Attorney General Jeff Sessions released a memo Wednesday that directs federal prosecutors to seek the death penalty “in appropriate cases” and cited a law allowing the death penalty for drug kingpins.
Sessions said in his memo that drug overdoses killed more than 64,000 Americans in 2016. “In the face of all of this death, we cannot continue with business as usual,” he said.
Sessions listed four laws that prosecutors can use, including 18 U.S.C. § 3591(b)(1), which authorizes the death penalty for people who deal in extremely large quantities of drugs. The other statutes cited by Sessions punish murder in a racketeering offense, the use of a firearm resulting in death during a drug trafficking crime, and murder in furtherance of a continuing criminal enterprise.
A fact page and a post at the Death Penalty Information Center website say the drug kingpin law authorizes the death penalty even if no murder occurs. It’s unclear if the statute would survive a challenge under Kennedy v. Louisiana, a 2008 Supreme Court decision that held the death penalty for child rape is unconstitutional in cases that do not result in death, according to the DPIC website.
But Columbia University law professor Jeffrey Fagan notes that nearly all of the statutes in Sessions’ memo refer to murders by drug kingpins in the course of pursing their criminal enterprise. “If you follow the trail of statutes in that memo, they still all lead back to death penalty eligibility only for an underlying murder,” he tells the ABA Journal in an email.
President Donald Trump backed the death penalty for drug dealers in a speech earlier this month. Trump said people who kill just one person get the death penalty, while drug dealers can kill 5,000 people with drugs. “These people are killing our kids and they’re killing our families, and we have to do something,” Trump said. He made similar statements in a speech this week in New Hampshire.
Fagan says Trump would apparently like to eliminate the murder limitation. “But he recognizes that this would take a major restructuring of long-established jurisprudence on capital punishment (which is restricted to murder) and a vast normative shift in public sentiment,” Fagan says. “At the moment, support for capital punishment is barely over 50 percent, (and less when the option of life without parole is included in the survey). So it’s hard to imagine how adding major drug dealers would shift popular sentiment.”
Writing at his blog Sentencing Law and Policy, Ohio State University law professor Douglas Berman said he didn’t see Sessions’ directive as a big departure from “business as usual,” referring to Sessions’ words in his directive. Berman said his sense has always been that the feds will pursue “capital punishment in appropriate cases,” especially for intentional murders in conjunction with drug dealing.
“The big practical question that follows, of course, is whether and when more federal capital prosecutions will be forthcoming and in what kinds of cases,” Berman wrote.