President Trump is a strong supporter of the death penalty. Indeed, his support for capital punishment is perhaps his most long-standing and consistent political position: he purchased a full-page ad in several papers in 1989 urging execution of the (later-exonerated) Central Park Five; he has long made comments on Twitter favoring the execution of individuals convicted of crimes against children; and during the campaign he called for mandatory execution of individuals convicted of killing police officers (and for the execution of alleged deserter Sgt. Bowe Bergdahl). Trump’s views on the death penalty are exceptionally aggressive and categorical, even in a nation notorious for its exceptional attachment to the peculiar institution of capital punishment.
President Trump’s attorney general, Jeff Sessions, also strongly supports the death penalty. As attorney general of Alabama, he fought to uphold over 40 death sentences, including for individuals suffering from severe mental illness and in cases where there was evidence of racial bias at trial. He also advocated for a bill that would impose mandatory death sentences on individuals convicted of drug trafficking.
Given Trump and Sessions’s past support for the death penalty, and Trump’s tough-on-crime platform (which Sessions has vigorously advocated), it is likely that increased use of capital punishment—both in terms of increasing the number of death sentences, and increasing the number of executions carried out—will be on the agenda.
How might President Trump and Attorney General Sessions accomplish that goal? In this post I discuss the federal death penalty; in a follow-up post, I’ll discuss state-level capital punishment.
The Federal Death Penalty
Capital punishment is often discussed as a state (or local) issue, and for good reason. Most of the U.S. criminal justice system operates at the state level, where the president has no direct control, and capital punishment is no exception: only about 2 percent of the nation’s death row inmates were sentenced to death in federal court, with the remainder sentenced at the state level.
That said, federal law does authorize the death penalty for certain federal crimes—notably including murder involving a firearm and murder during the course of a continuing criminal enterprise, the most common offenses for which the federal government seeks the death penalty. Given the quintessentially executive role in prosecutorial decision-making, the new administration will have significant influence over the use of the federal death penalty. Specifically, it can seek new federal death sentences and can attempt to carry out the executions of the 62 individuals already on federal death row.
To be sure, there are limits on presidential power. The bureaucracy (including local United States Attorney’s Offices) and federal courts may check President Trump’s effective influence in this area. So may practical difficulties associating with running a death penalty system in a world set against it, as many states recently have discovered. For these reasons, any attempt to increase the use of the federal death penalty in the Trump era may turn out similarly to most other Trump administration proposals: initially dramatic, but ultimately ineffectual.
At this point, it’s hard to know whether Trump’s statements about the death penalty will truly change policy. But if they’re going to do so, we can anticipate the paths they’ll pursue.
Seeking New Federal Death Sentences
Most simply, the Trump administration could seek this objective by increasing the number of cases in which federal prosecutors seek the death penalty. That would not be unprecedented: during President George W. Bush’s administration, Attorney General John Ashcroft sought to increase the use of the federal death penalty, particularly in states that did not authorize it at the state level, after criticizing President Bill Clinton and Attorney General Janet Reno for their supposed underutilization of capital punishment. However, the Bush administration faced obstacles in its attempted changes, and the Trump administration may encounter similar challenges.
Under a policy that has existed in both Republican and Democratic administrations, the decision to seek the death penalty is ultimately made by the Attorney General, but is subject to a multi-stage review process involving both the local U.S. Attorney and a committee of career federal prosecutors. The longstanding role of career prosecutors and U.S. Attorneys may limit the ability of Trump and Sessions to control charging decisions in capital cases. Career prosecutors may not share the administration’s pro-death penalty approach. And, while the Trump administration may ultimately be able to appoint pro-death penalty U.S. Attorneys, the administration has been historically slow in filling vacant positions, which means that acting U.S. attorneys who may not share the administration’s views could remain in place for a long time. Further, it is not unusual for U.S. Attorneys to be more sensitive than Main Justice to local politics and customs, and U.S. Attorneys in abolitionist strongholds may be less inclined to bring controversial federal death penalty cases.
While the Supremacy Clause means that abolitionist states have no legal basis to prevent the federal government from seeking the death penalty for death-eligible crimes within their borders, abolitionist states may have some ability to pressure the federal government into refraining from doing so. The Obama-era case of Jason Pleau is illustrative on this point. Pleau was accused of committing murder during the course of a bank robbery, a crime eligible for the federal death penalty, in Rhode Island, a state where the death penalty is not authorized. Pleau was detained on a parole violation in Rhode Island, and the U.S. attorney in Rhode Island indicted him on federal death-eligible charges. However, the Governor of Rhode Island refused to turn Pleau over to federal authorities on the basis that the death penalty was counter to Rhode Island’s public policy. The federal government had to resort to a formal writ of habeas corpus to have Pleau turned over and, after a three-judge panel sided with the Governor, an en banc panel of the First Circuit held that Rhode Island had to turn Pleau over for federal prosecution.
However, as a result of Rhode Island’s pressure, the federal government ultimately agreed to refrain from seeking the death penalty if Pleau pleaded guilty and accepted a life sentence, which he did. The Pleau case illustrates how determined states can maintain some control over the use of the death penalty within their borders—even during the Trump era.
Of course, there are ways of circumventing most obstacles. For example, the administration could replace the current internal review procedure with one mandating that the death penalty be sought in certain cases; it could pack the career prosecutor review committee with pro-death penalty prosecutors; or Sessions could override recommendations from U.S. Attorneys and the review committee against the death penalty, as was done on occasion during the Bush II administration. Nevertheless, even during the pro-death penalty Bush/Ashcroft era, Ashcroft chose not to replace longstanding policy requiring multiple levels of review, and did not override the recommendations of career prosecutors in most cases. In fact, he ultimately did not seek the death penalty in the vast majority of death-eligible cases.
This precedent suggests that the pattern will likely be similar under Trump and Sessions: the federal death penalty may be sought somewhat more often than under President Obama, but it will not be different by orders of magnitude, Trump’s rhetoric notwithstanding.
And, of course, even if DOJ seeks the death penalty, it still may not be imposed. The government’s decision to seek the death penalty merely makes that sentence an option for the jury, and juries could nullify or vote for life sentences—particularly if federal prosecutors seek death sentences in liberal states that do not authorize the death penalty and have Trump-skeptical jury pools. In several Bush-era cases, for example, federal prosecutors controversially sought death sentences in non-death penalty New York as a result of overrides by Ashcroft, and the juries in those cases ultimately voted for life. In at least one of those cases, moreover, defense counsel raised the override policy during closing arguments. Given the distaste for President Trump in certain parts of the country, it is plausible that juries would be uniquely skeptical of imposing the federal death penalty if sought by the Trump administration.
Additionally, some federal district judges have become increasingly skeptical of the federal death penalty and have expressed a willingness to reevaluate its constitutionality. While no federal district judge has recently ruled the death penalty unconstitutional, it is possible that certain federal judges would be uncomfortable with its expanded use, particularly if the Trump administration seeks to expand the death penalty to “marginal” cases. District judges have a lot of discretion, especially in death cases requiring literally thousands of judgment calls, and a judge motivated to erect obstacles for the administration would have little trouble doing so.
In sum, there are several institutional safeguards—longstanding DOJ policies, career prosecutors, U.S. Attorneys, and federal courts (especially juries)—that likely will prevent a significant expansion of the federal death penalty under the Trump administration.
Carrying Out Federal Executions
In pursuit of a more aggressive federal death penalty, the Trump administration also could seek to carry out the executions of the 62 individuals currently on federal death row. Currently, most of those individuals have ongoing challenges to their convictions and sentences on direct appeal or under the federal habeas corpus statute, 28 U.S.C. §2255. But at least some federal death row inmates have exhausted available challenges to their sentences and are eligible to be executed. These executions have not proceeded, however, mainly because DOJ currently does not have a valid protocol for carrying out lethal injection, the only method authorized by the implementing regulations of the federal death penalty statute. DOJ has not had a valid protocol since at least 2011 due to the unavailability of sodium thiopental, a drug required under the prior protocol.
If the Trump administration wishes to carry out executions, it could attempt to develop a new lethal injection protocol or revise the method-of-execution regulations to allow for an alternative method (such as the firing squad). However, in recent years, states have had significant difficulty acquiring lethal injection drugs due to resistance by pharmaceutical companies and the medical profession. And federal courts have been skeptical of new proposed drug protocols, possibly due to a series of gruesome botched lethal injections. It is likely that the federal government would face similar challenges were it to promulgate a revised lethal injection protocol.
Other methods of execution may not fare much better: if DOJ attempts to revise the regulations to allow for the use of an alternative method of execution, it likely will be faced with constitutional challenges under the 8th Amendment, as well as statutory challenges to the new regulation.
Thus far, the only court to consider a challenge to DOJ’s authority to select a method of execution via regulation concluded that DOJ’s authority to do so is broad. However, in the event that DOJ revises the regulations to permit the use of a more constitutionally questionable method of execution, such as the electric chair, courts may block the revised regulations on a constitutional avoidance theory similar to the one adopted by the Supreme Court in cases such as National Labor Relations Board v. Catholic Bishop of Chicago—concluding that, given the constitutional questions associated with the electric chair, the death penalty statute should not be read to grant DOJ the authority to select it without clear authorization from Congress. (This can be understood either as an avoidance rule of an avoidance-linked clear statement requirement.)
What's more, the U.S. public may be unwilling to tolerate—politically or morally—more obviously gruesome methods of execution (this was what led to the medicalization of executions in the first place). Accordingly, even if Trump and Sessions try to start executing federal inmates who have been sentenced to death, capital defenders will have powerful arguments to challenge attempts to carry out federal executions.
Thanks to Professor Carol Steiker for her comments.