The death penalty has long been a focus of Donald Trump’s “tough on crime” approach, which demands strict consequences for his non-supporters. It’s no surprise, then, that capital punishment features in one of his first presidential actions in his second term.
That action came in an order titled “Restoring the Death Penalty and Protecting Public Safety.” Among other things, it seeks to overturn Supreme Court precedents that place legal limits on executions. That section of the order says:
Seeking The Overruling of Supreme Court Precedents That Hinder Capital Punishment. The Attorney General shall take all appropriate action to seek the overruling of Supreme Court precedents that limit the authority of State and Federal governments to impose capital punishment.
The order doesn’t specify which rulings, but some precedents that come to mind are those that limit executions of people with intellectual disabilities, juveniles and for non-homicide crimes. The now-retired Justice Anthony Kennedy, who was something of a swing vote on the court, authored 5-4 majority opinions enforcing those limits in cases earlier this century.
But his replacement by Justice Brett Kavanaugh, and Justice Amy Coney Barrett’s replacement of the late Ruth Bader Ginsburg, have cemented a majority that’s more inclined to side with the government in capital cases. That majority helped revive federal executions in Trump’s first term, green-lighting them as the Justice Department raced to the death chamber before Joe Biden, who ran on an anti-death penalty platform, took office in January 2021.
Just before he left office, Biden commuted most federal death row sentences to life in prison, making it more difficult for Trump to carry out another series of executions this time. On that note, Trump’s order also tells the attorney general to see if those 37 prisoners with commuted life terms can be charged with capital crimes on the state level as well, and to ensure in the meantime that they’re “imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.”
As for trying to overturn death penalty precedents, time will tell what the court that overturned Roe v. Wade and helped Trump push through federal executions in his first term will do.
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