The Resurgence of the Death Penalty
As recently as last year, the death penalty was in serious decline in the United States. Federal and state executions were at an all time low and public support for the practice had plummeted. While President Biden fell short of fulfilling his 2020 campaign promise to end the federal death penalty, he commuted the sentences of all but three men on federal death row as one of the last acts of his presidency.
But today–in a matter of mere months–the death penalty landscape has completely shifted. On the first day of his second presidential term, President Trump vowed to revive executions and build on the legacy of his first term, which ended with an unprecedented killing spree. Soon thereafter, Trump’s DOJ lifted the Biden-era moratorium on federal executions and laid out new criteria to encourage federal prosecutors to more aggressively seek the death penalty. And state leaders have been all too eager to follow his lead – indeed, some are far ahead of him. Not only are state executions surging, but many state lawmakers are now racing to expand death eligibility.
This increased obsession with capital punishment aligns with our country’s hard right turn toward authoritarianism, prioritizing punitive punishments and expanding executive and prosecutorial power.
In this edition, we explore the federal and state-level thirst for blood, as well as touch on positive stories in this field.
Trump’s Death Penalty Zeal Drives DOJ Policy
Trump’s 2024 promise to expand the death penalty, followed by his 2025 executive order to “restore” the practice by demanding that the Justice Department pursue the death penalty in all eligible cases, is proving to be more than rhetorical bluster. Shortly after her appointment, U.S. Attorney General Pam Bondi issued a series of memos instructing federal prosecutors to more zealously pursue the death penalty–and that change in policy has already transformed federal criminal practice:
- More Federal Death Penalty Cases. In the nine months since Bondi has taken office alone, she has authorized the death penalty against 19 people–far outpacing the one death penalty case authorized under the Biden administration.
- Less Due Process. Nine of those cases involve Bondi attempting to reverse course by authorizing the death penalty after the Biden administration had already declined to do so, but the majority of those reversals have been blocked for constitutional or procedural violations. One judge concluded that the government, in providing late notice of their new intent to seek death, “leapfrogged important constitutional and statutory rights,” while another warned that she would not “cast aside decades of law, professional standards, and norms to accommodate the government’s pursuit of its agenda.”
Justice Department Mobilizes State Partners to Increase Death Penalty Use
The DOJ directives have more far-reaching implications than expanding the federal death penalty. The agency has also vowed to work with state leaders to inspire a similar expansion on the state level:
- Working with state prosecutors to undermine Biden-era commutations. Not only is Trump’s DOJ working to banish the 37 people that Biden commuted off of federal death row to torturous “conditions consistent with the monstrosity of their crimes and the threats they pose,” but Bondi has also called for prosecutors to seek capital punishment for them under state law. Already, South Carolina and Louisiana have answered that call, and other states–citing Bondi’s memo–are currently reviewing the cases. Such a move, which would cost states millions of dollars per case; rely on old, if not non-existent, evidence; and risk retraumatizing survivors–is “extremely unusual.”
- Supplying states with drugs for lethal injections. In many states, executions have been on pause for years because of the challenge of securing legally permissible drugs for lethal injections. Bondi has promised to remove that barrier by helping states obtain the requisite drugs–a throwback to when Bondi was a state AG herself and maneuvered using a controversial drug to resume Florida executions. It remains unclear how she will fulfill that promise in this context.
States Rally to Increase Executions and Crimes Eligible for Death
Although the president has long supported expansion of the death penalty, states have independently been laboratories for increased capital punishment. Over the last few years, several states have expanded their execution protocols, experimenting with alternative methods like firing squads and nitrogen hypoxia, while shrouding their practices in increasing secrecy. Under Trump’s influence, states have become even bolder and more extreme in their pursuit of capital punishment:
- States are ramping up executions. So far this year, the US has seen a total of 41 executions – the highest number in over a decade–overwhelmingly driven by Southern states. Florida alone has killed a record-breaking 15 people so far this year, which is more than half the number of people executed by the entire country last year.
- Fifteen states are urging Bondi to fight Supreme Court precedent. Prosecutors in Florida are seeking the death penalty for a non-homicide sex crime, relying on a death penalty statute that was passed by the state in 2023 and which defies the Supreme Court’s 2008 prohibition of the death penalty for non-homicides. Florida is one of a handful of states that have either passed or proposed such statutes (most of them in 2025). Fifteen attorneys general who see Trump and Bondi as death penalty allies are now using the Florida test case to ask Bondi to overturn Supreme Court precedent. Such a move would undermine the central premise of the death penalty, which is supposed to be reserved for the worst of the worst crimes, and all but beg the question: when the president is actively calling for even drug-dealers to be executed, where would the line be drawn?
- Dozens of states are trying to expand the use of the death penalty through legislation. Legislators have introduced over one hundred bills across 34 states this year to modify death penalty practices, with nine bills enacted in five states. The enacted legislation ranges from expanding execution methods (including nitrogen gas and firing squads) to broadening death penalty eligibility for non-homicide crimes, mandating death sentences for undocumented individuals, and changing intellectual disability claim standards. Prior to Trump’s election, a handful of states attempted to expand the state death penalty but mostly failed. Even today, this year’s jump in state executions is being driven by a handful of state leaders, with Trump at the helm. Most states–including some red states–have been hesitant to jump on the bandwagon to revive the waning practice.
- SCOTUS is declining to intervene in executions that will clearly violate the 8th Amendment. As state executions increase, the current Supreme Court is becoming less likely to issue last-minute stays of executions. Consider the Court’s refusal to intervene in the case of Anthony Boyd, who was sentenced to die by nitrogen gas in Alabama. While Justice Sotomayor, in her impassioned dissent, predicted that Mr. Boyd could suffer up to seven minutes of “excruciating suffocation,” witnesses reported that he suffered over twice as long. Witnesses also reported that Mr. Boyd thrashed violently against his restraints and “began a series of deep, agonized breaths that lasted for more than 15 minutes.” It is hard to imagine that future nitrogen gas executions, though clearly violating the Eighth Amendment, will be stopped by this Supreme Court.
Positive Developments
Texas Blocks Roberson Execution
- Though the administration seems hell-bent on reversing the decades-long trend of reducing the use of the death penalty in America, an unlikely sliver of good news emerged on the death penalty front earlier this month in Texas, a state that has serious issues with the state’s capital punishment system.
- On October 9, the state’s Court of Criminal Appeals blocked Robert Roberson’s execution, sending his case back to the trial court to determine if he should be granted a new trial. Convicted in 2023 for his daughter’s death under the now-discredited shaken baby syndrome diagnosis, Roberson would have been the first person in United States history to be put to death in a shaken baby syndrome case.
- The Court of Criminal Appeals halted Roberson’s execution under Texas’ 2013 junk science law, which allows review of cases where the science behind a conviction has been debunked. If granted a new trial, Roberson could become the first person on death row to benefit from this law.
Ohio Potentially Abolishing Capital Punishment
- In other encouraging news, a bipartisan bill to abolish capital punishment in the state is gaining traction in the Ohio legislature, spurred forward by a letter urging passage of the bill authored and signed by 27 former lawmakers who were part of Ohio’s 114th General Assembly, the same body that enacted capital punishment in 1981. University of Akron Law School Professor Emerita Margery Koosed spearheaded the effort to gather these signatures. Death row exoneree Kwame Ajamu, who spent three years on Ohio’s death row (and 28 total years) in prison for a wrongful conviction, has been a key advocate in the movement.
- Thanks to the advocacy of Ajamu, Koosed, and others, the Buckeye state stands on the precipice of abolishing the death penalty nearly 45 years after its enactment.
And We Cannot Fail To Mention This Other Good News: “DC Sandwich Guy” Sean Dunn Found Not Guilty
- Sean Dunn, who famously threw a sandwich at Border Patrol Agent Greg Lairmore on August 10, was found not guilty of misdemeanor assault by a DC jury on Thursday. Acting United States Attorney Jeannine Pirro initially filed felony assault charges against Dunn, but a grand jury refused to indict.
- The jury reached its verdict after deliberating for seven hours and found Dunn not guilty despite dramatic testimony from Agent Lairmore about the incident in which Lairmore claimed the impact of the sandwich could be felt through his ballistic vest when the sandwich “exploded all over his uniform.”