The Federal Death Penalty, Trumpism, and Civil Rights Enforcement

The Federal Death Penalty, Trumpism, and Civil Rights Enforcement

67 Am. U. L. Rev. 1611

* Associate Dean for Academic Affairs & Associate Professor of Law, University of Detroit Mercy.  I am grateful for the opportunity to participate in this symposium on criminal justice, and thank the organizers, including Chiara Vitiello, for the invitation and their hospitality.  I am also grateful to Erin Rodenhouse for her research assistance and helpful comments.

This Essay focuses on the role of the federal death penalty in the national debate over capital punishment, and in particular, the use of the federal death penalty in the Trump Administration.  The election of Donald Trump to the presidency will likely have the effect of not simply preserving, but of potentially strengthening, the federal government’s use of capital punishment for certain serious federal offenses.  Two primary factors bolster this assertion.  First, the President has employed, and will likely continue to employ, strong rhetoric that advocates capital punishment in appropriate situations. And second, the President has appointed, and will likely continue to appoint, high-level prosecutors who will be committed to federal death penalty enforcement and judges, like Neil Gorsuch, who will be unlikely to support abolition through adjudication.  This Essay cautions, however, that some forms of presidential rhetoric could also have the effect of undermining or weakening the legitimacy of the federal system.  This Essay therefore urges the President to take a more cautious rhetorical approach, one that supports the death penalty generally but that also defers in specific cases to the informed judgments of professional prosecutors in the Department of Justice, thus enhancing public confidence in the fairness and objectivity of federal death penalty review. This Essay then argues that Congress, along with federal prosecutors, can also strengthen the federal death penalty system by giving new attention to civil rights violations as a basis for pursuing capital punishment. By amplifying the connection in existing law between the federal death penalty and civil rights, Congress and the Justice Department can help to demonstrate that the death penalty can be consistent with—and an important part of—a robust regime of civil rights enforcement.