Although one would expect federal law to be applied evenly, an investigation into the use of the federal death penalty by the Justice Department found significant geographic disparities in prosecutions. The country is divided into federal districts, and local U.S. Attorneys are required to submit all potential death penalty cases to the Attorney General for review and may make a recommendation about seeking the death penalty. The survey reported large disparities in the geographical distribution of federal death penalty recommendations.
From 1995-2000, 42% of the federal cases submitted to the Attorney General for review came from just 5 of the 94 federal districts. Including the 21 districts that have never submitted a case for review by the Attorney General, from 1995-2000, 40 of the 94 federal districts never recommended seeking the death penalty for any defendant.
The Federal Death Penalty System: A Statistical Survey (1988-2000), U.S. Dept. of Justice (Sept. 12, 2000).
In 2001, five days before the first federal execution in 38 years, Attorney General John Ashcroft issued a follow up report concluding there was no bias. The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review, U.S. Dept. of Justice (June 6, 2001). Ashcroft, who claimed that broader use of the federal death penalty would redress the documented geographic disparities in federal capital sentencing, was a long-time supporter of capital punishment. (Wash. Post, 6/7/01).
The Ashcroft report was widely criticized. U.S. Senator Russ Feingold noted that the Justice Department had failed to complete a thorough analysis of the racial and regional disparities with outside experts. See Senator Feingold’s complete statement, in response to the report.
Professor David C. Baldus, law professor and statistician, reviewed the follow up report and its conclusions, noting that the report provided no explanation for clearly documented geographic and regional disparities in the administration of the death penalty:
The September 2000 report clearly showed;that in practice the federal death sentencing system was largely a Southern program. Twelve of the 19 men on federal death row as of September had been sentenced in the South, including 6 from Texas and 4 from Virginia. The Ashcroft report, however, focused;on regional differences in the racial composition of the pools of potential capital cases that the districts had generated (p. 17). This had nothing to do with the regional disparities in the rates at which death eligible defendants in the system had been capitally charged and sentenced to death.
Statement of Professor David C. Baldus to the Honorable Russell D. Feingold
Committee on the Judiciary, U. S. Senate, June 11, 2001.
In November 2015, a federal capital defendant, Donald Fell, filed a motion challenging the constitutionality of the federal death penalty, alleging, in part, that “the persistent capricious circumstance of region” established that the federal death penalty has been arbitrarily applied. Fell alleged that the Federal Death Penalty Act “remains a largely Southern phenomenon. Nearly two-thirds of federal death verdicts have come out of the traditional ‘death belt’ states[, which] sentence federal defendants to death at a significantly higher rate than elsewhere in the country.” He presented data showing that “49 of 81 federal death verdicts have come out of the states that formed the confederacy, more than 62% of all federal capital verdicts.” Three of those states – Texas, Missouri, and Virginia – by themselves accounted for 32 federal death verdicts, or 40% of the total.
This geographic arbitrariness contributed to racial disproportionality in the use of the federal death penalty as well. A review of federal death row by Federal Habeas Corpus Resource Counsel in February 2017 showed that more than 1/3 of federal death row came from Texas, Virginia, and the Eastern District of Missouri. More than 90% of the death-sentenced prisoners in those jurisdictions were defendants of color.
