On Dec. 22, the New York Times published a shocking story detailing the ways the Trump administration is working with allies in red states to pursue new death sentences against people whose sentences were commuted by former President Joe Biden. While this is yet another example of the president’s unrelenting vendetta against his predecessor, it also creates, as the Times observes, a “legal predicament” for people subject to a second prosecution for the same crime that has “no modern precedent.”
Donald Trump and his administration are engaged in a bloodthirsty embrace of capital punishment. On the first day of his second term, the president issued an executive order “to ensure that the laws that authorize capital punishment are respected and faithfully implemented, and to counteract the politicians and judges who subvert the law by obstructing and preventing the execution of capital sentences.” He directed Attorney General Pam Bondi to do whatever she could to undermine the clemency that Biden had extended to 37 people awaiting execution on federal death row.
Under the Constitution’s prohibition of double jeopardy, the feds cannot prosecute them again, but Trump ordered Bondi to examine each of their cases to determine “whether these offenders can be charged with State capital crimes” and to “recommend appropriate action to state and local authorities.” And in MAGA world, what Trump wants, he is supposed to get.
Over the past year, prosecutors in Louisiana, Florida and South Carolina have charged four of the 37 with crimes for which they have already been convicted. Those prosecutions should not go forward. And if state officials won’t stop them, judges should.
What Trump and his allies are doing is a way of undermining the president’s power to grant pardons and reprieves — and more specifically, Biden’s exercise of that power. If outrageous claims about autopens won’t do the job, perhaps prosecutors in red states can help.
What Trump and his allies are doing is a way of undermining the president’s power to grant pardons and reprieves — and more specifically, Biden’s exercise of that power. If outrageous claims about autopens won’t do the job, perhaps prosecutors in red states can help.
The federal government should not be in the business of telling state officials how to handle capital cases, especially not in a country whose Constitution recognizes a clear division of power between the federal government and the governments of the 50 states and territories.
Trump’s and Bondi’s first success came in April when prosecutors in Catahoula Parish, Louisiana, filed a first-degree murder charge against Thomas Steven Sanders, who in 2014 had been sentenced to death in federal court for kidnapping and crossing state lines to murder a 12-year-old girl.
Local officials were upset when they received the news that he would not be executed. Talking about Biden’s commutation, Catahoula Parish District Attorney Brad Burget said what Biden did “disrespects the victim.” Burget wants to give a Catahoula Parish jury the chance to hand Sanders a new death sentence. Such sentiments are not surprising in a place where Trump received 75% of the vote in the 2024 presidential election.
A month after Sanders’ indictment, Florida prosecutors said they would go after two more beneficiaries of Biden’s mercy, Daniel Troya and Ricardo Sanchez Jr., who had been sentenced to death in federal court for the 2006 murder of two brothers.
In September, South Carolina County Solicitor Jimmy Richardson announced he would seek a second death sentence for Brandon Council, who was convicted of robbing a bank and killing two bank employees. Not surprisingly, Conway, the small town where Richardson serves, is very much Trump Country, and it is a place where juries frequently hand down death sentences.
If the example set by people like Richardson is followed elsewhere, we may soon see more people receiving a second death sentence for a single crime. The people who founded this country and wrote the Constitution would be appalled.
This is another sign of Trump’s expansive view of executive power. We are in real trouble when the president takes it on himself to decide who should be punished, for what crime and by what means. That is, of course, exactly what he wants to do to former FBI Director James Comey and New York State Attorney General Letitia James.
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What Trump and company are trying to do is only possible because of the Supreme Court‘s entirely fabricated “dual sovereignty” doctrine, which makes an exception to the prohibition of double jeopardy when trials are carried out, or punishments imposed, first by the federal government, then by a state, or vice versa. In such cases, the court has said, “We have…two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory… Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.”
What is happening to people to whom Biden granted clemency shows why it is time to put that act of legal jujitsu to rest. In 2019, two Supreme Court Justices from opposite sides of the political spectrum agreed that it was necessary to do so.
Quoting Alexander Hamilton, Justice Ruth Bader Ginsburg observed, “’The United States and its constituent States, unlike foreign nations, are ‘kindred systems, parts of ONE WHOLE.’” She pointed out that there is no mention of “separate sovereigns” in the Fifth Amendment, and that “if two laws demand proof of the same facts to secure a conviction, they constitute a single offense under our Constitution.”
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Joining her, Justice Neil Gorsuch wrote, “When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is ‘the poor and the weak,’ and the unpopular and controversial, who suffer first—and there is nothing to stop them from being the last.”
“The separate sovereign’s exception,” he continued, “was wrong when it was invented and remains wrong today.”
Six years ago, Ginsburg and Gorsuch did not prevail. However, their arguments remain persuasive — and even more so when it comes to capital punishment.
The prohibition of double jeopardy explicitly references threats to “life and limb.” So if the courts cannot now be persuaded to abandon the fiction of dual sovereignty, they should at least not apply it in capital cases. That would no doubt infuriate Trump, who fancies himself America’s king. However, it would help prevent petty vindictiveness from ruling when lives are at stake.
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