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Sarah Waychoff
By Sarah Waychoff May 9, 2017

No action or words on automatic death penalty for cop killers

During the campaign, President Donald Trump promised to create an executive order that would impose death penalties for cop killers.

He passed his 100th day in office without any movement on this pledge.

One explanation: It's a very complicated idea with substantial legal barriers.

The death penalty is legal at the federal level and sentencing is a matter of congressional legislation, not presidential decree. It is unclear how Trump's potential executive action could be used to impose the death penalty.  

There are no federal or state laws that say prosecutors must seek the death penalty.

Recently a case in Florida highlighted how these decisions play out on the local and state levels.

Gov. Rick Scott removed an Orlando prosecutor, Aramis D. Ayala, from a high-profile case involving an accused cop killer, Markeith Loyd, after Ayala said she would not pursue the death penalty in murder cases.

The U.S. Supreme Court has also banned all state laws that make executions mandatory for murders, saying a requirement of prosecutors is unconstitutional.

In order for Trump to impose a death penalty for cop killers, he would need to overturn the Supreme Court ruling.  It is unlikely that he would be able to implement this action. We rate this promise Stalled.

Allison Graves
By Allison Graves January 20, 2017

Obstacles await Trump's promise on death penalty for cop killers

One of Donald Trump's most legally puzzling campaign promises is to make the death penalty mandatory for people who kill cops.

"One of the first things I'd do in terms of executive order, if I win, will be to sign a strong, strong statement that would go out to the country, out to the world, that anybody killing a police man, a police woman, a police officer, anybody killing a police officer, the death penalty is going to happen," Trump said  at a rally hosted by the New England Police Benevolent Association in Portsmouth, N.H.

The chances of this promise becoming a reality are very slim given the legal history of the death penalty in the United States.


Trump has referenced the shootings of police officers by angry anti-police civilians, such as the Dallas shootings in 2015 as a reason a mandatory death sentence should be mandated.

More than 60 cops were shot and killed in 2016, according to the National Law Enforcement Memorial Fund.


Trump says he plans to do this by executive order, but experts said the president does not have power to to create penal laws by executive order.

"There would have to be a law passed by Congress under any ordinary understanding of the power of the different branches," said Sheri Johnson, a law professor at Cornell University.


There are multiple factors standing in the way of Trump achieving this goal.

First off, the Supreme Court decision Woodson vs. North Carolina, ruled that mandatory death penalty sentences are unconstitutional. The court ruled it violated "the fundamental right of humanity," implied in the Eighth Amendment.

Furthermore, there have been a long line of cases since then that requires individualized consideration of any factor weighing against the death penalty.  

Secondly, the death penalty is largely a states issue. Of the 3,000 or so prisoners on death row, only 60 are in the federal system and only 32 states currently have the death penalty as an option.

Finally, what Trump is promising does not fall under the jurisdiction of the president or executive branch.

"Ordinarily, the federal government can only act if it has an enumerated power on which to base its action," Johnson said. "Criminal statutes have been struck down as outside the commerce power and the section 5 power of the 14th amendment."

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