Two days before Christmas last year, President Joseph R. Biden Jr. commuted the sentences of nearly all prisoners on federal death row, sparing the lives of 37 men. Among them was Brandon Council, who had been convicted of killing Donna Major, 59, and her co-worker during a bank robbery in Conway, S.C., in 2017.
Both women’s relatives were furious. “Absolutely awful,” Ms. Major’s daughter, Heather Turner, said in an interview this month. “It tore apart last Christmas.”
This year, though, Ms. Turner says she is feeling hopeful that justice — Mr. Council’s execution — may ultimately be attained.
President Trump, who criticized Mr. Biden’s decision last year and told the commuted inmates to “go to hell,” issued an executive order in January encouraging state and local prosecutors to seek new charges against those inmates, which could subject them to new death sentences. The Supreme Court ruled in 2019 that defendants could be prosecuted for the same offenses in both federal and state court.
Now, prosecutors in South Carolina, Louisiana and Florida have either filed new state charges or promised to do so against at least four of the men, including Mr. Council, now 40. Their legal predicament has no modern precedent, experts said, and lawyers who oppose the death penalty say they expect a lengthy fight in the courts.
Most of the 37 men have not been newly charged in the states where their crimes occurred, and it is unlikely that they will be, either because those states don’t carry out executions or because the cases are too old.
Still, the possibility of new charges has loomed over some of them, lawyers said.
“This is completely uncharted territory,” said Brian W. Stull, a lawyer with the American Civil Liberties Union. “And it will prompt vigorous and time-consuming litigation in opposition.”
Jimmy Richardson, the solicitor in Horry County, S.C., did not respond to requests for comment. But after announcing the state murder charges against Mr. Council this past summer, Mr. Richardson told news outlets that the case was “death penalty eligible, and we try to keep it for the worst of the worst.”
Two other men, Daniel Troya and Ricardo Sanchez Jr., who were found guilty of murdering a family in 2006, await possible state charges from officials in St. Lucie County, Fla., where their case was reopened in May. The St. Lucie County Sheriff’s Office and the state attorney’s office did not respond to requests for comment.
Their cases underscore just how much the federal government’s push for more executions has trickled down to the state level. Places like Alabama and Florida have executed people at a rapid pace this year, and others, like North Carolina, are taking steps to potentially bring back executions.
Mr. Biden campaigned in 2020 on ending the federal death penalty and directed his Justice Department to issue a moratorium on federal executions. Mr. Trump’s Justice Department, on the other hand, has promised to seek the death penalty against several men accused in high-profile killings this year. In his first term, his administration carried out 13 federal executions.
The Trump administration tried to move the 37 men to a “supermax” prison in Colorado, but the A.C.L.U. sued on behalf of 21 of them to keep them in an Indiana prison. About a dozen of those not included in the lawsuit have been moved to the Colorado prison. A judge has yet to rule on the case involving the 21 prisoners. All 37 are serving life in prison without the possibility of parole.
Only three men, who each carried out notorious mass killings, remain on federal death row.
For the prosecutors and many of the victims’ relatives, the new charges are a second chance at justice.
In Conway, S.C., a college town of about 29,000, the anger over Mr. Biden’s order has been especially acute. Many there still remember grim details of the killings: how Mr. Council shot Ms. Major as she held papers in front of her face, trying to shield herself, and how he then shot her 36-year-old co-worker, Katie Skeen, in the forehead while she hid under her desk.
Mr. Council’s lawyer argued in federal court that his life should be spared because of his troubled upbringing and because he showed remorse after his arrest. Mr. Council had told the police: “I’m a doofus. I’m an idiot. I don’t deserve to live.” His lawyer did not respond to a request for comment this month.
Nathan Williams, a former prosecutor with the U.S. Attorney’s Office in South Carolina who led the prosecution of Mr. Council in federal court, said that he was stunned by Mr. Biden’s decision because it had not taken into account the “emotional cost to the families.”
Legal experts mostly agree that there is no issue with the state and the federal government prosecuting someone for the same crime. That idea, known as the dual sovereignty doctrine, was reaffirmed by the U.S. Supreme Court in 2019.
But lawyers opposed to the death penalty say that doctrine could be argued over in court when it comes to death sentences. And it is challenging to persuade a jury to sentence someone to death. New death sentences have remained near record lows since 2015, according to data from the Death Penalty Information Center, a nonprofit that collects data on capital punishment.
For a handful of district attorneys, though, the effort appears to be worth it. Bradley R. Burget, the district attorney in Catahoula Parish, La., is seeking the death penalty against Thomas Steven Sanders. Mr. Sanders pleaded guilty in his federal case to kidnapping and killing 12-year-old Lexis Roberts in 2010.
After Mr. Sanders’s death sentence was commuted by Mr. Biden, Mr. Burget said his rationale for filing new charges in April and seeking the death penalty was rooted in his belief that the killing of a child deserved the most severe punishment.
“It doesn’t matter if it’s hard work or it’s going to be difficult,” Mr. Burget said. “The biggest factor into this is, Is it the right thing to do?”
Other former presidents have commuted death sentences: Barack Obama did so for two prisoners near the end of his presidency, and Bill Clinton for one. But the sweeping scale of Mr. Biden’s commutations deeply angered those who support executions.
A majority of Americans favor the death penalty for people convicted of murder, polls have found, though that number has dipped in recent years. A Gallup poll this year found that 52 percent of Americans favored the death penalty, the lowest since the early 1970s.
Robin M. Maher, executive director of the Death Penalty Information Center, argued that the prosecutors pursuing such cases were not doing so because of public safety concerns. “These people will have no interaction with the public ever again,” she said. “They will die in prison some day an old man.” More so, she added, the trials will traumatize families all over again.
Ms. Turner, whose mother was murdered, agrees that the trauma is emotionally scarring for victims’ families. Last year, moments after she learned about Mr. Biden’s commutations, she wrote on Facebook that the pain and trauma her family had endured for years had felt “indescribable.”
In a brief interview, Ms. Turner emphasized that, for her, “justice wasn’t served.” And she is still waiting.
Eduardo Medina is a Times reporter covering the South. An Alabama native, he is now based in Durham, N.C.
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