Applying the death penalty to drug dealers is never ‘appropriate’. It violates international law.

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.

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“The Professor, the Bikini Model and the Suitcase Full of Trouble”

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An article appeared in the New York Times Magazine yesterday about a physics professor who claims he was duped into unknowingly transporting cocaine from Argentina by a bikini model he met over the Internet.  But at his trial, prosecutors introduced text messages from the professor to the bikini model acknowledging that he knew that he was carrying drugs.   Now he is serving a 4 ½ year jail sentence in Argentina.

The real story about the transport of drugs and incarceration in Argentina is about the numerous women who transport small amounts of drugs across the Argentine border for little money (“drug mules”), face long criminal sentences, and are filling up Argentinian jails.

The International Human Rights Clinics at the University of Chicago Law School and Cornell Law School and the Avon Global Center for Women & Justice have been working with the Defensor del Pueblo de la Nacion  in Argentina on a report that will be released this May about the causes, conditions, and consequences of women’s imprisonment.  Our survey, randomly administered to over 30% of Argentina’s women prisoners in the federal prison system, showed that over 50% of women were in jail for drug-related crimes.

In the interviews we conducted of women in prison in Argentina in October 2012, we met with many women who said they did not know they were carrying drugs, including, Sharon Armstrong, the woman who is briefly mentioned in the New York Times Magazine article.  One young woman said a friend asked her to carry chocolates across the border that had drugs laced in it and another was asked to carry soap with drugs.   These women are all serving a 4 ½  year jail sentence.

Under U.S. foreign policy pressure as part of the “war on drugs”, many Latin American countries adopted harsh drug laws.  Consequently, the incarceration rate in Argentina for women increased by more than 800%, almost double the increase in incarceration for men for the same period.  It is high time that the United States and other countries such as Argentina re-think the lengthy jail sentences for people who make little profit from the drug business, but pay the price for it.