Background on the Federal Death Penalty

Between the reinstatement of the federal death penalty in 1988 and 2021, 79 defendants have been sentenced to death, of whom 16 have been executed. Three other defendants have had a jury recommend death sentence, but a death sentence was not ultimately imposed. Two of those three defendants have now received lesser sentences. In the third case (John Wayne Johnson), the authorization to seek death was withdrawn.

Federal death row, like state rows and the military row, is a single jurisdiction with its own unique features.

Each federal death penalty case is authorized by the Department of Justice (DOJ) in Washington, DC, in consultation with local United States Attorney Offices. The U.S. Attorneys in each district are the ones who actually prosecute the cases, sometimes with help from attorneys at the DOJ in Washington.

With a few exceptions, federal death row prisoners from all over the country are housed in the Special Confinement Unit at U.S. Penitentiary Terre Haute in Indiana; this is also where the federal death chamber is housed.

Like the state systems, the federal death penalty is concentrated in a few high-use regions:

• The 40 prisoners currently on federal death row come from approximately one-third of the 94 total federal judicial districts.
• Two-thirds of federal death sentences since Congress reauthorized the capital punishment in the 1980s have been imposed in just 3 of the 12 federal judicial circuits: Fourth Circuit (17 sentences), Fifth Circuit (20 sentences), and Eighth Circuit (15 sentences).
• Nearly half of the federal death sentences imposed since Congress reauthorized the capital punishment have been from just three states (TX, VA, MO).
• Ten of the 16 federal executions have been for death sentences imposed in those three states.

Contrary to what many believe, the federal death penalty is frequently employed in cases where a conviction or death sentence would have also been available in state courts. There are no prisoners on the federal row for treason or air piracy, for example, and only one prisoner’s case was related to terrorism. Individuals under federal sentences of death include defendants who were already serving long state prison sentences for the same homicide, those who were prosecuted in federal court because the vehicle used in a carjacking was once shipped through interstate commerce, and others whose case involved the death of an intimate partner. A number of federal death sentences were prosecuted in states that have abolished the death penalty. Click here for a complete list of federal capital offenses.

Method of Execution

Until November 27, 2020, lethal injection was the sole method of execution to be used by the federal government when carrying out a death sentence. At that time, new regulations were promulgated that expanded the choice of execution method to include other methods authorized by the state in which the federal death sentence was imposed. In certain limited instances, that could include execution by electric chair, firing squad, hydrogen cyanide gas, or nitrogen hypoxia. Section 26 of Title 28 of the Code of Federal Regulations establishes the procedures by which federal executions are to take place. Section 26.3 states:

(a) Except to the extent a court orders otherwise, a sentence of death shall be executed:

(1) On a date and at a time designated by the Director of the Federal Bureau of Prisons, which date shall be no sooner than 60 days from the entry of the judgment of death. If the date designated for execution passes by reason of a stay of execution, then a new date shall be designated promptly by the Director of the Federal Bureau of Prisons when the stay is lifted;

(2) At a penal or correctional institution designated by the Director of the Federal Bureau of Prisons;

(3) Under the supervision of a United States Marshal (Marshal) designated by the Director of the United States Marshals Service, assisted by additional qualified personnel selected by the Director of the United States Marshals Service and the Director of the Federal Bureau of Prisons, or their designees, and acting at the direction of the Marshal; and

(4) By intravenous injection of a lethal substance or substances in a quantity sufficient to cause death, such substance or substances to be determined by the Director of the Federal Bureau of Prisons, or by any other manner prescribed by the law of the State in which the sentence was imposed or which has been designated by a court in accordance with 18 U.S.C. 3596(a).

(b) Unless the President interposes, the United States Marshal shall not stay execution of the sentence on the basis that the prisoner has filed a petition for executive clemency.

On July 1, 2021, Attorney General Merrick Garland issued a memorandum declaring a Moratorium on Federal Executions Pending Review of Policies and Procedures, including the November 2020 regulations relating to the manner of execution.
 

Appeals

A federal prisoner sentenced to death has one appeal as a matter of right; the prisoner may appeal his conviction and sentence to the U.S. Court of Appeals for the Circuit in which the case was tried. After the appeal, a federal death-row prisoner may also ask the trial court that imposed the death sentence to review the constitutionality of the conviction and sentence. (See 28 U.S.C. § 2255.) Other review, such as Supreme Court review, is discretionary and can only be requested once, except under the rarest of situations involving clear proof of innocence or a new constitutional rule of law.The President of the United States alone has the power to grant commutation or pardon to a death-row prisoner. The Department of Justice has rules governing petitions for executive clemency; section 1.10 applies specifically to prisoners under a sentence of death.

Race and the Federal Death Penalty

The Racial Geography of the Federal Death Penalty, by G. Ben Cohen & Robert J. Smith, Washington Law Review (2010). “Examining the districts with multiple federal death sentences against black defendants, we document a disquieting relationship between the racial geography of a county where an offense occurs, the demographics of the relevant federal district, and the likelihood that a federal capital defendant will receive a death sentence.”

On September 12, 2000, the Department of Justice released a study of the federal death penalty system, which found numerous racial and geographic disparities. DPIC’s Summary of DOJ Study (DPIC Summary of “The Federal Death Penalty System: A Statistical Survey”).

Racial Disparities in Federal Death Penalty Prosecutions: 1988-1994, prepared by the Death Penalty Information Center at the request of the Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights.

Native Americans

The use of the federal death penalty on Native American reservations has been left to the discretion of the tribal governments. Almost all the tribes have opted out of using the federal death penalty. (See Associated Press, Most American Indian tribes opt out of federal death penalty, AZCentral.com, August 21, 2017.)

Death Penalty in Non-Death Penalty Jurisdictions

The U.S. Government may seek the federal death penalty for violations of federal law in jurisdictions that do not have their own capital punishment statute. For example, in Puerto Rico, which forbids the death penalty under its constitution, a federal judge ruled in 2000 that the death penalty could not be sought against two defendants, Joel Rivera Alejandro and Héctor Óscar Acosta Martínez, because the death penalty is “locally inapplicable” (United States v. Acosta Martinez & Rivera Alejandro, No. 99-044 (July 17, 2000)). This decision, however, was reversed by the U.S. Court of Appeals for the First Circuit in June 2001 (United States v. Acosta-Martinez & Rivera-Alejandro, No. 00-2088 (June 6, 2001)), and the defendants were tried under the federal death-penalty statute. Acosta-Martinez and Rivera-Alejandro were acquitted July 31, 2003 (Associated Press, August 1, 2003).

U.S. Military

The U.S. military has its own death penalty statute, utilizing lethal injection, though no executions have been carried out in more than thirty years. See DPIC’s Military page for further information.

Guantánamo Bay
 

Six detainees charged with federal capital crimes are currently being held at the U.S. Naval Base military prison in Guantánamo Bay, Cuba. Five are charged in relation to the September 11, 2001 terrorist attacks, and one is charged with planning the bombing of the USS Cole. Much of the information relating to these cases is classified and all the participants in the cases—prosecutors, defense lawyers, and court personnel—are required to have top secret security clearance. As a result, significant portions of the proceedings—including court motions and decisions—are heavily redacted or kept secret from the public. For more on the Guantánamo Bay proceedings, read DPIC’s summary here.