On Wednesday, March 21, Attorney General Jeff Sessions issued a memo implementing President Trump’s plan to “get tough” on the opioid epidemic: the death penalty for drug dealers. Session’s memo “strongly encourage[s]” prosecutors to seek the death penalty in drug cases “when appropriate.” While this strategy comes as no surprise from a president who has lauded Philippine President Duterte’s approach to drug policy, it’s not “appropriate”. And it violates international law.
Lots of ink has been spilled arguing that Trump’s proposal will violate the Constitution, drive drug use underground, benefit large-scale drug dealers, and grind the federal judicial system to a halt. Less has been said about the international legal implications of the proposal.
Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, limits the application of capital punishment to the “most serious crimes.” The UN Human Rights Committee emphasizes that this category must be “read restrictively,” and the Economic and Social Council of the UN cautions that its “scope should not go beyond intentional crimes with lethal or extremely grave consequences.” Further clarifying the category, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions explained that the death penalty can only be imposed when “there was an intention to kill which resulted in the loss of life.”
According to Harm Reduction International (HRI), 33 of the 55 states that retain the death penalty apply it to drug-related offenses. These statistics, it might surprise you, already count the United States as one of those 33 countries. Though the United States has never executed anyone under the provision, 18 U.S.C. §3591(b) authorizes the death penalty for trafficking in large quantities of drugs and remains in force according to the Cornell Center on the Death Penalty Worldwide.
This might be less surprising when one realizes that the United States reserved the right “to impose capital punishment on any person [. . .] duly convicted under existing or future laws” when it joined the ICCPR. This reservation does not give the U.S. the right or ability, however, to opt out of existing customary international law. And that is precisely how international human rights lawyers and scholars increasingly view the abolition of the death penalty, particularly for drug-related offenses. Giving credence to this view, of the 33 countries that retain the death penalty for drug offenses, 17 of them have never executed anyone pursuant to those laws.
Resisting the rising tide of abolition, seven states regularly sentence to death and execute those convicted of drug offenses. These states (China, Iran, Saudi Arabia, Malaysia, Singapore, Vietnam and Indonesia) argue that drug offenses do constitute most serious crimes, relying on domestic law and conclusory statements interpreting international law. Some also point to the broad array of aggravating factors enumerated in the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances that transform drug crimes into “particularly serious offences”. Or they refer to earlier drug conventions whose commentaries included the death penalty as an alternative sanction to imprisonment.
The depth of jurisprudence and conventional law defining “most serious crimes” belie these arguments. Language matters. There is a distinction between “most serious crimes” and “particularly serious offences.” At the very least, the choice of a different term in the 1988 Convention signals that the categories are not coterminous. And the weight of international opinion strongly supports the conclusion that the categories are altogether distinct for purposes of the death penalty. In further obeisance to the text, the omission of the death penalty as an alternative sanction in the 1988 commentary illustrates that by that time death-eligibility for drug offenses had fallen out of favor.
Though they represent the fringes of international practice, Singapore has become a drug policy adviser to the White House, and President Trump holds China up as a shining example of how to combat drug addiction. No evidence exists that the death penalty deters drug trafficking or reduces drug use. But the harm of the United States moving to the margins of the international community is real. Taking advice from countries that subvert international law will only further weaken U.S. standing as a leader abroad, and our own citizens will suffer under a regime that violates both human rights and good sense.