In December 2024, Joe Biden, then in the last weeks of his presidency, made a final move to block the incoming Trump administration from resuming the execution of federal prisoners. With his clemency power, Biden transmuted the capital sentences of nearly all the men on federal death row to life in prison without the possibility of parole. The sense at the time was that he had, on capital punishment at least, checked Trump. But over the past year, just how protected some of those men are from execution has become increasingly uncertain.
At the courthouse in Conway, South Carolina, solicitor Jimmy Richardson, the county prosecutor, announced in September that he would seek a second death sentence for one of the resentenced men, Brandon Council. Conway is a small town outside Mrytle Beach, with just under 30,000 residents. (Of the 40 men on death row last year, three cases were out of Conway.) In 2017, Council walked into CresCom Bank and shot and killed both the teller, Donna Major, and her colleague, Kathryn Skeen. He stole $15,294 and a sedan and was arrested two days later. Charged and sentenced to death by a federal jury once, Council now faces, under the jurisdiction of South Carolina, the unusual prospect of a second death sentence for the same crime.
That Biden commuted those federal sentences at all was somewhat surprising. He had campaigned on ending the death penalty, but once in office he sat on the issue, only turning to it a month after Donald Trump had won his second term. He left three men on death row, all three convicted of mass murder on federal hate crimes and terrorism charges.
Biden’s commutations seemed to infuriate Trump. Trump had allowed 13 people to be executed in the last seven months of his first term, overseeing more executions than any president in the preceding 124 years—since Grover Cleveland’s presidency. Trump wrote on Truth Social in response to Biden’s decision that, once in office, he would direct the Justice Department to “vigorously pursue the death penalty to protect American families and children.” Much like the bombing of small boats, masked agents, and chartered flights to foreign prisons, execution is another stage for the administration’s strongman story of protection against an abstract, regenerative threat. Expanding capital punishment, a refrain of the 2024 campaign, and the commutations, in particular, were the subject of one of the first executive orders on the day Trump came into office again. More executions were necessary to “restore order.”
As they’d already been tried and convicted in federal court, the men whose sentences Biden commuted were, on double jeopardy grounds, slightly out of the Trump administration’s reach. But not entirely. In the January order, titled “Restoring the Death Penalty and Protecting Public Safety,” Trump announced that his attorney general would “evaluate whether these offenders can be charged with state capital crimes and recommend appropriate action to state and local authorities.”
Prosecutors in Catahoula Parish, Louisiana, a rural parish of 9,000 people, filed a first-degree murder charge in April against one of the resentenced men, Thomas Steven Sanders. Sanders was indicted on state charges for the 2010 kidnapping and murder of 12-year-old Lexis Roberts, whom he drove across the country before killing in the parish. The charge will allow the state to seek the death penalty.
In May, officials in Saint Lucie County, on the lower east coast of Florida, announced their intention to seek another death sentence for Daniel Troya and Ricardo Sanchez Jr. Both men were sentenced to death in federal court for the 2006 murder of two small boys on the Florida Turnpike. The brothers, 3 and 4, were shot to death along with their parents on the side of the highway, part of a cocaine-smuggling dispute. With Biden’s commutation, they are both serving life in prison without parole.
There is a bizarre quality to the doubling in these second cases; the defendants may very well receive the same sentence twice for the same crime. But the Supreme Court has recently affirmed a legal window through which these cases can proceed. The same year that Council received his original sentence, the court upheld the “separate sovereigns” exception: Prosecution in the state and federal courts for the same crime does not violate the double jeopardy clause. The Fifth Amendment bars the government from prosecuting someone more than once for the same crime. Under the separate sovereigns exception, however, federal and state governments are distinguished as distinct entities, each allowed separately to prosecute for a particular crime.
Limits in the mechanics of federalism mean not all the men that Biden moved off death row are eligible for new state sentences. Fifteen of the 37 committed crimes in states that have abolished the death penalty or have moratoriums on execution. Eleven others committed the crimes they were sentenced for on federal lands, in national parks, or in federal prison. In those cases, states would first have to prove jurisdiction to bring charges, an added challenge that is mostly prohibitively difficult to surmount. That leaves 11 potential cases in which defendants could again face execution.
The St. Louis Circuit Attorney’s Office announced earlier this year that it would not pursue state charges for two of those men, who were convicted in the death of a security guard during a 1997 bank robbery, Billie Allen and Norris Holder. Added charges, the office said, would not “enhance public safety.”
And in Tarrant County, Texas, the local district attorney determined the case of a man convicted in its jurisdiction, Julius Robinson, was “not viable for capital murder prosecution” in the county.
Prosecutors did not respond to a request for comment on whether state cases will be renewed against Brandon Leon Basham and Chadrick Evan Fulks, in South Carolina; Len Davis, in Louisiana; and Rejon Taylor, in eastern Tennessee. Davis was moved earlier this year to ADX, the supermax prison in Florence, Colorado, where prisoners are kept in almost complete isolation with very little contact with the outside world and all exercise restricted to caged “dog runs” a few feet wide. The prison, according to Bureau of Prisons guidelines, is meant for people “who have demonstrated an inability to function in a less restrictive environment without being a threat to others.” But Trump included moving the clemency recipients to the notoriously brutal prison in his early executive order, reversing previous Bureau of Prisons steps to assign the men’s prison locations along guidelines set by federal law. The DOJ said it plans to move the rest of the 37 men to ADX early in the new year.
Richardson obtained fresh indictments in August and formally told the court on September 30 that his office will ask for a death sentence if Council is convicted of murder.
In 2019, South Carolina dropped state murder, armed robbery, and other charges against Council after he was found guilty of similar charges and sentenced by a federal jury. Richardson told reporters in September that the state had intentionally dropped those initial charges so as to be prepared for any possible changes to the federal sentence. “We dismissed them so that our powder could be dry if we needed them.”
Federalism here is the workaround. In a February memo, Pam Bondi directed the Federal Bureau of Prisons to work with states to ensure they had “sufficient supplies and resources to impose the death penalty,” including securing lethal drug supplies and transferring federal inmates to local authorities. Council was moved from federal prison in Terre Haute, Indiana, the site of the government’s execution chamber, to a detention center near Mrytle Beach in the fall. He declined his right to appear in court to hear his charges, and a not guilty plea was filed on his behalf. His defense requested another trial. According to the Bureau of Prisons database, he is now back in federal custody in Terre Haute.
Even after Trump directed states to seek to execute these men, and with the court’s clear confirmation of the legal grounds, there was a general perception that renewed capital cases for men already in federal prison for life were illogical and so unlikely. Robin Mayer, executive director of the Death Penalty Information Center, told McClatchy News shortly after Trump’s executive order that she didn’t expect to see prosecutors seek state death sentences for any of the 37 men with commuted sentences. Among other reasons, capital cases cost a massive amount of money for the local government involved, even compared with life-without-parole cases.
“I don’t think that was on anybody’s mind or intention until President Trump’s executive order came in,” Maher said, a year later. The president, she said, “has no authority in the states but he was signaling very clearly to political allies that that’s what he wanted to see happen.”
“It doesn’t make sense on any other level except from a sort of political performative perspective,” she said.
