Trump wants the death penalty for drug dealers. Here's why that probably won't happen

Former President Donald Trump spoke to New Hampshire voters during a CNN town hall held at St. Anselm College in Manchester Wednesday night. Audience members asked how he would tackle issues like abortion, Second Amendment rights, immigration and more. But nobody brought up the opioid crisis plaguing the Granite State.

Two of New Hampshire's major cities, Manchester and Nashua, saw a spike in opioid-related deaths at the end of 2022, WMUR reported in January, a 41% and 37% increase respectively. Like other states that have historically struggled with the health crisis attributed to drug makers and distributors, New Hampshire is slated to receive tens of millions of dollars in settlement payouts--an estimated $310 million--in the next 20 years.

However, Trump does have a plan for addressing America's drug problems, even if he didn't discuss it Wednesday night: institute the death penalty for drug traffickers, smugglers and dealers. It's an approach in stark contrast with much of the world — it's also a violation of international human rights laws.

This extreme position on drug offenses came right out of the gate with Trump's candidacy. During his campaign announcement last November, the former president drummed a familiar beat on securing America's southern border and combating Mexican drug cartels. He didn't go into detail on his promises, but did outline how he would handle certain drug offenses.

"We're going to be asking everyone who sells drugs, gets caught selling drugs, to receive the death penalty for their heinous acts," Trump said. "Because it's the only way."

But November wasn't the first time Trump suggested harsh penalties for drug offenders. It was another event in Manchester when he delivered a similar message as president. Speaking to a crowd at Manchester Community College on March 19, 2018, Trump espoused a strong response to drug crimes:

"... if we don't get tough on drug dealers, we're wasting our time, just remember that, we're wasting our time, and that toughness includes the death penalty," Trump lambasted.

Using the opioid epidemic as a backdrop at the time, Trump compared penalties for drug dealers and murderers. He claimed some drug dealers will kill thousands of people in their lifetime and that, if caught, they face light sentences: 30 days in jail, "they'll go away for a year," he told his supporters, "or they'll be fined."

"And yet if you kill one person, you get the death penalty or you go to jail for life."

Details about Trump's policy aren't clear

The former president has a history of making brazen policy promises that he did not deliver: having Mexico pay for a wall along the southern border, implementing a nation-wide concealed carry weapon permit and ending birthright citizenship to name a few.

NPR reached out to the Trump team with questions about the specifics of how he would combat Mexico's cartels specifically and drug crimes more broadly. The inquiry went unanswered. Still, there is publicly available information to determine the approach Trump intends to take, most notably in a 2024 campaign agenda.

He promises to "impose a total naval embargo on cartels" and demand the Department of Defense "inflict maximum damage on cartel leadership and operations". Trump said he'll have cartels designated as foreign terrorist organizations and will "choke off their access to the global financial system".

Furthermore, he pledged to work with neighboring governments to dismantle the cartels, backed by the threat of exposing "every bribe and kickback that allows these criminal networks to preserve their brutal reign".

The agenda concludes with Trump asking Congress to pass legislation to ensure drug smugglers and traffickers are eligible for the death penalty.

"When President Trump is back in the White House, the drug kingpins and vicious traffickers will never sleep soundly again," the pledge reads.

Is Trump's approach reasonable? Possible?

According to University of Notre Dame Law Professor Jimmy Gurulé, who also serves as the director of the university's Exoneration Justice Clinic, Trump's pledge to enact capital punishment for drug offenses isn't realistic.

In order for Trump's agenda to be implemented nationwide, he would have to convince the majority of lawmakers in Congress as well as those in state legislatures.

America's drug laws fall under Title 21 of the U.S. Code, where subsections 841 and 960, in essence, prohibit the manufacturing and distribution of controlled substances.

But drug charges can be tricky.

Gurulé explained that drug-related offenses violate federal and state laws. However, "the vast majority of drug trafficking offenses are prosecuted at the state level as a state criminal offense," he explained.

As a result, federal offenses make up only a "small fraction" of all drug smuggling prosecutions. Which is why if Trump somehow convinced a divided Congress to pass a death penalty bill--a long shot on its own--it would only apply on the federal level, thus not having much of an impact on sentencing for individual states.

"I think it may be intended to generate press headlines, but in terms of it being a serious recommendation, a serious proposal to a serious problem ... it's not a serious recommendation," Gurulé said.

In short, the former president's approach to tackling America's drug problem through the death penalty is bombastic; a promise he cannot keep.

States utilizing the death penalty are on the decline

As president, Trump reinstated executions of federal inmates sentenced to the death penalty in 2019. Before leaving the Oval Office in 2021, Trump oversaw 13 executions, more than any other president in at least 100 years, according to Federal Bureau of Prisons records.

There hasn't been a federal execution since President Biden took office.

However, executions at the state level have not stopped and Biden's 2020 campaign promise to abolish the federal death penalty remains unfulfilled.

Capital punishment is currently legal in 27 states, but it's falling out of favor with lawmakers. Four states (Colorado, New Hampshire, Washington and Virginia) have dropped the death penalty in the past five years.

Meanwhile, governors in California, Oregon and Pennsylvania have moratoriums prohibiting executions, according to the Death Penalty Information Center, and California Gov. Gavin Newsom, a Democrat, pledged to abolish the state's death penalty--America's largest death row --by 2024.

Some states that retain the death penalty haven't carried a sentence out in at least a decade, Gurulé said. Additionally, the District of Columbia and the military have not had an execution in that same time span.

"And so again, no matter how you look at it, the movement, the trend is clearly away from imposition of the death penalty," he explained.

But it's important to note that just because the public favor of the death penalty is on the decline, it is nowhere near a one-sided issue. In fact, a Gallup poll conducted last October suggests that 55% of Americans are in favor of capital punishment for convicted murderers, which is what the death penalty has historically been reserved for, Gurulé said. Those numbers extend a downward trend from 80% in 1976 but still represent more than half of the population.

Gallup has consistently found that Republicans are overwhelmingly in favor of the death penalty, while Democrats are increasingly less supportive year after year.

The downward trend is likely due in some part to America's ongoing racial reckoning.

For instance, California passed a 2022 bill targeting racial bias evident in death row convictions, an acknowledgment of the United States' history showing harsher conviction penalties for people of color. This is especially evident in drug offenses, as the Department of Justice reported nearly 80% of federal prisoners for drug charges were Black, Hispanic, or Latino between 1998 and 2012.

Capital punishment for drug charges goes against international human rights laws

The U.S. has 44 federal inmates on death row and more than 2,000 at the state level. It's in a small group of countries that carry out executions as a form of punishment, many of which the U.S. has often been critical of, Gurulé said.

An expansion of the death penalty for drug offenses in the U.S. would be a violation of the United Nations' International Covenant on Civil and Political Rights (ICCPR), a multilateral peace treaty designed to recognize and protect the basic human rights, which more than 170 countries abide by. The covenant says the death penalty should be carried out only for "the most serious crimes" in countries that have yet to abolish that form of punishment altogether.

"Unfortunately, [the] United States finds itself in that minority of countries, of that group of 55 countries that continue to retain the death penalty," Gurulé said. "... And again, sadly, that group of countries ... they're some of the most significant human rights violators in the world, such as Syria, China, North Korea, and here, the United States."

According to the ACLU, the United States has to comply with the treaty because after it was ratified in 1992, the covenant received federal law status under the U.S. Constitution's Supremacy Clause.

"The ICCPR applies to all government entities and agents, including all state and local governments in the United States," the ACLU states.

Violations of the treaty are brought before the UN's Human Rights Committee, which is made up of independent experts that monitor and enforce the covenant. Countries that fall under the treaty also have to stand before the committee in Switzerland for review every four-and-a-half years. In the U.S., the State Department submits a report to the committee for review, which then issues its concerns and recommendations.

The U.S. was last reviewed March 17, 2021, where the committee issued 347 recommendations, 280 of which were wholly or partially adopted. In a statement to the committee, the government acknowledged and addressed several violations, including the use of capital punishment.

"We received recommendations from 33 countries concerning the administration of capital punishment at the State and Federal level," the State Department's statement reads. "While we respect those who make these recommendations, they reflect continuing differences of policy, not differences about what the United States' international human rights obligations require."

With Trump's proposal to expand the use of the death penalty, he is reigniting a debate over the practice that remains unsettled.

Still, according to Gurule, even discussing capital punishment as a policy proposal threatens the status of the U.S. in the world when most countries condemn the death penalty.

"It really undermines the U.S.'s position when it's attempting to take the high moral ground and claim 'oh, you know, these other countries are human rights violators.'," he said. "Then the United States leaves itself open for criticism."