The Trump Executions

Abstract

In the final six months of Donald Trump’s presidency, the federal government executed thirteen people. For perspective, there were three federal executions in the prior fifty-seven years—and none since 2003. Among other things, this Article is a historical record of the “Trump Executions,” constructed largely from primary-source material. The Article also offers a framework for organizing the unique legal issues that the Trump Executions presented, and discusses their crucial implications.

I proceed in three parts. Part I places the Trump Executions in historical context. For politicians and bureaucrats who embrace the death penalty, the Trump Executions were a once-in-a-generation opportunity. Part I explains the Bureau of Prisons’ lengthy struggle to identify and implement a lawful execution protocol—which was largely responsible for the growth of federal death row, and the pent-up desire to clear it. Part I also presents a four-year timeline of the Trump Executions, which grounds the balance of the Article.

Part II organizes, into four useful categories, the legal disputes that were largely unique to the Trump Executions. These were over: (1) the pentobarbital-only lethal injection sequence, (2) a federal “parity” provision requiring alignment between federal and state death penalty implementation; (3) a statutory savings clause allowing prisoners to bypass otherwise-applicable restrictions on post-conviction relief; and (4) the effects of the COVID-19 pandemic. (Issues belonging to a residual category receive abbreviated treatment.) Surprisingly, when the litigation was complete, the judiciary had clarified little about federal death penalty law.

Part III considers the implications of the Trump Executions. The Supreme Court, which undertook unprecedented intervention by way of its “shadow docket,” plainly worked to ensure that the Joe Biden administration had no say in sentence implementation. The significance of the presidential transition was quite real, as the Trump Executions went forward on the backs of political and bureaucratic outliers that coincide only infrequently. Ironically, the Trump Executions will most durably affect other institutional practices that depend on emergency adjudication—including pandemic responses, elections, and capital punishment in the states.

Keywords: executions, criminal law, punishment, death penalty, criminal procedure, capital punishment, sentencing