The federal government and the 27 death-penalty states run separate capital punishment systems that differ at every stage. Comparing the federal versus state death penalty comes down to five practical questions: which crimes qualify, who decides to seek execution, how the trial and appeals work, who can grant clemency, and how the sentence is carried out. Because the federal government and each state are separate sovereigns, a defendant can face a federal death sentence for a crime committed in a state that has abolished capital punishment.
Which Crimes Qualify
State capital punishment is narrow. Under Kennedy v. Louisiana (2008), the Eighth Amendment bars states from imposing death for crimes against individuals that do not result in the victim’s death.1Justia Law. Kennedy v Louisiana 554 US 407 (2008) In practice, that limits state death sentences to aggravated murder. Typical aggravators include killing a law enforcement officer, murder during a robbery or sexual assault, murder for hire, and multiple victims.
Federal law reaches further. Under 18 U.S.C. § 3591, a defendant can be sentenced to death for espionage or treason even when no one is killed, or for any other federal offense with a death-penalty provision where the defendant intentionally caused or participated in a death.2Office of the Law Revision Counsel. 18 USC 3591 – Sentence of Death Treason is separately capital under 18 U.S.C. § 2381.3Office of the Law Revision Counsel. 18 USC 2381 – Treason Large-scale drug trafficking is also capital-eligible: leaders of continuing criminal enterprises involving massive drug quantities can face death when, for example, they directed the killing of witnesses, jurors, or public officials to obstruct an investigation. The Federal Death Penalty Act of 1994 added dozens more offenses, including terrorism resulting in death, murder of a federal judge or law enforcement officer, and killings tied to weapons of mass destruction.
Federal jurisdiction still needs a hook: a violation of a federal statute, conduct on federal property or a military installation, a federal official as victim, or interstate activity. A carjacking that results in death and crosses state lines is one example that can end up in federal court.
Who Cannot Be Executed in Either System
Two constitutional floors apply everywhere. No one who was under 18 at the time of the offense may be sentenced to death, the rule the Supreme Court set in Roper v. Simmons (2005) and that Congress codified for federal cases in 18 U.S.C. § 3591.2Office of the Law Revision Counsel. 18 USC 3591 – Sentence of Death
Executing a person with an intellectual disability is likewise unconstitutional under Atkins v. Virginia (2002).4Justia Law. Atkins v Virginia 536 US 304 (2002) Federal law mirrors that protection: 18 U.S.C. § 3596 forbids carrying out a death sentence on someone who is intellectually disabled or who lacks the mental capacity to understand the punishment and why it was imposed.5Office of the Law Revision Counsel. 18 USC 3596 – Implementation of a Sentence of Death
Who Decides to Seek Death
This is one of the sharpest practical differences. In a federal case, the decision is centralized. A local U.S. Attorney’s office can recommend seeking death, but the final call belongs to the Attorney General, after review by a Department of Justice committee. A federal capital prosecution in rural Montana runs through the same approval process as one in Manhattan.
State decisions are local. The elected district attorney or state’s attorney in the county where the crime occurred decides independently, with no statewide review. That produces significant geographic variation. Prosecutors in one county may seek death aggressively; a neighboring county may almost never pursue it. Two nearly identical murders can end in a death sentence in one place and a plea deal in the next.
How the Trial and Sentencing Work
Capital trials in both systems are bifurcated: a guilt phase, and if the defendant is convicted, a separate penalty phase where the prosecution presents aggravating factors and the defense presents mitigation, which can include childhood abuse, mental health conditions, or the defendant’s limited role in the offense.
Federal law lists the aggravating factors a jury may weigh for murder, including killing during another felony, killing a high-ranking public official, killing for financial gain, substantial planning and premeditation, and multiple killings.6Office of the Law Revision Counsel. 18 USC 3592 – Mitigating and Aggravating Factors to Be Considered in Determining Whether a Sentence of Death Is Justified The jury must unanimously find at least one aggravator beyond a reasonable doubt, and the final recommendation of death must also be unanimous. Without unanimity, the court cannot impose death.7Office of the Law Revision Counsel. 18 USC 3593 – Special Hearing to Determine Whether a Sentence of Death Is Justified
States mostly track that framework. Hurst v. Florida (2015) confirmed the Sixth Amendment requires a jury, not a judge, to find the aggravating factors necessary for a death sentence. But not every state requires a unanimous jury recommendation. Alabama, for instance, allows a death sentence on a 10-2 vote. Most death-penalty states do require unanimity, so a defendant’s procedural protection depends partly on where the case is tried.
Jury pools differ too. Federal capital trials happen in U.S. District Courts, which draw jurors from a multi-county federal district. State trials draw from the single county where the crime occurred, often a smaller and less diverse pool.
Appeals and Habeas Review
The appeals tracks look very different.
State Death Sentences
A state death-row inmate must exhaust every state remedy first: trial court, intermediate appellate court, and state supreme court. Most death-penalty states provide an automatic direct appeal. Only after that can the defendant file a federal habeas petition claiming the state proceedings violated the U.S. Constitution.
Federal habeas review is heavily restricted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). A federal court cannot grant relief unless the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or was “based on an unreasonable determination of the facts.”8Office of the Law Revision Counsel. 28 USC 2254 – State Custody; Remedies in Federal Courts State factual findings are presumed correct, and the petitioner must rebut that presumption with clear and convincing evidence. AEDPA also imposes a one-year filing deadline after state proceedings conclude. Federal habeas relief is rare in practice, even where serious constitutional questions exist.
Federal Death Sentences
Federal death-row inmates appeal entirely within the federal system: the U.S. Court of Appeals for the circuit where the trial was held, then a possible petition to the U.S. Supreme Court. There is no habeas gatekeeping to reach federal court because the case started there. AEDPA still restricts successive petitions, so claims not raised in the first round are hard to bring later.
Who Can Grant Clemency
Clemency splits cleanly. The President alone can commute or pardon a federal death sentence. For state sentences the process varies by state: in some, the governor acts alone; in others, the governor needs a recommendation from a clemency board; in a few, an independent board decides without the governor.
How Executions Are Carried Out
Federal law does not prescribe a single method. Under 18 U.S.C. § 3596, a federal death sentence is carried out “in the manner prescribed by the law of the State in which the sentence is imposed.”5Office of the Law Revision Counsel. 18 USC 3596 – Implementation of a Sentence of Death If that state has no death penalty, the sentencing court designates another state whose law provides for execution, and that state’s method controls. Recent federal executions have used lethal injection under internally adopted protocols, but the statute itself defers to state law.
State methods vary. Lethal injection is authorized in every death-penalty state, and some states also authorize backup methods including electrocution, firing squad, lethal gas, and nitrogen hypoxia. Those alternatives typically apply only when lethal injection drugs are unavailable or when the condemned person selects another method.
Where Federal Policy Stands Now
Federal policy has shifted rapidly. In July 2021, Attorney General Merrick Garland imposed a moratorium on federal executions. On January 15, 2025, Garland formally rescinded the government’s lethal injection protocol, citing unresolved questions about whether it treated individuals “fairly and humanely.” On January 20, 2025, President Trump signed an executive order titled “Restoring the Death Penalty and Protecting Public Safety,” directing the Attorney General to “pursue the death penalty for all crimes of a severity demanding its use” and specifically prioritizing cases involving the murder of law enforcement officers.9The White House. Restoring the Death Penalty and Protecting Public Safety
Attorney General Pamela Bondi implemented the order on February 5, 2025, lifting the Garland moratorium.10Congress.gov. Federal Capital Punishment – Recent Executive Action The executive order also directed the Attorney General to help states secure lethal injection drugs, to evaluate whether the 37 federal death-row inmates whose sentences President Biden commuted to life imprisonment could be charged with state capital crimes, and to seek the overruling of Supreme Court precedents that limit capital punishment.9The White House. Restoring the Death Penalty and Protecting Public Safety Federal executions are once again legally authorized, though new dates depend on the Department of Justice adopting a fresh protocol.