Department of Justice Releases Memo Calling for Expansion of Federal Death Penalty and New Methods

On April 24, 2026, the Department of Justice’s Office of Legal Policy released a detailed report, Restoring and Strengthening the Federal Death Penalty, call­ing on the Federal Bureau of Prisons (BOP) to rein­state use of a sin­gle-drug (pen­to­bar­bi­tal) exe­cu­tion pro­to­col, and urg­ing Congress to enact sweep­ing leg­isla­tive changes that would expand the reach and speed of the fed­er­al death penal­ty. Alongside the release of the report, DOJ announced that it has direct­ed BOP to imme­di­ate­ly rein­state the pen­to­bar­bi­tal pro­to­col used dur­ing the first Trump Administration and to expand that pro­to­col to include addi­tion­al meth­ods of exe­cu­tion, includ­ing the fir­ing squad. The report was pre­pared at the direc­tion of for­mer Attorney General Pamela Bondi pur­suant to President Donald Trump’s Executive Order, Restoring the Death Penalty and Protecting Public Safety, signed on his first day in office.

The report cov­ers three broad areas: a ret­ro­spec­tive cri­tique of cap­i­tal pun­ish­ment poli­cies and legal deci­sions made under the Biden Administration, a defense of pen­to­bar­bi­tal as an exe­cu­tion drug in lethal injec­tion, and a series of pol­i­cy and leg­isla­tive pro­pos­als to expand use of the fed­er­al death penal­ty. The leg­isla­tive and pol­i­cy agen­da rep­re­sents the most expan­sive fed­er­al cap­i­tal pun­ish­ment pro­pos­als in decades.

Several changes described in the report are already in effect. On February 5, 2025, then-Attorney General Bondi lift­ed the mora­to­ri­um on fed­er­al exe­cu­tions imposed by her pre­de­ces­sor, Attorney General Merrick Garland, but no fed­er­al exe­cu­tions have occurred since 2021, in the clos­ing days of the first Trump Administration. Only three men cur­rent­ly remain on the fed­er­al death row fol­low­ing the com­mu­ta­tion of 37 death sen­tences by President Biden in 2024. Pursuant to President Trump’s Executive Order, Attorney General Bondi also direct­ed fed­er­al pros­e­cu­tors to seek the death penal­ty in all ​“appro­pri­ate cas­es.” In the past year, DOJ has indi­cat­ed its intent to seek the death penal­ty in dozens of cas­es, many of which would not have been con­sid­ered death penal­ty eli­gi­ble by previous administrations.

The report’s most far-reach­ing pro­pos­als will require con­gres­sion­al action before they could become law. Media cov­er­age of DOJ’s report focused heav­i­ly on the rein­tro­duc­tion of the fir­ing squad. The report devotes atten­tion to the con­sti­tu­tion­al­i­ty of this method, though its legal analy­sis relies on a case decid­ed by the Supreme Court almost 150 years ago. The report’s cen­tral author­i­ty for the con­sti­tu­tion­al­i­ty of the fir­ing squad is Wilkerson v. Utah, an 1878 deci­sion by the U.S. Supreme Court hold­ing that exe­cu­tion by shoot­ing does not vio­late the Eighth Amendment. The report con­cludes that ​“Wilkerson remains good law” and that the Court has ​“decline[d] to effec­tive­ly over­rule” it. But Wilkerson was decid­ed when the Supreme Court eval­u­at­ed Eighth Amendment claims by decid­ing whether the framers of the U.S. Constitution would have con­sid­ered a pun­ish­ment cru­el and unusu­al in 1789 — not by using the ​“evolv­ing stan­dards of decen­cy” frame­work that has gov­erned cap­i­tal pun­ish­ment jurispru­dence since Trop v. Dulles (1958), and the stan­dard against which the Court has eval­u­at­ed every method-of-exe­cu­tion case in mod­ern his­to­ry. The Court has nev­er eval­u­at­ed the con­sti­tu­tion­al­i­ty of the fir­ing squad under the cur­rent legal framework.

The report frames the fir­ing squad as an alter­na­tive to lethal injec­tion exe­cu­tions. It states that ​“BOP should fol­low suit” and ​“modif[y] its exe­cu­tion pro­to­col to include addi­tion­al, con­sti­tu­tion­al man­ners of exe­cu­tion” part­ly because, DOJ explains, lethal injec­tion ​“has faced repeat­ed and con­tin­u­ing legal chal­lenges” and because it alleges that ​“anti-death penal­ty activists have waged a pub­lic cam­paign against providers of lethal injec­tion drugs.” The fir­ing squad, elec­tro­cu­tion, and lethal gas are pre­sent­ed as alter­na­tives when pen­to­bar­bi­tal is not avail­able. Five states cur­rent­ly autho­rize use of the fir­ing squad: Idaho, Mississippi, Oklahoma, South Carolina, and Utah. In 2025, Idaho passed leg­is­la­tion mak­ing the fir­ing squad its pri­ma­ry method of exe­cu­tion, which goes into effect on July 1, 2026. Since 1977, just six of the more than 1660 exe­cu­tions that have tak­en place have been by fir­ing squad — less than one per­cent of all U.S. exe­cu­tions in the mod­ern era of the death penalty.

In the com­ing weeks, the DOJ states it plans to pub­lish a pro­posed rule pro­hibit­ing death-sen­tenced pris­on­ers from sub­mit­ting clemen­cy peti­tions — and pro­hibit­ing the Office of the Pardon Attorney from con­sid­er­ing these peti­tions — until deci­sions in the prisoner’s direct appeals and col­lat­er­al attacks are final. The report char­ac­ter­izes the pri­or inter­pre­ta­tion of exist­ing reg­u­la­tions, under which the Pardon Attorney retained author­i­ty to con­sid­er peti­tions sua sponte, regard­less of lit­i­ga­tion sta­tus, as hav­ing ​“nul­li­fied the pur­pose of reg­u­la­tion.” Critics of the pro­posed rule argue it could insu­late unjust sen­tences from time­ly exec­u­tive review. The DOJ also plans to issue a rule that would empow­er states to ​“stream­line” fed­er­al habeas review of cap­i­tal cas­es under Chapter 154 of Title 28. A relat­ed notice of pro­posed rule­mak­ing was pub­lished on March 18, 2026. The report also pro­pos­es per­mit­ting fed­er­al pros­e­cu­tors to impan­el a new jury for a sec­ond penal­ty phase when a jury fails to unan­i­mous­ly reach a sen­tenc­ing deci­sion. Current law requires the court to impose a sen­tence less than death when a jury rec­om­men­da­tion of death is not unanimous.

Federal law cur­rent­ly requires that exe­cu­tions car­ried out by the fed­er­al gov­ern­ment be car­ried out ​“in the man­ner pre­scribed by the law of the State in which the sen­tence is imposed.” The report rec­om­mends amend­ing this pro­vi­sion to give the Attorney General broad­er dis­cre­tion over exe­cu­tion meth­ods, explic­it­ly allow­ing meth­ods not autho­rized by the rel­e­vant state. This pro­pos­al, if enact­ed, would mark a shift in the admin­is­tra­tion of the fed­er­al death penal­ty, and could allow the fed­er­al gov­ern­ment to employ new meth­ods of exe­cu­tion in states whose own laws do not authorize them.

The report also calls on Congress to autho­rize the death penal­ty for a wider range of crimes, includ­ing mur­ders of law enforce­ment offi­cers, mur­ders com­mit­ted by undoc­u­ment­ed peo­ple, and mur­ders com­mit­ted in the course of hate crimes, stalk­ing, domes­tic vio­lence, or mate­r­i­al sup­port for ter­ror­ism. The report also explic­it­ly points to the U.S. Supreme Court’s deci­sion in Kennedy v. Louisiana (2008), in which it held that the Eighth Amendment bars the death penal­ty for the rape of a child where the defen­dant did not intend and did not cause the death of the vic­tim, and express­ly sug­gests the DOJ pur­sue test cas­es or file ami­cus briefs to chal­lenge the Court’s precedent.

The report, notably, pro­pos­es that vic­tims’ fam­i­lies be giv­en a for­mal right to request that the Attorney General set an exe­cu­tion date when a giv­en (unspec­i­fied) peri­od of time has passed fol­low­ing the con­clu­sion of judi­cial review, with a writ­ten jus­ti­fi­ca­tion required if the Attorney General declines to set a date. No such right cur­rent­ly exists in state or federal law.