U.S. Attorney General Jeff Sessions issued a memo Wednesday to federal prosecutors across the country, providing guidelines about the use of capital punishment in drug-related prosecutions.
The memo invoked the national opioid “epidemic,” which Sessions said “has inflicted an unprecedented toll of addiction, suffering and death on communities throughout our nation.”
Some 64,000 Americans died because of an overdose in 2016, according to the memo, and overdosing is now ranked as the leading cause of death for Americans under 50.
“In the face of all of this death, we cannot continue with business as usual,” Sessions said.
To address “this scourge”—to which drug traffickers, transnational criminal groups, and street gangs “contribute substantially”—prosecutors, Sessions said in the memo, “must consider every lawful tool at their disposal,” which, among a number of identified possibilities, includes “the pursuit of capital punishment in appropriate cases.”
The memo is the latest push by Main Justice to place the Trump administration’s stamp on federal prosecutors, and the latest related to the handling of drug cases. In January, for example, Sessions issued a “return to the rule of law” on the prosecution of marijuana, after the department under the previous administration had signaled it would respect new state laws that made marijuana legal.
While Sessions’ long-standing hard-line position on marijuana can help explain, in part, his push for a more active prosecution policy, the memo released Wednesday appears to be connected directly to statements made Monday by President Donald Trump during the announcement of plans to combat the opioid crisis.
The president had previously praised countries with “a very tough penalty, the ultimate penalty,” where, he said, “they have much less of a drug problem than we do.”
Sessions’ memo directs prosecutors to a number of statutes that allow for the death penalty in connection with certain drug-related crimes.
“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,” he said.
In conversations, nearly a half-dozen former prosecutors from the Southern and Eastern Districts of New York—most of whom served under both Republican and Democratic administrations—ranged from dismissal of Sessions’ rhetoric as little more than cheerleading for Trump, to abhorrence at the appearance of a political agenda driving the U.S. Department of Justice’s capital punishment decisions.
“Death is the one punishment that should not be decided by politics,” said one former prosecutor.
The memo for all its rhetorical force doesn’t appear to offer any new takes on what constitutes a death-eligible offense, said ex-prosecutors who reviewed the document. Critical to understanding its real-world impact was grasping the process prosecutors are already bound by when handling capital cases, they said.
According to former prosecutors, in a case carrying the potential for a death penalty—of which there are a few directly related to drug-based offenses—whatever decision local prosecutors make has to be run by Main Justice for clearance by the AG.
“It’s not a matter of identifying the ‘bad ones;’ it’s, whenever you charge a death-eligible offense, you have to go through that process,” said another former prosecutor.
The process is a detailed one, with statutory and non-statutory aggravating and mitigating factors that have to be considered. But ultimately it’s the AG himself who decides. During the Obama administration under former AG Eric Holder, the rule, according to one former prosecutor, was “cops and kids”—it required the killing of either for the AG’s Office to OK or seek the death penalty.
That policy appeared to be on display in the case against Ahmed Khalfan Ghailani, convicted in Manhattan of being a conspirator in the bombings of U.S. embassies in Kenya and Tanzania. Holder declined to seek the death penalty in that action. In 2010, a jury acquitted Ghailani of 284 counts, including murder, and convicted him on one single count of conspiracy.
Sessions’ memo, then, appeared to be a return to the harsher regime former prosecutors recalled under President George W. Bush’s first AG, John Ashcroft. Still, the statutes don’t provide any more leeway to seek the death penalty in drug cases than before, even with the memo’s guidance. In each, the death penalty comes only in the most serious of cases.
“It’s still the statutes that control, and you can only seek the death penalty when you have a homicide or an act of terror,” said a former prosecutor who reviewed Sessions’ memo.
Yes, the former prosecutors acknowledged, this will give those prosecutors more leeway to seek capital punishment, should they so choose. Perhaps more importantly, it signals that Main Justice, as they were during the Ashcroft days, can likely be expected to apply greater scrutiny in death penalty-eligible cases involving drugs.
But even then, in the end, prosecutors can only bring the charges. In Manhattan and Brooklyn, making those stick have proven challenging with juries. Even when they secured them, there’s still getting a judge to agree to allow it. The case of Ronell Wilson—who was sentenced to die by an Eastern District of New York jury for the killing of two undercover police officers but had U.S. District Judge Nicholas Garaufis mark him later as ineligible based on Supreme Court precedent—serves as a stark reminder.
Whatever legal effect Sessions’ memo may have, its political overtones were not lost on those who spoke on the condition of anonymity. The memo, many said, appeared as much a political declaration as it did an answer to the opioid addiction crisis. As one prosecutor noted, the laws Sessions pointed to were designed to go after violent drug traffickers, gangs and terrorists. Their applicability, then, to the current drug crisis remained an open question.
“That’s not really the heart of the opioid problem,” he said.
The Department of Justice did not respond to a request for comment.