The People Trump's War on Drugs Will Actually Punish

The War on Drugs 3.0 began in earnest just last week. And it could have the same devastating effect on communities of color as the ones that came before.

In Manchester, New Hampshire—the hardest-hit city in a state that’s become the epicenter of America’s opioid crisis—President Trump announced a new plan ostensibly designed to combat the epidemic. The president played something of a warrior king, promising a far-reaching campaign to curtail prescriptions and a crackdown on illegal drug use. “Drug traffickers kill so many thousands of our citizens every year, and that’s why my Department of Justice will be seeking much tougher penalties than we ever have,” he pledged. “That penalty is going to be the death penalty.”

Trump’s rhetoric is, of course, familiar. Like his predecessors Richard Nixon and Ronald Reagan—who presided over the last major escalations in anti-drug policy—Trump anchored his appeal with a promise to return to law and order. And he vowed to use a similar tool: a federal dragnet to stop dealers with force, even lethal force if necessary.

But it’s the places where Trump’s strategy differs from his predecessors’ that marks a truly novel turn in policy. On the demand side, the administration proposed some new public-health-oriented policies for treating substance use that advocates have clamored for. And on the supply side, Trump pushed strongly for capital punishment—a measure that is legal, but has rarely been used within a drug-trafficking context. On the whole, the new War on Drugs endorses developments in drug policy that may only deepen the vast racial divides within the American criminal-justice system: sympathy for a mostly white base of users, and naked aggression toward people of color.

These two visions for federal drug policy have been on display from the start of Trump’s presidency, when the White House began its slow, meandering path toward confronting the opioid crisis, the most deadly drug epidemic in American history and one that now kills more people than breast cancer. In his joint address to Congress in 2017, Trump distinguished dealers, who should be dealt with harshly, from users, who simply needed help—promising to “stop the drugs from pouring into our country and poisoning our youth,” and to “expand treatment for those who have become so badly addicted.”

Until last week, the most significant action Trump had taken on opioids was the creation of a commission on drug addiction, chaired by former New Jersey Governor Chris Christie. The commission’s final report, released in November, urged a broad set of reforms, including: an overhaul of the federal funding system for substance-abuse programs, tighter prescribing guidelines and regulations, heavier federal monitoring of patient drug use and abuse, more research, and greater access to “medication-assisted treatment” and the anti-overdose drug naloxone. Taken together, it was a group of ideas with deep traction in the public-health and advocacy communities. Armed with $6 billion from Congress’s two-year budget agreement to fight the opioid crisis, the White House has started applying some of them.

On the criminal-justice front, however, Trump’s approach goes much further than the commission’s. The commission recommended a number of highly punitive measures, including beefed-up drug-trafficking surveillance and “the enhancement of federal sentencing penalties for the trafficking of fentanyl and fentanyl analogues.” Reflecting the bifurcated nature of the health-related and criminal-justice recommendations, public-health officials expressed conflicted feelings about the report. “The opioid commission was a mixed bag, with some good public-health recommendations,” said Grant Smith, the Drug Policy Alliance’s deputy director of national affairs. But “the question now is: How will [those recommendations] stand up to President Trump’s punitive approach to the opioid-overdose crisis?”

The Department of Justice has already begun mobilizing on Trump’s new drug-enforcement agenda. Writing in a memo on Wednesday, Attorney General Jeff Sessions made clear to U.S. attorneys that there’s legal support for using the death penalty in specific drug cases. He told them: “Congress has passed several statutes that provide the Department with the ability to seek capital punishment for certain drug-related crimes. I strongly encourage federal prosecutors to use these statutes, when appropriate, to aid in our continuing fight against drug trafficking and the destruction it causes in our nation.”

The infrastructure for enhanced punishment in drug cases—including the death penalty—was first put in place in 1988, through Reagan’s Anti-Drug Abuse Act. Those guidelines allow for the execution of two categories of offenders: so-called kingpins who traffic large amounts of drugs, and those who commit murders during drug-related activities.

Still, despite this legal foothold, it isn’t likely U.S. attorneys will suddenly act on the president’s endorsement. Federal death-penalty cases are exceedingly rare, in part, because the Supreme Court has generally held that the death penalty only applies to cases where someone is killed. Absent a new policy device to ramp up its use, Trump’s endorsement was “a little less than it seems,” as a Washington Post explainer put it.

Indeed, the death-penalty threat could have little effect on the behaviors of dealers. “The idea behind this is that if you blow a lot of smoke about the death penalty, it will deter people from taking those actions,” said Mark Osler, a law professor and former federal prosecutor. But “that’s a pretty weak theory of deterrence.” In fact, it may be the weakest theory. As Vox’s Dara Lind notes: “The deterrent effect of being sentenced to death, as opposed to a long prison sentence, is either so small it hasn’t yet been captured in the research or it’s totally nonexistent.”

But it would be a mistake to think that Trump’s rhetoric—even if that’s all it amounts to—is meaningless. The federal government has a major role in shaping national consensus, especially at a time when public opinion has only recently begun shifting toward treating drug use as a public-health issue.

“My sense is that he’s certainly using rhetoric in a way that he hopes to galvanize the public around this issue, and attempt to show that he’s addressing it,” said Lindsay LaSalle, a senior attorney with the Drug Policy Alliance.

Trump’s reinforcement of the most Hammurabian pieces of drug policy could, over time, derail the new public-health understanding. Even if it doesn’t stop dealers from their work, it could affect how individual Americans think about drug policy, how juries consider drug cases, and how legislators (not to mention law enforcement) react. In other words, just as activists have begun pushing the pendulum away from the most punitive excesses of the ongoing drug wars, with the right amount of influence government could move Americans toward supporting those punishments again.

For example, the 1988 Anti-Drug Abuse Act was critical in the proliferation of so-called Len Bias Laws—named after the standout Maryland college-basketball player who died from a cocaine overdose in 1986—in states across the country. Those laws allow for state death-penalty prosecutions for suppliers whose drugs lead to overdose deaths. Since a flurry of those measures passed in the 1980s and 1990s, they have gradually fallen out of favor. But as the opioid epidemic has worsened in recent years, they appear to be on the rise again. It’s difficult to track death-penalty prosecutions for drug-induced homicide—because some states simply started pursuing them under existing murder and manslaughter laws—but according to the Drug Policy Alliance, some measures indicate they’ve spiked over the past five years. “In 2011, there were 363 news articles about individuals being charged with or prosecuted for drug-induced homicide, increasing over 300% to 1,178 in 2016,” states a 2017 report from the group.

“We’ve seen those policies and practices increase significantly over the past five years,” LaSalle said. “One thing that Trump’s rhetoric does is that—even if it doesn’t specifically result in more death-penalty cases—is to legitimize what otherwise was an outlying view.”

If the public-health project continues to derail, the most important consequence would be this: Racial disparities within the criminal-justice system would dictate which Americans are disadvantaged most.

On the campaign trail through to today, part of Trump’s angle in opioid-ravaged areas of the country has been to paint the problem as one brought on by outside invaders. Instead of connecting New England’s rampaging opioid crisis to the more widespread “epidemic of despair” linked to deindustrialization, in New Hampshire last week Trump blamed dastardly felons from across the U.S.-Mexico border. As he’s told it, criminals use sanctuary cities as bases to get ordinary Americans hooked on drugs. The president employs a strategy similar to the one well-utilized by Maine Governor Paul Le Page. The governor blamed black dealers directly for drug problems in his state—saying, famously, that “guys with the name D-Money, Smoothie, Shifty” were responsible.

The reality is that drug dealers and drug users aren’t easily separable categories of people, no matter their race. For starters, it’s well-known that many people who supply drugs also use them. And in the fluid nature of drug transactions at the local level—where drugs are often passed informally between acquaintances, and people can share heroin laced with fentanyl without knowing it—many of the people caught with large quantities of drugs or subject to enhanced fentanyl sentences aren’t really distributors at all. And that’s not to mention the people operating in the murky boundaries between the legal and illegal sides of opioid distribution, where people often make money selling their own prescription drugs. It stands to reason that in mostly white communities, the drug supply chain is at the very least partially white, and also probably full of people with their own substance-use needs.

But reality doesn’t matter very much when one’s endeavor is to divide people in two: creating state protection and sympathy for one group of people, while wielding the full resources of the most advanced carceral state in history against another. White users have increasingly become the face of the opioid epidemic, while black victims in particular are largely discounted from public consideration, despite data showing shocking rates of drug deaths in the black community. This disparate treatment could have public-health implications, with new resources funneled primarily to white communities. And it could have drastic law-enforcement implications, too: Black and Latino people are already much more likely to be policed, arrested, and sentenced than their white counterparts. Black Americans especially still face criminalization from the last two major iterations of the drug war, two campaigns that never really stopped. It doesn’t exactly take a leap in logic to determine who’s most likely to get caught up in an anti-opioid dragnet: black and Latino victims and suppliers alike.

But perhaps the most remarkable consequence of the Trump plan is how it may not even help many white people. Criminalization will inevitably destabilize some white communities, too, and federal and state criminal-justice initiatives will only siphon funds and attention away from public-health programs, which even with the addition of $6 billion in federal money are woefully underfunded. It’ll largely be up to states to choose between joining in the administration’s harsh prosecutorial campaign, or firmly rejecting it in favor of the public-health paradigm.

A year ago, Donald Trump in his inaugural address made a promise to stop the “American carnage” of  “the crime, and the gangs, and the drugs that have stolen too many lives and robbed our country of so much unrealized potential.” But it’s clear from his track record—his exhortations to police to brutalize suspects, his invocation of the specter of crime in Chicago, his accusations about black protesters being fueled by drugs, and now, his drug policy—that all that’s in front of the country is more of the same, or worse.