President Trump made big news in New Hampshire this week with his call for applying the death penalty to big drug dealers — and that only goes to show that bad policy makes for easy headlines.
The best explanation of why that’s a thoroughly wrong-headed approach is also the simplest: Western societies don’t execute people for those kinds of crimes. Nor should we start.
Without using names, Trump cited conversations with international leaders who supposedly told him their countries have no drug problems because they have the death penalty for drug traffickers. Only a handful of nations routinely execute drug smugglers or traffickers. Among them: China, Iran, Saudi Arabia, Indonesia, the Philippines, Vietnam, and Malaysia. That’s hardly an honor roll of nations that respect human rights and liberties or the process of law; their leaders are not the people Trump should be consulting on criminal justice policy.
And notwithstanding Trump’s assertion that the death penalty works as a deterrent, there’s little real evidence that his claim is actually true. Iran has been executing drug offenders for years without ending its drug problem.
Since 1994, federal law has contained a provision allowing for the death penalty for drug kingpins, though no one has been so sentenced. Trump says the Department of Justice will now start seeking capital punishment for “big pushers.”
If the DOJ does take that path, it seems likely the US Supreme Court would block such an execution. Putting someone to death for a crime other than first-degree murder has become increasingly anathema to American jurisprudence. As the high court said in 2008, in Kennedy v. Louisiana, in which it overturned the death penalty for a man convicted of the brutal rape of a minor: “As it relates to crimes against individuals . . . the death penalty should not be expanded to instances where the victim’s life was not taken.”
The court noted that its decision there did not specifically address what it called “offenses against the State” such as “treason, espionage, terrorism, and drug kingpin activity.”
Still, the court has also said that the death penalty should be confined “to a narrow category of the most serious crimes” and applied only to those “the most deserving of execution.”
Such a prosecution would likely run up against the matter of intent, which is central to Western jurisprudence. The intent to kill, for example, is necessary for a first-degree murder conviction. The intent of drug trafficking, however, is not to kill the drug user, but rather to make money by supplying his or her habit. Further, the act of ingesting or injecting the drug is not forced upon the user, but instead something that person undertakes himself. Thus, as serious as the opioid overdose epidemic has been, it’s hard to see the resulting deaths as tantamount to the deliberate and premeditated taking of lives.
The president made his call in the offhand way he does with so many of his half-baked ideas. It deserves to be treated no more seriously than that.