Stephen Frisby

In July 2021, Attorney General Marrick Garland declared a moratorium on federal executions—a step that even the Obama administration had been unwilling to take—and ordered a review of the federal execution protocol. Garland took no action on the ordered review for over three years. Then, on January 15, 2025, mere days before being ousted as Attorney General, Garland issued a memo directing “the Director of the Federal Bureau of Prisons to rescind the addendum to the execution protocol of July 25, 2019, which provides for lethal injection of pentobarbital”—a drug used in administering the single drug lethal-injection protocol—and continuing the 2021 moratorium on the federal death penalty. 

But within hours of his inauguration, President Trump upended the Biden administration’s radical anti-death penalty policy, and along with it, Garland’s moratorium. President Trump’s executive order,  “Restoring the Death Penalty and Protecting Public Safety,” is important for several reasons.

First, the executive order recognizes the importance of the death penalty as a form of punishment for “those who would commit the most heinous crimes and acts of violence against American citizens.” It recognizes that the Biden administration and activist judges have politicized the death penalty, prioritizing their personal beliefs over the law and upending constitutionally appropriate death sentences to satisfy their personal feelings, which, the Trump administration contends, makes “a mockery of justice, and insult[s] the victims of these horrible crimes.” To remedy the Biden administration’s “mockery of justice,” the Trump administration promises that it will work to “ensure that the laws that authorize capital punishment are respected and faithfully implemented,” and to work “to counteract the politicians and judges who subvert the law by obstructing and preventing the execution of capital sentences.”

Second, the executive order instructs the Attorney General to aid states in the carrying out of death sentences by ensuring that states have access to “a sufficient supply of drugs needed to carry out lethal injection.” For years, anti-death penalty advocates have pressured pharmaceutical companies not to supply states with lethal-injection drugs. So states have had a difficult time securing the drugs necessary to carry out lethal injections. But now, by making access to these hard-to-come-by drugs easier, the Trump administration seeks to ensure that states will not have to resort to seeking similar drugs from compounding pharmacies, altering lethal-injection protocols, or adopting alternative methods of execution. Simply put, states will have easier access to safe, effective lethal-injection drugs.

Finally, the executive order instructs the Attorney General to “approve or deny any pending request for certification made by any State under 28 U.S.C. 2265.” A little-known (or at least little-discussed) provision of the Anti-Terrorism and Effective Death Penalty Act allows states to be “certified” by the Attorney General. This certification is important because it triggers certain protections for certified states when a death-sentenced petitioner files a federal habeas corpus petition. Those protections include shorter time limitations for death-sentenced inmates to file a federal habeas petition, a limited scope of review for federal courts, and forced time limits for federal courts to decide the habeas petition. In short, if the Attorney General approves a state’s request for certification under 28 U.S.C. § 2265, the time between a death sentence and execution will be shortened significantly. 

Two states have requested certification under 28 U.S.C. § 2265–Arizona and Texas. On June 19, 2018, then-Attorney General Jeff Sessions requested more information from Texas. On January 17, 2025, Garland denied Arizona’s request for certification. 

President Trump’s executive order sets the stage for massive steps to be taken in furtherance of the administration of justice, ensuring that states’ efforts to carry out the death penalty are not thwarted by the federal government. With the Trump administration’s favorable view of the death penalty, states that use the death penalty should consider requesting certification under 28 U.S.C. § 2265 to “fast track” the arduous death-penalty appeals process.