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. 122000).

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 112001.

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.