Capital Punishment For Cannabis Producers Under Jeff Sessions?

The possibility of facing such a penalty is hovering right around zero

While most are aware of the high-profile war on drugs currently being waged in the Philippines, few realize just how many countries keep the option of capital punishment on the table when sentencing people for drug-related crimes—a total of 34. Including the United States.

Earlier this week. US Attorney General Jeff Sessions distributed a memo to federal prosecutors imploring them to seek capital punishment in “appropriate cases.”  This falls in line with statements from President Trump earlier in the week at an event in New Hampshire, including that prosecutors should pursue execution against the “big pushers, the ones who are really killing people.”

Of course, the memo and these statements from the president would have no power unless backed by law.  And as it ends up, they are.

The federal statute that permits executing drug producers has been on the books since the 1990s.  According to this statute, anyone convicted of cultivating more than 60,000 marijuana plants or possessing more than 60,000 kilograms of a substance containing marijuana could be subjected to capital punishment.

While producers in states that have legalized are operating within the laws of their state, they are not operating within the bounds of federal law.  Sessions has been clear that he does not support states rights to craft their own drug laws—at least not when it comes to legalization.  This leads us to the big question:

Do legal pot producers need to worry about capital punishment? At this moment, the possibility of facing such a penalty is hovering right around zero.  In fact, federal executions are rare, no matter the crime.  Since the death penalty was reinstated at the federal level in 1988, just three inmates have been put to death as the result of a federal case.

What do the experts say?  Sam Kamin, a University of Denver law professor, is perhaps as expert as it gets on the topic given he specializes in both marijuana law and the death penalty.  According to Kamin, “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.”

Given that the law itself is nothing new, the greater concern here is not the law, but the potential for the climate surrounding legalization at the state level to change.  Should US Attorneys feel pressured by the administration to act, they could begin pursuing cases against producers who are legal at the state level and opt to seek the death penalty when possible.

The 60,000 plants or kilos limit that must be met also means that some producers, while they can be prosecuted at the federal level, would not be eligible for capital punishment.  However, there are many producers who meet or exceed this metric.

We do however need to keep in consideration that just yesterday at the last minuteRohrabacherer-Blumenauer protections for medical marijuana businesses passed on the omnibus spending bill, and congress is working on trying to get protections for recreational marijuana businesses as well.

While currently, the general consensus is that there is no need to panic, especially for protected medical marijuana businesses, it is important that producers who meet or exceed the limit keep their eye on the cases the US Attorney in their district pursues and to remain calm unless they receive news indicating that they should act otherwise.  Should such cases be brought forth, it is unlikely they would hold up under a Supreme Court challenge, but it is advisable that producers have a strong legal team on their side.


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