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Congress’s new approach to the opioid epidemic: the old war on drugs

In response to the opioid epidemic, the US Senate is considering new penalties for synthetic opioids.

As the US faces its deadliest drug epidemic, the Senate is working on a new approach to deal with the crisis: the old war on drugs.

According to a new report by Carrie Johnson for NPR, a bipartisan pair of senators — Sens. Chuck Grassley (R-IA) and Dianne Feinstein (D-CA) — is working on a bill that would create harsher prison sentences for selling synthetic opioids like fentanyl analogs, which have become more common as people have moved from painkillers to other opioids in the course of the crisis.

Johnson reports:

A draft of the legislation reviewed by NPR suggests the plan would give the attorney general a lot more power to ban all kinds of synthetic drugs, since criminals often change the recipe to evade law enforcement. It would impose a 10-year maximum sentence on people caught selling them as a first offense. That would double if they do it again.

Lawmakers argue that the bill is necessary to punish traffickers for drugs that aren’t already penalized, since the drugs they’re selling are so new that they’re not included in the schedule of controlled substances. This would, then, bring the new drugs in line with other illicit opioids.

But as Michael Collins of the Drug Policy Alliance, which advocates for lighter penalties for drug offenders, told NPR, the concern is that this new bill will be used to lock up even more low-level drug offenders for longer — even those who don’t know these new drugs are present in their product.

A key problem in the opioid crisis is that these fentanyl analogs are often added to heroin outside the country. (In some places, it’s estimated that the majority of heroin is now cut with a fentanyl analog.) The dealer, sometimes unaware that the heroin has been cut with a fentanyl analog, will then sell the goods as if they’re just heroin. Then the buyer will use the drugs and overdose, because the fentanyl analogs make the heroin much more potent than even a hardened heroin user can handle.

Under Grassley and Feinstein’s bill, the Department of Justice would be able to punish the dealer for selling that contaminated heroin.

But the dealer might not have any idea that his heroin was cut to begin with, effectively punishing him for something he knew nothing about. These penalties would also be added on top of traditional heroin penalties (for which the dealer would likely have been punished anyway), in effect making prison sentences even longer. And this would punish low-level dealers, not the higher-ups that drive the drug trade — adding to the US prison population of low-level drug offenders.

In short, more people would be sent to prison for longer due to low-level drug offenses.

This is a clear example of lawmakers repeating past problematic practices. Although state prison systems (where most prisoners in the US are held) aren’t made up of very many drug offenders, about half of the federal prison system holds people for drugs. Over the past few years, lawmakers said they were trying to move away from that — hence the work surrounding a reform bill that would have effectively cut mandatory minimum prison sentences for drug offenses. Yet now lawmakers want to create even more penalties that could be used to lock up more drug offenders.

The evidence suggests this won’t work. By dedicating more resources to more incarceration, lawmakers risk shifting necessary funds from the actual solutions to an ineffective strategy.

“Tough on crime” doesn’t work

A 2014 study from Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago found there’s no good evidence that tougher punishments or harsher supply-elimination efforts do a better job of driving down access to drugs and substance abuse than lighter penalties. So increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs.

In fact, the research suggests that harsher punishments in general don’t do much to prevent crime. As the National Institute of Justice concluded in 2016, “Research shows clearly that the chance of being caught is a vastly more effective deterrent than even draconian punishment. … Research has found evidence that prison can exacerbate, not reduce, recidivism. Prisons themselves may be schools for learning to commit crimes.”

In other words, more certainty of punishment can deter crime, while more severity — through longer prison sentences — can actually make crime worse.

This is something that even some former supporters of harsh punishments for drugs now acknowledge. In congressional testimony, Kevin Ring, a former congressional aide who helped enact mandatory minimums and now speaks out against them through the advocacy group Families Against Mandatory Minimums, said, “Most of these guys made stupid mistakes without any idea of what the punishment was — they just didn’t think they were going to get caught. So you can make the severity off the charts — you can do a life sentence for jaywalking — it’s not going to stop it.”

Or as former federal drug czar Michael Botticelli often said, “We can’t arrest and incarcerate addiction out of people.”

The real solution lies in public health

Still, the fact is that America has an opioid problem. In 2015, there were more than 52,000 drug overdose deaths, and nearly two-thirds of those were linked to opioids like Percocet, Vicodin, heroin, and fentanyl. The total number of drug overdose deaths was far greater than the more than 38,000 who died in car crashes, the more than 36,000 who died due to gun violence, and the more than 43,000 who died due to HIV/AIDS during that epidemic’s peak in 1995.

That the crisis got so bad speaks to the failure of decades of policy: Years of “tough on crime” approaches couldn’t prevent the worst drug crisis in history.

So what can we do about it?

Some policymakers have increasingly focused on the public health side. There’s good reason for that: In the most comprehensive analysis of addiction in America, the surgeon general in 2016 found that the US massively underfunds addiction care. It concluded, for example, that just 10 percent of Americans with a drug use disorder get specialty treatment, in large part due to a shortage in treatment options.

So federal and state officials have pushed for more treatment funding, including medication-assisted treatment like methadone and buprenorphine. In 2016, Congress approved an extra $1 billion in funding over two years for drug treatment in response to the opioid crisis.

But public health advocates argue that more needs to be done to make treatment accessible. Andrew Kolodny, co-director of opioid policy research at the Heller School for Social Policy and Management at Brandeis University, estimates that the US needs to spend potentially tens of billions of dollars more a year to deal with a crisis so grave. There’s an empirical base for that: A 2016 study found that opioid painkiller addiction cost the economy $78.5 billion in 2013, more than a third of which was a result of higher health care and drug treatment costs.

“We need a massive increase in funding for addiction treatment,” he argued. “We’re not going to get anywhere in terms of reducing overdose deaths until you have very low threshold access to buprenorphine treatment or methadone in some cases” — referring to two medications used for treating opioid addiction.

Polls show that most Americans prefer treating drugs as a public health issue, not a criminal one. And many experts, including the International Narcotics Control Board, have asked for a greater focus on public health policies to curtail demand for drugs.

Even some police departments are warming to this approach. For example, in Gloucester, Massachusetts, the police chief in 2015 announced that his officers will no longer charge heroin users with a crime, even if they have drugs, and instead offer to put them in rehabilitative treatment. Other cities, like Cincinnati, have adopted similar approaches.

But some governments and agencies continue perpetuating “tough on crime” thinking on drugs — from Indiana upping prison sentences for drugs to an Ohio town charging heroin users with “inducing panic” to the bill the Senate is now working on. But the evidence suggests that will all be ineffective, and it could shift resources from where help is really needed.