Among Flurry of First-Day Executive Orders, President Trump Issues Order on the Death Penalty

On January 20, 2025, President Donald Trump signed more than two dozen Executive Orders, includ­ing a call to ​“restore” the fed­er­al death penal­ty. The Order, while lack­ing many impor­tant details, instructs the Department of Justice’s Attorney General to ​“pur­sue the death penal­ty for all crimes of a sever­i­ty demand­ing its use,” includ­ing the killing of a law enforce­ment offi­cer or ​“a cap­i­tal crime com­mit­ted by an ille­gal alien present in this coun­try” and to encour­age state attor­neys gen­er­al to bring state-cap­i­tal charges for these crimes. President Trump also calls on the Attorney General to ​“take all nec­es­sary and law­ful action” to ensure that states with cap­i­tal pun­ish­ment have suf­fi­cient access to the drugs need­ed for lethal injec­tion exe­cu­tions. The Order also directs the Attorney General to seek to over­rule any estab­lished Supreme Court prece­dent that ​“lim­it the author­i­ty of state and fed­er­al gov­ern­ments to impose capital punishment.”

Many of the state­ments in the exec­u­tive order sim­ply echo pre­vi­ous cam­paign rhetoric with­out pro­vid­ing impor­tant specifics or address­ing the fact that well-set­tled legal prece­dent or laws would need to be changed by the United States Supreme Court or Congress to make the pro­pos­als a reality.

With respect to the recent com­mu­ta­tions of fed­er­al death sen­tenced pris­on­ers, the Executive Order calls on the Attorney General to eval­u­ate the place­ment of each of the 37 men whose fed­er­al death sen­tences were com­mut­ed by for­mer President Joe Biden in December 2024. The Attorney General should take law­ful action to ensure that each of these indi­vid­u­als ​“are impris­oned in con­di­tions con­sis­tent with the mon­stros­i­ty of their crimes and the threats they pose.” The Attorney General, per the Order, should also eval­u­ate whether these indi­vid­u­als can be charged with state-lev­el cap­i­tal crimes and ​“shall rec­om­mend appro­pri­ate action to state and local author­i­ties.” Local elect­ed pros­e­cu­tors have the ulti­mate dis­cre­tion in charg­ing a cap­i­tal case at the state lev­el and may or may not seek the death penal­ty for a vari­ety of rea­sons, includ­ing vot­er pref­er­ence, case fac­tors, and bud­get. Given these fac­tors, it’s unlike­ly state pros­e­cu­tors would choose to pros­e­cute crimes that occurred twen­ty or thir­ty years ago, espe­cial­ly when the defen­dants have already been con­vict­ed and sen­tenced to life with­out parole in federal prison.

The Executive Order can be seen, inter alia, as a rebuke by the incom­ing admin­is­tra­tion to President Biden’s December 2024 deci­sion to com­mute 37 of the 40 pris­on­ers on death row, as well as in reac­tion to for­merAttorney General Merrick Garland’s July 2021 mem­o­ran­dum plac­ing a mora­to­ri­um on fed­er­al exe­cu­tions and call­ing for a review of fed­er­al exe­cu­tion poli­cies and pro­to­cols. That review result­ed in a deci­sion by AG Garland last week to rescind the fed­er­al government’s sin­gle-drug pen­to­bar­bi­tal lethal injec­tion pro­to­col. At the same time, the out­go­ing Attorney General also direct­ed the Bureau of Prisons ​“to con­duct eval­u­a­tions of any oth­er man­ner of exe­cu­tion,” that might be intro­duced going for­ward, and includ­ed in that eval­u­a­tion ​“state or local facil­i­ties and per­son­nel involved in any such exe­cu­tion[.]” This direc­tive is bol­stered by the detailed Department of Justice analy­sis of pen­to­bar­bi­tal use, and while not bind­ing on the incom­ing admin­is­tra­tion, should be seri­ous­ly con­sid­ered by DOJ offi­cials before any sub­sti­tute for pen­to­bar­bi­tal is selected.

President Trump’s direc­tive that the Attorney General ​“take all nec­es­sary and law­ful action” to ensure that states with cap­i­tal pun­ish­ment have suf­fi­cient access to the drugs need­ed for lethal injec­tion exe­cu­tions” appears direct­ed at the fact that most drug com­pa­nies now refuse to sup­ply drugs used in exe­cu­tions to pris­ons. Laws passed in recent years bar the pub­lic from learn­ing the sources of lethal drugs being used, mak­ing it increas­ing­ly dif­fi­cult to judge the reli­a­bil­i­ty of man­u­fac­tur­ers or the effi­ca­cy of the drugs, and increas­ing the chances of ​“botched” exe­cu­tions. Some states have explored alter­na­tives to lethal injec­tion, includ­ing the use of nitro­gen hypox­ia, or gas, which results in death by suf­fo­ca­tion as an indi­vid­ual is forced to breathe pure nitro­gen, depriv­ing the brain and body of oxygen. 

In Trump’s first term, his admin­is­tra­tion car­ried out 13 fed­er­al exe­cu­tions in his last six months in office under the now-with­drawn pen­to­bar­bi­tal exe­cu­tion pro­to­col. Just three men remain on fed­er­al death row, none of whom have exhaust­ed their appeals.