In a number of my posts, I will be addressing Trump’s extraordinary Executive Order 14164, titled “Restoring the Death Penalty and Protecting Public Safety,” signed on Jan. 20, 2025 [“the EO”], as well as the follow-up memo from Attorney General Pam Bondi, issued on Feb. 5, 2025, titled “Reviving the Federal Death Penalty and Lifting the Moratorium on Federal Executions” [“the Bondi Memo”]. I want to focus on a particular angle that I have looked at almost since I began my academic career in 2004, the federal death penalty in non-death-penalty States.
Although I am not opposed to capital punishment generally, I have argued in a series of articles and amicus briefs that the Cruel and Unusual Punishments Clause, properly understood as a matter of original understanding, forbids the imposition of any punishment, including death, that is unauthorized by the State in which the crime occurred. This argument has not been addressed by many courts but it was rejected by a 2-1 vote in the Second Circuit in United States v. Aquart, 912 F.3d 1 (2018) (Judge Calabresi did not reach the merits of the argument so he did not join the part of the opinion rejecting it). At the very least, there are serious sub-constitutional federalism concerns that should not simply be brushed aside when the federal government purports to impose the death penalty in States that have rejected it.
That is one reason that I find the EO and, in particular, the Bondi Memo troubling and incredibly hypocritical. It is, after all, the Republican Party that has traditionally purported to value federalism. But we are no longer in an age of traditional Republicanism, and Trumpist Republicanism has bulldozed through all sorts of constitutional values once held dear by the GOP. To be fair, the Justice Department, under Presidents of both parties, even President Biden, has sought the death penalty for crimes committed in non-death-penalty States. But what is troubling about the Bondi memo is that it provides two recent examples of murders calling for the federal death penalty, if possible, and both occurred in non-death-penalty States: the killing of David Maland, a U.S. Customs and Border Patrol agent, in Vermont; and the killing of Debrina Kawam in New York. Kawam, you might remember, suffered the horrific fate of being burned alive on a New York City subway car late last year. These fit, respectively, into the two categories of cases that the EO and the Bondi Memo single out for special treatment: “[T]he murder of a law-enforcement officer and capital crimes committed by aliens who are illegally present in the United States.” Maland, obviously, was a “law-enforcement officer,” and the suspect in Kawam’s killing is Sebastian Zapeta-Calil, an undocumented immigrant.
The basis for a federal prosecution of Maland’s killer is pretty clear: 18 U.S.C. § 1114(a)(1) forbids the murder of “any officer or employee of the United States or of any agency in any branch of the United States Government . . . while such officer or employee is engaged in or on account of the performance of official duties.” But the same cannot be said of Kawam’s killer, which is why the Bondi Memo wisely adds the proviso “to the extent these are federal capital crimes.”
What deeply troubles me is the ability of clever federal prosecutors to shoehorn what are state-law crimes where there is no apparent national interest to fit within federal statutes that are designed for other purposes. (This includes the federal indictment of Luigi Mangione in New York, which will be the subject of a future post.) As horrific as it was, the murder of someone riding the New York City subway implicates only very tangentially any national interest; that it made national news should not be enough. It falls instead within the purview of the People of the State of New York, as represented by the District Attorney of Kings County (Brooklyn) to prosecute. And the People of the State of New York, for better or worse, have rejected the death penalty.
But could Zapeta-Calil be prosecuted in federal court? Perhaps.