Federalism And The Death Penalty

In 2021 there were 22,900 reported non-negligent murders in the United States. Of those murders, 54.4% (12,478) of them were solved, predominantly through state court criminal prosecutions, and secondarily through the death of a few hundred murders a year in the course of the offense, an attempted arrest, or by suicide shortly after committing the murder. (About 10,442 murders per year are not solved.)

But, there were only 311 federal non-negligent homicide prosecutions in that year. Thus, only about 3-4% of all homicide prosecutions are brought under federal criminal statutes, and the balance are brought under state criminal statutes.

Territorial v. Subject-Matter Federal Homicide Prosecutions

Moreover, a large share of the federal criminal homicide prosecutions (probably at least a majority of them) involve murders on Indian Reservations or in some other circumstance where the justification for federal involvement is territorial, rather than under federal laws that are generally applicable throughout the United States.

Only about 1-2% of homicide prosecutions in the U.S. (outside of places where the federal government's authority over murder charges is territorial) are prosecuted in federal court, under federal laws without territorial limitations.

Federal Death Penalty Prosecutions Are Rare

Incidentally, the federal government has brought about 1% of death penalty homicide prosecutions. You can count on your fingers the number of federal death penalty prosecutions committed in states without a death penalty, since the death penalty was reinstated, post-Furman in about 1976.

From 1976 to 8 December 2016, there were 1,533 executions. . . . The South had the great majority of these executions, with 1,249; there were 190 in the Midwest, 86 in the West, and only 4 in the Northeast. No state in the Northeast has conducted an execution since Connecticut, now abolitionist, in 2005. The state of Texas alone conducted 571 executions, over 1/3 of the total; the states of Texas, Virginia (now abolitionist), and Oklahoma combined make up over half the total, with 802 executions between them.

(Source)

16 executions have been conducted by the federal government since 1963.

Of the 16 federal executions took place since 1976, 13 took place during the last six months of the Trump Administration. Specifically:

The last pre-Furman federal execution took place on March 15, 1963, when Victor Feguer was executed for kidnapping and murder, after President John F. Kennedy denied clemency. . .

From 1988 to October 2019, federal juries gave death sentences to eight convicts in places without a state death penalty when the crime was committed and tried. . . .

No federal executions occurred between 1972 and 2001. From 2001 to 2003, three people were executed by the federal government. No further federal executions occurred from March 18, 2003, up to July 14, 2020, when they resumed under President Donald Trump, during which 13 death row inmates were executed in the last 6 months of his presidency. Since January 16, 2021 no further executions have been performed. . . . There are 43 offenders remaining on federal death row. . . .

The most recent person to be executed by the military is U.S. Army Private John A. Bennett, executed on April 13, 1961, for child rape and attempted murder.

The only executions by the federal government committed in states where the death penalty was abolished in the last sixty years were Dustin Lee Honken (Iowa, executed in 2020), Corey Johnson (Virginia, executed in 2021), and Dustin John Higgs (Maryland, executed in 2021). Five other defendants were sentenced to death but died in prison or have not been executed yet, most notoriously the Boston Marathon bomber.

Pro-death penalty conservatives could have used broader federal homicide legislation to expand the death penalty widely into states that have abolished the death penalty, but neither Republican nor Democratic Presidential administrations have chosen to do so, and legislators have not passed budgets or new federal criminal homicide statutes to facilitate this possibility.