Can the Death Penalty Actually Stem the Opioid Epidemic?

March 20, 2018
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by Anjali Tsui Abrams Journalism Fellow, FRONTLINE/Columbia Journalism School Fellowships

President Trump invited Jeanne and Jim Moser to speak about their son, Adam, who died of an opioid overdose in 2015. Trump pledged to punish drug traffickers with the death penalty during an announcement in New Hampshire on Monday, March 19, 2018. (AP Photo/Elise Amendola)

On Monday, President Trump called for executing drug traffickers to tackle the opioid epidemic.

“If we don’t get tough on the drug dealers, we’re wasting our time … and that toughness includes the death penalty,” Trump said during a visit to New Hampshire, one of the states hardest hit by the epidemic.

Explaining his call for capital punishment, Trump said, “drug dealers will kill thousands of people during their lifetime … and yet, if you kill one person, you get the death penalty or you go to jail for life.”

Trump’s call to “get tough” on drug dealers marks a distinct break from policies during the Obama administration that focused on treating the opioid epidemic as a public health crisis.

Under federal law, a person may be sentenced to death for committing a murder while engaged in drug-related activities, like trafficking or a drive-by shooting.

Prosecutors may also pursue the death penalty against a person who has trafficked large quantities of drugs as part of a continuing criminal enterprise. This “drug kingpin” provision in the Death Penalty Act was signed into law in 1994 by former President Bill Clinton. More than 20 years later, however, no administration — Republican or Democratic — has pursued the death penalty under this provision, according to Robert Durham, executive director of the Death Penalty Information Center.

The president’s proposal has alarmed many in the public health community, who fear a more punitive approach may only compound the epidemic. They argue that such “tough on crime” policies — like the death penalty — run counter to decades of research on how to effectively tackle drug addiction.

Maria McFarland Sanchez-Moreno, the executive director of the Drug Policy Alliance, warned that criminalizing drugs has tended to drive drug use underground and deter people from seeking help. She warned that harsh sentences have not been proven to reduce drug trafficking and “often have the opposite effect.”

“This is a cynical ploy by the administration to rile up Trump’s base, to look tough, to use failed policies,” she said. “It’s not going to make any difference. Meanwhile, Americans are going to keep dying.”

A recent study by the Pew Charitable Trusts found that incarcerating more people for drug offenses for a longer period of time did nothing to reduce drug use or overdose deaths. Researchers who compared drug imprisonment rates in all 50 states against three indicators found “no statistically significant” relationship between higher incarceration rates and reductions in self-reported drug use, drug arrests and overdose deaths. They say these findings debunk the idea that harsh prison sentences help to deter drug use and drug trafficking.

Many critics have described the president’s agenda as reminiscent of the federal government’s response to the rise of crack cocaine in the 1980s, which led to skyrocketing incarceration rates, especially among African American and Hispanic communities. Between 1980 and 2015, the number of people incarcerated for drug offenses rose from around 40,000 to more than 460,000. In 2016, black adults were more than five times more likely to be incarcerated than white adults, according to the Pew Research Center.

Another danger, experts say, is that low-level drug dealers who sell opioids to maintain their addiction could be disproportionately affected.

“You have to recognize — the distinction between drug dealer and someone who is opioid-addicted is not always clear,” said Dr. Andrew Kolodny, the co-director of opioid policy research at Brandeis University. “Many people who sell drugs are selling drugs to support their own habit.” Kolodny called the proposal “a step backwards.”

The United States is one of 33 countries and territories where it is legal to execute someone for a drug-related offense, according to a report released this month by Harm Reduction International, a London-based drug policy and human rights group. Yet, only seven countries — China, Iran, Saudi Arabia, Malaysia, Singapore, Vietnam and Indonesia — regularly issue the death penalty for such crimes.

President Trump has previously touted Singapore’s “zero tolerance policy” toward drug dealers as a potential model for the United States. The country has executed at least eight people for drug-related crimes since 2015, according to HRI. The effectiveness of this policy is difficult to gauge because there is no reliable government data on drug use in Singapore.

Iran executes more people per capita than any country in the world, according to HRI, many for low-level drug crimes. Yet, drug addiction remains prevalent. Earlier this year, the Iranian government moved to abolish the death sentence for certain drug offenses.

On the heels of the president’s announcement, Attorney General Jeff Sessions said in a statement that the Department of Justice will “aggressively” prosecute drug traffickers and “seek the death penalty whenever appropriate.” A spokesperson from the Department of Justice said that the agency may use several provisions under federal law to seek the death penalty.

Yet legal experts say federal prosecutors may face an uphill climb, given that the Supreme Court has previously ruled that the death penalty can only be used to punish crimes that result in a death.

Dunham from the Death Penalty Information Center said there is “no question” that the Department of Justice would face a challenge on “constitutional grounds” if it were to seek the death penalty for a drug trafficking case that did not result in a murder.

During Monday’s announcement, President Trump also proposed rolling out an ad campaign to deter people from using opioids. He applauded drug manufacturer ADAPT Pharma’s pledge to offer samples of Narcan, which reverses the effects of an overdose, to high schools and colleges around the country. Trump also promised to increase funding for non-addictive painkillers and reduce opioid prescriptions by one-third within the next three years.

The White House has also pledged to ask Congress to make it easier to impose mandatory minimum sentences for selling fentanyl.

More than 42,000 people died from opioid overdoses in 2016, according to the Centers for Disease Control and Prevention. According to the latest figures, hospital emergency rooms saw a 30 percent uptick in visits related to opioid-related overdoses between July 2016 and last September.

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