Shortly after being sworn in, President Donald Trump signed an order to expand the death penalty, confirming a widespread expectation that the Department of Justice may seek capital punishment more often under his administration, reported The Marshall Project. The first Trump administration carried out more executions than any president in at least a century. But legal experts say the order is short on details about how the administration will carry out its plans in the face of legal and bureaucratic barriers.
“This executive order is lacking in so many important
details that it’s hard to know exactly what’s intended by some of these
statements. Much of it sounds more like campaign rhetoric than policy
statements,” said Robin Maher, executive director of the Death Penalty Information Center, a
nonprofit organization that researches and analyzes the issue.
Pam Bondi, Trump’s nominee for attorney general, fought
to maintain death sentences when she was attorney general in Florida.
In the past, the U.S. attorney general has 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.
But Maher said it would be “unprecedented and contrary to
established law” for prosecutors to seek a federal death sentence for every
capital crime where the defendant is an undocumented immigrant.
Stories about Trump administration policies affecting
criminal justice and immigration, and the president’s own criminal cases.
Republicans in Congress and state legislatures have long
sought to expand use of the death penalty for people who kill police. Under
federal law, jurors can consider the targeting of law enforcement as an
“aggravating factor” in deliberating over the death penalty when the victim is
a federal agent, judge or corrections officer. Several U.S.
senators recently introduced the Thin Blue Line Act, which would add
local and state police officers, firefighters and other first responders to the
law.
Miriam Gohara,
a clinical professor of law at the Yale Law School, said the most striking piece
of Trump’s order regarded the people who had their sentence commuted from death
to life in prison. Before leaving office, Biden
commuted the sentences of 37 people. Trump’s order said the attorney
general should ensure that those people are “imprisoned in conditions
consistent with the monstrosity of their crimes and the threats they pose.”
Gohara said that raises legal concerns. “The punishment is
being incarcerated. The punishment is not the condition of confinement. That's
not legal,” she said.
People in maximum-security facilities already face harsh
conditions, like the use of solitary
confinement. “Are they going to intentionally put some sort of atmosphere
in place that is intolerable?” said 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.”
Trump’s order also said officials will explore whether some
of the people whose sentences were commuted can be charged in state courts and
receive new death sentences that way. But Gohara was skeptical that prosecutors
would spend precious resources on decades-old cases where the person was
already in a federal prison for life.
While the Trump administration has no jurisdiction over
state cases, the president’s order says the federal government will work to
ensure that states can keep killing people on death row by helping local
governments obtain drugs for lethal injection.
Pharmaceutical companies have been refusing to supply
corrections agencies with the deadly drugs, citing moral
and business concerns. Some states have abandoned executions, while others
have explored alternative
ways to kill people, including firing squads and gas chambers.
The order also instructs the attorney general to work to
overthrow Supreme Court precedents that “limit the authority of state and federal
governments to impose capital punishment.” The order does not reference
specific cases, but this could be an allusion to Supreme Court rulings that
limit the death
penalty when the person convicted was under 18 at the time of the
crime or has an intellectual
disability. It could also refer to Supreme Court rulings that death
sentences are inappropriate in cases where the victim does
not lose their life. There have recently been efforts in states
like Florida to allow capital punishment for the rape of a child.
While the order directs federal prosecutors to seek the
death penalty more often, there is no guarantee that they will succeed in any
individual case. Roughly half of Americans still support
the death penalty in various polls, but a growing number reject it in
individual cases when serving as jurors. The decline in support owes to a
mix of interrelated factors: changing societal views on mental illness and
intellectual disability, aggressive efforts by defense lawyers to present defendants’
childhoods as mitigating factors and reluctance by prosecutors to seek
the punishment in the first place. Last year, 26
people were sentenced to death in state and federal courts across the
country, compared with a peak of more than 300 a year in the mid-1990s,
according to the Death Penalty Information Center.
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