For several weeks, President Donald Trump has insisted that he wants the federal government to execute drug dealers as a way to combat the opioid crisis. He reportedly got the idea from countries like the Philippines, where grisly extrajudicial assassinations of suspected drug criminals have become routine. The United States is not the Philippines (yet), and there is essentially no chance that Trump’s scheme will succeed. But on Wednesday, Attorney General Jeff Sessions played along, issuing a memo in which he “strongly encourage[d] federal prosecutors” to seek capital sentences “for certain drug-related crimes,” including those that do not involve murder.
Sessions’ memo might be disturbing if it weren’t so pathetic. He must know that his entreaty will not lead to a single execution, but instead—at most—to millions of taxpayer dollars spent litigating appeals. But ever since Trump turned on Sessions over his recusal from the Russia investigation, the attorney general has operated as the Justice Department’s own Devin Nunes, feverishly transforming the president’s whims and ad-libs into policy proposals with a sheen of legitimacy. While it might look good in a press release, Sessions’ plan to put drug dealers on death row is about as plausible as Nunes’ short-lived claim that the Obama administration spied on Trump.
To be fair, Sessions is much more adept at turd-polishing than Nunes has ever been. His memo cites a handful of federal statutes that allow a sentence of death, including ones governing the lethal use of a firearm in drug trafficking and “murder in furtherance of a continuing criminal enterprise.” Fair enough; in theory, homicidal dealers are certainly eligible for capital punishment. But Sessions then cites another statute that prescribes capital punishment for leaders of lucrative drug rings. His directive is clear: U.S. attorneys who bust up opioid cartels should charge their organizers under this law and seek the death penalty.
There are a few threshold problems with this policy. First, the federal government has not proved to be an especially efficient or competent executioner. The overwhelming majority of capital cases arise in the states, under state law, and virtually all executions are carried out by state officials in state prisons. Since Congress reinstated the federal death penalty in 1988, there have been exactly three federal executions. (The last one occurred 15 years ago.) Only 61 people currently sit on federal death row; their executions have been delayed by myriad appeals as well as an ongoing shortage of lethal injection drugs. U.S. attorneys don’t have much incentive to bring capital charges and don’t usually succeed when they do: Judges and juries opt for a life sentence in two-thirds of federal trials at which prosecutors seek death.
Even if a U.S. attorney somehow secured a capital conviction for a drug boss, the Justice Department would immediately encounter constitutional problems. In 2008’s Kennedy v. Louisiana, the U.S. Supreme Court ruled that the Eighth Amendment’s bar on “cruel and unusual punishments” generally forbids a sentence of death for crimes other than murder. Even the gruesome rape of a child, the court held, could not be punished by death. Society’s “evolving standards of decency” require capital punishment to be “reserved for the worst of crimes”—that is, homicide.
Kennedy might seem to irrefutably prohibit the death penalty for drug criminals. Yet in one odd passage, the court left the door open for other applications. “Our concern here is limited to crimes against individual persons,” it noted. “We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the state.”
This passage has been criticized for inexplicably lumping in “drug kingpin activity” with traditional “offenses against the state” where it’s an obvious outlier. And it doesn’t decide whether execution for such conduct would be lawful; it merely leaves the question open. Regardless, the federal statute Sessions cites is not limited to “kingpins”; it also allows a death sentence for a dealer who occupies “a position of organizer, a supervisory position, or any other position of management” in a cartel that moves huge quantities of drugs. Most “supervisor[s]” in a drug syndicate are not kingpins, even if they help move thousands of kilos each day. (Perhaps that’s why the Justice Department has never used this law to seek the death penalty.) And if the DOJ did secure a capital conviction for a bona fide opioid kingpin, it remains entirely possible that the Supreme Court would rule that our “evolving standards of decency” since Kennedy forbid his execution.
Yet you wouldn’t guess from Sessions’ memo that he is asking U.S. attorneys to achieve the impossible. His memo is dry and technical, conveying the sense of business as usual. The same is true of his March announcement proposing a ban on “bump stocks,” which allow shooters to fire more bullets more quickly. In February, following the mass shooting in Parkland, Florida, Trump asserted that he would impose a ban on such devices. “Bump stocks, we are writing that out,” the president said. “I am writing that out.” He promptly passed the buck to Sessions, directing his attorney general to draft a federal ban.
Can Sessions actually do that? Nah. Under federal law, the Bureau of Alcohol, Tobacco, Firearms and Explosives can determine that a piece of firearm equipment qualifies as a “machine gun conversion device,” at which point the DOJ can outlaw it. But the bureau had previously studied and tested bump stocks for months and concluded they do not fit into this category. Still, Sessions pushed forward with his ban, knowing full well that it is bound to fail. Sessions isn’t helping Trump to faithfully execute the law: He’s indulging the president’s fantasy.
Indeed, the attorney general has become quite adept at appeasing the president. Remember, in May, when Trump signed a mostly meaningless executive order instructing Sessions to “issue guidance interpreting religious liberty protections in federal law”? Sessions did just that in October, sending 25 pages of guidance to federal agencies. Progressive groups worried that the guidelines would legalize discrimination against women and LGBTQ people. But in reality, they’ve done basically nothing—and for good reason: Sessions doesn’t have the authority to unilaterally undermine federal civil rights law. All that fanfare amounted to little more than a prolix proclamation of principles with no apparent legal force.
Sessions has not yet gone quite so far as Nunes, concocting facts and colluding with the White House to further Trump’s favored narratives and policies. But he does appear to be scuttling in that direction. In a desperate bid to regain favor with the president, Sessions is pretending to check off the top items on Trump’s wish list. It’s a fun ride for now. But as Nunes learned the hard way, no fantasy can last forever.
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