22 January 2025 :
January 20, 2025 - USA. Among Flurry of First-Day Executive Orders, President Trump Issues Order on the Death Penalty
On January 20, 2025, President Donald Trump signed more than two dozen Executive Orders, including a call to “restore” the federal death penalty. The Order, while lacking many important details, instructs the Department of Justice’s Attorney General to “pursue the death penalty for all crimes of a severity demanding its use,” including the killing of a law enforcement officer or “a capital crime committed by an illegal alien present in this country” and to encourage state attorneys general to bring state-capital charges for these crimes. President Trump also calls on the Attorney General to“take all necessary and lawful action” to ensure that states with capital punishment have sufficient access to the drugs needed for lethal injection executions. The Order also directs the Attorney General to seek to overrule any established Supreme Court precedent that “limit the authority of state and federal governments to impose capital punishment.”
Many of the statements in the executive order simply echo previous campaign rhetoric without providing important specifics or addressing the fact that well-settled legal precedent or laws would need to be changed by the United States Supreme Court or Congress to make the proposals a reality.
With respect to the recent commutations of federal death sentenced prisoners, the Executive Order calls on the Attorney General to evaluate the placement of each of the 37 men whose federal death sentences were commuted by former President Joe Biden in December 2024. The Attorney General should take lawful action to ensure that each of these individuals “are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.” The Attorney General, per the Order, should also evaluate whether these individuals can be charged with state-level capital crimes and “shall recommend appropriate action to state and local authorities.” Local elected prosecutors have the ultimate discretion in charging a capital case at the state level and may or may not seek the death penalty for a variety of reasons, including voter preference, case factors, and budget. Given these factors, it’s unlikely state prosecutors would choose to prosecute crimes that occurred twenty or thirty years ago, especially when the defendants have already been convicted and sentenced to life without parole in federal prison.
The Executive Order can be seen, inter alia, as a rebuke by the incoming administration to President Biden’s December 2024 decision to commute 37 of the 40 prisoners on death row, as well as in reaction to former Attorney General Merrick Garland’s July 2021 memorandum placing a moratorium on federal executions and calling for a review of federal execution policies and protocols. That review resulted in a decision by AG Garland last week to rescind the federal government’s single-drug pentobarbital lethal injection protocol. At the same time, the outgoing Attorney General also directed the Bureau of Prisons “to conduct evaluations of any other manner of execution,” that might be introduced going forward, and included in that evaluation “state or local facilities and personnel involved in any such execution[.]” This directive is bolstered by the detailed Department of Justice analysis of pentobarbital use, and while not binding on the incoming administration, should be seriously considered by DOJ officials before any substitute for pentobarbital is selected.
President Trump’s directive that the Attorney General “take all necessary and lawful action” to ensure that states with capital punishment have sufficient access to the drugs needed for lethal injection executions” appears directed at the fact that most drug companies now refuse to supply drugs used in executions to prisons. Laws passed in recent years bar the public from learning the sources of lethal drugs being used, making it increasingly difficult to judge the reliability of manufacturers or the efficacy of the drugs, and increasing the chances of “botched” executions. Some states have explored alternatives to lethal injection, including the use of nitrogen hypoxia, or gas, which results in death by suffocation as an individual is forced to breathe pure nitrogen, depriving the brain and body of oxygen.
In Trump’s first term, his administration carried out 13 federal executions in his last six months in office under the now-withdrawn pentobarbital execution protocol. Just three men remain on federal death row, none of whom have exhausted their appeals.
