What Donald Trump’s election could mean for the federal death penalty

By Dakin Andone, CNN

(CNN) — Opponents of the death penalty are bracing for Donald Trump’s return to the White House, fearing it will herald a new round of federal executions in an echo of the final months of the president-elect’s first administration.

Many of those advocates – who say the death penalty is applied unevenly and unfairly, among other concerns – are now appealing to President Joe Biden to commute all remaining federal death sentences, thus leaving no federal prisoners awaiting execution when Trump takes office.

Trump, during the 2024 campaign, indicated he would restart federal executions and work to expand the pool of crimes eligible for capital punishment under federal law, which generally allows for the death penalty in cases of murder, espionage and treason.

The president-elect voiced support for imposing the death penalty on convicted human traffickers and drug dealers, while also saying he would seek to have prosecutors pursue the death penalty for migrants who kill American citizens or anyone who kills a law enforcement officer.

While Trump has publicly distanced himself from Project 2025, the second-term roadmap written by his allies and members of his first administration similarly calls on the president-elect to “do everything possible to obtain finality” for those still on federal death row. It also wants the federal death penalty broadened to include people convicted of sexually abusing children, an application found by the US Supreme Court to be unconstitutional.

Abolitionist groups, advocacy organizations and defense attorneys don’t doubt another Trump term will see more of the roughly 40 prisoners on federal death row executed, pointing to the 13 such punishments carried out in the months before Trump left office in early 2021 – the first at the federal level in nearly two decades.

“We saw what he’s capable of,” Abraham Bonowitz, executive director of the abolitionist Death Penalty Action, said of Trump. “And on this promise of his, we should believe him.”

Advocates have little hope the courts will remedy alleged errors with inmates’ cases that might otherwise make them ineligible for execution, they told CNN. And they doubt pleas for clemency would be met with a sympathetic ear by Trump.

So, many are asking Biden – a Democrat who campaigned on a promise to pursue legislation abolishing the federal death penalty – to commute the death sentences of those housed on death row in Terre Haute, Indiana, to life without parole, believing it would thwart efforts to execute them.

“Doing so would simultaneously acknowledge longstanding concerns about the problematic way the federal death penalty has been used, make good on his campaign promise, and deny President Trump an opportunity to execute those men,” said Robin Maher, the executive director of the Death Penalty Information Center. The organization does not take a position for or against the death penalty but has been critical of its administration.

Reached for comment, Trump-Vance transition spokesperson Karoline Leavitt said, “No policy should be deemed official unless it comes directly from President Trump.”

Robyn Patterson, a spokesperson for the Biden White House, told CNN, “President Biden has been committed to reforming our criminal justice system, and has done so through his clemency authority in a manner that provides second chances, ensures equal justice under the law, and strengthens public safety.”

“The President will continue to evaluate clemency petitions in a thoughtful and deliberative manner,” Patterson said.

Federal executions were rare – before Trump

The federal government and the US military both retain the death penalty, as do 27 states – though executions are paused in six of those states by executive action, according to the Death Penalty Information Center.

Executions by the US government have for decades been particularly rare: Prior to the executions carried out under Trump, only three had been recorded since 1988, when Congress reinstated the punishment. And recent decades have seen the number of executions nationwide plummet precipitously after historic highs in the late 1990s and early 2000s.

In Trump’s first term, then-Attorney General William Barr announced in 2019 the government would resume federal executions in an effort to secure justice for those inmates’ victims. Death sentences, he noted, had been sought under Republican and Democratic administrations, “and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

The president can commute sentences, but he cannot independently order a sentence he desires. Whether federal prosecutors seek a capital sentence is a decision made by US attorneys across the country, in consultation with the Department of Justice and the US attorney general.

While a president cannot directly influence capital punishment in the states, some opponents of the death penalty fear an aggressive posture by the incoming Trump team regarding federal executions would trickle down to the states, perhaps spurring more executions.

“We can’t ignore the influence of Trump on the states that continue to impose the death penalty,” said Yasmin Cader, a deputy legal director at the American Civil Liberties Union and director of the Trone Center for Justice and Equality. “His rhetoric can and has spurred draconian measures and attitudes by leaders in states on several issues, including in the context of the criminal legal system.”

Death penalty is flawed, critics say

The death penalty is thought to be reserved for the “worst of the worst,” people convicted of particularly heinous crimes. Federal death row includes perpetrators of high-profile attacks, such as Dzhokhar Tsarnaev, one of two brothers responsible for the Boston Marathon bombing, and Dylann Roof, a White supremacist who murdered nine Black churchgoers in Charleston, South Carolina.

But critics of the death penalty say it is a failed policy. They cite, among other things, the arbitrary nature of its administration, its disproportionate application against people of color, its use against people with mental illness and the risk of executing innocent people.

Lisa Montgomery, who in 2021 was the only woman on federal death row, was executed during the final days of the first Trump administration. She was sentenced for the 2004 murder of a pregnant woman whose baby survived after Montgomery cut the fetus from the mother.

Montgomery’s attorneys argued for a halt to the execution, saying the inmate suffered from a severe mental illness and as a child endured horrific sexual abuse facilitated by her own mother. One of Montgomery’s attorneys, Kelley Henry, the chief of the Capital Habeas Unit based in Nashville, believes Montgomery was mentally incompetent, making her ineligible for execution under the Eighth Amendment.

Montgomery’s attorneys believed they had a compelling case, Henry said, and a chance to have her life spared. “Seeing that we never really did brings home the reality of what we’re about to see,” she said by phone last week while sitting outside the federal penitentiary in Terre Haute. She represents two inmates now on federal death row. The mood there, she said, is “incredibly apprehensive.”

“We saw during the end of the last administration their single-minded goal of executing as many people as they possibly could. They didn’t even let a pandemic or really the rule of law stand in their way,” she said.

‘A moral imperative’

A slim majority of American adults continues to support capital punishment, polling shows. Gallup found 53% of those surveyed in early October supported the death penalty for convicted murderers, results released last week show. That was the same level of support documented in polling a year earlier, when Gallup also found for the first time that 50% of respondents believed the death penalty was applied unfairly.

When Biden took office, death penalty critics hoped he would live up to his campaign’s stated desire to work with Congress to abolish capital punishment at the federal level. The outgoing president, however, has not done so, though his US Department of Justice under Attorney General Merrick Garland has halted federal executions while officials review their policies and protocol.

Despite the lack of meaningful, lasting change in policy, some advocates continue to praise Biden for his stance on the death penalty. Biden could not realistically have spent political capital on abolishing the death penalty when other policy initiatives would impact far more Americans, Death Penalty Action’s Bonowitz told CNN.

Now, however, advocates are appealing to Biden to commute all lingering federal death sentences so Trump is left with an empty slate for executions.

“Now is not the time to step back from death penalty abolition,” Krisanne Vaillancourt Murphy, the executive director of the Catholic Mobilizing Network, said in a statement announcing the network’s intention to petition Biden, himself a devout Catholic, to commute the death sentences.

Death Penalty Action has delivered a similar plea to the White House, Bonowitz said, in a letter signed by the group’s chair, the Rev. Sharon Risher. Her mother and two cousins were among those fatally shot by Roof at South Carolina’s Mother Emanuel African Methodist Episcopal Church. But she wishes the shooter had been sentenced to life in prison instead, in part because of the long appeals process, which forces her to revisit her grief repeatedly.

The letter – co-signed by scores of organizations like the ACLU Foundation, Amnesty International USA and the Innocence Project – implores Biden to “act decisively” to prevent any more executions under Trump.

“It is vital that you deny him that opportunity by commuting every death sentence remaining on federal and military death rows,” it says, also calling on Biden to demolish the federal execution chamber in Terre Haute, Indiana, among other steps.

“Ending the federal and military death penalty is not only an important step toward correcting myriad flaws in the criminal legal system in the United States,” the letter reads, “it is both good governance and a moral imperative.”

“We will continue to work toward that goal.”

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