Dean's Desk: Death penalty for drug dealers unconstitutional (and unwise)

April 4, 2018

deans desk lyonAfter declaring the opioid crisis a national emergency, President Donald Trump is calling for the death penalty for drug dealers. There are many critics of this approach, and there should be. For example, Professor John Blume of Cornell University said the Federal Drug Kingpin Act, which allowed federal prosecutors to seek the death penalty in which a homicide occurred during the commission of a drug transaction, yielded, “few kingpins or major dealers — and mostly ensnared poor, African-American, mid- to low-level persons involved in the drug trade.”

Maria McFarland Sánchez-Moreno, executive director of the Drug Policy Alliance — a nonprofit group that seeks to end the war on drugs — called the policy “deeply cynical.”

“There’s a lot Trump should be doing; instead, he’s resorting to recycled drug war rhetoric, using his usual bombastic approach to rally his base,” Sánchez-Moreno said. “It reveals a lack of interest in helping the people who are affected by this crisis, and he’s using it for purely political goals.”

Sánchez-Moreno said Trump’s recent announcement wasn’t surprising, just disappointing.

“He’s been praising President (Rodrigo) Duterte in the Philippines forever, and that’s somebody who advocates going out and murdering people who use drugs.”

“We can’t execute our way out of this epidemic,” said Dr. Andrew Kolodny, co-director of the Opioid Policy Research Collaborative at Brandeis University. “To be talking about the death penalty sounds to me like a step backwards.”

What I want to comment on is not the political mistake such a policy is, or the fact that the so-called “war on drugs” has yielded only more pain, or even the moral and public health implications of such reactionary thinking. Instead, I would like to concentrate on the legal implications of such a policy.

This requires a brief primer on when the death penalty can be sought. In other words, who is eligible as a constitutional matter. The Eighth Amendment to the United States Constitution reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The United States Supreme Court has interpreted this to mean that there must be punishment that is proportionate to the offense. In other words, a punishment would violate the Eighth Amendment if it was disproportionate to the offense such as a prison sentence for a minor traffic violation. In 1977, the U.S. Supreme Court decided that the death penalty for the rape of an adult woman where there was no homicide, was disproportionate to the offense in Coker v. Georgia. The Court extended this holding in 2008 in Kennedy v. Louisiana, holding that the Eighth Amendment prohibits the death penalty even for rape of a child. However, in 1987 in Tison v. Arizona, the Supreme Court did not find the death penalty constitutionally disproportionate for brothers who broke their father out of prison, then went on a rampage, wherein the father killed four members of a family. Even though the father was the killer, and the brothers, while legally accountable, had evinced no intent to kill or participate in the killings. It is under this theory, one presumes, that President Trump would seek the death penalty for “major” drug dealers (which is not defined).

The constitutional problem with this is that while Tison did allow the death penalty to be sought for legally accountable non-killers, they did so because the Court found that “major participation in the felony committed, combined with reckless indifference to human life” would allow the state to request the death penalty. The court relied on the fact that the brothers brought a cooler full of guns into the prison as a major factor in making this decision, and of course, these homicides were committed with their direct aid.

The death penalty for a defendant who did not participate in a violent felony that resulted in the death of someone simply would not pass constitutional muster and is clearly a step backward from policy, public health, and constitutional perspectives.•


Andrea D. Lyon is dean and professor of law at Valparaiso University Law School. The opinions expressed are those of the author.


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