Just about every week now, we see a new round of headlines about the crisis in overdose deaths from opioids. This is the class of drugs that includes prescription medications such as hydrocodone and street drugs such as heroin and fentanyl. There’s no question that the United States has seen a surge in addiction and deaths from overdose, although there are a couple of important things to keep in mind when reading such reports.
The first is that determining overdose deaths from a given drug is an inexact science. At least part of the increase in overdose deaths may not be from opioids themselves so much as the fact that opioids are much more frequently prescribed, which means they’re likely to be in the systems of more people who die prematurely of other causes that are also difficult to diagnose. That doesn’t necessarily mean that opioids were the cause of death.
The other, more important thing to keep in mind is that much of the current crisis is due to a couple of decades of misguided policies that turned a public-health problem into a crime problem. It began 20 or so years ago when the Drug Enforcement Administration started targeting physicians who specialize in treating long-term chronic pain, essentially ending that area of medicine. The crackdowns made it increasingly difficult for chronic-pain patients to find well-trained, conscientious pain specialists to treat them. Most of the doctors who weren’t arrested migrated to other areas of medicine. Medical students understandably wanted nothing to do with pain management. But the pain patients didn’t go away. That created demand for someone to provide them relief. That demand was filled by far less careful and conscientious doctors — the “pill mills” you often read about. Meanwhile, more-reputable doctors were told to view patients who were dependent on these drugs not as patients who were depending on the medication — just as a diabetic is dependent on insulin — but as addicts.
There’s no question that unscrupulous doctors, pharmacies and pharmaceutical executives have contributed to the current crisis. But bad policy is the real problem. Drug cops aren’t doctors. Yet for some reason, we’ve decided to bring them into the business of deciding what doctors can prescribe to their patients and in what quantities. If physicians are recklessly prescribing these drugs, they should be disciplined by medical boards, not raided by SWAT teams. Treating pain is difficult. It requires care and finesse to both address the suffering of a patient and to keep that patient away from the threat of addiction. Drug cops aren’t known for their care or finesse. They tend to have one gear.
All of which brings me to a new investigation by Lauren Krisai and C.J. Ciaramella into 20 years of prescription drug prosecutions in Florida, published at Reason. What they found demonstrates why busts, arrests and incarceration continue to be a disastrous way to address addiction.
Reason pored over the cases of every current inmate in the state admitted for trafficking hydrocodone or oxycodone pills. Those cases, rarely examined at the macro level and never at the individual level, show Florida’s war on prescription pain medicine has been an abject failure for 20 years and counting.
A Reason analysis revealed that there are more than 2,000 inmates serving sentences in the state for trafficking oxycodone/hydrocodone. Although Florida legislators passed the laws with the intention of going after large-scale traffickers, 63 percent of those currently serving time for pill trafficking offenses are first-time inmates. Many … were set up by confidential informants who started working for the police after their own arrests.
The mandatory-minimum sentences stripped judges of their discretion, saddled the state with an aging, expensive inmate population with no possibility of early release, and have been woefully inadequate at getting pills off the streets or treating addicts, many of whom are now turning to more powerful opioids like heroin and fentanyl.
Florida already has some of the most punitive prescription drug laws in the country. And those laws themselves were the product of cries to “do something!” in response to a similar public-health crisis in the 1990s.
After OxyContin entered the market in 1996, clinics that dispensed the powerful painkiller began to proliferate throughout south Florida. The state’s Interstate 75 corridor became known as the “Oxy Express.” ….
Under the 1999 laws, it took only 4 grams of oxycodone or hydrocodone—roughly eight pills—to trigger a drug trafficking offense that carried a mandatory-minimum term of three years in prison and a $50,000 fine. For a minimum 25 years and $500,000 fine, a person needed to illegally possess or sell 28 grams, or roughly 54 pills, which is less than half of a month’s prescription for long-term pain patients … The result was not a crackdown on high-level dealers, but a surge in lengthy sentences for low-level offenders …
Of the more than 2,300 Florida inmates serving time for opioid trafficking, the overwhelming majority—63 percent—have never been to prison before. Another 20 percent were previously incarcerated, but for a drug or property crime only. Just 17 percent had been previously incarcerated for a violent offense. Some 435 are over the age of 50, which is the age prisoners are defined as elderly in Florida. Of those, 53 percent have never been to prison before, and 26 percent have been imprisoned previously for a drug or property crime only.
What these numbers show is that, more often than not, Florida prosecutors used opioid trafficking laws to imprison the bottom rung of the drug trade—addicts or people with prescriptions who sold on the side for extra cash—rather than high-level dealers.
Or, even worse, the laws were used to go after chronic-pain patients like Richard Paey, who if not for a pardon from the governor likely would have spent the rest of his natural life in prison. Paey was arrested for possessing a quantity of painkillers that allowed prosecutors to charge him with intent to distribute, even though the state conceded that they had no evidence that Paey had ever given anyone a single pill. (Paey was undergoing a regimen of high-dose opioid therapy to treat pain from multiple sclerosis and a botched back surgery.)
As Krisai and Ciaramella point out, it’s far from clear that these policies have done much to curb addiction. After the first set of laws were passed in 1999, drug addiction deaths surged between 2003 and 2009. Once again, critics blamed a lack of criminal enforcement. So the state started targeting doctors and pain clinics. Deaths attributed to prescription drug overdoses dropped by 23 percent from 2010 and 2012, leading to praise for the state by the Centers for Disease Control and Prevention, law enforcement officials and public-health advocates. That praise was premature. Those policies didn’t end the problem; they just shifted it to street drugs. At the same time prescription overdoses fell, heroin overdoses began to rise — and then to soar. In Jacksonville last year, overdose deaths were up 72 percent from 2015. Statewide, overdose deaths attributed to heroin increased by 74 percent from 2014 to 2016, and deaths attributed to fentanyl rose by nearly 80 percent. Last year, officials in South Florida claimed heroin overdoses had become a full-blown crisis. As the Reason article points out, if you go back to 2010, the numbers are starker still: Heroin-related deaths increased nearly 1,400 percent from 2010 to 2015, and fentanyl-related deaths rose by more than 400 percent.
So Florida continues to have a massive problem with opioid addiction. That, of course, leads to calls for ever more draconian laws. And the cycle begins again.
Asking law enforcement to handle prescription drug abuse was a huge mistake in the early 2000s. We don’t seem to have learned much since. The latest surge in opioid-related deaths has pundits and publications across the political spectrum calling for an ever greater law enforcement role in preventing addiction, and for generally more punitiveness across the board. Prosecutors have responded by targeting more doctors, or by bringing murder charges in overdose deaths. Legislatures have followed with new laws such as lowering the minimum weight of illicit drugs needed for felony charges and new mandatory minimum sentences for trafficking or distributing drugs such as hydrocodone, fentanyl or heroin.
That means more felons, more prisons and more lives ruined by incarceration. Addicts get treated as criminals, not as patients in need of treatment. And meanwhile, people living with chronic pain find it ever more difficult to get the medication they need.