Skip to main content

How Donald Trump Could Revitalize The Death Penalty

Trump could have a serious impact on the death penalty if he wanted to. Here's how.

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 5 young black men after a grisly and violent rape in Central Park. Even after the 5 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 4 more liberal justices and Justice Anthony Kennedy - with no likelihood of getting a supportive 6th possible vote over the next 4 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 3 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.

2,000 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.

Source: BuzzFeedNews, Chris McDaniel, November 11, 2016. Chris McDaniel is a death penalty reporter for BuzzFeed News and is based in New York.

⚑ | Report an error, an omission; suggest a story or a new angle to an existing story; send a submission; recommend a resource; contact the webmaster, contact us: deathpenaltynews@gmail.com.


Opposed to Capital Punishment? Help us keep this blog up and running! DONATE!

Most viewed (Last 7 days)

Florida Set to Execute Man Who Said He Killed to Reach Death Row, Challenging Misconception that Death Penalty Deters Crime

Florida is scheduled to execute James Robertson at noon on Tuesday, October 13, at Florida State Prison. His execution remains scheduled despite the withdrawal of William Lee Thompson’s death warrant, which had called for a 2nd execution that evening. If completed, this will be Florida’s 17th execution of 2026. Floridians for Alternatives to the Death Penalty (FADP) and partners will be holding a series of vigils and demonstrations across the state. 

Christa Pike's Survival Wasn't a Miracle. That's What Should Scare Us.

What happened in Tennessee's execution chamber is one of the most common failures in medicine Christa Pike is awake. A week after Tennessee strapped her to a gurney and gave her two doses of pentobarbital , she is off the ventilator and speaking from a hospital bed, still shackled to it. Her lawyers call her recovery " medically unprecedented. " Legal scholars say she is the first person in American history to survive a lethal injection after the drug was actually given. I understand the impulse to make such claims. I consulted for Pike's legal team, but I have also spent three decades in operating rooms and intensive care units (ICUs), and I want to resist the word "unprecedented" and the word "miracle" that hovers just behind it.

Christa Pike: 4 Major Questions As She Returns to Death Row

As Christa Pike returns to death row after surviving Tennessee’s attempt to execute her, several questions remain about her case and what comes next.  Pike, 50, was discharged from hospital and moved back to the Debra K. Johnson Rehabilitation Center, the women’s prison where she was housed for 30 years, her attorneys said on Saturday.  She was hospitalized after surviving 2 doses of the lethal drug pentobarbital as Tennessee attempted to execute her on September 30. Pike was sentenced to death for the 1995 murder of 19-year-old Colleen Slemmer, her classmate at a Job Corps training program in Knoxville, Tennessee. Pike was 18 at the time. 

Florida executes James Robertson

STARKE, Fla. — A Florida prisoner who said he killed his cellmate specifically to get on death row was executed Tuesday, nearly 18 years after the attack. James Robertson, 63, declined to offer any last words before receiving a three-drug injection and was pronounced dead about 10 minutes later. It was a stark contrast to the failed execution of Christa Pike in Tennessee two weeks ago, where she was rushed to the hospital after surviving two lethal doses of pentobarbital.

USA | Firing squad execution to be livestreamed, Pentagon says

The public will be able to watch the execution of a former US Army major by firing squad, US Defence Secretary Pete Hegseth has said. A Defense Department official told the BBC the execution of Nidal Hasan, who shot dead 13 unarmed US soldiers at Fort Hood in 2009, would be livestreamed. It is believed it would be the first public execution in the US in almost a century. The decision to livestream it is "unprecedented in the modern era" and "on uncertain legal terrain", said John Mills, a lawyer who works with inmates sentenced to death.

Saudi Arabia executes two Bangladeshis over 'immoral act' inside mosque

Saudi Arabia has carried out the death penalty on two Bangladeshi nationals in Mecca. The country's Interior Ministry announced this in a statement on Wednesday. According to the report, they were sentenced over allegations of involvement in immoral acts inside a mosque in Mecca. The information was reported by Ajel News, citing the Saudi Interior Ministry's statement. The two Bangladeshis executed were a man and a woman, Nazrul Islam Abdul Basir and Sithi Akhter. The “immoral acts” referred to illicit heterosexual intercourse, not homosexual activity.

Buffalo Tops shooter files last-minute bid to avoid death penalty

Payton Gendron, who is already serving life without parole for killing 10 Black people in a racist mass shooting at a Buffalo supermarket in 2022, is asking a federal judge to throw out the case that could send him to death row. Defense attorneys filed the motion Monday — a day before jury selection was scheduled to begin — seeking to dismiss Gendron’s federal indictment. They argued that Black residents are underrepresented in the jury pool for New York’s Western District, according to WIVB and WKBW.

What Tennessee wants to do next to Christa Pike is beyond grim

Christa Pike, the woman who survived two execution attempts in Tennessee earlier this week, remains hospitalized in critical condition, where presumably medical staff is at work trying to keep her alive.  If she wakes from the coma she had entered, Tennessee officials want to start anew to inject lethal drugs into her seemingly too-small veins to kill her and carry out the state death warrant. Pike also is being treated for “significant injuries to both arms” sustained when two lethal injections of pentobarbital failed to kill her. If she dies, there will be no need to try again.  As we know by now, Tennessee tried to put Pike to death Wednesday night by lethal injection for a murder she committed when she was 18. She would have been the first woman executed in the state in 200 years. 

Tennessee | Republicans legislature to investigate other execution methods after failed lethal injections

Republican leaders in Tennessee’s legislature say they will investigate the reliability of lethal injection as an execution method after the state failed to execute two death row inmates in the span of five months. Gov. Bill Lee stopped the May execution of Tony Carruthers after a physician unsuccessfully attempted to insert intravenous lines to begin the lethal injection process for over an hour. Death row inmate Christa Pike survived two failed rounds of Tennessee’s lethal injection protocol on Sept. 30 before the execution was halted. Pike, who was sentenced to death for the 1995 murder of Colleen Slemmer, is receiving medical care in a Nashville hospital. 

Tennessee | Christa Pike’s lawyer says she has not regained consciousness since her failed execution

Christa Pike has remained unconscious and on a ventilator at a hospital in the four days since her failed execution in Tennessee, and her prognosis might not be known for days more, one of her lawyers said Sunday. Little has been released about Pike’s condition since Wednesday night’s execution attempt. She has since remained hospitalized under guard as doctors try to get the massive dose of the barbiturate pentobarbital out of her system. When asked whether she ever regained consciousness after the execution attempt, Assistant Federal Defender Stephen Ferrell, Pike’s lawyer, said on CNN’s “State of the Union”: “Not that I am aware of.”