The death penalty, commonly called capital punishment, represents the highest form of punishment within the United States legal system. Simply put, “capital punishment” is a legal punishment under the criminal justice system of the United States federal government.

It is a sentence reserved for the most egregious crimes, and even then, federal judges have considerable latitude to impose a lesser penalty if mitigating factors call for it.

While more than 2400 prisoners are facing the death penalty at the state level, there are currently only 41 federal prisoners on death row, according to the Death Penalty Information Center.

While rarely carried out, there are numerous federal crimes that quality for capital punishment.

The United States government lists several capital offenses that are punishable by death. They include espionage, treason, and death resulting from aircraft hijacking.

However, most offenses involve murder, such as murder committed during a drug-related drive-by shooting, murder during a kidnapping, murder for hire, and retaliatory murder of a member of the immediate family of law enforcement officials.

Notably, the federal government rarely carries out an execution. State governments carry out most executions. The Federal Bureau of Prisons (BOP) is responsible for the housing and execution of federal death row prisoners.

The United States Constitution defines the circumstances under which the death penalty may be considered a sentencing option. The Federal Death Penalty Act and related provisions govern the procedures for imposing the death penalty.

Some defendants are ineligible for the death penalty regardless of the accused offense, such as children and anyone deemed incompetent to stand trial. Notably, there is no statute of limitations for murder, and the time constraints imposed by due process and speedy trial rights are not usually an impediment to prosecution.

The decision to seek the death penalty in a federal capital case must be reviewed by the Justice Department's Capital Review Committee and approved by the Attorney General. Let's examine further below.

Constitutionality and Use Capital Punishment at the Federal Level

The death penalty is legally sanctioned under federal law, authorized by the U.S. Constitution. The Supreme Court has upheld that the death penalty does not inherently violate the Eighth Amendment, which prohibits cruel and unusual punishment.

However, for the death penalty to be applied, it must meet the criteria of justice and proportionality. In other words, the gravity of the crime must warrant such a severe response.

What is the Expanded List of Capital Crimes?

The Federal Death Penalty Act of 1994 broadened the list of federal crimes eligible for the death penalty to 60 offenses. Many of these specific offenses fall under similar categories. Let's take a look at these crimes below.

Murder

More than two dozen offenses on the list of federal capital crimes are related to some form of murder, which is defined as the calculated, premeditated, and malicious act of taking another person's life. Examples of federal capital murder offenses include, but are not limited to:

• 18 U.S.C. 1111 - First-Degree Murder;
• 18 U.S.C. 1114 - Murder of a federal judge or law enforcement official;
• 18 U.S.C. 1116 - Murder of a foreign official;
• 18 U.S.C. 1118 - Murder by a federal prisoner;
• 18 U.S.C. 1120 - Murder by an escaped federal prisoner already sentenced to life imprisonment;
• 18 U.S.C. 1121 - Murder of a state or local law enforcement official aiding in a federal investigation; murder of a state correctional officer;
• 18 U.S.C. 1503 - Murder of a court officer or juror;
• 18 U.S.C. 1512 - Murder with the intent of preventing testimony by a witness, victim, or informant;
• 18 U.S.C. 1513 - Retaliatory murder of a witness, victim, or informant;
• 18 U.S.C. 1958 - Murder-for-hire involving the use of interstate commerce facilities;
• 18 U.S.C. 1959 - Murder in furtherance of racketeering activity;
• 18 U.S.C. 2113 - Murder during a bank robbery or bank-robbery-related kidnapping resulting in death;
• 18 U.S.C. 2245 - Murder committed during child sex trafficking, child pornography, interstate transportation of a minor or other person for criminal sexual activity;
• 18 U.S.C. 2280 - Murder or other offense against maritime navigation resulting in death;
• 18 U.S.C. 2281 - Murder or other offense committed against a maritime fixed platform resulting in death;
• 18 U.S.C. 2332 - Terrorist murder of a U.S. national in another country;
• 21 U.S.C. 848(e) - Murder related to a continuing criminal enterprise, drug trafficking offense, or drug-related murder of a federal, state, or local law enforcement officer.

Crimes Resulting in Death

Certain criminal acts, while not involving a deliberate intent to kill someone, can still result in the death of another person. In numerous cases, these crimes are punishable by death under federal law. They include the following: 

• 18 U.S.C. 1201 - Kidnapping resulting in death;
• 18 U.S.C. 1203 - Hostage-taking resulting in death;
• 8 U.S.C. 1342(B)(iv) - Bringing in and harboring aliens resulting in death;
• 18 U.S.C. 32-34 - Destruction of aircraft, motor vehicles, or related facilities resulting in death;
  8 U.S.C. 241, 242, 245, 247 - Civil rights offenses resulting in death;
• 18 U.S.C. 2332a - Use of a weapon of mass destruction resulting in death;
• 18 U.S.C. 1716 - Mailing of injurious articles resulting in death;
• 18 U.S.C. 1751 - Assassination of the President, Vice President, or member of their staff or kidnapping resulting in their death;
• 18 U.S.C. 1992 - Terrorist attack on railroad carrier or mass transportation vehicle resulting in death;
• 18 U.S.C. 2119 - Carjacking resulting in death;
• 18 U.S.C. 2251 - Conduct during child sexual trafficking, child pornography, or the sexual exploitation of children that results in death;
• 18 U.S.C. 2332a -  Use of a weapon of mass destruction resulting in death;
• 18 U.S.C. 2332b - Acts of terrorism in the United States resulting in death committed by a person engaged in conduct that transcends national boundaries;
• 18 U.S.C. 2340, 2340A - Torture resulting in death committed outside the United States by a U.S. national or by a foreign national in the U.S.;
• 49 U.S.C. 46502 - Aircraft piracy resulting in death;
• 18 U.S.C. 3591(b)(2) - Attempting, authorizing, or advising the killing of any officer, juror, or witness in cases involving a continuing criminal enterprise, regardless of whether such killing actually occurs.

Espionage

18 U.S.C. 794 espionage is the act of spying on the U.S. government, revealing state secrets, or aiding a foreign entity against the United States. If such actions result in the exposure and death of a U.S. agent or other criteria, apply, espionage is punishable by death under federal law.

Conduct by a leader of a drug trafficking enterprise that causes death can result in capital punishment.

Treason

18 U.S.C. 2381 treason is a serious offense against the nation. It includes waging war against the U.S., siding with its enemies, or providing them aid and comfort.

Genocide

18 U.S.C. 1091 genocide pertains to acts committed with the explicit intent to destroy, in whole or part, a national, ethnic, racial, or religious group. This encompasses actions like killing group members or causing them serious physical harm.

Large-Scale Drug Trafficking

In instances where a defendant is a primary administrator, organizer, or leader of a large-scale drug trafficking enterprise defined under 18 U.S.C. 3591(b), and their conduct directly leads to the death of an individual, they can face the death penalty.

Recent Efforts to Abolish Federal Capital Punishment

In recent years, several legislative efforts have been made to abolish the death penalty at the federal level.

Contact our federal defense lawyers for a case review.

Namely, the Federal Death Penalty Abolition Act of 2021 (HR-97, currently in committee) and, more recently, the Federal Death Penalty Prohibition Act of 2023 (introduced in July 2023 by Senate Majority Whip Dick Durbin and U.S. Representative Ayanna Pressley.

Additionally, as of July 2021, the federal government has paused all federal executions while the Justice Department reviews capital punishment policies after a record 13 federal executions occurred during the last six months of the Trump administration.

You can contact our law firm for a case review and to discuss legal options. We provide legal representation on federal criminal matters throughout the United States. Eisner Gorin LLP has offices in Los Angeles, California.

Related Content:

• The Federal Criminal Process
• List of Federal Death Row Prisoners
• The Federal Death Penalty System
• Overview of Federal Capital Offenses
• Federal Death Penalty Resource Counsel
• Aggravating and Mitigating Circumstances
• Funding a Terrorist Organization