How Many States Have the Death Penalty in 2026?
Co-Founding Partners
Texas Bar verified. Reggie London (Texas Bar No. 24043514) and Njeri London (Texas Bar No. 24043266) are the co-founding partners of L and L Law Group, PLLC — based at 5899 Preston Rd, Suite 101 in Frisco, Texas (Collin County), with many 5-star Google reviews, and available 24/7 for criminal defense consultations.
Table of Contents
The official count — 27 states with statutes
States retaining death penalty statutes: Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Wyoming. Plus the federal government (18 U.S.C. §§ 3591–3599) and the U.S. military (Uniform Code of Military Justice). Per the Death Penalty Information Center, the total count is 27 retentionist states.
Active vs. moratorium vs. de facto pause
Among the 27 retentionist states, classifications: (1) Active execution states — those carrying out executions in the past 5 years: Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Kentucky, Mississippi, Missouri, Oklahoma, South Carolina, Tennessee, Texas, Utah. (2) Formal moratorium states — gubernatorial executive order halting executions: California (2019), Oregon (2022 commutations), Pennsylvania (2015). (3) De facto moratorium states — no executions in 10+ years due to procedural/drug issues: North Carolina (last execution 2006), Ohio (last execution 2018), Kansas (no executions since reinstatement 1994), Wyoming (last execution 1992), Montana (last execution 2006), Nebraska (last execution 2018), Nevada (last execution 2006). (4) Functionally inactive — South Dakota (occasional executions), Louisiana (last execution 2010), Arkansas (rapid 2017 cluster, then pause).
Most recent changes
Recent abolitions: Virginia (2021), Colorado (2020), New Hampshire (2019), Washington (judicially abolished 2018), Delaware (judicially abolished 2016), Connecticut (2012, retroactive 2015), Maryland (2013), Illinois (2011), New Mexico (2009), New Jersey (2007). Recent reinstatements or expansions: Alabama added nitrogen hypoxia (2018, first use 2024); Mississippi authorized nitrogen hypoxia (2017); Oklahoma authorized nitrogen hypoxia (2015); Wyoming added firing squad (2014 amendment, though never used post-1976); Tennessee authorized electric chair as inmate-choice (2014). The general trend over the last 20 years has been toward abolition (9 states) with method-expansion in a smaller set of retentionist states.
Federal death penalty status
The federal government has retained the death penalty since the modern reinstatement under the Anti-Drug Abuse Act (1988) and Federal Death Penalty Act (1994). Federal capital offenses: treason, espionage, drug kingpin murders, large-scale drug trafficking causing death, terrorism, murder of federal officials, federal civil rights murders, aircraft hijacking with death, mail bombing. Federal death row inmates are housed at USP Terre Haute, Indiana. In December 2024, President Biden commuted the federal death sentences of 37 of 40 federal death row inmates to life without parole, leaving 3 inmates on federal death row (Dzhokhar Tsarnaev, Robert Bowers, Dylann Roof). Federal executions resumed July 2020 after 17-year pause; 13 federal executions carried out 2020–2021.
Texas and the structural reasons for variation
Texas's execution rate (over 580 since 1976) reflects a combination of factors that distinguish it from other retentionist states: (1) statutory framework under Penal Code § 19.03 and CCP Article 37.071 that produces death sentences in eligible cases; (2) prosecutorial culture in major Texas counties (Harris, Dallas, Bexar, Tarrant) of aggressive capital charging; (3) appellate processing speed at the Texas Court of Criminal Appeals; (4) Fifth Circuit habeas jurisprudence generally less defendant-favorable than Ninth Circuit; (5) reliable drug procurement under compounding pharmacy confidentiality statutes. Other retentionist states often have one or more of these factors absent, contributing to lower execution rates despite retaining death penalty statutes.
Texas Penalty Group 1 Charges by Weight
Texas Health & Safety Code § 481.115 charges escalate by weight:
| Weight | Offense | Range | Fine |
|---|---|---|---|
| Under 1 g | State jail felony | 180 days-2 years state jail | $10,000 |
| 1-4 g | 3rd degree felony | 2-10 years TDCJ | $10,000 |
| 4-200 g | 2nd degree felony | 2-20 years TDCJ | $10,000 |
| 200-400 g | 1st degree felony | 5-99 years/life TDCJ | $100,000 |
| 400 g+ | Enhanced 1st degree | 10-99 years/life TDCJ | $100,000 |
Have a Texas legal question?
Call L and L Law Group for a free, confidential consultation. We handle criminal defense across Collin, Dallas, Denton, and Tarrant counties.
Call (972) 370-5060In our practice defending Texas criminal cases, we have represented clients in Collin, Dallas, Denton, and Tarrant County criminal courts on the full Texas Penal Code and Health & Safety Code spectrum. Reggie's prosecutor background in Dallas County means we know the State's evidentiary playbook; Njeri's trial-trained motion practice anchors the suppression-driven defense work.
Key Legal Terms
- Penalty Group
- Texas Health & Safety Code § 481.102-481.105 classification of controlled substances by abuse potential and accepted medical use. Determines weight tiers and punishment ranges.
- Article 38.23
- Texas Code of Criminal Procedure exclusionary rule. Evidence obtained in violation of any federal or Texas constitutional or statutory provision is inadmissible against the accused.
- Aggregation
- Texas H&S § 481.002(5) rule that the total weight of any controlled substance, including adulterants and dilutants, counts toward the offense weight tier.
- 3g Offense
- CCP Article 42A.054 list of offenses ineligible for judicial probation and requiring 50% sentence served before parole eligibility (formerly Article 42.12 § 3g).
- Pretrial Diversion
- Pre-charge alternative under CCP Article 32.02 in which the prosecution agrees to dismiss charges upon successful completion of conditions (counseling, community service, restitution).
Frequently Asked Questions
What's the difference between "retentionist" and "active" death penalty states?
Retentionist = retains the death penalty statute. Active = actually executes inmates. There are 27 retentionist states but only 18–20 active states. The gap reflects gubernatorial moratoriums (CA, OR, PA) and de facto pauses (NC, OH, KS, WY, NE, NV) where statutes remain but executions don't occur.
How many federal death row inmates are there?
Three as of 2026 — Dzhokhar Tsarnaev, Robert Bowers, and Dylann Roof. The December 2024 Biden administration commutations reduced federal death row from approximately 40 inmates to these three by commuting the rest to life without parole.
When was the last state abolition of the death penalty?
Virginia in 2021. Before that, Colorado in 2020 and New Hampshire in 2019. The pace of abolition has accelerated over the last decade — nine states have abolished since 2007.
Has any state reinstated the death penalty after abolishing it?
Yes — historically, several states abolished and later reinstated (Oregon abolished 1964, reinstated 1978; New Mexico abolished 1969, reinstated 1979). In the modern era post-1972 Furman decision, reinstatement has been rare. New York reinstated in 1995 but the state's reinstated statute was struck down by the New York Court of Appeals in 2004.
Does the U.S. military have the death penalty?
Yes — under the Uniform Code of Military Justice. Military death penalty applies to specific military offenses (treason in time of war, certain murder offenses, espionage). The last U.S. military execution was John Bennett in 1961. Several military death row inmates have had sentences commuted or remain in appeals.
