President Donald Trump said Monday that one way his administration will combat the opioid crisis is by increasing criminal penalties, including seeking the death penalty for drug traffickers.
While the legislative branch, and not the executive branch, enacts federal law, the president doesn’t need Congress for this objective.
This is because capital punishment is available for drug traffickers in the federal system; it's just not used. And it might be unconstitutional.
The president can unilaterally increase penalties by simply enforcing existing law, and using extant death penalty provisions.
The death penalty is authorized against a defendant who has directed a continuing criminal enterprise involving either large quantities of drugs, or if $20 million is generated from the enterprise in a one-year period.
In 1994 through the Federal Death Penalty Act, the availability of capital punishment was expanded to some 60 criminal offenses. Nearly all federal statutes providing for the death penalty do require a concomitant death. Espionage, treason and trafficking in large quantities of narcotics are exceptions to this rule; the death penalty can be imposed for these crimes without an accompanying fatality.
In practice, the government has not sought death for these kinds of offenses since the reintroduction of capital punishment into the federal criminal justice system in 1988.
But the president could seek to enforce existing law and give life to the death penalty for drug traffickers.
Then, the Supreme Court might stop him.
In 2008, the Supreme Court ruled that use of the death penalty should be reserved for crimes that take the life of the victim.
In deciding whether punishment is cruel and unusual, in violation of the Eighth Amendment, the court has "looked to the evolving standards of decency that mark the progress of a maturing society." The Eighth Amendment requires that a capital sentencing scheme must restrict capital punishment to a narrow category of the most serious crimes, and offenders whose extreme culpability warrants execution.
As the law stands today, capital punishment appears limited by the court to murder or other crimes that result in the death of the victim.
The court also has imposed other limitations: Even where a death does result from a felony but the defendant was not the actual killer, the defendant must additionally be (1) a major participant, and (2) exhibit reckless indifference to human life, in order to be eligible for capital punishment. Although federal drug crimes feature numerous mandatory minimum sentences, a mandatory death sentence would also likely be unconstitutional, according to a 1976 Supreme Court case.
The president may wish to impose the death sentence for drug crimes. But he cannot create this legislation; only Congress can. The president could, however, attempt to enforce the existing laws permitting capital punishment for trafficking in large amounts of drugs. Either way, the Supreme Court would likely strike down the statute or undo the individual sentence if presented with the opportunity.
However, a Supreme Court with a different roster might take a different view of precedent, and of the "evolving standards" that allow flexibility when reviewing Eighth Amendment cases. A president with enough time, and enough commitment to the mission of capital punishment for drug offenders, could populate the court with strategic appointments.
Another way is convincing Congress to pass legislation expanding capital punishment to more crimes. If Congress does so, however, it must be mindful of constitutional strictures.
Danny Cevallos is an MSNBC legal analyst. Follow @CevallosLaw on Twitter.