Presidential Authority & the Federal Death Penalty: A Response to Professor J. Richard Broughton’s The Federal Death Penalty, Trumpism, and Civil Rights Enforcement
68 Am. U. L. Rev. F. 39, 2018
16 Pages Posted: 12 Aug 2019
Date Written: November 8, 2018
Professor J. Richard Broughton’s 2018 American University Law Review Essay titled The Federal Death Penalty, Trumpism, and Civil Rights Enforcement, offers an insightful contribution to the scholarly discourse related to the federal death penalty. In this invited Response to Professor Broughton’s Essay, the primary focus for divergence between the two pieces emerges from differing conceptualizations of the role of presidential authority and Department of Justice (DOJ) independence in federal capital litigation. This Response suggests a more robust potential for presidential engagement with deciding to pursue the death penalty and accordingly less independence for the DOJ than is, seemingly, suggested by Professor Broughton’s Essay.
While death penalty law covers complex terrain and decision-making as to federal death penalty prosecutions rests on internal bureaucratic procedures within the DOJ, ultimately, this Response suggests that a President’s authority is greater and engagement in decision-making is more appropriate than the portrait rendered by Professor Broughton would seem to envision. The decision to seek the execution of a human being, homicide by governmental action, is a monumental one, and one that the President of the United States is ultimately responsible for through the actions of his or her delegates in seeking the death penalty. Given that, this Response suggests that responsible Presidents can and should play a more engaged role in shaping decision-making on whether to pursue the federal death penalty but should do so through exercise of appropriate means.
Keywords: federal death penalty
JEL Classification: K14
Suggested Citation: Suggested Citation