President Trump's Executive Order on the Death Penalty

I have not seen much press about President Trump's order concerning the death penalty. But several provisions could prove to be quite significant.

First, Trump has ordered that the murderers with commuted sentence be placed in "appropriate" conditions:

The Attorney General shall evaluate the places of imprisonment and conditions of confinement for each of the 37 murderers whose Federal death sentences were commuted by President Biden, and the Attorney General shall take all lawful and appropriate action to ensure that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.

I suspect any change of conditions will give rise to an Eighth Amendment condition of confinement challenge. (See Point #4 below on whether these cases will succeed.)

Second, Trump has directed the Attorney General to refer federal inmates for state prosecution. Remember, there is no statute of limitation for murder, and states remain free to punish defendants who had their federal sentences commuted.

The Attorney General shall further evaluate whether these offenders can be charged with State capital crimes and shall recommend appropriate action to state and local authorities.

There is an obvious case to refer. John Fitzgerald Hanson is serving a life sentence in federal prison in Louisiana. He was also sentenced to death in Oklahoma for two murders. In 2022, the Oklahoma Court of Criminal Appeals scheduled Hanson's execution for December of that year, but the Federal Bureau of Prisons refused to transfer him to the custody of the state because they found it was "not in the public interest." President Trump should permit the transfer of Hanson so the execution can be carried out.

There are also the strange cases of Shannon Agofsky and Len Davis. These death row inmates received commutations from President Biden, but have apparently refused to accept them. Indeed, they filed suit in the Southern District of Indiana to enjoin the commutations (Agofsky v. United States, No. 2:25-cv-00001; Davis v. United States, No. 2:25-cv-00002). On January 17, the District Court denied the preliminary injunction. The judge found that "The Supreme Court decided nearly one hundred years ago that an inmate need not consent to a commutation, and that decision remains good law." Biddle v. Perovich (1927) stated:

When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. See Ex parte Grossman, 267 U.S. 87, 120, 121. Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done. So far as a pardon legitimately cuts down a penalty, it affects the judgment imposing it

It isn't clear if there is anything that Trump can do here.

Third, Trump ordered the AG to provide states with the execution drugs:

Sec. 4. Preserving Capital Punishment in the States. (a) The Attorney General shall take all necessary and lawful action to ensure that each state that allows capital punishment has a sufficient supply of drugs needed to carry out lethal injection.

Many states have had trouble obtaining these drugs. Now the federal government will provide the states with what they'll need.

Fourth, saving the best for last, the President urges the AG to challenge Supreme Court precedents on the death penalty!

Sec. 5. Seeking The Overruling of Supreme Court Precedents That Hinder Capital Punishment. The Attorney General shall take all appropriate action to seek the overruling of Supreme Court precedents that limit the authority of State and Federal governments to impose capital punishment.

If there is any area of the law where stare decsisis has the weakest force, it is the Eighth Amendment. The "evolving standards" test is by design is inconsistent with original meaning. I think the Court's current conservatives will be lock solid on this issue. Well, at least five of them. Justice Barrett joined the liberals in a 2022 death penalty case from Alabama. And Barrett has shown a stronger affinity for stare decisis. But we can see challenges to the Court's jurisprudence.

Comments

[Dan Schiavetta]

This is disgusting, an ignorant, spoiled child who revels in cruelty and revenge, and now has all the power to engage his whims.

[Frank Drackman]

No, Sleepy Joe's not President anymore

[LawTalkingGuy]

Blackman or Trump?

[bernard11]

por que no los dos?

[emilyhere]

Google paid $195 a hour on the internet..my close relative has been without labor for nine months and the earlier month her compensation check was $23660 by working at home for 10 hours a day..

Here→→ https://da.gd/income666

[Michael Ejercito]

What is wrong with revenge against wrongdoers?

[Stupid Government Tricks]

Dan's partisan flappery aside, governments cannot be trusted with executions. It's all too tempting to sweep corruption under the rug. When Illinois Governor Ryan commuted death sentences to life without parole, more death row prisoners had been exonerated due to police and/or prosecutorial misconduct than had been executed (12:11?) That's a terrible record.

[Michael Ejercito]

The alternative is releasing murderers like Ahlam Tamimi, in exchange for hostages the murderers' friends took.

[Stupid Government Tricks]

No, that is one alternative, and employable only because executives have too much discretionary authority to break laws without repercussions.

[M L]

"governments cannot be trusted with executions"

Question: Can anyone be trusted with executions, then?

This is a bit too much of blanket statement, in my opinion. Ideally, I think a government could be trusted with executions. Well, ideally, nobody would commit unspeakable acts against innocent people, even including children, that demand such justice and deterrence. But as long as they sometimes do, one should hope for a government that can be trusted with executions. Whether there is such a government on any part of the planet currently, I do not opine.

[Dr. Ed 2]

As opposed to Janet Reno saying "we will seek the death penalty" in the immediate aftermath of the Ok city bombing?

[David Nieporent]

Yes. As opposed to that.

[KenveeB]

"Dear Attorney General, do what you can within the law to carry out a punishment expressly provided for in the Constitution." You're right, the man's a terror.

[Greg J]

It isn't clear if there is anything that Trump can do here.

It's clear to me that Trump needs to get about filing court actions against every single action taken by the Biden Admin at least since the debate, on the grounds that the President lacked the mental capacity to act, and that therefore no action taken in his name, or with his power, should be considered legitimate.

The 25th Amendment exists for a reason. The Democrats' decision not to use it should be punished.

Every commutation, every pardon, every executive order, should be challenged. And Biden should be forced to show up in court to defend the claim that he was actually in his right mind, and knew what was happening, and it wasn't just his aids hijacking his power.

I'm sad to see Trump being a chickenshit about this

[David Nieporent]

It's clear to me that you aren't a lawyer.

[ReaderY]

Greater enforcement of the death penalty has been a traditional Republican goal for years. I see that part of it as nothing new.

As to prisoners whose sentences have been commuted, I agree that it reflects his individual character or lack thereof, and I suspect the courts will not support treating them differently from other prisoners with the same sentence following commutation.

[John F. Carr]

"These death row inmates received commutations from President Biden, but have apparently refused to accept them."

Trump could withdraw the offer of commutation and let the lawyers go to battle.

[Frank Drackman]

Apparently murderers have more pride than General Fatty, Dr Faux-chi, the January 6th committee, and Biden's family

[David Nieporent]

It was not an "offer."

[Martinned2]

Even in the EU, where the Member States are much more obviously sovereign than the US states are, there is now a clear body of case law that developed in recent years that prevents someone from being punished twice for the same offence, and that explains what does and does not count as "the same offence". The US dual sovereignty doctrine is a disgrace.

[Brett Bellmore]

It is, undeniably. "dual sovereignty" is just a sophistry designed to circumvent the double jeopardy clause.

Per the 10th amendment, we do not actually have a system of overlapping sovereignty. We have a system of interlocking sovereignty. Most federal laws are actually unconstitutional, the federal government was deliberately denied the general police power outside of territory purchased or granted with the consent of a state.

[DixieTune]

You are correct that if the federal government was limited to its Constitutional authority, the dual sovereignty doctrine would largely become irrelevant.

But a state should not be prohibited from filing charges because the federal government did. The states never consented to that when creating the federal government.

[Martinned2]

It doesn't matter what the states consented to in 1787. They didn't necessarily consent to each of the subsequent constitutional amendments either. By consenting to the constitution, the states agreed to confer Kompetenz-Kompetenz on the federal government. After that, the states don't get a veto.

[DixieTune]

Yes, they consented to the Constitution. Not to the tortured version of it propounded by the left.

[Commenter_XY]

It doesn't matter what the states consented to in 1787

Uh yeah, it does.

[Brett Bellmore]

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;"

Get that? "Exclusive"; In the territories the federal government is actually entitled to exercise police power over, the states totally lack any authority.

This has been perverted to give the federal government that sort of jurisdiction over land purchased without that consent, but in principle, overlapping jurisdiction should be extraordinarily rare.

[A Japanese Student]

I'm not sure that is actually the case. Most lands managed by the federal government would be governed by Property Clause, and Congress gets to decide if the jurisdiction should be concurrent or exclusive.

[Brett Bellmore]

"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

This isn't any more than saying that Congress, not the executive, is the 'land owner'. It still remains the case that, without state legislative approval, states retain sovereign jurisdiction over federal property within a state. It even says that: "and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

So state laws still prevail, constitutionally, within a post office, if the federal government didn't get state legislative approval when it bought the property. Crimes therein are state crimes.

[A Japanese Student]

I was thinking about national forests and parks in the West, lands that were always under federal control. Yes, the federal government cannot simply remove a piece of land from state jurisdiction. I do not see how concurrent jurisdiction (or federal preemption under Supremacy Clause) is problematic, however, and SCOTUS seems to agree in Kleppe v. NM.

[John F. Carr]

States have at times voluntarily given up jurisdiction to the federal government. See the federal enclave article on Wikipedia.

[David Nieporent]

1) Neither Congress nor the president is the land owner of places purchased by the federal government. The federal government is.
2) That states can exercise jurisdiction over crimes committed in the places you're describing in no way suggests that the federal government cannot also do so.

[Noscitur a sociis]

I realize you’re proud of how neatly this would solve the problem, but you’ve got to let it go. As long as there have been federal crimes, there have been common courses of criminal conduct that simultaneously violated (obviously constitutional) federal and state laws. Not to mention, of course, the ones that violated the laws of two different states.

[A Japanese Student]

Before the AG can ask courts to overturn death penalty precedents, he must find the case where 1) the precedent is currently barring death penalty and 2) such punishment is statutorily authorized.

For example, there are only two Federal statutes where death is (supposedly) authorized for raping children: UCMJ and Section 242. Whether the UCMJ actually authorizes death penalty for child rape appears to be an unsettled question - Article 120b punishes child rape but does not mention capital punishment, only "as a court-martial may direct", while Article 18 says death penalty can be imposed "when specifically authorized by this chapter". (This is discussed in the 5-justice statement denying rehearing in Kennedy.) Section 242 is the "deprivation of rights under color of law" offense (e.g. police violence), and while Biden's Civil Rights Division frequently brought prosecutions, I don't think that will happen under Trump.

Not only that, 18 USC 3591 also appears to limit which offenses are death-eligible. (a)(1) covers espionage and treason, not subject to Kennedy; (a)(2) covers murder; and (b) covers the drug kingpin statute. Rape is not listed. (Plus, it also says explicitly that juvenile death penalty is forbidden - so no overturning of Roper.)

[Frank Drackman]

I like the way Japan does the death penalty, by hanging, with only a 1 hour notice to the condemned, imagine never knowing if the knock on the door is Amazon, or Huroshi the Hangman

[DixieTune]

The "evolving standards" is as ridiculous as the "common use" trope from Heller.

The constitutionality of something shouldn't change because a large group of states do or don't do something.

[Michael Ejercito]

By taking "evolving standards" at its word, torturing people to death as punishment for pickpocketing would be constitutional if a bare majority of Americans approved.

[Frank Drackman]

Sounds about right, although maybe just amputation of the offending part with first time offenders

[Bob from Ohio]

"By taking "evolving standards" at its word,"

Silly, "standards" only "evolve" in one way.

[LawTalkingGuy]

In the direction of decency, something you wouldn’t understand if your life depended on it.

[Bob from Ohio]

Letting murderers not get their due punishment is not decent, you foolish child.

"My IQ is 79, you can't kill me even though I enjoyed the rape and killing and knew it was wrong" is the effect of your childish beliefs.

[LawTalkingGuy]

Bob, you are an apologist for rape and murder and violence when its done by people you like. Or did I forget your glee at all the violent criminals being pardoned by Trump? I'm not the childish one.

Also, 79 IQ isn't the Atkins standard, so you don't even know what you're talking about. The approach to Atkins is based on decades of research and thought by psychiatrists, psychologists, doctors, social workers, experienced lawyers, and judges. That you so casually dismiss this work based on an approach that can generously be described as level 1 on the Kohlberg scale of moral development is actually more indicative of childishness and foolishness than anything I've ever said.

And again, it is actually remarkable that the best retort you can come up with is "emotional" and "child." If you think of me as a child you get to dismiss my on the mark criticism of you. Unfortunately for you, the fact is I am an adult who is in the same profession as you. A profession with ideals I take seriously, unlike you. So are a lot of other people who would absolutely abhor your views if known. Are they all children too, Bob? Face it, you are not a good person, but instead of reforming your shitty views and behavior you're throwing a tantrum. Eric Cartman also tells people to "grow up." In the real world, no one likes Eric Cartman.

[Bob from Ohio]

" psychiatrists, psychologists, doctors, social workers"

Quacks, quacks, doctors vary in ability so likely quacks, stupid.

You might be an adult by age but you have the emotional development of a toddler.

[LawTalkingGuy]

"Have the emotional development of a toddler." was preceded by: "Quacks, quacks, doctors vary in ability so likely quacks, stupid."

You sound like that kid who fails classes and says its because his teacher is dumb. Some people actually know more than you Bob. I mean you have a three year degree in reading casebooks, and by all indications were so mediocre at it you had to stay in Ohio and be a transactional lawyer. What makes you think you know better than people who study intellectual disability for their profession? Does your extensive history in swapping names in and out of boilerplate contracts give you some kind of special insight into human psychology?

Frankly, I can't think of anything more childlike than the dismissal of expertise because it conflicts with your caveman like approach to complex issues. You keep calling me an emoting child but you need to look in the mirror (if you can find a stepstool that is).

[DixieTune]

Psychologists and social workers tend to be very liberal. That's why they declassified homosexuality as a disorder, because it hurt their feelings.

[David Nieporent]

What do you think "unusual" means?

[DixieTune]

Extrajudicial. Ones that judges prescribed outside of statute.

[LawTalkingGuy]

Man you’ve gotta be a shitty person to try and overrule Atkins and Roper. Just absolute trash.

[DixieTune]

No, you have to be a shitty person to believe that a society's right to justice is mitigated because the defendant claims to be mentally ill or under some arbitrary line of "adulthood."

[LawTalkingGuy]

No. “I want to execute the intellectually disabled and kids” is going to make you sound like trash anywhere outside of a right-wing comments section.

[DixieTune]

Ahh, yes, the left wing trash who think that 16 year olds are not old enough to know right from wrong but old enough to consent to gay sex with their 54 year old boyfriends or to get abortions.

[LawTalkingGuy]

Ahhhhh okay. This is the name-changing freak who thinks about gay sex more than any human on the planet.

[Stupid Government Tricks]

Easy enough to rebut his actual argument, which is the hypocrisy and inconsistency of forbidding minors from using tobacco, alcohol, other drugs, guns, and so on, but making it a child abuse felony to misgender 5 year olds who have "chosen" to self-identify as one of some 57 mythical genders, and to deny them surgery and chemical castration.

You lefties never have had any sense of proportion.

It used to be dogma that —

* Homosexuality was genetic and unchangeable. This was why gay conversion therapy was banned, even when voluntary.

* Female genital mutilation was about the worst crime possible.

* Chemical castration was immoral, even when voluntarily requested by convicted rapists and pedophiles. It was also unhealthy.

* Children by definition were not adults and not allowed to decide they wanted to smoke tobacco, drink alcohol, or imbibe other drugs.

* Title IX was necessary to provide as many women's sports leagues as men had.

Now it’s dogma that gender is so fluid that pre-school kids must be believed when their teachers brainwash them into thinking their gender has changed, chemical castration is good AND safe when relabeled as puberty blockers, child gender mutilation is not just good but so mandatory that parents can be charged with child abuse for trying to block it, and third-rate male athletes can identify as women and beat everyone else in women's sports.

[Sarcastr0]

Maybe you shouldn't be so dogmatic.

I mean, other people too but you see dogma everywhere.

(Also what FGM is and does is pretty different from what bottom surgery is and does)

[Stupid Government Tricks]

Dogmatic is your middle name. You don't know how to deal with people who don't tow your lion, you don't have any sense of humor, and you hate everyone who dares think for themself.

[Sarcastr0]

I'm always amused by when people put their fellow posters in a box and then get angry at the box.

I think there is an individual right to self defense
I think trans in sports needs careful scrutiny, and is probably a bad idea at the highest levels.

I post here *because* I don't find discussions with people who agree with me are particularly compelling. What's the right way to deal with people who don't agree with you, anyhow?

And if tow your lion was a test of my sense of humor, it sure worked!

you hate everyone who dares think for themself.
Thanks for telling me what I feel, and how hateful it is! I'll be sure and take it up with the Sarcastr0 in your head.

[Stupid Government Tricks]

Your idea of "discussion" very much excludes discussion.

[Sarcastr0]

How so?

[David Nieporent]

I like how you had to say "gay sex" because opposing age of consent laws for heterosexuals is a right-wing thing.

[DixieTune]

No, I said "gay sex" because you frequently see inappropriate age pairings among gay men that you don't among heterosexuals.

[Michael Ejercito]

What is so special about Atkins and Roper?

[LawTalkingGuy]

Recognizing the state shouldn’t kill the intellectually disabled or children is morally good. Trying to overturn that is morally bad. Hope that helps!

[Michael Ejercito]

Have you read about the crime underlying the Roper case?

[LawTalkingGuy]

Yes. It was horrible. Life in prison. Have you read about all the wrongful executions and thought it was acceptable to risk it on a child? Would YOU be willing to stick a needle in a kids arm on sketchy evidence?

[DixieTune]

I wouldn't be willing to stick a needle in anyone's arm on sketchy evidence. But thankfully, no innocent person has ever been executed in the history of the United States, so the system works.

[SRG2]

I have. Truly horrific. But Simmons had diminished responsibility by virtue of his age. Is this a concept you understand? Or does the crime trump competence?

[DixieTune]

Yes, the crime trumps competence, even assuming he was diminished.

[SRG2]

That leads to the conclusion that for you, mens rea is not a significant component of a crime.

[Bob from Ohio]

"intellectually disabled "

If they understand right and wrong and hence found competent to stand trial, they can die for murdering an innocent person.

[LawTalkingGuy]

More crocodile tears for victims from white-knighting animal rape-apologist and January 6th supporter Bob.* You’ll never have the high ground here so why even bother?

I also note you never responded to my question about how you would interact with a Palestinian lawyer or student, after you 1) used and ethnic slur and tried to deny it 2) once it became indisputable that’s what you were doing you bashed an entire ethnic group.

*BTW you say truth and reconciliation committees lied about that. But the US had documented use of animals to humiliate detainees at Abu Ghraib. In 2003. In a country that investigates detainee abuse and tries to stop it. What makes you think a dictatorship that had no guardrails didn’t do that? Other than your belief that right-wing dictatorships can do what they want and all women are liars?

[Bob from Ohio]

A dog attacking a woman's genitals with their teeth is going to cause horrible damage with significant bleeding. Blood loss causes shock, which often causes death.

You expect the dictatorship to simultaneously do this horrible thing and then provide immediate medical attention?

Read about torture. The aim is to provoke maximum pain with minimal physical evidence. One reason for using electrodes on sensitive spots.

These "rapes" [assuming survival] would leave a lot of physical evidence. Where is it?

[LawTalkingGuy]

Well a lot of people died in Pinochet's custody and were disappeared. Ever think of that? And the survivors testified after the regime collapsed which is years later? So they might not have physical evidence? Or that there are ways to sexually humiliate women using animals other than dogs and acts other than dog bites? Like we have documented evidence of at Abu Ghairib?

The fact that you have to narrow this to an extremely gruesome act is very telling. Face it Bob you are a rape apologist. You whine about justice for victims and justice, and denigrate victims on a dime. You are an absolutely disgusting and shameless individual.

[Bob from Ohio]

"Or that there are ways to sexually humiliate women using animals other than dogs and acts other than dog bites?"

Sure, BUT ITS NOT RAPE THEN.

You are all emotion, no thinking. Not ever.

[LawTalkingGuy]

"You are all emotion, no thinking. Not ever."

Like you aren't emotional. You're entirely driven by emotions, mostly dark ones.

But alas, dear Bob, I am also a thinker and a much better lawyer than you, which means that I know penetration is not necessarily required for rape under the prevailing modern view and that use of animals counts. See State v. Colonel, 2023-Ohio-3945 (4th Dist.)

And in the end, your defense to your depravity is that you are an apologist for gross sexual imposition using animals. Great work.

[DixieTune]

He's a homosexual living in D.C. No shock there.

[LawTalkingGuy]

0/2

[DixieTune]

You act like an emotional woman. That means that if you're not a woman, you're a homosexual man.

[LawTalkingGuy]

Okay, that's wrong, but still would be 1/2 even if it were correct.

But being called emotional by some neo-confederate with Dixie as a username is funny. Can't think of a more emotionally petulant cause to identify with. Imagine celebrating loser slaveholders 160 years later. That's some whiny shit.

[DixieTune]

Does your wife know you're gay?

[LawTalkingGuy]

Do the two people who pretend to like you know you constantly think about gay sex and use any excuse to bring it up?

[Bob from Ohio]

"much better lawyer than you,"

whatever gets you thru the night

[LawTalkingGuy]

I mean I just proved it didn't I? You couldn't think of an actual response to what I said. But its got to be a low bar, you're a transactional lawyer in Ohio, most lawyers are probably better than you.

[Commenter_XY]

Sec. 5. Seeking The Overruling of Supreme Court Precedents That Hinder Capital Punishment. The Attorney General shall take all appropriate action to seek the overruling of Supreme Court precedents that limit the authority of State and Federal governments to impose capital punishment.

As a legal matter...
How does an AG (Bondi) do that?
And what is appropriate action?

[Squire Al]

What exactly does Trump have in mind here.

Is he suggesting some type of more punitive prison environment (Solitary Confinement perhaps) or maybe he saw Running Man on TV and he thinks it would be a nice entertainment to offer Pardons or Commutations if people can be stalked and tracked for the public to watch.

Whatever standards exist under the 8th Amendment, is there any real question that Trump would not care a bit about any torture or punishment that he could impose.

So it begins, and with apologists like Professor Blackman around, where will it end?

[Brett Bellmore]

It does kind of matter what Trump has in mind here, so maybe wait and find out?

[Sarcastr0]

The question was rhetorical.
We all know what this is about.

[Brett Bellmore]

Says the guy who is forever going on about mind reading.

[LawTalkingGuy]

Credit where credit is due: that’s a palpable hit.

[Sarcastr0]

Blah, I say!

But you're right I may be too sure about the performative cruelty aspect here. I see it lots of places, and don't much care for the death penalty.

[Mr. Bumble]

"I see it lots of places..."
Performative cruelty or the death penalty?

[Sarcastr0]

Performative cruelty. At the border, at federal employees...

maybe here, but I should do the work to establish that, or wait until it becomes undeniable before I assume.

[Brett Bellmore]

I honestly don't much care for it either, as the government is more than a bit fallible in its administration of justice. I think there are cases where guilt is sufficiently clear that it's not an outrage, and that it's expressly constitutionally permissible, but I really doubt it's worth it, as long as a real life sentence is available as an alternative.

This doesn't mean I like the way opponents have waged legal war against it, instead of fighting to persuade the public to agree with them.

[Sarcastr0]

I am against the death penalty, and there was a time I'd have disagreed with you.

But as my youth has given way to an era of less piss and vinegar, I would agree with you that the anti-death penalty zealots are doing themselves and our penal justice system no favors with their abuse of justice.

I have a more morally axiomatic position for being against the death penalty, but I also recognize that Americans have a pretty strong attachment to it.

[bernard11]

This doesn't mean I like the way opponents have waged legal war against it, instead of fighting to persuade the public to agree with them.

But the legal war is often the only way to stop the execution of an individual prisoner. Persuading the public to agree, and then getting that agreement enacted into law, is a very long-term project. Without the legal war the prisoner may well be executed before it ends.

Now, the war is not a great thing, but maybe it could be avoided by much stricter rules and procedures when the SP is in play. Fewer cases, more stringent rules for the prosecution, higher evidentiary standards for the prosecution, excellent legal representation for the defendant...

[DixieTune]

The ends don't justify the means. I can think of two particular abuses.

1) "It's unconstitutional to have a mandatory death sentence, juries must decide!"

"Juries are making their death penalty decisions in a biased manner. Unconstitutional!"

2) "It's okay to have 20 years of appeal delays, because we need to make sure we get the right person!"

"Since it takes 20 years to execute, it costs more. That is cruel and unusual to have someone on death row that long, and besides, it costs more than life without parole. Death penalty is unconstitutional!"

You don't see the bad faith in this?

[KenveeB]

Well, Death Row is usually acknowledged to be more restrictive than general population. Maybe the idea is to make sure that people who were considered so dangerous that they were given the death penalty shouldn't be just treated like other prisoners based on the commutation and should still be under some kind of more restrictive treatment.

[Mr. Bumble]

Especially since in prison murders are not unheard of.

[Frank Drackman]

Death rows one of the safest places in a prison

[David Nieporent]

Death row is more restrictive not because the residents are inherently more dangerous than thousands of other maximum security inmates, but because being on death row makes them more dangerous because they have nothing to lose. (You can't execute them twice.)

[Bob from Ohio]

"What exactly does Trump have in mind here. "

Now you know why he wants Greenland.

[apedad]

“A society should be judged not by how it treats its outstanding citizens but by how it treats its criminals.” ― Fyodor Dostoyevsky

[Michael Ejercito]

This is true.

Here is a quote by Paul Harding.

https://www.quora.com/How-can-a-gun-enthusiast-still-claim-their-right-to-bear-arms-is-more-important-than-public-safety/answer/Paul-Harding-14

All of your Constitutional Rights come at the cost of safety.

For example, you would be much safer if I could search houses, cars, and people whenever I wanted to, for any reason, or no reason at all. I'd catch more real bad guys. You know those stories about creeps who keep sex slaves locked in their basements for years? I'd find those victims and rescue them. That neighbor of yours who might have a meth lab that is going to send poisonous fumes into your child's bedroom window, or explode and burn down your house? I'd find out for sure whether a lab was there.

How about all those guys who are probably child molesters, and we've got some evidence, but it isn't enough to convict in front of a jury, especially with that defense attorney throwing doubt all over our evidence? Those guys are on the street right now, and a child you love may be their next victim.

Give up your rights under the 4th, 5th, and 6th amendments, and I'll make the world safer for you. No question about it.

The only problem is that if you give up all those rights, which are really just restrictions on the things I'm allowed to do to you, what's going to keep you safe from me?

Every right you have increases your danger from other people who share that right. Free speech? It allows monsters to spread hateful messages, possibly about a group to which you belong, just the same as it allows you to petition your government with legitimate grievances.

That free speech even allows you to argue in favor of discarding freedom and liberty as just too dangerous to trust in the hands of ordinary people. Now that, my friend, is what scares me - that people with opinions like that will spread them to weak-willed individuals who haven't really thought through the consequences. I won't argue for taking that right away, though, despite the dangers. That would be even more scary than you are.

Yes, some people in a free society are always going to abuse those freedoms. Criminals are going to hide behind the 4th amendment to conceal the evidence of their crimes. People who commit horrific acts are going to hire excellent defense attorneys who can convince a jury that doubt exists. And, yes, some people are going to use guns to commit murders.

Freedom is scary, but lack of freedom is scarier.

[Stupid Government Tricks]

IANAL -- how close is this to a bill of attainder?

* I realize it's an EO not a law; does that matter? It would seem pretty weak to ban bills of attainder as laws only, not as executive orders.

* It doesn't identify the 37 by name. Other laws have targeted specific businesses (TikTok) but not always by name, and those are businesses, not people.

[Sarcastr0]

I am a lawyer, but this is a deep cut and I learned it on here (so...grain of salt, it comes from the Internet)

Bills of attainder short-circuit the judicial process to declare someone criminally guilty of a crime.
This doesn't do that. So no BoA.

Still sucks though. It'll be popular I suspect - Americans love the death penalty, from government-suspicious conservatives to bleeding heart liberals, there's something in our makeup that's into it.

[Stupid Government Tricks]

Well, color me surprised. Thanks for an actual useful answer.

[apedad]

I wouldn't say that.

There are only 15 states that have active death penalty programs.

So there's lots of - and enduring - anti-DP support.
https://en.wikipedia.org/wiki/Capital_punishment_in_the_United_States

[DixieTune]

Not really. It's just that the states in which Democrats are in control are governed more left than the people who elect them.

Just like abortion in red states.

[LawTalkingGuy]

I’m not so sure about love. I think there’s a lot of ambivalence once you get past the abstract notions and into concrete application. There are some very conservative/Republican dominated states that either don’t have it or have it but don’t use it with not a lot of people clamoring to bring it back. Ohio hasn’t executed someone in 7 years and neither the legislature or governor is trying to revive it and there is actually a group of conservative legislators working on a repeal

[JoeFromtheBronx]

I disagree that the public as a whole "loves" the death penalty.

They will deem it warranted in a few cases, including the three people Biden left on death row. However, they regularly are uncomfortable with its usage, including when they are on juries in death penalty states.

Some people, including a few here, are closer to "loving" it or at least being Old Testament (without all the practical limits in place when they were applied) in their appeals to justice.

[DixieTune]

Only women are uncomfortable with its usage on juries.

[Sarcastr0]

You will find Americans who think the death penalty is not applied fairly, but polling on the concept of executing people is something that had deep support a decade and a half ago when I went to law school.

I'll see if I can dig up/update the polling later today.

[Mr. Bumble]

https://news.gallup.com/poll/1606/Death-Penalty.aspx

[JoeFromtheBronx]

They have general support for the death penalty, but a smaller number are truly passionate about it. The average person wants it on the table at least in theory. The average person also will be open to being concerned about it being applied unfairly, which in practice helps to make it harder to ultimately apply it.

Around 25 people were executed last year in the nation as a whole. The level of support present when Texas executed less than 10 people is suggestive.

Ohio is an interesting case. Many people are on death row. Haven't executed anyone for years because of the lack of proper execution drugs* and the Republican governor doesn't really care. The legislature could have passed a law to use another method. It doesn't seem to be in a big rush either.

* Ohio appears to be the type of situation that the executive order could help if Ohio is open to the idea.

[LawTalkingGuy]

I mentioned above that not only is the heavily Republican legislature not in a hurry to bring it back, there is actually a comparatively sizable contingent of Republican legislators who are pushing or at least open to abolition.

[JoeFromtheBronx]

Yes. It helps when the state nearly never executes anyone.

Various criminal justice writers also have discussed how Republicans have been open to reform generally on a local level, for those who want to look on the bright side of things.

[Sarcastr0]

They have general support for the death penalty, but a smaller number are truly passionate about it.

I would not disagree with this.

[DixieTune]

A lot of people who are okay with life without parole as an alternative change their mind if you tell them there's a good chance the prisoner will escape or that a Democrat Party governor will release them.

[Bob from Ohio]

"Republican governor doesn't really care"

The next governor, Yost, will.

[David Nieporent]

Your response is generally right, but for clarity, historically a BoA declares someone guilty and imposes a punishment; otherwise it's just a toothless resolution.

[JoeFromtheBronx]

Putting an official legislative scarlet "A" on someone is sometimes not going to be toothless in practice.

[LawTalkingGuy]

[LawTalkingGuy]

An originalist who cared about legal history would know that a lot of the development of criminal law in England was in response to widespread use of capital punishment. Judges made up the rules of evidence and started allowing defense lawyers because they were trying to avoid the harsh application of England’s “bloody code.”

The real history and tradition isn’t some cramped interpretation and construction of “cruel and unusual,” it’s judges making stuff up because they’re skeptical of capital punishment.

More than anything else, originalists are simply bad historians.

[Stupid Government Tricks]

More than anything else, lawyers are simply bad historians.

Your partisan slip is showing.

[LawTalkingGuy]

No argument from me on that. But I think the lawyers who know they are bad historians don't subscribe to originalism. Lawyers who don't recognize that they are bad at history tend to be originalists, so they need a special call-out.

[Swede425]

Guys, don't look at it as execution.
Look at it as late term abortion.
See, isn't that better?
These convicted prisoners are just a cluster of cells.
Raping, murderous cells.

[JoeFromtheBronx]

A couple of thoughts.

First, SCOTUS today dropped a per curiam overturning a lower court opinion, citing Payne v. Tennesse (a case of some relevance in overturning capital precedents) in holding the proper standard for "unduly prejudicial." Alito concurred. Thomas dissented with Gorsuch. It was a capital case.

https://www.supremecourt.gov/orders/courtorders/012125zor_f204.pdf

Second, finding someone to execute a person reminds me of an old New York case. NY didn't have the death penalty & the person was imprisoned for murder. He was also guilty of a capital crime elsewhere. Ultimately, the governor allowed him to be transferred to the other state, and he was eventually executed.

The net result was that he didn't have to serve the full term of his NY crime. As to victims, the elderly victim's brothers were divided on their support of the execution.

[A Japanese Student]

Wow, just wow.

This is the first time SCOTUS GVRed a petition from capital defendant since Justice Barrett was sworn in. (The last time they did it was Andrus v. Texas in June 2020.)

[John F. Carr]

In today's order, Thomas did not need 18 pages to make his point.

[David Nieporent]

Alito concurred. Thomas dissented with Gorsuch.

When one is more hostile to civil liberties than Sam Alito, one really needs to do some soul searching.

[LawTalkingGuy]

This is the third or fourth grudging Alito solo concurrence while Thomas/Scalia/Gorsuch dissented where his position is: wow this case is really fucked up and I wish I didn't have to side with the defendant/prisoner, but I do. Other notable examples include:

Maples v. Thomas (death row prisoner is abandoned by his lawyers during habeas. Court excuses procedural default)

Flowers v. Mississippi (DA makes it his life mission to make sure black people never serve on his juries in this particular case)

Taylor v. Rojas (keeping a prisoner in feces filled cell without water is not entitled to qualified immunity)(this is the most grudging Alito concurrence)

[A Japanese Student]

Don't forget Garza v. Idaho - Alito refused to join part of dissent that suggested Gideon was wrongly decided,

[Rossami]

Interesting post. It triggers a couple thoughts:

1. The 'dual jurisdiction' fiction should be destroyed with fire. If you're convicted (or exonerated) at the federal (or state) level, that it. No second bites at the apple for government. Yes, that will result in some injustices when prosecutors at one level fail to do their jobs. Tough. The injustices in the other direction outweigh those failures.

2. If states are capable of making something illegal, that should be out of scope for federal law-making generally. In other words, since it's already illegal in all 50 states to murder someone, the federal law against murder should be strictly limited to those few places (like military installations) where state law doesn't apply.

3. I wish Trump (and Rs generally) weren't pushing the death penalty. Not because I think these are nice people who deserve to live but because I don't trust the government to be sure that they get even these most egregious cases right.

[JoeFromtheBronx]

I don't want to rely on each state to protect the interests of the federal government if the president on down is murdered on its soil. Federal laws covering murder are too broad, but they have a place in at least narrow cases outside of federal enclaves.

"capable of making something illegal" is rather open-ended generally too. State and federal interests are going to overlap some. I think the double jeopardy concern will mostly be handled by a proper policy of prosecutorial discretion.

OTOH, constitutionally, I understand Gamble v. U.S..

[John F. Carr]

My solution is to limit the defendant to a single trial but allow both state and federal crimes to be tried together.

State charges man with murdering his wife. Man notifies US Attorney of charges and demands that any federal charges out of the same incident be joined in the same case. FBI determines that he used the Internet before the murder, making this a federal case. If the US Attorney does not bring charges then the man can not be charged in federal court unless the state charges end in mistrial. If the US Attorney chooses to prosecute then the state charges are removed to federal court to join the federal charges.

This does allow an unethical prosecutor to sabotage another prosecutor's case.

[Zarniwoop]

That strikes me as a decent proposal, worth considering.

[Stupid Government Tricks]

I'd also get rid of the idea that a criminal acquittal doesn't preclude a civil trial. As much as LA mangled OJ's trial, the civil trial for the exact same crimes was another bite at the apple.

[JoeFromtheBronx]

A civil trial is not for "crimes" though.

[John F. Carr]

Or take away punitive damages.

Suppose I cause a car accident. I am acquitted of reckless driving. Am I then immune from suit for the damage I caused?

[Noscitur a sociis]

The injustices in the other direction outweigh those failures.

Can you give an example of some of these injustices?

If states are capable of making something illegal, that should be out of scope for federal law-making generally. In other words, since it's already illegal in all 50 states to murder someone, the federal law against murder should be strictly limited to those few places (like military installations) where state law doesn't apply.

Why? I mean that both as a matter of policy and, if you’re saying you think the constitution instantiates this rule (I can’t tell), textual interpretation.

[Katall]

Here's an idea. Let's have one set of criminal laws for the entire US. No state law crimes, only federal crimes. No state or local police, only federal police. I think that many countries do it this way. Federalism is sometimes problematic.

[apedad]

OOOF!

I think you just gave a bunch of us a heart attack (left and right).

Our Federalist structure is one of the ways we keep our country from slipping off the left or right deep end, e.g., the state lawsuits against Biden and now Trump.

What ever pros there may be for one central govt, the cons VASTLY outweigh the pros and we (and the world) are better.

[Katall]

Well. . . there are two problems that need to be addressed. First of all, the red states are too red and the blue states are too blue. Conservatives in California and NY are suffering, as are liberals in Texas and Florida. There needs to be a middle ground, which may prove impossible on the state level. The other problem is how we elect representatives. It used to be that Democrats ran the gamut from conservative to liberal, as did Republicans. Now, not so much. And gerrymandering of congressional districts is just making it worse.

We need more political parties, so that the House can actually do its job, rather than just stand up to stick it to the other party. That would work in states, too.

[Frank Drackman]

Every "Blue" State voted less "Blue" in the last erection, killing off your next generation and letting invaders take citizens jobs has consequences. New Political parties form even if the names don't change.
In 2000 "W" won Florida by 538 Votes, in 2024 "47" won by 1.4 million. Those "Changing Demographics"!

Frank

[TextFirst]

Excellent. If anybody from the Trump administration somehow reads this, my suggestion is as follows: Put them all in double solitary/segloaf. Which sounds like a contradiction, but isn't, it's just packing two predators into a solitary confinement cage. Pack them two to a cage and give them only segloaf. One will eventually kill the other, then that's one problem solved and you charge the killer with a new capital offense notwithstanding the Biden Crime Regency commutations. The board would probably be cleared by 2027 or so if you put the trials on a rocket docket.

[David Nieporent]

Oh, look, the sadist comes up with a different way to encourage lynching.

[TextFirst]

? Who said anything about sadism or lynching? I'm just trying to get to justice. From here to there was made much more difficult by the Biden crime regency, but solutions are possible.

[David Nieporent]

Who said anything about sadism or lynching

You did.

Unless I'm confusing you with a different regular here whose previous response to the Biden death penalty commutations was that Trump should promise to pardon any prisoner who murders one of those people.

[TextFirst]

Oh yeah, that's another excellent idea I had, but I have so many excellent ideas I totally forgot about that.

PS to the above: If any of the 39 predators dies in a prison altercation, it was probably self defense by the other person, I'd immediately pardon just in case and move on. Also, if any of them commit suicide, things happen I wouldn't check too deeply into it. Also, if there's an administrative oversight and feeding them is overlooked, leading to their death, accidents happen in a big bureaucracy. And this is just off the top of my head, I'm sure all sorts of things could or couldn't happen to get appropriate results. Good luck, have fun.