Throughout his campaign, President-elect Donald Trump signaled he would resume federal executions if he won and make more people eligible for capital punishment, including child rapists, migrants who kill U.S. citizens and law enforcement officers, and those convicted of drug and human trafficking.
“These are terrible, terrible, horrible people who are responsible for death, carnage and crime all over the country,” Trump said of traffickers when he announced his 2024 candidacy. “We’re going to be asking everyone who sells drugs, gets caught, to receive the death penalty for their heinous acts,” he added.
While it remains unclear how Trump would act to expand the death penalty, anti-death penalty groups and criminal justice reform advocates say they are taking his claims seriously, noting the spree of federal executions that occurred during his first term.
“We’re going to fight this tooth and nail, and we’re going to seek to uphold the constitutional principals that do not call for this expansion,” said Yasmin Cader, an ACLU deputy legal director and the director of its Trone Center for Justice and Equality.
At the tail end of Trump’s first term, 13 federal inmates were put to death — even as the pandemic led states to halt executions because of Covid concerns in prisons. The cases included the first woman executed by the federal government in nearly 70 years; the youngest person based on the age when the crime occurred (18 at the time of his arrest); and the only Native American on federal death row.
No president had overseen as many federal executions since Grover Cleveland in the late 1800s, and the U.S. government had not executed anyone for more than 15 years until Trump revived the practice.
His then-attorney general, William Barr, had said that the federal government “owed it to victims to carry out the sentence imposed by the justice system.”
Trump’s campaign did not immediately respond to a request for comment.
President Joe Biden had campaigned on passing legislation to eliminate the death penalty at the federal level, but pulled back on that in office. Instead, Attorney General Merrick Garland announced a moratorium in 2021 to review the federal execution protocols.
States administering the death penalty have had to defer executions in recent years because of an inability to procure the necessary lethal injection drugs. Alabama, however, has found a novel alternative — nitrogen gas — to put two inmates to death this year.
Biden’s aides say he supports death row inmates serving life sentences without probation or parole. It’s unclear what, if anything, he may do on the issue before leaving office.
Meanwhile, the Justice Department under Biden and Garland has not sought the death penalty in federal cases that could have warranted it, and has even withdrawn death penalty sentences in about two dozen cases that it had inherited. Federal prosecutors can ask a death penalty committee at the department for permission to file capital charges, but ultimately the attorney general signs off.
There are currently 40 inmates, all men, on federal death row, according to the nonpartisan Death Penalty Information Center. They include gunmen responsible for mass shootings in South Carolina and Pittsburgh and the man convicted in the Boston Marathon bombing.
Lee Kovarsky, a professor at the University of Texas School of Law and co-director of the school’s Capital Punishment Center, said Biden still has the ability to act before Trump takes office by commuting the sentences of the entire row of inmates to life in prison.
Justice will still be served, Kovarsky said, because “they’re not getting out.”
More than 40 federal laws provide for the death penalty, with nearly all dealing with murder or an illegal act that results in death. Whether Trump would expect federal prosecutors to seek death in cases that don’t explicitly involve murder — for instance, the rape of a child — remains to be seen, but the Death Penalty Information Center notes that a 2008 Supreme Court ruling prohibits the execution of people convicted of raping children and says it’s unclear if the use of the federal death penalty would be constitutional in certain cases in which someone was not killed.
Kovarsky said that Trump’s Justice Department would only be able to pursue a capital case where the crime is legally authorized for the death penalty. Otherwise, he would need Congress to change the law allowing for that particular crime.
In addition, ramping up executions again when he becomes president can’t happen immediately, Kovarsky added, given the logistics of getting a death warrant signed, ensuring the drug protocol is available and the expected legal challenges that would arise.
But Ruth Friedman, the director of the Federal Capital Habeas Project, which has represented some of the prisoners on death row, said the concern is real that the next Trump administration will move quickly on the death penalty, and even if it’s not executing someone immediately, it could begin with the reinstatement of the execution protocol.
“They will reverse the changes this [Biden’s] administration has made,” Friedman said.
She added that the current makeup of the Supreme Court, with its 6-3 conservative majority, has already shown it will generally back the death penalty — even in cases that have garnered attention over claims of innocence, misconduct and racial bias.
But Friedman said it’s possible that lawmakers from both parties could speak out if they are uncomfortable with how the issue progresses. She pointed to a death penalty case in Texas in which both Republican and Democratic legislators were successful in stopping the execution of Robert Roberson last month because of concerns over an outdated medical diagnosis that led to his capital conviction in 2003.
Robert Dunham, the director of the Death Penalty Policy Project, an independent research program, said Trump’s intention to execute child rapists in particular may appeal to his “tough-on-crime” supporters, but is more nuanced. He said the National Registry of Exonerations, which tracks sentences resulting from wrongful convictions, has found that child victim cases pose special dangers of wrongful conviction because they “can be extremely emotional, often pitting family members against each other,” and frequently rely upon false forensic evidence.
Child sexual assault cases are the second most frequent charge to result in no-crime wrongful convictions, behind cases in which police planted drugs on defendants, the registry said in 2022.
“The legal system by itself is already highly traumatic for these vulnerable kids, and subjecting them to the psychological trauma of being part of a system that could kill their caregiver and also subjecting them to the trauma of having to testify, be interrogated and spend years reliving the abuse during the appeals process — if this is a way to protect kids,” Dunham said, “this is the wrong way to do it.”
Expanding the death penalty may only worsen existing racial disparities among inmates on the federal row as well as continue to disproportionately affect intellectually disabled defendants of color, Dunham added.
Given that, Cader of the ACLU said, it will be imperative for all branches of government to be a check on Trump’s attempts to broaden use of the death penalty when constitutionality is called into question.
“What we know is that he’s already shown us that he will act on these promises,” she said.
This article was originally published on NBCNews.com
