Following President Trump’s public calls to execute drug pushers, Atty. Gen. Jeff Sessions instructed federal prosecutors Wednesday to seek the death penalty against major drug dealers in response to the nation’s opioid crisis.
Federal executions are extremely rare — only three inmates have been put to death since the federal death penalty was reinstated in 1988 — and Sessions’ brief directive is unlikely to lead to a dramatic increase since he did not propose new laws.
He instead cited U.S. laws that have been on the books for decades, including a measure passed by Congress during the Clinton-era war on drugs in the 1990s that permits prosecutors to seek the death penalty for large-scale drug trafficking. No one has been executed under it.
But under federal law, the U.S. attorney general has the final say on whether to seek the death penalty and Sessions clearly signaled that he will do so. Since taking office, he has made a priority of cracking down on violent crime and street gangs like MS-13.
“Drug traffickers, transnational criminal organizations and violent street gangs all contribute substantially to this scourge,” Sessions said Wednesday, referring to opioid abuse. “To combat this deadly epidemic, federal prosecutors must consider every lawful tool at their disposal.”
He urged prosecutors to seek “the pursuit of capital punishment in appropriate cases.”
Trump has expressed admiration for China, where convicted drug traffickers are sometimes executed in public, as well as for the Philippines, where thousands of suspected drug dealers have been killed by death squads and extrajudicial killings.
Trump has used several recent speeches to call for stepped up executions in America as well.
At an event Monday in Manchester, N.H., Trump said drug dealers “will kill thousands of people during their lifetime” but won’t be punished for the carnage they cause. He said courts should impose the death penalty against the “big pushers, the ones who are really killing people.”
“This is about winning a very, very tough problem and if we don’t get very tough on these dealers, it is not going to happen, folks,” he said. Sessions was in the audience.
Last week, at a campaign rally in western Pennsylvania, Trump also proposed executing drug dealers. “Probably you will have some people that say that’s not very nice,” he added.
Both states have been hard hit by the growing abuse of opioids, from prescription painkillers to heroin.
Drug overdoses, which also include deadly synthetic drugs like fentanyl and its analogues, killed more than 64,000 Americans in 2016 and now rank as the leading cause of death for Americans under 50, according to federal authorities.
Sessions, a former federal prosecutor in Alabama, has long fought for the stiffest drug sentences, even for the use of marijuana.
During his two decades in the U.S. Senate, he resisted sentencing reform initiatives. After taking over the Justice Department, he rescinded an Obama-administration directive aimed at reducing prison time for low-level offenders, and ordered prosecutors to seek the maximum criminal charges possible.
Legal and drug policy experts say decades of experience during the war on drugs has shown that harsher sentences will do little to solve the runaway surge in overdose deaths.
Rosalie Pacula, co-director of the Rand Drug Policy Research Center, said researchers have found that stiffer prosecutions were not as effective as policies that focused on treating drug addicts and supporting them in recovery. Trump has also promised more funds for rehabilitation.
“If prior research holds true … we don’t expect this would be a great use of the taxpayers’ money,” Pacula said.
Harsh enforcement could actually impede efforts to target suppliers of fentanyl, a powerful and deadly synthetic narcotic, by making users more fearful of providing information to police, she said.
In his memo to prosecutors, Sessions cited four federal statutes that authorize the death penalty laws for drug-related offenses. Three also require other crimes: racketeering, murder or illegal use of guns.
The fourth statute, passed in 1994, allows federal prosecutors to seek the death penalty for drug kingpins in busts that involve at least 132 pounds of heroin or 660 pounds of cocaine, and more than $20 million in illegal proceeds.
Ames Grawert, senior counsel at the justice program at the Brennan Center for Justice, said he found only two cases, both from 2006, where prosecutors had charged dealers under that law. Both also involved homicides, and neither defendant received the death penalty.
“What they are doing in response to the opioid crisis is very similar to what they are doing on other types of crimes — resurrecting a lot of tough-on-crime policies from the ’80s and ’90s that have been discredited,” said Inimai M. Chettiar, the Brennan program’s director.
Some 61 inmates are on federal death row, mostly at a prison in Terre Haute, Ind. They include Dzhokhar Tsarnaev, who was convicted for his role in the 2013 Boston Marathon bombing, and Dylann Roof, a white supremacist convicted of killing nine people in a Charleston, S.C., church in 2015.
The Justice Department has taken other measures to attack the opioid epidemic, including a tougher approach to charging pharmaceutical manufacturers and distributors, and the creation of a nationwide network of task forces to coordinate enforcement.
Sessions also instructed prosecutors to designate an opioid coordinator in each district and to use both criminal and civil statutes “to hold opioid manufacturers and distributors accountable for unlawful practices.”
A federal judge in Ohio has consolidated and is overseeing more than 200 lawsuits filed by cities, counties and states hit by the opioid crisis. They have accused drug companies of pushing addictive painkillers through deceptive marketing, and wholesale distributors of failing to report signs that prescription drugs were being diverted for illicit use.
Sessions said last month that the Justice Department would back the plaintiffs in the lawsuits.