What does Donald Trump's return mean for the death penalty?

The 2024 presidential election leaves people opposed to the death penalty in a quandary. The American people have returned to the White House someone who wants to expand the uses of capital punishment.

With Trump returning to the White House, death penalty abolitionists will have to play defense at the federal level. Even if it might not seem to be a propitious time, abolitionists need to be bold, and plot a long-term strategy for ending the death penalty in the U.S.

Here is one idea: Abolitionists should think about how to use federal power to end the death penalty in every state where it is now legal. This would be a marked departure from the more common strategy of ending capital punishment incrementally in one state at a time.

It would also go beyond the efforts of abolitionists in Congress such as Sen. Richard Durbin (D-Ill.) and Rep. Ayanna Pressley (D-Mass.), who have repeatedly introduced the Federal Death Penalty Prohibition Act to “prohibit the use of the death penalty at the federal level and require re-sentencing of those currently on death row.”

The federal government’s power to abolish the death penalty everywhere rests, as Hofstra Law Professor Eric Freedman recently suggested in a remarkable essay, on Congress’s authority under Section 5 of the 14th Amendment to enact legislation enforcing the provisions of that amendment. Recall that, among other things, the 14th Amendment includes guarantees of due process and equal protection of the law.

In America’s death penalty system, violations of due process and equal protection occur almost daily. Examples include the well-publicized cases of people like Marcellus Williams, Richard Glossip and Cameron Todd Willingham.

As Freedman puts it, there already is an “amply documented history of violations of rights” in death cases. Prominent examples include “(1) denial of effective assistance of counsel to capital defendants, (2) racial discrimination in the selection of capital jurors and charging and sentencing decisions, (3) failure to structure death penalty systems so as to reliably result in the execution of the most culpable of potentially eligible defendants, (4) execution of the mentally impaired (5) execution of prisoners contrary to the constitution due to the fortuities of litigation timing, (6) execution of the innocent, and (7) use of torturous methods of execution.”

Since its ratification in 1868, Congress has used Section 5 in various ways. FindLaw’s Melissa McCall explains: “Section 5's role in securing civil rights for all American citizens is undeniable. It is the foundation for almost every major civil rights legislation.”

One of the first cases to test Congress's power was Ex Parte Virginia. That case, says McCall, arose from the post-Civil War refusal of Virginia judges to allow African Americans to serve on juries. The state of Virginia, McCall notes “believed that the federal government lacked the authority to tell them what to do.

But the Supreme Court disagreed and held that their actions violated the Civil Rights Act of 1975, which prohibited racial discrimination against African Americans “in several aspects of public life.” It also held that Section 5 of the 14th Amendment “gave Congress the power to regulate state actions regarding juries.”

A more recent example of the use of the Congress’s authority under Section 5 occurred when Congress passed the 1964 Voting Rights Act. That act forbade the use of literacy tests in determining whether someone was qualified to vote. At that time, McCall observes, “New York State had election laws that banned anyone who didn't read or write English from voting.”

The state sued, claiming that Section 5 didn’t apply. The Supreme Court held that the Voting Rights Act was an appropriate exercise of Congress's power under Section 5 of the 14th Amendment.

For a long time, death penalty abolitionists have ignored Section 5 and the possibility of congressional legislation. When 50 years ago they considered how to secure a nationwide ban on the death penalty, they focused their efforts on the courts.

In 1972 that strategy paid off when the Supreme Court struck down the death penalty because of the arbitrary and discriminatory way it was being applied. Four years later, the court changed course after states enacted new laws mandating changes in the death penalty’s implementation.

Since then, the court has shown no inclination to declare the death penalty unconstitutional. And the current conservative-dominated court is now eager to trim back constitutional protections to keep the machinery of death running.

Not surprisingly, death penalty opponents have changed course. They have pursued a two-pronged strategy. One prong has focused on getting Congress to abolish the federal death penalty or to get the president to do what he can to stop executions. The other focuses on battles at the state level to convince state officials either to stop executions or to abolish the death penalty entirely.

While the first prong has had mixed success under the Biden administration, abolitionists have had considerable success at the state level. More states have abolished capital punishment since 2007 than in any comparable period in American history.

But they have run into fierce opposition in places like Texas, Oklahoma and Alabama.

As the Death Penalty Information Center observes, America’s death penalty is now “defined by two competing forces: the continuing long-term erosion of capital punishment across most of the country, and extreme conduct by a dwindling number of outlier jurisdictions to continue to pursue death sentences and executions.” 

Today, capital punishment is concentrated “in a dwindling number of outlier jurisdictions with an historical legacy of slavery, lynching, and Jim Crow and a modern history of abusive law enforcement,” the center notes. “(In) the few jurisdictions that seek to pursue it … the cases resulting in death sentences and executions increasingly reflect arbitrariness, discrimination, and systemic failures that represent the worst of the worst judicial process.”

That is where Section 5 of the 14th Amendment and Freedman’s ingenious proposal to use it comes in.

Freedman may be too optimistic when he says that this approach may achieve what he calls “surprising success.” But his idea opens an important new avenue for abolitionists to pursue as they seek to end America's death penalty.

Even as we again confront the second Trump Administration’s bloodthirsty embrace of capital punishment, Freedman has laid out a strategy that might one day end capital punishment — even in places like Alabama, Oklahoma and Texas.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His views do not necessarily reflect those of Amherst College.