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Trump wants to expand the federal death penalty and take legal action in his second term

Throughout his campaign, President-elect Donald Trump signaled that if he won, he would resume federal executions and make more people eligible for the death penalty, including child rapists, migrants who kill U.S. citizens and police officers, and people who were convicted of drug and human trafficking.

“These are terrible, terrible, terrible people who are responsible for death, carnage and crime across the country,” Trump said of the traffickers as he announced his 2024 candidacy. “We will demand that anyone who sells drugs and is caught face the death penalty for their heinous actions,” he added.

While it remains unclear how Trump would move to expand the death penalty, anti-death penalty groups and criminal justice reform advocates say they are taking his claims seriously, pointing to the spate of federal executions that occurred during his first term.

“We will fight this with all our might and seek to uphold the constitutional principles that do not require this expansion,” said Yasmin Cader, deputy legal director of the ACLU and director of the Trone Center for Justice and Equality.

At the end of Trump's first term, 13 federal inmates were executed — although the pandemic caused states to halt executions due to Covid concerns in prisons. The cases included the first woman executed by the federal government in nearly 70 years; the youngest person based on the age at which the crime was committed (18 years old at the time of arrest); and the only Native American on federal death row.

No president had overseen so many federal executions since Grover Cleveland in the late 19th century, and the U.S. government had not executed anyone for more than 15 years until Trump revived the practice.

His then attorney general, William Barr, had said that the federal government “owes it to the victims to carry out the sentence imposed by the justice system.”

Trump's campaign did not immediately respond to a request for comment.

During the election campaign, President Joe Biden campaigned to pass a law to abolish the death penalty at the federal level, but backed down in office. Instead, Attorney General Merrick Garland announced a moratorium on reviewing federal execution protocols in 2021.

States that impose the death penalty have had to postpone executions in recent years because they were unable to obtain the necessary drugs for lethal injection. But Alabama has found a novel alternative — nitrogen gas — to kill two inmates this year.

Biden aides say he supports death row inmates serving life sentences without parole or parole. It is unclear what he will do about the matter before he leaves office.

Meanwhile, under Biden and Garland, the Justice Department has not sought the death penalty in federal cases that could have justified it and has even withdrawn the death penalty in about two dozen cases it had taken over. Federal prosecutors can ask a department death penalty panel for permission to file death penalty charges, but ultimately the attorney general agrees.

According to the nonpartisan Death Penalty Information Center, there are currently 40 inmates, all men, on federal death row. They include gunmen responsible for mass shootings in South Carolina and Pittsburgh, as well as the man convicted in the Boston Marathon bombing.

Lee Kovarsky, a professor at the University of Texas School of Law and co-director of the school's Capital Punishment Center, said Biden still has the ability to act before Trump takes office by commuting the sentences of the entire batch of inmates to life in prison .

Justice will continue to be served, Kovarsky said, because “they’re not getting out.”

More than 40 federal statutes carry the death penalty, almost all of which relate to murder or an illegal act that results in death. Whether Trump would expect federal prosecutors to seek the death in cases that do not explicitly involve murder – for example, the rape of a child – remains to be seen, but the Death Penalty Information Center notes that a Supreme Court ruling from the 2008 bans execution of people convicted of raping children, saying it is unclear whether using the federal death penalty in certain cases where someone was not killed would be constitutional.

Kovarsky said Trump's Justice Department could only pursue a capital case if the crime was legally eligible for the death penalty. Otherwise, Congress would have to change the law to allow this particular crime.

Furthermore, it would not be immediately possible to increase the number of executions again if he becomes president, Kovarsky added, given the logistics of signing a death warrant, ensuring that the drug protocol is available and the expected legal challenges. that would result from this.

But Ruth Friedman, the director of the Federal Capital Habeas Project, which has represented some of the death row prisoners, said the concern is real that the next Trump administration will quickly impose the death penalty, even if it doesn't immediately execute anyone. it could start with reintroducing the execution protocol.

“They will reverse the changes this year [Biden’s] “The government did it,” Friedman said.

She added that the current makeup of the Supreme Court, with its 6-3 conservative majority, has already shown that it will generally support the death penalty — even in cases that have drawn attention because of claims of innocence, wrongdoing and racial bias.

But Friedman said it was possible that lawmakers from both parties could speak out if they were uncomfortable with how the matter was progressing. She pointed to a death penalty case in Texas in which both Republican and Democratic lawmakers managed to stop the execution of Robert Roberson last month over concerns about an outdated medical diagnosis that led to his death sentence in 2003.

Robert Dunham, the director of the Death Penalty Policy Project, an independent research program, said Trump's intention to execute child rapists in particular may appeal to his “tough on crime” supporters but is more nuanced. He said the National Registry of Exonerations, which tracks sentences resulting from wrongful convictions, has found that child victim cases pose a particular risk of wrongful conviction because they can be “extremely emotional, often pitting family members against each other” and often conflict Wrongful convictions support forensic evidence.

According to the registry in 2022, child sexual abuse cases are the second most common allegation resulting in wrongful non-crime convictions, behind cases in which police planted drugs on defendants.

“The legal system alone is already extremely traumatic for these vulnerable children, subjecting them to the psychological trauma of being part of a system that could kill their caregivers, and also subjecting them to the trauma of having to testify, being interrogated, and being interrogated for years “Reliving the abuse during the appeal process – if that's a way to protect children,” Dunham said, “that's the wrong way.”

Expanding the death penalty could only exacerbate existing racial disparities among federal prisoners and continue to disproportionately affect mentally disabled defendants of color, Dunham added.

Against this backdrop, the ACLU's Cader said it is essential for all branches of government to stop Trump's attempts to expand the use of the death penalty when constitutionality is questioned.

“We know that he has already shown us that he will keep those promises,” she said.

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