After Jeff Sessions issued a memo urging prosecutors to seek the death penalty for those “dealing in extremely large quantities of drugs,” even mainstream media outlets began raising the alarm that this could actually be used against large-scale legal cannabis cultivators in places like California. Is this threat at all realistic?

Attorney General Jeff Sessions, the Trump administration’s notorious anti-drug hard-liner at the top of the Justice Department, has issued a memorandum calling on federal attorneys to pursue capital punishment in “appropriate cases” of “drug-related prosecutions” — including for those “dealing in extremely large quantities of drugs.” The memo referenced the “opioid epidemic,” and made no mention of cannabis. However, execution for producing or trafficking cannabis in sufficient quantity does actually qualify for the death penalty under a Clinton-era law.

 

Sessions released the memo on March 21, two days after President Trump delivered a speech in New Hampshire calling for the execution of drug offenders. “If we don’t get tough on the drug dealers, we’re wasting our time,” Trump told a crowd of supporters in Manchester. “That toughness includes the death penalty.”

 

An obvious irony is that many of the opioids widely abused in places like Manchester are FDA-approved and produced legally by pharmaceutical companies. But the feds do not recognize the laws that have legalized cannabis in nine states since 2012.

 

Even mainstream sources like NBC News are airing fears that Sessions’ new policy could actually be used against large-scale cannabis cultivators in states that have legalized cannabis.

 

The industry certainly took note in California, where large agricultural businesses are planning to convert sprawling properties in the Central and Salinas valleys to cannabis.

 

Adam Spiker, executive director of the Southern California Coalition, a cannabis industry trade group, told NBC: “To not acknowledge the difference between a regulated cannabis business and a heroin kingpin is unfathomable. We will stand up against these outdated, draconian policies.”

 

Tom Angell, founder of the Washington, D.C.-based advocacy group Marijuana Majority, told NBC that growers and retailers who deal in state-legal cannabis could fall under federal guidelines for the death penalty, which include 60,000 kilograms of marijuana or $20 million in gross receipts in a year.

 

“Mr. Sessions’s threat has the potential to destroy not only the state-legal cannabis industry, but more importantly, the lives of ordinary, law-abiding people,” added Michael S. Hiller, a New York-based attorney who last year sued Sessions unsuccessfully in a challenge to the illegal status of cannabis. (The case was brought on behalf of then-12-year-old Alexis Bortell, whose family moved from Texas to Colorado so she could get cannabis oil to treat her epilepsy, and others.) “If the state-legal cannabis industry were to be destroyed, millions of Americans who depend on medical cannabis to live would be unable to treat with their medication.”

 

Bonita “Bo” Money, founder of the National Diversity and Inclusion Cannabis Alliance (NDICA), told NBC that the application of the country’s drug laws has always been racially skewed. “The real drug dealers are Big Pharma,” she said. “Now they want to target people of color in the cannabis industry.”

How realistic is Sessions’s death penalty threat?

Large-scale cannabis cultivators and traffickers — quantified by at least 60,000 plants or kilos — may indeed be sentenced to death under the Federal Death Penalty Act, which was an amendment to the 1994 Violent Crime Control and Law Enforcement Act. (The Drug Importer Death Penalty bill of 1997, which would have lowered the quantity for capital punishment to kick in, fortunately failed to pass.)

 

But, examining the question in light of the Sessions memo, the Washington Post writes: “Experts say that no cases have ever been tried under this provision, and that it’s almost certain that it would be declared unconstitutional if any such case were to be appealed to the Supreme Court.”

 

Tamar Todd, legal affairs director at the Drug Policy Alliance, told the Post, “The Supreme Court has never upheld the death penalty for a crime that did not involve death.”

 

On the other hand, Aaron Smith, executive director of the National Cannabis Industry Association, agreed with his colleague Tom Angell’s comment to NBC about the potential thread to cannabis producers. He told the Post that “there are many state-licensed cannabis businesses cultivating 60,000 plants or more.”

 

While the Washington Post raised the hope that the courts would block any attempt by the Sessions Justice Department to use the law against legal cannabis producers, there is also the hope that Congress will rein in federal prosecutors. Sessions last year called on congressional leaders to overturn federal protections on medical marijuana that have been in place since 2014. These are in the text of the so-called Rohrbacher-Blumenauer amendment, which bars the use of federal funds to target companies and individuals compliant with states that have legalized medical use.

 

The Rohrabacher amendment was just extended through September in the new federal budget bill. However, a similar measure to restrain the feds from all cannabis enforcement in states that have generally legalized did not make it. The McClintock-Polis amendment died in committee. The new Sessions memo will certainly raise the pressure for such a measure to pass next year.