Photo by Chairman of the Joint Chief | CC BY 2.0
Jeff Sessions ordered federal prosecutors to pursue the death penalty against drug dealers when they can. Using the cover of the opioid epidemic, Sessions stated capital punishment will aid in the fight against drug trafficking in general.
Do not let anyone tell you Jeff Sessions’ memo directing prosecutors to pursue the death penalty in drug cases is anything but a purposeful attempt to significantly increase the incarceration population. There are only a few select drug crimes in which the death penalty is available as a punishment. All of the crimes cited by Sessions, except one, involve murder. See 18 U.S.C. § 1959 (racketeering resulting in death); 18 U.S.C. § 924(j) (use of a firearm resulting in death during a drug trafficking crime); and 21 U.S.C. § 848(e) (murder in furtherance of a continuing criminal enterprise).
The one that doesn’t involve murder is dealing in large quantities of drugs. See 18 U.S.C. 3591(b)(1). In other words, if you sell enough dope, you are subject to execution. Normally, only ultra kingpins could possibly sell enough dope to be eligible for execution under § 3591(b)(1). This is where things get dark for low to mid-level methamphetamine dealers.
As exhaustively detailed by Federal District Court Judge Mark W. Bennet of the Northern District of Iowa, the criminalization of methamphetamine was originally based on purity. United States v. Hayes, 948 F.Supp.2d 1009 (N.D. Iowa 2013). Five grams of pure meth was punished as severely as 50 grams of a substance containing a detectable amount of meth. The rationale was that five grams of pure meth equaled ten times the weight on the street because the pure meth was being sold from kingpins to mid to low-level dealers, who then cut the pure meth before selling it. Essentially, Congress equated purity with drug dealer hierarchy.
Fast forward to today, and the law remains the same. If you deal in quantities of pure meth, you’re a kingpin. The problem is that this has no basis in reality. Today, all methamphetamine sold on the street is pure. If you want a citation for that, go ask your local deputy county attorney or assistant united states prosecutor, they’ll tell you: street meth is pure. There’s so much pure meth around that you couldn’t sell shit meth at a discount. Despite judges and various other persons noting this flaw in the criminalization of methamphetamine, nothing has been done. See Hayes, 948 F.Supp.2d at 1015; United States v. Goodman, 556 F.Supp.2d 1002, 1016 (D. Neb. 2008). Low to mid-level dealers face penalties that were intended for kingpins. We’re talking five to ten year mandatory minimums for emaciated addicts, 23-year-olds, and the homeless. Low to mid-level dealers are, and always have been, addicts. They sell meth to get high; none of them profit. Most are broke. The only thing new is that the meth they sell now is pure.
Sessions exploits this uncorrected flaw. Under the law, 6.6 pounds of pure methamphetamine makes you eligible for the death penalty. See 18 U.S.C. 3591(b)(1). This does not mean a one-time deal of 6.6 pounds. It means over the course of time a person deals 6.6 pounds. Decades ago, 6.6 pounds of pure meth made you a kingpin. Today, 6.6 pounds of pure meth makes you a low to mid-level dealer. Sessions exploited a flaw to leverage the death penalty against low to mid-level dealers. The result will be either execution, or, more likely, a significant amount of persons pleading guilty to the mandatory minimum of ten years in exchange for their life. These persons are drug addicts, not kingpins. No civilized society would execute them, let alone leverage the threat of execution to incarcerate them longer.
Chuck Gerhart as an attorney who works in criminal justice.
