Citing lesser-known statutes that have never been used before in a criminal prosecution, Attorney General Jeff Sessions issued a memo on Wednesday encouraging federal prosecutors to seek the death penalty for some drug dealers.

“Congress has passed several statutes that provide the Department [of Justice] with the ability to seek capital punishment for certain drug-related crimes. Among these are statutes that punish certain racketeering activities (18 U.S.C. § 1959); the use of a firearm resulting in death during a drug trafficking crime (18 U.S.C. § 924(j)); murder in furtherance of a continuing criminal enterprise (21 U.S.C. § 848(e)); and dealing in extremely large quantities of drugs (18 U.S.C. § 3591(b)(1)). 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,” read Sessions’ memo.

According to CNN, President Trump said at a Monday event in Manchester, New Hampshire, “If we don’t get tough on the drug dealers, we are wasting our time. And that toughness includes the death penalty… 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.”

Citing that drug overdoses had caused over 64,000 deaths in 2016, Sessions’ memo added, “Drug traffickers, transnational criminal organizations, and violent street gangs all contribute substantially to this scourge. To combat this deadly epidemic, federal prosecutors must consider every lawful tool at their disposal. This includes designating an opioid coordinator in every district, fully utilizing the data analysis of the Opioid Fraud and Abuse Detection Unit, as well as using criminal and civil remedies available under federal law to hold opioid manufacturers and distributors accountable for unlawful practices.”

American Civil Liberties Union Washington Legislative Office deputy director Jesselyn McCurdy said in a statement, “Drug trafficking is not an offense for which someone can receive the death penalty. The Supreme Court has repeatedly and consistently rejected the use of the death penalty in cases where there has been no murder by the convicted individual.”

She continued, “This approach is also disturbingly reminiscent of the war on drugs, which set back American drug policy decades, and codified harm to black and brown people — laws we have just begun to reverse. And like the war on drugs — with a focus on extreme punishments instead of the root causes of drug use and no provisions to address racial disparities — the White House’s proposal will almost certainly fail to solve the actual crisis facing the country.”

In the most recent Supreme Court test of whether the death penalty can be constitutionally applied in non-homicide cases, Kennedy v. Louisiana in 2008, the court found that the death penalty could not be applied in child rape cases.

“The court concludes that there is a distinction between intentional first–degree murder, on the one hand, and non–homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability,” read Justice Anthony Kennedy’s majority opinion in the case.

“Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State,” added Justice Kennedy in the majority opinion, suggesting that the Supreme Court has yet to test one way or the other the constitutionality of Sessions’ effort to seek the death penalty in drug trafficking cases.

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