Creators
January 28, 2025
The first Trump administration carried out more
executions than any president in at least a century. Shortly after being sworn
in for a second time, President Donald Trump signed an order to expand the
death penalty.
It should come as no surprise that a second Trump
Department of Justice will seek capital punishment more often under his
administration. That would be a clear break from the prior administration.
Former President Joe Biden declared a moratorium on
executions when he took office. He campaigned in 2020 on ending the federal
death penalty. Legislation proposing to end state-sponsored death failed to
gain any traction in Congress during the Biden administration.
During his final days in office, Biden thwarted
Trump's plan to resume executions by commuting the death sentences of 37 of the
40 men on federal death row.
Biden knew what was coming. Under the first Trump
administration, the federal government carried out 13 executions in a little
more than six months following a 17-year pause.
The federal executions of 2020 included: the first
federal execution in 57 years for a crime committed in a state that had
abolished the death penalty; executions carried out against the wishes of the
victims' families; and the first lame-duck executions in more than a century.
After losing his bid for reelection, Trump oversaw six
executions during the presidential transition period, more than any other
administration in the history of the United States. Prior to 2020, the federal
government carried out only three executions in the modern era of the death
penalty. This time around, Trump will have only three inmates to choose from on
death row, and it is unlikely that any federal death sentence imposed during
his tenure will be eligible for execution before he leaves office.
In the past, the U.S. attorney general had wide
latitude in deciding whether to seek the death penalty in individual cases.
Trump's order instructs the office to pursue federal jurisdiction and seek the
death penalty, "regardless of other factors," for people who murder a
law enforcement officer or who are in the country illegally and commit a
capital crime.
More troubling is the portion of Trump's order that
addresses the 37 men whose death sentences were commuted to life without
parole. The order provides, "[T]he Attorney General shall take all lawful
and appropriate action to ensure that these offenders [commuted persons] are
imprisoned in conditions consistent with the monstrosity of their crimes and
the threats they pose."
Is Trump suggesting torture or something akin to it —
like feeding inmates bread and water and locking them in tiny, unsanitary cells
without interaction with others; no exercise; no contact with the outside
world?
Miriam Gohara, a clinical professor of law at Yale Law
School, told The Marshall Project the president's order raises legal concerns.
"The punishment is being incarcerated. The punishment is not the condition
of confinement. That's not legal," she said.
"The Eighth Amendment prohibits cruel and unusual
punishment," Robin Maher, the executive director of the Death Penalty
Information Center, told NPR. "There are limitations, both under the
Constitution and international standards, that prohibit keeping people in
torturous conditions."
"Are they going to intentionally put some sort of
atmosphere in place that is intolerable?" added Gohara. "I can't
imagine that is actually something that they could carry out. On the other
hand, I don't want to underestimate them either."
Professor Gohara is right. Don't underestimate Trump.
The U.S. Constitution may not be enough to constrain the new Department of
Justice. On Day 1, Trump also declared that he wants to eliminate
"birthright citizenship," a sacrosanct constitutional right adopted
more than 150 years ago and delineated in the 14th Amendment.
How about the 22nd Amendment's limitation on
presidential terms? With President Trump, everything is on the table.
Matthew T. Mangino is of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book "The Executioner's Toll,
2010" was released by McFarland Publishing. You can reach him at
www.mattmangino.com and follow him on X @MatthewTMangino.
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