Trump suggests state death penalty for those commuted by Biden. Is that possible?

Among the slew of executive orders signed by President Donald Trump on his first day in office, one called to reinstate the death penalty for federal death row inmates. However, only three individuals remain on federal death row after former President Joe Biden commuted the death sentences of 37 people on Dec. 23, sentencing them to life in prison without the possibility of parole.

Trump criticized Biden’s decision in his executive order on the death penalty, signed on Jan. 20, and instructed the attorney general to “further evaluate whether these offenders can be charged with state capital crimes and shall recommend appropriate action to state and local authorities.”

Federal death row

Legal experts discussed whether the 37 inmates formerly on federal death row could face the death penalty again. Those whose sentences were commuted by Biden were instead sentenced to life in prison without parole—a decision that Trump cannot reverse. According to Article II of the Constitution, the president has the unlimited power to pardon individuals in federal cases. However, the Constitution does not grant the authority to revoke a pardon. Additionally, prosecuting the commuted inmates for the same federal offenses would violate the double jeopardy clause, Sheri Lynn Johnson, assistant director of the Cornell Death Penalty Project, explained.

State death row

In his executive order, Trump also called on the attorney general to “further evaluate” whether the 37 inmates could face state-level capital prosecution. Hofstra law professor Eric Freedman noted that Biden’s commutations do not prevent state capital prosecutions. John Blume, director of the Cornell Death Penalty Project, stated that while it is theoretically possible for some inmates to face state-level death sentences if their crimes occurred in states with death penalty laws, this is highly unlikely. Many cases are old, original prosecutors are no longer in office, and pursuing such cases would be complicated.

Twenty-seven states currently have the death penalty, according to the Death Penalty Information Center. However, governors in California, Pennsylvania, Oregon, and Ohio have placed holds on executions. Sheri Lynn Johnson highlighted that while these inmates could theoretically be prosecuted for state crimes, it is improbable. Legal experts, such as Robin Maher, executive director of the Death Penalty Information Center, expressed doubts that state prosecutors would allocate resources to pursue death sentences for decades-old crimes committed by individuals already sentenced to life without parole. Maher emphasized that such actions would divert resources from pressing community needs.

Freedman noted additional legal hurdles for prosecuting federal inmates at the state level. These cases must not violate state double jeopardy laws and must fall within the statute of limitations. Despite Trump’s inability to return commuted inmates to federal death row, his executive order asked the attorney general to ensure these offenders are imprisoned under conditions reflecting the severity of their crimes and the threats they pose.

Source: miamiherald, Kate Linderman, January 22, 2025

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but by the punishments that the good have inflicted."

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