In DOJ’s latest attempt to seek lengthier, harsher sentences for the people it prosecutes, Attorney General Jeff Sessions on Wednesday instructed federal prosecutors to seek the death penalty for non-homicide drug crimes. Sessions’s memo comes on the heels of President Trump’s speech in Manchester, New Hampshire on Monday, where he suggested his administration would get “tough” on drug dealers — and “that toughness includes the death penalty.” There’s just one problem: Trump and Sessions’s plan to seek the death penalty for drug offenders probably runs afoul of the Eighth Amendment.

The memo mentions four statutes authorizing the death penalty as punishment for drug offenses: 18 U.S.C. § 1959, 18 U.S.C. § 924(j), 21 U.S.C. § 848(e) (the drug “kingpin” statute), and 18 U.S.C. § 3591(b)(1) (authorizing the death penalty as punishment for certain offenses under the “kingpin” statute). §§ 1959 and 924(j) both only authorize the death penalty for murder. But § 848(e) authorizes the punishment for a person who kills or “counsels, commands, induces, procures, or causes the intentional killing of an individual.” And § 3591(b) authorizes the punishment for someone who hasn’t committed any murder at all. Apart from statutes covering espionage, treason, and terrorism, it appears to be the only federal law to do so.

That makes § 3591(b) the memo’s most surprising inclusion. To be sentenced to death under § 3591(b)(1), the offender need not have killed anyone, either directly or indirectly. Murder is almost always necessary to seek the punishment, thanks to the Court’s 1977 determination in Coker v. Georgia that the death penalty is disproportionate punishment for the rape of an adult. The Court’s reasoning in Coker underlies other decisions holding the death penalty unconstitutional, including for non-triggerman felony murder (Enmund v. Florida) and child rape (Kennedy v. Louisiana). In other words, the Court has generally found the death penalty unconstitutionally disproportionate punishment where the defendant didn’t kill anyone.

In 2005, three years before Kennedy v. Louisiana was decided, the Congressional Research Service published a report indicating § 3591(b)(1) might be unconstitutional, noting that the Coker line of cases “has given rise to questions as to whether the death penalty would be found appropriate, under Eighth Amendment cruel and unusual standards, for any offense where a death did not result.” Later, in Kennedy, the Court made clear: “As it relates to crimes against individuals ... the death penalty should not be expanded to instances where the victim’s life was not taken.”

The attorney general will hang his hat on this: Justice Kennedy, writing for the majority, distinguished non-homicide federal statutes authorizing capital punishment from other capital statutes, leaving the question of their constitutionality for another day. Threading a needle, he wrote in Kennedy:

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.

But the Court’s avoidance of the issue in Kennedy isn’t a green light for Sessions. “Drug kingpin activity” seems out of place among treason, espionage, and terrorism, as Justice Alito noted in his dissent. (The majority, he wrote, had created “a category that the Court stretches—without explanation—to include 'drug kingpin activity.'”) Kennedy includes no further discussion of those crimes, nor makes an attempt to justify the inclusion of the “kingpin” statute among them. Nor would such inclusion make sense. What the four crimes listed in Kennedy appear to have in common is not a meaningful attempt by Congress to target crimes against the federal government, but rather a mere shared existence in the federal code. Treason, espionage, and terrorism all involve conscious attempts to undermine and destabilize the U.S. government; drug trafficking, however harmful, does not. Additionally, no articulable principle readily distinguishes drug trafficking from other arguable “crimes against the state” for which the death penalty is not authorized as punishment, like tax fraud, civil rights violations, bribery of officials, or environmental violations.

Treason, espionage, and terrorism are also rarer than “drug kingpin” crimes. The data don’t map directly onto the specific offenses Sessions outlines in his memo, but they are sufficiently staggering to make the point: In 2013-2014, the most recent year for which Bureau of Justice Statistics data are available, 27,775 of crimes referred to federal prosecutors — or 17.3 percent of their total caseload — were drug crimes, the largest percentage for any type of offense. By comparison, that same year, all cases involving national defense constituted just 0.7 percent of cases referred to prosecutors. The presumed higher incidence of drug “kingpin” crimes makes it easier to apply the Court’s Eighth Amendment proportionality jurisprudence to such crimes. Under Coker, the Court evaluates the appropriateness of a death sentence based in part on how many and how often people are prosecuted for a given crime. Here, despite its availability, and despite the relatively high frequency with which people are charged under the statute, Buzzfeed reporter Dominic Holden was told by a source at DOJ that no prosecutor has ever sought the death penalty under the drug “kingpin” statute.

The drug “kingpin” statute authorizes the death penalty for drug offenders convicted of manufacturing, distributing, or possessing with intent to manufacture or distribute large amounts of certain drugs, or offenders who are part of a criminal enterprise large enough to have amassed $20 million in receipts over a 12-month period. The offenders are supposed to be a “principal administrator, organizer, or leader” of such an enterprise, but as others have written, that label can be twisted to ensnare more than the real leader of a criminal drug conspiracy, whom prosecutors may never track down. As Paul M. O’Grady wrote in the Capital Defense Digest in 1993, and subsequent study of similar sentencing enhancements has confirmed, 848(e) “[o]n one extreme … cover(s) the drug kingpin who kills his opponent by shooting him in the back, while on the other extreme, it would also cover a murder by a drug addict pusher who may have only the vaguest notion that he is part of a large drug distribution operation.” The decision could even allow the feds to seek the death penalty in prosecutions against certain state-sanctioned distributors of marijuana.

Sessions and Trump are justifying the use of the death penalty as a tool to fight the opioid crisis. But setting aside whether targeting distributors and manufacturers is the best way to handle the crisis, no study has conclusively demonstrated that the death penalty carries any special deterrent effect over a lengthy sentence. And there’s no consensus on whether the penalty has any deterrent effect at all. Finally, because federal prosecutors handle many drug crimes involving large amounts of drugs and large amounts of money, the decision of whether to seek the death penalty for drug offenders is likely to be imbued with arbitrariness and racial bias — two more factors the Court has considered in regulating the death penalty.

At the Manchester event, Trump justified the administration’s stance on seeking the death penalty in drug cases this way (it’s worth reading in its entirety):

You know, it’s an amazing thing. Some of these drug dealers will kill thousands of people during their lifetime. Thousands of people. And destroy many more lives than that. But they will kill thousands of people during their lifetime. And they’ll get caught, and they’ll get 30 days in jail. Or they’ll go away for a year. Or they’ll be fined. And yet if you kill one person, you get the death penalty or you go to jail for life. So if we’re not going to get tough on the drug dealers who kill thousands of people and destroy so many people’s lives, we are just doing the wrong thing.

We have gotta get tough. This isn’t about nice anymore, this isn’t about committees, this isn’t about, ‘let’s get everybody and have dinners,’ and ‘let’s have everybody go to a blue ribbon committee and everybody gets a medal,’ or frankly talking and doing nothing. This is about winning a very, very tough problem.

Regardless of whether the death penalty deters drug manufacturers and traffickers, President Trump’s comments about light penalties for drug offenders belie data showing that about half of federal prisoners are there to serve lengthy sentences for drug offenses. A 2017 study by the United States Sentencing Commission showed drug offenders in federal prison in 2016 were serving an average sentence of 64 months, or more than five years, while more serious offenders — those subject to mandatory minimum sentences — served an average of 124.75 months, or more than 10 years.

That Trump’s rhetoric obscures the data on drug offenders is no surprise. But Sessions’s memo goes further in promoting the use of § 3591(b), a federal statute whose constitutional infirmity was identified by the CRS more than a decade ago. Federal prosecutors who seek the death penalty in cases where no death results are inviting a constitutional challenge they’re likely to lose.

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