The president wants to kill drug dealers, which he thinks would be a legal, moral, and effective way to prevent opioid-related deaths. He is wrong on all three counts.
“Some countries have a very, very tough penalty — the ultimate penalty — and by the way, they have much less of a drug problem than we do,” Donald Trump said during a White House summit on opioid abuse last Thursday. The remark was consistent with reports of private conversations in which Trump has said drug dealers deserve the death penalty.
Federal law already authorizes execution for certain drug traffickers. Offenders subject to “the ultimate penalty” include leaders of criminal enterprises that sell 60,000 kilograms of marijuana, 60 kilograms of heroin, 17 kilograms of crack cocaine or 600 grams of LSD.
That provision has been on the books since 1994, but it has never been carried out. It probably never will, since it seems to be unconstitutional under a 2008 decision in which the Supreme Court said the Eighth Amendment requires that the death penalty be reserved for “crimes that take the life of the victim.”
Trump thinks drug-dealing falls into that category. “We have pushers and drugs dealers [who] are killing hundreds and hundreds of people,” he said on Thursday. “If you shoot one person, they give you life, they give you the death penalty. These people can kill 2,000, 3,000 people, and nothing happens to them.”
That way of characterizing the situation is rather misleading, since drugs do not fly up the noses or flow into the veins of anyone without assistance. People who choose to take drugs surely bear some responsibility for what happens afterward, especially if they combine different substances, as people who die from drug poisoning typically do.
There is nothing inherently criminal, let alone homicidal, about exchanging psychoactive substances for money, even if some of your customers die after consuming them. The U.S. Centers for Disease Control and Prevention, which counted about 15,500 heroin-related deaths in 2016, attributes some 88,000 deaths each year to alcohol and 480,000 to cigarettes. If heroin dealers are murderers, what about bartenders and tobacconists?
There is one important way in which illegal drugs differ from legal ones: Their composition and potency are much harder to predict. A vodka buyer knows he is getting a beverage with an alcoholic strength of 40 percent, while a heroin buyer has no idea what he is getting, which makes consuming it much riskier.
That uncertainty has been magnified in recent years by the increased use of fentanyl as a heroin adulterant and substitute. Since fentanyl is much stronger than heroin, it makes potency even more variable, multiplying the chances of lethal error.
You might think that a drug dealer who passes fentanyl off as heroin, leading to a fatal overdose, is guilty of something akin to negligent manslaughter. But when it comes to the content of the powder they are selling, dealers may be just as much in the dark as their customers.
Treating such deaths as homicides is not only unjust; it may have the perverse effect of making opioid-related fatalities more likely. The people who face prosecution tend to be relatives, friends, and acquaintances — the same people who are best positioned to seek medical assistance in the event of an overdose but who might be deterred by the possibility of a homicide charge should rescue attempts fail.
As that example illustrates, the government’s role in all of this is usually to make drug use deadlier. Prohibition created a black market in which purity and potency are inconsistent. Drug warriors drove nonmedical users of prescription opioids into that market by cracking down on pain pills and made the illicit substitutes more dangerous by trying to cut off the heroin supply, which fostered the proliferation of fentanyl.
If drug dealers have blood on their hands, so does anyone who supports the policies that created this situation, starting with the president.