Expansion of the Federal Death Penalty

Expansion of the Federal Death Penalty

Issues Highlighted by the Juan Garza Case
The Expansion of the Federal Death Penalty
Federal Death Penalty Procedures
Related Links


Although the federal death penalty has existed since the birth of the United States, it has been used sparingly until fairly recently. After the death penalty was overturned in 1972 (see Furman v. Georgia), most states passed new capital punishment statutes within a few years. However, whether there should be a federal death penalty remained a controversial issue, and Congress did not pass a capital punishment statute until 1988. The first federal execution since 1963 occurred in 2001 when Timothy McVeigh was put to death. The execution of Juan Raul Garza followed one week later.

One of the questions raised about the federal death penalty is whether it subordinates state crime-control policies to those of the federal government, which is less attuned to local needs and norms. Most criminal convictions and almost all death sentences are the products of state law. New questions about the use of the federal death penalty were raised when studies by the Department of Justice indicated disturbing disparities along racial and geographic lines.

Issues Highlighted by the Juan Garza Case

Under the Anti-Drug Abuse Act of 1988 and the Federal Death Penalty Act of 1994, more than 60 crimes became eligible for capital sentences. In 1993, Juan Raul Garza was tried and convicted under the Anti-Drug Abuse Act of 1988, which authorizes the death penalty for persons convicted of homicide carried out as a part of a “continuing criminal enterprise” (i.e., the trafficking of drugs or other illicit goods and services). Garza’s case could have been tried at the state level, but was instead singled out for federal prosecution.

In his appeals and clemency petition, Garza raised numerous issues, including claims of errors in jury instructions, disproportionality of the sentence, the introduction of evidence of murders for which Garza had not been convicted, and racial and geographic bias.

Garza claimed he was denied the benefit of a sentencing jury that was accurately informed regarding the applicable sentencing alternatives. Although the only sentencing possibilities available were life without the possibility of parole and death, the prosecutor and court, according to Garza’s attorneys, suggested to the jury that Garza could be released from prison in as little as 20 years if he were sentenced to life in prison. The Court of Appeals, on the other hand, concluded that the instructions given to the jury were accurate and fair. (See Jury Instructions).

Furthermore, according to Garza’s lawyers, the right to a fair trial (guaranteed by the Due Process Clause of the federal Constitution) prohibits capital sentencing based upon information that the defendant has no opportunity to deny or explain; and this right was violated by the prosecution’s introduction of evidence about four unadjudicated murders committed in Mexico which the prosecutors tied to Garza by the testimony of accomplices. Ten of the twelve non-statutory aggravating factors that made it more likely Garza would be sentenced to death concerned the unadjudicated murders.

Lastly, during Garza’s appeals, his attorneys referred to the Department of Justice’s Report on the Federal Death Penalty System: A Statistical Survey (1988-2000), released in September of 2000. The report showed that from 1988 to 2000, the Department of Justice authorized capital prosecutions for 50% of all cases submitted from Texas, and Hispanics were 2.3 times more likely than non-Hispanics to be selected for federal capital prosecutions authorized by the Department of Justice. Garza, a Hispanic man from Texas, was tried during the period of the study, and Garza’s attorneys claimed the federal death penalty system was biased against offenders with Garza’s racial and geographic characteristics.

The Expansion of the Federal Death Penalty

The federal death penalty was used sparingly up until the mid 20th Century, and not at all from 1972 (when the death penalty was found unconstitutional in Furman v. Georgia) until the adoption of the Anti-Drug Abuse Act in 1988. With the Federal Death Penalty Act of 1994, the scope of the federal death penalty further expanded.

The federal death penalty differs from the death penalty at the state level in that the federal death penalty encompasses a variety of crimes beyond that of first degree murder, including terrorism and large-scale drug trafficking. The federal death penalty can also be applied within any state whether or not it has the death penalty – a fact that critics of the federal death penalty believe oversteps the boundary of states’ rights.

The Anti-Drug Abuse Act of 1988

The federal death penalty was reinstated in the modern era by the Anti-Drug Abuse Act of 1988, also known as the “Drug King Pin” statute. In the landmark case Furman v. Georgia in 1972, the United States Supreme Court had declared all then-existing death penalty statutes unconstitutional because they failed to give juries adequate guidance in selecting the persons to be sentenced to death. But in 1976 and thereafter, the Court upheld a number of new forms of state death-penalty laws (see Gregg v. Georgia), and the death penalty provisions of the Anti-Drug Abuse Act were roughly modeled on those laws.

The Anti-Drug Abuse Act authorizes the death penalty for a defendant convicted in federal court of a murder committed while engaging in a continuing criminal enterprise.

The Act requires the government to prove beyond a reasonable doubt that the defendant intended to commit the murder and that certain aggravating factors listed in the Act applied to this offense. The jury must be unanimous in finding that an aggravating factor exists. The Act permits the defendant to present evidence of any mitigating factors for the jury’s consideration. The jurors are not required to be unanimous in their findings as to mitigating factors. They are required, however, to weigh the aggravating and mitigating factors against each other before deciding whether or not to impose a death sentence. The jurors are not required to recommend a death sentence even if they find that the aggravating factors outweigh the mitigating factors.

The Expansion of the Federal Death Penalty in 1994

The Federal Death Penalty Act of 1994 expanded federal law to make 60 crimes death-eligible. The Act authorizes the death penalty for an individual in any state or territory who committed an offense such as murder of designated 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.

Issues surrounding the Expansion of the Federal Death Penalty

Concerns about federalism prevented the federal death penalty from being adopted after Furman v. Georgia. “Federalism” refers to how power is allocated between the states and the federal government in the United States: what powers should the state have and when, if ever, should the law of the federal government supersede those of the states?

Most criminal convictions and almost all death sentences occur at the state level. When an offense falls under both state and federal jurisdictions, federal statutes supersede those of state governments. For example, if an individual in a state without the death penalty commits a federal capital crime, that defendant can still receive the death penalty under federal law, even though he could also be tried under state law where the most severe punishment is a life sentence. Some critics consider this an usurpation of states’ rights and possibly a violation of the “cruel and unusual punishment” prohibition of the Eighth Amendment of the Bill of Rights (see “When the Federal Death Penalty is ‘Cruel and Unusual’”). There is also concern over using the federal death penalty for non-homicide crimes such as large-scale drug trafficking. On the other hand, the ability of the federal goverment has some unique advantages, according to proponents, such as the ability to more thoroughly investigate and prosecute crimes that violate federal interests or occur in multiple states.

Federal Death Penalty Procedures

Seeking the Death Penalty

The local United States Attorney's Office must obtain the written consent of the Attorney General before seeking the death penalty. A committee within the Department of Justice reviews each death-eligible case and gives its recommendation to the Attorney General. Attorneys for the defense are allowed to present to the review committee reasons why the death penalty should not be sought. The Attorney General makes the final decision on charging.

Appointment of Counsel

An indigent individual indicted for a federal death-eligible crime will be assigned two defense attorneys. One of these attorneys must be "learned in the law of capital cases" and meet the minimum standards for attorneys appointed in capital cases. Because of the inherent complexities of a federal capital case, experienced counsel is essential. To ascertain the quality of defense counsel, federal death penalty statutes recommend defense counsel consult with the local federal defender organization, a program similar to that of the public defender’s office of many cities.


A defendant who has been convicted of a federal capital crime and sentenced to death is allowed one appeal as a matter of right. That appeal is taken to the U.S. Court of Appeals for the Circuit in which the case was tried. In this appeal, the defendant may seek a reversal of his or her conviction or sentence on account of any legal errors that were committed in the course of the trial-court proceedings. A defendant who has been unsuccessful on appeal is also given on additional chance to present certain claims of constitutional error that could not have been raised on appeal, such as a claim that his trial lawyer or his lawyer on appeal was incompetent, or a claim that the government concealed exculpatory evidence at his trial. These claims are presented in a proceeding called the “2255 motion” because the rules for the proceeding are prescribed by section 2255 of Title 28 of the United States Code. All other review, such as U.S. Supreme Court review, is discretionary and can be requested only once, except under the rarest of factual situations requiring both proof of innocence and certain constitutional violations.


For federal death row inmates, the President alone has pardon power. Recently issued guidelines require that an inmate be given 120 days notice of an execution date and be allowed 30 days to file a clemency petition once the execution date has been set.

Questions for Further Analysis:

  • Does the federal death penalty usurp states' jurisdiction over crimes within their state? How or how not?
  • In cases where the crime occurs in an abolitionist state or a state with a moratorium on the death penalty, that are the advantages and disadvantages of the federal death penalty?
  • The United States Supreme Court has more or less said that in state courts, the crime of homicide is necessary for the death penalty (Coker v. Georgia, Lockett v. Ohio). Review the list of crimes that are eligible for the federal death penalty. What are the policy implications for having non-homicide crimes be punishable by the death penalty?

Related Links

Racial and Geographical Disparities in the Federal Death Penalty
The Case of Juan Garza