Immigration Article of the Day: Capital Punishment, Crimmigration, & The Necropolitical Agenda Against Noncitizens by Erin Collins
Capital Punishment, Crimmigration, & The Necropolitical Agenda Against Noncitizens by Erin Collins, 60 U. Rich. L. Rev. 959 (2026)
Abstract
On January 20, 2025, President Trump signed Executive Order 14164, Restoring the Death Penalty and Protecting Public Safety. This Order, one of twenty-six signed on Inauguration Day, 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.” In other words, the Order requires federal prosecutors to set aside their duty to determine what punishment comports with justice in an individual case, and instead seek the authority to kill anyone who is within the country without lawful status upon commission of a capital crime—even if they would not make the same recommendation for a similarly situated person with lawful status. And it encourages state attorneys general to adopt the same policy.
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. First, it provides a definition of “illegal alien”: a noncitizen who “came to, entered, or remains in the United States in violation of Federal law.” Thus, despite the drafters’ claims that the Bill is necessary to address “[v]iolent predators who enter our country illegally,” it applies to people who are not citizens and who, for example, overstay a valid visa. Second, the Bill authorizes the death penalty only when the victim of the crime is a U.S. citizen.
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.
