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March 16, 2018

The latest account of Trump Administration's latest punitive ideas for responding to drug problems

Politico has this lengthy new article reviewing the soon-to-be-released (and perhaps still in development) plan from the Trump Administration to respond to the opioid crisis and other drug problems.  The piece is headlined "Trump finalizing opioid plan that includes death penalty for dealers," and here are excerpts (with an emphasis on punishment pieces though it seems there will be important public health parts to the coming plan):

The Trump administration is finalizing a long-awaited plan that it says will solve the opioid crisis, but it also calls for law enforcement measures — like the death penalty for some drug dealers — that public health advocates and congressional Republicans warn will detract from efforts to reverse the epidemic.

The ambitious plan, which the White House has quietly been circulating among political appointees this month, could be announced as soon as Monday when President Donald Trump visits New Hampshire, a state hard hit by the epidemic. It includes a mix of prevention and treatment measures that advocates have long endorsed, as well as beefed-up enforcement in line with the president’s frequent calls for a harsh crackdown on drug traffickers and dealers.

Trump’s plan to use the death penalty in some cases found at least one fan among congressional Republicans: Rep. Chris Collins of New York, one of the president’s most consistent cheerleaders. “I’m all in on the capital punishment side for those offenses that would warrant that,” he said when asked about the plans Thursday afternoon. “Including drug cases. Yep.”

But several congressional Democrats said they were alarmed by Trump's plan to ramp up punishment. “We are still paying the costs for one failed 'war on drugs,' and now President Trump is drawing up battle plans for another," said Sen. Ed Markey of Massachusetts. "We will not incarcerate or execute our way out of the opioid epidemic."

The White House's most concrete proposal yet to address opioids comes after complaints from state health officials and advocates that Trump has moved too slowly to combat the epidemic after his bold campaign promises to wipe out the crisis touching all parts of the country.

However, the plan could cost billions of dollars more than Trump budgeted — and likely far more than any funding package that Congress would approve — raising questions about how much of it can actually be put into practice. Trump's emphatic embrace of the death penalty for some drug dealers has also alarmed some advocates, who say the idea has been ineffective when tried in other countries and resurrects the nation’s unsuccessful war on drugs.

Under the most recent version of the plan, which has gone through several revisions, the Trump administration proposes to change how the government pays for opioid prescriptions to limit access to powerful painkillers. It also calls on Congress to change how Medicaid pays for treatment, seeking to make it easier for patients with addictions to get inpatient care. It would also create a new Justice Department task force that more aggressively monitors internet sales....

POLITICO obtained two versions of the White House plan and spoke with four individuals who have reviewed it. The White House confirmed that a plan was in development but didn’t respond to multiple requests for further comment. Many of the measures in the plan were recommended by the president’s opioids commission last fall or discussed at a March 1 White House opioid summit. For instance, it endorses a long-promised priority: greatly expanding first responders' access to naloxone, a medication used to reverse opioid overdoses. It also calls on states to adopt a prescription drug monitoring database that health care providers can access nationwide to flag patients seeking out numerous opioid prescriptions.

On the policing side, the plan would ramp up prosecution and punishment, underscoring the tension in how public health advocates and law enforcement officials approach the crisis. Public health advocates say the nation's opioid epidemic should be treated as a disease, with emphasis on boosting underfunded treatment and prevention programs. But some law enforcement officials back tougher punishments as a deterrent, especially for drug dealers. The two camps don’t always see eye-to-eye, at times pitting HHS and DOJ officials against each other. “There is a lot of internal dissension between the health folks and the enforcement folks,” said an official involved in the crafting of the plan.

While Trump this month repeatedly suggested using the death penalty to deter drug dealers and traffickers — an idea roundly opposed by public health advocates — many lawmakers have said they weren’t sure whether to take the idea seriously. “I would have to strongly evaluate and look at any proposal like that,” said Sen. Dan Sullivan (R-Alaska) on Wednesday. “I don’t know if the president was serious or just said it off the cuff. … It’s a big issue when you decide to bring a capital case or pass a law that allows for capital punishment.”

According to language circulating this week, the Trump administration will call for the death penalty as an option in "certain cases where opioid, including Fentanyl-related, drug dealing and trafficking are directly responsible for death."

Sen. Shelley Moore Capito (R-W.Va.), whose home state is one of the hardest hit by the opioid epidemic, said she doesn't support the death penalty for drug cases. “I mean, I get the message he’s delivering: We’ve got to treat it seriously,” she said. “I don’t see that that’s going to solve the problem.”

The White House plan also calls for making it easier to invoke the mandatory minimum sentence for drug traffickers who knowingly distribute illegal opioids that can be lethal, like fentanyl. It also proposes a new Justice Department task force known as “Prescription Interdiction and Litigation,” or PIL, which would be empowered to step up prosecutions of criminally negligent doctors, pharmacies and other providers.

As serious sentencing fans perhaps already realize, though any proposal for the death penalty for drug dealers is sure to garner a lot of attention, proposals to expand the reach or application of mandatory minimum sentences are sure to be far more consequential to the day-to-day operation of the federal criminal justice system.

Prior related posts:

March 16, 2018 at 07:42 AM | Permalink


The deceased have a low recidivism rate. Assuming no deterrence effect, kill enough dealers, eventually, there will be fewer drug deaths.

Posted by: David Behar | Mar 16, 2018 11:16:02 AM

But in certain precincts they have excellent voter turnout.

Posted by: Soronel Haetir | Mar 16, 2018 1:03:17 PM

This post brought back all of the death penalty class discussion we had. As we discussed in class, and as this post mentions, use of the death penalty is quite controversial and has several different and complex layers to it. The potential use of the death penalty in cases of drug trafficking/dealing I think will bring about a discussion for this new plan that does not necessarily have much to do with the plan's potential effect or success. For example, I think that the plan's suggested use of the death penalty in certain drug related cases could bring up discussions regarding all the different actors in death penalty cases and how those individuals can impact the cases. Overall, this plan seems to have several areas which will affect federal sentencing in drug-related cases from potentially affecting mandatory minimums to the death sentence in certain cases.
Based on this post, the proposed plan seems to be trying to approach the opioid crisis with a view from both law enforcement and public health sides. The plan appears to suggest stronger law enforcement for the drug traffickers/ dealers while also trying to make the drugs harder to get for drug users.

Posted by: MacKenzie Newberry | Mar 16, 2018 1:29:09 PM

SH. Sad, but still The Laugh of the Day.

Posted by: David Behar | Mar 16, 2018 1:51:57 PM

Mitt Romney will not face the death penalty according to this federal court decision by Judge Kugler. We will have to endure that smooth Harvard Law bullshit longer. They are really stupid, but smooth. Hey. Romney, you stink. The voter rejected you, and put Trump in to reverse the damage to our nation by Obama, another Harvard Law dirt bag. All that school teaches is big government tyranny. Even conservatives end up blowing up the size of government.


Posted by: David Behar | Mar 16, 2018 4:49:16 PM

The death penatly for drug dealers (not associated with a resulting death of a user) would no doubt run into constitutional problems.

See Kennedy v. Louisina (2008) ("a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments."). The Court pointed to the danger in laws such as Louisiana's, which allowed the death penalty where no murder was committed: "When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."

Posted by: Michael R. Levine | Mar 16, 2018 5:38:50 PM

Kennedy v. Louisiana also said:

"Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken."

The inclusion of "drug kingpin activity" here seems somewhat artificial -- how exactly is that specifically an "offense against the State" in unclear to me, but does leave open that the Federal Death Penalty Act (1994) as to drug kingpins is somehow constitutional. What is required to fit this category also is an open question, I guess.

Posted by: Joe | Mar 16, 2018 6:50:48 PM

The Supreme Court is in defiance of Article I Section 1. All its judicial reviews may be ignored by the federal government and by the states. The Court is breaking the law by making the law.

Posted by: David Behar | Mar 18, 2018 10:57:00 PM

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