The Federal Death Penalty
Federal Death Row and Description of Cases
Results in Federal Capital Prosecutions and Background on Federal Death Penalty
News and Developments - Current Year
News and Developments - Previous Years
Race
Disposition of Cases
Methods
Appeals
Clemency
Native Americans
Non-Death Penalty Jurisdictions
U. S. Military
STUDIES AND RESOURCES
The Department of Justice Responses to Questions from Senator Russell Feingold in preparation for hearings before the Subcommittee on the Constitution of the Senate Judiciary Committee (June 27, 2007)
Full Report
Federal Death Penalty System: A Statistical Survey (1988-2000) (September 12, 2000)
Full Report
DPIC's Summary (Including Overview)
Federal Death Penalty System: Supplemental Data, Analysis and Revised Protocols for Capital Case Review (June 6, 2001)
Full Report
Professor David Baldus' comments on the study
Racial Disparities in Federal Death Penalty Prosecutions: 1988-1994 (DPIC Study)
National Law Journal: "U. S. Death Penalty In Wake of Ashcroft," November 29, 2004
The Federal Death Penalty Resource Counsel Project
Recent Summaries of the Results of Federal Capital Prosecutions
3 executed
44 were sentenced to death and now are pending on appeal or post conviction
1 received clemency
1 awaiting retrial or resentencing after reversal on appeal
95 were sentenced to less than death after jury or judge voted against death
2 death sentence vacated and request for the death penalty withdrawn
15 were acquitted or charges were dismissed before trial on grounds of innocence
15 were dismissed after notice by judge
38 requests for the death penalty withdrawn before or at trial
100 cases were discontinued by the government due to a plea bargain
3 died/committed suicide before sentencing
3 received a lesser included conviction
62 awaiting, or now on trial for capital charges
382 - Total
Source: Federal Death Penalty Resource Counsel Project (June 28, 2006)
Cases That Have Gone to Trial
On a national level, 161 capital cases have gone to trial, with 15 resulting in verdicts of not guilty on all capital counts in the case. The remaining 146 cases have resulted in 95 life sentences and 51 death sentences (or 32% of the cases that have gone to trial). On a national level in federal capital cases, 73% of the defendants (281 out of 385) are members of minorities.
(New York Law Journal, August 2, 2006).
Minorities Dominate Federal Death Penalty Prosecutions
Since 1988, the federal government has authorized seeking the death penalty against 382 defendants. Of the 382 approved prosecutions, 278 (73%) were against minority defendants. Of these defendants, 104 have been white, 64 Hispanic, 16 Asian/Indian/Pacific Islander, 3 Arab and 195 African American. Of the 44 inmates currently on federal death row, 26 (59%) are members of a minority group.
(Source: Federal Death Penalty Resource Counsel Project (June 28, 2006)).
Death Sentences by Year Since Reinstatement of Federal Death Penalty
|
Year |
2007 |
2006 |
2005 |
2004 |
2003 |
2002 |
2001 |
2000 |
1999 |
|
Death Sentences |
6 |
5 |
6 |
10 |
2 |
5 |
2 |
2 |
1 |
|
1998 |
1997 |
1996 |
1995 |
1994 |
1993 |
1992 |
1991 |
1990 |
|
|
5 |
3 |
4 |
2 |
0 |
5 |
0 |
1 |
0 |
(Source: Bureau of Justice Statistics, yearly "Capital Punishment" reports).
Background
In addition to the death penalty laws in many states, the federal government has also employed capital punishment for certain federal offenses.
The United States federal death penalty was first used on June 25, 1790, when Thomas Bird was hanged for murder in Maine. Since then, according to studies by the Capital Punishment Research Project, 336 men and 4 women have been executed under federal auspices. Of these inmates, 134 (39%) were white; 118 (35%) black; 63 (19%) Native American; and 25 (7%) were Hispanic or unknown. In the 20th Century, 61% of federal executions were of minority defendants. See also, Race and the Federal Death Penalty
The federal government has utilized hanging, electrocution, and the gas chamber to execute these 340 prisoners. The majority of inmates were executed for murder or crimes resulting in murder, but convictions for piracy, rape, rioting, kidnapping, and spying and espionage also yielded federal executions. Not including those executed under federal jurisdiction because their crimes occurred in the District of Columbia, the U.S. executed 34 individuals, including two women, between 1927 and 1963. Prior to the reinstatement of the federal death penalty in 1988, there had been no federal executions since Victor Feguer was hanged in Iowa for kidnapping in 1963. (In the chart above, the totals include executions in the District of Columbia, whose government is under federal jurisdiction) /p>
In 1972, the United States Supreme Court ruled that all state death penalty statues were unconstitutional because they allowed for arbitrary and capricious application. The federal statute suffered from the same infirmities as the state statutes and no death sentence employing the older federal statutes has been upheld.
For further discussion of the history of the federal death penalty, see R. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role, 26 Fordham Urban Law Journal 347 (1999).
1988 Drug Kingpin Statute
In 1988, a new federal death penalty statute was enacted for murder in the course of a drug-kingpin conspiracy. This statute was modeled on statutes which had been approved by the Supreme Court after its 1972 ruling. Between its enactment and the 1994 expansion of the federal death penalty described below, 6 people were sentenced to death for violating this law. One of the defendants, John McCullah, had his death sentence overturned and was later re-sentenced to life in prison.
1994 Crime Bill Expansion
In 1994, as part of an omnibus crime bill, the federal death penalty was expanded to some 60 different offenses. Among the federal crimes for which people in any state or territory of the U.S. can receive a death sentence are murder of certain government officials, kidnapping resulting in death, murder for hire, fatal drive-by shootings, sexual abuse crimes resulting in death, car jacking resulting in death, and certain crimes not resulting in death, including the running of a large-scale drug enterprise.
Justice Department Finds Racial & Geographical Disparities in Federal Death Penalty
A study was conducted by the U.S. Department of Justice at the request of President Clinton and was released on September 12, 2000. The study, The Federal Death Penalty System: A Statistical Survey (1988-2000), was to describe the Department of Justice's decision-making process for deciding whether to seek the death penalty in individual cases, and to present statistical information focusing on the racial, ethnic and geographical distribution of defendants and their victims at particular stages of the decision-making process.
Released on September 12, 2000, the study found numerous racial and geographic disparities. The report revealed that 80% of the cases submitted by federal prosecutors for death penalty review in the past five years have involved racial minorities as defendants. In more than half of those cases, the defendant was African-American. Attorney General Janet Reno said she was "sorely troubled" by the results of the report and has ordered United States attorneys to help explain the racial and ethnic disparities.
The report also found that 40% of the 682 cases sent to the Justice Department for approval to seek the death penalty were filed by only five jurisdictions.
"I can't help but be both personally and professionally disturbed by the numbers that we discuss today," said Deputy Attorney General Eric Holder. "[N]o one reading this report can help but be disturbed, troubled, by this disparity." Reno is expected to announce more studies of the administration of the federal death penalty. (New York Times, 9/12-13/00) A copy of the report is available on the Department of Justice's web site. See also, DPIC's summary of the report.
Judicial Conference Report on Federal Death Penalty (5/98)
In May 1998, the Subcommittee on Federal Death Penalty Cases of the Committee on Defender Services of the Judicial Conference of the United States prepared a report entitled "Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation." Listed below are some of the major findings of that report:
The number of federal prosecutions in which an offense punishable by death is charged, and to which special statutory requirements for the appointment and compensation of counsel apply, increased sharply after the 1994 Federal Death Penalty Act increased the number of federal crimes punishable by death.
Number of defendants charged with offenses punishable by death:
1991--12
1992--45
1993--28
1994--45
1995-118
1996--159
1997--153
The Number of cases where the Attorney General has authorized seeking the death penalty has increased since the 1994 Federal Death Penalty Act was passed, increasing the number of crimes punishable by death. The number of cases authorized as death penalty cases by year in which the authorization decision was made (figures provided by the Department of Justice):
1990--2
1991--6
1992--16
1993--5
1994--7
1995--17
1996--20
1997--31
The cost of defending cases in which the Attorney General decides to seek the death penalty for commission of an offense potentially punishable by death (authorized cases) is much higher that the cost of defending cases in which the Attorney General declines to authorize the death penalty for an offense punishable by death.
Average total cost per representation of a sample of cases in which the defendant was charged with an offense punishable by death and the Attorney General did not authorize seeking the death penalty: $55,772
Average total cost per representation of a sample of cases in which the defendant was charged with an offense punishable by death and the Attorney General authorized seeking the death penalty: $218,112
The cost of defending a federal death penalty case that is resolved by means of a trial is higher than the cost of defending a case that is resolved through a guilty plea, even though many guilty pleas are entered after most of the preparation for trial has been completed. The number of federal death penalty trials, and the number of individual defendants tried on capital charges, has steadily increased since the federal death penalty was revived by Congress in 1988.
Average total cost per representation of a sample of authorized federal death penalty cases resolved through a guilty plea: $192,333
Average total cost per representation of a sample of authorized federal death penalty cases resolved through a trial: $269,139
Average total cost of prosecuting an authorized federal death penalty case, not including non attorney investigative costs or the costs of experts and other assistance provided by law enforcement agencies: $365,000.
U.S. Attorney General Eric Holder announced that five men being held in Guantanamo prison in connection with the September 11, 2001 attack on the World Trade Center will face trial in federal court in New York City: Khalid Shaikh Mohammed, Ali Abd al-Aziz Ali, Walid bin Attash, Mustafa Ahmed al-Hawsawi and Ramzi bin al-Shibh. These defendants could face the federal death penalty.
C. Savage, "U.S. To Try Avowed 9/11 Mastermind Before Civilian Court in New York," New York Times, November 14, 2009. Five other detainees held in connection with other acts of terrorism will face trials before military commissions: Abd al-Rahim al-Nashiri, Ahmed Mohammed Ahmed Haza al-Darbi, Ibrahim Ahmed Mahmoud al-Qosi, Oma Ahmed Khadr, and Noor Uthman Muhammed.
Race and the Federal Death Penalty
On September 12, 2000 the Justice Department released a study of the federal death penalty system which which found numerous racial and geographic disparities. (see above)
See also Racial Disparities in Federal Death Penalty Prosecutions: 1988-1994, prepared by the Death Penalty Information Center at the request of the Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights.
Other Notes on Dispositions (not updated)
Since the 1994 law expanding the federal death penalty went into effect, 243 cases have been reviewed for capital prosecution and the review committee recommended seeking the death penalty in 69 of these cases.
(Source: Justice Dept. as quoted in Washington Post, 1/11/98)
Since the federal death penalty resumed, the Attorney General's review process has considered seeking the death penalty against 418 defendants, in 283 capital prosecutions were not authorized, and in 135 seeking the death penalty was authorized. The comparable numbers for 1998 alone are: 166 defendants reviewed, 122 not authorized, 44 authorized for the death penalty. (Source: R. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role, 26 Fordham Urban L.J. 347, 429 (1999)).
Method of Execution
Under the 1988 federal death penalty law, no method of execution was provided in the statute. President Bush did issue regulations in 1993 authorizing lethal injection as the method of execution. Under the 1994 law, the manner of execution will be that employed by the state in which the federal sentence is handed down. If that state does not allow the death penalty, the judge may choose another state for the carrying out of the execution. The federal Bureau of Prisons has converted an old cell block in Terre Haute, Indiana, into a new facility for condemned federal prisoners. See also, methods of execution by state.
Appeals
There is only one appeal granted to the defendant as a matter of right and that is an appeal of the sentence and conviction to the U.S. Court of Appeals for the Circuit in which the case was tried. There is also one chance to present any facts which were overlooked or unavailable at the time of the trial. All other review, such as Supreme Court review, is discretionary and can only be requested once, except under the rarest of factual situations requiring both clear proof of innocence and certain constitutional violations.
Clemency
For Federal Death Row inmates, the President alone has pardon power. New guidelines have been issued that require that an inmate be given 120 days notice of an execution date and allowing 30 days to file a clemency petition once the execution date has been set.
Native Americans
The use of the federal death penalty on Native American reservations has been left to the discretion of the tribal governments. Almost all the tribes have opted not to use the federal death penalty.
Death Penalty in Non-Death Penalty Jurisdictions
The U.S. may seek the federal death penalty for violations of federal law in jurisdictions that do not have their own capital punishment statute. In Puerto Rico, which forbids the death penalty under its constitution, a federal judge ruled in 2000 that the death penalty could not be sought against two defendants because the death penalty is "locally inapplicable." (U.S. v. Martinez & Alejandro, No. 99-044 (Dist. Ct. D.P.R. July 17, 2000)). This decision was reversed by the U.S. 1st Circuit Court of Appeals in June 2001 (U.S. v. Martinez & Alejandro, No. 00-2088 (1st Circuit Court of Appeals, June 6, 2001)), and the defendants were tried under the federal death penalty statute. Acosta-Martinez and Rivera-Alejandro were acquitted July 31, 2003. (Associated Press, August 1, 2003).
U.S. Military
The U.S. military has its own death penalty statute, utilizing lethal injection, though no executions have been carried out in over thirty years. See military death row for further information.