggravating and mitigating circumstances in death penalty cases. The death penalty must not be imposed unless at least one of the statutory aggravating circumstances enumerated there is found. If a statutory aggravating circumstance is found, and the jury recommends the death penalty, the judge will sentence the defendant to death. However, before imposing the death penalty, the judge must find that the death penalty was warranted under the evidence of the case and did not result from prejudice, passion, or any other arbitrary factor.

South Carolina also technically makes the death penalty available for offenders who commit multiple serious sex offenses against children, but this likely would violate the Eighth Amendment.

Death row inmates are currently contesting the use of electrocution and a firing squad as execution methods. South Carolina revised its death penalty statute in 2021 to provide for these methods because the Department of Corrections could not obtain lethal injection drugs. Lower courts ruled in favor of the inmates, but the state appealed to the South Carolina Supreme Court. In 2023, though, South Carolina passed a law to improve its access to lethal injection drugs, which could ultimately allow the state to resume executions via that method.

South Dakota Death Penalty Laws

South Dakota law makes the death penalty available for first-degree murder. This is defined in part as homicide that is perpetrated with a premeditated design to cause the death of the person killed or any other human being. First-degree murder also may be charged when homicide was committed by someone engaged in perpetrating arson, rape, robbery, burglary, kidnapping, or the unlawful throwing, placing, or discharging of a destructive device or explosive. Finally, the statute explains that homicide is first-degree murder if it is committed by someone who perpetrated any of the crimes above if they later caused the death of any victim of the crime to prevent its detection or prosecution.

A death sentence must not be imposed unless the jury verdict at the pre-sentence hearing includes a finding of at least one aggravating circumstance and a recommendation that a death sentence be imposed. Section 23A-27A-1 provides a list of aggravating circumstances. Mitigating circumstances are not specifically listed.

Tennessee Death Penalty Laws

  • Death penalty: Yes, but executions have been paused by governor
  • Execution method: Lethal injection (inmate who committed offense before 1999 can choose electrocution); if unavailable, electrocution
  • Key laws: Tennessee Code Section 39-13-204 et seq.; Section 40-23-114 et seq.

Tennessee law makes the death penalty available for first-degree murder. This is defined in part as a premeditated and intentional killing of another person, or a killing of another person committed as a result of the unlawful throwing, placing, or discharging of a destructive device or bomb. In addition, first-degree murder may be charged based on a killing of another person that was committed in the perpetration of an act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated neglect of an elderly or vulnerable adult, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child, or aircraft piracy.

Section 39-13-204 provides that a death sentence will be imposed if the jury unanimously determines that at least one statutory aggravating circumstance has been proven beyond a reasonable doubt, and the statutory aggravating circumstance or circumstances have been proven to outweigh any mitigating circumstances beyond a reasonable doubt. The statute provides lists of both aggravating and mitigating circumstances.

In 2023, Governor Bill Lee announced that the state will not carry out further executions until it addresses problems with the administration of its execution procedures.

Texas Death Penalty Laws

Texas law makes the death penalty available for capital murder. This is defined as intentionally or knowingly causing the death of another person when certain additional circumstances are present. These include murdering a peace officer or fireman acting in the lawful discharge of an official duty, committing a murder for hire or hiring someone to commit a murder, committing a murder while escaping from a penal institution, murdering more than one person in the same criminal transaction or course of conduct, murdering a person under 15 years old, murder related to the victim serving as a judge or justice, or certain situations involving murder by prison inmates. Capital murder also may be charged if a person intentionally commits a murder in the course of committing kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or certain types of terroristic threats.

If a defendant is found guilty of a capital offense, and the prosecution seeks the death penalty, a proceeding will be held to decide whether the defendant should be sentenced to death or life imprisonment without parole. The prosecution must prove beyond a reasonable doubt that there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. (The prosecution must prove an additional issue in some cases. Also, Texas Code of Criminal Procedure Article 37.0711 provides separate procedures for capital cases based on offenses committed before September 1, 1991.)

If the jury finds that the prosecution has met its burden, it must decide whether there is a sufficient mitigating circumstance or circumstances to warrant a sentence of life imprisonment without parole rather than a death sentence. This involves considering all the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant. The court will sentence the defendant to death if the jury decides this issue in the negative.

Texas also technically makes the death penalty available for offenders who commit multiple serious sex offenses against children, but this likely would violate the Eighth Amendment.

Utah Death Penalty Laws

Utah law makes the death penalty available for aggravated murder, which involves numerous circumstances in which the defendant intentionally or knowingly caused the death of another person. Section 76-5-202 lists these circumstances. In addition, it provides that aggravated murder may be charged if the defendant caused the death of another person with reckless indifference to human life (but without intent to kill) if this was related to an act, scheme, course of conduct, or criminal episode in which the defendant was a major participant in committing any of certain serious crimes involving children. Aggravated murder is a capital felony if the prosecution files a notice of intent to seek the death penalty.

In deciding whether the death penalty is appropriate, the jury must consider the totality of the aggravating and mitigating circumstances. The death penalty may be imposed only if the jury is persuaded beyond a reasonable doubt that total aggravation outweighs total mitigation, and if the jury is persuaded beyond a reasonable doubt that the death penalty is justified and appropriate in the circumstances.

Litigation is currently pending over Utah’s death penalty protocols.

Vermont Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Vermont essentially abandoned the death penalty with the U.S. Supreme Court decision in Furman v. Georgia in 1972. The state did not revise its death penalty laws after Furman in an effort to make them constitutional.

Virginia Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Virginia abolished the death penalty in 2021. It was the first state in the South to take this step.

Washington Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Washington abandoned the death penalty in 2018, when the Washington Supreme Court ruled that the death penalty statute violated the Washington Constitution. In 2023, Governor Jay Inslee signed a law that removed the statute, together with others that had been ruled unconstitutional.

Washington, D.C. Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Washington, D.C. essentially abandoned the death penalty with the U.S. Supreme Court decision in Furman v. Georgia in 1972. The District did not revise its death penalty laws after Furman in an effort to make them constitutional. In 1981, the District of Columbia Council formally repealed the death penalty.

West Virginia Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

West Virginia abolished the death penalty in 1965. Some legislators recently have urged reinstating it for extreme cases.

Wisconsin Death Penalty Laws

  • Death penalty: No
  • Execution method: N/A
  • Key laws: N/A

Wisconsin abolished the death penalty in 1853, having issued only one death sentence in its history as a state.

Wyoming Death Penalty Laws

Wyoming law makes the death penalty available for first-degree murder. This is defined as killing a person purposely and with premeditated malice, or in the perpetration of sexual assault, sexual abuse of a minor, arson, robbery, burglary, escape, resisting arrest, or kidnapping or abuse of a child under 16 years old.

Section 6-2-102 provides that the death penalty must not be imposed unless at least one of the aggravating circumstances specified in that section is found. If the jury issues a death sentence, it must designate in writing the aggravating circumstance or circumstances that it unanimously found beyond a reasonable doubt, the mitigating circumstance or circumstances that it unanimously found by a preponderance of the evidence, and the mitigating circumstance or circumstances that any individual juror found by a preponderance of the evidence.

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