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 In the third case (John Wayne Johnson), the autho­riza­tion to seek death was withdrawn.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.