The death penalty is on the decline in the US — here are the states that still have the power to execute prisoners

By Jenny Cheng
Business Inside

  • Attorney General Jeff Sessions issued a memo on Wednesday outlining how federal prosecutors could seek the death penalty for drug traffickers.

  • President Donald Trump has recently been calling for drug dealers to receive the death penalty.

  • But capital punishment has reached record lows across the US — at both the state and federal levels.

  • Though most states still technically retain the death penalty, very few actually use it.

Attorney General Jeff Sessions issued a memo on Wednesday directing federal prosecutors to seek the death penalty on drug traffickers "when appropriate."

Sessions outlined several statutes that allow prosecutors to seek capital punishment for drug-related crime, including racketeering, use of firearms resulting in death during a drug-trafficking crime, murder in furtherance of a continuing criminal enterprise, and dealing in extremely large quantities of drugs.

"I strongly encourage federal prosecutors to use these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation," Sessions' memo said.

The move comes after repeated calls from President Donald Trump in recent weeks for drug dealers to be executed as a solution to the opioid crisis.

"If we don't get tough on the drug dealers, we are wasting our time," Trump told a New Hampshire crowd on Monday. "This is about winning a very, very tough problem, and if we don't get very tough on these dealers, it is not going to happen, folks."

But it's an unusual view to gain prominence in 2018 — use of the death penalty has steadily declined since the 1970s, and few states still execute prisoners regularly.

In fact, despite Trump's newfound advocacy on the issue, the federal government can already seek the death penalty for drug traffickers under current law— but it doesn't, and it would likely run afoul of a 2008 Supreme Court ruling if it tried.

The majority of states also retain capital punishment, but few of them have actually used it in recent years. There are even 16 states that haven't executed a single prisoner since 1976, according to The Marshall Project.

As the death penalty fades out of use across the country, many states have even put the issue on the ballot in recent years. But voters have been reluctant to abolish capital punishment completely, no matter how rarely it's used.

Jenny Cheng/Business Insider

Here are all the states that still retain the death penalty, but haven't executed anyone in at least five years:









New Hampshire

North Carolina



South Carolina




Harvard researchers found in 2016 that the US's use of the death penalty is mainly fueled by just a handful of counties — they're known as "outlier" counties and they're scattered throughout states like Texas, Alabama, and Florida.

The researchers found that the counties that still actively pursue the death penalty tend to have several factors in common: overzealous prosecutors, inadequate defense attorneys, and racial bias.