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The death penalty for drug dealers is a terrible idea. It’s also part of the White House’s new opioid strategy.

A plan to reduce opioid deaths by killing more people.

A bottle of prescription painkillers.

Education Images/UIG via Getty Images

Donald Trump’s White House plans to stop deaths from opioid abuse by putting more drug dealers to death.

The Trump administration is rolling out its plan to solve the opioid crisis Monday, when Trump is expected to visit Safe Station, a drop-in facility for opioid users seeking help and treatment, in Manchester, New Hampshire.

And according to administration officials, part of the plan will be to tell prosecutors to “seek the death penalty against drug dealers when it’s appropriate under current law.”

Killing drug dealers has become a Trump fixation. It’s an idea he seems to have picked up from governments in Southeast Asia — including the Philippines, whose president, Rodrigo Duterte, has overseen mass vigilante killings of alleged drug dealers and users. For the past few weeks, reports indicate that he’s continually brought it up in meetings with advisers and members of Congress — sometimes jokingly and sometimes not so jokingly.

While many of the ideas in the White House draft opioids plan come from the blue-ribbon commission the president appointed in 2017 — expanding access to the overdose-reversal drug naloxone and coordinating a national database of prescription drugs, for example — the death-penalty-for-dealers proposal bears the fingerprints of Trump himself.

Federal law allows prosecutors to seek the death penalty only for specific crimes — usually involving murder. A drug dealer, for example, can be sentenced to death for killing someone in the midst of committing a drug crime, or for killing or trying to kill a prosecutor or juror. But the law also allows prosecutors to ask for the death penalty for “drug kingpins” who are convicted of leading criminal enterprises that either involve large quantities of drugs (600 grams of heroin or of “a substance that contains a detectable amount of” fentanyl, for example) or that rake in huge amounts of money ($20 million in the course of a year).

The White House says that the death penalty should be an option only for the most serious dealers (and they’re particularly concerned about fentanyl). So that’s probably what they’re talking about.

Because the “drug kingpin” death penalty has never actually been used, it’s not clear whether it’s constitutional. The Supreme Court has struck down laws that allow people to be put to death for crimes that don’t involve homicides.

But constitutionality is really the least of the administration’s concerns. The bigger problem is that the policy is a bad idea that is not going to help, at all.

Like many policies Trump favors, its appeal to his allies (Rep. Chris Collins of New York, for example, has already said he’s “all in” on executing dealers) lies in the fact that it seems tough if you don’t think about it too hard. But there’s simply no evidence, at all, that this will actually reduce deaths from opioids — and quite a bit of evidence that it won’t.

Using the death penalty for dealers will either do nothing or do bad things

Some prosecutors, at both the state and federal levels, have started treating fatal drug overdoses as homicides as a way to slap longer prison sentences on drug dealers. (It’s hardly a wing-nut thing; one of the pioneers of this tactic was former US Attorney Preet Bharara of New York, who’s now a prominent Trump critic.)

Sometimes they’re just asking for longer sentences because the defendant’s product resulted in a death; sometimes they charge dealers with manslaughter or criminal negligence. The Florida state legislature passed a law last year allowing prosecutors to file murder charges against heroin or fentanyl dealers after fatal overdoses — a charge that allows them to seek the death penalty.

But there is no evidence that the tactic is succeeding in reducing the opioid crisis. And given everything we know about crime, it would be shocking if it did.

Classical theories of crime assumed that there were three factors of punishment that deterred people from committing a crime: swiftness, certainty, and severity. Modern social science has shown that the case for any of these is ambiguous and limited.

But to the extent that punishment can deter crime, it will only work if the would-be criminal is certain he’d be caught quickly and punished: certainty and swiftness. Increasing the severity of punishment, in other words, is the least effective lever a policymaker can pull.

This is definitely true when it comes to drugs; “there’s no good evidence that tougher punishments or harsher supply-elimination efforts do a better job of driving down access to drugs and substance misuse than lighter penalties,” my colleague German Lopez wrote last year, summarizing a 2014 report from Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago. “So increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs.”

That track record won’t suddenly improve when the death penalty is added to the punishment mix. The deterrent effect of being sentenced to death, as opposed to a long prison sentence, is either so small it hasn’t yet been captured in the research or it’s totally nonexistent. And in the meantime, the death penalty as currently practiced in the US is anything but swift and certain: Getting sentenced to death sets off decades of appeals and litigation as lawyers try every possible avenue to get the sentence struck down on procedural grounds.

In a worst-case scenario, encouraging prosecutors to go for the death penalty by filing the most serious possible charges could result in fewer dealers even going to prison. Prosecutors already have a hard time convicting dealers in overdose deaths because it’s hard to prove beyond a reasonable doubt that the victim was killed by a particular batch of drugs and that this particular dealer sold them to him. And it’s even harder to prove that the dealer knew the drugs were lethal. Leave a reasonable doubt and the dealer could walk away with an acquittal.

In a best-case scenario, the last person who touched the drugs before the victim — the only person who can definitively be tied to the overdose — will be convicted and sentenced to death.

For all Trump and other officials talk about “big drug dealers,” the fact of the matter is that most US drug enforcement treats everyone involved with moving drugs as serious criminals. It can be hard to tell the difference between a dealer and a courier, much less between a dealer at the bottom of the food chain and a kingpin.

A lot of drug dealers are also drug users — a 2017 Bureau of Justice Statistics study found that “nearly a third of drug offenders (30 percent of state prisoners and 29 percent of jail inmates) said they committed the offense to get drugs or money for drugs.”

In theory, drug users are supposed to be the people that Trump and his administration are trying to save from drugs. The way Trump paints it, users have to be saved from evil drug dealers. And because drug dealers are evil, the only way to curb them is to show them no mercy.

But the law, evidence, and logic all point to one conclusion: To the extent that anyone gets punished by a death penalty for drug dealers, it will be the people Trump is supposedly trying to help.

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