The Trump administration’s initiative to combat the opioid epidemic aims to reduce drug demand, curtail illicit drug supply and expand addiction treatment. But the aspect that garnered headlines was President Trump’s repeated emphasis on seeking the death penalty for drug traffickers.
Could capital punishment be used in drug trafficking cases, and would it deter the crime? We looked at the legal history and scientific research to answer several key questions on the topic.
Is the president asking Congress to expand the death penalty statutes?
At this point, he has not explicitly done so. In his March 19 speech on combating the opioid crisis, Trump only vaguely said that it was time to to “get tough on the drug dealers. … And that toughness includes the death penalty.”
Trump, March 19: Drug traffickers kill so many thousands of our citizens every year. And that’s why my Department of Justice will be seeking so many much tougher penalties than we’ve ever had, and we will be focusing on the penalty that I talked about previously for the big pushers, the ones that are really killing so many people. And that penalty is going to be the death penalty.
But a fact sheet on the administration’s plan was more specific, saying the Department of Justice “will seek the death penalty against drug traffickers, where appropriate under current law.” (The emphasis is ours.)
Can federal prosecutors already seek the death penalty for drug traffickers?
In some cases, such as when drug traffickers commit a murder or homicide in conjunction with their drug dealing, the answer is clearly yes. There are currently 14 people on death row for committing homicides in the course of their drug trade, according to data kept by the Death Penalty Information Center. For example, Azibo Aquart was sentenced to death in 2012 for the murder of three people as a result of a turf war over a crack cocaine trafficking business in Connecticut.
Murkier, however, is the question of whether the administration can get death penalties against drug traffickers not directly tied to a homicide.
The massive crime bill signed by President Bill Clinton in 1994, the Violent Crime Control and Law Enforcement Act, greatly expanded the federal death penalty, including for those who traffic in a large quantity of narcotics even if the crime does not include a killing.
Attorney General Jeff Sessions referred specifically to that provision in a March 20 memo to the U.S. attorneys to “strongly encourage” federal prosecutors to pursue capital punishment against those “dealing in extremely large quantities of drugs.” Trump also seemed to refer to this provision when he said that without “really, really powerful penalties, led by the death penalty for the really bad pushers and abusers, we are going to get nowhere.”
To see what quantity of various drugs might trigger such a prosecution, see this story in the Washington Post. For the powerful opioid fentanyl, the threshold is 24 kilograms. The Drug Enforcement Administration says that “two milligrams of fentanyl (equivalent to a few grains of table salt) is considered to be a deadly dose for more than 95 percent of the American public.”
So, statutorily, the Trump administration has the authority to pursue the death penalty in such cases.
However, Robert Dunham, executive director of the Death Penalty Information Center, told us in a phone interview: “No administration, Republican or Democrat, has acted on that statutory authority.”
And that’s because of questions about whether such a case would withstand a constitutional challenge before the Supreme Court.
What does the Supreme Court have to say about this?
The Supreme Court has never weighed in directly on the question of whether it is constitutional to enforce the death penalty for a drug trafficker in a case not involving a homicide. But many experts believe the Supreme Court wouldn’t allow it.
“Everyone (or 99+%) believe it is unconstitutional as the Supreme Court has said that the death penalty for a non-homicide violates the 8th Amendment,” John Blume, a professor at Cornell Law School and director of the Cornell Death Penalty Project, told us via email.
Blume said the most recent example of the Supreme Court balking at the death penalty for a non-homicide crime is Kennedy v. Louisiana, in which the Supreme Court ruled in 2008 that it was unconstitutional to impose the death penalty against a man convicted of raping a child, because the child was not killed.
“Given that the Supreme Court has rejected capital punishment for rape, the probability that it would approve death for drug dealers is — according to my friends who study the Court — near zero,” said Mark A.R. Kleiman, a professor of public policy at New York University’s Robert F. Wagner Graduate School of Public Service, where he leads the Crime and Justice program. “A policy that’s never put into practice won’t influence anything.”
But the opinion for that case written by Justice Anthony Kennedy leaves the question open, as he wrote that “drug kingpin activity” could be considered “offenses against the State.”
Kennedy, Oct. 1. 2008: Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.
So if the Trump administration pursued the death penalty in such a case, it would likely be challenged, but no one can say for certain how the Supreme Court might rule.
What does scientific research say about whether the death penalty deters crime, specifically drug trafficking?
The short answer is scientists don’t know what effect, if any, the death penalty has on crime, including drug trafficking.
A 2012 report by the National Research Council, an affiliate of the National Academies of Sciences, Engineering and Medicine, surveyed the scientific literature on the effect of the death penalty, or capital punishment, on homicide rates and concluded that the research “is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates.”
For this reason, “claims that research demonstrates that capital punishment decreases or increases the homicide rate by a specified amount or has no effect on the homicide rate should not influence policy judgments about capital punishment,” the report said.
The report explains that research on the subject “suffers from two fundamental flaws” that make it unable to reach solid conclusions.
First, studies don’t compare the effect of the death penalty to other likely punishments, such as “a lengthy prison sentence” or “life without the possibility of parole.” In other words, studies don’t address what the report calls the “relevant question,” namely the “deterrent effect of capital punishment … over the deterrent effect of other available or commonly used penalties.”
Second, in order to quantify how much the death penalty deters potential murders, researchers have to agree on how criminals perceive the risk of execution in the first place — but they don’t agree. The report explains that “findings are very sensitive to the way the risk of execution is specified,” but “there is no logical basis for resolving disagreements about how this risk should be measured.”
What about research on the deterrent effect of the death penalty on drug trafficking?
Daniel Nagin, a professor of public policy at Carnegie Mellon University who also chaired the 2012 NRC report, told us in a phone interview that he doesn’t know of any research on whether the death penalty deters drug trafficking. There’s really only research on whether the death penalty deters homicide because that’s the crime for which most people are executed. And as we mentioned above, no one in the U.S. has been executed for drug trafficking to date.
Does research show imprisonment deters crime, especially drug trafficking?
Trump’s plan to combat the opioid epidemic also “calls on Congress to pass legislation that reduces the threshold amount of drugs needed to invoke mandatory minimum sentences for drug traffickers who knowingly distribute certain illicit opioids that are lethal in trace amounts.” The administration points specifically to fentanyl. So we also asked experts what role prison sentences might play in deterring drug trafficking.
In a nutshell, they told us incarcerating those who sell and make drugs may affect drug availability, but it’s not the most effective way to stifle drug trafficking and drug use by proxy.
Nagin, at Carnegie Mellon, told us that “law enforcement has a role to play,” but there’s “universal acceptance [among experts] that you can’t incapacitate your way out of drug dealing because someone will replace them.” By incapacitate, Nagin means imprison.
Richard Berk, a professor of criminology and statistics at the University of Pennsylvania, agreed. “If the supplier is taken off the streets, sooner or later someone else will become the supplier,” he said via email.
Kleiman, at NYU, also added by email that “deterring one drug dealer — like imprisoning him or executing him — just leaves a niche for another dealer, without substantially changing drug availability. And that’s just as true for ‘kingpins’ as for street dealers.”
Jonathan P. Caulkins, a colleague of Nagin at Carnegie Mellon, told us he agreed with Nagin’s statement generally, but he added that the effect differs depending on whom you’re incarcerating or for how long.
“I believe that incarcerating drug dealers does, all other things equal, reduce drug use. It is just not a very efficient way to reduce use of drugs in established markets (important proviso) when the dealer is someone who is easy to replace (so typical dealer, not a chemist with specialized knowledge),” Caulkins said in an email. “And, most people believe that giving more people shorter prison terms (e.g., 15 people get 3-year terms) does more than concentrating the same prison resources on one person (single person gets 45 year term). The right way to be skeptical about unfocused supply control is that it is inefficient, not that it necessarily has zero effect.”
But he added that he’s “very skeptical” of Trump’s plan to reduce the quantity of drugs needed to qualify for mandatory minimum sentences. “The whole notion of basing sentencing so heavily on weight is problematic,” Caulkins said. For example, “sometimes minor functionaries (couriers) possess large quantities, and kingpins don’t possess the drugs because they hire others to do that.”
So what law enforcement measures could reduce crime, specifically drug trafficking?
In a review of the literature published in the journal Crime and Justice in 2013, Nagin concluded that “there is substantial evidence that increasing the visibility of the police by hiring more officers and allocating existing officers in ways that materially heighten the perceived risk of apprehension can deter crimes.” Over the phone, he told us this would include drug trafficking, though in some cases increased policing might be “impractical.”
For example, the rate of drug overdose deaths in rural areas surpassed rates in urban areas in 2015, at a rate of 17 per 100,000 people compared with 16.2 per 100,000, according to the Centers for Disease Control and Prevention. In these rural areas, “sentinel policing” might not be as feasible as in urban areas, Nagin said. However, in 2015 six times more people still died of drug overdoses in urban areas (45,059 people) than in rural areas (7,345), so increased policing could impact areas where most deaths occur.
Caulkins also told us that “pursuing crooked doctors” can be a “very cost-effective” way to address the opioid epidemic in particular. “One can shut down a doctor who writes a thousand bogus prescriptions just by yanking their prescribing licenses,” said Caulkins. “That costs little, and it’s hard for the market to replace that ‘asset’ because there aren’t thousands of MDs eager to start breaking the law for extra money.”
Trump’s plan does include expanding efforts to prosecute doctors who write fraudulent prescriptions. The president’s plan also entails scaling up efforts to “[s]hut down illicit opioid sales conducted online.” Kleiman, at NYU, told us that addressing internet sales could be an effective means of combating drug trafficking.
“Since the big problem now is fentanyl and fentanyl analogues coming in from China, largely by mail, and largely bought on the Dark Web, I’d like to try to interfere with that process by setting up hundreds of fake sites pretending to sell Chinese-made fentanyl and simply keeping the money of whoever tries to buy,” he said. “That might — I stress might — interfere sufficiently with trust to make that market implode. But that’s speculation.”
Trump’s plan also calls for “expand[ing] cooperation with Mexico to reduce supplies of heroin.” In 2015, 93 percent of heroin recovered and analyzed in the U.S. was from Mexico. This was the third consecutive year that the data showed the majority of the drug recovered came from that country.
The president wants to build a wall to reduce the flow of drugs across the border, but most illegal drugs come in through legal ports of entry in passenger vehicles and tractor trailers. John Kelly, Trump’s chief of staff, told Congress in April 2017, when he was the secretary of Homeland Security, that the U.S. needs to also improve the use of technology – such as density meters that can “look” into vehicles for signs of drugs packed into tight areas.