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March 21, 2018

AG Jeff Sessions issues memo to "strongly encourage federal prosecutors ... when appropriate" to pursue "capital punishment in appropriate cases"

United States Attorney General Jeff Sessions this morning issued a short "Memo to U.S. Attorneys on the Use of Capital Punishment in Drug-Related Prosecutions." Here is the full text of this memo:

The opioid epidemic has inflicted an unprecedented toll of addiction, suffering, and death on communities throughout our nation.  Drug overdoses, including overdoses caused by the lethal substance fentanyl and its analogues, killed more than 64,000 Americans in 2016 and now rank as the leading cause of death for Americans under 50.  In the face of all of this death, we cannot continue with business as usual.

Drug traffickers, transnational criminal organizations, and violent street gangs all contribute substantially to this scourge.  To combat this deadly epidemic, federal prosecutors must consider every lawful tool at their disposal.  This includes designating an opioid coordinator in every district, fully utilizing the data analysis of the Opioid Fraud and Abuse Detection Unit, as well as using criminal and civil remedies available under federal law to hold opioid manufacturers and distributors accountable for unlawful practices.

In addition, this should also include the pursuit of capital punishment in appropriate cases.  Congress has passed several statutes that provide the Department with the ability to seek capital punishment for certain drug-related crimes.  Among these are statutes that punish certain racketeering activities (18 U.S.C. § 1959); the use of a firearm resulting in death during a drug trafficking crime (18 U.S.C. § 924(j)); murder in furtherance of a continuing criminal enterprise (21 U.S.C. § 848(e)); and dealing in extremely large quantities of drugs (18 U.S.C. § 3591(b)(1)).  I strongly encourage federal prosecutors to use these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation.

Notwithstanding AG Sessions saying in the first paragraph of this memo that "we cannot continue with business as usual," the last paragraph of this memo strikes me not too much of a change to business as usual.  My sense has always been that the feds will pursue "capital punishment in appropriate cases," especially for intentional murders in conjunction with drug dealing.  As this DPIC page highlights, one of three modern federal executions was of Juan Raul Garza, "a marijuana distributor, [who] was sentenced to death in August 1993 in Texas for the murders of three other drug traffickers."  And the DPIC federal death penalty page also suggests as many as 14 of the 61 persons already on federal death row are there for drug-related killings.

So it seems that federal prosecutors have long used "these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation." But I suppose it is still pretty significant for the US Attorney General to formally and expressly "strongly encourage federal prosecutors to use" various capital punishment statutes to combat our nation's drug problems.  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.

Prior related posts:

March 21, 2018 at 12:05 PM | Permalink


I noted this in a previous comment but to repeat: Kennedy v. Louisiana left open some unclear power to execute against "drug kingpins," citing it among things done "against the state" (like treason) as compared to individuals. This would apply even when there was no specific person killed as a result of the crime being convicted.

I wonder if lower courts dealt with this any.

Posted by: Joe | Mar 21, 2018 2:30:13 PM

Prof. Berman and I are arguing about forseeabiliy. These are not real numbers but they could be. If you have 1000 heroin addict customers, 10 will die by overdose each year. The publication and publicity of such a study should be seen as Notice. It means a distributor now knows he is killing 10 people. He should be liable to the death penalty for seria9 murder. That liability is not from future forecasting but from past experience and from a count.

Posted by: David Behar | Mar 21, 2018 3:18:33 PM

I deride the tort bar. They can serve to supress enteririses. Addicts shoud be abe to sue for product defects when carfentanyl has made it necessary to Narcan them. That is not what they paid for when buying heroin. Because heroin is illegal, a statute should permmit such claims.

Posted by: David Behar | Mar 21, 2018 3:36:03 PM

I don't quite get this. Whether to pursue the death penalty is ultimately the decision of the Attorney General himself. Local US Attorneys make a recommendation but it is only that. Moreover, under DoJ regulations, the A.G. reviews every case in which a federal defendant could be charged with a capital offense, not just those in which he actually is charged with a capital offense. So he is only exhorting himself to seek capital punishment in appropriate cases.

Posted by: Michael Mannheimer | Mar 21, 2018 9:31:00 PM

The release suggests the memo has a certain promotional purpose.

But, it also might be the case that Sessions is telling the local DAs to be more enthusiastic here about using the death penalty in the first instance, without him needing to push them to do so.

Posted by: Joe | Mar 21, 2018 10:37:05 PM

Japan may execute 13 cult members for subway gas attack.


Japanese death penalty is like a Toyota, reliable. The American death penalty is like a Yugo, a piece of crap.

Posted by: David Behar | Mar 22, 2018 4:07:50 AM

Duterte, a lawyer, is doing a good job of controlling drug abuse in his country. Meanwhile, the American lawyer is not doing such a good job, with 10's of thousands of overdose deaths. Duterte is on the side of the victim. The American lawyer profession, not so much.


Posted by: David Behar | Mar 22, 2018 4:44:13 AM

I was addicted to opioids before it was trendy.I didn’t plan or want to be an addict.Treatment is what they need not threats.This could be for show but it is sad & enfuriating at the same time. One the best things I’ve ever done ,other than being a dad,is that I got off pain pills.

Cannabis is an alternative that works for some people & the states are successful , that have allowed medical marijuana & even recreational as well.Trump,Sessions & the HHS sec have all recently made statements that display their lack of knowledge on cannabis.A few days ago a study released showing that marijuana kills cancer cells.There is no excuse for any of the three to be so uninformed.They have access to more info than maybe anyone in the world.

Posted by: Randy | Mar 24, 2018 2:41:57 PM

Randy. I recently took a course on medical marijuana. I can now explain how endocannabinoids can modify the endorphin system. I can now explain why marijuana is on the list of remedies for the opioid addiction crisis.

Its federal prohibition is an extreme and unlawful quackery regulation. It turns out, I knew only 10% of what people need to know about it. Its testing and benefits were described in 1850, and endorsed by William Osler in his medical textbook of 1913.

Its DEA Schedule I classification and exclusion from interstate commerce is quite unlawful. This exclusion precludes its use of the banking system. That this prohibition is motivated by government jobs should be criminalized.

I have legal standing to sue the DOJ, and may begin to shop the claim. If such a claim accelerates the firing of little weasel, Jeff Sessions, so much the better. He can get a prescription for medical marijuana, if he is traumatized by it.

Posted by: David Behar | Mar 25, 2018 1:05:49 PM

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