The state execution of drug smugglers that President Donald Trump has pushed for as part of his plan to combat the opioid crisis is already legal under a 1994 law passed at the height of the crack cocaine epidemic.

But in 24 years, federal prosecutors have never once used it. They hardly need to, considering the draconian penalties already available for punishing convicted drug smugglers.


Signed by President Bill Clinton, the 1994 death penalty statute was part of a clampdown on drug dealers in response to the crack epidemic, linked to a surge of crime and violence in American cities in the 1980s and 1990s. But it was a bridge too far even for zealous prosecutors because many believed it would be found to violate the Eighth Amendment prohibition of cruel and unusual punishment, said Ojmarrh Mitchell, a professor of statistics and criminology at the University of South Florida.

“In the absence of a direct link to a death, the constitutionality of death penalty prosecution is shaky at best,” said Douglas Berman, a law professor at Ohio State University.

The 1994 legislative package authorizes capital punishment against a defendant who directs a continuing criminal enterprise involving either large quantities of drugs or generating $20 million a year from the enterprise. It also includes 20-year mandatory minimum sentences for drug sales that result in overdose deaths. It has been used to execute drug kingpins for murders committed in the course of their business.

At the state level, meanwhile, at least 20 states have their own “drug-induced homicide” laws, which increasingly are used to prosecute opioid dealers whose drug sales result in accidental overdose deaths.

But in as many as half of the state homicide-by-drugs cases, the accused dealer is also the wife, husband, parent or friend of the victim — and also a drug addict.

This points to the schizoid nature of a policy that seeks to boost treatment for drug users while lowering the boom on drug dealers. Often, say researchers and prosecutors, user and dealer are one and the same — and neither knows the specific drug substances in play.

“The evil villain in this story is very hard to find,” said John Roman, a drug policy researcher at NORC at the University of Chicago. “The people who are convenient for arrest for the most part aren’t that evil villain.”

In its comment on a 2008 child rape case, the Supreme Court effectively removed drug smuggling per se as a capital crime, said Berman. “It has never been pursued, and if it were pursued with Trump’s urging, there would be extensive litigation that would go to the Supreme Court.”

Trump might have more luck convincing Congress to pass a law under the 1987 Tison v. Arizona case, in which the court approved the death penalty on the grounds of “reckless indifference to human life,” Berman said. That standard might apply, say, to a dealer wrangling pounds of carfentanil, which is 5,000 times as potent as a unit of heroin and which can kill in nearly molecular doses.

But most policy experts view harsh drug sentences as causing more harm than good by sending hundreds of thousands of small-time criminals to prison. The war on drugs has had no impact on drug prices, for instance.

“There were 15,000 drug offenders behind bars in 1980, and 500,000 today, but the price of heroin is at an all-time low, the price of cocaine is at an all-time low,” says Mark Kleiman, a drug policy expert at New York University.

There are dealers who “are in this to make money and don’t care if they kill people in the process,” and “those people should be incarcerated,” said Thomas Carr, director of the Washington/Baltimore High Intensity Drug Trafficking Area, part of a White House-coordinated anti-drug effort.

But “a lot of people buying or selling are not aware that they are buying fentanyl,” Carr said. “They think it’s heroin.”

Trump invoked the death penalty six times during his remarks in New Hampshire, a state hit hard by the addiction crisis. Attorney General Jeff Sessions said in a statement later Monday that his Justice Department would “continue to aggressively prosecute drug traffickers and we will use federal law to seek the death penalty wherever appropriate.”

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Sessions has already pushed for harsher penalties for dealers, including by increasing charges for handling tiny amounts of fentanyl.

Ironically, however, prosecutions of drug use and trafficking declined in fiscal year 2017. This followed a trend begun in the Obama administration, which encouraged alternatives to prison time. Post-election reorganization of federal prosecutors’ offices may have stymied Sessions, Berman said.

In one recent case, in December, federal prosecutors obtained a 30-year sentence against a Wellington, Fla., drug dealer whose client died after taking a mixture of heroin and fentanyl.

Jon Zibbell, a medical anthropologist at RTI International who regularly interviews opioid dealers and users, warned against a 1980s-style panic in response to fentanyl’s lethality. A major new drug enforcement push could swell the prison population with low-level dealers without making a dent in supply — just like the response to the crack epidemic, he said.

“There’s this myth out there that dealers don’t care if their users live or die,” Zibbell said. “I’ve never encountered that. I just think that fentanyl is a hard product to mix safely.”

State and federal prosecutors, under pressure from grief-stricken relatives of overdose victims, are pressing for harsh penalties against dealers, said Dave Aronberg, state attorney for Palm Beach County.

“The No. 1 thing the federal government could do to reduce deaths is to pressure China to end export of fentanyl, because that’s what’s killing people,” he added.

Josh Gerstein contributed to this report.

