Of the 50 states that make up the United States of America, 38 have the death penalty.

Of the 50 states that make up the United States of America, 38 have the death penalty.
Federal law provides for 42 death-qualifiable offences, 38 of which relate to murder. Federal military law also provides for capital punishment.
Some states have laws that prescribe the death penalty for offences that do not involve the death of someone, including treason, espionage, kidnapping, hijacking and drug-trafficking.
California makes train sabotage, and perjury that has lead to a judicial execution, capital offences. A 1995 law in Louisiana allows death sentences for raping a child under 12. Florida and Montana have laws making rape a capital offence irrespective of the age of the victim.
The last execution for rape in the US was carried out in 1964, and no one has been put to death for crimes other than murder since the Supreme Court re-instated the death penalty in 1976.
US criminal procedure divides a trial for murder (or any other capital offence) in two separate stages. During the first stage a popular jury decides if the accused is guilty or innocent, and during the second the same jury, the judge or a group of 3 judges (depending on the state) weigh the mitigating and aggravating circumstances and decide on the punishment. Appeals are also divided into two phases: appeals concerning the guilt or innocence of the accused, and those that deal with the degree of punishment. The fact that the laws of an individual state provide life without parole, that is, without the possibility of the prisoner ever being freed, is considered a positive factor, because it makes the granting of clemency that commutes a death penalty to life without parole more probable.
The US Supreme Court has shaped the practice of the death penalty remarkably in recent years, issuing landmark judgments that have put more safeguards in place and take into account evolving standards of justice.
On January 9, 2002 the Supreme Court underscored its view that jurors choosing between a death sentence and a life term in prison should be told if the convicted killer has no chance of parole. The court ruled 5-4 that jurors at the 1996 trial of a convicted South Carolina killer, William Kelly, should have known that he could never be released if he was sentenced to life in prison. In this case the jury that passed a death sentence on Kelly, was not instructed with regard to the life without parole option.
Even more far-reaching was the effect of two 2002 rulings barring the execution of mentally retarded people and ruling as unconstitutional death sentences issued by judges rather than juries. Both decisions could lead to a number of death sentences being commuted to life in prison.
On June 20, 2002, in Atkins v Virginia, the Supreme Court ruled 6-3 that executions of mentally retarded criminals are “cruel and unusual punishment,” violating the Eighth Amendment to the Constitution. In its decision, the majority cited a growing national consensus on the issue since the high court ruled in 1989 that such executions may be unacceptable. Between 1989 and 2002 the number of states that do not allow the execution of mentally retarded death row prisoners had grown from two to 18. This ruling led to the review of a number of individual cases and to legislative amendments.
On June 24, in Ring v Arizona, the Supreme Court issued the second landmark ruling of the year, with a 7-2 majority declaring it is a violation of the right to trial by jury for a judge to impose a death sentence unless the jury has determined that factors exist justifying such a sentence.
‘What today's decision says is that the jury must find the existence of the fact that an aggravating factor existed,’ Justice Antonin Scalia said in a concurring opinion. Aggravating factors are those related to a crime that legally justify the imposition of a more severe penalty.
‘Those states that leave the ultimate life-or-death decision to the judge may continue to do so - by requiring a prior jury finding of an aggravating factor in the sentencing phase or, more simply, by placing the aggravating factor determination (where it logically belongs anyway) in the guilt phase,’ Scalia said.
The case involved Timothy Ring, an Arizona death row inmate. His death sentence and those of at least 125 other condemned Arizona prisoners were put on hold.
Montana and Indiana had changed their laws in anticipation of the ruling, and Delaware, Colorado, Idaho, Nevada, Nebraska and Arizona revised their laws after the Ring decision. Alabama and Florida remained the only two states that used judge sentencing before Ring v. Arizona that did not make changes to their law. Therefore a judge can still override a jury and pronounce a death sentence.
The ruling, passed in Ring v. Arizona, invalidated death sentencing laws in those states that left it to judges to determine whether a killer should be executed. However the Supreme Court did not make clear if its ruling should apply retroactively to everyone on those states’ death rows.
On the two-year anniversary of this ruling, the Supreme Court determined that its 2002 decision was a procedural rule and thus was not retroactive.
In their decision on Schriro v. Summerlin, on June 24, 2004, the justices ruled 5-4 against Arizona prisoner Warren Wesley Summerlin, sentenced to die more than 20 years earlier by a judge who later lost his job because of a drug problem.
This decision affected at least another 100 death row inmates - 85 in Arizona alone - who argued their death sentences had been improperly determined by judges, not jurors.
Besides the changes made in line with the Supreme Court rulings, a few US states also modified their capital punishment laws in other areas.
Indiana raised the age of eligibility for execution from 16 to 18 years, Pennsylvania legislated to allow post-conviction DNA testing, and California and Washington imposed more stringent standards on trial attorneys in an attempt to improve death penalty representation.
In 2003 the Supreme Court continued to proceed in putting up safeguards, and with the case of Wiggins v. Smith asked that more thorough investigations take place for extenuating circumstances in capital trials.
More safeguards in US death penalty law were added by the United States Congress in 2004, with the approval of the Innocence Protection Act (IPA). The bill passed the US Senate by voice vote on October 9, 2004 and the US House of Representatives on October 6, 2004 in an overwhelming 393-14 vote. This omnibus legislation enhances the rights and protections for all persons involved in the criminal justice system through two different, but complementary, mechanisms: (1) a new set of statutory victims' rights that are both enforceable in a court of law and supported by fully-funded victims' assistance programs; and (2) a comprehensive DNA bill that seeks to ensure that the true offender is caught and convicted for the crime. On October 30, 2004, President George W. Bush signed into law the Innocence Protection Act.
The cycle of landmark decisions came to an end, for now, with the decision taken on March 1, 2005, in which the US Supreme Court declared unconstitutional the execution of people convicted of crimes committed before 18 years of age. In a close 5-4 decision on Roper v. Simmons, concerning Christopher Simmons, a Missouri death row inmate convicted of a murder committed at 17, the Court ruled the execution of minors to be in breach of the Eighth Amendment's ban on cruel and unusual punishments. Of the 38, out of 50, states that retain the death penalty in the US, 19 still allowed the execution of minors. After 22 people had been executed for crimes committed under the age of 18 since 1976, the Supreme Court ruling spared around 72 death row inmates from lethal injection, with the largest chunk of these, 29, in Texas. The last juvenile offender executed was Scott Allen Hain, in Oklahoma on April 3, 2003. Of the total 22 minors executed since 1976, 13 were put to death in Texas. This historic decision brings the US into line with international law and frees the US of the strong international criticism its execution of juveniles provoked.
On June 25, 2003, the European Union and the United States signed an extradition treaty to boost cooperation in the fight against terrorism and in bringing suspects swiftly to trial. The agreement guaranteed for a suspect “the right to a fair trial” including the “right to adjudication by an impartial tribunal established pursuant to law.” The provisions underline the European Union’s categorical opposition to the trial of any of its nationals by special military tribunals such as those announced by Washington after the September 11, 2001 attacks. EU member states, that all oppose the death penalty, get assurance under the treaty that no EU citizen extradited to the United States, which enforces capital punishment, will be put to death.
On March 31, 2004, the International Court of Justice (ICJ) ordered the United States to “review and reconsider” the cases of 51 Mexicans facing execution. The Hague-based court ruled that Washington violated international law by not informing the 51 Mexicans that they were entitled to consular or legal help from their government as it must under the 1963 Vienna Convention. Mexico had taken the case to the ICJ on January 21, 2003. Mexico’s suit before the ICJ, also known as the World Court, concerned capital cases in California, Texas, Arizona, Arkansas, Florida, Nevada, Ohio, Oklahoma and Oregon.
On February 28, 2005, the White House ordered state courts to examine appeals made by 51 Mexican citizens held on death row. Several days later, on March 7, 2005, Secretary of State Condoleeza Rice, informed UN General Secretary Kofi Annan that the United States was withdrawing from the Vienna Treaty's Protocol on Consular Relations. The United States would continue to recognise the right of foreign citizens arrested in the US to meet with an official of their own country but they would not give the International Court of Justice the power to make rulings on appeals made by foreign citizens who claim they were denied of such rights.
The 2004 data relative to the United States alone also confirms the trend towards a diminished use of the death penalty. There were fewer executions, less death sentences and less people on death row. Executions were down from 65 in 2003 to 59 in 2004. The 2004 total is a remarkable 40% less than 1999, which was a record year for executions since the re-introduction of the death penalty in 1976, with 98 people put to death.
Of the 38 states that practice the death penalty in the US, only 12 carried out executions. As has been the case since the reintroduction of the death penalty in 1976, the majority of executions took place in southern states, 85% of the total in 2004. Texas was again the top executioner, with 23 people put to death (24 had been executed in 2003); 7 people were put to death in Ohio (three people had been executed in 2003) and Oklahoma carried out 6 executions (14 people had been executed in 2003).
In 2004, 125 death sentences were passed, down from 144 in 2003, and 54% less compared to 1999. The death row population went down to 3,471 from 3,504 in 2003 and was 4% less than in 1999.
Public opinion polls also show a decrease in support for capital punishment, particularly when the option of life without parole is available. The latest Gallup survey in May 2004 found that 46% of respondents favour life imprisonment over the death penalty, up from 44% in May 2003. During that same time frame, support for capital punishment fell from 53% to 50%. In 1997 the disparity between the two options was 32% in favour of capital punishment.
Various factors led to evolving attitudes on the death penalty issue. Main among these were the imperfections of the system, racial prejudice (in 2004 not one white person was executed for murder cases involving black victims only) class distinctions, and above all the judicial errors coming to light with increasing frequency. In 2004, 6 people were released with evidence of innocence. On February 28, 2005, Derrick Jamison became the 121st person to be released since 1973.
In 2004, the issue of the death penalty did not create any great divisions on the domestic political level. In the campaign for the White House, President George W. Bush, firm backer of executions, did not show any shift in his stance. The contender for the White House, Jhon Kerr, Catholic, had first declared himself against executions but then corrected himself saying he was in favour of the death penalty for terrorists. The elections returned President Bush to power. In his annual 2005 State of the Union address, Bush announced “a proposal to fund special training for defence counsel in capital cases” and a dramatic expansion of the “use of DNA evidence to prevent wrongful conviction” though he later reiterated his belief in the death penalty.
In the US, the real fight over the death penalty is at the level of state legislatures. In 2004, many of the 38 retentionist states in the federation were discussing moratoriums or abolition. The congressional debates were mainly procedural, focused on doubts with regard to the application of capital punishment.
In Illinois, governor Rod Blagojevich signed a law for the modification of the death penalty system in January 2004, but the improvements, however important and beneficial, do not allow the judicial system to be defined as "perfect", said Blagojevich, and thus the moratorium on executions introduced by his predecessor George Ryan in 2000 would remain in place.
In New Jersey, a debate on methods of execution brought about a suspension of the death penalty with Governor Richard J. Codey expressing himself in favour of a moratorium on executions.
But at state level, the most significant action took place in New York State. On April 12, 2005 a powerful committee of the State Assembly, the Committee of Codes, voted 11-7 not to send legislation aimed at reinstating New York's death penalty to the full house. The vote keeps in place the block on the death penalty imposed by the State’s Supreme Court, which declared New York State’s death penalty statute unconstitutional on June 24, 2004.
Counter to the nationwide trend, Maryland interrupted a six-year de facto moratorium with an execution on June 17, 2004 and Connecticut carried out its first execution since 1960 on May 13, 2005.