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 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.