In her February 2026 article published by the Georgia State University Law Review, University of the District of Columbia Law Professor Ngozi Ndulue argues that recent trends have shifted the federal death penalty “from being a laggard to being a leader in national death penalty trends.” Written before the most recent changes to federal death penalty policy by the Trump administration were implemented, her article highlights how federal death penalty cases, though numerically few, mirror state-level death penalty laws, laying out a “framework for the future of state death penalty regimes.”
Professor Ndulue begins by explaining that the evolution of the federal death penalty mirrored broader trends in state death penalty laws. After Furman v. Georgia (1972), in which the U.S. Supreme Court invalidated all death penalty statutes, the Federal Death Penalty Act of 1994 reinstated a scheme similar to the federal death penalty that exists today. During this post-Furman era, which accompanied a broader “tough-on-crime” political landscape, the federal death penalty was “a late addition to a national trend of ratcheting up the potential punishment in criminal cases.”
As state abolition efforts gained momentum in the early 2000s and new death sentences declined, federal death sentences remained concentrated in the same regions as state death sentences, with “almost two-thirds of federal death sentences were coming from the most prolific executing states.” Despite this, Professor Ndulue explains that most federal capital trials have not resulted in death sentences, and most individuals sentenced to death have not been executed due to “constitutional and statutory issues including ineffective assistance of counsel, prosecutorial misconduct, and the unconstitutionality of executing defendants with intellectual disability.”
According to Professor Ndulue, the federal death penalty today is “an important player on the capital punishment stage,” as the Trump Administration seeks to expand it. Her article examines the flaws of the federal death penalty, stating that “many of the issues plaguing the states’ administration of the death penalty are present at the federal level.” Professor Ndulue adopts Justice Breyer’s three principal criticisms of the modern death penalty in Glossip v. Gross (2015) — reliability, arbitrariness, and delay — as the analytical framework for her discussion of why the death penalty does not meet constitutional standards.
Professor Ndulue writes that the death penalty is unreliable and “cannot withstand constitutional scrutiny if it is administered in a way that does not set apart the worst of the worst.” Yet, at both the state and federal level, it “is being imposed in cases that warrant a less severe punishment or no punishment at all.” She cites official misconduct, innocence, and reversals as evidence of lack of reliability. She emphasizes official misconduct as a visible issue on federal death row, noting that “prosecutorial misconduct that has led to judicial or executive relief is only the tip of the iceberg.” So far, three federal death sentences have been reversed due to prosecutorial misconduct, while other cases involving similar misconduct resulted in executions. Professor Ndulue highlights Daniel Lee’s case, where prosecutors relied on an alleged prior murder during his federal death penalty trial, despite later-discovered records showing insufficient evidence to charge him. His execution still went forward on July 14, 2020.
Second, the article mentions arbitrariness as another central issue of the federal death penalty. Professor Ndulue cites Justice Potter Stewart’s Furman concurrence, where he “famously likened the predictability of the imposition of a death sentence to the predictability of being struck by lightning.” She cites evidence of racial disparities, such as the fact that two thirds of executed federal death row inmates were convicted of killing white women and that over forty percent of defendants sentenced to death federally are Black. Professor Ndulue also claims that there is “immense regional variation in the [federal death] penalty’s application.” She notes various factors that contribute to geographic arbitrariness, including “local cultural factors,” regional variations in funding for defense counsel, and the makeup of jury pools, where federal courts tend to be “substantially whiter.”
Lastly, Professor Ndulue discusses delay, namely that the average time spent on death row is currently over two decades. This delay is typically caused by “the unavailability of execution drugs, the burden the death penalty puts on court case loads, and the need for additional process to hedge against wrongful executions.” She critiques this trend, as many defendants spend years in solitary confinement and are subjected to multiple execution dates, as what Professor John Bessler characterizes “as a series of mock executions — events that are universally condemned as torture.”
The article closes with two notable developments in the federal death penalty which “pave the way for and predict the direction of the death penalty in the rest of the country.” First, the federal execution spree of 2020 – 2021, which “exposed the willingness of the U.S. Supreme Court to smooth the way for executions, signaling a ‘hands off’ approach to states intent on carrying out death sentences.” Second is former President Biden’s December 2024 mass clemency grant to thirty-seven of the forty people on federal death row, which Professor Ndulue characterizes as “a blueprint for addressing a broken system short of total abolition.” Ultimately, she concludes that the future of the death penalty involves a mixture of both approaches, with “expected successful attempts at execution but also bolder uses of executive clemency to address persistent issues with capital punishment.”
Ngozi Ndulue, The Federal Death Penalty as a Sign of the Times, Georgia State University Law Review, Volume 2, Issue 42, 2026.
