The Federal Death Penalty

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- Background
- 1988 Drug Kingpin Statute
- 1994 Crime Bill Expansion
- Justice Department Finds Racial & Geographical Disparities in Federal Death Penalty 
- Judicial Conference Report on Federal Death Penalty (5/98) 
- Issues - Race and the Federal Death Penalty
- Disposition of the Cases (as of 3/14/01)
- Method of Execution 
- Appeals 
- Clemency
- Native Americans 
- Death Penalty in Non-Death Penalty Jurisdictions 
- U.S. Military 
- Execution of Federal Prisoners Since 1927 (list and information)

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)

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).

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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, though none has been executed. One of the defendants, John McCullah, had his death sentence overturned and was later re-sentenced to life in prison.

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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.

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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. 

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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 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

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Issues - Race and the Federal Death Penalty

Minorities Dominate Federal Death Penalty Prosecutions

Since 1988, the federal government has authorized seeking the death penalty against 211 defendants.  Of the 211 approved prosecutions, 158 (75%) were against minority defendants.  Of these defendants, 53 have been white, 39 Hispanic, 12 Asian/Indian/Pacific Islander, 2 Arab and 105 African American. Of the twenty inmates currently on federal death row,  17 (85%) are members of a minority group.   For a summary of the cases authorized for the federal death penalty.

Of the 211 federal death penalty prosecutions authorized by the Attorney General since 1988, 75% have been against minorities:

- 53 white

- 39 Hispanic

- 14 Asian/Indian/Arab

- 105 African-American.

- 211 prosecutions - 158 (75%) were against minority defendants

(Source:  Federal Death Penalty Resource Counsel Project (3/14/01))

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.

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Disposition of the Cases (as of 3/14/01)

Of the 211 defendants approved by the Attorneys General for capital prosecution since 1988:

- 21 were sentenced to death and now are pending on appeal or post conviction

- 01 received clemency

- 05 awaiting retrial or resentencing after reversal on appeal

- 38 were sentenced to less than death after jury or judge voted against death

- 01 death sentence vacated and request for the death penalty withdrawn

- 05 were acquitted or innocence

- 10 were dismissed after notice by judge

- 28 requests for the death penalty withdrawn before trial

- 75 cases were discontinued by the government due to a plea bargain

- 03 died/committed suicide before sentencing

- 02 received a lesser included conviction

- 23 awaiting, or now on trial for capital charges

- 211 - Total

Source:  Federal Death Penalty Resource Counsel Project (3/14/01)

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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. More information on methods of executions

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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.

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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.

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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. As of July 1, 2000, there were 46 Native Americans on state death rows. (NAACP Legal Defense Fund)

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Death Penalty in Non-Death Penalty Jurisdictions

Only one of the inmates currently on the federal death row is from a jurisdictions which does not have the death penalty under their local law. However, a number of capital federal prosecutions are under way in such jurisdictions. 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)
 

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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. There are 7 men on the military death row, five of whom are black, one white, and one Asian. More information on U.S. Military.

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Execution of Federal Prisoners Since 1927

Further Information:

Convicted murderer James Aldermon was hanged August 17, 1927, at the Broward County Jail in Fort Lauderdale, Florida.

Further Information:

Carl Panzram was arrested for burglary and, in the light of his extensive criminal record, he was handed a 25-year sentence (he was not yet suspected of murder). "I'll kill the first man that bothers me," Panzram told the judge, and sure enough, a few months later, he killed Robert Warnke, foreman of the prison laundry in Leavenworth, battering the unfortunate victim to death with an iron bar. To his evident delight, Paznram was sentenced to death. He refused to appeal, even threatening to kill Human Rights Groups that attempted to appeal on his behalf.

Whilst on Death Row, Panzram was befriended by a young, liberal-minded prison guard named Henry Lesser. Lesser gave Panzram some writing materials which the prisoner used to write his autobiography, detailing his crimes and his nihilistic philosophy:

"In my lifetime I have murdered 21 human beings, I have committed thousands of burglaries, robberies, larcenies, arsons and last but not least I have committed sodomy on more than 1,000 male human beings. For all these things I am not in the least bit sorry." - Carl Panzram

Carl Panzram was hanged on September 5, 1930. When asked by the executioner if he had any last words, Panzram barked "Hurry it up you bastard, I could kill ten men while you're fooling around!"

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Arthur Gooch never killed nor even shot at anyone, but he did participate in kidnapping two policemen in Texas and released them in Oklahoma.  His crime fell under the newly revised Lindbergh kidnapping law, and he was the first man hanged under the new law.  He became the only person that has ever been "legally hanged" at Big Mac.

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Only a handful of people have faced a death-penalty charge in the Eastern District of Michigan. One, 38-year-old Anthony Chebatoris of Hamtramck, was successfully tried and executed. Chebatoris was hanged on July 8, 1938, at the Federal Correctional Institution in Milan. A federal jury had convicted him of shooting and killing a man during a failed bank robbery in Midland.

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Henry Seadlund, 27, was electrocuted July 14, 1938, at the Cook County Jail in Chicago, Illinois. He was convicted of kidnapping and killing Charles Ross, a wealthy greeting card manufacturer. After receiving a $50,000 ransom from Ross' wife, Seadlund killed Ross and his kidnapping accomplice, James Gray.

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Robert Suhay, 25, and Glenn Applegate, 34, were hanged August 12, 1938, at the U.S. Penitentiary in Leavenworth, Kansas. The two were convicted for killing FBI Special Agent Wimberly W. Baker in a gunfight at a Topeka, Kansas, post office.

Further Information:

Robert Suhay, 25, and Glenn Applegate, 34, were hanged August 12, 1938, at the U.S. Penitentiary in Leavenworth, Kansas. The two were convicted for killing FBI Special Agent Wimberly W. Baker in a gunfight at a Topeka, Kansas, post office.

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James Dalhover, 32, was electrocuted November 11, 1938, at the Indiana State Penitentiary in Michigan City. He was convicted of bank robbery and the murder of Indiana trooper Paul Minneman. Dalhover was a member of the infamous Brady gang, which has been credited with more than 100 robberies, including four jewelry stores and five banks. Dalhover was the only member of the gang to survive a shootout with the FBI at a Bangor, Maine, sporting goods store. He was executed a year later.

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The first man to be hanged in Juneau under the auspices of the Territorial Court was Nelson Charles; he was executed in 1939 as punishment for murdering his mother-in-law, Cecilia Johnson, in Ketchikan the previous year. Charles was a Native fisherman, the father of a young daughter, and a veteran of World War I. Newspaper and oral accounts suggest that he was not originally from Alaska, but rather from the Puget Sound area. Charles was known as a peaceful, easy-going man, except that when intoxicated he seemed to have a liquor-induced mania. At the time of his trial and execution Charles was 37 years old.

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Herbert Hans Haupt was a member of the group of German saboteurs who were landed by a German submarine on the morning of June 17, 1942, near Ponte Vedra Beach, Florida.
Haupt was subsequently taken into custody by Agents of the Federal Bureau of Investigation, tried before a military commission in Washington, D.C., and upon his conviction was executed.

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Heinrich Harm Heinck was a member of the group of German saboteurs who were landed by submarine near Amagansett, Long Island, on the morning of June 13, 1942. Heinck was subsequently taken into custody by Agents of the Federal Bureau of Investigation, tried before a military commission in Washington, D.C., and upon his conviction was executed.