President Donald Trump has signed 11 executive orders related to immigration, which combined with his inaugural speech, send a clear message about heavy immigration enforcement to come.
Documented has been going through the details of each executive order from the White House, and talked to experts to understand what these may mean for our communities. Of the 11 executive orders, one is headlined “restoring the death penalty.”
The steady decline in executions in the United States could see a reversal with President Trump seeking the expansion of capital punishment with an executive order that explicitly targets immigrants who are charged with a capital offense.
With non-citizen inmates having their international rights to consular notification violated on a routine basis, Trump’s executive order puts them in an even more vulnerable position.
How does this executive order affect immigrants?
Trump has empowered the U.S. Attorney General to seek the death penalty in two additional instances — if anyone murders a law enforcement officer and if an “alien illegally present in this country” is convicted of a capital offense, such as murder. Other capital crimes that can incur the death penalty include large-scale drug trafficking, treason, and espionage.
Currently, only three inmates in federal prisons sit on death row, with the vast majority of death row inmates – over 2,000 – in state prisons. But that soon could change as the executive order vows to expand federal death row.
Before leaving office, President Biden commuted the sentence for 37 inmates on federal death row and during his presidency his administration halted all federal excusations. The Trump administration seeks to reverse the previous administration’s policy by vowing to seek the death penalty in every capital case involving an undocumented immigrant.
Additionally, the Executive Order also empowers the U.S. Attorney General to support efforts by state prosecutors who are seeking the death penalty. Historically, the Supreme Court of the United States has limited the authority of state and federal governments to impose capital punishment in some cases, such as the execution of minors and people with intellectual disabilities. If a state prosecutor wishes to challenge the Supreme Court by seeking the death penalty of a minor, for example, the president’s executive order empowers the U.S. Attorney General to support that effort.
Immigrants are more likely to be sentenced to death
Across the U.S., there are about 2,250 inmates on death row. Less than 5% of those are foreign nationals: 103 are on death row, with 68 being nationals of Latin American countries.
According to Mark Warren, a human rights researcher with the Death Penalty Information Center, although immigrants are less likely to commit serious criminal offenses than U.S.-born citizens, some research suggests that immigrant defendants charged with murder disproportionately face the death penalty.
“There is some data to indicate that foreign nationals facing potential capital charges are more likely to go to a death penalty trial,” Warren explained.
One study conducted by the Death Penalty Information Center found that more than 80% of intellectually disabled defendants sentenced to death are persons of color and foreign nationals.
A study by the University of Nebraska found that white jurors were more likely to sentence someone to death if they were Latino than if they were white.
Immigrants’ rights to consular notifications are regularly violated
Of the 140 cases Warren documented of foreign nationals on death row in 2024, only three received consulate notifications. The 1963 Vienna Convention on Consular Relations (VCCR) requires that host countries provide consular notification and access by host countries to foreign nationals who are arrested or detained. When a foreign national is arrested, having access to their nation’s consulate is vital as the consulate can inform them of their rights, assist with legal help and notify their family.
Yet, according to the Death Penalty Information Center, of the 34 immigrants who have been executed in the United States since 1976, only one was informed of their rights under the Vienna Convention. Many immigrants are not aware of that right nor are they informed of it by law enforcement.
The International Court of Justice (ICJ) and the Inter-American Commission on Human Rights both found that the United States is violating international law in death sentence cases involving foreign nationals by failing to comply with the terms of the treaty.
“It’s so rare that there has been compliance with the treaty obligations that it’s almost insignificant,” said Warren.
What’s most troubling to Warren about Trump’s executive order is the provision that allows the Attorney General to seek the death penalty for every capital case involving an “alien illegally present in this country.”
As the Justice Department Manual is currently written, when considering the death penalty for a capital crime for a non-citizen, the Attorney General can take into account whether a Vienna Convention violation in the case of a foreign defendant has occurred.
你知道吗？非公民办理驾照时的这个错误可能会导致选民欺诈
Warren said that the executive order could mean that the Justice Department Manual will no longer have to take that into account.
“Immigrants are more vulnerable just as any American abroad would be who is facing serious charges and possible capital punishment because they are not familiar with the justice system, they may not speak the language, they are far from home,” he said.
“So it becomes almost a foregone conclusion that most foreign nationals facing a capital crime are more likely to be sentenced to death.”
