Public Health Experts Criticize Trump’s Proposal to Seek Death Penalty for Drug Traffickers

Saying ​“the ulti­mate penal­ty has to be the death penal­ty,” President Donald Trump (pic­tured) announced on March 19 that he will direct the Department of Justice to seek the death penal­ty against drug traf­fick­ers. The pro­pos­al, includ­ed as part of the administration’s plan to address an opi­oid epi­dem­ic that has result­ed in as many as 64,000 over­dose deaths in 2016 alone, drew imme­di­ate crit­i­cism from pub­lic-health and crim­i­nal-jus­tice experts. ​“We can’t exe­cute our way out of this epi­dem­ic,” said Dr. Andrew Kolodny, co-direc­tor of the Opioid Policy Research Collaborative at Brandeis University. ​“To be talk­ing about the death penal­ty sounds to me like a step backwards.” 

During the announce­ment, Trump acknowl­edged resis­tance to his death-penal­ty pro­pos­al, say­ing, “[m]aybe our coun­try’s not ready for that. It’s pos­si­ble, it’s pos­si­ble that our coun­try is not ready for that.” 

Since 1994, fed­er­al law has autho­rized the death penal­ty for ​“drug king­pins” who traf­fic in large quan­ti­ties of drugs, even if no killing has occurred. But the U.S. Supreme Court has ruled that the death penal­ty is uncon­sti­tu­tion­al for crimes against indi­vid­u­als in which no one is killed, and no pri­or admin­is­tra­tion — Republican or Democratic — has used the drug king­pin pro­vi­sion to seek the death penalty. 

Experts said the opi­oid cri­sis should be dealt with as a pub­lic-health issue and that harsh­er penal­ties for drug deal­ers would not fix the prob­lem. Instead, they said, the admin­is­tra­tion should focus on addic­tion treat­ment. ​“The real­i­ty is, most peo­ple who are sell­ing drugs are suf­fer­ing from opi­oid addic­tion, and they sell drugs to sup­port their own habit,” Dr. Kolodny said. ​“When I start hear­ing about the death penal­ty, it just seems to me we’re going in the wrong direc­tion.” Dr. Guohua Li, pro­fes­sor of epi­demi­ol­o­gy and anes­the­si­ol­o­gy at Columbia University, agreed, say­ing “[c]riminal jus­tice can play a com­ple­men­tary role in address­ing the opi­oid cri­sis, but rely­ing on the crim­i­nal jus­tice sys­tem to address pub­lic health prob­lems has proven unwise, cost­ly, inef­fec­tive and often counterproductive.” 

Legal experts said the con­sti­tu­tion­al­i­ty of death sen­tences for drug deal­ers would like­ly be the sub­ject of exten­sive lit­i­ga­tion. ​“The death penal­ty is uncer­tain as a con­sti­tu­tion­al­ly per­mis­si­ble pun­ish­ment with­out that con­nec­tion to an inten­tion­al killing,” said Ohio State University law pro­fes­sor Doug Berman. Hamilton County, Ohio, Prosecuting Attorney Joe Deters, known for aggres­sive­ly pur­su­ing the death penal­ty, said “[t]o seek a death penal­ty case [sim­ply for for drug traf­fick­ing] would be almost impos­si­ble. We’d have seri­ous con­sti­tu­tion­al prob­lems.” Former Harris County, Texas, homi­cide pros­e­cu­tor Ted Wilson called the pro­pos­al ​“kind of over-the-top.” The death penal­ty for drug deal­ers ​“in my opin­ion just doesn’t fit,” he said. 

Senator Dick Durbin (D‑Illinois) com­pared the President’s death-penal­ty pro­pos­al to past failed drug poli­cies, say­ing, ​“We can­not arrest our way out of the opi­oid epi­dem­ic — we tried that and end­ed up with an even big­ger addic­tion prob­lem and the world’s largest prison pop­u­la­tion. The war on drugs didn’t work in the 80’s, and it won’t work now by reviv­ing failed deter­rence mea­sures like the death penal­ty for drug deal­ers. We must instead crack down on the over-pro­duc­tion and over-pre­scrib­ing of painkillers, and increase treat­ment for those suf­fer­ing from addic­tion — both of which have bipar­ti­san sup­port in Congress.” 

A study by the Pew Charitable Trusts, released March 8, found that harsh­er penal sanc­tions had no mea­sur­able impact on drug use, drug over­dose deaths, and drug arrests. The data, Pew said, ​“rein­force a large body of pri­or research that cast doubt on the the­o­ry that stiffer prison terms deter drug mis­use, dis­tri­b­u­tion, and oth­er drug-law vio­la­tions. The evi­dence strong­ly sug­gests that pol­i­cy­mak­ers should pur­sue alter­na­tive strate­gies that research shows work bet­ter and cost less.”

Federal death sen­tences have been imposed for drug-relat­ed crimes at least twen­ty times when a per­son was mur­dered in con­nec­tion with drug traf­fick­ing, and Juan Garza was exe­cut­ed in 2001 for a drug-relat­ed mur­der. Fourteen pris­on­ers are cur­rent­ly on the fed­er­al death row for such offenses.