Scholars have been predicting the demise of the American death penalty for much of the twenty-first century. This prediction finds support in state-by-state abolition, reduced numbers of new death sentences, and continued reductions in the death row population. Despite significant movement away from the death penalty, the punishment remains stubbornly persistent, with a small number of states continuing to aggressively pursue executions and scattered local jurisdictions securing a disproportionate amount of new death sentences.
While several legal academics have looked to historical precedent and international experience to map the future trajectory of the American death penalty, this Article seeks to identify possibilities for the future through a deeper understanding of how the federal death penalty fits into trends in state systems across the country. The federal death penalty is both expansive—as a nationwide capital punishment jurisdiction—and limited—as a numerically small component of the American capital punishment landscape. Though the federal death penalty has often followed the trends already playing out in the states, recent years have seen federal action that can help map out future directions for state death penalty systems.
This Article reviews the evolution of the modern death penalty and argues that recent developments have moved the federal death penalty from being a laggard to being a leader in national death penalty trends. With the advent of a new administration that has committed itself to “reviving” the federal death penalty, the road ahead seems even more unsettled. Though recent federal death penalty developments have been singular in many ways, they take place in a broader context which situates the recent volatility as part of the overall decline of the American death penalty.