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The use of capital punishment (the death penalty) as a sentence for heinous criminal acts has been hotly debated over the last few decades. On the books in most states, the death penalty has been challenged at both the state and federal level. Originally, it was challenged on grounds that it violated the Constitutional prohibition against cruel and unusual punishment, and later on the procedural grounds that there were not enough due process protections for defendants. Prison inmates typically bring challenges invoking federal civil rights laws, including 42 U.S. Code, Section 1983, and the Prison Litigation Reform Act.
Legal scholars have argued that since the death penalty is so severe, the law must impose the strictest standards of proof. Consequently, many states have gone through periods in which the death penalty was held as legal, then illegal, then revised and held as legal, then illegal again, and then further revised and held as legal once more. This shifting status has been often criticized for bringing unbalanced and unjust sentencing.
The Supreme Court has since handed down explicit guidelines defining the legal imposition of the death penalty, allowing states a new opportunity to legislate a legal death penalty statute that is less likely to be ruled unconstitutional in the future. But the controversial sentence is still being challenged in the Supreme Court.
A majority of U.S. states have the death penalty, including California, Florida, and Texas. But some states that allow capital punishment through statute nevertheless have banned its use through moratoriums or actions by governors.
In a few states, the statute remains on the books though it has been declared unconstitutional. In some of these cases, the state legislature can either revise or rewrite the death penalty statute if it chooses to make it the law.
In 2008, the Supreme Court held that the Eighth Amendment's Cruel and Unusual Punishments Clause did not permit a state to punish the crime of rape of a child with the death penalty. More broadly, the power of the state to impose the death penalty in non-homicide cases is limited to crimes against the state (e.g. espionage, treason).
Some states still authorize the death penalty for non-homicide crimes such as rape, aggravated kidnapping, and other serious crimes that involve hostage-taking or placing a victim in extreme danger. Of note is California, often known for its more liberal politics, which still lists treason as a capital crime.
The method of execution has become the most controversial element of death penalty statutes. Several states have changed their method of execution. Recent and pending court decisions may influence additional states to alter their prescribed methods of execution in the future.
Learn more about capital punishment laws and methods of execution in the following table. See FindLaw's Death Penalty section for additional articles.
Learn more about Montana capital punishment laws and methods of execution in the following table. See FindLaw's Recent Developments: The Death Penalty section for additional articles.
| Lethal Injection | Alabama, Arizona, Arkansas, California, Colorado, Connecticut*, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico*, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming, U.S. Military, U.S. Government *New Mexico and Connecticut abolished the death penalty but their laws were not retroactive, leaving inmates on death row in each state. |
| Electrocution | Alabama, Arkansas, Florida, Kentucky, [Oklahoma], South Carolina, Tennessee, Virginia |
| Gas Chamber | Arizona, California, Missouri, [Wyoming] |
| Hanging | Delaware, New Hampshire, Washington |
| Firing Squad | Utah: The state authorized the use of a firing squad in the event that the drugs required for lethal injection are unavailable. Prior to this, the firing squad was an option, but was only allowed for inmates who chose this method prior to its elimination in 2004. Oklahoma: The state allows firing squad only if lethal injection and electrocution are found unconstitutional. |
Note: Capital punishment laws are constantly changing -- contact a criminal defense attorney in your state or conduct your own legal research to verify the state law(s) you are researching.
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