Does the Constitution permit the death penalty for “kingpin” opioid drug dealers?

Late last year CNN reported that opioid-involved deaths (42,249) now exceed the number of deaths from breast cancer (41,000).  Both statistics are grim ones, but the losses to opioids are especially frustrating because they are much more preventable than those caused by cancer.  There are many things – to include more and better treatment options – that we need to do to address this crisis, and subjecting “kingpin” opioid dealers to the death penalty ought to be part of the solution.

The issue was raised in remarks on March 19 by the President.  Here’s what he said:

Drug traffickers kill so many thousands of our citizens every year. And that’s why my Department of Justice will be seeking so many much tougher penalties than we’ve ever had, and we will be focusing on the penalty that I talked about previously for the big pushers, the ones that are really killing so many people. And that penalty is going to be the death penalty. (Applause.)

If you look at — if you look at other countries — I’ve gotten to know the leaders of many countries.  And I won’t mention names, but you know the countries I’m talking about. I go around, “How is your drug problem?” “We don’t have much of a drug problem.” “What do you mean you don’t have a drug problem?”  “Well, we don’t have.” I say, how come?  “We have zero tolerance for drug dealers.” I said, “What does that mean?”  “That means we have the death penalty for drug dealers.  We don’t have a drug problem.”

As has been widely-reported, current law already provides for the death penalty where there has been death or injury involved in some way.  For example, the Washington Post correctly points out that the “U.S. drug kingpin law allows federal prosecutors to seek the death penalty in cases when someone is intentionally killed during a drug deal or in furtherance of a drug enterprise.”

Interestingly, the Post also reported:

There are other federal laws that could potentially allow death penalty prosecutions of “kingpins” when large amounts of money and drugs are involved, even if there has not been a killing. But no administration, Democratic or Republican, has ever pursued and secured a death sentence under those laws.

In a memorandum to U.S. attorneys on March 20 regarding the use of capital punishment in drug-related prosecutions, the Attorney General said:

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.

The last statute (“dealing in extremely large quantities of drugs”) reads as follows:

(b) A defendant who has been found guilty of—

(1) an offense referred to in section 408(c)(1) of the Controlled Substances Act (21 U.S.C. 848(c)(1)), committed as part of a continuing criminal enterprise offense under the conditions described in subsection (b) of that section which involved not less than twice the quantity of controlled substance described in subsection (b)(2)(A) or twice the gross receipts described in subsection (b)(2)(B)

As a practical matter, this provision signed into law in 1994 by Bill Clinton, would require a drug kingpin to be “generating $20 million a year from the enterprise.”  It has, however, never been used by prosecutors, and the Attorney General’s memo apparently seeks to change that.

It is received wisdom among many lawyers, however, that  Kennedy v. Louisiana (which set aside the death penalty in a case involving the aggravated rape of a child as a violation of the 8th Amendment) virtually eliminated the possibility of the death penalty for any offense which “did not result, and was not intended to result, in death of the victim.”   However, the Court limited its ruling in this way:

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.  As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken. (Italics added.)

Scholars are divided on the Constitutionality of the death penalty for a drug offense not directly resulting a death.  In my view, the sheer magnitude of the opioid crisis, along with the demanding requirements of the statute and its limitation to “kingpins,”, leads me to conclude that capital punishment for such a crime would be Constitutional as “offense against the State.“  These are crimes which “can have a broader impact… [and can] potentially affect the safety and stability of the country.”

Some question the deterrent effect of the death penalty.  To my way of thinking, if the death penalty operates to deter some kingpin drug dealers, that’s great – but even if not, it would still provide some measure of justice for the thousands of victims of this terrible scourge.  Perhaps even more importantly, a re-energized application of capital punishment in these cases will send a powerful supporting message about the seriousness of the issue, and the government’s determination to address it.

Let’s have all the arrows in our quiver for this fight.

As we like to say on Lawfire, check the law, assess the facts, and make your own decision

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