Unequal Before the Law: How Trump’s Death Penalty Order Codifies Dangerous Speech

President Donald Trump’s Executive Order 14164, one of 26 he signed on the first day of his second term, did much more than reinstate federal executions. Trump directed the Attorney General to seek the death penalty in every case in which a “capital crime” is committed by an undocumented migrant. By tying the harshest punishment the state can impose to the identity of the accused, the order signals that some people—by virtue of who they are—deserve to be killed. This is not merely an expansion of policy, it is dangerous speech that can increase the risk of intergroup violence.

Nowhere else in the contemporary U.S. legal system does one’s identity make one worthy of a more severe punishment. It is true that members of certain racial, gender, or socioeconomic groups are often sentenced more harshly than others, but such unjust disparities are the result of bias and systemic discrimination, not explicit law. Attorneys General and prosecutors have thus far always had discretion on whether to seek the death penalty.

Under the new executive order, that is no longer the case. When an undocumented person is accused of a capital crime, the Attorney General is explicitly instructed to seek the death penalty—regardless of other circumstances. The order states:

In addition to pursuing the death penalty where possible, the Attorney General shall, where consistent with applicable law, pursue Federal jurisdiction and seek the death penalty regardless of other factors for every federal capital crime involving (i) the murder of a law-enforcement officer; or (ii) a capital crime committed by an alien illegally present in this country.

In effect, the order is intended to transform immigration status into a sentencing factor—one that mandates the harshest punishment available under U.S. law. And by mandating the death penalty for undocumented migrants, while permitting prosecutorial discretion in comparable cases involving U.S. citizens, the president would have the American public believe that migrants pose a unique threat and are less entitled to the legal protections extended to others. Notably, the order singles out only one other instance in which the death penalty should always be sought – when a law enforcement officer is murdered. By grouping these two, the order draws a moral equivalency between them and primes the public to view crimes committed by undocumented people as especially heinous, thereby legitimizing the unequal application of justice.

It is virtually unprecedented in American law to explicitly tie a person’s identity to their sentence, with an exception being the deeply discredited legacy of specific legal codes pertaining to Black people in the pre- and post-Civil War South. Those laws have been widely condemned as fundamentally unjust. In the pre–Civil War South, legal codes imposed vastly unequal penalties based on race: killing an enslaved person was often treated as a property offense punishable by a fine, while enslaved people could be executed for acts such as striking a white person, running away, or repeated theft.

After emancipation, these racial hierarchies were preserved through so-called “Black Codes.” Across southern states, the laws often imposed harsher penalties on Black people than on white people, sometimes explicitly and often through practice. In Mississippi in 1865, for instance, both Black and white people could be prosecuted for vagrancy, but only Black individuals could be “hired out” to work off fines they couldn’t afford to pay—a practice that effectively recreated forced labor. Despite this history, the Supreme Court has always maintained that “purposeful discrimination” is unconstitutional – although, the court has upheld sentences even when presented evidence of disparate impact.

Trump’s executive order doesn’t merely echo the systemic bias that the courts have long struggled to address—it openly requires it. It is an attempt to codify identity-based punishment not as an unfortunate byproduct of flawed systems, but as an explicit goal of government policy. The order mandates the death penalty for undocumented immigrants accused of killing U.S. citizens, bypassing the principle of individualized sentencing and assigning the most severe possible penalty based on immigration status.

The executive order should be read in the context of the Trump’s decade-long campaign to demonize undocumented migrants as violent criminals, a narrative that he intensified leading up to his second term. During his first presidential campaign, Trump referred to migrants as “rapists” and carriers of disease, while claiming they are “poisoning the blood of our country.” He has consistently characterized migration across the southern border as an “invasion” and has falsely blamed migrants for the fentanyl crisis, even though the vast majority of fentanyl enters the country through legal ports of entry and is typically trafficked by U.S. citizens. He has also repeatedly spotlighted isolated and tragic cases—such as the murder of Laken Riley, a young nursing student killed by an undocumented migrant—as emblematic of a broader crisis, despite no statistical basis for such claims. In fact, Trump’s rhetoric ignores a well-established body of research showing that undocumented immigrants are less likely to commit crimes than native-born citizens.

Trump and his supporters use these false claims to portray immigrants as a unique criminal threat, one worthy of a new category of crime, which Trump calls “migrant crime.” At a rally in Richmond, VA in March 2024, Trump declared: “This category is turning out to be worse than any crime we’ve ever had in this country.” His rhetoric has now found expression in state policy.

The executive order reinstating the federal death penalty is just one of several actions intended to strip undocumented people of legal protections and militarize immigration enforcement. Other executive orders have deployed federal troops to the southern border, limited access to asylum, and expanded fast-track deportation without due process. Taken together, these actions form a coherent agenda—one that treats undocumented migrants not as people with rights, but as threats to be neutralized.

These policies do not just arise from Trump’s rhetoric; they advance and validate it. The orders give xenophobic disinformation the appearance of the force of law, providing a sense of legitimacy to narratives that are both empirically false and dangerous. Indeed, in May, several Republican senators introduced the Justice for American Victims of Illegal Aliens Act, which, if adopted, would make Trump’s executive order the law of the land. The senators explained that their act would “[a]mend the Criminal Code to create a new aggravating factor for illegal immigrants who murder U.S. citizens” and “[h]elp direct juries to administer the death penalty when an illegal immigrant murders a U.S. citizen.”

At the Dangerous Speech Project, we track language that increases the risk that its audience will condone or participate in violence against a targeted group. Trump’s recent executive orders, and the senators’ proposed bill, are brimming with dangerous speech. By declaring that undocumented migrants are singularly worthy of the most severe punishment the U.S. legal system can mete out, the president’s words have increased the risk of violence against them not only by the state, but by the public.

Support for the death penalty has been steadily declining across the United States for decades. Many Americans now favor alternatives like life imprisonment, and 23 states have moved to abolish capital punishment altogether. In that context, Trump’s executive order—tying the death penalty to immigration status—has the potential to not only reverse legal discretion but also public opinion. When the death penalty is framed not just as a punishment for certain crimes, but as a necessary tool to deal with a supposedly dangerous group, it could reignite public support for capital punishment—especially among those already primed by years of fear-based rhetoric. Additionally, coming after a decade of dangerous speech targeting migrants, the executive order could lead to increased support for violent and repressive state action against migrants, or even for acts of violence by individuals who feel deputized by the government’s example.

This is the essence of dangerous speech: it lowers the perceived moral standing of a group and fosters the belief that violence against them is justified, even necessary. When such speech comes from a political leader, it carries more weight. Leaders are not simply private individuals expressing opinions; they help shape the boundaries of acceptable discourse. And when this speech comes from the president, in the form of an executive order, it carries an additional veneer of legitimacy.

Dangerous speech is not always loud. It need not call explicitly for violence. Often, it is more subtle, coded into language that demonizes whole groups of people. Or it can take a more bureaucratic tone. Regardless of whether there is a direct call for violence, the effects of such language are no less profound. When the government itself attempts to codify a distinction between who may live and who must die based not only on their actions, but on their identity, it reinforces the conditions in which violence becomes permissible against members of that group.

The death penalty is a grave matter. So is the language politicians use to justify it. In the case of Trump’s executive order, the danger lies not only in the policies it would enact, but also in the message it sends: undocumented migrants constitute a threat so great that they are more deserving of the death penalty than others. Therefore, the executive order is more than a legal directive. It is a state-led narrative of fear—one that could have violent consequences.

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