States Grapple with the Death Penalty

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Delaware lawmakers last week voted to amend the state’s constitution to prohibit the death penalty. Should the measure pass again in the next legislative session, as required for constitutional amendments in the state, Delaware would become only the second state with an explicit constitutional bar on the death penalty, after Michigan. (The death penalty is forbidden in 21 additional states by statute or because their supreme courts have found laws allowing it unconstitutional.)

For death penalty opponents, the move is a rare bright spot. This year, 26 people have been executed nationwide, compared with only nine people by this time last year. As of Tuesday night, when Florida executed Michael Bell, more people have been put to death in 2025 than in any year since 2015. The executions have been concentrated in three states (Florida, South Carolina, and Texas) at a time of declining public support for the death penalty.

Faced with difficulties obtaining the drugs needed for lethal injections — largely because pharmaceutical companies have objected to the use of their products for executions — states have passed laws resurrecting long-abandoned methods like electrocution or adopting untested ones like nitrogen hypoxia.

The results have been gruesome. When Alabama killed Kenneth Smith last year in the country’s first-ever nitrogen hypoxia execution, witnesses said he writhed and gasped for minutes. It took at least 22 minutes for him to die.

This April, a three-person firing squad in South Carolina executed Mikal Mahdi. An autopsy revealed only two bullets struck him, neither in the heart, likely causing him immense suffering while still conscious.

The South Carolina Supreme Court last summer rejected claims that execution by firing squad or electrocution violated the state’s ban on “cruel or unusual” punishment. The court noted that a person killed by firing squad would feel “excruciating pain” for only 10 to 15 seconds unless there was “a massive botch . . . in which each member of the firing squad simply misses the inmate’s heart” — exactly what then happened to Mahdi.

When it comes to challenges to the method of execution, the South Carolina high court is the only one to have considered the constitutionality of the firing squad. However, the high courts of Georgia and Nebraska both declared execution by electric chair cruel and unusual in violation of their state constitutions in 2001 and 2008, respectively. Florida’s found it constitutional in 1999.

The U.S. Supreme Court, meanwhile, “has been very clear repeatedly that it has no interest in method-of-execution challenges,” said John Mills of public-interest law firm Phillips Black, which represents multiple people on death row. “States have become more willing to experiment as a direct result of the federal courts’ unwillingness to get involved and stop them.”

This experimentation and uptick in executions comes amid potentially grave miscarriages of justice. In September, Missouri executed Marcellus Williams despite a motion to vacate his conviction by the prosecutor’s office that originally tried his case. The prosecutor asserted that new evidence undermined the conviction. Missouri attorney general Andrew Bailey argued that res judicata — the principle that parties cannot raise claims or defenses that have already been decided — barred any relief for Williams. The state supreme court rejected the prosecutor’s motion.

In Oklahoma, the Court of Criminal Appeals — the state’s highest court on criminal matters — similarly refused last year to vacate the conviction and death sentence of Richard Glossip, despite the state attorney general’s concession that prosecutorial misconduct required a new trial. The U.S. Supreme Court this term agreed with Glossip and the attorney general and ordered the state to retry Glossip. (Mills represented Glossip in that case.)

And yesterday, a Texas court set a new execution date — October 16 — for Robert Roberson, whose possible innocence sparked an interbranch conflict in December. Roberson was sentenced to death in 2003 for the murder of his daughter based on “shaken baby” syndrome, a diagnosis increasingly labeled “junk science.” The day before he was set to die, a bipartisan state legislative committee issued him a subpoena to testify, forcing the executive branch to either halt the execution or dishonor the subpoena. The Texas Supreme Court held that the legislature’s action interfered with the executive branch’s lawful administration of the death penalty in violation of the separation of powers under the Texas Constitution.

Finally, a case pending before the California Supreme Court claims that the racially discriminatory application of the state’s death penalty violates the state constitution’s equal protection clause. At least one state, Washington, has invalidated its death penalty because it was imposed “in an arbitrary and racially biased manner” in violation of the state’s ban on cruel punishment. Across the country, Black defendants are many times more likely to receive death sentences than similarly situated white defendants. Study after study also shows that the likelihood of a death sentence significantly increases if a victim is white.

During a period when the U.S. Supreme Court has shown little interest in addressing injustices associated with the death penalty, state constitutions can offer an alternative path. “States should be willing to give independent meaning to their constitutional clauses,” Mills said. “There are opportunities there.”

Kathrina Szymborski Wolfkot is a senior counsel at the Brennan Center and the managing editor of State Court Report.

Suggested Citation: Kathrina (Kasia) Szymborski Wolfkot, States Grapple with the Death Penalty as Executions Surge, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Jul. 17, 2025), https://statecourtreport.org/our-work/analysis-opinion/states-grapple-death-penalty-executions-surge