For the first time in decades, capital punishment is a rising issue in the 2024 U.S. presidential campaign. Several of the Republican candidates are pushing for expanding the death penalty to be used as punishment for a wider array of crimes, including drug and human trafficking.

President Joe Biden, meanwhile, has argued against capital punishment and promised in his 2020 campaign to remove it from U.S. statutes. The president has not yet acted on his campaign promise, however.

Republicans, including presidential candidates Donald Trump and Ron DeSantis, have been outspoken on the campaign trail about their desires to enforce tougher criminal consequences in order to cut back on crime in the U.S. DeSantis, the current governor of Florida, signed a bill last spring that expanded the use of the death penalty in the state by ending a requirement that juries have to reach a unanimous vote to recommend capital punishment.

The bill came after a jury was unable to reach a unanimous decision on a death sentence for Nikolas Cruz, who was convicted of killing 17 people at Marjory Stoneman Douglas High School in 2018.

The Death Penalty Information Center reported that three jurors voted against the death sentence for Cruz, and he was instead sentenced to life in prison without the possibility of parole.

When signing the Florida bill into law, DeSantis said that the legislation would “ensure proper justice” and further argued in a statement that, “[o]nce a defendant in a capital case is found guilty by a unanimous jury, one juror should not be able to veto a capital sentence.”

DeSantis has also indicated a preference for increased use of violent forms of punishment when arguing for the use of deadly force against suspected drug smugglers who cross the U.S.-Mexico border, leaving them “stone-cold dead.” Trump has expressed similar sentiments on the campaign trail, arguing for the use of the death penalty for those caught trafficking drugs or children. “I will urge Congress to ensure that anyone caught trafficking children across our border receives the death penalty, immediately,” he said in a July campaign video.

Trump also reinstituted federal executions, after a 17-year hiatus, and oversaw 13 executions during the last six months of his presidency. Trump has also made statements about shooting shoplifters on the spot, both in 2020 during the protests following the murder of George Floyd and on the 2024 campaign trail.

“If you rob a store, you can fully expect to be shot as you are leaving that store. Shot!” Trump said during a September speech in California, though he did not indicate who would be doing the shooting — police or store owners.

Some legal scholars, however, argue that this type of rhetoric is dangerous as “[l]ooters and shoplifters is code for people of color,” James Densley, a criminologist and professor at Metro State University in St. Paul, Minn., told Reuters. “If you’re having political figures endorse violence, the risk is the targets will be people of color.”

Further, scholars say that the sentiment ignores the Sixth Amendment right to a fair and speedy trial with representation from a public defender to which all citizens are entitled.

The Supreme Court has previously held that the death penalty is not a violation of the Eighth Amendment, which prohibits cruel and unusual punishment. Similarly, criminal justice reform advocates argue that the death penalty also disproportionately affects people of color.

For example, the Death Penalty Information Center, a nonprofit that analyzes data on capital punishment, found that Black Americans represent 41% of death row inmates, yet they represent 13% of the U.S. population. “Tough-on-crime policies only amplify systemic racial biases present in the justice system,” Densley said.

President Biden acknowledged that fact and made campaign promises in 2020 to end capital punishment, arguing that “because we can’t ensure that we get these cases right every time, we must eliminate the death penalty.”

However, his administration has so far not taken any actions to end the use of the death penalty, other than temporarily pausing executions, which could be resumed under another administration.

A September Reuters poll found that 88% of Americans reported that crime is an important issue that would help determine their vote in the 2024 general election.

Coupled with the increased tough-on-crime rhetoric among presidential candidates, the issue of whether or not to end or expand use of the death penalty will likely continue throughout the 2024 presidential campaign.

For more background, see the March 2019 issue of Supreme Court Debates on “Dementia and the Death Penalty.”