Jacob Sullum

Donald Trump can't seem to decide whether he wants to execute drug dealers or free them from prison. The former president's debate with himself reflects a broader clash between Republicans who think tougher criminal penalties are always better and Republicans who understand that justice requires proportionality.

Trump has long admired brutal drug warriors like Rodrigo Duterte, the former president of the Philippines. Consistent with that affinity, he has repeatedly floated the idea of imposing the death penalty on drug traffickers.

Trump returned to that theme in November, when he officially launched his 2024 presidential campaign. "We're going to be asking everyone who sells drugs, gets caught selling drugs, to receive the death penalty for their heinous acts," he said.

Trump reiterated that position during an interview with Fox News anchor Bret Baier last week, saying, "That's the only way you're going to stop it." But as Baier pointed out, a policy of executing "everyone who sells drugs" is inconsistent with Trump's record as president, which included sentencing reforms and acts of clemency aimed at reducing drug penalties that Trump described as "very unfair."

Defending that record, Trump cited the commutation he granted to Alice Marie Johnson, a first-time, nonviolent drug offender who was serving a life sentence for participating in a Memphis-based cocaine trafficking operation. "But she'd be killed under your plan," Baier noted, "as a drug dealer."

That observation flummoxed Trump. "No, no, no," he said. "It would depend on the severity," he added. He also noted that the death penalty he has in mind would not apply retroactively to Johnson herself and suggested that, had it been the law at the time, it would have deterred her from getting involved in drug dealing.

All of that is beside the point, of course. If a life sentence was excessively severe for Johnson, a death sentence obviously would have been inappropriate as well -- and not just for her specifically but for anyone guilty of similar offenses.

Trump's confusion on this point is especially striking because Johnson became a symbol of his purported opposition to unjust drug penalties: She attended his 2019 State of the Union address, appeared in a Trump campaign ad during the 2020 Super Bowl and spoke at the Republican National Convention that summer. Trump repeatedly linked Johnson to the broader cause of sentencing reform, which he proudly championed by embracing the First Step Act.

Among other things, that 2018 law reduced several mandatory minimum sentences, authorized the resentencing of crack offenders in line with current penalties, expanded the "safety valve" that allows some drug defendants to avoid mandatory minimums, increased "good time" credit for federal prisoners, and facilitated "compassionate release" of elderly and ailing inmates. With Trump's backing, the bill attracted support from 182 Republicans in the House and 38 in the Senate.

During the 2020 presidential race, Trump used the First Step Act to attack Joe Biden from the left on criminal justice, highlighting the Democrat's long history of supporting draconian drug penalties that disproportionately hurt African Americans. Now Florida Gov. Ron DeSantis, Trump's leading rival for the Republican presidential nomination, is using the First Step Act to attack Trump as soft on crime.

Last month, DeSantis hyperbolically described the law as "a jailbreak bill," saying it endangers public safety by "releasing people who have not been rehabilitated." As president, he said, he would urge Congress to repeal that "huge, huge mistake."

Trump could respond by noting that several provisions of the First Step Act are designed to promote rehabilitation. He also could cite data indicating that the recidivism rate for prisoners who have benefited from the law is relatively low.

Trump might even argue that the goal of preventing crime by keeping people locked up must be balanced against the goal of ensuring that punishment is commensurate with the offense. Instead, Trump seems determined to show, by re-upping his kill-them-all proposal, that he can be even more mindlessly punitive than DeSantis.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum.

Photo by Raphaella Condeixa on Unsplash