The mortuary chamber, equipped for lethal injection, at the United States Penitentiary in Terre Haute, Indiana, is shown in this April 1995 photo.
Chuck Robinson/AP
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Chuck Robinson/AP
President Trump has said he intends to resume executions of federal death row inmates and forcefully issue new death sentences in future cases, particularly against migrants without legal status in the United States who commit crimes punishable by death.
The new use of the death penalty, announced in an executive order signed on his first day in office, comes just after former President Biden and his Justice Department moved to restrict the federal death penalty. In the final weeks of his presidency, Biden commutes the death sentence of 37 of the 40 prisoners sentenced to death.
Trump’s order calls on the United States Attorney General to seek the death penalty in future cases “for all crimes of a severity requiring its use.” In two cases – when law enforcement officers are victims of murder and when the defendants facing the death penalty are immigrants without legal status – the government will seek the death penalty “regardless of other factors.”
The order leaves room for the possibility that people without legal status could face the death penalty for crimes other than murder. Although federal crimes like espionage and treason already carry the death penalty, no one in the United States has been executed for a crime other than murder since the death penalty was declared constitutional in 1976 .
The Justice Department will also seek to overturn Supreme Court precedents that limit state and federal authority to carry out executions, the order said. This suggests that Trump disapproved of Biden’s commutations.
“These efforts to subvert and undermine capital punishment defy our nation’s laws, make a mockery of justice, and insult the victims of these horrific crimes,” the order states. The Trump administration will work to ensure that the 37 death row inmates whose sentences were commuted are imprisoned in harsh conditions “consistent with the monstrosity of their crimes,” the order states.
Experts say the provision is one of several that could face legal challenges.
“The Eighth Amendment prohibits cruel and unusual punishment,” said Robin Maher, executive director of the Death Penalty Information Center, a nonprofit that researches and publishes facts about capital punishment. “There are limitations, both in the Constitution and in international standards, that prohibit holding people in conditions of torture.”
Other aspects of the order may also not be easily enforceable.
“I think we can read this executive order as a wish list, as instructions to his or her attorney general regarding the priorities he or she should set when taking office,” Maher added. “But there will be a lot of resistance to many of these efforts. And again, they are contradictory to well-established law and procedure, so I don’t think any of this will be easy to implement.”
Trump’s support for the death penalty is not new. Since the Supreme Court declared the death penalty constitutional in 1976, the federal government has executed 16 prisoners with a high dose of pentobarbital, a sedative. All but three of these prisoners were executed during the first Trump administration.
The Biden administration has taken a more critical stance toward capital punishment. On January 15, former Attorney General Merrick Garland directed the Federal Bureau of Prisons to rescind its lethal injection protocol and stop using pentobarbital in executions. A three-year Justice Department review concluded there was “significant uncertainty” over whether the use of the drug was humane.
“In the face of such uncertainty, the department should prioritize the humane treatment of individuals and avoid unnecessary pain and suffering,” Garland said.
In its review, the Justice Department cited a 2024 NPR investigation who revealed how a compounding pharmacy in Texas was secretly producing pentobarbital for state executions. The review also cited an NPR investigation of 2020 which found evidence of pulmonary edema, which occurs when the lungs fill with fluid, in autopsies of executed prisoners.
Trump’s presidential action did not specify whether the federal government would continue to use pentobarbital against the previous administration’s recommendation, but he said the Justice Department would help states obtain drugs to carry out executions by lethal injection.
Trump nominated Pam Bondi, the former Florida attorney general, to serve as U.S. attorney general and head the agency. The Senate Judiciary Committee is expected to consider his nomination on Wednesday. As the confirmation process continues, immigration attorney James McHenry will serve as acting attorney general.
