The DOJ wants to ‘untether’ federal executions from state law

The Trump administration’s recent Department of Justice report, Restoring and Strengthening the Federal Death Penalty, presents itself as an effort to expand the federal government’s use of capital punishment, advocating broader execution methods, fewer procedural barriers and faster prosecutions.

But the report proposes something more consequential than the executions themselves: reshaping the relationship between federal executions and state law. That distinction matters, because the modern federal death penalty has always been comparatively limited. What it points toward is a more independent system.

Consider how rare federal executions are. Since the modern era of capital punishment began, the federal government has carried out just 16 executions — all by lethal injection — 13 in a single six-month span in 2020 and 2021. After President Biden commuted most federal death sentences in 2024, only three prisoners remain on federal death row. Most American executions run through state systems, and the federal death penalty was unavailable for years after the Supreme Court’s 1972 decision in Furman v. Georgia, reviving only in 1988. This complicates the report’s framing, which casts the Biden moratorium as a major departure and current proposals as a restoration. In fact, the 2020–2021 surge was the anomaly — a break from decades of declining capital punishment, not a baseline to be restored.

The administration is not merely proposing. Alongside the report, DOJ directed the Federal Bureau of Prisons to reinstate the pentobarbital protocol and add the firing squad. Yet the report’s defense of them invites scrutiny. It stresses the firing squad’s historical use and constitutional approval, but executions by gunfire have always been rare — roughly 141 of 14,489 from 1608 to 1976, and the only six since were in Utah and South Carolina. The report’s central authority, Wilkerson v. Utah (1878), is a thin reed. As the Court noted in Baze v. Rees (2008), Wilkerson judged punishments against historically barbaric acts such as disemboweling and burning alive — far from the “evolving standards of decency” doctrine that has governed since Trop v. Dulles (1958).

The most important shift, however, concerns federalism. Federal executions have always operated within a decentralized system shaped by state law: 18 U.S.C. § 3596 has long required them to be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.” That is why the report repeatedly cites state statutes, protocols and litigation. The report now proposes moving away from that model, recommending amendments that would give the attorney general broader discretion over execution methods and less reliance on state procedures. Its own term is “untethering.”

That untethering has already begun in the courts. In Barr v. Lee (2020), the Supreme Court allowed federal executions to proceed despite arguments that the government had to follow detailed state protocols, and in related litigation the DOJ argued that the statute’s reference to state law meant only the general method — lethal injection — not every detail. This is what’s called “reverse federalism”: federal authority decoupled from state law rather than constrained by it.

Congress could go further, amending § 3596 to remove its references to state execution law entirely. That change is what the firing-squad expansion ultimately depends on. As long as the statute ties the manner of execution to state law, the government's authority to use a method a state prohibits is open to legal challenge. Remove that tie, and the government could argue it may use such methods anywhere in the country. The Eighth Amendment and state resistance would still impose limits, but the direction is clear.

This is why the report’s significance extends well beyond capital punishment itself. The United States has never operated a single, unified death penalty system. It has long maintained a patchwork of state systems with different execution methods, legal traditions, political priorities and levels of public support. Historically, the federal death penalty operated within that decentralized structure — constrained not only by law but by the political and institutional realities of a system that left most execution authority to the states.

The DOJ report points toward something different: a more centralized federal system with broader independent authority over execution methods and reduced dependence on state law. Courts will need to assess whether any newly authorized methods survive Eighth Amendment scrutiny under contemporary standards, not nineteenth-century ones. Congress will need to decide whether to hand the executive branch that expanded discretion at all. And the public should recognize what is actually being proposed: not a restoration of prior practice, but a structural expansion of federal power.

Whether one supports or opposes capital punishment, this debate is about more than continuing federal executions. It is about expanding federal discretion over one of the most consequential powers any government can exercise — the power to decide the administration of death.

Lisa Monchalin, Ph.D., J.D., is Lab Director of the Applied Justice Lab and teaches in the Criminology Department at Kwantlen Polytechnic University. Charles E. Reasons, Ph.D., J.D., is Professor Emeritus in the Department of Law and Justice at Central Washington University.