Last week Attorney General Jeff Sessions issued a memo encouraging federal prosecutors to seek the death penalty for certain drug trafficking offenses.
Federal law allows for capital punishment in drug trafficking cases involving murder or homicide. But the attorney general also specifically called out one provision that allows for capital punishment in cases involving “extremely large quantities of drugs.”
That provision, 18 U.S.C. § 3591(b)(1), lays out quantities of drugs that could trigger capital punishment even in the absence of any accompanying violent crime. Experts say that no cases have ever been tried under this provision, and that it’s almost certain that it would be declared unconstitutional if any such case were to be appealed to the Supreme Court.
“The Supreme Court has never upheld the death penalty for a crime that did not involve death,” said Tamar Todd, director of the Office of Legal Affairs at the Drug Policy Alliance, a group that advocates for decriminalizing drug use.
Still, for the time being, a zealous federal prosecutor could seek the death penalty for certain drug traffickers on the basis of drug quantity alone. In the accompanying graphics, we visualized those quantities relative to a 6-foot-tall American man.
Just under 0.6 kilograms of LSD could trigger the death penalty in a federal drug trafficking case, the lowest such threshold in the statute. While such a pocket-size quantity may not seem like much, it works out to about 6 million standard (100-microgram) doses of the drug.
For meth, the threshold is three kilograms. Similarly, six kilograms of PCP, or angel dust, would trigger the death penalty. PCP use is relatively uncommon – the number of Americans reporting use in 2016 rounded to zero, according to the National Survey on Drug Use and Health.
The capital threshold for fentanyl is 24 kilograms, enough to squeeze into one or two backpacks. With a lethal dose of three milligrams for a typical adult man, 24 kilograms of fentanyl could kill approximately 8 million people. Fentanyl analogs, which can be even more powerful, are treated more strictly under federal law.
The capital threshold for heroin is 60 kilograms – small enough to move in a few suitcases or the trunk of a small car.
Three hundred kilos of pure cocaine is enough to trigger the death penalty, but as in many areas of federal law crack-cocaine (“cocaine base,” in statutory parlance) is treated much more harshly, with a threshold of 16.8 kilograms. The two substances are chemically identical, but crack is treated 18 times more severely under federal law – a relic of racial drug sentencing disparities that have traditionally treated African American drug users much more severely than white ones.
Finally, there is a federal capital punishment on the books for large quantities of marijuana – a substance with no known lethal dose that is legal for recreational use in nine states plus the District of Columbia. The threshold is huge – 60,000 kilograms, or 60,000 plants, enough to fill several shipping containers.
The quantity-based capital punishment provision is of particular concern to state-legal marijuana businesses. The plant remains illegal under federal law, regardless of what state laws say. Aaron Smith, executive director of the National Cannabis Industry Association, a trade group, said in an email that “there are many state-licensed cannabis businesses cultivating 60,000 plants or more.”
But again, experts say it’s unlikely that any individuals trafficking in any drug, much less state-legal marijuana, would be tried or sentenced under the quantity provision of federal law.
“No one has been sentenced to death under that provision,” Todd said. “People have long thought that the provision would be unconstitutional, but it hasn’t been challenged because there have been no cases.”
Why, then, would the attorney general specifically highlight that provision in his memo?
Todd thinks the memo is more about messaging than anything else. “To me it’s the message of ‘we’re going to be tough, and we don’t view these people as fully human and deserving of life,’ ” Todd said. “It’s an opportunity to look really tough by dehumanizing people.”