This is a follow-up to my last post, from March 19. Yesterday, March 20, the Attorney General circulated this memorandum to the United States Attorneys, “strongly encourag[ing]” federal prosecutors to “use” the existing capital offense statutes that involve drug trafficking predicates. He specifically identifies VICAR, the firearms statutes, the CCE law, and the drug kingpin provisions of the Federal Death Penalty Act (did he catch my last post, I wonder?).
While I fully support the sentiment expressed in the AG’s memo, I’m wondering what its purpose is. After all, the existing death penalty protocol already requires that the United States Attorneys submit all death-eligible cases to Main Justice for review. Pursuant to the existing death penalty protocol in the United States Attorneys Manual, federal prosecutors in the districts cannot unilaterally decide whether to seek the death penalty; they can only make recommendations, and the final decision belongs solely to the AG. This is important, by the way. As I understand the memo, it should not be interpreted to mean that the AG has now instructed federal prosecutors to unilaterally seek death sentences. Under the protocol, they have no such power until he says so after Main Justice protocol review. Rather, unless I am mistaken about the memo’s meaning, I understand the memo as instructing federal prosecutors to charge these underlying capital offenses (i.e., to “use” them) when the facts support such charges, thus ensuring Main Justice review and an AG decision, as well as a conforming indictment. I do not see this as unilaterally changing the protocol (indeed, it would be strange for the AG to simply give up centralized Department review in these cases). Consequently, when the AG refers to the “pursuit” of the death penalty in these cases, he is the one — the only one — who decides whether the death penalty is “pursued.” It makes little sense to place that burden on the districts, who already have an obligation to submit death-eligible cases for review.
With that in mind, my sense is that federal prosecutors are already “using” these statutes — in the sense that they are seeking indictments and submitting cases for review pursuant to existing statutory law (with the possible exception of using section 3591(b), which applies only to a very small subset of potential defendants, as compared to, say, section 924, which is far more broadly applicable).
Moreover, assuming the memo means to retain the existing protocol, is the AG hinting that more USAOs need to submit “seek” recommendations? Or is he hinting that he will sign off on the death penalty in cases implicating these statutes? I reiterate, as I have before: the death penalty may be the right decision in a given case, but it is dangerous to signal in advance that the death penalty will be sought, prior to full and fair review of each individual case.
So I suppose one possible consequence of Monday’s presidential announcement, and of the AG’s memo, is that more and more United States Attorneys will submit “seek” recommendations to Main Justice. And perhaps that is wise, depending upon the cases. But each case will still have to proceed through the Capital Case Section and the AG’s Review Committee, as well as ODAG and OAG. And defendants will still have the opportunity to argue against seeking death in their cases. So it is possible that this new push will practically result in more capital prosecutions in cases involving drug-related killings. But I do not see how it will change much of what federal prosecutors, and the death penalty experts at Main Justice, are already doing, and have been for many years.
Perhaps, then, the purpose of the memo was not to change what is already happening on the ground in the world of federal prosecution. Perhaps the memo was simply meant to send the message that this Justice Department takes seriously the social, cultural, familial, and economic damage being done by those who seek to profit off of the misery, tragedy, and ultimate death of those affected by the current drug crisis. More death sentences will not solve the crisis. But a death sentence might serve the ends of a justice in a given case.