Chapman Law Review
Abstract
This Article argues that the federal death penalty is not merely at risk of being cruel; it is increasingly at risk of becoming arbitrary and lawless. Despite the procedural safeguards embedded in the Federal Death Penalty Act (FDPA), executive practices have reintroduced many of the same constitutional flaws that the Supreme Court identified in Furman v. Georgia. Through detailed analysis of the FDPA’s structure, this Article shows that the statute fails to meaningfully constrain the Attorney General’s charging discretion, allowing life-and-death decisions to hinge on opaque and often politicized processes. The Trump administration’s revival of federal executions, culminating in sweeping executive orders and policy memoranda, demonstrates how prosecutorial independence can collapse under political pressure, while the Biden administration’s later reversal underscores how the death penalty’s implementation now depends more on presidential ideology than on law. The result is a capital punishment regime defined not by uniform standards, but by partisan fluctuation and institutional instability.
This Article critiques the constitutional inadequacy of relying on internal Department of Justice protocols and discretionary judgment in matters of irreversible punishment. It examines the erosion of due process under the FDPA, the judiciary’s limited ability to enforce executive restraint, and the broader implications of permitting death sentences to be shaped by electoral outcomes rather than legal principle. As a solution, this Article calls for legislative intervention, drawing on Congress’s prior responses to systemic dysfunction in federal sentencing and national security prosecutions. Specifically, it proposes the establishment of a politically independent federal death penalty commission,modeled after the U.S. Sentencing Commission, to promote transparency, consistency, and proportionality. Without institutional reform, the federal death penalty will continue to defy constitutional expectations and remain vulnerable to the very arbitrariness the Eighth Amendment was intended to prevent.
Recommended Citation
Reem Haikal,
Death By Discretion: Executive Power and the Arbitrary Machinery of Federal Capital Punishment,
29
Chap. L. Rev.
103
(2026).
Available at:
https://digitalcommons.chapman.edu/chapman-law-review/vol29/iss1/3