Here's another post from my client who is considering whether the death penalty will work as a fix for our drug problems.

The Case against the Death Penalty as a Fix for our Drug Problems

by Paul Brakke

     The previous three articles in this series have entertained the suggestion by the President that the death penalty should be imposed on drug traffickers who have caused the overdose deaths of numerous addicts.  Consequently, we know that the opioid crisis is extremely severe, and that it has been "tamed" in Singapore and China to a great extent by their institution of the death penalty for drug traffickers.  So would a similar measure work here?  After all, the U.S. applies the death penalty on many crimes, including murder, terrorism, and treason.

     In many ways, our society is not like those in Singapore or China.  To be effective, China uses public sentencing to strengthen the deterrent.  That might not go over as well in the U.S.  Singapore has used extensive top-down authority to keep its many ethnic groups in check and to guard against offenses to the public order, even gum chewing, which are the kinds of things that states' rights groups in the U.S. would find offensive.  But the biggest cultural difference is that Asian societies value their elders more than we do and are more willing to do as they are told.  Besides, U.S. liberals are not inclined to defer to the President on matters where they disagree.

     These Asian countries probably don't have as many violent foreign drug traffickers as we do.  Given the lucrative profits inherent in the drug trade, it is hard to imagine drug kingpins and gangs in Mexico, Central America and Colombia being deterred by the threat of a death penalty.   In fact, these gangs are known for violence, which has resulted in tens of thousands of deaths in these turf battles.  And some cartel leaders have been able to hide away for years to rule their gangs, and a few have managed to live like kings in their "prisons" or have gotten accomplices outside to help them engineer elaborate escapes, such as El Chapo did as one of the biggest Mexican drug lords.

     What else would need to be taken into consideration?  Here are some slippery slope issues:

• Where do you draw the line?  Should the death penalty be imposed on those who have sold X number of grams of heroin in a certain period of time or those who have supplied the heroin that resulted in Y number of cases of heroin overdose? And how would these numbers be determined?  Whatever numbers are set for the penalties to kick in would have to be substantiated in a court of law.  How would we translate grams of heroin to milligrams of fentanyl?  Would a small time dealer who had been given a bad batch of fentanyl-laced "heroin" be more liable than the bigger dealer who supplied him?  If he had checked out the product personally, he'd probably be dead.  Many lower level dealers or smugglers act more as conduits or "mules" who sell or transport what they have been given without checking the merchandise.  How guilty should they be, given their lack of knowledge of the potency or value of what they are transporting?

• What about prescription painkillers?  There is little doubt these started our national crisis, since opioids were responsible for 42,249 deaths in 2016 according to the Center for Disease Control and Prevention, [1] and 63,600 deaths that year according to the National Center for Health Statistics. [2]   So it's no wonder that there is a sense of crisis about these drugs leading to a major cause of death.  Yet relatively few deaths result directly from unintentional overdoses of prescription painkillers. We are certainly right to limit their use, but it seems excessive to impose the death penalty for prescribing physicians or the companies that manufacture them, since these drugs have their legal uses and save millions from debilitating pain or death.  Shouldn't the real culprits be the individuals who abuse them or the drug dealers who provide these pills through illicit channels to users and abusers?

• What about other illegal drugs?  Methamphetamine might well fall into the same category of causing deaths, although not as many (only 7663 in 2016, according to the "Overdose Death Rates" report from the National Institute for Drug Abuse).[3]  Personally, I would contend it should be in the same category as the opioids.  But what about PCP or ecstasy?  These may cause violent behavior but probably not as many deaths.  What about cocaine?  Overdoses due to cocaine totaled 10,619 in 2016. [4]    Crack cocaine devastated the black community some number of years ago, then subsided, but overdoses due to cocaine are on the rise again more recently.[5]  We should be more selective in determining which drugs are the most responsible for causing a large number of deaths, and then limit the death penalty to dealers of those drugs.

• What about marijuana?  There are very few reported cases of death by marijuana overdose.  It is not even as dangerous to adults as alcohol.  And now marijuana is legal medicinally in 30 states, and recreationally in 8 of those. A majority of Americans (61-64%, including 51% of Republicans according to polls by the Pew Research Center and Forbes)[6] favor its legalization. Under the circumstances, it would be hard to imagine making the death penalty applicable to marijuana dealers.

• What about alcohol?  We've been there before with Prohibition.  Too bad that didn't work, because alcohol probably costs even more to society than the opioid crisis, including lots of violence and deaths.  The President knows this all too well, having lost his brother to alcohol addiction. Wisely, he just says no, but most Americans don't seem to be able to follow suit.  The death penalty won't work for alcohol.  There are too many millions of users.

• What about tobacco?  Now that causes even more deaths than alcohol. The deaths are much more delayed and chronic and have cost the health of sufferers and the healthcare system a fortune.  Unfortunately tobacco is still legal; otherwise cigarette manufacturing executives who deceived the public for years would be prime candidates for death penalty consideration.

     As you can see, there are numerous practical considerations that would make the death penalty idea problematic to implement.  The President deserves credit for politically incorrect outside-the-box thinking on this critical issue, and I agree that many opioid traffickers deserve the death penalty, but I am afraid that a greater emphasis on the other aspects of his proposed fixes for the opioid crisis is probably in order.

     One last point.  Arkansas ranks second only to Alabama in terms of states prescribing the most opioids and in opioid abuse by young people.[7]  Mr. President, why didn't you come here to announce your opioid policy rather than New Hampshire, which you narrowly lost in 2016?  We gave you a 26.6% margin of victory against Hillary, and we certainly would have given you a warmer reception than freezing New Hampshire.  For that matter, so would West Virginia or Alabama, states with just as big opioid problems that gave you even larger margins of victory.