Sign up for The Decision, a newsletter featuring our 2024 election coverage.
During a recent campaign event in Phoenix, Arizona, Donald Trump mused about capital punishment. “We’ve never had [such] massive amounts of drugs pouring into our country,” he said. “And by the way, you’ll never solve the problem without the death penalty.” Trump also said he had made a deal with Xi Jinping prior to the end of his term that would have seen China executing anyone found to be manufacturing fentanyl for sale in America, though the only verifiable fact related to this claim is that China cracked down on fentanyl sales to America under pressure from the Trump administration.
He then riffed on the same theme at a rally in Las Vegas, where he again announced that the United States would have no drug problem if this country, like China, captured, tried, and executed drug dealers all within a very short span of time. Trump declared that Xi told him that these almost instantaneous capital proceedings are known in his country as “quick trials,” and that they’ve essentially resolved China’s struggle against illegal narcotics. (According to fact-checkers at Politifact, Trump’s description of China’s liberal use of capital punishment is essentially correct, but evidence refutes his assessment that the method is as effective as he claims, or would be effective here.)
Trump’s strange pontification on sharks and batteries attracts more attention than his criminal-justice designs, but these more substantive policy ideas are at least as disturbing. There’s something satisfying in the presumption that one simple fix could erase all American addiction. But it’s nonsense, and destroying the death-penalty appeals process would be both naive and intentionally cruel. Trump may be dreaming aloud when he offers up the possibility of sudden death for drug-related crimes, but enacting such a policy would significantly degrade American law and justice.
Trump’s fixation is odd, in part because capital punishment has never eliminated any category of crime. Use of the death penalty in a particular jurisdiction does not even deter crime: Decades of research have consistently found that murder rates are lower in states that do not execute criminals. But for Trump, it’s the punishment frequently offered up in place of a credible plan to actually treat opioid addiction and other forms of drug abuse. He suggested its use in a 2023 Fox News interview, saying, “I don’t know that this country is ready for it. I just don’t know,” reflecting on how shocking it would be to introduce capital punishment for selling drugs. “It’s not easy to say the death penalty.” (Drug trafficking is already a capital offense federally and in two states, a fact Trump appears to be unaware of.)
Trump is right that the death-penalty process is not quick, and the long period of time between a death-row prisoner’s sentencing and execution has expanded dramatically in the past several decades. Prisoners who once could have expected to spend only a few years awaiting death can now expect about 20, though some have waited nearly 40 years. The length of the capital-punishment process—mainly the appeals that ensue after a capital sentence is handed down—accounts for most of this delay, though several other factors (including the length of capital trials) contribute. But the long timeline of the capital-appeals process is commensurate with the enormity of the punishment. Executions cannot be reversed. If supporters of capital punishment, frustrated with the length of prisoners’ appeals, want something approaching a fair and just death penalty, then careful, meticulous review of each sentence is a prerequisite.
[Ronald Brownstein: Trump’s stop-and-frisk agenda]
Let’s pause briefly for a primer on capital appeals. People sentenced to death in a given state may make a direct appeal (either automatically or at their discretion) up to their jurisdiction’s court of last resort, usually the state’s supreme court. Only issues related to the criminal trial and its accompanying death sentence can be litigated in this venue. Judges may reverse the death sentence and the conviction, just the sentence, or neither at all. Prisoners may then appeal the decision to the United States Supreme Court. During this stage of the appeals process, prisoners have the opportunity to litigate matters in state court that could be adjudicated only posttrial—ineffective assistance of counsel, prosecutorial misconduct, or newly discovered evidence, for example. The resulting decisions can then also be appealed to the Supreme Court. If the Court rules against the defendant at this stage, then their state appeals are exhausted, and they may file a habeas corpus petition in federal court, seeking review of federal issues introduced in the state appeals process. Prisoners may again appeal lower courts’ rulings all the way to the Supreme Court, though the justices rarely agree to hear such cases.
In order to be fair, Supreme Court Justice Harry Blackmun explained in a 1994 dissent, “a capital sentencing scheme must treat each person convicted of a capital offense with that ‘degree of respect due the uniqueness of the individual’ … That means affording the sentencer the power and discretion to grant mercy in a particular case, and providing avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death. Reasonable consistency, on the other hand, requires that the death penalty be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice.” In other words, there is no way to justly administer the death penalty without thorough review.
Ample opportunity for appeals also helps prevent the killing of innocents. Since 1973, 197 people have been exonerated and released from death row. Many others have been exonerated posthumously. The Equal Justice Initiative’s founder, Bryan Stevenson, told me over email last week that “the error rate in capital cases is extremely high … The appeals process doesn’t ensure no one innocent will be executed but it’s clear that without it we would have certainly executed scores of innocent people.”
Even if Trump wins in the fall, he’s unlikely to persuade enough lawmakers to enact his “quick trial” plan. But it isn’t impossible. Laws governing the use of capital punishment in America have changed dramatically over time. If Trump succeeds, every flaw in the American death-penalty regime will be intensified and expanded. Of course, the simplest way to curtail appeals, save innocent lives, and eliminate the gap between sentencing and punishment is to do away with capital punishment altogether.
*Lead-image sources: James Devaney / GC Images / Getty; Tingshu Wang / Getty; georgeclerk / Getty; Bettmann / Getty.
