DONALD, DRUGS, AND THE DEATH PENALTY: Capital Punishment in the Trump Era

Jason Kruszka, NLC Broward

Part thirteen of The New Leader series The Arc of Justice: Examining the Failures of the Criminal Justice System and the Hope of Progressive Reforms.

For proponents of criminal justice reform, the first 20 months of the Donald Trump presidency has brought numerous shocking and concerning moments. Trump’s rhetoric, appointments, policies, and proposals all indicate that he believes the only flaw in the criminal justice system as currently constituted is that it is too lenient on defendants. Any momentum at the federal level to stem the tide of mass incarceration and deal with systemic inequities was seemingly halted on November 8, 2016. Any hope for progress shifted to state governments and local elected officials.

One Trump proposal was particularly jarring for death penalty abolitionists. On March 10, 2018, at a Pennsylvania rally in support of a Republican Congressional candidate, the President proposed giving the death penalty to drug dealers. The proposal, like many that germinate from these spectacles of red meat for his base, seemed half-baked and without aforethought. But it was quintessential Trump. This is the same man who took out a full-page ad in New York newspapers to advocate for the death penalty for five black teenagers and refused to change his opinion even after clear evidence of innocence.

Calling for the death penalty for drug dealers was just the latest iteration of the Trumpian pursuit of machismo through punishment. Thankfully, so far this rhetoric hasn’t translated into actual prosecutions. But nonetheless it is extremely concerning for two reasons. First, it reveals a willingness to use capital punishment that is extreme even for a Republican Party that has claimed the tough-on-crime mantle in every election in recent memory. Second, any attempt to effectuate this proposal would be litigated in front of a presumably friendly United States Supreme Court.

While the vast majority of death penalty cases originate in state court, the Supreme Court is the ultimate arbiter of the death penalty’s scope. And no one has had more influence over the Court’s direction on this issue (and many others) than Anthony Kennedy. While Justice Kennedy has consistently voted to uphold the constitutionality of capital punishment, he has also been the architect of its recent limitations. Prohibitions against executing the intellectually disabled[1], minors[2], and child rapists[3] were all achieved through narrow majorities that Kennedy joined.

The last case mentioned, Kennedy v. Louisiana, would serve as the basis for a legal challenge to capital punishment for drug dealers. The Court’s majority held that it is unconstitutional to sentence a defendant to death for a crime other than murder. Three current members (Alito, Roberts, and Thomas) of the Court dissented. The fourth dissenter was Justice Scalia, the justice President Trump has promoted as the model for his Supreme Court appointments. Given that Justice Gorsuch, Scalia’s replacement, embraces the same judicial philosophy, it stands to reason that there are currently four justices on the Court who would rule in favor of a Trump policy of pursuing capital punishment for drug dealers.

With the retirement of Justice Kennedy, 16 years of arduous progress limiting the scope of capital punishment is at risk. Whatever verdict is rendered on the Brett Kavanaugh nomination, rest assured Republicans will stop at nothing to achieve the conservative majority they have desired for a generation. Assuming they are successful, the Supreme Court will no longer serve as a backstop against the most draconian desires of prosecutors, legislators, and governors.

Instead, progress, or at least the prevention of backsliding, will take place at the state and local level. It is already the case that capital punishment is a minority phenomenon. Two percent of the nation’s counties, from a small minority of states, produce most death penalty cases. Replacing the governor or legislature in these states, or the elected prosecutors in these counties, could lead to a dramatic reduction in death sentences and executions.

Some glimmers of hope have already started to emerge. In Florida, a state with a notoriously dysfunctional capital punishment system, a combination of court decisions, electoral victories, and reform-minded candidates provides a potential roadmap going forward.

In 2016 the Florida Supreme Court[4] rectified a long-standing blight on Florida’s capital punishment system by finally requiring that juries render a unanimous decision to impose the death penalty on a defendant. The long-term consequences of this change are unknown, but early anecdotal examples are positive. It is not unreasonable to assume that unanimous jury decisions will be harder to obtain, leading to less death sentences and executions in the future.

Another positive change has been the election of prosecutors willing to take a fresh look at how the death penalty is employed in their jurisdictions. In Orlando, Aramis Ayala famously clashed with Governor Rick Scott over the use of capital punishment. Even though she lost the legal battle, her willingness to challenge the status quo and subsequently institute reforms signaled a new movement within the state. In Jacksonville, historically the leader in death sentences in Florida, Melissa Nelson was elected on a platform of reform. While there is room for criticism, there is no dispute that Nelson is a drastic improvement over the old regime.

And electing a new governor or new legislators is a path towards reducing and ultimately ending capital punishment in states such as Florida — which currently has the second largest death row in the country. A reform-minded governor could institute a moratorium on the death penalty and restore legitimacy to the clemency process. Legislators can limit the scope of capital punishment or outlaw it entirely.

As evidence of capital punishment’s flaws has become more pervasive in society, public support for the death penalty in the U.S. and the number of executions nationwide have both declined in recent years. Increasingly, people seem to recognize that the death penalty is expensive, doesn’t lead to measurable deterrence, is racially and economically biased, and is anachronistic and inefficient. Now is the time for these shifting attitudes to be given voice through the democratic process. Tough-on-crime can become smart-on-crime if candidates campaign on a reform agenda and citizens make reform a priority in the voting booth. There are examples of this already happening, but progress is rarely a straight line. A more conservative Supreme Court means legal victories will be difficult to come by. The focus must now shift to the decision makers at the state and local level who can effectuate change.

Jason Kruszka is currently chief of staff for an elected official in Broward County, Florida. He previously did death penalty appellate litigation for a state agency. He is a graduate of the Florida State University College of Law.

[1]Atkins v. Virginia, 536 U.S. 304 (2002)
[2]Roper v. Simmons, 543 U.S. 551 (2005)
[3]Kennedy v. Louisiana, 554 U.S. 407 (2008)
[4]Hurst v. State, 202 So. 3d 40 (Fla. 2016)