Faced with a nationwide opioid epidemic, President Donald Trump has touted the death penalty for drug dealers as a necessary solution to reduce America’s skyrocketing number of fatal overdoses. Trump believes employing the death penalty exemplifies getting “tough” on dealers; however, according to Fordham Law Professor Deborah W. Denno, a leading death penalty expert, the plan represents the opposite, and, if implemented, will have no impact on achieving the president’s stated goal.
Trump publicly proposed on March 19 using the death penalty for drug dealers as a remedy for the opioid crisis, which claimed more than 64,000 overdose victims in 2016, according to the Centers for Disease Control. Two days later, U.S. Attorney General Jeff Sessions sent a memo to U.S. Attorneys advising them of “appropriate cases” for which to seek the death penalty, including murder related to racketeering crimes, gun deaths occurring during trafficking crimes, and murder related to criminal enterprise. Sessions’ memo also included “dealing in extremely large quantities of drugs.”
Trump’s pro-death penalty stance is not unique among presidents—nor does it represent new rhetoric for him—but his apparent willingness to employ the measure on people convicted of crimes not directly linked to murder is a distinct departure from his predecessors, Denno noted. Further, Trump’s death penalty proposal clashes with the law, public health realities, and the declining use of the death penalty in America.
“The death penalty has always been this political vehicle that presidents and attorney generals bring out to signal toughness,” Denno said. “But in the end, it has nothing to do with toughness. It’s ineffective, highly expensive, and never serves the purpose it’s purported to serve.”
“The issue on the campaign trail with Trump was how far his death penalty rhetoric would go,” Denno added. “This is an answer. But it’s one thing to say this sort of thing, and another to push it through.”
Congress passed federal legislation in 1994 allowing prosecutors to seek death against drug kingpins. However, the U.S. Supreme Court has placed barriers against executions for killings that weren’t intentional. Federal executions, in general, are very rare. Only two people have been executed for federal crimes since 2001: Oklahoma City bomber Timothy McVeigh, and drug trafficker Juan Garza, who was convicted of murdering three other drug traffickers.
Trump emphasized the need to execute drug dealers based on the rationale that “dealers kill thousands of people during their lifetime”— a claim, Denno said, that has no factual or legal basis. Drug overdoses are not intentional killings, and the cause and effect linking them to an individual’s death is more tenuous than an actual murder, the professor explained.
Beyond the legal critiques of Trump’s proposal, the medical and health communities have pushed back against his plan because it does not treat opioid addiction. The American Society of Addiction Medicine estimated in 2015 that 2 million Americans had a substance use disorder involving prescription pain relievers (e.g., oxycodone, hydrocodone, fentanyl, etc.) and almost 600,000 more had a substance use disorder involving heroin.
“Considering the perception that most of the people selling drugs are opioid addicts themselves this is not a group of people that will be responsive to any kind of threat,” Denno said. The Trump administration’s death penalty proposal also does not address prescription-related opioid addiction.
Even if Trump’s death penalty proposal followed the law, offered a deterrent against drug dealing, and provided a public health benefit, it would still have one more major problem: the difficulty associated with securing a death penalty conviction and subsequently executing people.
As of April 25, nine convicted murderers have been executed in four states, according to the Death Penalty Information Center. Those nine men spent an average of 17 years on death row. This year’s statistics are a trend rather than an anomaly. Twenty people were executed in the United States in 2016, marking a 25-year low.
“We can talk as tough and as big as we want, but the bottom line is juries aren’t convicting people and prosecutors aren’t going for the death penalty even if they have the discretion to do so,” Denno said.