Fool’s Gold: How the Federal Death Penalty Has Perpetuated Racially Discriminatory Practices Throughout History

In 2020, President Joe Biden promised to end the federal death penalty during his administration and his Attorney General, Merrick Garland, acknowledged its many longstanding concerns as reasons to pause federal executions pending an internal review of Department of Justice policies and practices. Project 2025, the product of a political conservative movement, calls for President Trump to “obtain finality” for all federal death row prisoners. Before any decision about future use of the federal death penalty is made, it is critically important to understand its history and the serious flaws in the way it is used today.   Although sometimes referred to as the “gold standard” of capital punishment, an analysis of the federal death penalty reveals that it is plagued by the same serious problems as state level capital punishment systems. 

The federal death penalty has been used disproportionately against people of color: to subjugate Native Americans Resisting Colonization, and to intimidate and terrorize newly freed Black Americans. 

Before the start of the Civil War, the federal death penalty was used primarily against white men. After slavery was abolished and the U.S. continued its westward expansion, however, the demographics of those executed shifted. At least 58 Native Americans were executed by the federal government between 1862 and 1899, with the majority killed in mass executions (defined as at least three people executed at the same time). 

Black Americans were also overrepresented among those executed. Before the Civil War, 8 Black people were executed by the federal government; between 1862 and 1899, 47 Black people were federally executed—a 488% increase. Most of these executions occurred during the Reconstruction era, which also saw a dramatic rise in the extralegal lynchings of Black people.

Statistical analyses confirm persistent racial disparities in federal death penalty prosecutions

Since the federal death penalty was reinstated in 1988, multiple studies have demonstrated that racial disparities continue to define federal capital prosecutions. The Death Penalty Information Center’s 1994 review of federal prosecutions found that “no other jurisdiction comes close to th[e] nearly 90% minority prosecution rate” seen at the federal level. A 2001 supplementary study found similarly jarring disparities, with nearly 80% of cases involving non-white defendants. A review of all federal death penalty authorizations from 1989 to June 2024 reveals that these disparities persist: 73% of all cases authorized for prosecution involved defendants of color. 

Similar to use of the death penalty at the state levels, statistics suggest that there is a correlation between the race and gender of a victim and a federal death sentence. Defendants who killed white female victims receive the death penalty at a substantially higher rate than defendants whose victims were not white women.  

1. The federal death penalty is rarely used as intended for a narrow set of crimes that implicate national interests or security. 

When the federal death penalty statute was first implemented in 1790, it prescribed the punishment for a narrow set of crimes that threatened the stability and security of the nation. Capital offenses included crimes such as treason, piracy, and forgery. 

The 1988 Anti-Drug Abuse Act and 1994 Crime Bill dramatically greatly expanded the scope of the federal death penalty.  Many crimes, such as carjacking resulting in death, do not implicate a “substantial federal interest.”  Many of these crimes duplicate available state criminal statutes. 

2. Since 1989, nearly 3 in 4 defendants authorized for federal death penalty prosecution have been people of color.

Federal capital cases must be approved for prosecution by the U.S. Attorney General and pursuant to an internal, confidential process. 73% of capital defendants authorized for death penalty prosecutions from 1989 to June 2024 were non-white. Of all people federally sentenced to death, 60% (48 out of 80) have been people of color. The overrepresentation of non-white defendants persists despite the Department of Justice’s commitment to a “race blind” approach to reviewing and approving capital prosecutions.

3. Federal capital trials are more likely to have juries with fewer people of color, increasing the risk of wrongful conviction and that racial bias will affect the outcome. 

When cases are tried at the federal level, jurors are chosen from the population of a federal district that is larger than the county where the crime occurred. The shift from the county level to the district level is significant when the larger pool “dilutes” the racial composition and results in far fewer people of color in the jury pool. The dilution of the jury pool increases the chances that a defendant will be tried by an all or nearly all white jury. Many academic studies also confirm the importance of racial diversity in capital juries, as diverse juries are more likely to consider all the evidence, deliberate longer, and are more willing to address issues of race, all of which may lead to fairer verdicts.

4. The federal death penalty has the same longstanding systemic flaws as do many state level capital punishment systems. 

Many of the systemic flaws with use of the death penalty at the state level are also present in the federal death penalty system, including ineffective assistance of counsel, prosecutorial misconduct, and arbitrariness. The imprimatur of the federal government, combined with its nearly limitless resources, makes it the heavy favorite in federal courts, frequently overwhelming defense teams that must justify every dollar of expense they request from the same federal judge who is overseeing the trial or appeal.

 Federal capital defendants also share many similar characteristics with state level defendants. All of the 13 prisoners who were executed during the last Trump Administration in 2019-2020 had at least one of three vulnerabilities: intellectual disability or brain damage, serious effects of childhood trauma, and/or serious mental illnesses. Those accused of killing white female victims in both the states and federal system are disproportionately more likely to receive a death sentence, a trend that has its roots in historical executions and lynchings. 

5. The federal government authorized the largest mass execution in U.S. history against Native Americans. 

In 1862, the federal government authorized the execution of 38 members of the Dakota tribe. This would become the largest mass execution in U.S. history. The Dakota people were executed for protecting their homelands and resisting colonization. 

This was not the only mass execution of Native Americans in the early history of the federal death penalty. In fact, there were at least 16 other mass executions from 1861 through 1899; 81% of these executions (13 out of 16) involved at least one Native American person.