By The Death Penalty Information Center

It is a common assumption that the federal death penalty is reserved only for the most serious crimes against the country, like terrorism, that have a unique federal interest. However, an expansion of the federal death penalty in the 1990s added more than 60 crimes that carried a potential death sentence. The cases the federal government decides to pursue are rarely “exceptional” compared to the cases tried at the state level. Federal defendants also share many of the same characteristics as state court defendants: they are often poor, traumatized, mentally impaired, and disproportionately people of color. This report documents the use of the federal death penalty from its earliest beginnings through the modern day. Like many state-level capital punishment systems, the federal death penalty has been used in a racially biased manner, a conclusion that the many historical examples and data in this report confirm. The federal death penalty was a tool historically used by the government to intimidate and subjugate people of color, particularly Black and Native American communities. Today, the most active death-sentencing federal jurisdictions were once the nation’s leaders of extra-judicial lynchings, a through line of connection that links the past to the present and raises serious questions about the future use of the federal death penalty.  

Death Penalty Information Center, 2024. 36p.

By David Hausman

Prioritization by criminality, in which noncitizens who have been convicted of serious crimes are deported ahead of those with little or no criminal history, is the most consequential principle governing who is deported from the interior of the United States. This Article argues that, intuitive as prioritization by criminality may appear, it is only rarely justifiable. I show, empirically, that the interior immigration-enforcement system is successful at such prioritization. Being convicted of a crime makes deportation at least a hundred times more likely. And I show that center left attempts to reduce deportations over the last decade have sharpened this prioritization: both sanctuary policies and President Obama’s Priority Enforcement Program, which caused the two largest reductions in interior immigration enforcement in the last decade, prioritized deportations by criminality. Because well under one percent of undocumented noncitizens are deported in any given year, some principle for prioritizing deportations is needed (to the extent that deportations continue at all), but criminality should not be the primary principle. First, the crime-control rationales for punishing noncitizens more severely than citizens convicted of the same crime are surprisingly weak. Second, the immigration-policy rationale for prioritization by criminality is strongest among recent entrants to the United States. The longer a noncitizen has lived in the United States, and the stronger his or her ties here, the less deportation resembles a retroactive admission decision and the more it resembles punishment. Finally, the relationship between ties and criminality is asymmetric: there are better arguments for deporting people with weak  ties and no convictions than for deporting people with strong ties and serious convictions. If noncitizens convicted of crimes were mostly recent entrants, then the current prioritization might make sense. But the limited existing evidence on deportees’ ties to the United States suggests that prioritization by criminality leads the government to target people with deep roots in this country. The result is that interior immigration enforcement functions more as a method of social control of long-term noncitizen residents than as a tool of immigration policy. 

THE GEORGETOWN LAW JOURNAL [Vol. 110:973 2022