I have written almost entirely about a single state, because Idaho’s decision is the most complete and most legally consequential expression of everything argued against here. But Idaho did not make its decision in isolation, and it does not remain isolated. In the months before Idaho’s law took effect, the federal government moved to adopt the same method, and understanding that move is essential to understanding where the argument is headed. A state-level policy is one thing. A federal policy, applied to prisoners sentenced under federal law in federal facilities across the country, is a different order of magnitude.
THE REPORT
On April 24, 2026, the Department of Justice’s Office of Legal Policy released a forty-eight-page document titled Restoring and Strengthening the Federal Death Penalty. The report had been prepared at the direction of then-Attorney General Pamela Bondi, pursuant to an executive order President Trump signed on his first day back in office, titled Restoring the Death Penalty and Protecting Public Safety.¹
By the time it was released, Bondi was no longer Attorney General. President Trump had fired her on April 2, and her deputy, Todd Blanche, had taken over in an acting capacity that same day.² It was Blanche who announced the report, framing the document as a correction of what the report itself calls the Biden administration’s unprecedented break from the Department’s longstanding approach to capital punishment. In practice, that break had been a moratorium on federal executions, alongside President Biden’s decision in December 2024 to commute the death sentences of thirty-seven of the forty men then on federal death row, leaving three of the most notorious cases untouched, among them Dylann Roof, convicted of murdering nine Black parishioners at a Charleston church in 2015.³
The report’s central recommendation is straightforward. It directs the Federal Bureau of Prisons to reinstate the single-drug pentobarbital protocol used during the first Trump administration’s run of thirteen federal executions and, critically, to expand that protocol to include additional methods, explicitly naming the firing squad, electrocution, and lethal gas as options to be used when pentobarbital is unavailable.⁴ The stated justification tracks, almost word for word, the justification Idaho’s legislature offered in 2025. Lethal injection, the report states, has faced repeated and continuing legal challenges, and it alleges, in language that assigns blame rather than describing a supply problem, that antideath-penalty activists have waged a public campaign against providers of lethal injection drugs. The Bureau of Prisons, the report concludes, should follow the states’ lead and modify its execution protocol to include additional, constitutional manners of execution.⁵
It is easy to miss, amid the report’s confident tone, what that recommendation represents: the first time in American history that the federal government has formally authorized the firing squad as a method of federal execution.
Six firing squad executions have occurred in this country since 1977, out of more than 1,600 executions in total, a share well under one percent, all of them carried out by individual states acting under their own statutes — three in Utah and three in South Carolina in 2025 alone.⁶ The federal government, across the entire modern era of capital punishment, had never before put this method on its own list. The April 2026 report changes that, not because any federal execution has yet occurred by firing squad, but because the operational and legal groundwork for one now formally exists, with the Bureau of Prisons directed to draft an operational manual and analyze the cost and feasibility of modifying its existing execution facility in Terre Haute, Indiana, or building an entirely new one.⁷
THE SCALE OF WHAT IS COMING
The method-of-execution changes do not exist in a vacuum. They are paired with a substantial expansion of the federal government’s appetite for seeking death sentences in the first place.
In the same period surrounding the report’s release, the Department announced it would resume federal executions and confirmed it was seeking death sentences against forty-four defendants, reversing the Biden administration’s de facto moratorium.⁸ An independent count compiled from court records and Justice Department data put the figure at no fewer than forty-two defendants across thirty-four cases, and noted that the current administration has already authorized more capital prosecutions than it did across the entirety of Trump’s first four years in office.⁹ Each of these cases, if it proceeds to a death sentence and exhausts appeals, becomes a future candidate for the expanded method menu.
The scale of that expansion changes the stakes of everything else here. A federal policy authorizing the firing squad as a contingency method matters much more when the federal government is simultaneously and substantially growing the number of active federal capital cases than it would if federal capital prosecutions remained as rare as they were during the preceding moratorium. Idaho’s death row holds eight people, a number that has moved only slowly across five decades. The federal system is now positioned to grow its capital docket considerably faster, and every person added to that docket becomes, eventually, a person whose execution could be carried out using a method that does not perform as its advocates promise.
THE DEATH PENALTY INFORMATION CENTER’S REBUTTAL
The report’s claims did not go unanswered. The Death Penalty Information Center published a detailed analysis in early May 2026 arguing that the report misrepresents American history and law.¹⁰
The analysis makes a case already made here in narrower form. Federal executions under the first Trump administration were themselves a historical exception rather than a return to longstanding practice, since the federal government had not carried out an execution in the seventeen years before 2020. Most states abandoned the alternative methods the report now proposes, electrocution and lethal gas, precisely because of documented concerns about pain and botched procedures, the same concerns walked through in detail in the preceding chapters. And the Supreme Court has not, in any recent or meaningful sense, affirmatively blessed these methods as constitutionally sound, contrary to the report’s characterization. The analysis notes something sharper still: the report mentions none of the infamous botched executions that drove states and the public to reject these methods in the first place, including botched executions suffered by some of the very individuals whose cases it cites in support of its claims.
I raise the rebuttal not because I expect it to have settled the argument, but because it illustrates how the policy debate proceeds. The report is not a scientific document arriving at a conclusion through neutral analysis of the available evidence. It is an advocacy document, produced by an administration that had already committed, through executive order, to expanding capital punishment before the report was written, built to supply a justification for a decision made in advance. That mirrors the pattern identified in Idaho’s own legislative debate: a state or federal government arrives at a policy preference first, driven by the practical problem of an unreliable execution supply chain, and then constructs, or commissions, the evidentiary and rhetorical case for that preference afterward.
TERRE HAUTE, RECONSIDERED
The Bureau of Prisons’ existing execution facility sits at the federal penitentiary in Terre Haute, Indiana, the site of every federal execution carried out since the practice resumed in 2001, including the thirteen performed in the final months of the first Trump administration. The April 2026 report directs the Bureau to evaluate whether that facility can be modified to accommodate a firing squad, or whether a new facility should be constructed elsewhere.¹¹
Note the echo with Idaho’s own experience, documented in Chapter 13. Idaho spent more than 1.2 million dollars and roughly fourteen months retrofitting a single unit of a single prison to accommodate a firing squad for a death row population of eight. The federal system’s death row, even after the expansion of capital charging described above, remains larger and more geographically dispersed than Idaho’s, raising retrofit and logistics questions at a scale Idaho’s experience only partially anticipates.
Whether the Bureau ultimately modifies Terre Haute or builds elsewhere, the pattern documented throughout will very likely repeat: a facility designed and built in response to a specific political and legal moment, justified by drug-supply anxiety and constitutional litigation risk rather than by any newly discovered evidence about the firing squad’s reliability, arriving years after the autopsy evidence described in Chapters 6 and 7 was already part of the public record. The federal government, unlike Idaho’s legislature in 2025, cannot plausibly claim in the years ahead that it acted without access to Mikal Mahdi’s autopsy, Robin Maher’s assessment, or the DPIC’s point-by-point rebuttal. Whatever facility the Bureau eventually builds, it will be built by an administration that had all of this evidence available to it before construction began.
WHAT THE REPORT DOES NOT SAY
The report runs to forty-eight pages, with a table of contents devoting separate sections to the firing squad, electrocution, and lethal gas. Here is what it does not meaningfully engage with: the autopsy evidence from Brad Sigmon’s and Mikal Mahdi’s executions.
A document proposing to authorize the firing squad as a federal execution method, released more than a year after Mahdi’s execution and the autopsy findings that followed it, had every opportunity to grapple with the documented case in which a South Carolina firing squad missed its target and produced, according to a commissioned pathologist, thirty to sixty seconds of conscious suffering. The report instead frames the firing squad in largely historical and legal terms, an old method with, in its words, a long history of use, rather than confronting the most recent and most thoroughly documented instance of that history’s actual outcome.
That is the same omission identified in Idaho’s own legislative debate, now repeated at the federal level, by an administration with access to considerably more resources for a rigorous evaluation than any state legislature could muster.
CLEMENCY AND HABEAS: THE MACHINERY AROUND THE METHOD
The method-of-execution recommendations sit alongside two other proposals that reveal the report’s broader purpose: not merely to diversify execution methods, but to accelerate the entire federal capital punishment process.
The report proposes a new rule barring death-sentenced federal prisoners from submitting clemency petitions, and barring the Pardon Attorney’s office from considering such petitions, until all of a prisoner’s direct appeals and collateral attacks have been fully resolved. It characterizes the prior practice, under which the Pardon Attorney retained discretion to consider a petition at any point regardless of pending litigation, as having nullified the purpose of the clemency regulations. Critics have pointed out, reasonably in my view, that the proposed rule would insulate even a wrongly decided sentence from timely executive review for as long as the appellate process drags on, which, as Idaho’s own death row demonstrates, can mean decades.
The report also proposes rules meant to streamline federal habeas corpus review under Chapter 154 of Title 28, the section of federal law governing the procedures by which death-sentenced prisoners can challenge their convictions and sentences in federal court after state remedies are exhausted. Streamlining, in this context, functions as a euphemism in the same register as the firing squad’s hood and shield laws. It means narrowing the window and the grounds on which a federal court can catch a wrongful conviction or an unconstitutional sentence before an execution is carried out.
Taken together with the clemency proposal, the report’s overall thrust is toward faster executions, with fewer opportunities for outside review at exactly the stages, clemency and habeas, historically most likely to catch the kind of errors Idaho’s death row has already shown the system is capable of making.
JEFFERY LEE, AND THE PRECEDENT THAT ACCELERATES EVERYTHING
No single case illustrates the practical convergence of this argument more directly than that of Jeffery Lee in Alabama. Lee, convicted of the 1998 murders of Jimmy Ellis and Elaine Thompson during a pawn shop robbery, had been scheduled for execution by nitrogen hypoxia, the method I witnessed used on Kenneth Smith and Anthony Boyd.
The case did not begin as a victory. Following the first federal bench trial examining nitrogen gas as a method of execution, U.S. District Judge Emily C. Marks, a Trump appointee and chief judge of the Middle District of Alabama, ruled against Lee on May 28, 2026. She found that a person executed by nitrogen likely experiences severe air hunger, the sensation of desperately trying to breathe without getting enough oxygen, producing profound physiological discomfort and distress along with anxiety, fear, and dread. She found it can be worse than pain. She found that consciousness is lost in not significantly more than one to three minutes. Then she held that Lee had established suffering but not a violation of the Eighth Amendment.
Lee appealed. On June 8, 2026, a three-judge panel of the Eleventh Circuit reversed her, using her own factual findings to reach the opposite conclusion. Sixty to a hundred and eighty seconds of that suffering, the panel held, presents a substantial risk of serious harm over and above death itself. The court remanded with instructions to consider Lee’s proposed alternative method: the firing squad.¹²
She reached it the next day. On June 9, Judge Marks entered final judgment and permanently enjoined Alabama from executing Lee by nitrogen gas, finding the protocol violates the Eighth Amendment. She then found that Lee’s firing squad proposal was, in her words, feasible, readily implemented, and significantly reduces the substantial risk of serious harm posed by Alabama’s nitrogen protocol, and that the state had failed to articulate a legitimate penological reason for refusing to adopt it.¹³ Alabama filed an emergency application with the Supreme Court, which denied it on June 11; Justices Thomas, Alito, and Gorsuch would have sided with the state.¹⁴
Here is the detail that carries the most weight. Under the framework the Supreme Court established in Glossip v. Gross, discussed in Chapter 13, a prisoner challenging an execution method must propose a specific, available alternative that would significantly reduce the risk of severe pain. Lee’s attorneys did exactly that, proposing the firing squad, and a federal judge agreed that it cleared the Glossip bar, in a state that does not authorize the firing squad by statute at all.
I want to be precise about what the ruling does and does not do, because the temptation to overstate it is real. Judge Marks’s finding was comparative, not absolute. She held that the firing squad significantly reduces a substantial risk of severe pain as compared to nitrogen hypoxia, a narrower proposition than a judicial blessing of the method in its own right. She was explicit on this point, and her language deserves quoting at length, because it is the most candid judicial statement about execution methods I have encountered.
Were Alabama to adopt the firing squad, she wrote, that method would likely be challenged as well; indeed, there is likely no method, no matter how humane, that would be immune to constitutional challenge. The Constitution, she continued, does not guarantee a painless death, and human life cannot be purposefully extinguished without some risk of pain. The Court, the condemned, and the State must all confront that sobering reality. She was equally clear that her injunction did not disturb the state’s ability to administer capital punishment by the methods Alabama does authorize, lethal injection and electrocution.¹⁵
That candor deserves sitting with, because Judge Marks has said from the bench what these fifteen chapters have been arguing: that no method is immune, that the search for a clean kill is a search for something that does not exist, and that everyone involved is obliged to confront that rather than pretend otherwise.
And yet the practical effect of her ruling runs in the opposite direction from her candor. A published federal opinion now exists holding that the firing squad satisfies Glossip as an alternative, and that is precisely the kind of judicial validation that accelerates a method’s spread from state to state and into federal policy. Not a legislature affirmatively choosing the firing squad on its own initiative, as Idaho’s did, but a federal court certifying the method as the constitutionally safer comparator whenever some other method runs into legal trouble. Every state currently defending a lethal injection or nitrogen protocol against an Eighth Amendment challenge now has a ready answer available.
Alabama’s own response is instructive about the limits of that logic. Having been barred from using nitrogen gas on Lee, the state did not move to adopt the firing squad he had proposed. It moved instead to execute him by lethal injection, a method it already had on the books, and on July 30, 2026, Governor Kay Ivey set a new execution date of September 17.¹⁶ The ruling did not make Alabama a firing squad state. What it did was add a federal district court’s imprimatur to a method that five states already authorize and that the Department of Justice had, six weeks earlier, added to the federal menu, at exactly the moment when legal pressure on every other available method is mounting.
WHAT THIS MEANS FOR THE REST OF THE ARGUMENT
I said in the introduction that Idaho’s decision matters because it was the first state to make the firing squad primary rather than a backup. That framing needs updating in light of what the preceding sections describe. Idaho was first. The mechanism by which it will not remain alone is now visible in granular detail.
A federal court in Alabama has validated the method as a constitutional alternative in exactly the kind of case — a state’s other method collapsing under legal challenge — that is recurring across the country as lethal injection and nitrogen hypoxia both continue to generate documented failures. A federal Department of Justice has formally authorized the same method for federal executions, directing its own Bureau of Prisons to build the operational and physical infrastructure to carry it out. And Florida, as the next chapter discusses, has taken a quieter and in some ways more consequential step, granting its corrections department open-ended authority to reach for methods no legislature has specifically debated.
None of this happened because the evidence became less true between Mikal Mahdi’s execution and the DOJ’s report. It happened because the same structural pressure that pushed Idaho toward the firing squad, the collapse of a reliable lethal injection supply chain, combined with the same structural feature of Glossip already identified as a thumb on the scale against condemned prisoners, is now operating simultaneously at the state and federal level, in multiple jurisdictions, with each new adoption making the next one appear more normal, more settled, more like simple modernization than the considered gamble it actually is.
Notes
011. U.S. Department of Justice, Office of Legal Policy, Restoring and Strengthening the Federal Death Penalty, April 24, 2026, justice.gov; Death Penalty Information Center, “Department of Justice Releases Memo Calling for Expansion of Federal Death Penalty and New Methods,” April 27, 2026; Executive Order, Restoring the Death Penalty and Protecting Public Safety, January 20, 2025.
022. “Trump says he fired Bondi, appoints Blanche as acting US attorney general,” Reuters, April 2, 2026; “Five things to know about Todd Blanche, new acting attorney general,” Palm Beach Post, April 2026. DPIC’s April 27, 2026 report notes the document was prepared at the direction of “former Attorney General Pamela Bondi.”
033. Restoring and Strengthening the Federal Death Penalty, April 24, 2026 (stating that on December 23, 2024, President Biden commuted the death sentences of thirtyseven of the forty remaining federal death row prisoners); Death Penalty Information Center, “Federal Death Penalty” topic page.
044. DPIC, April 27, 2026; “DOJ says it will use firing squads, electrocution again for federal executions,” CNBC, April 24, 2026; “US Department of Justice announces decision to resume federal executions,” JURIST, April 27, 2026.
055. DPIC, April 27, 2026 (quoting the DOJ report); Restoring and Strengthening the Federal Death Penalty, April 24, 2026.
066. Death Penalty Information Center execution database. The three Utah executions were Gary Gilmore (1977), John Albert Taylor (1996), and Ronnie Lee Gardner (2010); the three South Carolina executions were Brad Sigmon (March 7, 2025), Mikal Mahdi (April 11, 2025), and Stephen Bryant (November 14, 2025). See also DPIC, “Bipartisan Support Defeats Indiana House Bill to Add Firing Squad as Execution Method,” February 4, 2026 (noting South Carolina carried out the nation’s first firing squad execution in fifteen years on March 7, 2025).
077. Restoring and Strengthening the Federal Death Penalty, April 24, 2026; “Is Execution by Firing Squad Legal? State and Federal Rules,” Nolo, updated June 13, 2026 (summarizing the report’s directive that BOP draft an operational manual and analyze costs of modifying the existing chamber or building a new facility).
088. “US Department of Justice announces decision to resume federal executions,” JURIST, April 27, 2026 (reporting the Department was seeking death sentences against forty-four defendants).
099. Liliana Segura and Jordan Smith, “Trump Has Already Launched More Death Penalty Prosecutions Than in His Entire First Term,” The Intercept, July 1, 2026 (counting at least forty-two defendants in thirty-four cases, based on legal records and data from the Justice Department and the Federal Capital Trial Project).
1010. Death Penalty Information Center, “New Analysis: In Seeking Firing Squad, Electrocution, and Nitrogen Gas Executions, DOJ Misrepresents American History and Law,” May 5, 2026.
1111. Restoring and Strengthening the Federal Death Penalty, April 24, 2026; Nolo, June 13, 2026.
1212. Memorandum Opinion, Lee v. Commissioner, Alabama Department of Corrections, U.S. District Court for the Middle District of Alabama, May 28, 2026 (Marks, C.J.) (finding severe air hunger and loss of consciousness in “not significantly more than one to three minutes,” but ruling against Lee on the Eighth Amendment question); Lee v. Commissioner, U.S. Court of Appeals for the Eleventh Circuit, opinion of June 8, 2026 (reversing, and holding on the district court’s own findings that “Alabama’s nitrogen hypoxia protocol presents a ‘substantial risk of serious harm’ — severe pain over and above death itself”); Death Penalty Information Center, “Alabama Federal Judges Block State from Using Nitrogen Gas to Execute Jeffery Lee,” June 12, 2026.
1313. Final judgment, Lee v. Commissioner, Alabama Department of Corrections, U.S. District Court for the Middle District of Alabama, June 9, 2026 (Marks, J.); Ralph Chapoco, “Federal judge blocks use of Alabama’s nitrogen gas execution protocol,” Alabama Reflector, June 9, 2026; DPIC, June 12, 2026. Alabama’s appeal was docketed in the Eleventh Circuit as No. 26-12027-P.
1414. Order denying application for stay, Commissioner, Alabama Department of Corrections v. Lee, U.S. Supreme Court, June 11, 2026; “Supreme Court rejects Alabama’s attempt to execute Jeffery Lee with nitrogen gas,” MS NOW/Deadline: Legal Blog, June 11, 2026.
1515. Final judgment, June 9, 2026 (Marks, J.), as quoted in “Jeffery Lee: Judge bars Alabama nitrogen gas execution, says method is unconstitutionally cruel,” CNN, June 9, 2026, and Chapoco, Alabama Reflector, June 9, 2026.
1616. Ralph Chapoco, “New execution date set for Alabama death row inmate who stopped nitrogen gas execution,” Alabama Reflector, July 30, 2026; Death Penalty Information Center, “Alabama Governor Sets New Execution Date for Jeffery Lee Using Lethal Injection, Following Blocked Efforts to Execute Him with Nitrogen Gas,” July 2026. See also Ralph Chapoco, “With nitrogen gas blocked, Alabama seeks to execute inmate by lethal injection,” Alabama Reflector, June 12, 2026.