Death penalty for pot owners?

Highly unlikely, but memo pushes prosecutors to seek capital punishment

The Denver Post

To the litany of challenges facing Colorado’s state-licensed marijuana business owners, add another one: The federal government could — but probably won’t — try to execute them.

This week, U.S. Attorney General Jeff Sessions sent a memo to the nation’s federal prosecutors urging them to seek the death penalty in cases involving largescale drug traffickers. The memo points to an existing but little-known federal law that already allows for such a punishment.

Sessions’ memo talks largely about opioids, but federal law contains no such drug-specific limitation on prosecutors’ power. Trace the law’s meandering route through federal statutes and you’ll come to this conclusion: Anyone convicted of cultivating more than 60,000 marijuana plants or possessing more than 60,000 kilograms of a substance that contains marijuana could face death as a punishment.

So, did Sessions just green-light using the death penalty against the nation’s largest marijuana business owners?

“I think it’s still very theoretical,” said Sam Kamin, a University of Denver law professor who specializes in marijuana law and in the death penalty. “I don’t think anyone thinks the federal government is going to seek the death penalty against a state-licensed business. But what it highlights is this enormous disconnect with federal and state law.”

Aaron Smith, the executive director of the National Cannabis Industry Association, similarly dismissed the possibility of executions for marijuana business moguls, even if it is technically possible under the law.

“I really think that’s just bluster,” he said.

The Washington Post’s Christopher Ingraham was among the first to notice the latest Sessions memo’s potential impact on licensed marijuana businesses, which, while legal under their states’ laws, are criminal drug traffickers under federal law.

But Smith and Kamin said they and others familiar with the fine intricacies of marijuana law have known about the death penalty provision for a while. They questioned whether it would hold up under a Supreme Court challenge.

The key to the law is the quantity of plants an operation cultivates — 60,000, double what is needed for federal prosecutors to seek a lifetime prison sentence. Colorado’s biggest marijuana businesses are secretive when it comes to how many plants they are growing at one time; state regulators won’t re-

lease that data for individual businesses.

But asked how many businesses have more than 60,000 plants in their warehouses and greenhouses, Smith said, “There are many.”

In June, the last month for which this data is available, there were nearly 1 million marijuana plants under cultivation by Colorado’s state-licensed cannabis businesses.

In California, one of the biggest dispensaries is building out a farm it expects will grow 100,000 plants at a time. And Smith said laws in states that have more recently adopted legal marijuana but limit the number of sales licenses available have probably increased the number of super-sized pot grows in the country.

But, even if marijuana business owners won’t be headed to death row, Kamin said the memo has another impact — especially coming from an official who has not hid his disdain for the cannabis industry.

“What Sessions is reminding us,” Kamin said, “is that losing your life is at least statutorily possible.”