Trump suggests state death penalty for those commuted by Biden. Is that possible?

Kate Linderman, The Bradenton Herald on Jan 22, 2025

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Among the slew of executive orders signed by President Donald Trump on his first day in office, he signed one order calling to reinstate the death penalty for federal death row inmates.

However, only three individuals remain on federal death row after former President Joe Biden commuted the death sentences of 37 people on Dec. 23 and instead sentenced them to life in prison without the possibility of parole.

Trump attacked the move in his executive order on the death penalty, signed on Jan. 20, and asked the attorney general to “further evaluate whether these offenders can be charged with State capital crimes and shall recommend appropriate action to state and local authorities.”

Legal experts weighed in on whether or not the 37 inmates formerly on death row could be sentenced to death again.

Federal death row

The inmates whose sentences were commuted by Biden were instead sentenced to serve life in prison without the possibility of parole.

Legal experts told McClatchy News that Trump cannot reverse this.

Article II of the Constitution gives the president the unlimited power to pardon people in federal cases. The Constitution, however, does not mention the ability to revoke a pardon.

Additionally, the 37 people whose sentences were commuted could not be prosecuted a second time for the same federal offense, which would violate the double jeopardy clause, Sheri Lynn Johnson, the assistant director of the Cornell Death Penalty, told McClatchy News in a phone interview.

State death row

In the executive order signed by Trump at the start of his second term, he calls on the attorney general to “further evaluate” whether or not the 37 death row inmates can be prosecuted at the state level.

Hofstra law professor Eric Freedman told McClatchy News that “Biden’s order does not of its own force bar a state capital prosecution.”

John Blume, an attorney who has argued eight cases in front of the Supreme Court and is director of the Cornell Death Penalty Project, said it is possible for some of the inmates to be sentenced to death for a state crime, but it is highly unlikely.

“In theory if they committed the crimes in a state that has the death penalty as a matter of state law, those states could seek the death penalty,” Blume told McClatchy News. “But, even in those jurisdictions many of the cases are old, the original state prosecutors are gone and I think it unlikely it will happen in any significant number of cases.”

Twenty-seven states have the death penalty, according to the Death Penalty Information Center. However, the governors of California, Pennsylvania, Oregon and Ohio have put a hold on executions.

Although the inmates commuted from death row couldn’t be prosecuted for their crimes at the federal level again, they could be separately charged for a crime in the state where they committed the offense, Lynn Johnson said.

However, legal experts say this isn’t likely to happen.

“It’s unlikely that state prosecutors would decide to seek state death sentences for any of the 37 people who have already been resentenced to life without the possibility of parole,” Robin Maher, executive director of the Death Penalty Information Center, told McClatchy News. “I can’t imagine why any state prosecutor would divert resources that address the current needs of their community to instead pursue death sentences for decades-old crimes against people who do not pose any safety concerns.”

Freedman, who focuses on the death penalty at Hofstra, says not every one of the 37 federal inmates would have a viable case at the state level.

Prosecution of a federal inmate at the state level would have to not violate a state’s double jeopardy laws and be within the statute of limitations, he said.

Though Trump is unable to put the commuted inmates back on death row, he did ask the attorney general in the order to “take all lawful and appropriate action to ensure that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.”

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