Faithfully Executed?

Document Type


Publication Title

Harvard Journal on Legislation

Publication Date





death penalty, capital punishment, prosecutorial discretion


Courts | Criminal Law | Law


Prosecutorial discretion bestows both a power and a duty—it confers control, and demands restraint. In the federal system, this discretion derives from the prosecutor’s role as an Executive officer, charged with the responsibility and the authority to faithfully execute the law. The power element permits the prosecutor to make choices about when, where, and how to execute the law, while the duty element confines that range of choice to rational, legal, and ethical options. In the context of capital punishment, the choice to impose the death penalty for a federal capital offense must be constrained by the relative value and efficacy of seeking the death penalty, as well as the degree to which that choice comports with the purposes of criminal prosecution and the fundamental rights of the accused. In other words, the prosecutor may execute, but only in faithful conformity with law and reason.

This Article argues that the choice to seek the death penalty for federal crimes prosecuted in states that have abolished capital punishment does not accord with either law or reason. First, it is an inefficient and ineffective strategy that imposes unnecessary burdens and costs on the criminal justice system without achieving any unique law-enforcement benefits. Second, the federal death penalty, as currently authorized and applied, is constitutionally problematic, which imposes a special duty on the Justice Department to curtail its use whenever it has rational and legitimate reasons to do so. The Department of Justice should, therefore, adopt a policy against seeking the death penalty when prosecuting capital cases[1] in abolitionist[2] states