Trump’s Most Shockingly Ambitious Executive Order

Sign up for the Slatest to get the most insightful analysis, criticism, and advice out there, delivered to your inbox daily. In his executive order, Trump described the inmates to whom Biden showed mercy as “vile and sadistic rapists, child molesters, and murderers on Federal death row: remorseless criminals who brutalized young children, strangled and drowned their victims, and hunted strangers for sport.” He previously criticized the commutations, calling them a “mockery of justice” that “insult the victims of these horrible crimes.” Related From Slate Trump’s First Flurry of Executive Orders Plagued by a Surprising Problem That is why it is unsurprising that two parts of Monday’s executive order target Biden’s clemency. First, the president’s order “directs the attorney general to evaluate whether the 37 people whose federal death sentences were commuted under Biden can be charged with state capital crimes.” This is possible, professor Josh Blackman writes, because “there is no statute of limitation for murder, and states remain free to punish defendants who had their federal sentences commuted.” But, Blackman observes, “Even in the states that still allow death sentences, it would be difficult to re-prosecute decades-old cases.” However, he points to the case of John Hanson, who is serving a life sentence in federal prison in Louisiana, as one in which Trump could take advantage of a state’s death penalty system. Hanson “was also sentenced to death in Oklahoma for two murders … but the Federal Bureau of Prisons refused to transfer him to the custody of the state.” The Trump Justice Department could now turn him over to Oklahoma authorities so his “execution can be carried out.” The president’s second response to Biden’s death penalty clemencies was to direct the attorney general to “evaluate the places of imprisonment and conditions of confinement for each of the 37 murderers whose Federal death sentences were commuted by President Biden.” He wants “to ensure that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.” Inmates removed from death row generally remain incarcerated in very restrictive conditions. As he put it, “The Attorney General shall encourage State attorneys general and district attorneys to bring State capital charges for all capital crimes.” Recognizing that drug shortages have prevented many death penalty states from carrying out executions, Monday’s executive order seeks to enlist the federal government in helping “to ensure that each state that allows capital punishment has a sufficient supply of drugs needed to carry out lethal injection.” It is, of course, not clear that the federal government will have any greater success than the states in securing such drugs, But the president can again direct the Food and Drug Administration to stop regulating death penalty drugs as he did during his first term.