Gov. Matt Bevin had a promise for Kentuckians in his State of the Commonwealth speech in February: “Criminal justice reform is coming.”
It’s something Bevin had long pledged. In 2016, Bevin set up a panel to study criminal justice reform. In an op-ed for the Washington Times that year, Bevin touted legislation that lets some former inmates expunge their records. “The practice of ‘lock ‘em up and throw away the key’ in our criminal justice system is an approach whose shot at effectiveness has run its course,” he wrote. “This misguided mantra propelled the United States’ prison population to unprecedented heights, far outpacing the rest of the world in per capita incarcerations.”
But this year, Bevin signed a bill that — in a striking contradiction — responded to the opioid epidemic with more incarceration. Among other changes, HB 333 increased penalties for trafficking heroin below 2 grams to five to 10 years in prison, up from one to five years, and applied similar penalties to the synthetic opioid fentanyl. Subsequent offenses carry harsher sentences. The bill also made it so that people who deal heroin or fentanyl can’t have their penalties reduced if they prove they suffer from addiction, as is possible with other drugs (including meth and cocaine).
It was, in short, a typical “tough on crime” law — increasing penalties for even low-level drug trafficking, and not differentiating if the person needed treatment for addiction rather than prison. It was the kind of law that Bevin had criticized in the months prior. (His office directed me to his Justice and Public Safety Cabinet for a comment, but the agency did not respond.)
Kentucky’s story, however, isn’t atypical. Most states have passed some level of criminal justice reform in the past several years. There has also been a lot of talk about treating the opioid epidemic — the deadliest overdose crisis in US history — as a public health, not criminal justice, issue, unlike past drug crises. The cliché about the crisis, said by both Democrats and Republicans, is that “we can’t arrest our way out of the problem”; there is simply no comparison between this kind of rhetoric and politics and the ultra-punitive rhetoric and politics that permeated the 1980s crack epidemic.
Yet the shift in rhetoric doesn’t tell the whole story. In my own investigation, I found at least 16 states, including Kentucky, that passed laws in recent years that stiffened penalties for opioid painkillers, heroin, or fentanyl — largely in response to the epidemic. In sharp contrast to all the talk about criminal justice reform and public health, these laws risk sending even low-level, nonviolent drug offenders — many of whom are addicted to drugs and need help for that addiction — to prison for years or decades.
As the opioid epidemic continues to kill tens of thousands of people in the US each year, many state lawmakers have gone back to the old criminal justice playbook to fight the crisis — even as the empirical evidence remains clear that tougher prison sentences are not an effective means to stopping the epidemic. The new laws are just one example. Several states have also dusted off old laws to lock up more drug dealers and people who use drugs.
And that shows that for all the talk about reform, America’s instincts for the “tough on crime” approach are still very much here.
At least 16 states have recently passed punitive anti-drug laws
For this story, I looked through laws passed — not just proposed — in all 50 states since 2011, when the Centers for Disease Control and Prevention (CDC) declared the opioid crisis an epidemic. I also contacted criminal justice reform groups and activists, including at least one local affiliate in each state, to see if I missed anything. Despite this extensive process, I’m sure that I missed some laws. My findings are available here, and you can let me know what I missed by email at firstname.lastname@example.org.
My count includes laws that impose new or tougher penalties for opioid possession or trafficking, laws that enhanced penalties for the inclusion of fentanyl in a substance, and laws that effectively lengthen prison sentences if someone sold or shared a drug that causes someone else to have a fatal overdose. These measures all potentially increase prison sentences for opioid possession or trafficking.
I did not, however, include laws that merely added opioid painkillers or fentanyl and its analogs to drug scheduling lists or existing drug laws, since those measures merely brought the drugs in-line with other controlled substances. (Although this can still lead to harsher sentences: Since heroin is now so often laced with fentanyl, adding fentanyl to existing drug laws can let police or prosecutors charge someone with two crimes at once instead of just one — one for heroin and another for fentanyl.)
These laws often come in direct conflict with state efforts to undo mass incarceration.
Like Kentucky, Maryland also enacted criminal justice reform over the past several years. Yet lawmakers this year passed SB 539, which created an additional penalty if fentanyl is found in a drug. So someone could be sentenced for up to an additional 10 years in prison if the heroin they were found guilty of trafficking has fentanyl in it — a big extension of a prison sentence.
Meanwhile, Louisiana in 2014 passed SB 87 to increase the minimum prison sentence for heroin trafficking from five to 10 years. The state then enacted a broad criminal justice reform bill this year. But since state lawmakers used SB 87 as the new baseline, by and large the bill simply reverted the minimum sentence for heroin trafficking back to five years — instead of cutting it to an even lower level than it was pre-2014. And in a striking contradiction to the reform package’s goals, the bills created a new one-year mandatory minimum sentence for illegally possessing opioid painkillers.
Other times states flat-out reverted reforms. In 2016, under then-Gov. and now–Vice President Mike Pence (R), Indiana passed HB 1235 and reinstated 10-year mandatory minimum prison sentences for heroin or meth trafficking if the offender had a prior conviction for cocaine, heroin, or meth trafficking.
The state, under newly elected Gov. Eric Holcomb (R), went even further this year with HB 1406. The law allows prosecutors to aggregate multiple heroin sales to seek harsher penalties. In some circumstances, it also makes heroin dealing a nonsuspendible felony if the person had a prior felony conviction — meaning the person will have to serve the full minimum sentence.
Sometimes the laws aren’t explicitly about increasing prison time and incarceration — or reverting reforms — but have that effect nonetheless. In Kansas, HB 2044 in 2013 established two new crimes: distributing drugs that then cause death and distributing drugs that then cause great bodily harm. The former carries a prison sentence of up to 13 years and nine months for offenders with no previous criminal record, while the latter carries a sentence of up to two years and 10 months. A worse record leads to worse penalties. Previously, prosecutors could only charge involuntary manslaughter for such offenses, which had lower penalties and often led to probation if the defendant had no criminal record.
These are just a few examples from four states, but they’re representative of the broad strokes that these measures have followed across the country.
One of the key distinctions in many of these laws is they tend to explicitly target drug traffickers, at least in theory, while previous drug war measures tended to target people who use drugs as well.
It’s easy to see why lawmakers would think that’s a good idea: The person using drugs is now often seen as someone who is potentially just addicted, so they need treatment, not prison. And the drug trafficker is widely seen as someone who, out of pure greed, is peddling drugs that kill people. With this distinction, lawmakers can avoid looking like they’re contradicting statements about how the epidemic is a public health issue and how people need treatment, not prison.
Kentucky lawmakers used this distinction to justify their tougher sentencing laws for heroin trafficking.
“I believe in treatment, but we have to keep in mind that we are, at least the majority party is, the party of personal responsibility,” Kentucky state Sen. John Schickel (R) said. “And where I come from, people are sick and tired of hearing excuses for people dealing in heroin. Killers, murderers dealing in heroin, and then those same traffickers claiming to be victims. I’m sorry, they are not victims, they are criminals and they need to be punished.”
The problem is that, in reality, the line between a person who uses drugs and a person who sells drugs is much blurrier. It’s not uncommon for people who are addicted — and desperate to get drugs — to commit crimes to obtain the money to buy those drugs. Those crimes can include theft, prostitution, or trafficking drugs. A 2006 report from the Bureau of Justice, for example, found 70 percent of traffickers in state prison used drugs at least once in the month prior to their offense.
With the opioid epidemic killing so many people, the blurred line is overlooked in the push to do something about the crisis. And that’s led legislators in several states to pass laws that seem to contradict the reform-minded movement of the past several years.
Police and prosecutors are using old laws to crack down on opioids more harshly
Beyond new laws, police and prosecutors have also dusted off old statutes to go after opioid traffickers with more punitive prison sentences. That includes traditional “tough on crime” laws, including mandatory minimum sentences for drug offenses that remain on the books after the heroin epidemic of the 1960s and ’70s and the crack epidemic of the ’80s.
This is happening at the federal level under President Donald Trump. In 2014, the Obama administration told prosecutors to avoid charges for low-level drug offenders that could trigger lengthy mandatory minimums. But the Trump administration, under Attorney General Jeff Sessions, has rescinded those instructions — letting prosecutors pursue the most stringent penalties even against low-level, nonviolent drug offenders.
Law enforcement officials are also tapping into a creative approach in response to the opioid epidemic: leveraging homicide charges against alleged opioid dealers. A 2016 report from the pro-reform Drug Policy Alliance found that more than 20 states have laws that prosecutors can use in this way, and several, from New Hampshire to Florida to Wisconsin prosecutors, have. (Some states, as noted above, passed these laws in the past several years as well.)
Here’s how it works: Let’s say someone gives or sells heroin to another person. The person who obtains that heroin then uses it, overdosing and dying. A prosecutor can then charge the person who provided the heroin for the death — by charging him for drug-induced homicide, felony murder, depraved heart murder, or manslaughter.
This isn’t hypothetical. Several media outlets, including Vice and the Washington Post, have reported that prosecutors across the country are increasingly using these types of measures to, in theory, go after opioid traffickers.
But even these kinds of measures don’t just punish the stereotypical drug dealer. The laws are sometimes used, for example, to go after friends or spouses who are sharing drugs after one of them dies of an overdose.
Take one story from Clay County, Florida: There, 18-year-old Ariell Brundige joined her boyfriend, 26-year-old Tyler Hamilton, and a friend, 32-year-old Christopher Williams, to buy heroin from 32-year-old Trumaine Muller. According to police, the heroin turned out to be fentanyl. Brundige overdosed, Williams called 911, but she still died.
Police then charged Williams and Hamilton with manslaughter and Muller with murder, because they were all allegedly involved in the drug activity that led to Brundige’s death. But Williams and Hamilton didn’t sell heroin; they merely went with Brundige to buy it and then use it with her. Williams even called 911 to try to save his friend. But in the end, he still faces a punishment that can carry up to 15 years in prison. (Muller was, however, allegedly caught with a host of illegal drugs when he was arrested.)
Lindsay LaSalle, a senior staff attorney at the Drug Policy Alliance, has been studying drug-induced homicide laws for an upcoming report. Although she cautioned that she couldn’t track these cases in a scientific manner due to poor data, her impression is that many, if not most, cases involve someone who is a friend or family member of the person who overdosed, rather than a stereotypical drug dealer.
“The vast majority are being prosecuted against the last person who touched the drug, which is often a family member, a friend, or an acquaintance,” LaSalle told me. “Or if it is a quote-unquote ‘drug dealer,’ it’s the person at the lowest level of the supply chain.”
For police and prosecutors, the incentive is clear: By going hard on heroin and fentanyl, they can look like they’re doing something about the opioid epidemic. And it’s relatively easy to do, given that in many states they only have to use existing laws for their crackdowns.
One catch: These cases are difficult to prosecute. Depending on the law, prosecutors have to prove a certain level of causation between someone giving another person the drug and that drug causing an overdose. That can make it difficult for the prosecutions to lead to convictions: “Was it that dose of heroin that actually caused the death? Did it just contribute to the death? It’s really difficult to prosecute,” LaSalle said.
But even if they don’t lead to formal trials with convictions, there’s another way these cases can lead to harsh prison sentences: plea deals. LaSalle said, “When you charge someone with murder, they’re probably very likely to plead out to a lesser offense and still end up serving a significant amount of time. They’re offered a seven-year sentence instead of a 25-year sentence, and they take that.”
The “tough on crime” approach won’t work
The problem with these approaches, whether it’s new laws or old ones, is the research shows they just won’t work to stop the opioid epidemic.
There’s a simple logic to this: America has been deploying “tough on crime” policies for decades, yet that didn’t prevent the deadliest drug overdose epidemic in the country’s history. The drug war policies were supposed to crack down on the supply of drugs by pushing out sellers, therefore making the substances more expensive and, as a result, less accessible. But since 1981, the price of heroin per pure gram has actually dropped by more than 85 percent.
“We did the experiment. In 1980, we had about 15,000 people behind bars for drug dealing. And now we have about 450,000 people behind bars for drug dealing,” Mark Kleiman, a drug policy expert at the Marron Institute at New York University, told me. “And the prices of all major drugs are down dramatically. So if the question is do longer sentences lead to a higher drug price and therefore less drug consumption, the answer is no.”
One of the best studies backing this is a 2014 review of the research by Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago. They found that while simply prohibiting drugs to some extent does raise their prices, 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 misuse than lighter penalties. So increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs.
“It presumably has some effect,” Jon Caulkins, a drug policy expert at Carnegie Mellon University, told me. “But you have to squint to see it.”
Caulkins and Kleiman acknowledge that there’s a sensible explanation for “tough” laws. Lawmakers want to punish people pushing what they consider “poison” into their communities. There’s also a certain logical sense to punishing someone who sells a product that gets a person killed. And it’s not ridiculous to believe, at least intuitively, that harsh punishments will deter drug dealers — or at least get dealers to consider leaving fentanyl out of whatever product they’re selling, since it might lead to worse charges.
But it often doesn’t work out this way. Maybe dealers don’t even know that the law exists (although law enforcement could make it part of their job to let people know these laws exists by, say, letting informants know about them). If they do know the law exists, perhaps they don’t think they’ll get caught — after all, the rates of convictions for crimes, even violent ones, are pretty low. They also might not know that fentanyl is even in the drug, since heroin is often cut with the synthetic opioid before the street-level dealer gets it.
With possible drug-induced homicides, maybe dealers also don’t think their product could be deadly, since the great majority of instances of opioid use don’t lead to a fatal overdose.
“Expecting that you’re going to change the behaviors of the retailers with those sentences is just cognitively unrealistic with the way we fallible mortals process benefits and consequences and make decisions,” Caulkins said. “It’s symbolic at some level; it’s an expression of our outrage and frustration. It’s not very practical.”
To the extent these laws do at least remove drug traffickers from the streets, those dealers are merely replaced with others — so there isn’t even a significant incapacitation effect. A 2009 review of the research by the RKC Group, funded by the Colorado Criminal Justice Reform Coalition, backed this up. It concluded, “Simply put, the market responds to the demand for drugs by replacing drug sellers sent to prison with either new recruits or by the increased drug selling of dealers already in the market. As a result, the incapacitation effect found for some other offenses is largely nullified in the case of drug dealing.” (Other criminal justice researchers agree with this conclusion.)
“Tough on crime” laws can also contradict other efforts in the opioid epidemic. For example, most states have passed Good Samaritan laws that grant some legal immunity to people who call 911 when someone is overdosing. The idea is that they shouldn’t be deterred from calling 911 just because they also may be using drugs, and removing that possible deterrence could save lives.
But consider the effect of drug-induced homicide charges: If that person was sharing drugs with his overdosing friend, he might now worry about a drug-induced homicide charge. That risk may now keep him from calling 911, contradicting the intent of Good Samaritan laws. (Still, the research so far finds that Good Samaritan laws have a negligible effect on overdoses. So it’s not clear if this contradiction will lead to more overdose deaths. But it’s possible.)
This could all get worse
It would be one thing if, while all this goes on, different levels of government increased their commitment to drug addiction treatment. Drug policy experts estimate that the epidemic will require an investment toward drug treatment in the tens of billions each year. For reference, a 2016 study estimated the total economic burden of prescription opioid overdose, misuse, and addiction at $78.5 billion in 2013, about a third of which was due to higher health care and drug treatment costs. So even an investment of tens of billions could save money in the long run by preventing even more in costs.
The US has done nothing close to that. States have passed some laws that boost access to the opioid overdose antidote naloxone. Obamacare improved access to general health care, including addiction treatment. Congress did approve $1 billion in addiction treatment funding over two years with the Cures Act. And the White House Office of National Drug Control Policy has generally reported a funding increase in treatment and prevention programs, while funding to law enforcement programs have remained relatively flat.
But none of it amounts to the tens-of-billions investment that experts say is needed. As a result, the take-up of drug addiction treatment is still dire: According to a 2016 report by the surgeon general, just 10 percent of Americans with a drug use disorder obtain specialty treatment. The report attributed the low rate to severe shortages in the supply of care, with some areas of the country lacking affordable options for treatment — which can lead to waiting periods of weeks or even months.
This goes against the narrative that’s so prominent in the media and political rhetoric: The opioid epidemic really isn’t leading to a much larger public health response. The most common response to the opioid epidemic so far seems to be inaction, with some slight boosts to drug addiction treatment and new or rebrandished “tough on crime” laws sprinkled in-between.
“The overarching narrative has been very different than what we heard in the 1980s with crack,” Ezekiel Edwards, director of the pro-reform ACLU Criminal Law Reform Project, told me, adding that race likely played a role in that. “But it seems inevitable in this country that when we try to find ways to deal with addiction and drugs … we can’t help ourselves in ultimately responding with a criminal justice framework instead of a public health framework — not withstanding some improved rhetoric.”
The opioid epidemic is slated to get worse in the coming years. One forecast by STAT projected that as many as 650,000 people will die of opioid overdoses alone in the next decade — more than the population of Baltimore.
With this death toll, lawmakers are likely to get more desperate to do something about the crisis. With tight budgets, states aren’t going to reach for more funding to addiction treatment. (That’s why Keith Humphreys, a drug policy expert at Stanford University, says that much of the treatment funding must come from the federal level.) Instead, they’ll often go back to “tough on crime” laws that have hidden or delayed costs in the form of prison expenses down the line.
During my search for new laws, I saw evidence for this: Although at least 16 states have enacted new “tough on crime” laws since 2011, there were bills in dozens of states that pushed harsher punishments. I saw very few, by comparison, that significantly boosted access to treatment.
Another reason the introduction and passage of “tough on crime” bills might speed up: growing concerns about fentanyl. As fentanyl and its analogs are involved in more and more overdose deaths, the drugs are getting a lot of attention as new, terrifying, and deadly illicit substances. There have been several reports, for instance, that have described fentanyl as so dangerous that it could lead to an overdose just by touch — a claim that experts now dispute.
“The majority of fentanyl articles are fairly hysterical,” Michael Collins, deputy director at the Drug Policy Alliance, told me. “There’s just a lack of education.”
This kind of fearmongering is common when drugs enter the market. We saw it with crack cocaine in the 1980s, bath salts in 2012, and flakka in 2015. And in those cases, particularly with crack, lawmakers and law enforcement responded with draconian prison sentences.
It now seems something similar is happening with fentanyl. As Collins put it to me, “It feels like history repeating itself.”
Thanks to Blaine Stum, a graduate student at American University, for pointing me to additional state laws.