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Posted November 2025In the three glorious years since retirement, I've been asked on several occasions whether I miss working. Nope, when it was time to go, I went. Some unlucky souls go further and ask whether I had a legal specialty. “Death Penalty.” The reaction is like something out of Alice's Restaurant: “What are you in for, kid? Littering. And they all moved away from me on the Group W bench.”1 I have some great war stories, but no one wants to hear them. Typically, the other person immediately realizes that he or she bad needs to have their drink refreshed.
Use of the death penalty is in the news these days, and, for your next cocktail party, you might want to know something strangely educational about it. State and federal death penalty prosecutions are pretty similar . . . until they're not. The primary difference is centralized control over the prosecution by the Department of Justice. Death penalty law in both jurisdictions gets tweaked from time to time, but remains largely the same from one year to the next. In the federal system, however, a change in administration from one party to another, and the concomitant change in leadership of DOJ, often results in a more or less zealous pursuit of the ultimate punishment. For example, early in the Biden administration, DOJ declared a moratorium on the imposition of the death penalty in the federal system. Three and a half years later, on January 15, 2025, Attorney General Merrick Garland announced that the Department of Justice (DOJ) was rescinding the federal government's single-drug pentobarbital lethal injection protocol.
Almost immediately thereafter, on January 20, 2025, President Donald Trump signed more than two dozen Executive Orders, including a call to “restore” the death penalty. It stated, “It is the policy of the United States to ensure that the laws that authorize capital punishment are respected and faithfully implemented, and to counteract the politicians and judges who subvert the law by obstructing and preventing the execution of capital sentences.” The Order instructed the U.S. Attorney General to “pursue the death penalty for all crimes of a severity demanding its use,” including the killing of a law enforcement officer or “a capital crime committed by an illegal alien.”
Trump also encouraged state attorneys general to bring state charges for capital crimes. He called on the Attorney General to “take all necessary and lawful action” to ensure that states with capital punishment have sufficient access to the drugs needed for lethal injection executions. Finally, the Order directed the Attorney General to seek to overrule any established Supreme Court precedent that “limit[s] the authority of state and federal governments to impose capital punishment.” Following up on that directive, on February 5 of this year, shortly after she was confirmed, Attorney General Pam Bondi issued an order compelling U.S. Attorneys in the various districts to indict cases that met the criteria as capital.
Federal death penalty prosecutions are substantially fewer than those in state court. Federal courts primarily see state prosecutions in the context of petitions for habeas relief. The scope of review is limited by statute, and it is generally constrained by the state court record. Federal death penalty prosecutions, on the other hand, start from scratch. They last longer and cost more. To the average person—the average lawyer even—federal death penalty law is obscure, largely because it is so seldom used. I was the Southern District's Death Penalty Staff Attorney for fifteen years; I worked on exactly two cases. As a result, substantially fewer inmates under federal custody have been executed.
In December, 2024, there were only forty inmates facing capital punishment in the federal system. President Biden commuted the sentences of thirty-seven, so there are currently only three—Robert Bowers, Dylann Root, and Dzhokhar Tsarnaev.2 There has been a substantial gap between executions; for example, after Victor Figuer was executed in 1963, it was not until June, 2001, that Timothy McVeigh and Juan Garza met the same fate. There was another execution in 2003, but then a gap until July, 2020. While never officially acknowledged by the United States Government, some believe that the last gap resulted from 9/11 and the European Union countries' reluctance to extradite terrorists to this country, where they faced the possibility of execution.
The statute that sets out the crimes for which execution can be the appropriate punishment in the federal system is much more restrictive than state statutes. 18 USC §3591-99. The ordinary, garden-variety murder (if there is such a thing) doesn't qualify. Broadly speaking, capital crimes for federal purposes fall into these general categories: killing a federal officer, serious drug enterprises, and terrorist acts.
Even when a federal case can be made, there's no guarantee that the feds will prosecute a murder that fits their criteria; sometimes, they defer to the state. For example, the 2012 mass shooting in a movie theatre in Aurora, Colorado, resulted in the death of two active-duty service members. Those murders could have been prosecuted as a capital case under federal law, but, in light of the fact that the local prosecutor would be handling the other murders, and because that district attorney had experience in prosecuting death-eligible murder cases, it made more sense to defer to the State.3 In other cases, there are duplicate indictments.4
The pretrial process for federal death penalty cases is markedly different from the states'. Under state or federal law, an indigent person indicted for a capital offense is entitled to two qualified appointed attorneys. Unless replaced, those attorneys are tasked with representing the defendant through trial, appeal, post- conviction proceedings and applications for clemency. The attorneys are usually appointed shortly after indictment. The federal rate for capital representation is $223.00 per hour; for non-capital cases, it is $175.00
To decide whether to seek the death penalty, state district attorneys have substantial discretion. In the federal system, however, the decision-making process is more complex. The decision to indict a crime as death-eligible is a collaboration between the local U.S. Attorney and the Department of Justice, with DOJ having the last word. The local U.S. Attorney can charge a defendant with a capital crime, but the decision to seek the death penalty must be reviewed by DOJ. After that initial review, a later conference determines whether DOJ believes that the evidence supporting the punishment is enough to persuade a jury to render a judgment that the defendant should be executed.
DOJ makes the final decision on punishment only after presentations from both sides. To impose the death penalty, both state and federal law require an assessment of aggravating and mitigating factors, resulting in a finding that the aggravating circumstances outweigh the mitigating ones. Aggravating factors include premeditation and whether the murder was “especially heinous, cruel, or depraved.” Mitigating circumstances include the defendant's background and whether he acted under severe emotional disturbance.
This review means that a great deal of investigation has to be done at a preliminary stage of the case. Attorneys for both sides begin preparing for their DOJ presentations early on. Typically, defense counsel will ask the court to also appoint an investigator and a mitigation expert. These costs are front-loaded and high; thus, most courts require defense counsel to submit a budget at the beginning of the case.
If DOJ decides to withdraw its request for capital consideration after this process, the Administrative Office of the U.S. Courts encourages judges to reduce the number of attorneys from two to one, and to reduce the remaining lawyer's hourly rate from $223 to $175. In practice, this is not always done. The AO's guidelines also require that, at the conclusion of the case, the cost of the defense be made part of the record. That is not always done either.
Assuming that the defendant is found guilty, and the death penalty is imposed, the Bureau of Prisons will send the prisoner to one of two BOP facilities: one for the men and the other for the few women on federal death row. Male prisoners are incarcerated in the Special Confinement Unit (SCU) at the United States Penitentiary (USP) in Terre Haute, Indiana. Female prisoners are housed at the Federal Medical Center (FMC) Carswell in Fort Worth, Texas. (In a few instances, the BOP has placed prisoners in other facilities, such as ADX Florence in Colorado, but this is rare.)5
If all appeals and petitions for postconviction relief fail, the law provides that the prisoner shall be executed in the same manner used by the state where the crime occurred. If that state prohibits use of the death penalty, then BOP has discretion to pick the method belonging to another state.6 The current method of execution for federal prisoners is by lethal injection.
This is what I left for retirement. Although still fascinated by shows like CSI and Forensic Files, I can honestly say that I never want to see another autopsy photo. I can also live without staying late at the office on execution day, until the prisoner is pronounced dead. Maybe I'm the only Law Geek who finds this subject interesting. Consider this though: you now have a topic of conversation almost guaranteed to get rid of any pesky party guest who is between you and the hors d'oeuvres! Tell them you have photos on your phone, and they’re gone for sure.
