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.

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