The Trump administration has expressed a strong preference for enhanced law enforcement responses to substance use issues.Sanger-Katz and Kaplan, “Lots of Opioid Bills,” 2018. In March, former Attorney General Jeff Sessions issued guidance to federal prosecutors encouraging them to seek the strictest penalties possible for violent and nonviolent drug-related crimes.Sessions also raised the possibility of capital punishment for murder related to racketeering crimes, gun deaths occurring during drug trafficking crimes, and murder related to criminal enterprise. Memorandum from Sessions, “Guidance Regarding Use of Capital Punishment,” 2018; and Breuninger, “Attorney General Jeff Sessions Outlines When to Use Death Penalty,” 2018.
This included the death penalty in “appropriate cases,” including for gun deaths occurring during drug trafficking crimes.Memorandum from Sessions, “Guidance Regarding Use of Capital Punishment,” 2018; and Breuninger, “Attorney General Jeff Sessions Outlines When to Use Death Penalty,” 2018.
Citing the opioid crisis as justification, Sessions also prescribed pursuing capital punishment for cases involving “dealing in extremely large quantities of drugs.”Memorandum from Sessions, “Guidance Regarding Use of Capital Punishment,” 2018; and Breuninger, “Attorney General Jeff Sessions Outlines When to Use Death Penalty,” 2018.
The White House, too, has called for the death penalty for drug trafficking.Dan Mangan, “President Trump Vows to 'Liberate' United States from Opioid Epidemic: 'Failure Is Not an Option,'” CNBC, March 19, 2018.
Prosecutors have also used sentencing enhancements to seek increased punishment for those convicted of certain drug offenses.U.S. Sentencing Commission, Application and Impact of 21 U.S.C § 851: Enhanced Penalties For Federal Drug Trafficking Offenders (Washington, DC: U.S. Sentencing Commission, 2018), 17; and Memorandum from Attorney General John Ashcroft, “Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencing” (Washington, DC: Office of the Attorney General, September 22, 2003). In a July report, the U.S. Sentencing Commission analyzed the impact of 21 U.S.C. § 851, which authorizes enhanced penalties for federal drug trafficking offenses.U.S. Sentencing Commission, Application and Impact of 21 U.S.C § 851, 2018, 2. These enhanced penalties are not automatic; prosecutors must follow procedures to trigger them, including filing what is known as an “851 information.”U.S. Sentencing Commission, Application and Impact of 21 U.S.C § 851, 2018, 2., 2-3. But the commission found that in more than half the cases in which an 851 information was filed, the person being sentenced was black, and that black people were about one-and-a-half times as likely to have an 851 information filed in their case as white people.U.S. Sentencing Commission, Application and Impact of 21 U.S.C § 851, 2018, 2., 2-3., 7. Acting Attorney General Matthew Whitaker has a record of favoring these sentencing enhancements: during his tenure as a U.S. Attorney in Iowa, Whitaker’s office filed 851 informations more often than almost any other U.S. Attorney’s office.Michael Kranish, “As U.S. Attorney, Whitaker Sought Longer-Than-Usual Drug Sentences,” Washington Post, November 21, 2018. And his successor, William Barr, oversaw President George H.W. Bush’s “war on drugs” policies as U.S. Attorney General and doesn’t appear to have softened his views in the intervening years, as evidenced by a 2015 letter encouraging senators Mitch McConnell and Harry Reid to oppose sentencing reform because “[m]andatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years. ”Letter from John Ashcroft, William Barr, Rudolph W. Giuliani, et al. to Senators Mitch McConnell and Harry Reid Re: Sentencing Reform and Corrections Act of 2015, December 10, 2015.
Critics contend that tough sentencing guidelines are more likely to be enforced against people with smaller—but more frequent—offenses, rather than against so-called “drug kingpins.”Pew Charitable Trusts, Federal Drug Sentencing Laws Bring High Cost, Low Return (Washington, DC: Pew Charitable Trusts, 2015). And a May study found racial disparities in charging and sentencing people under "drug-induced homicide" laws—another tactic designed to be used against traffickers—raising additional concerns for how their application can cause lasting harm to, for example, people already reeling from the death of a friend.Leo Beletsky, “America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis,” May 18, 2018.