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Closing Argument

How the Death Penalty Is Returning to Presidential Politics

Trump and DeSantis want to make it easier to execute people, and Biden could face a rush of clemency requests from federal death row.

A White man in a black jacket leans his head forward as another White man, who is wearing a red cap and suit, talks to him.
Former President Donald Trump with Florida Gov. Ron DeSantis at Canal Point, Fla., in March 2019.

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A few months ago, unnamed sources told Rolling Stone that former President Donald Trump was musing about ordering group executions, firing squads — and even guillotines — if elected president again in 2024. His spokesman denied some of the claims, but Trump did oversee more executions than any president in modern history, and he’s riffing at rallies about executing people for selling drugs, something the U.S. has never done.

It is easy enough to dismiss these stories. Presidents appoint attorneys general, who oversee key decisions around federal capital punishment. Neither can unilaterally pick execution methods. But the news reports point to a new political dynamic: After a generation of decline, the death penalty seems poised to return to presidential campaign battles, and this could lead to more executions — and not just because of Trump.

National news outlets have reported that Florida Gov. Ron DeSantis is building his tough-on-crime resume for an expected presidential run. He’s calling for longer prison sentences for drug traffickers, and supporting legislative bills to send people to prison for obtaining and providing abortions and for sheltering, hiring or driving undocumented immigrants. Vox reported that DeSantis’ punitive approach has not made Florida safer, noting that many cities in the state have higher homicide rates than areas run by Democrats.

But the death penalty has traditionally been a political symbol of punitiveness, making other sentences appear lenient by comparison. Florida outlets have looked more closely at DeSantis’ efforts to turn the state into a national epicenter of the practice, potentially taking the title of the “capital of capital punishment” from states that have carried out far more executions in recent years, like Texas and Oklahoma.

DeSantis has overseen only four executions since taking office in 2019, with another scheduled for May. His predecessor oversaw 28. But the governor began focusing publicly on the subject last fall, after a jury rejected the death penalty for Nikolas Cruz, who killed 17 people at Marjory Stoneman Douglas High School in Parkland.

Many, though not all, of the victims’ families were outraged. Some of the jurors complained too, revealing that nine of them had wanted to send Cruz to death row. They could not because death sentences must be unanimous, and three jurors were in opposition.

Florida was among the last states to demand such unanimity, in 2017. But on Thursday, DeSantis signed a new law allowing just eight out of 12 jurors to approve a death sentence — the lowest number of jurors in the U.S. Most death penalty states demand unanimity; Alabama allows 10 jurors to impose the sentence, while Indiana and Missouri let judges decide when jurors are divided, according to the New York Times.

Tampa Bay Times reporter Dan Sullivan interviewed a handful of former jurors who served in death penalty cases, and who said that requiring unanimity tends to prompt deeper discussions in the jury room. Scholars have found it also may ensure that juries don’t send innocent people to their deaths. Non-unanimous juries have historically been associated with White supremacy, as a means to sideline Black jurors.

The Florida change, set to go into effect immediately, may face court challenges. So may a second bill DeSantis is expected to sign, which would allow the death penalty for the “sexual battery” of a child , which in Florida law means anyone 12 or younger. This bill comes as the DeSantis administration tries to link classroom teaching about sex and gender identity to “grooming” for the purpose of sexual assault.

The sexual battery bill is explicitly courting the U.S. Supreme Court to reverse its own precedent, set in 2008, when five justices voted to bar the death penalty for crimes that don’t involve homicide. All those justices have since left the court, which has shifted right and shown a willingness to overturn precedent.

It may take a long time for a test case, involving a death sentence for child rape, to reach the Supreme Court. But the removal of unanimous juries in Florida could lead to new death sentences in the coming months. Last year, I spoke with Florida defense lawyers about their efforts to stop death sentences, and some told me they would race to secure as many life sentences as possible.

It is easy to imagine DeSantis and Trump’s death penalty rhetoric catching on with more presidential candidates. Another potential Republican contender, former Vice President Mike Pence, recently called for an expedited process for executing mass shooters. Two more GOP candidates, former governors Nikki Haley of South Carolina and Asa Hutchinson of Arkansas, both oversaw executions while in office, which they could cite in their appeals to voters.

All of this creates awkward choices for President Joe Biden, who is expected to run for a second term. During the campaign for the 2020 election, he promised to end the federal government’s use of the death penalty. His record has been mixed and marked by inaction, according to The Associated Press. The Biden administration has not pursued executions, but federal prosecutors are still trying to send people to death row — and to keep them there. Over the next 18 months, death row prisoners will likely ask Biden to commute their sentences so that a potential future president like Trump or DeSantis could not execute them.

Biden may be facing a return to the political landscape of his early career. He was a senator in 1988 when a fellow Democrat, Massachusetts Gov. Michael Dukakis, lost a presidential election in part because Republicans cast him as soft on crime, and attacked him for opposing the death penalty.

A few years later, Arkansas’ Democratic Gov. Bill Clinton flew home from the campaign trail to oversee an execution. The prisoner, Ricky Ray Rector, experienced severe brain damage in the course of shooting a police officer. He was reportedly so diminished that he set aside the pie from his last meal to eat after his execution. The left criticized Clinton for playing politics with a mentally diminished prisoner’s life. But he also won the election.

Correction: An earlier version of this article misstated when a new Florida law, requiring only eight jurors to give a death sentence, would go into effect. It went into effect immediately.

Maurice Chammah Twitter Email is a staff writer and host of the podcast “Just Say You're Sorry,” as well as the author of “Let the Lord Sort Them: The Rise and Fall of the Death Penalty.” He writes narrative features on a range of criminal justice subjects, including the death penalty, forensics and art and music by incarcerated people.