Pubdate: Wed, 21 Mar 2018
Source: Boston Globe (MA)
Copyright: 2018 Globe Newspaper Company


President Trump made big news in New Hampshire this week with his call
for applying the death penalty to big drug dealers - and that only
goes to show that bad policy makes for easy headlines.

The best explanation of why that's a thoroughly wrong-headed approach
is also the simplest: Western societies don't execute people for those
kinds of crimes. Nor should we start.

Without using names, Trump cited conversations with international
leaders who supposedly told him their countries have no drug problems
because they have the death penalty for drug traffickers. Only a
handful of nations routinely execute drug smugglers or traffickers.
Among them: China, Iran, Saudi Arabia, Indonesia, the Philippines,
Vietnam, and Malaysia. That's hardly an honor roll of nations that
respect human rights and liberties or the process of law; their
leaders are not the people Trump should be consulting on criminal
justice policy.

And notwithstanding Trump's assertion that the death penalty works as
a deterrent, there's little real evidence that his claim is actually
true. Iran has been executing drug offenders for years without ending
its drug problem.

Since 1994, federal law has contained a provision allowing for the
death penalty for drug kingpins, though no one has been so sentenced.
Trump says the Department of Justice will now start seeking capital
punishment for "big pushers."

If the DOJ does take that path, it seems likely the US Supreme Court
would block such an execution. Putting someone to death for a crime
other than first-degree murder has become increasingly anathema to
American jurisprudence. As the high court said in 2008, in Kennedy v.
Louisiana, in which it overturned the death penalty for a man
convicted of the brutal rape of a minor: "As it relates to crimes
against individuals . . . the death penalty should not be expanded to
instances where the victim's life was not taken."

The court noted that its decision there did not specifically address
what it called "offenses against the State" such as "treason,
espionage, terrorism, and drug kingpin activity."

Still, the court has also said that the death penalty should be
confined "to a narrow category of the most serious crimes" and applied
only to those "the most deserving of execution."

Such a prosecution would likely run up against the matter of intent,
which is central to Western jurisprudence. The intent to kill, for
example, is necessary for a first-degree murder conviction. The intent
of drug trafficking, however, is not to kill the drug user, but rather
to make money by supplying his or her habit. Further, the act of
ingesting or injecting the drug is not forced upon the user, but
instead something that person undertakes himself. Thus, as serious as
the opioid overdose epidemic has been, it's hard to see the resulting
deaths as tantamount to the deliberate and premeditated taking of lives.

The president made his call in the offhand way he does with so many of
his half-baked ideas. It deserves to be treated no more seriously than
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MAP posted-by: Matt