Trump ignorant of the Constitutional when it comes to the death penalty

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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