Presidential Candidate Donald Trump in a speech in Portsmouth, New Hampshire, restated his support for police officers and for the death penalty for those who kill them. Then, according to The Atlantic, he articulated a new proposal to demonstrate that support:
One of the first things I’d do in terms of executive order if I win would be to sign a strong, strong statement that will go out to the country, out to the world, that anybody caught killing a policeman, policewoman, police officer, anybody killing a police officer: death penalty. It’s gonna happen. OK? We can’t let this go.
At least three problems with this idea spring to mind.
First, the U.S. Supreme Court forbade mandatory death sentences in 1976 with its ruling in Woodson v. North Carolina. Central to the Court’s ruling was the justices’ opposition to punishing all murderers alike without regard for the aggravating or mitigating circumstances of each case. But the justices also feared that mandatory death sentences would compel jurors to hand down not-guilty verdicts for otherwise guilty defendants who they did not think deserved to die. Although Justice Clarence Thomas hinted at the possibility of revisiting Woodson in his Glossip v. Gross concurrence in June, the other justices did not seem eager to do so.
Second, the death penalty is largely administered by the states, not the federal government. Roughly 3,000 inmates currently sit on death row in the United States; only about 60 of them are in the federal system. President Trump would have no lawful power to influence state criminal-justice systems, whether by executive order or any other mechanism at his disposal. Any efforts to the contrary would violate the federal character of the Constitution.
Finally, and most importantly, the president doesn’t have the lawful power to unilaterally impose a criminal punishment on anyone, whether it be a fine, a prison sentence, or death. Presidents can wield the pardoning power to reduce or remove punishments for federal crimes, but they can neither increase nor enact them. The American legal system delegates that responsibility to judges and juries. Infringing on that separation of power through executive order would, at minimum, violate the Fifth and Fourteenth Amendments’ guarantees of due process.
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