President Trump delivered a fiery speech yesterday calling for the execution of some drug traffickers. But to actually start doing that, he’d either need Congress to change the law or would have to reinterpret it on his own.
Rolling out his administration’s most detailed plan yet for tackling the opioid epidemic, the president promised to “get tough” on drug crime in a wide-ranging speech touching on everything from treatment to prescription drug prices and building a wall on the U.S.-Mexico border to keep out drugs, my colleagues John Wagner and Katie Zezima report.
“We have to get tough on those people,” Trump said at a community college in New Hampshire. “We can have all the blue-ribbon committees we want, but if we don’t get tough on drug dealers we’re wasting our time. And that toughness includes the death penalty.”
Drug crimes are included in the sweeping law expanding capital punishment — dubbed the Violent Crime Control and Law Enforcement Act — that Congress passed and President Bill Clinton signed in 1994. But that law says that for traffickers to be executed, they must also have been involved in a murder.
Let's be clear: No one in the United States seems to have been executed under that statute. The Clinton administration didn’t pursue capital punishment on such grounds; neither did the administrations of George W. Bush or Barack Obama. So it’s a pretty big deal if the Trump administration decides to head in this direction, as officials indicated yesterday they would.
“We will continue to aggressively prosecute drug traffickers and we will use federal law to seek the death penalty wherever appropriate,” Attorney General Jeff Sessions said in a statement.
But it would be an even "yuger" deal if the Justice Department started seeking the death penalty for such widespread crimes as drug trafficking. And for that, the administration would either need lawmakers to revise the 1994 law governing capital punishment — or redefine it much more expansively.
For example, DOJ could try to reinterpret the statute to include distributing drugs with the intent to kill the user or argue that major drug dealers are liable for any deaths that occur when someone uses a drug sold by them, Columbia law professor Jeffrey Fagan told me. Of course, that could be a legally dangerous move, challenging long-standing precedent on when it’s appropriate to seek the death penalty.
“To impose death [penalty] based on that standard would challenge a very long and deep body of case law dating back to 1976, when the death penalty for rape was banned,” Fagan said.
The White House is also calling for Congress to reduce the threshold needed to impose mandatory minimum sentences on people who are convicted of dealing fentanyl, a synthetic opioid that can kill people in small quantities and caused the overdose death rate in New Hampshire to skyrocket, John and Katie report.
But it was hard to pick up on the limits in current statute from the way Trump talked yesterday about his drug-busting agenda. While DOJ said it would pursue capital punishment only as allowed under the law, that’s not exactly the impression left by Trump's own words.
“If you kill one person, you get the death penalty, or you go to jail for life,” Trump said. “So if we’re not going to get tough on the drug dealers who kill thousands of people and destroy many lives, we are just doing the wrong thing. We have got to get tough.”
Trump’s fixation on getting tough over getting treated could also make it a lot harder for the White House to sell its opioid plan. The plan includes lots of other details centered on helping people struggling with addiction, but most opponents of the GOP administration have instead focused on the law enforcement measures to support their continued criticism of the president and his approach.
Sen. Maggie Hassan (D-N.H.), whose state Trump visited to announce his plan, argued it’s not a crisis that can be solved simply by becoming tougher on drug dealers. “I am concerned that the president does not seem to fully appreciate that we cannot arrest our way out of this crisis,” she said in a statement.
Michael Botticelli, former drug czar under President Obama, said recent history shows the approach stressed by Trump just doesn’t work.
“A significant emphasis of the president’s speech and president’s plan was on supply reduction and law enforcement, including enhanced criminal penalties and even the death penalty,” Botticelli said. “I think that we have known throughout the recent history of the United States that has not solved our drug problem here in the United States. How do we think about immediately expanding access to treatment?”
Baltimore City Health Commissioner Leana Wen said she’s also worried about Trump’s focus on punishment. “Creating additional criminal penalties and ratcheting up enforcement continues a failed strategy; addressing the supply of drugs alone is not going to be effective unless equal attention is paid to reducing the demand for them,” Wen explained.
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AHH: There's broad public support for the concept of “Medicare for All” across the nation, but pollsters warn its popularity hasn't been tested in a competitive election, our colleague Dave Weigel reports. A survey from the small liberal policy shop Data for Progress finds universal coverage through Medicare is backed by a majority of voters in 42 states -- and is popular in all but two states where Democratic senators are seeking reelection this year.
But, as Republicans learned to their chagrin last year, voters can change their minds once they learn more details about a health-care plan. Democratic pollster Geoff Garin told Dave that public opinion on single-payer or "Medicare for All" isn't fully informed. “More than any other issue, voters litigate health-care policy on a personal basis and really sweat the details," Geoff said. "The Republicans learned to their sorrow how much the details matter when support for the idea of repeal and replace collapsed after voters saw the reality of repeal and replace. Support for Medicare for All may be more durable, but there is a lot to play out before we know.”
Data for Progress’s Sean McElwee also pointed out that in some states where “Medicare for All” is popular, Democratic senators have not yet signed on to legislation introduced by Sen. Bernie Sanders (I-Vt.).
OOF: More than three-quarters of the $500 million Congress allotted in 2016 for states to fight opioid abuse hasn't been spent. The leftover cash is partly due to confusion in the Trump administration over how to spend the funding, which was set aside under the 21st Century Cures Act, Politico’s Rachana Pradhan and Brianna Ehley report. The grants were part of a $1 billion pot designated over two years by the Cures Act, signed by Obama just before he left office.
Besides the confusion, the grants' short-term nature posed another problem for state officials. "They were happy to receive new money, but it was guaranteed for only two years, making it difficult to get long-term commitments from health care providers and others to build programs and hire a workforce," Rachana and Brianna report. "Many of those trying to expand access to medication-assisted treatment, buy overdose reversal drugs and bolster recovery programs say they were hamstrung in their efforts to solve a magnifying public health emergency with a short-term program."
Many projects are just getting off the ground, even though the first year of the program ends April 30, Rachana and Brianna report. Regina LaBelle, former chief of staff at the Office of National Drug Control Policy under Obama, compared the states' challenge to “flying a plane while you’re building it ... They have to build infrastructure at the same time they have to get money out the door.”
OUCH: School officials in Parkland, Fla., attempted to use a unique state law known as the Baker Act to commit Nikolas Cruz involuntarily to a mental-health facility. But more than a year before the 19-year-old allegedly shot and killed 17 students and employees at a high school last month, a counselor said Cruz did not need to be detained, our colleague Tim Craig reports.
The Baker Act allows law enforcement, school counselors and medical personnel to petition for someone to be involuntarily institutionalized for 72 hours if they appear to be a danger to themselves or to others. School officials and a sheriff’s deputy had recommended in 2016 that Cruz be involuntarily committed after he ingested gasoline and had cut himself.
“It’s not clear from records why mental-health counselors advised against detaining Cruz, who had been diagnosed with ADHD and depression, had said he wanted to buy a gun and written racist messages, and was on medication and seeing a therapist, according to state records,” Tim writes.
Florida lawmakers expanded the Baker Act this month as a response to the mass shooting, enabling law enforcement to take away someone’s firearm if they have been admitted for psychiatric evaluation. “I don’t know if there needs to be a whole rewrite, but it needs to be fixed,” Florida Rep. David Silvers (D) told Tim. “I have a feeling if [the Baker Act] was properly utilized . . . maybe Mr. Cruz would not have been able to buy a gun and murder 17 people.”
— It's looking unlikely Republicans will include funding to bring down Obamacare premiums in the massive, $1.3 trillion spending bill they're in the process of finalizing for the end of the week -- even though the president himself is now actively pushing for it.
Trump called two Senate Republicans over the weekend to assure them he wants the dual marketplace-stabilization measures included, my colleagues Erica Werner, Bob Costa and Mike DeBonis report. The president made the commitment in an hour-long call Saturday with Sens. Lamar Alexander (R-Tenn.) and Susan Collins (R-Maine) before calling top GOP leaders in the House and Senate to reiterate his support for making the payments to Obamacare insurers to lower premiums.
These measures — which compensate insurers for cost-sharing discounts they must offer and benefits for their most expensive patients — were once bipartisan. But Sen. Patty Murray (D-Wash.) has backed away from the bill she co-sponsored with Alexander after Republicans made other changes to the Affordable Care Act. Murray, who is insisting the bill not include restrictions on funding for abortions, among other demands, appeared even more skeptical of the effort yesterday, with an aide expressing disappointment that Alexander was pushing forward with a partisan version of it.
CORRECTION: An initial version incorrectly stated the size of the spending bill. The correct figure is $1.3 trillion.
“Senator Murray ... hopes the unexpected release of this partisan legislation isn’t a signal from Republicans that they have once again ended ongoing negotiations aimed at lowering families’ health-care costs in favor of partisan politics, and that they come back to the table to finally get this done," the aide said.
—Instead of pushing for the original Alexander-Murray bill, Alexander has teamed up with Collins on a new version funding the cost-sharing discounts for four years and allocating $5 billion in reinsurance for 2018 and $10 billion for 2019 through 2021. States would get more flexibility to implement changes to their marketplaces and people could buy cheaper plans with fewer benefits in a new “copper” category. Although Democrats had agreed to most of these provisions, they're objecting to how the bill includes Hyde Amendment language restricting the CSRs and reinsurance from going to plans that cover abortions.
Hardline conservatives are fighting against Obamacare fixes in the spending bill as a "bailout:"
As the omnibus vote approaches this week, please read this op-ed from @SenTedCruz, @SenMikeLee, @Jim_Jordan, and myself.— Mark Meadows (@RepMarkMeadows) March 19, 2018
It would be unacceptable to bail out Obamacare with billions in new spending. Republicans should reject this proposal.https://t.co/sVckjnJjsT
Kaiser Health's Larry Levitt reminds us that reinsurance is more important than CSRs, in his view:
I know I've been a broken record on this -- if that's even still a thing -- but reinsurance funding is much more significant than funding CSRs. Reinsurance would lower premiums for middle-class people, while funding CSRs would actually raise premiums for lower-income people.— Larry Levitt (@larry_levitt) March 19, 2018
—Joining Trump yesterday to tout the administration's opioids plan, HHS Secretary Alex Azar also talked about efforts to lower drug prices. He tallied a number of things the administration has done so far, including FDA approval of generic drugs and a move to reduce out-of-pocket costs for seniors, and told the audience to expect more announcements soon.
“We’re going to be rolling out, as you mentioned, in about a month, a whole slate of other proposals around how we decrease the price of drugs and how we bring discounts that the middlemen right now are getting; how those will go to our patients, to individuals,” Azar said, though he did not go into specifics about the plans.
"You'll be seeing drug prices falling very substantially in the not-so-distant future, and it's going to be beautiful," Trump added.
— UnitedHealth Group has released a study supporting the case that pharmacy benefit managers — those middlemen who negotiate drug prices on behalf of insurers and employers — save the Medicaid program loads of money. The report projects Medicaid could save more than $100 billion over the next decade (a 23 percent reduction in its spending) by tapping more deeply into PBM tools and programs, which drive higher use of generic drugs. The 10 states with the highest generic use had a lower net cost per prescription ($31.32) than the 10 states with the highest drug rebates per prescription ($45.50), according to the study.
--A few more good reads from The Post and beyond:
- The House Energy and Commerce Subcommittee on Oversight and Investigations holds a hearing on the DEA’s role in combating the opioid crisis.
- The Senate Finance Committee holds a hearing on the nominations of “John J. Bartrum, of Indiana, to be an Assistant Secretary of Health and Human Services and Lynn A. Johnson, of Colorado, to be Assistant Secretary for Family Support, Department of Health and Human Services."
- The House Ways and Means Subcommittee on Health holds a hearing on “Implementation of MACRA’s Physician Payment Policies” on Wednesday.
- The Atlantic holds an event on “The State of Care” on Wednesday.
- Politico holds an event on “How to Improve Health Care in Nursing Homes and Bend the Cost Curve” on Wednesday.
- The House Energy and Commerce Subcommittee on Health holds a hearing on the opioid crisis on Wednesday.
- The Alliance for Health Policy, the Association of Health Care Journalists and the National Institute for Health Care Management hold a webinar on Thursday.
During his speech in New Hampshire, President Trump called for a border wall and the end of sanctuary cities as a way to "keep the damn drugs out:"
Melania Trump discusses her efforts to fight the opioid epidemic:
Mississippi outlaws abortion after 15 weeks: