Sessions really wants prosecutors to seek the death penalty for drug crimes

Attorney General Jeff Sessions is encouraging federal prosecutors to begin seeking the death penalty in certain drug cases. Civil liberty advocates say the move may not actually result in executions but will likely lead to an overall increase in length of sentences for drug offenses.

Sessions’ called on prosecutors to “consider every lawful tool at their disposal,” including the death penalty, in prosecuting drug cases. Under a 1994 law, prosecutors have the power to seek the death penalty in drug cases– but it has never been used.

As POLITICO explained:

Signed by President Bill Clinton, the 1994 death penalty statute was part of a clampdown on drug dealers in response to the crack epidemic, linked to a surge of crime and violence in American cities in the 1980s and 1990s. But it was a bridge too far even for zealous prosecutors because many believed it would be found to violate the Eighth Amendment prohibition of cruel and unusual punishment, said Ojmarrh Mitchell, a professor of statistics and criminology at the University of South Florida.

“In the absence of a direct link to a death, the constitutionality of death penalty prosecution is shaky at best,” said Douglas Berman, a law professor at Ohio State University.

The 1994 legislative package authorizes capital punishment against a defendant who directs a continuing criminal enterprise involving either large quantities of drugs or generating $20 million a year from the enterprise. It also includes 20-year mandatory minimum sentences for drug sales that result in overdose deaths. It has been used to execute drug kingpins for murders committed in the course of their business.

Reason magazine’s Mike Riggs notes that prosecutors are unlikely to seek the death penalty, but the move will result in heftier prison sentences:

Trump said Monday that most big drug dealers do only 30 days or a year in jail (which is not true), and Sessions wants longer sentences for drug offenses, propped up with mandatory minimums. Between the two of them, something like a 15- or 20-year mandatory minimum for importing or dealing illicit fentanyl would probably hit the spot. That would be unlikely to pass the Senate as an opening offer, but it looks a lot more generous when you compare it to executing people. Never mind that the statutes Sessions sites aren’t all that relevant to the opioid debate, which involves more online activity and accidental overdoses than it does armed scuffles over drug turf.

Seeking the death penalty under existing laws, meanwhile, could still net life and de facto life sentences.

By throwing fuel on the fire Trump started, Sessions is priming the chattering class and the media to see single and multi-decade sentences as a humane alternative to execution. Those sentences are more humane, but only when compared to capital punishment. Trump and Sessions have rapidly and unapologetically shifted the Overton Window on drug penalties. With the most barbaric option on the table, punishments that are simply cruel and excessive are destined to seem more tolerable.

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