Eileen M. Connor, JD, Proskauer Special Litigation Attorney at the New York Legal Assistance Group, in her June 7, 2010 article "The Undermining Influence of the Federal Death Penalty on Capital Policymaking and Criminal Justice Administration in the States," available at law.northwestern.edu, wrote:
"As currently administered, the federal death penalty is used to attain death sentences against defendants in states where the death penalty is not available, where the state prosecution has resulted in a sentence less than death, or where a state death sentence has been overturned on appeal.
The death penalty is available very broadly under federal law, whereas in some states it is not available, not imposed, or more difficult to obtain when sought. In practice, the number of federal capital prosecutions remains low, and the vast majority of homicide prosecutions are undertaken by state criminal justice systems.
Prior to the last third of the twentieth century, the bulk of federal criminal law was directed at conduct that was particularly or inherently federal in nature—crimes against the sovereignty of the federal government, such as treason, and crimes involving national currency, borders, land, or territories. Almost by definition, the conduct proscribed in a truly national crime was beyond the reach of state criminal statutes or enforcement capabilities.
Three federal legislative enactments compose the modern federal death penalty. Following the Supreme Court’s invalidation of all death penalty statutes in Furman v. Georgia in 1972,21 the United States did not reinstate the death penalty for federal offenses until 1988 with the passage of the Anti-Drug Abuse Act.22 The availability of the federal death penalty expanded further with the Violent Crime Control and Law Enforcement Act of 1994, which contained the Federal Death Penalty Act (FDPA).23 The FDPA prescribes procedures for implementing the death penalty in relation to over sixty substantive crimes.24 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) added four more crimes to the list of death eligible federal offenses."
David W. Garland, PhD, LLB, Arthur T. Vanderbilt Professor of Law and Professor of Sociology at New York University, in his May 21, 2012 US Embassy article "You Asked: Why Does the U.S. Have Capital Punishment?," available at www.usembassy.gov, wrote:
"The answer lies in the limited power of the U.S. federal government to impose laws on the states, the interplay between state politics and federal law, and the role of the U.S. Supreme Court in interpreting the Constitution... One result of America’s emphasis on federalism and local autonomy is that the United States is not one single place when it comes to the death penalty: The law and practice of capital punishment vary from state to state and region to region.
The United States, which helped lead the movement to reform capital punishment, lags in the movement to abolish it. The reason for this paradox has to do with the way these laws typically have been abolished. In countries where the death penalty has been removed from the law books, it was repealed by national governments imposing top-down reform because they decided the death penalty was no longer necessary or legitimate. In many cases, repeal was carried out even if a majority of citizens continued to support capital punishment. That the death penalty has been abolished throughout most of the western world (and in many other nations) but not in the United States speaks not to differences in popular attitudes — heinous murderers are unpopular everywhere — but to differences in political institutions.
Unlike its European counterparts, the U.S. Congress lacks the legal power to impose national repeal because the U.S. Constitution allocates legislative power over criminal law to the states. Each of the 50 U.S. states (plus the federal government and the U.S. military) would have to repeal its own capital punishment law. This means that nationwide abolition of capital punishment would require not one comprehensive act of abolition (as occurred in other nations) but 52 distinct acts."
The American Civil Liberties Union (ACLU), in its Capital Punishment Project website section titled "Legislative Developments" (accessed Mar. 19, 2009), wrote:
"The death penalty in the United States is primarily governed by state law, not federal law. Although there is a federal death penalty, more than 98 percent of the men and women on death rows across the United States are incarcerated as a result of state laws. Therefore, the legislation that most directly affects who is sentenced to death in the United States, what appellate processes they have, and how and when they are executed, is legislation at the state level."
Justin C. Gearty, Jr., JD, Owner and Managing Attorney at The Law Office of Justin C. Gearty, Jr., in his Feb. 29, 2012 article "Federalizing the Death Penalty," available at www.geartylawoffices.com, wrote:
"The States handle their own criminal matters because the legislature is accountable to the people and because they are in the best position to know what their citizens want and what is best for them. Elected State officials create criminal laws based on the needs of the State and/or their local district. A downside to a completely federalized death penalty system is the fact that the federal legislature would create the death penalty laws and the State legislatures would no longer be involved with this process. This means that the law would be based on the needs and wants of the majority of the country rather than the needs and wants of the individual States. Just because criminal matters have been traditionally left to the States, this does not mean that the death penalty can’t be federalized to some degree.
The U.S. Constitution creates a system of 'dual sovereignty.' In this system, States give up certain powers to the federal government. Since the U.S. Constitution creates a dual sovereignty system, the States may turn capital cases over to the federal government for them to prosecute. This is a decision that each State can make on a case-by-case basis.
Under the current system of government, the federal government can pursue federal crimes under the Federal Death Penalty Act and can prosecute State capital offenses when the State decides to turn the case over to the federal government. Even though there are limits to the federal governments ability to prosecute capital offenses, it is still necessary to review the problems with the current death penalty scheme, federal regulation of it, and the Federal Death Penalty Act. Short of a constitutional amendment though, a completely federalized death penalty system will remain being just a theory."