After a staggering two-decade decline dating back to the turn of the millennium, the American death penalty is experiencing a notable resurgence. Executions in 2025 climbed to their highest mark in over a decade (forty-seven nationwide), more than 150% of any year since 2015 (twenty-eight nationwide) and the highest total since 2009. Perhaps the most dramatic aspect of the death penalty’s resurgence is the emergence of significant political energy and advocacy in support of the death penalty, especially compared to the relative dormancy of such energy in the preceding decades.

In this Article, we address how opponents of the death penalty might advocate for limitation or abolition in the present moment of resurgence. Even in a period of resurgent interest in pursuing capital prosecutions and executions by the federal government and some states, there remain potent paths of resistance. We identify approaches rooted in values and arguments that appeal to right-leaning supporters of capital punishment. These paths are not hypothetical or wishful; rather, in what follows, we survey some recent developments on the ground that demonstrate the proven efficacy of various modes of advocacy that have moved political actors from within conservative paradigms.

On January 20, 2025, President Trump signed Executive Order 14164, Restoring the Death Penalty and Protecting Public Safety. This Order directs the Attorney General to seek the death penalty for any “capital crime committed by an alien illegally present in this country,” and specifies the mandate applies “regardless of other factors.” A few months later, republican senators introduced the “Justice for American Victims of Illegal Aliens Act,” which would codify the Order. The Act would add a seventeenth aggravating factor to the federal capital punishment statute for homicide and provides slightly more detail than the Order.

The Order and Act bring together areas of law that have, to date, remained separate: capital punishment law and “crimmigration law.” This Article considers the Order from each of these perspectives and reveals how it disrupts established trends and norms in both areas of law. It then examines multiple ways the Order violates core constitutional protections and concludes that any court applying well-established legal precedent should easily find it to be unlawful. The Article ultimately argues, however, that even if the Order is never deployed, it remains deeply concerning. Its most far-reaching consequence is not in its direct application; indeed, given
that immigrants are significantly less likely than citizens to commit crimes, including violent crimes, the Order may never be used. Rather, the Order’s true, and truly concerning, impact lies
in the message it sends about the devaluation of immigrant lives.

By connecting the Order’s mandate to other governmental policies that actively endanger the lives of immigrants, the Article situates the Order as part of the Administration’s overarching necropolitical agenda against noncitizens. In light of this Symposium’s focus on abolition advocacy, the Article concludes by considering the possibility of connections between the quest for death penalty abolition and other movements to abolish policies, procedures, and institutions that facilitate death at the hands of the government, including the movement to abolish Immigration and Customs Enforcement.

In 2025, the death penalty experienced a renaissance of sorts. There were forty-seven executions, the highest in over a decade. Capital punishment has expanded from one method of execution to four, adding firing squads, electrocution, and nitrogen hypoxia to lethal injection. And the political rhetoric calling for expansions of the death penalty, both in executive orders and public comments, is notable in both its intensity and frequency.

What is equally notable, however, is the scant number of new death sentences in 2025—twenty-three. Amidst all the executions and the bluster surrounding the death penalty, juries imposed only twenty-three death sentences in 2025. This continues a decade long trend. Indeed, juries have imposed less than three hundred death sentences in the past decade, and just over one hundred death sentences in the past five years.

In light of this changing landscape, this Article argues for a rethinking of the way to best pursue the abolition of the American death penalty. Specifically, it focuses on shifts in the past decade, and even the past year, to suggest a strategic path forward, with the overall conclusion that the death penalty remains an institution that is dying, albeit slowly, in the United States.

Different lenses focus on distinct aspects of the same legal problem. Take the death penalty or, more specifically, methods of execution. Through a doctrinal lens, one might ask whether a particular method of execution creates a risk of excruciating pain incompatible with the Eighth Amendment’s prohibition of “cruel and unusual” punishments. Through an originalist lens, we consider the original meaning of the words “cruel” and “unusual.” Through a proceduralist lens, a key question is when a trial court may issue a stay of execution to permit closer judicial examination of an execution procedure (or some other alleged legal deficiency). And so on.

This Article focuses on the administrative-law lens, which highlights crucial and underappreciated considerations in method-ofexecution disputes. Though many courts—including the Supreme Court of the United States—neglect administrative-law concerns in method-of-execution cases, these concerns get to the heart of the legal problem. Both Congress and state legislatures, by necessity, delegate the design and implementation of their execution protocols to administrative agencies. However, those agencies, often state departments of corrections (“DOCs”), usually lack sound administrative procedure.

Corinna Barrett Lain *

In the absence of a federal statute criminalizing domestic terrorism, the United States turned to an unlikely proxy: the death penalty. This Comment argues that capital punishment is used to define domestic terrorism, particularly when statutory tools cannot capture white supremacist attacks. Although former President Biden commuted most federal death sentences to life imprisonment without parole, three individuals whose attacks met the legal definition of domestic terrorism were excluded from clemency. Examining several cases from Timothy McVeigh to Luigi Mangione reveals a trend of defendants whose crimes meet the legal definition of domestic terrorism receiving the death penalty, even when they were never labeled terrorists. But this reliance on the death penalty is deeply flawed: public perception of terrorism is skewed, the government risks creating martyrs rather than preventing radicalization, and selective use of the death penalty for an inherently political crime takes away the state’s credibility to use such a punishment.

This Comment looks at why society views terrorism as uniquely deserving of the death penalty. It argues for the consistent application of the terrorism label at the outset of prosecution to enable counterterrorism resources to be allocated realistically. This would also provide public condemnation of violence against the state, rather than relying on the spectacle of execution to symbolically deliver justice.