Legislation

In 2024, death penal­­ty-relat­ed leg­is­la­tion was enact­ed in at least six states (California, Delaware, Louisiana, North Carolina, Tennessee, and Utah) to lim­it use of the death penal­ty, alter exe­cu­tion meth­ods and pro­to­cols, mod­i­fy pro­ce­dures, and increase secre­cy. Death penal­ty abo­li­tion efforts con­tin­ued in more than a dozen states, and 2024 also saw failed efforts to rein­tro­duce the death penal­ty in eight states where it is cur­rent­ly ille­gal. Only one effort to expand the use of the death penal­ty to non-homi­­cide crimes was successful.

On September 26, 2024, Delaware Governor John Carney (D) signed HB 70 into law, for­mal­ly amend­ing Title 11 of the state’s code to remove the death penal­ty and replace it with life with­out parole as the most severe pun­ish­ment for first-degree mur­der. Delaware’s Supreme Court found the state’s death penal­ty statute uncon­sti­tu­tion­al in 2016, inval­i­dat­ing it for future use and effec­tive­ly abol­ish­ing cap­i­tal pun­ish­ment in the state. Delaware is not the only state to leg­isla­tive­ly repeal the death penal­ty years after abol­ish­ing it legal­ly. Last year, Washington enact­ed SB 5087, amend­ing its con­sti­tu­tion to align with the state supreme court’s rul­ing in State v. Gregory (2018), which declared its death penal­ty statute uncon­sti­tu­tion­al because it was applied in an arbi­trary and racial­ly discriminatory manner. 

Since 2022, death penal­ty abo­li­tion bills have been intro­duced in at least 17 oth­er states¹ and at the fed­er­al lev­el. Of note are two pend­ing abo­li­tion bills in Ohio, SB 101 and HB 259, which have bipar­ti­san sup­port. Ohio’s two-year leg­isla­tive ses­sion will end on December 31, 2024. Earlier this year, the Ohio Senate Judiciary Committee held its third hear­ing this fall to dis­cuss SB 101, and HB 259 had two hear­ings in House Finance Committee in 2023. Bill spon­sor Republican Senator Steven Huffman said, ​“Now is the time to abol­ish the death penal­ty in Ohio as a major­i­ty of Americans favor life with­out parole options rather than capital punishment.” 

The United States Supreme Court’s deci­sion in Atkins v. Virginia (2002) declared peo­ple with intel­lec­tu­al dis­abil­i­ties inel­i­gi­ble for the death penal­ty. But the laws and pro­ce­dures of many states make it pos­si­ble for exe­cu­tions of mem­bers of this vul­ner­a­ble group to con­tin­ue. California is the lat­est state to cod­i­fy the Atkins deci­sion, with the pas­sage of SB 1001 on September 28, 2024, mak­ing those with intel­lec­tu­al dis­abil­i­ty statu­to­ri­ly inel­i­gi­ble for the death penal­ty. In pass­ing the bill, the leg­is­la­ture made clear that California ​“does not wish to risk the exe­cu­tion of a per­son with an intel­lec­tu­al dis­abil­i­ty.” In the last two years, how­ev­er, sim­i­lar bills in Texas and Georgia to pro­tect peo­ple with intel­lec­tu­al dis­abil­i­ty have failed. In 2023, HB 381 in Texas sought to mod­i­fy the pro­ce­dure for deter­min­ing intel­lec­tu­al dis­abil­i­ty in cap­i­tal cas­es and align the state’s def­i­n­i­tion with clin­i­cal stan­dards. It passed the Texas House but failed in the Senate. In 2022, HB 1426 sought to mod­i­fy Georgia’s much crit­i­cized and unique stan­dard of proof from ​“beyond a rea­son­able doubt” to a ​“pre­pon­der­ance of the evi­dence,” in line with most oth­er states’ stan­dards. The bill failed to even receive a single vote.

The men­tal com­pe­ten­cy of indi­vid­u­als fac­ing a death sen­tence also con­tin­ues to be a focus for state leg­is­la­tors. Despite long­stand­ing con­cerns from nation­al men­tal health orga­ni­za­tions, the Supreme Court has not pro­hib­it­ed the death penal­ty for peo­ple with severe men­tal ill­ness. Only two states, Kentucky and Ohio, have laws lim­it­ing death penal­ty eli­gi­bil­i­ty for peo­ple with this con­di­tion. Over the past two years, sim­i­lar bills have been intro­duced but have failed to pass in Arkansas, Florida, South Dakota, Tennessee, and Texas. 

A few states have moved recent­ly, albeit unsuc­cess­ful­ly, to change death penal­ty eli­gi­bil­i­ty for per­sons who did not direct­ly cause the death of a vic­tim. Introduced in 2024, Arizona’s SB 1422 sought to repeal the state’s felony mur­der rule and allow any­one con­vict­ed under the exist­ing felony mur­der law to be resen­tenced. The bill failed to pass, as have sim­i­lar efforts in oth­er states, includ­ing a recent attempt in Texas. In 2023, Texas HB 1736 unsuc­cess­ful­ly sought to modify Texas’ ​“law of par­ties” statute to lim­it the death penal­ty only to instances where the defen­dant is a ​“major par­tic­i­pant” in the cap­i­tal mur­der and behaved with ​“reck­less indif­fer­ence to human life.” 

In 2024, death penal­ty rein­state­ment bills were intro­duced in at least eight states (Hawaii, Illinois, Iowa, Maryland, New Jersey, New Mexico, Virginia, and West Virginia) but large­ly failed to receive sub­stan­tial sup­port or action, con­sis­tent with trends in recent years. At the same time, leg­is­la­tion seek­ing to expand the use of the death penal­ty to cer­tain non-homi­­cide, sex-relat­ed crimes expe­ri­enced greater inter­est; one bill was enact­ed this year, in Tennessee. 

In 2023, Florida made sex­u­al bat­tery of a child under the age of 12 a death-eli­gi­ble offense (see HB 1297). Its enact­ment sparked the intro­duc­tion of sim­i­lar leg­is­la­tion seek­ing to make cer­tain non-homi­­cide, sex-relat­ed crimes involv­ing chil­dren death-eli­gi­ble offens­es in at least six states (Idaho, Missouri, Pennsylvania, South Carolina, South Dakota, and Tennessee) and the fed­er­al gov­ern­ment. In 2024, only one of these bills passed. Signed by Tennessee Governor Bill Lee (R) on May 9, 2024, SB 1834 makes rape of a child, aggra­vat­ed rape of a child, or espe­cial­ly aggra­vat­ed rape of a child death-eli­gi­ble offens­es. Tennessee and Florida are now the only states that per­mit the death penal­ty for non-lethal crimes in vio­la­tion of U.S. Supreme Court prece­dent estab­lished in Kennedy v. Louisiana (2008) and inter­na­tion­al law’s ​“most seri­ous offense” standard. 

The remain­ing bills per­mit­ting the death penal­ty for non-homi­­cide crimes intro­duced in Idaho, South Carolina, South Dakota, and the fed­er­al gov­ern­ment all failed. HB 405 and HB 515 in Idaho sought to make lewd con­duct with a minor under 12 years of age a cap­i­tal offense. HB 109 in New Mexico sought to make aggra­vat­ed crim­i­nal sex­u­al pen­e­tra­tion and crim­i­nal sex­u­al pen­e­tra­tion of a child cap­i­tal offens­es, as well as human sex­u­al traf­fick­ing of minors a cap­i­tal offense. H4669 in South Carolina sought to per­mit the death penal­ty for those con­vict­ed of crim­i­nal sex­u­al con­duct with a minor under 11 years of age. H1192 in South Dakota would have made the rape of a child 12 years of age and under a cap­i­tal offense. Federal bill HR 7955 sought to make pos­ses­sion of child pornog­ra­phy a cap­i­tal offense and HR 7957 sought to make a num­ber of crimes involv­ing chil­dren cap­i­tal offens­es, includ­ing traf­fick­ing, exploita­tion, and sex­u­al abuse. Also intro­duced in 2024, Kentucky’s HB 198, which sought to include var­i­ous sex-relat­ed abuse of a victim’s corpse as aggra­vat­ing fac­tors, failed to pass. 

Bills allow­ing suf­fo­ca­tion by nitro­gen gas as an exe­cu­tion method were intro­duced in at least five states (Alabama, Kansas, Louisiana, Nebraska, and Ohio) this year. All but LB970 in Nebraska were intro­duced fol­low­ing Alabama’s unprece­dent­ed use of nitro­gen gas in January to exe­cute Kenneth Smith. Following Mr. Smith’s exe­cu­tion, Alabama’s HB 248 was intro­duced, seek­ing to remove ​“nitro­gen hypox­ia” as an exe­cu­tion method, but that bill did not stop Alabama’s two sub­se­quent exe­cu­tions using nitrogen gas. 

There are duel­ing bills pend­ing in Ohio’s Government Oversight Committee regard­ing the use of nitro­gen gas. HB 392 seeks to add suf­fo­ca­tion by nitro­gen gas as a method of exe­cu­tion, and although pris­on­ers would be asked to choose their pre­ferred method, nitro­gen gas would be used if lethal injec­tion was unavail­able. HB 589, which would pro­hib­it the use of nitro­gen gas as an exe­cu­tion method, was intro­duced in response. 

In a spe­cial ses­sion this year, Louisiana passed HB 6, which added both nitro­gen hypox­ia and elec­tro­cu­tion as alter­na­tive exe­cu­tion meth­ods to the exist­ing method of lethal injec­tion. Governor Jeff Landry signed HB 6 on March 5, 2024. Before the law went into effect on July 1, 2024, a sec­ond bill, SB 430, sought to remove nitro­gen hypox­ia as an autho­rized method of exe­cu­tion. This effort was sup­port­ed by a coali­tion of Jewish activists, who said, ​“The use of poi­son gas for state-sanc­­tioned exe­cu­tion unmis­tak­ably and imme­di­ate­ly evokes for mil­lions of American Jews hor­rif­ic mem­o­ries of the deprav­i­ties our ances­tors suf­fered at the hands of Nazi Germany, where lethal gas was used to mass mur­der our peo­ple.” On April 22, 2024, SB 430 passed in the Senate with a vote of 22 to 16 but failed to pass out of com­mit­tee in the House. 

In Kansas, SB 534 would have added nitro­gen hypox­ia to the state’s exe­cu­tion options but the bill died in com­mit­tee when the ses­sion closed on April 30, 2024.

Louisiana’s HB 734, signed into law on March 22, 2024, with an effec­tive date of August 1, 2024, now pro­hibits death-sen­­tenced pris­on­ers and their fam­i­ly, friends, and legal rep­re­sen­ta­tives, or any­one pur­port­ing to represent the ​“inter­ests” of the pris­on­er, from direct­ly con­tact­ing any victim’s fam­i­ly mem­ber in con­nec­tion with clemen­cy pro­ceed­ings. All con­tact now must be arranged through a victim’s ser­vice coor­di­na­tor appoint­ed by the state, and any­one who vio­lates this pro­vi­sion may be ​“fined not more than five thou­sand dol­lars, [and] impris­oned for not more than three years, with or with­out hard labor, or both.” This leg­is­la­tion appears to be a response to the coor­di­nat­ed mass clemen­cy cam­paign that Governor Landry bit­ter­ly opposed dur­ing 2023 when he was still Louisiana’s Attorney General.

LB 980 in Nebraska attempt­ed unsuc­cess­ful­ly to add two leg­isla­tive offi­cials as exe­cu­tion wit­ness­es. Louisiana’s HB 6 (see above) also made records per­tain­ing to exe­cu­tions con­fi­den­tial, adding to exist­ing lay­ers of secre­cy sur­round­ing Louisiana’s exe­cu­tions. Months before its first exe­cu­tion in 14 years, Utah enact­ed SB 109 on February 16, 2024, pro­hibit­ing the dis­clo­sure of exe­cu­­tion-relat­ed infor­ma­tion and records, specif­i­cal­ly the iden­ti­ties of those involved in exe­cu­tions, includ­ing cor­rec­tions staff, and drug and medical suppliers.