This week, Attorney General Jefferson Beauregard Sessions III sent a memo to prosecutors urging them to “seek capital punishment for certain drug-related crimes.” The letter follows Donald Trump’s comments praising the Philippines’ authoritarian leader Rodrigo Duterte, who is believed to be engaged in a campaign of extrajudicial killings of suspected drug dealers.
At least as a constitutional matter, much of the memo is uncontroversial under existing Supreme Court precedents. However at least one line of the memo explicitly urges prosecutors to push constitutional limits, potentially injecting capital punishment into an entirely new area of the law. (Unless noted otherwise, this piece uses the word “constitutional” to refer to a law that would survive constitutional scrutiny in the Supreme Court — a separate question from whether the law comports with an allegedly objective reading of the Constitution.)
If prosecutors actually do decide to bring capital cases against drug offenders, you can expect to hear the words “Kennedy v. Louisiana” quite a bit. Kennedy was a 2008 Supreme Court decision holding that, as a general matter, “the death penalty should not be expanded to instances where the victim’s life was not taken.” But Kennedy also included a somewhat cryptic line that could open the door to meting out death sentences to drug criminals.
The prohibition against executing offenders who do not kill, Justice Anthony Kennedy (no relation to the defendant in Kennedy) wrote, was limited to “crimes against individuals.” Kennedy did not address “crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.”
Most federal laws that permit drug offenders to be sentenced to death involve homicides. One, for example, involves drug traffickers who murder another person with a gun. Another involves murder “in furtherance of a continuing criminal enterprise.” These are examples of the sorts of crimes that can be punished with the death penalty under Kennedy.
But Sessions’ memo also advises prosecutors to bring capital cases under a federal law dealing with drug traffickers who deal “in extremely large quantities of drugs,” but who do not necessarily commit homicide in the process.
To be sentenced to die under this provision, a defendant would have to be “the principal administrator, organizer, or leader” of a criminal enterprise or “one of several such principal administrators, organizers, or leaders,” and would have to commit a drug offense involving massive amounts of illegal drugs — $20 million worth, or about 60 kilograms of heroin, or 300 kilograms of cocaine.
A capital prosecution under this provision of the law could squarely present the question of whether a conviction for “drug kingpin activity,” to use the words of Kennedy, can justify a death sentence even when the defendant was not convicted of homicide.
What makes this a difficult legal question is that Kennedy imagines death sentences being doled out to individuals who commit “offenses against the State,” but it is somewhat odd to lump drug crimes — even massive drug crimes — in with offenses such as treason, espionage, and terrorism.
Treason, espionage, and terrorism are all political crimes — that is, they are crimes committed for the purpose of undermining the government or advancing political goals through criminal means. Drug trafficking, by contrast, is normally a crime of avarice. People don’t typically sell heroin because their goal is to bring down the United States government, intimidate it into changing its policies, or advance the goals of America’s enemies. People normally sell illegal drugs because they want to make money.
To be sure, there are some examples of drug kingpins whose activities can fairly be described as “offenses against the State.” In Mexico, for example, drug cartels have assembled massive private armies that rival the power of the nation itself — in some cases even recruiting elite soldiers directly from the ranks of the Mexican army. The infamous drug lord Joaquin “El Chapo” Guzman allegedly ordered attacks on government buildings to “send the gringos a message.” This sort of activity is analogous to treason, terrorism, or other political crimes, and likely would qualify as an offense “against the State” under Kennedy.
But the Sessions memo may contemplate capital prosecutions against drug kingpins who are not engaged in such political crimes. That is a much harder reach under Kennedy — at least if the Supreme Court was serious when it said that death sentences should be reserved for people who kill and people who offend against the State.
It should be noted that Kennedy was a 5-4 decision, so this entire discussion may be moot if Donald Trump has the opportunity to replace a member of the majority in that decision. If the Court’s current majority remains intact, however, Sessions’ memo could create a very difficult legal dilemma — just how political must a crime be to qualify as an offense against the nation itself?