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How Does the Federal Death Penalty Work?

The federal government has announced plans to resume capital punishment. But the order will likely face challenges.
A sign warns away trespassers at the Federal Correctional Complex Terre Haute on July 25th, 2019, in Terre Haute, Indiana, where prisoners on federal death row are held.

A sign warns away trespassers at the Federal Correctional Complex Terre Haute on July 25th, 2019, in Terre Haute, Indiana, where prisoners on federal death row are held.

The United States Department of Justice (DOJ) has directed the Federal Bureau of Prisons to allow the federal government to resume capital punishment for the first time since 2003. In the announcement released Thursday, Attorney General William Barr ordered the executions of five federal death row inmates, scheduled to take place in December of 2019 and January of 2020, with an intention to schedule additional executions at a later date.

"Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding," Barr said in a statement. "The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system."

The statement released by the DOJ includes brief descriptions of the violent crimes committed by each of the five inmates, noting they have all exhausted their appellate and post-conviction remedies, leaving no legal impediments to the application of the death penalty.

Still, the order isn't necessarily a green light to begin executions. It will probably face challenges, particularly regarding Barr's proposed new lethal injection protocol. In case you need a refresher after 16 years, here's an explanation of the current state of the federal death penalty.

How Is the Federal Death Penalty Applied and Executed?

Federal death penalty cases are authorized by the DOJ in consultation with local U.S. attorney offices (U.S. attorneys represent the federal government in district courts and appeals courts). According to Capital Punishment in Context, an online resource for those studying the death penalty, a committee within the DOJ reviews all federal death-eligible cases, taking into consideration defense attorneys' reasons not to seek the death penalty, and makes recommendations to the attorney general on whether to seek the death penalty. Before seeking the death penalty, local U.S. attorneys must obtain the consent of the U.S. attorney general, who makes the final decision on whether to seek the charge.

Those indicted of federal death-eligible crimes are assigned two defense attorneys and are prosecuted by U.S. attorneys. Those who are convicted and sentenced to death are allowed one appeal (except for rare occasions where they can have more), and the president alone has the power to grant clemency to a prisoner on federal death row. Federal prisoners are held in the Special Confinement Unit at U.S. Penitentiary Terre Haute in Indiana. There are currently 62 prisoners on federal death row.

The lengthy list of crimes punishable with the federal death penalty includes offenses like espionage, treason, and various instances of murder. But according to the Death Penalty Information Center, the federal death penalty is frequently applied in cases where a conviction or death sentence would have been available at the state level. All current death row inmates have been convicted of crimes involving murder or death; none have been convicted of treason, espionage, or air piracy, and only one case was related to terrorism.

State Opposition to the Death Penalty Is Still on the Rise

The order comes at a time when more and more states, with mounting conservative support, are making moves to abolish the death penalty: Most recently, New Hampshire repealed the death penalty in May of 2019, and bipartisan legislators in Wyoming, Montana, and Kentucky all introduced bills to end capital punishment in their states this year.

However, state opposition does not impede the federal government from applying the death penalty to a prisoner from that state.

As it stands, 21 states and Washington, D.C., have outlawed the death penalty, four have a governor-imposed moratorium, and 25 allow the death penalty, according to the Death Penalty Information Center. Although it's only legal by state law in half of the U.S., the federal death penalty applies to all 50 states, D.C., and other U.S. jurisdictions.

Is the Federal Death Penalty an Overstep of State Powers?

States traditionally have the power to define and enforce criminal law, leading to questions about the constitutionality of the federal government's right to exercise capital punishment, especially when so many states oppose it. The federal death penalty was outlawed in the 1972 case Furman v. Georgia, which found that it constituted cruel and unusual punishment and was applied in an inconsistent, discriminatory manner. It was reinstated in the Anti-Drug Abuse Act of 1988 for a short list of crimes, and then lengthened to include 60 offenses in the Federal Death Penalty Act of 1994. This drew criticism from a range of scholars, anti-death penalty advocates, attorneys, and more for overriding state powers.

"Problems unique to the federal death penalty include over-federalization of traditionally state crimes and restricted judicial review," Ruth Friedman, director of the Federal Capital Habeas Project, told CNBC. "These and other concerns, including troubling questions about the new execution protocol, are why there must be additional court review before the federal government can proceed with any execution."

Ongoing Challenges to Lethal Injection Protocol Will Likely Pose a Barrier

In his order, Barr directs the federal government to use a new protocol with just one drug, pentobarbital, rather than the three-drug cocktail the government formerly used. But BuzzFeed News reports that the new protocol will immediately end up in court and likely delay the scheduled executions, since legal injections have been effectively suspended by a lawsuit—pending since 2005 and on hold since 2011—that challenges the U.S. government's execution protocol.

"Saying that you are going to adopt a protocol is not the same thing as having a protocol properly adopted through the required administrative procedures," Robert Dunham, the executive director of the Death Penalty Information Center, told CNN.