CONCORD, N.H. (AP) — President Donald Trump's administration is faltering in its aggressive pursuit of the death penalty as it revisits cases in which predecessors explicitly decided against seeking capital punishment.
Since taking office in February, U.S. Attorney General Pam Bondi has authorized prosecutors to seek the death penalty against 19 people, including nine defendants in cases in which President Joe Biden's administration had sought lesser sentences. But judges have blocked those reversal attempts for all but two defendants, most recently on Monday in a pair of cases in the U.S. Virgin Islands, showing the limits of the Trump administration's power to undo decisions in cases already well underway.
In pursuing capital punishment, the Justice Department is seeking to follow through on a Trump campaign promise to resume federal executions after they were halted by Biden’s Attorney General Merrick Garland. The Republican president's Justice Department has accused the previous Democratic administration of supplanting “the will of the people with their own personal beliefs” in failing to seek death sentences in many cases involving horrific crimes.
Detailed opinions haven't been issued in the most recent two cases, which involve a man accused of killing a police officer in 2022 and two men accused of armed robbery and murder in 2018. But other judges who have rejected reversal attempts on constitutional and procedural grounds were blunt in their assessment of the Trump administration’s approach.
“The government has proceeded hastily in this case, and in doing so has leapfrogged important constitutional and statutory rights," Trump appointee U.S. Judge Stephanie Gallagher in Maryland wrote in June, striking the notice of intent to seek the death penalty against three alleged MS-13 gang members accused of killing two teenage girls in 2020. “That is unacceptable.”
Authorization of capital prosecution typically occurs years before trial, but in the Maryland case, prosecutors filed the death penalty notice less than four months before the trial was scheduled to start. None of the defendants were represented by attorneys who specialize in death penalty litigation, which they would have been entitled to under federal law due to the complexity of capital cases and the potential consequences.
“The government does not hide the ball here — the only reason for its flip-flop on the death penalty was the change in administration,” wrote Gallagher, who called the government’s “willful blindness” to the differences between capital and non-capital trials “startling.”
“This court will not cast aside decades of law, professional standards, and norms to accommodate the government’s pursuit of its agenda,” she wrote. “Of course, elections have consequences, and this administration is entitled to pursue the death penalty in cases where it can do so in accordance with constitutional and statutory requirements. But this is not one of them.”
Prosecutors in Maryland and in a Nevada case declined to comment, but in court documents they argued that the Justice Department has an “inherent power” to reconsider previous decisions and that the timing of the death notice was “objectively reasonable” given that the defendants had years to prepare for trial.
“The Attorney General has simply reconsidered an earlier decision, which it is her prerogative to do so, and exercising that inherent authority is not misconduct but basic management and governance,” wrote Maryland’s U.S. Attorney Kelly Hayes. “At no point did the Government make an enforceable promise. Deciding not to seek certain charges is not a promise not to do so.”
Trump, whose first administration carried out a record-setting 13 federal executions, signed an order on his first day back in the White House compelling the Justice Department to seek the death penalty in appropriate federal cases and support capital punishment in states. Bondi, who has said she will seek the death penalty “whenever possible,” quickly lifted a Biden-era moratorium on federal executions and ordered a review of decisions made by the previous administration.
The 120-day deadline for that review has passed with no official word on the results, but a senior Justice Department official told The Associated Press that all but about 30 cases have been examined. The official, who spoke on the condition of anonymity under terms set by the department, said roughly 1,400 decisions not to seek the death penalty were issued by Garland, with all but 459 having already been fully adjudicated by the time Trump took office.
Bondi isn’t the first attorney general to review past cases: Not only did Garland authorize just one death penalty case during his tenure, he also withdrew 35 notices of intent to seek the death penalty issued by his predecessors. The Justice Department says the Bondi-ordered review was essentially “the flip side” of Garland's action and was the right thing to do to ensure consistency and achieve justice for victims and their families.
But Robin Maher, executive of the Death Penalty Information Center, said while the Biden administration’s actions reflected declining public support for the death penalty, Trump has brushed that aside.
“So his enthusiasm for use of the death penalty is different not only from President Biden’s more cautious approach, it’s different from every other president’s approach in history,” said Maher, whose organization doesn’t take a position on capital punishment but is critical of how it is used.
Whether the reversals will stand remains a question in two of the cases. In the others, courts have sided with defendants who said they reasonably relied on assurances made by the previous administration. In court documents, lawyers for some of the defendants said they would have pursued plea bargains or objected to postponing trial dates had they known the death penalty decision would be reversed.
“In some of these cases, very different paths were taken when those assurances were given,” Maher said.
In Nevada, prosecutors notified Cory Spurlock of their intention to seek the death penalty just 12 days before he was set to go on trial for the 2021 deaths of a California couple. Striking down that notice in May, Judge Miranda Du said the government fell far short of justifying its “wholesale reversal at the eleventh hour.” The trial began this week after prosecutors withdrew their appeal of her ruling.
“The government decided — certainly not by inadvertence or accident — to reverse course on an issue of critical importance, involving Spurlock’s life, less than two weeks before trial, with full knowledge that the reversal would have a chaotic impact on the progression of this case and would make it impossible to proceed to trial on the scheduled date,” wrote Du, who was nominated by President Barack Obama, a Democrat. “Under the circumstances, this is certainly tantamount to playing ‘fast and loose’ with the Court’s orders in particular and the judicial process in general.”
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Associated Press writer Alanna Durkin Richer in Washington contributed to this report.
