01-30-2025

Restoring the Death Penalty and Protecting Public Safety

Executive OrderView the Original .pdf
View the Original .pdf

The 1-Minute Brief

What: Executive Order 14164, issued on January 20, 2025, directs the Attorney General to resume and prioritize federal executions, reversing the moratorium established by the previous administration. It mandates seeking the death penalty for all eligible federal crimes, with a special focus on cases involving the murder of a law enforcement officer or capital crimes committed by undocumented immigrants.

Money: The death penalty is significantly more expensive than life imprisonment. Studies consistently show that capital cases cost taxpayers more due to longer trials, extensive appeals, and heightened security measures. A federal study found the average cost of a federal death penalty case is about $620,932, approximately eight times that of a non-capital murder case. Another analysis suggests each federal execution could cost nearly $1 million.

Your Impact: For the average American, the direct impact is minimal. The order primarily affects the small number of individuals on federal death row and the federal justice system. However, it signifies a major shift in federal justice policy that could influence state-level debates on capital punishment and reflects a change in national priorities regarding crime and punishment.

Status: Issued and effective as of January 20, 2025. This is a directive to the U.S. Department of Justice.

What's Actually in the Bill

This Executive Order establishes a federal policy to "faithfully implement" capital punishment laws and counter political or judicial efforts to obstruct executions. It directs the Attorney General to end the moratorium on federal executions and take specific steps to expand the use of the death penalty.

Core Provisions:

  • The Attorney General must pursue the death penalty for all federal crimes severe enough to warrant it.
  • The order mandates seeking the death penalty in all federal capital cases involving:
    • The murder of a law-enforcement officer.
    • A capital crime committed by an alien illegally present in this country.
  • The Attorney General is instructed to encourage state prosecutors to bring state capital charges in similar cases.
  • The Attorney General is required to review the confinement conditions of 37 federal inmates whose death sentences were previously commuted and to assess whether they can be charged with state capital crimes.
  • The order directs the Attorney General to help states that have capital punishment obtain the necessary drugs for lethal injections.
  • The Attorney General is tasked with taking action to seek the overruling of Supreme Court precedents that limit the application of the death penalty.

Stated Purpose (from the Sponsors):

The order asserts that capital punishment is a critical tool for deterrence and just punishment for the most heinous crimes.

  1. To restore justice and order in response to evil acts, reflecting what the order calls the view of the nation's Founders.
  2. To counteract politicians and judges who, according to the order, have subverted the law and defied their duty by obstructing lawfully imposed capital sentences.
  3. To ensure that the laws authorizing capital punishment are respected and faithfully implemented to protect American citizens.

Key Facts:

Affected Sectors: Justice, Law Enforcement, and State and Federal Correctional Systems.
Timeline: The directives in the order are to be implemented immediately, subject to the availability of appropriations.
Scope: The order has a national scope, affecting the federal justice system directly and encouraging specific actions within state justice systems.

The Backstory: How We Got Here

Timeline of Events:

The Modern Era of Capital Punishment (1970s - 1990s):

  • 1972 (Furman v. Georgia): The Supreme Court effectively paused capital punishment nationwide, ruling that its application was arbitrary and therefore "cruel and unusual," violating the Eighth Amendment. This voided 40 state death penalty statutes.
  • 1976 (Gregg v. Georgia): The Supreme Court reinstated the death penalty, upholding new state laws that provided more guidance for juries. This decision marked the beginning of the modern era of capital punishment in the U.S.
  • 1988: The federal death penalty was restored for a narrow set of crimes.
  • 1994 (Violent Crime Control and Law Enforcement Act): Signed by President Bill Clinton, this law greatly expanded the federal death penalty to cover about 60 offenses, including terrorism-related crimes and certain murders.

Hiatus, Resumption, and Moratorium (2000s - 2024):

  • 2003 - 2020: A de facto moratorium on federal executions was in place as legal challenges and issues with execution protocols were addressed. No federal executions occurred between March 2003 and July 2020.
  • July 2020 - January 2021: The Trump administration resumed federal executions, carrying out 13 executions in six months, more than any president in the last 120 years.
  • July 2021: Attorney General Merrick Garland, under the Biden administration, announced a moratorium on federal executions pending a review of Justice Department policies and procedures. The Biden administration, however, continued to seek the death penalty in a few high-profile cases.
  • December 23, 2024: As stated in the Executive Order, President Biden commuted the death sentences of 37 of the 40 inmates on federal death row.

Why Now? The Political Calculus:

  • This Executive Order represents a direct and forceful reversal of the preceding administration's policy, framed as a response to a perceived failure to enforce laws and protect public safety.
  • The timing on the first day of a new presidential term is symbolic, signaling a sharp pivot in justice policy and fulfilling a campaign stance.
  • The order leverages public anxiety about violent crime and aims to project an image of strength and adherence to "law and order" principles.

Your Real-World Impact

The Direct Answer: This order directly affects a specific group—federal death row inmates—and the justice system, but it has broader implications for the national conversation on crime and punishment.

What Could Change for You:

Potential Benefits:

  • For some families of victims of federal capital crimes, the resumption of executions may provide a sense of justice and closure.
  • Supporters argue that a firm stance on capital punishment may deter certain violent crimes, though this is a highly debated point.

Possible Disruptions or Costs:

Short-term (1-2 years):

  • Taxpayers will bear the increased costs associated with pursuing and carrying out federal death sentences, which are substantially higher than life imprisonment.
  • Renewed and intense public and legal debate over the morality, efficacy, and fairness of capital punishment is likely.

Long-term:

  • If the Attorney General succeeds in challenging Supreme Court precedents, the scope of the death penalty could be expanded at both the federal and state levels.
  • The policy could strain diplomatic relations with allied nations that have abolished capital punishment.

Who's Most Affected:

Primary Groups: The approximately 40 inmates on federal death row, federal prosecutors, and defense attorneys.
Secondary Groups: Families of victims, families of inmates, state justice systems encouraged to adopt similar policies, and manufacturers of lethal injection drugs.
Regional Impact: While a federal policy, its influence may be stronger in states that already have and actively use the death penalty.

Bottom Line: While most citizens will not feel a direct, daily impact, this order signals a significant shift in federal justice policy toward a more punitive approach, restarting federal executions and reigniting a national debate over capital punishment.

Where the Parties Stand

Republican Position: "Justice for the Heinous"

Core Stance: The Republican Party platform strongly supports capital punishment for heinous crimes and views its constitutionality as "firmly settled."

Their Arguments:

  • ✓ The death penalty is a just punishment and an effective deterrent for the most severe crimes.
  • ✓ It is explicitly mentioned in the Fifth Amendment and is therefore constitutional.
  • ✗ They oppose what they see as judicial "erosion" of the right of the people to enact capital punishment.

Legislative Strategy: To support and expand the use of the death penalty at both federal and state levels, appoint judges who support it, and streamline the appeals process to prevent delays.

Democratic Position: "Cruel, Ineffective, and Irreversible"

Core Stance: The Democratic Party has recently moved away from its call to abolish the death penalty, omitting it from its 2024 platform for the first time since 2012. However, many in the party still view it as a flawed and immoral policy.

Their Arguments:

  • ✗ The death penalty is applied in an arbitrary and unjust manner, disproportionately affecting people of color.
  • ✗ It is a waste of taxpayer funds and does not deter violent crime more effectively than life imprisonment.
  • ⚠️ There is a significant risk of executing innocent people, a danger highlighted by numerous exonerations.
  • ✓ There is support for ensuring due process, including effective counsel and the use of DNA testing.

Legislative Strategy: Historically, the strategy was to abolish the federal death penalty and incentivize states to do the same. The current strategy appears more cautious, focusing on the fairness of its application rather than outright abolition, reflecting a shift in the party's official platform.

Constitutional Check

The Verdict: ✓ Constitutional / ⚠️ Questionable

Basis of Authority:

The order is based on the President's authority as head of the Executive Branch under Article II of the Constitution.

Article II, Section 3: "[The President] shall take Care that the Laws be faithfully executed..."

Constitutional Implications:

[Executive Power]: The President has the authority to direct the Department of Justice (DOJ), as it falls under the executive branch. Historically, while presidents set broad policy, the DOJ has maintained a degree of independence in specific prosecutorial decisions. This order's highly specific directives test the traditional boundaries of that independence.
[Precedent]: The Supreme Court has affirmed the constitutionality of the death penalty itself (Gregg v. Georgia). However, it has also placed limits on its use, such as prohibiting it for crimes committed by juveniles (Roper v. Simmons) or for non-homicide crimes against individuals (Kennedy v. Louisiana). The order's directive to actively seek the overruling of such precedents is a direct challenge to the judiciary's role.
[Federalism]: The order's instruction for the Attorney General to "encourage" state prosecutors to take specific actions does not violate federalism, as it is not a direct command. However, its provision to help states acquire lethal injection drugs could involve the federal government more deeply in state-level executions.

Potential Legal Challenges:

  • Separation of Powers: The directive for the Attorney General to seek the overruling of specific Supreme Court decisions could be challenged as an executive intrusion into the judicial domain.
  • Eighth Amendment: Legal challenges from defense attorneys and civil liberties groups are almost certain, arguing that the resumed federal executions, specific protocols, or the expansion of death penalty criteria constitute "cruel and unusual punishment."
  • Due Process: The mandate to seek the death penalty in specific categories of cases could be challenged as infringing on prosecutorial discretion and the right to an individualized sentencing determination.

Your Action Options

TO SUPPORT THIS BILL

5-Minute Actions:

  • Call Your Rep/Senators: Capitol Switchboard: (202) 224-3121. "I'm a constituent from [Your City/Town] and I support the President's executive order to restore the federal death penalty and urge [Rep./Sen. Name] to support these efforts to ensure justice for victims."

30-Minute Deep Dive:

  • Write a Detailed Email: Contact the House and Senate Judiciary Committees to express your support for the policy.
  • Join an Organization: While fewer prominent national groups focus solely on supporting the death penalty, some law enforcement and victims' rights organizations advocate for its use.

TO OPPOSE THIS BILL

5-Minute Actions:

  • Call Your Rep/Senators: Capitol Switchboard: (202) 224-3121. "I'm a constituent from [Your City/Town] and I urge [Rep./Sen. Name] to oppose Executive Order 14164 and work to abolish the federal death penalty."

30-Minute Deep Dive:

  • Write a Letter to the Editor: Submit a letter to your local newspaper outlining your opposition, citing moral, financial, or fairness-based arguments.
  • Join an Organization: Many well-established organizations advocate against capital punishment.
    • American Civil Liberties Union (ACLU)
    • Death Penalty Information Center
    • Amnesty International
    • The Death Penalty Project
    • Death Penalty Action
    • Witness to Innocence