There was a significant change just made to D.C.’s criminal justice system – but D.C. residents had no say in it at all.
Late last week, President Donald Trump said he was reinstating the death penalty for certain crimes in D.C., arguing that it would deter and punish “the most reprehensible crimes that often involve grotesque and lethal violence against innocent Americans.”
Trump’s decision to reinstate capital punishment — which hasn’t been used here in 68 years — is part of a broader law-and-order campaign targeting the District. In addition to the deployment of the National Guard and federal law enforcement officers late in the summer, more than a dozen GOP-sponsored bills targeting the city’s criminal justice laws are making their way through the House. Most recently, the lower chamber approved a bill that would allow prosecutors to charge 14-year-olds as adults. (Currently, that can only happen with 16- and 17-year-olds.)
Still, Trump alone can’t dictate if the death penalty is ever used again in D.C. In fact, D.C. jurors will have a big say.
What’s the state of the death penalty in the U.S.?
There are currently 27 states that allow capital punishment, 23 that don’t, and four where governors have imposed a moratorium on its use, according to the Death Penalty Information Center. Looking geographically, no state from Maine down to Virginia either permits or currently uses the death penalty. (Pennsylvania has had a moratorium on its use since 2015.)
This year, 33 people have been executed in 10 states, an increase from last year, when nine states executed 25 people. But the executions are only happening in a small minority of states: just Florida, Texas, Alabama, and South Carolina in 2025.
The federal government can also use capital punishment, though there hasn’t been an execution since the last month of Trump’s first term in 2021. Former President Joe Biden also commuted the sentences of 37 of the 40 people on death row.
A slight majority of Americans approve of the use of the death penalty, though that support has been steadily weakening since it hit a high in the mid-1990s. (Support is far lower amongst younger generations and Democrats.) Polling has also shown that a majority of Americans think capital punishment is applied unfairly and that if given the choice, they would instead support sentences of life imprisonment.
What is the history of the death penalty in D.C.?
It’s been a long, long time since anyone was executed in D.C. The last time was back in 1957, when Robert Carter was electrocuted after being convicted of killing an off-duty police officer during a robbery attempt. (The city still has that electric chair in its possession.)
In 1972, the Supreme Court ruled that the arbitrary use of the death penalty was unconstitutional, and in 1981 the D.C. Council fully repealed its use for local crimes — a decision that was protested by civic associations predominantly made up of white residents in Northwest.
But that wasn’t the end of the debate — nor is this the first time that the issue has been forced onto D.C. by the federal government.
In 1992, Congress ordered D.C. to hold a public vote on whether the death penalty should be on the table for people convicted of first-degree murder. Sen. Richard Shelby (R-Alabama), whose aide had been killed in a robbery on Capitol Hill the year prior, initially planned on simply passing legislation ordering that the death penalty be reinstated, but Democrats managed to water the measure down to merely require a citywide referendum. It didn’t go Shelby’s way: 67% of D.C. voters cast ballots against reinstating the death penalty, with even higher margins in neighborhoods that had historically suffered the brunt of the violence of that era. (There were 443 homicides in 1992; last year there were 187.)
A few years later, in 1997, then-mayor Marion Barry proposed a bill that would have reinstated capital punishment for anyone convicted of killing a police officer — but the measure failed to gain traction in the D.C. Council.
What did Trump actually do?
Trump’s move to reinstate the death penalty in D.C. came in a presidential memorandum to Attorney General Pam Bondi ordering that she “fully enforce federal law with respect to capital punishment in the District of Columbia by seeking the death penalty in all appropriate cases.”
As it pertains to D.C., that means that if there are federal charges that are eligible for the death penalty in a local case, federal prosecutors are being pushed to pursue them. We’ve already seen this in the case of Elias Rodriguez, who is accused of killing two Israeli Embassy staff members outside the Capital Jewish Museum in May. In August he was charged with both local and federal offenses, the latter of which are eligible for the death penalty. While Bondi hasn’t made a decision on whether she will seek the death penalty, she has the option to.
Of course, Trump’s memo also takes advantage of D.C.’s unique vulnerability to federal interference in its local affairs.
The federal government generally prosecutes most violent crimes committed by adults in D.C., and prosecutorial priorities can change from administration to administration. While most trials for violent crime happen in D.C. Superior Court, federal prosecutors do have the unique ability to move certain local cases to federal court. And that has already happened with more frequency during Trump’s second term, under the expectation that federal judges would be less lenient than local ones.
Trump’s memo to Bondi takes advantage of this reality, ordering her to “pursue federal jurisdiction with respect to cases involving crimes committed in the District of Columbia for which the death penalty is available under federal law.” In layman’s terms, Trump wants more local prosecutions to be bumped up to federal court, where his administration’s renewed zeal for capital punishment would apply.
“Even if it’s a crime in D.C. and it implicates D.C. law, the feds could come in and prosecute this case under federal law. And if it meets the qualifications for a federal death sentence, seek a federal death sentence,” explains Robin Maher, the executive director of the Death Penalty Information Center.
Now, it’s worth mentioning that the federal government can pursue death penalty-eligible charges in any U.S. state. Take the case of the shooting of two Minnesota lawmakers earlier this year — state prosecutors are pursuing charges against the suspect, but so too are federal prosecutors. Minnesota doesn’t allow the death penalty, but the federal government does. The big difference, of course, is that D.C.’s “state” prosecutors are actual federal prosecutors, so those decisions won’t at all reflect what residents may feel or want. Additionally, it’s easy to think that Trump would be more focused on using the death penalty in cases in D.C., which is a high-profile national symbol.
“Part of the reason that the administration is so focused on D.C. and Chicago and Portland is because these are places that don’t support the current administration,” says Vida Johnson, a former public defender in D.C. who is now at the Georgetown Law Center. “It’s a way to punish the residents of those places with one of the most violent and punitive tools that the government has, and the death penalty is such a classic example of that.”
Who in D.C. could be eligible for the death penalty under Trump’s new policy?
Remember, Trump’s new policy in D.C. relies on federal charges that are eligible for the death penalty. And some of those crimes — like aircraft piracy resulting in death — aren’t exactly the types of things that fill up your local police blotter.
But there are plenty of federal charges that Trump’s prosecutors could seek for more “routine” crimes in D.C. There’s certain first-degree murders, murder committed during a drug-related drive-by shooting, murder during a bank robbery, or carjacking resulting in death. Trump’s new memo to Bondi says that wherever possible, federal prosecutors should seek to charge those crimes federally so as to take advantage of the death penalty as a possible consequence that isn’t available under local law.
This is, though, a step back from what Trump initially seemed to say he wanted. During a cabinet meeting in August, Trump implied that anyone charged with murder would get the death penalty: “If somebody kills somebody in the capital, Washington, D.C., we're going to be seeking the death penalty. And that's a very strong preventative.”
It would also be unconstitutional. In 1976 the U.S. Supreme Court ruled that mandatory death sentences for specific offenses weren’t permitted; rather, decisions on whether the death penalty should apply have to be made on a case-by-case basis.
Still, Maher worries Trump’s new policy for D.C. could mean that prosecutors will push too far. “The concern here is that this could be government overreach and it could be overcharging in order to seek a death sentence,” she says, noting that during Trump’s takeover of D.C., federal prosecutors overcharged certain cases to make a point. “Like the sandwich guy,” she says. “They charged him with a felony.”
So will people actually be executed for crimes committed in D.C.?
Trump’s desire for the ultimate punishment is certain to run into obstacles in D.C. — namely the city’s residents. While prosecutors are now empowered to consider more local cases for the federal death penalty, it will take local juries to actually convict people and then sentence them to death. And so far, they have shown reluctance to go along with what some have called heavy-handed prosecutions.
Take sandwich guy. While he was initially charged with a felony (itself unusual, given what he was accused of doing), a grand jury made up of D.C. residents refused indict him. (And that wasn’t the only case where that happened.) Now, those weren’t death penalty cases, but Maher says the same outcome may come to pass. “A jury would have to convict and sentence. This is a jurisdiction that seems very opposed to the use of the death penalty,” she says. “The federal government will have more than a few hurdles to overcome.”
And on top of any personal concerns local jurors will have with the death penalty, they could also be more empowered to opt against using it because the decision to reinstate it came without local input. That dynamic was evident during the 1992 death penalty referendum that Congress ordered, according to a quote from D.C. Del. Eleanor Holmes Norton at the time.
“There is something approaching rage among the voters of the District about their disempowerment, about Congress forcing this on us,” she said according to a New York Times report. “When you mandate a death penalty vote, you engage that issue directly.”
Johnson points to another hurdle that may limit how many death penalty cases are actually pursued: the cost of public defenders. “Federally there are guidelines about who represents someone in a capital case. There have to be defense attorneys that have experience defending these cases,” she points out.
Still, even if Trump’s policy doesn’t result in any death penalty prosecutions or executions, some worry it could inspire Congress to again consider whether the death penalty should be on the table for certain crimes that are prosecuted in Superior Court, not just federal court. Congressional Republicans have shown interest in changing D.C.’s criminal justice laws to be more punitive, and fully reinstating capital punishment — regardless of what D.C. residents and elected officials may want — is always a possibility.
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