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April 24, 2026:

April 24, 2026 - USA. Department of Justice Releases Memo Calling for Expansion of Federal Death Penalty and New Methods

On April 24, 2026, the Department of Justice’s Office of Legal Policy released a detailed report, Restoring and Strengthening the Federal Death Penalty, calling on the Federal Bureau of Prisons (BOP) to reinstate use of a single-drug (pentobarbital) execution protocol, and urging Congress to enact sweeping legislative changes that would expand the reach and speed of the federal death penalty. Alongside the release of the report, DOJ announced that it has directed BOP to immediately reinstate the pentobarbital protocol used during the first Trump Administration and to expand that protocol to include additional methods of execution, including the firing squad. The report was prepared at the direction of former Attorney General Pamela Bondi pursuant to President Donald Trump’s Executive Order, Restoring the Death Penalty and Protecting Public Safety, signed on his first day in office.

The report covers three broad areas: a retrospective critique of capital punishment policies and legal decisions made under the Biden Administration, a defense of pentobarbital as an execution drug in lethal injection, and a series of policy and legislative proposals to expand use of the federal death penalty. The legislative and policy agenda represents the most expansive federal capital punishment proposals in decades.

Several changes described in the report are already in effect. On February 5, 2025, then-Attorney General Bondi lifted the moratorium on federal executions imposed by her predecessor, Attorney General Merrick Garland, but no federal executions have occurred since 2021, in the closing days of the first Trump Administration. Only three men currently remain on the federal death row following the commutation of 37 death sentences by President Biden in 2024. Pursuant to President Trump’s Executive Order, Attorney General Bondi also directed federal prosecutors to seek the death penalty in all “appropriate cases.” In the past year, DOJ has indicated its intent to seek the death penalty in dozens of cases, many of which would not have been considered death penalty eligible by previous administrations.

The report’s most far-reaching proposals will require congressional action before they could become law. Media coverage of DOJ’s report focused heavily on the reintroduction of the firing squad. The report devotes attention to the constitutionality of this method, though its legal analysis relies on a case decided by the Supreme Court almost 150 years ago. The report’s central authority for the constitutionality of the firing squad is Wilkerson v. Utah, an 1878 decision by the U.S. Supreme Court holding that execution by shooting does not violate the Eighth Amendment. The report concludes that “Wilkerson remains good law” and that the Court has ​“decline[d] to effectively overrule” it. But Wilkerson was decided when the Supreme Court evaluated Eighth Amendment claims by deciding whether the framers of the U.S. Constitution would have considered a punishment cruel and unusual in 1789 — not by using the “evolving standards of decency” framework that has governed capital punishment jurisprudence since Trop v. Dulles (1958), and the standard against which the Court has evaluated every method-of-execution case in modern history. The Court has never evaluated the constitutionality of the firing squad under the current legal framework.

The report frames the firing squad as an alternative to lethal injection executions. It states that “BOP should follow suit” and “modify its execution protocol to include additional, constitutional manners of execution” partly because, DOJ explains, lethal injection “has faced repeated and continuing legal challenges” and because it alleges that ​“anti-death penalty activists have waged a public campaign against providers of lethal injection drugs.” The firing squad, electrocution, and lethal gas are presented as alternatives when pentobarbital is not available. Five states currently authorize use of the firing squad: Idaho, Mississippi, Oklahoma, South Carolina, and Utah. In 2025, Idaho passed legislation making the firing squad its primary method of execution, which goes into effect on July 1, 2026. Since 1977, just six of the more than 1660 executions that have taken place have been by firing squad — less than one percent of all U.S. executions in the modern era of the death penalty.

In the coming weeks, the DOJ states it plans to publish a proposed rule prohibiting death-sentenced prisoners from submitting clemency petitions — and prohibiting the Office of the Pardon Attorney from considering these petitions — until decisions in the prisoner’s direct appeals and collateral attacks are final. The report characterizes the prior interpretation of existing regulations, under which the Pardon Attorney retained authority to consider petitions sua sponte, regardless of litigation status, as having “nullified the purpose of regulation.” Critics of the proposed rule argue it could insulate unjust sentences from timely executive review. The DOJ also plans to issue a rule that would empower states to “streamline” federal habeas review of capital cases under Chapter 154 of Title 28. A related notice of proposed rulemaking was published on March 18, 2026. The report also proposes permitting federal prosecutors to impanel a new jury for a second penalty phase when a jury fails to unanimously reach a sentencing decision. Current law requires the court to impose a sentence less than death when a jury recommendation of death is not unanimous.

Federal law currently requires that executions carried out by the federal government be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.” The report recommends amending this provision to give the Attorney General broader discretion over execution methods, explicitly allowing methods not authorized by the relevant state. This proposal, if enacted, would mark a shift in the administration of the federal death penalty, and could allow the federal government to employ new methods of execution in states whose own laws do not authorize them.

The report also calls on Congress to authorize the death penalty for a wider range of crimes, including murders of law enforcement officers, murders committed by undocumented people, and murders committed in the course of hate crimes, stalking, domestic violence, or material support for terrorism. The report also explicitly points to the U.S. Supreme Court’s decision in Kennedy v. Louisiana (2008), in which it held that the Eighth Amendment bars the death penalty for the rape of a child where the defendant did not intend and did not cause the death of the victim, and expressly suggests the DOJ pursue test cases or file amicus briefs to challenge the Court’s precedent.

The report, notably, proposes that victims’ families be given a formal right to request that the Attorney General set an execution date when a given (unspecified) period of time has passed following the conclusion of judicial review, with a written justification required if the Attorney General declines to set a date. No such right currently exists in state or federal law.

https://deathpenaltyinfo.org/department-of-justice-releases-memo-calling-for-expansion-of-federal-death-penalty-and-new-methods