INSIGHTi
The Federal Death Penalty:
Recent Developments
July 28, 2020
In July 2019, under U.S. Attorney General Barr’s direction, the Bureau of Prisons (BOP) adopted a
revised Federal Execution Protocol Addendum and promptly scheduled the executions of five federal
death row inmates. The addendum replaced the previous three-drug protocol used in federal executions
with a single-drug procedure. Five death row inmates, who were sentenced to death in 1999, 2003, and
2004, were scheduled to be executed at U.S. Penitentiary Terre Haute, IN. After delay due to ongoing
appeals, the execution of Daniel Lewis Lee on July 14, 2020, ended a 17-year moratorium on the federal
death penalty.
This Insight focuses on federal death penalty policy in the context of death penalty practice in the country
overal .
Capital Punishment Policy
The federal government practiced capital punishment from the country’s beginning until 1972, when the
U.S. Supreme Court (in Furman v. Georgia) found particular applications of capital punishment to be
unconstitutional under the Eighth and Fourteenth Amendments of the Constitution. In 1976, the Supreme
Court considered revised state statutes (in Gregg v. Georgia and several other decisions), and held that the
death penalty was constitutional under certain, limited circumstances. From 1976 through July 27, 2020,
the federal government executed six individuals, including three in July 2020. As of July 28, 2020, there
are 59 individuals on federal death row. While the U.S military justice system has capital punishment as a
sentencing option, it has not executed anyone since 1961. As of January 2020, four individuals reside on
the military’s death row.
Since the Gregg decision in 1976, most executions in the United States have been carried out by the
states; from 1976 through July 28, 2020, states have executed 1,516 individuals. Over 2,500 individuals
currently reside on death row across 30 states, including one inmate in New Hampshire even though it
abolished the death penalty in 2019. Twenty-two states and the District of Columbia do not have the death
penalty.
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Methods of Execution
Lethal injection is the only method of execution used by the federal government and U.S. military. While
28 states use lethal injection as their primary method, some also have alternative methods including
electrocution, lethal gas, hanging, and firing squad. In some states, inmates may choose the method of
execution, depending on the circumstances.
Criminal Procedure and Federal Crimes Punishable by Death
Department of Justice (DOJ) death penalty procedure is based on the Federal Death Penalty Act of 1994
(FDPA), and is codified at 18 U.S.C. Sections 3591 to 3599. The decision to seek or not seek the death
penalty must be considered by the Attorney General’s Review Committee on Capital Cases with input
from the DOJ, Capital Case Section, and approved by the Attorney General. As outlined in U.S. Code,
murder is a federal capital offense if committed under a number of jurisdictional and/or aggravating
circumstances. A few federal capital crimes, including espionage and treason, do not (necessarily) involve
an individual causing the death of another, but DOJ has not sought the death penalty for a crime other
than murder since enactment of the FDPA.
Al current federal death row inmates were sentenced to death for murder of varying degrees and types,
the most common being drug-related kil ings. Two comparatively recent additions to federal death row
are Dzhokhar Tsarnaev, one of two perpetrators convicted of crimes surrounding the Boston Marathon
bombing in 2013, and Dylann Roof, who kil ed nine parishioners at a Charleston, SC, church in 2015.
Tsarnaev, among other crimes, was convicted of use of a weapon of mass destruction resulting in death
and conspiracy; bombing of a place of public use resulting in death and conspiracy; malicious destruction
of property resulting in death and conspiracy; and use of a firearm during and in relation to a crime of
violence causing death, with al of these crimes being punishable by death. Roof, among other crimes,
was convicted of nine counts of using a firearm to commit murder and nine counts of obstruction of
religious exercise resulting in death, both of which are punishable by death.
Public Opinion of the Death Penalty
Americans’ responses to public opinion polling questions about capital punishment vary depending on
how the questions are framed. In 2019, approximately 56% of Gal up survey respondents reported that
they were in favor of the death penalty when asked “are you in favor of the death penalty for a person
convicted of murder?” When respondents were asked in the same poll, “if you could choose between the
following two approaches, which do you think is the better penalty for murder—[… the death penalty (or)
life imprisonment, with absolutely no possibility of parole]?”, 36% of Gal up respondents reported that
they think the death penalty is better, and 60% chose life imprisonment with no possibility of parole.
Considerations for Congress
Given the recent resumption of federal executions, Congress may seek to reexamine or reaffirm the death
penalty as a punishment for certain crimes. Congress could choose to conduct oversight of how DOJ
carries out executions. Congress could review, add, or remove crimes that are punishable by death,
subject to constitutional limitations, among other legislative options.
In the 116th Congress, various bil s have been introduced that would change federal capital
punishment. For example, H.R. 4022 and H.R. 4052/S. 2390 would abolish the death penalty in
U.S. Code. H.R. 4022 would also abolish the military death penalty. H.R. 7120, as passed by the
House, and H.R. 7315 would eliminate the death penalty as a penalty option if death results
while depriving an individual rights under the color of law. Alternatively, some bil s would

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expand the death penalty. For example, H.R. 99 and S. 1508 would expand the list of aggravating
factors in death penalty determinations to include kil ing or targeting first responders, while H.R.
1655 would add the death penalty as a penalty option for certain drug offenses involving
fentanyl. This section does not provide an exhaustive list of bil s, but rather provides examples
that il ustrate ways in which Congress may amend the death penalty.

Author Information

Lisa N. Sacco

Analyst in Illicit Drugs and Crime Policy




Disclaimer
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