Academic journal article The Journal of Gender, Race and Justice

Lethal Connection: The "War on Drugs" and Death Sentencing

Academic journal article The Journal of Gender, Race and Justice

Lethal Connection: The "War on Drugs" and Death Sentencing

Article excerpt

I. Introduction

Many defendants on death row committed murders in which illegal drugs were somehow involved. This Article attempts to explain and quantify the involvement of drugs in the cases of death-sentenced defendants during the six-year period of 2004 to 2009 and to imagine the ways that death rows would look different if there had been no "War on Drugs."1 The Article will also examine the effects of drug-involved death sentences with respect to gender, race, and ethnicity (particularly Latino2 ethnicity).


The phrase "War on Drugs" denotes an anti-drug policy that is strict in four ways: first, all of the commonly used disfavored drugs (including heroin, cocaine, methamphetamine, and marijuana) are de jure criminalized; second, this de jure criminalization extends to both the drugs' possession in smaller quantities for personal use (hereinafter "possession") and their manufacture and distribution (hereinafter "distribution"); third, police investigation and prosecutorial pursuit of cases is de facto vigorous for both possession and distribution of all criminalized drugs; and last, that sentences for those convicted are stiff, both de jure and de facto.3 The predominant American approach to the problem of drugs is the "War" mode, despite some leniency with respect to marijuana.

The "War on Drugs" has four well-known, incontestable economic and social effects: first, by creating artificial scarcity, the "War on Drugs" causes higher prices than if the commodities were legal;4 second, it allows criminal organizations (gangs) to comprise most of the supply chains;5 third, it creates a need for black market actors to use self-help, often including violence, since they cannot resort to help from governmental sources like police and courts;6 and fourth, it creates a pool of "off the grid" potential crime victims-persons involved with drugs who make inviting targets for robberies and mayhem because they have disincentives to report such crimes to the authorities.7 These effects produce increased violence, including murders, above what the levels would be if drugs were legal.8 Increases in the number of murders inevitably lead to an increase in the number of capital murders, which leads to an increase in the number of death sentences.9

III. Drug-Related Murders and Death Eligibility

Every jurisdiction's death-sentencing scheme has two stages that determine whether a defendant receives a death sentence.10 At the first stage, a defendant must be "death-eligible"; that is, the murder must embody at least one of the criteria specified by the legislature, called "aggravating circumstances" in most jurisdictions, to put the defendant within the category of murderers for whom death is a possible sentence.11 At the second stage, both the prosecutor and the sentencer must deem the defendant "death-worthy." The prosecutor uses his or her discretion to decide to pursue the death penalty as a sentence. The sentencer, typically a jury, renders a defendant "death-worthy" by returning a verdict in favor of imposing the death sentence.12

At the first stage, several jurisdictions have an aggravating circumstance that makes a murder death-eligible because it occurred as part of a drug-trafficking offense.13 However, few, if any, death sentences appear to be imposed based on the drug-trafficking aggravator alone; rather, drugrelated, death-sentenced murders are usually premised on aggravators that are not peculiar to drug trafficking, most commonly murders during robberies and/or home burglaries, multiple murders, murders to eliminate witnesses, gang-related murders, and murders of police officers.14 Thus, drugs play a background role on the legal issue of who is death-eligible.

As to the second stage-death-worthiness-the processes and rationales, by which a few murderers receive death sentences out of the much larger pool of death-eligible murderers, are mysterious. …

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