The Federal Death Penalty

INSIGHTi
The Federal Death Penalty
Updated December 1, 2020
In July 2020, under U.S. Attorney General Barr’s direction and a revised Federal Execution Protocol
Addendum (replacing the previous three-drug protocol used in executions with a single-drug procedure),
the federal government resumed executions, ending a 17-year moratorium on the federal death penalty.
Since the beginning of July, eight inmates have been executed and several more federal death row inmates
are scheduled to be executed in December and January.
This Insight focuses on federal death penalty policy in the context of death penalty practice in the country
overal . Most death row inmates in the U.S. reside on state death rows in state prisons across 29 states,
while federal death row inmates reside in various federal prisons and are sent to U.S. Penitentiary Terre
Haute in Indiana to be executed.
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 November 30,
2020, the federal government executed 11 individuals, including 8 in 2020. As of that date, there are 54
inmates 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 April 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 November 30, 2020, states have executed 1,516 individuals. More than 2,500
individuals currently reside on death row across 29 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.
Native American Tribes
Under the Federal Death Penalty Act of 1994 (FDPA), Native American tribes may opt in to the federal
death penalty for capital crimes that occur in Indian Country and are subject to the criminal jurisdiction of
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the federal government. Most have not opted in. For certain federal crimes, the Department of Justice
(DOJ) may seek the death penalty whether a tribe has opted in or not. In 2020, the federal government
executed a tribal member of Navajo Nation for carjacking and murder. Currently, there are no tribal
members on federal death row.
Methods of Execution
Lethal injection is the only method of execution currently used by the federal government and U.S.
military. In November 2020, DOJ issued a new rule al owing federal executions to be carried out “in any
manner consistent with [f]ederal law,” including electrocution, lethal gas, and firing squad. 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
DOJ’s death penalty procedure is based on the 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 the 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. One comparatively recent addition to federal death row is
Dylann Roof, who kil ed nine parishioners at a Charleston, SC, church in 2015. 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 2020, approximately 55% 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?” In 2019, when respondents were asked, “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, several would abolish the death penalty in the U.S. Code or the Uniform Code of Military
Justice. Others would eliminate the death penalty as a penalty option if death results while depriving an
individual’s rights under the color of law. Alternatively, some bil s would expand the death penalty. For
example, some would expand the list of aggravating factors in death penalty determinations to include

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kil ing or targeting first responders, while one bil would add the death penalty as a penalty option for
certain drug offenses involving fentanyl.

Author Information

Lisa N. Sacco

Analyst in Illicit Drugs and Crime Policy




Disclaimer
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