Donald Trump has made clear he encourages the death penalty for drug traffickers. The plan found at least one supporter, although public health advocates and most lawmakers believe such a proposal would only make the opioid epidemic worse. Seeking the “ultimate penalty” for drug dealers is simply the wrong policy call to solve the opioid crisis.
Under current federal law, the death penalty can be applied to drug trafficking cases where death occurs — for example, if an individual is directly killed during a drug crime, or if a drug trafficker kills a juror. However, Mr. Trump’s proposal suggests an expanded use of the “drug kingpin” provision in federal law, which allows prosecutors to seek the death penalty in cases where drug dealers on the “kingpin” list are involved in a criminal enterprise involving large amounts of drugs or cash flow. No administration has ever used this provision against a defendant in this way.
Putting drug dealers to death is an idea that Mr. Trump appears to have adopted from a number of Southeast Asian countries, including the Philippines, Singapore and China. Filipino President Rodrigo Duterte, in particular, has overseen mass vigilante killings of alleged drug dealers and users. Both China and Singapore have also come under fire for human rights abuses relating to executions. These are not countries we should strive to emulate in this regard. Addressing our opioid crisis through execution would put us in a club with the dictators and human rights-abusers of the world.
Furthermore, the president’s policy suggestion is inconsistent with the conservative principles he says he espouses. The core of conservatism is a limited government, which fosters fairness and stands against unauthorized government action. There is ample evidence, however, indicating that the American justice system has administered the death penalty in an unfair and unlawful manner and continues to do so. Indeed, studies dating back to the 1930s reinforce the notion that minorities and impoverished citizens have been treated inequitably within the system.
Drug cases especially are fraught with complications. Prosecutors have an uphill battle convicting dealers of overdose-related charges — it’s hard to prove that the dealer provided the particular drugs causing the overdose and that the dealer knew the drugs would kill the individual. Additionally, the method by which an individual is placed on the “kingpin” list lacks rigor and can occur for political reasons. All of this uncertainty makes it even more likely that human error will occur and that innocent people will be sentenced to death. Death is a uniquely final punishment, and when the justice system makes mistakes, the cost is innocent human lives. Approximately one in 25 people sentenced to death under existing policy were likely not guilty, according to one study. We should not tolerate a policy that encourages that number to grow.
In fact, that is one reason why the Supreme Court has continually cabined the death penalty in the last 50 years, including protecting children and the mentally-disabled from its reach. It is also why death penalty defendants are uniquely afforded far more process in the court system, including lengthy trials and appeals. The additional process makes death penalty cases incredibly expensive. According to the Death Penalty Information Center, the average trial in a federal death penalty case costs more than $600,000 — eight times more than a trial where the death penalty is not sought.
For the most heinous of crimes, life without parole meets the justice system’s goals without wasting resources and further hurting victims. Take the case of serial killer Rodney James Alcala, who murdered at least five young women. Thanks to the additional process the system affords capital-punishment defendants, the mother of one of the young women, Robin Samsoe, had to go through the pain of 30 appeals, writs and a retrial. The judge involved now wishes he’d given Rodney Alcala the option of life, to spare Ms. Samsoe that pain.
If the reason for the death penalty is that it is a deterrent — that people will stop dealing drugs because they might be executed — that reasoning is refuted by the evidence. States that impose the death penalty have a higher murder rate than those that do not. Additionally, researchers have compared murder rates before and after abolishing the death penalty, both within the United States as well as abroad, and have found the threat of death seems to have little effect on behavior. States have been executing fewer people over the last two decades, but the rates of violent crime have continued to fall steadily.
Our justice system isn’t just the apparatus that keeps us safe, it is a reflection of who we are. Given the multiple issues that plague capital punishment, expanding the death penalty reach to drug kingpins is not only bad policy, it goes against our collective American values of fairness and justice.
Nila Bala (Twitter: @nilabala3)is a criminal justice senior fellow with the R Street Institute and a former Baltimore public defender. Arthur Rizer (Twitter: @arthurrizer) is a former federal prosecutor and served as a law enforcement officer for 20 years; he is currently director of criminal justice and national security policy with the R Street Institute.