Attorney General Jeff Sessions released a memo on Wednesday officially directing federal prosecutors to seek the death penalty for some drug traffickers. The memo follows comments made by President Trump in New Hampshire on Monday where he unveiled his plan to combat the opioid epidemic.
“If we don’t get tough on the drug dealers, we’re wasting our time,” Trump said. "Some countries have a very, very tough penalty -- the ultimate penalty -- and by the way, they have much less of a drug problem than we do."
Sentencing drug dealers to death is constitutionally questionable. The Supreme Court has consistently ruled that capital punishment is only appropriate for crimes that directly result in in a death. But even if this proposal ends up being legally sound, it comes at a time when the death penalty is less popular than it's ever been.
“By every marker, we see that the public and the states are turning away from the death penalty. Support in public opinion polls is at historic lows, and the trend line is only going down,” says Cassandra Stubbs, director of the ACLU Capital Punishment Project.
In fact, just days before Trump traveled to New Hampshire, the state's Senate passed a bipartisan bill abolishing the death penalty. The bill still has to make it through the House, and Republican Gov. Chris Sununu has sworn to veto it. But its passage -- which wasn't possible in 2016 because it lacked enough Republican support -- is indicative of a broader shift over the last decade.
Since 2007, six state legislatures have outlawed the death penalty: Connecticut, Illinois, Maryland, New Jersey, New Mexico and New York. That brings the total number of states where capital punishment is illegal to 19. In four additional states -- Colorado, Oregon, Pennsylvania and Washington -- governors have placed moratoriums on executions.
Where capital punishment is an option on the books, it's rarely used -- 30 states have not executed a single person in the last 10 years. In New Hampshire, despite the governor’s opposition to abolishing the practice, the state has not executed anyone since 1939.
In many cases, carrying out executions has become morally fraught and logistically impossible. States have struggled to obtain the necessary execution drugs, in some cases leading courts to halt the practice. And after several botched executions, states like Ohio and Oklahoma have been forced to enact moratoriums.
Supporters of ending or restricting the use of the death penalty have historically been Democrats, but the tide has begun to turn among conservatives.
“Many of us conservatives don’t trust government to launch a health-care program or fill potholes, let alone carry out life and death,” Marc Hyden, a former field representative with the National Rifle Association who now works for Conservatives Concerned About the Death Penalty, told Governing in 2016. “It’s the quintessential broken big-government program.”
Last year, seven states, many of them red, put forward bills to prohibit the death penalty for people who suffer from a serious mental illness -- Arkansas, Indiana, Ohio, South Dakota, Tennessee, Texas and Virginia.
In 2016, a bill to abolish the death penalty in Kentucky fell short by just a single vote in a House committee. The year before, the Nebraska Legislature overrode a governor’s veto to end the practice And in Montana, the House evenly divided on the issue, killing a repeal bill for now.
Still, a slim majority of Americans continue to support the practice, as they have proved at the ballot box.
The Nebraska law to repeal the practice, for instance, never took effect because in 2016, voters approved a ballot initiative restoring the death penalty. That same year, California and Oklahoma voters reaffirmed their commitment to capital punishment, either restoring or strengthening the practice in their states.
But the ACLU's Stubbs says the trends are clear.
“There is no question," she says, "the death penalty is on the way out in America."