Trump Pushes Death Penalty For Undocumented Migrants In Capital Cases
President Donald Trump is calling for federal prosecutors to push for the death penalty in capital cases involving undocumented people. The move was one of dozens of executive orders the president signed on day one of his second term.
The order encourages the Justice Department to pursue the death penalty as much as possible and prioritizes two sets of cases: Those involving the murder of a law enforcement officer and those involving crimes for which the death penalty is an option and the defendant is undocumented. It encourages states, where the majority of death penalty cases are tried, to follow the federal government"s new approach.
“It’s highly symbolic because this will apply to so few people,” said César Cuauhtémoc García Hernández, a law professor at Ohio State University who specializes in the intersection of criminal and immigration law. “The vast majority of murders in the United States are committed by U.S. citizens.”
In his first term, Trump carried out 13 federal executions, which had been on pause for 17 years, more than any president in over 120 years. Former President Joe Biden had pledged to end the death penalty while campaigning for president and ultimately issued a moratorium on federal executions while pushing for death sentences in three cases.
The three people currently on death row in the federal judicial system are all U.S. citizens, including one who was naturalized. In his final days in office, Biden commuted the sentences of 37 people who had been held on federal death row. They included three people who were not U.S. citizens, according to the Death Penalty Information Center. It is not clear whether any of them were undocumented.
Legal experts said that Trump’s new executive order furthers the administration’s goal of sowing fear in immigrant communities and furthering the false narrative of immigrants as criminals.
“The more you scapegoat a group of people, the more the majority can feel powerful,” said Aliza Kaplan, a professor at Lewis & Clark Law School who has worked on many death penalty cases. “That’s what this is.”
Thomas Saenz, the president and general counsel of the Mexican American Legal Defense and Educational Fund, said the executive order fits into Trump"s false claims of an invasion of immigrants.
“There’s no rational connection between capital punishment and someone’s immigration status except in the rhetoric of Donald Trump and folks like him,” Saenz said. “It is difficult to converse about this because it almost gives legitimacy to something that’s really not legitimate.”
If the Justice Department implements the executive order in a way that mandates the death penalty for certain crimes or specific groups of people, it could violate a 1972 Supreme Court ruling determining that capital punishment cannot be arbitrary or discriminatory.
“What this does is it treats as special folks who are in the United States without the government’s permission and directs the Justice Department to seek the death penalty whenever those individuals commit a murder on the presumption that the murder is more heinous, more regrettable if it’s committed by somebody"s who’s in the United States without the federal government"s permission," García Hernández said.
Courts are required to consider the character and record of the defendant, the crime’s circumstances, and any mitigating factors, according to Randy Susskind, senior attorney and deputy director of Equal Justice Initiative. Without those considerations, he said, the Supreme Court has found that the use of the death penalty would be unconstitutional.
Susskind said he is waiting to see whether and how the executive order gets implemented. The order, he said, could be political bluster, or it could be an attempt to dramatically change the legal framework of the death penalty in the U.S.
Juliet Stumpf, a professor at Lewis & Clark Law School who specializes in immigration law and “crimmigration,” the intersection of the immigration and criminal justice systems, said that even if the Justice Department tries to implement the order as it is written, it could be difficult for attorneys to push back because the order would need to be applied to an actual case, which she said would be unlikely to happen.
Most death penalty cases are handled in state court rather than federal court, she said.
Beyond that, few undocumented immigrants commit these types of crimes, Stumpf said. She pointed to research from Michael Light, an associate professor of sociology and Chicano and Latino studies at the University of Wisconsin-Madison, which found that undocumented immigrants do not bring more crime to the communities where they live.
“In terms of allocating law enforcement resources, this is not the group to target,” Stumpf said.
At the end of 2024, 103 noncitizens were on death row nationwide, according to the Death Penalty Information Center. The center did not have information about their immigration statuses.
According to the most recent data available from the Bureau of Justice Statistics, at the end of 2022, 26 states and the federal prison system held close to 2,300 people in custody who had been sentenced to death.
Stumpf said that sentencing is supposed to be the same for people regardless of their demographics or appearances.
“We know that"s not how the criminal justice system works in practice,” Stumpf said. “In practice, people of color are surveilled and punished more in the system.”
Another study from Light found that both Texas and California deliver harsher sentences to immigrants than to U.S. citizens with the same criminal histories.
That systemic bias can also play a role in wrongful convictions.
Clemente Aguirre, for instance, was wrongfully sentenced to death in Florida and held in custody for 14 years before the Innocence Project advocated to get him exonerated. Aguirre had been in the U.S. for a little over a year after fleeing Honduras when he found his neighbors after they"d been attacked and killed. Because he was concerned about his immigration status, he did not call the police, and he was later charged with and convicted of murder.
DNA and other evidence helped Innocence Project lawyers get Aguirre free of all charges in 2018.
The Mexican government has pushed back on the United States’ use of the death penalty against Mexican citizens, alleging that in many cases, defendants were denied the right to speak to their consulate, as is required under international human rights treaties. In 2004, the International Court of Justice found that the U.S. had violated the rights of dozens of Mexicans facing death sentences.
Since 2000, Mexico’s foreign ministry has run the Mexican Capital Legal Assistance Program, which fights death penalty cases on behalf of its citizens. The program reported a nearly 92% success rate at the end of 2023.
This story originally appeared at Prism.
This story was made available by On the Ground, a service of the Institute for Nonprofit News. Learn more here.
Kate Morrissey has been a journalist covering immigration issues at the San Diego-Tijuana border since 2016, and she writes a newsletter called Beyond the Border.