Prosecutors and Health Care Need Tools to Fight Opiate Epidemic

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By Patricia A. Baldwin, President
Indiana Association of Prosecuting Attorneys, Inc.

The Indiana Drug Prevention, Treatment and Enforcement Task Force has released a plan for dealing with the State’s opiate epidemic.  Laudably, the plan proposes increased prevention and treatment efforts.  However, the plan lacks meaningful enforcement proposals, without which the prospects of controlling the epidemic through prevention and treatment are impossible.

Drugs like opiates are classified as controlled substances by the federal government.  These drugs are controlled because they are dangerous if not delivered properly.  There are effectively two delivery systems for controlled substances in Indiana–the legitimate medical industry and the illicit drug industry.  The legitimate medical industry is highly regulated and provides several important functions regarding controlled substances.  Pharmaceutical companies test and develop drugs, and are overseen by federal regulators to ensure efficacy and purity of the substances.  Highly trained medical professionals evaluate patients, make diagnoses and prescribe medications.  Pharmacies help screen for drug interactions, and guarantee purity and dosage.  Patients are monitored with an end goal of restoring health.

The illicit drug industry has different aims.  It is driven solely by profit.  It has traditionally been even more highly regulated than the medical industry.  It is a criminal offense to possess or deliver controlled substances outside of the legitimate medical processes.  The aim of the criminal justice system in this area is to discourage participation in the illicit drug industry.  Prosecutors and police do this by attacking the supply side of drug use by arresting, prosecuting and incarcerating drug dealers.  We also apply consequences to drug users to encourage rehabilitation.  Since 2014, law enforcement has suffered from a weakened ability to accomplish these two important parts of the equation – holding dealers accountable and encouraging users to get help.

The 2014 criminal code reform to a large extent deregulated the illicit drug industry.  Penalties for drug dealing and possession were dramatically decreased.  As an example, dealing over 3 grams of heroin under the old criminal code was a class A felony with an advisory sentence of 30 years.  That same offense today would be a level 5 felony with an advisory sentence of 3 years.   Prior to the criminal code reform, 60% of A and B felony admissions to prison were for drug dealing.  Today, the comparable number is 5%.  Fully 30% of the worst of the worst drug dealers convicted in Indiana received no prison sentence last year.  Prosecutors never disagreed that drug penalties were too high before the criminal code reform.  Our position has been and remains that a 90% reduction in prison sentences for drug dealers goes too far, and that there is no justification for the worst of the worst drug dealers failing to go to prison.

There have been real consequences from this dramatic reduction in penalties.   Our prison population has fallen from 29,377 in January of 2013 to 25,117 in March of 2017.  At the same time, local jail populations have exploded because the people we are not able to put in prison are still committing crimes.  They now revolve in and out of local jails on short term sentences.  Consequently, offenders are increasingly on the streets creating problems for our communities.  Reports of child abuse and neglect are up as evidenced in the increase in CHINS (Child in Need of Services) cases, which have risen from 14,227 in 2014 to 23,120 in January of 2017.  Further, Indianapolis and Fort Wayne are now among the top 30 cities in the nation for murder per capita, and both cites experienced record murder numbers in 2016.  The extreme violence in these cities evidenced by the murder numbers is reportedly due, in most part, to gangs fighting over drug dealing territory.

The narrative that spurred the criminal code rewrite, and that informs the Indiana Drug Prevention, Treatment and Enforcement Task Force report is that drug use is a medical issue and not a criminal issue.  The report urges us to think of a heroin user as having a substance use disorder (SUD), and to ignore the illegal aspects.  Proponents of this way of thinking suggest that SUD is no different than diabetes.

Most in the law enforcement community do not accept the comparison.  In my analysis, I won’t quibble with that issue.  It is not necessary to make my point, and I believe the criminal justice community and the medical community can agree to disagree and still work effectively together.  I suggest that the criminal justice systems does, in fact, treat SUD and diabetes the same.  Diabetes sufferers almost exclusively participate in the legitimate medical industry in treating their disorder.  If a diabetes sufferer were to opt out of the legitimate medical industry and instead purchase medications from a man on a street corner, the criminal justice system would rightly intervene.  As a matter of public policy, our state does not want diabetics to get medication that is illicitly obtained, not tested or labeled for purity, not prescribed after examination by a doctor, not monitored for dosage and usage, and not administered with the goal of maintaining the patient’s health.

Conversely, most addicts obtain opiates outside of legitimate medical channels.  There are, of course, avenues in the legitimate medical industry to treat addiction even with the use of opiate replacements like Suboxone, but unlike diabetics, most addicts do not choose this path.  That choice is where the corrective action of the criminal justice system should be applied.  If a person suffers from SUD, he or she has an obligation to seek treatment through the legitimate medical industry.  If we excuse or enable an addict to seek opiates through the illicit drug trade, we endorse, then, all of the negative consequences associated with that industry.  Further, we undermine the efforts of the legitimate medical industry to treat this problem.  The more readily available opiates are through the illicit drug trade, the less likely an addict will seek legitimate medical assistance.  The less severe the consequences for possession of drugs, the less likely addicts will take corrective action.  A robust enforcement effort is absolutely necessary to a functional prevention and treatment effort.

I, and prosecutors around the state, certainly appreciate the efforts of the task force to bolster prevention and treatment resources in our state.  We want the plan to succeed.  It cannot succeed, however, without a comparable and equivalent improvement on the enforcement side.  Penalties for drug possession and dealing are too low.  Prosecutors are asking the Governor and his Task Force to recommend balancing the equation, and give law enforcement the tools necessary to help our state.

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