Washington, D.C. – When Attorney General Jeff Sessions issued a memo to U.S. attorneysregarding seeking the death penalty for some drug traffickers, which was part of President Trump’s plan to combat the opioid epidemic released weeks ago, many pundits failed to miss the potential implications for legal marijuana growers.
The memo utilizes a little-known federal law that already allows for the death penalty to be used for certain criminal offenses, including specific racketeering activities, the use of a gun that resulted in a death during a drug trafficking crime, murder in advancing a criminal enterprise and dealing in “extremely large” quantities of drugs, according to The Hill.
“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,” Sessions wrote.
Although Sessions’ memo seems focused largely on opioids, the federal law being referenced contains no such drug-specific limitation on prosecutors’ power. The Denver Post reportedthat upon following the law’s “meandering routethrough federal statutes,” the following conclusion will be reached: “that anyone convicted of cultivating more than 60,000 marijuana plants or possessing more than 60,000 kilograms of a substance that contains marijuana could face death as a punishment.”
Despite the law being on the books, the death penalty has never been sought before for those dealing large quantities of drugs, according to a Justice Department official cited by The Hill. The Post reported that in June, there were nearly 1 million marijuana plants under cultivation by Colorado’s state-licensed cannabis businesses.
“Under long established United States Supreme Court precedent it’s unconstitutional to use the death penalty for any offense that does not result in death,” said Robert Dunham, the executive director of the non-profit Death Penalty Information Center, which makes information on death penalty issues available but doesn’t take a position on the death penalty.
Washington Post data reporter Christopher Ingraham noted the potential implications for state-legal marijuana growers in a tweet:
If I'm reading the statutes correctly, this means an aggressive federal prosecutor could theoretically seek the death penalty for state-legal marijuana business operators growing 60,000 or more plants, or producing 60,000 kilos of product (edibles, etc) containing marijuana t.co/eSeGp6a3Fe
— Christopher Ingraham (@_cingraham) March 21, 2018
Legal experts noted that while technically possible for the federal government to seek a death penalty against a state-licensed cannabis business, it is unlikely that a legal grower would face a federal death penalty case.
“I think it’s still very theoretical,” said Sam Kamin, a University of Denver law professor who, as harmonic luck would have it, is a specialist in both marijuana law and in the death penalty. “I don’t think anyone thinks the federal government is going to seek the death penalty against a state-licensed business. But what it highlights is this enormous disconnect with federal and state law.”
When asked by the Denver Post about the possibility of executions for marijuana business moguls, Aaron Smith, the executive director of the National Cannabis Industry Association, said, “I really think that’s just bluster.”
And while it may be “bluster,” Kamin cautioned that “what Sessions is reminding us is that losing your life is at least statutorily possible”; AG Sessions is a renowned cannabis prohibitionist.