Capital punishment is a legal punishment under the criminal justice system of the United States federal government. It is the most serious punishment that could be imposed under federal law. The serious crimes that warrant this punishment include treason, espionage, murder, large-scale drug trafficking, or attempted murder of a witness, juror, or court officer in certain cases.
The federal government imposes and carries out a small minority of the death sentences in the U.S., with the vast majority being applied by state governments.[1] The Federal Bureau of Prisons (BOP) manages the housing and execution of federal death row prisoners.
In practice, the federal government rarely carries out executions. As a result of the Supreme Court opinion in Furman v. Georgia in 1972, the federal death penalty was suspended from law until its reinstatement by Congress in 1988. No federal executions occurred between 1972 and 2001. From 2001 to 2003, three people were executed by the federal government. No further federal executions occurred from March 18, 2003, up to July 14, 2020, when they resumed under President Donald Trump, during which 13 death row inmates were executed in the last 6 months of his presidency. Since January 16, 2021 no further executions have been performed. On July 1, 2021, U.S. Attorney General Merrick Garland placed a moratorium on all federal executions pending review of policy and procedures.[2] There are 44 offenders remaining on federal death row.[3]
The Crimes Act of 1790 defined some capital offenses: treason, murder, robbery, piracy, mutiny, hostility against the United States, counterfeiting, and aiding the escape of a capital prisoner.[4] The first federal execution was that of Thomas Bird on June 25, 1790, for committing "murder on the high seas", after he murdered his captain while serving on a slave ship.[5][6]
Historically, members of the U.S. Marshals Service conducted all federal executions.[5] Pre-Furman executions by the federal government were normally carried out within the prison system of the state in which the crime was committed. Only in cases where the crime was committed in a territory, the District of Columbia, or a state without the death penalty was it the norm for the court to designate the state in which the death penalty would be carried out, as the federal prison system did not have an execution facility.
The last pre-Furman federal execution took place on March 15, 1963, when Victor Feguer was executed for kidnapping and murder, after President John F. Kennedy denied clemency.
Capital punishment was halted in 1972 after the Furman v. Georgia decision but was once again permitted under the Gregg v. Georgia decision in 1976.
The federal death penalty applies even in areas without a state death penalty since federal criminal law is the same for the entire country and is enforced by federal courts, rather than by state courts. From 1988 to October 2019, federal juries gave death sentences to eight convicts in places without a state death penalty when the crime was committed and tried.[10]
The federal death penalty is also applicable for any crime involving the killing of a United States national even if such killing occurred outside of the United States.[11]
Timothy McVeigh was executed on June 11, 2001, for his involvement in the Oklahoma City bombing, where 168 people were killed. The first federal execution since 1963, it was broadcast on a closed circuit-television to survivors and victims' families.[12]
Most of the federal death row inmates are imprisoned at Federal Correctional Complex in Terre Haute, Indiana.[13] As of 2022[update], aside from those at Terre Haute, two male death row inmates, Dzhokhar Tsarnaev and Kaboni Savage, are held at ADX Florence.[14] Three people have had their sentences commuted to life in prison: one by President Bill Clinton in 2001, and two in 2017 by President Barack Obama, who commuted one death sentence handed down by a federal district court and another issued by a court-martial.[15]
Since 2019
On July 25, 2019, U.S. Attorney General William Barr announced that the federal government would resume executions using pentobarbital, rather than the three-drug cocktail previously used.[16] The Bureau of Prisons' acting director then scheduled 5 convicted death row inmates to be executed in December 2019 and January 2020.[16] However, on November 20, 2019, U.S. District Judge Tanya S. Chutkan issued a preliminary injunction preventing the resumption of federal executions, because the plaintiffs in the case argued that the use of pentobarbital alone violated the Federal Death Penalty Act of 1994.[17] The injunction was upheld by the U.S. Court of Appeals for the District of Columbia Circuit and, on December 6, 2019, by the United States Supreme Court, but it told the court of appeals to rule on the case "with appropriate dispatch". Justices Alito, Gorsuch, and Kavanaugh wrote that they believed the government would ultimately win the case and that they would have set a 60-day deadline for the court of appeals to finalize it.[18] In January 2020, the Justice Department argued to the appeals court that when Congress declared that federal executions must be carried out "in the manner prescribed by the state" where inmates were convicted, it was referring to the general method of execution allowed in states, such as lethal injection, rather than the specific drugs to be used.[19]
In July 2020, the first federal execution under the presidency of Donald Trump was carried out, the first after a 17-year hiatus.[20] Overall, thirteen federal prisoners were executed between July 2020 and January 2021, including the first woman executed by the federal government in 67 years.[21][22]
The Boston Marathon bomber Dzhokhar Tsarnaev was sentenced to death on June 24, 2015, for his role in the terrorist attack of the 2013 Boston Marathon bombings, but that sentence was vacated by a federal appeals court on July 31, 2020.[23] Following a Supreme Court decision, the sentence was reinstated on March 4, 2022.[24]
In the federal system, the final decision to seek the death penalty rests with the United States Attorney General. This differs from states, where local prosecutors have the final say with no involvement from the state attorney general.[25]
The sentence is decided by the jury and must be unanimous.
Sentences of death handed down by a jury cannot be rejected by the judge.[26]
In case of a hung jury during the penalty phase of the trial, a life sentence is issued, even if a single juror opposed death (there is no retrial).[27]
Appeals and clemency
While death row inmates sentenced by state governments may appeal to both state courts and federal courts, federal death row inmates have to appeal directly to federal courts.[28]
The method of execution of federal prisoners for offenses under the Violent Crime Control and Law Enforcement Act of 1994 is that of the state in which the conviction took place. If the state has no death penalty, the judge must select a state with the death penalty for carrying out the execution.[29]
The federal government has a facility and regulations only for executions by lethal injection, but the United States Code allows U.S. Marshals to use state facilities and employees for federal executions.[30][31]
Four Presidents of the United States were slain by assassins while in office. The assassination of Abraham Lincoln was tried by a military commission based on the military nature of the conspiracy. Charles Guiteau's trial was held in a civilian court of the District of Columbia where the assassination of James Garfield happened.
The assassin of William McKinley, Leon Czolgosz, was tried and executed for murder by New York state authorities. The accused assassin of John F. Kennedy, Lee Harvey Oswald, would presumably have been tried for murder by Texas state authorities had he not been killed two days later by Jack Ruby in the basement of the Dallas Municipal Building (then Dallas Police Department headquarters) while being transferred to the county jail. (Ruby himself was initially tried and convicted of murder in a Texas state court, but that was overturned by the Texas Court of Criminal Appeals and he died before he could be retried.) Only after Kennedy's death was it made a federal crime to murder the President of the United States.
The United States military has executed 135 people since 1916. The most recent person to be executed by the military is U.S. Army Private John A. Bennett, executed on April 13, 1961, for child rape and attempted murder. Since the end of the Civil War in 1865, only one person has been executed for a purely military offense: Private Eddie Slovik, who was executed on January 31, 1945, after being convicted of desertion.
For offenses related to their service, members of the military are usually tried in courts-martial that apply the Uniform Code of Military Justice (UCMJ) and may order the death penalty as a possible sentence for some crimes. Military commissions may also be established in the field in time of war to expeditiously try and sentence enemy military personnel under the UCMJ for certain offenses.[35]: 5 [36]: 16–18 Controversially, the Military Commissions Act of 2009 allows military commissions to try and sentence "'alien unprivileged enemy belligerent[s]'" accused of having "'engaged in'" or "'purposefully and materially support[ed] hostilities'" against the United States or its allies, without the benefit of some UCMJ protections.[35]: 7–9 In a military commission trial, the death penalty may only be imposed in case of a unanimous verdict and sentencing decision.[35]: 31
^18 U.S.C. § 3594; see also the U.S. v. Henderson, 485 F.Supp.2d 831, 857 (S.D. Ohio 2007) (recognizing that jury's "recommendation" is binding on the court).
