According to a review of 2,102 death penalty appeals heard by state supreme courts, in the 15 states where judges are directly elected, judges rejected the death sentence in only 11% of appeals, less than half the 26% reversal rate in the seven states where justices are appointed.

Douglas Johnstone, the retired Alabama Supreme Court justice, told a reporter that judges on the Alabama Court of Criminal Appeals tend to “know, or think, that reversing a criminal case is a way to throw away votes.” Johnstone said, “Affirming a verdict is a way to stay down in the foxhole and not get your head shot off.”

In the same vein, with their livelihoods and careers at stake, prosecutors face electoral pressure to take a 'tough' stance against crime. As opined in the Washington Post in 2014 "prosecutors have lots of professional incentive to rack up convictions, but little to fear for going too far…[because] crime only really motivates voters when they’re in fear of it." This has led to shocking instances of prosecutorial misconduct in many death penalty cases across the US.

Since 1973, at least 202 people have been released from death row with evidence of their innocence.

(Death Penalty Information Center (DPIC) as of 11 December 2025)

It is unknown exactly how many innocent people have been executed in the US. However, the DPIC records a total of 1653 executions since 1973. Given that, this means that there is an approximate rate of one exoneration for every eight executions in the US. 

Bryan Stevenson, prominent defence attorney and founder of the Equal Justice Initiative, noted in 2012 that this is an "astonishing error rate - one of out nine people innocent…we would never let people fly on airplanes if for every nine planes that took off one would crash. But somehow we can insulate ourselves from this problem. It's not our problem. It's not our burden. It's not our struggle."

The DPIC's exoneree count excludes individuals who have been released from death row following plea deals with the prosecution.

The main reasons for wrongful conviction include: 

Capital punishment is administered disproportionately against racial minorities. Numerous modern studies carried out throughout the US have shown that the race of the victim and/or of the perpetrator is a determining factor as to whether the death sentence is imposed. When sentencing standards fail to adequately guide sentencers, decision-makers may fall back on conscious or unconscious prejudices about who are the worst kinds of criminals or who are the more sympathetic victims.

(Death Penalty Information Center)

African Americans are over-represented on death row. According to the Spring 2025 Report by the NAACP Legal Defense Fund, African Americans make up 40.25% of the death row population, but only comprise about 15% of the general population. (Black Demographics, June 2025)

Racial bias is also still present in jury selection. This brilliant Radiolab Presents: More Perfect podcast describes the Batson case, which was "supposed to prevent race-based jury selection, but may have only made the problem worse." It also provides a very clear background to the US jury selection process.

All states and the federal government use lethal injection as their primary method of execution. States use a variety of protocols consisting of one, two or three drugs. The three-drug protocol uses an anaesthetic or sedative, typically followed by pancuronium bromide to paralyse the inmate and potassium chloride to stop the heart. The one or two-drug protocols typically use a lethal dose of an anaesthetic or sedative.

As overseas pharmaceutical companies have ceased exportation of the drugs to the US, states are using new and untested drugs that have resulted in horrific botched executions. In 2014, Clayton Lockett was administered an untested concoction of drugs in a botched and painful execution.

Drug shortages have also resulted in the enactment of a raft of drug-secrecy laws protecting the anonymity of lethal injection drug-makers and the reintroduction of alternative execution methods. In 2015, Utah legalised the firing squad and Oklahoma legalised the gas chamber as backup execution methods.

In this Radiolab Presents: More Perfect podcast, the history of the lethal injection is explored, from its conception by a single doctor to the current drive to educate drug companies about the use of their products.

Since 2002, have had their death sentences vacated due to intellectual disabilities. (Death Penalty Information Cent​​​​​​​er) 

Atkins v. Virginia [2002]: the Supreme Court held that it is a violation of the US Constitution's ban on cruel and unusual punishment to execute death row inmates who suffer from intellectual disability. However, differing definitions between states and the frequent re-categorisation of intellectual disability tests still lead to a real risk of the execution of the intellectually disabled.

Insanity or mental incompetency is addressed separately by the legal system. The Supreme Court has held that inmates who are insane or mentally incompetent, that is, so out of touch with reality that they do not know right from wrong and cannot understand their punishment or the purpose of it, are exempt from execution. Incredibly, if an inmate's mental competency is restored, he or she can then be executed.

Inmates who are mentally ill, but deemed neither incompetent/insane nor intellectually disabled, are not exempt from capital punishment.

For example, Scott Panetti is on Texas' death row. He "has struggled with mental illness for four decades. In the six years before he shot his estranged wife’s parents…he was hospitalized more than a dozen times, diagnosed with schizophrenia, delusions and hallucinations. On one occasion, he became convinced the devil had possessed his home and buried his furniture in the back yard. Today, he believes that prison guards have implanted a listening device in one of his teeth."

Perhaps the most important factor in determining whether a defendant will receive the death penalty is the quality of the representation he or she is provided. Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. There have even been instances in which appointed attorneys have slept through parts of the trial or arrived at the court under the influence of alcohol.