I have not seen much press about President Trump’s order concerning the death penalty. But several provisions could prove to be quite significant.
First, Trump has ordered that the murderers with commuted sentence be placed in “appropriate” conditions:
The Attorney General shall evaluate the places of imprisonment and conditions of confinement for each of the 37 murderers whose Federal death sentences were commuted by President Biden, and the Attorney General shall take all lawful and appropriate action to ensure that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.
I suspect any change of conditions will give rise to an Eighth Amendment condition of confinement challenge. (See Point #4 below on whether these cases will succeed.)
Second, Trump has directed the Attorney General to refer federal inmates for state prosecution. Remember, there is no statute of limitation for murder, and states remain free to punish defendants who had their federal sentences commuted.
The Attorney General shall further evaluate whether these offenders can be charged with State capital crimes and shall recommend appropriate action to state and local authorities.
There is an obvious case to refer. John Fitzgerald Hanson is serving a life sentence in federal prison in Louisiana. He was also sentenced to death in Oklahoma for two murders. In 2022, the Oklahoma Court of Criminal Appeals scheduled Hanson’s execution for December of that year, but the Federal Bureau of Prisons refused to transfer him to the custody of the state because they found it was “not in the public interest.” President Trump should permit the transfer of Hanson so the execution can be carried out.
There are also the strange cases of Shannon Agofsky and Len Davis. These death row inmates received commutations from President Biden, but have apparently refused to accept them. Indeed, they filed suit in the Southern District of Indiana to enjoin the commutations (Agofsky v. United States, No. 2:25-cv-00001; Davis v. United States, No. 2:25-cv-00002). On January 17, the District Court denied the preliminary injunction. The judge found that “The Supreme Court decided nearly one hundred years ago that an inmate need not consent to a commutation, and that decision remains good law.” Biddle v. Perovich (1927) stated:
When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. See Ex parte Grossman, 267 U.S. 87, 120, 121. Just as the original punishment would be imposed without regard to the prisoner’s consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done. So far as a pardon legitimately cuts down a penalty, it affects the judgment imposing it
It isn’t clear if there is anything that Trump can do here.
Third, Trump ordered the AG to provide states with the execution drugs:
Sec. 4. Preserving Capital Punishment in the States. (a) The Attorney General shall take all necessary and lawful action to ensure that each state that allows capital punishment has a sufficient supply of drugs needed to carry out lethal injection.
Many states have had trouble obtaining these drugs. Now the federal government will provide the states with what they’ll need.
Fourth, saving the best for last, the President urges the AG to challenge Supreme Court precedents on the death penalty!
Sec. 5. 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.
If there is any area of the law where stare decsisis has the weakest force, it is the Eighth Amendment. The “evolving standards” test is by design is inconsistent with original meaning. I think the Court’s current conservatives will be lock solid on this issue. Well, at least five of them. Justice Barrett joined the liberals in a 2022 death penalty case from Alabama. And Barrett has shown a stronger affinity for stare decisis. But we can see challenges to the Court’s jurisprudence.
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