Arizona v. Fulminante

As of 1998, the following states had no provision for the death penalty: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin. The District of Columbia also did not practice capital punishment.

Of the 38 states that practice the death penalty, 36 provide for automatic review of the death sentence, regardless of the wishes of the defendant. The only exceptions are Arkansas, which simply lacks provisions for automatic review, and South Carolina, in which the defendant may waive sentence review if he or she is deemed competent by the court. Additionally, federal death-penalty procedures do not provide for automatic review after a sentence of death has been passed down.

Usually the highest appellate court in the state conducts the automatic review. Kentucky authorizes waiver of appeal on the defendant's part. In both Mississippi and Wyoming respectively, the defendant's right to waive automatic review and appeal remained open to question as of the end of 1995. Also, rules regarding automatic review of both the conviction and the sentence (as opposed to just one or the other) vary, with Idaho, Indiana, Oklahoma, and Tennessee requiring review only of the sentence.