Over the past several decades, President-elect Donald Trump has proved malleable on a wide array of policy — from Iraq and abortion, to marriage equality and immigration.
But he has been steadfast in his support for the death penalty.
Back in 1989, Trump paid for a full-page ad calling for the reinstatement of New York’s death penalty to be used on five young black men after a grisly and violent rape in Central Park. Even after the five men were exonerated and another man confessed to the crime, Trump expressed skepticism that the men were actually innocent, as recently as this fall. More broadly, Trump continued to advocate for the death penalty in the time since 1989.
Now that Trump will become president, he will have a chance to revitalize the death penalty. Here’s how he could do it.
The Supreme Court
Trump’s most obvious effect on the death penalty will be through the US Supreme Court. The prospect of the court ruling the death penalty unconstitutional in the near future was already a longshot. Now, abolition would dependent on support from all four more liberal justices and Justice Anthony Kennedy — with no likelihood of getting a supportive sixth possible vote over the next four years.
In practice, the high court’s actual interaction with the death penalty is much more mundane than a hypothetical sweeping ruling on its constitutionality. The court deals with questions about how the death penalty is carried out: from decisions about who is even eligible for the death penalty to issues with trial procedure and sentencing rules to challenges to the methods of execution.
These are the questions that, absent outright abolition, have a massive effect on how the death penalty works in practice. Another conservative vote (or more) could have a lasting effect. This is particularly true when it comes to challenges relating to sentencing law. Justice Antonin Scalia had been a leader on the court in advancing a resurgent jury trial right, which — in one of his last votes — was solidly, and broadly, applied to provide the protection of a jury vote not just for guilt but also as to the sentencing part of a death penalty trial. Whether that area of law continues to advance — as criminal defense lawyers hope — could change dramatically depending on Trump’s nominee or nominees to the court.
Reinvigorating The Federal Death Penalty
A Trump administration — from Trump and his attorney general on down — likely will be more supportive of the death penalty across the board.
The federal death penalty exists, but is extremely rare currently. There are only 64 people on federal death row, and there’s hasn’t been a serious prospect of them being executed in years. There have only been three federal executions in the modern era.
Obama has called the death penalty “deeply troubling” and his former Attorney General, Eric Holder, was an outspoken critic of it. His current attorney general, Loretta Lynch, still has not announced findings of a review of the death penalty that was begun during Holder’s tenure. Needless to say, the outcome of the review — even if it comes before the end of the Obama administration and is critical of the death penalty — likely will not form the basis of a Trump administration’s implementation of it.
These effects wouldn’t only be seen in the higher echelons of the administration, either. Trump almost certainly will appoint U.S. attorneys more eager for the death penalty than those under Obama.
Across the country, this could have a broader effect as well. Currently, new death sentences are way down. The sentences that are given out now are sought by just a handful of prosecutors, and the cases are incredibly expensive. A Trump administration could be more eager to help provide assistance to state death penalty prosecutions — or to seek the death penalty more frequently when it is possible to do so under federal law.
Allow States To Get (Illegal) Execution Drugs
An important reason executions have been on decline is because there’s been a difficulty in obtaining lethal injection drugs. For years, states have struggled to find a consistent supply of them after manufacturers began enacting stringent guidelines to keep their products away from lethal injections.
Trump’s largest impact on executions in the United States could be getting involved in an ongoing, but little noticed, feud between death penalty states and the federal government over importing illegal execution drugs.
The states’ reliable lethal injection drug for decades, sodium thiopental, has been impossible for states to get. The sole Food and Drug Administration-approved manufacturer stopped making the drug to keep it out of the hands of executioners.
States have turned to illegal suppliers of the drug. Last year, BuzzFeed News reported that Texas, Arizona, and Nebraska all purchased illegal sodium thiopental from a supplier in India. Nebraska’s shipment never left India. The Texas and Arizona shipments were detained by the FDA once they entered the US.
Two thousand vials of execution drugs have sat in a government warehouse for well over a year while the states and the FDA argue behind the scenes over whether the drugs can be released. The FDA argues that there is a court order preventing them from releasing the drugs.
The decision over what to do with these execution drugs involves the highest-ranking people at the FDA. Documents obtained by BuzzFeed News show the commissioner of the FDA asked to be briefed on the issue last year.
With a Trump-appointed FDA head, the decision could be different.
The FDA, under Obama, initially wanted no part of the issue. Years ago, the FDA allowed drugs to be imported by states wishing to carry out the death penalty, with the federal agency saying it wasn’t its role to regulate execution drugs. But a federal appeals court panel ruled the FDA didn’t have discretion to ignore a law that says unapproved drugs aren’t allowed into the country — leaving in place a court order that mandates such continued enforcement.
If Texas and Arizona were to sue over such drug importation while Obama was president, they would not only have to argue that the drugs should be allowed to come in — they’d have to go much further. They’d also have to argue that the court order doesn’t apply and that the FDA doesn’t have discretion to bar the drug.
Under an FDA commissioner that’s more sympathetic to the states’ argument, however, their case could become significantly easier to make. If the FDA wants to allow the drugs in, states would just need to convince the court that the earlier injunction doesn’t apply now and that the court should defer to the FDA’s interpretation and expertise on what drugs should be allowed into the country.
Large drug manufacturers in the US and Europe take great lengths to keep their products away from executioners. That would not be true of small manufacturers and distributors in countries like India. The change could be huge — and could allow for a steady supply of execution drugs.