Written by Julie Gobble

On January 20, 2025, President Donald Trump issued an executive order that drastically reshaped the nation’s approach to capital punishment.¹Exec. Order No. 14164, 90 Fed. Reg. 8463, 8463–65 (Jan. 30, 2025). The directive reverses Biden-era policies, expanding the federal government’s role in executions and mandating that it pursue capital punishment in all cases deemed severe enough to warrant it.²See New Poll Finds Bipartisan Opposition to Use of the Death Penalty as It is Actually Administered, Death Penalty Info. Ctr. (Sep. 25, 2024); Hayley Bedard, NEW POLL: Overall Support for the Death Penalty Remains at Five-Decade Low as Opposition to the Death Penalty Grows Among Younger Generations, Death Penalty Info. Ctr. (Nov. 18, 2024),https://deathpenaltyinfo.org/new-poll-overall-support-for-the-death-penalty-remains-at-five-decade-low-as-opposition-to-the-death-penalty-grows-among-younger-generations; Sam Levin, ‘He Didn’t Do It’: Days before Execution in South Carolina, Key Witness Says He Lied, The Guardian (Sep. 19, 2024), https://www.theguardian.com/us-news/2024/sep/19/south-carolina-execution-freddie-owens; Ed Pilkington, Spate of High-Profile US Death Penalty Cases Fuels Public Outrage and Anger, The Guardian (Dec. 19 2024), https://www.theguardian.com/world/2024/dec/19/death-penalty-executions-innocence-public-outrage; Ed Pilkington, John Grisham on Death Row Prisoner: Texas is about to Execute Innocent Man, The Guardian (Sep. 17, 2024), https://www.theguardian.com/us-news/2024/sep/17/robert-roberson-texas-death-penalty-john-grisham-innocent. It highlights explicitly crimes involving the murder of law enforcement officers and capital offenses committed by undocumented individuals “regardless of other factors.”³See id.

Beyond reinstating federal executions, the Order assigns Attorney General Pam Bondi a leading role in ensuring the death penalty is aggressively implemented⁴See Alanna D. Richer & Stephen Grovers, Senate Confirms Pam Bondi as US Attorney General, Putting Trump Ally at Justice Department’s Helm, AP News (Feb. 4, 2025 7:53 PM), https://apnews.com/article/pam-bondi-justice-department-trump-confirmation-7a37ef0b42964f9476776559379f48bd. Trump tasked Bondi with counteracting congressional and judicial actors who “subvert,” “obstruct,” or “prevent” executions and encourages state attorneys general and district attorneys to do the same.⁵Exec. Order No. 14164, 90 Fed. Reg. at 8463. She must also investigate whether the thirty-seven individuals whose federal death sentences Biden commuted can face state-level capital charges.⁶See id. at 8464. Additionally, she must approve pending state execution certifications,⁷Certification and Judicial Review, 28 U.S.C. § 2265(b). ensure a steady supply of lethal injection drugs,⁸Exec. Order No. 14164, 90 Fed. Reg. at 8464. and evaluate death row conditions to determine if they are consistent with the “monstrosity” of inmates’ crimes.⁹See id. These directives undermine the U.S.’s human rights commitments, reinforcing practices that disproportionately target marginalized groups and fail to deter crime.

However, the Order is not without precedent. Trump’s first term saw an unparalleled thirteen federal executions—more than under the previous ten presidents combined.¹⁰See Trump Promises to Militarize Police, Reincarcerate Thousands, and Expand Death Penalty, ACLU, (Jul. 19, 2024), https://www.aclu.org/news/criminal-law-reform/trump-promises-to-militarize-police-reincarcerate-thousands-and-expand-death-penalty. His new Order builds on that record while invoking historical precedent, claiming that capital punishment has been integral to American law since prior tothe country’s founding.¹¹Exec. Order No. 14164, 90 Fed. Reg. at 8463. However, critics argue that longevity is not a justification. Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project, highlights that “Capital punishment was a major part of statutes for people helping enslaved individuals escape slavery. The fact that the practice is longstanding is not the strongest defense.”¹²See Sam Levin, ‘So Much of this Seems Vengeful’: Alarm as Trump Recommits to Death Penalty, The Guardian(Jan. 22, 2025), https://www.theguardian.com/us-news/2025/jan/22/trump-death-penalty.

The renewed embrace of the death penalty also isolates the U.S. internationally.¹³See The Death Penalty in 2024: International, Death Penalty Info. Ctr.,https://deathpenaltyinfo.org/research/analysis/reports/year-end-reports/the-death-penalty-in-2024/international (last visited Jan. 25, 2025). Less than a month before Trump signed the Order, two-thirds of United Nations (U.N.) member states voted in favor of a resolution calling for a global moratorium on executions, citing their discriminatory application and the irreversible nature of wrongful convictions.¹⁴See Global: UN Member States Move Closer to Rejecting Death Penalty as Lawful Punishment under International Law, Amnesty Int’l (Dec. 18, 2024), https://www.amnesty.org/en/latest/news/2024/12/global-un-member-states-move-closer-to-rejecting-death-penalty-as-lawful-punishment-under-international-law. The resolution reinforced that the death penalty disproportionately impacts marginalized communities, including ethnic minorities and economically disadvantaged individuals who often lack adequate legal representation.¹⁵See id. at 114. It also emphasized that any miscarriage or failure of justice in implementing the death penalty is “irreversible and irreparable,” noting that the risk of wrongful executions persists even in the most well-regarded judicial systems.¹⁶See id. at 115. Furthermore, it underscored the failure of capital punishment to deter crime—a longstanding argument among abolitionists.¹⁷See Michael L. Radelet & Ronald L. Akers, Deterrence and the Death Penalty: The Views of the Experts, 87 J. Crim. L. & Criminology 1–16 (1996). While the administration portrays its renewed use of the death penalty as a measure of justice and public safety, the landmark U.N. vote highlights the opposite: that the practice is ineffective and increasingly out of step with modern democratic governance.¹⁸Rep. of the Third Comm., supra note 22, at 114.

The international consensus against the death penalty is deeply rooted in human rights law, particularly the Universal Declaration of Human Rights (UDHR), adopted by the U.N. in 1948.¹⁹Universal Declaration of Human Rights, Dec. 8, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948). The UDHR establishes the right to life and freedom from torture and cruel, inhuman, or degrading treatment, forming the basis for global efforts to abolish the death penalty.²⁰See id. arts. 3, 5. Over time, the international community has strengthened these protections through several treaties.

The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) represented a crucial moment, committing ratifying states to abolish the death penalty.²¹Second Optional Protocol to the International Covenant on Civil and Political Rights, Jul. 11, 1991, G.A. Res. 44/128, annex, UN Doc. A/44/49 (1989) [hereinafter Second Optional Protocol to ICCPR]. Regionally, Protocols No. 6 and 13 to the European Convention on Human Rights have been pivotal in making Europe the first region in the world to become largely free of the death-penalty.²²Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, as Amended by Protocol 11, art. 1, 114 E.T.S. 1 (1983); Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in All circumstances, art. 1, 187 E.T.S. 1 (2002). At the same time, the Protocol to the American Convention on Human Rights marked a decisive move in promoting abolition across the Americas.²³Protocol to the American Convention on Human Rights to Abolish the Death Penalty, art. 1 (June 8, 1990).

Even within the legal frameworks that allow for the death penalty, restrictions have grown tighter. The ICCPR addresses the legal foundation for judicial executions under international law.²⁴International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 6, 999 U.N.T.S. 171 [hereinafter ICCPR]. Article 6 states that States should apply capital punishment only to the “most serious crimes.”²⁵ICCPR, supra note 24, art. 6. In 2006, the U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions clarified that the ICCPR standard refers exclusively to offenses involving intentional killings.²⁶See Philip Alston (Special Rapporteur on extrajudicial, summary or arbitrary executions), Rep. on. Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled “Human Rights Council,” ¶¶ 39–53, 65, UN Doc. A/HRC/4/20 (Jan. 29, 2007).

The Rapporteur’s narrow interpretation aligns with the global trend of restricting capital punishment. Over seventy percent of the world’s nations have abolished capital punishment in law or practice, including U.S. allies such as Canada, France, Germany, the United Kingdom, and Ukraine.²⁷See id. Among democratic nations, the U.S. stands alone in continuing to administer the death penalty.²⁸See How Many Countries Still Have the Death Penalty, and How Many People Are Executed?, BBC (Jan. 25, 2024), https://www.bbc.com/news/world-45835584; The Death Penalty, Amnesty Int’l, https://www.amnesty.org/en/what-we-do/death-penalty/ (last visited Jan. 26, 2025). In contrast, authoritarian regimes such as Iran, Saudi Arabia, and North Korea continue to enforce the death penalty aggressively,²⁹See id. with the U.S. following close behind; the U.S. ranks fifth in the number of executions each year, trailing China, Iran, Saudi Arabia, and Egypt.³⁰See How Many Countries Still Have the Death Penalty, and How Many People Are Executed?, BBC (Jan. 25, 2024), https://www.bbc.com/news/world-45835584; The Death Penalty, Amnesty Int’l, https://www.amnesty.org/en/what-we-do/death-penalty/ (last visited Jan. 26, 2025).

Such alignment with repressive governments underscores the U.S.’s departure from the practices of its democratic peers. Indeed, Trump campaigned heavily on expanding capital punishment eligibility to include child rapists and those convicted of drug and human trafficking.³¹See Erik Ortiz, Trump Wants to Expand the Federal Death Penalty, Setting up Legal Challenges in Second Term, NBC News (Nov. 9, 2024), https://www.nbcnews.com/politics/2024-election/trump-wants-expand-federal-death-penalty-setting-legal-challenges-seco-rcna178979. Even if the current executive Order does not explicitly include such expansions, its overall intent is clear: to entrench and normalize the use of the death penalty in the U.S.³²Exec. Order No. 14164, 90 Fed. Reg. at 8463. By doing so, the administration is not only reinforcing a punitive and deeply flawed criminal justice approach but also signaling a broader rejection of international human rights norms.

If the U.S. seeks to reaffirm its commitment to human rights and democratic values, it must reconsider its stance on capital punishment. One immediate step would be to ratify the ICCPR’s Second Optional Protocol, joining its allies in rejecting the death penalty.³³Second Optional Protocol to ICCPR, supra note 21. Instead of committing to morally and legally contentious practices, the U.S. should heed the U.N.’s call for abolition, recognizing that true justice lies in humane and irrevocable alternatives,