This commentary was originally posted on the American Constitution Society Blog.
Thanks to President Trump, Attorney General Sessions and some in Congress, the opioid crisis has kick-started a War on Drugs reboot. In March Trump outlined his administration’s blueprint for confronting the public health emergency instigated by skyrocketing opioid overdose deaths, emphasizing a highly punitive response: “If we don’t get tough on the drug dealers, we’re wasting our time… and that toughness includes the death penalty.”
There is no doubt that we are in the eye of a drug crisis. The Centers for Disease Control and Prevention (CDC) reports that 63,632 people died in 2016 from a drug overdose, a 21 percent increase from 2015. Since 1999, the death toll from drug overdoses has grown to over 600,000. About two-thirds of these deaths involved an opioid. These stark statistics deserve national attention and action by the nation’s leaders, but the tragic consequences of the opioid crisis are an indictment of failed drug policies that for too long have emphasized investments in incarceration over treatment.
At the federal level those policies are epitomized by the mandatory minimum drug sentences enacted during the 1980s that are the harshest in the country. People convicted of drug offenses already constitute half of the Bureau of Prisons population and are serving an average of 11 years in prison. The racial disparity within this population is profound despite evidence that all racial and ethnic groups engage in illicit drug activities at similar rates. Indeed, the excessive imbalance in federal drug sentencing laws has led to important bipartisan efforts at reform, including Senate Judiciary Chairman Chuck Grassley’s Sentencing Reform and Corrections Act which seeks to lower mandatory minimum drug sentences.
The President’s pronouncement in support of increasing punishments for drug offenses, including the death penalty, provoked immediate condemnation from faith organizations, civil rights and legal groups and treatment providers. A letter sent to the President in response was signed by over 60 organizations. It stated:[R]atcheting up already tough sentences for people with drug convictions will produce little public safety benefit while carrying heavy fiscal, social, and human costs. Many people entering the criminal justice system are in the lower- and middle-levels of a drug operation. Incarcerating these individuals often results in their being replaced by other sellers willing to fill their roles, and does nothing to address the substance use disorders that users, and many sellers themselves, struggle with.
The Attorney General responded to the President’s call for expansion of the death penalty with a directive to Department of Justice prosecutors. At the federal level a death penalty statute for drug kingpins operating with very large quantities of drugs was enacted in 1994 but has never been used. Legal scholars contend it is unconstitutional. Nonetheless, Sessions announced that “this administration will not hesitate to pursue the maximum sentences allowed by law, including the death penalty” in combating opioids. The move at DOJ builds upon last year’s upending of the Obama-era Smart on Crime Initiative. Prosecutors now must pursue the most serious charges and sentences in all federal cases, including drugs.
In a rebuke of Grassley’s consensus driven reform, a Senate Judiciary subcommittee hearing on fentanyl in April highlighted new legislation from Republican Senators John Kennedy, Tom Cotton and Lindsey Graham that would dramatically lower the quantity of fentanyl required to trigger a mandatory minimum. In many cases just trace amounts of fentanyl or its analogues mixed with other substances could result in five or 10 years in prison.
At a press conference announcing the bill, Graham – a leading supporter of crack cocaine sentencing reform and the Sentencing Reform and Corrections Act – changed course by calling for substantially increasing sentences for fentanyl. Moreover, he announced plans to work with Senator Cotton “to explore the possibility of even stronger penalties—that could include the death penalty if the fentanyl results in someone’s death…. Increasing these mandatory minimums is well-justified.”
In advocates’ letter to Trump urging investment in treatment and prevention of substance use disorders, they pointed to the large gaps in access to medically assisted treatments which are found to be most effective in addressing opioids. “One study found that just 21.5% of people with opioid use disorder received any treatment between 2009 and 2013—including non-professional treatment such as self-help groups. Surveys reveal that one-third of people with substance use disorder did not seek out professional treatment because they lacked health care coverage or could not afford the cost.”
The War on Drugs is decades old and the harsh punishments it has brought about have been unable to prevent the opioid crisis. Reinvigorating this war with promises of more death sentences is both morally offensive and practically unsound. Rather, what we need is comprehensive investment in community health, expanded economic opportunity, and alleviating despair among marginalized populations. Officials should not see this public health crisis as an invitation to exacerbate mass incarceration.
Kara Gotsch is Director of Strategic Initiatives for The Sentencing Project, a national criminal justice research and advocacy organization. Follow her on Twitter at @KGotsch.