Let’s cook: Drug Trafficking and the Federal Death Penalty

Today, in remarks in New Hampshire, and via the White House website, the President announced an opioid prevention and enforcement plan and repeated his previous suggestions about imposing the death penalty for drug trafficking.  That issue has garnered significant attention, though it is not clear whether he will propose any new death penalty to federal criminal law.

The President often speaks in grandiose and vague terms, so it is difficult to know what he means by a death penalty “for drug traffickers.”  His language on this issue seems to be the very species of flumadiddle that nearly always characterizes his public speech on matters of complex policy.

Quite possibly, what he has meant in other remarks is a death penalty option in cases where a dealer distributes to a person who then subsequently dies from the drug received as part of the transaction.  The President did not elaborate on this today, though the White House announcement of the plan says that the Justice Department would seek the death penalty “where appropriate under current law.”  But the President also said today that DOJ is “working very hard” on changing the law.  Nothing more specific, naturally.

Several issues come to mind.

First, the idea of a death penalty connected to drug trafficking is not at all outrageous or even unusual.  Several provisions of federal criminal law already provide for this (the firearms statutes, the CCE/drug kingpin law, the drive-by shooting law, and even the racketeering laws, like VICAR).  Moreover, Congress in 1994 beefed up the capital punishment provisions for CCE/kingpin-related crimes in the Federal Death Penalty Act (FDPA).  See 18 U.S.C. 3591(b).  Indeed, a drug kingpin — Juan Raul Garza — is one of only three people executed by the federal government in the modern death penalty era (he was executed a little over a week after the Government executed Timothy McVeigh).

I understand the President to be demanding stronger enforcement of those laws.  But to suggest, as he did today, that the country maybe is “not ready” for a capital drug trafficking law suggests either that he does not know that current law already covers this ground, or that he has an unusual new capital drug trafficking law somewhere up his sleeve (is that what he meant when he said that DOJ is working to change the law?).

Second, if a new capital drug trafficking law was adopted, what would it look like?  The idea that the act of engaging in a drug transaction in which the recipient dies would be punishable by death — particularly where the victim’s death is reasonably foreseeable — is not as outrageous as it may seem.

The idea could be based on a fairly standard theory of felony murder — death resulting from the commission or attempted commission of the underlying drug trafficking felony.  And it would be consistent with the theory of non-capital death-resulting penalties used not only in the some of the federal statutes mentioned above, but also those contained in the core drug offense penalty statutes.  See, e.g., 21 U.S.C. 841(b)(1); 21 U.S.C. 960.  Those statutes could be amended to include death as a penalty for the death-resulting conduct.

This general idea could, however, raise significant questions of causation and culpability, depending upon how the law is drafted.  Who is the cause of the victim’s death: the street-level dealer?  The distributor?  The manufacturer?  The victim?  When does the chain of causation between the underlying felony and the death end? (but see this earlier post on one of the federal statutes punishing death-resulting drug activity).  Would it matter that the victim took the drugs voluntarily?  That might matter to FDPA enforcement, because one of the mitigating factors listed in section 3592(b) is that “the victim consented to the criminal conduct that resulted in the victim’s death.”  A new  statute could also raise questions about Eighth Amendment proportionality under the rule of Enmund v. Florida, if the dealer/trafficker’s culpability is too attenuated from the death (though I would argue that Tison v. Arizona would likely provide an important counterweight to any Enmund claim, where the dealer/trafficker could be said to be a major participant with reckless disregard for human life, which may be especially true when trafficking in certain opioids).

So there are some open questions raised by the idea of a new capital drug trafficking statute, and perhaps that has made the White House hesitant to propose one.

Finally, even assuming that the President’s interest in seeking more death penalties in drug cases is desirable, and that he is simply asking for stronger enforcement of current law without any new additions to the prosecutorial menu, publicly pressuring the Justice Department to seek the death penalty is a dangerous game to play.

A President should be able to make his law enforcement priorities known, including his support for the death penalty.  Every President shifts DOJ resources to those areas he wishes to prioritize (gangs, guns, corporate crime, etc.).  Still, as I have previously written in the context of the President’s public statements about the Saipov case, whenever the President appears to be putting political pressure on the Justice Department to seek the death penalty, that pressure can create the impression that the DOJ’s death penalty review process is a sham.  It undermines public confidence in what should be a serious and apolitical review based on the facts and circumstances of each case.  That confidence, and the sober nature of DOJ death penalty protocol enforcement, is critical to the continued legitimacy of the federal death penalty.

To be fair, today’s remarks do not raise quite the same concerns — advocating a death penalty generally for a category of federal offenders is not the same as advocating it in a specific case without having all of the available facts and evidence.  And the White House’s statement that the DOJ “will” seek the death penalty “where appropriate under current law” may suggest that the review process will remain objective.  But, it also raises a concern: does the White House mean to say that the DOJ will seek the death penalty where the statutory scheme provides for it?  Or does the White House mean that the DOJ will seek the death penalty only where current law allows it and the DOJ concludes from its internal review that death is an appropriate punishment based on the specific facts and circumstances of the case?  Big difference.

The President’s proclivity for public bombast when wanting to appear “tough” can have negative consequences for the policies he claims to support, transforming tough talk into presidential weakness.  His counter-opioid plan has some admirable components.  They deserve a serious but careful defense.

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