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After New York Sues Opioid Manufacturers, Drug Policy Experts Warn That Legal Action Won’t Save Lives

Mayor de Blasio (@NYCMayor) on Twitter

After New York Sues Opioid Manufacturers, Drug Policy Experts Warn That Legal Action Won’t Save Lives

New York City Mayor Bill de Blasio and Kentucky Attorney General Andy Beshear filed lawsuits last week against several pharmaceutical companies, including Purdue Pharma and McKesson Corporation, that manufacture and distribute opioid pain relievers, alleging that they are getting rich to the tune of $13 billion annually from an overdose crisis that kills 120 people each day.

“By suing Big Pharma, we will make them pay for the lives they’ve destroyed,” Mayor de Blasio tweeted on January 23. “We’ll force them to change their behavior and stop endangering Americans. This is a health emergency and New York City will hold Big Pharma accountable.” Similarly, Kentucky AG Beshear said his state is suing pharmaceutical companies like McKesson for “knowingly and intentionally” distributing huge quantities of opioids in small Kentucky towns, which he described as “reckless behavior [that] fueled our catastrophic drug epidemic that every community is facing.”

Nearly 200 similar lawsuits have been filed by cities and counties across the country, and they’ve become a relatively easy way for politicians to look like they’re addressing the crisis. But doctors, lawyers, and public health experts interviewed by In Justice Today are skeptical that such lawsuits are the best way to improve the conditions of people suffering and dying from addiction.

“In a state or large city like New York, there are a lot of regulatory and legislative levers you could be pulling” to address the overdose crisis, such as expanding access to medication-assisted treatment, says public health lawyer Corey Davis, deputy director at the Network for Public Health Law. “And that could happen much more quickly. Laws and regulations are also enforceable, and a much surer bet than suing a bunch of opioid manufacturers and distributors, hoping at some point you get money.” It could be years before a settlement between states and opioid companies is reached.

While de Blasio supports distributing the overdose-reversal drug naloxone and expanding access to treatment, he also favors a war on drugs approach to the crisis, which advocates say takes resources away from implementing proven public health solutions. As for Kentucky, the state does not let Medicaid pay for methadone — a substitute drug that has been used since the 1970s to reduce opioid withdrawal symptoms and cravings — resulting in financial barriers that prevent low-income people from receiving addiction treatment.

In a recent paper, “Reducing Harm Through Litigation Against Opioid Manufacturers? Lessons From the Tobacco Wars,” Davis and his colleagues argue that a big cash settlement with opioid companies “would likely not be the most effective solution for reducing future harm to the states’ citizens.” While the 1997 tobacco settlement — known as the Tobacco Master Settlement Agreement — led to some successes, like restrictions on advertising and the launch of public awareness campaigns about the harms of tobacco, it’s unclear whether it achieved its stated goal: reducing smoking rates and improving public health.

Davis and his colleagues contend that it’s more likely that increases in cigarette prices, thanks to higher taxes on the product, caused declines in smoking. Unlike tobacco, opioids are FDA-approved medications that play a vital role in pain management. “These are products that do good,” Dr. Jeff Singer, a surgeon and senior fellow at the Cato Institute, a libertarian think tank, told In Justice Today. “They are medications, and a totally different case than tobacco.” Singer says these lawsuits look like grandstanding by politicians “who want to appear to be taking action.”

Another major difference between tobacco companies and pharmaceutical companies is the complicated supply chain. Before pills reach the hands of patients, they must be prescribed by a doctor and then purchased at a pharmacy, often involving an insurance company payment. Those pills arrived at the pharmacies via distribution companies like McKesson, and were manufactured by companies like Purdue. With all of these intermediaries, should companies bear responsibility because some patients die after taking the prescribed drug or divert the medication to the black market?

After all, the vast majority of prescription painkiller deaths involve diverted medication that was used illicitly. Indeed, Singer points out that it’s heroin and illicitly manufactured fentanyl — neither come from a prescription — that are driving the overdose crisis. In 2016, almost three-quarters of overdose deaths in New York City involved heroin or illicit fentanyl. Similarly in Kentucky, over 80 percent of deaths involved heroin or fentanyl during 2016. “Collecting billions from opioid manufacturers isn’t going to stop nonmedical users from doing heroin,” Singer said.

Dr. Stefan Kertesz, a primary care doctor and opioid safety team member at the University of Alabama Birmingham School of Medicine, has a different concern. “If these cases hang on portraying every patient with chronic pain as falling prey to something that’s fundamentally harmful, they will tend to spur a continuing stampede of abandonment of these patients,” he says. “It’s not civilized to traumatize the most disabled people in America in the name of averting a public health crisis. Normally you protect those people.” Kertesz says he’s happy to see corporations punished for law-breaking, but “I don’t know whether that is going to save lives in the coming year.”

While Kertesz worries that the rhetoric against pharmaceutical opioids harms vulnerable patients, he thinks the lawsuits are worth it if settlement money helps local governments recoup spending on efforts like expanding treatment.

Mayor de Blasio is right that the overdose crisis is a health emergency. But state and local officials need to focus on actions they can take now, like hosting supervised injection sites and expanding access to medications that treat opioid addiction. A real, non-carceral, public health strategy must be implemented on opioids — the opposite of de Blasio’s NYPD approach on marijuana. Otherwise, they are repeating the empty gestures of the crack era, when officials offered false promises of solving social problems through the court system and mass incarceration.

Cyntoia Brown and the Years Lost by Juvenile Lifers

Cyntoia Brown and the Years Lost by Juvenile Lifers

In The Princess Bride, Prince Humperdinck has Wesley strapped to a device known as The Machine, which has a lever that can be raised from 1 to 50. When the lever is turned to 1, the machine sucks away one year of the victim’s life, with each tick of the lever corresponding to another year taken away. In 2010, Deborah LaBelle brought a class action lawsuit on behalf of twelve Michigan prisoners who had been given mandatory life without parole sentences based upon crimes committed when they were children. During the course of the litigation, as clients kept dying, LaBelle realized that she was confronting a real world example of The Machine.

The average life expectancy of a person born in the United States is about 79 years. The United States Sentencing Commission has calculated a life expectancy for all prisoners of 64 years and uses that number for sentencing decisions. LaBelle, the Project Director of the ACLU of Michigan Juvenile Life Without Parole Initiative, dug into the numbers of Michigan prisoners given life sentences. For adult lifers, life expectancy dipped to 58.1 years. And then there were juvenile lifers, the population LaBelle was representing in her lawsuit. For that group, life expectancy was lower still: 50.6 years. Put simply, when a young person is given a life sentence, she has, on average, more than a third of her life sucked away.

Death penalty advocates make a lot of hay out of the fact that only 58 countries still have capital punishment, with a mere five nations, including the United States, accounting for 95% of executions worldwide. But the American sentence of juvenile life without parole is even more aberrational. In 2008, Connie de la Vega and Michelle Leighton from the University of San Francisco School of Law studied juvenile sentencing laws from across the globe. Their conclusion: The United States is the only country in the worldthat imposes a sentence of juvenile life without parole.

Four years after this study, the United States Supreme Court issued its landmark opinion in Miller v. Alabama. Based upon findings from psychology and brain science showing fundamental differences between the brains of adults and children, the Court held that juveniles cannot be given mandatory sentences of life without the possibility of parole. Instead, this country’s second highest punishment can only be given to a child after an individualized sentencing hearing that takes into account factors such as her upbringing and capacity for change.

As things stand today, half of all states and the District of Columbia have gone further, actually or constructively banning the juvenile life without parole sentence. In many other states, there is an option to give a juvenile a sentence that allows for the possibility of release after serving 20 or fewer years in prison. In some other states, that number is 25 or 30 years. That leaves just four states in which a young person who commits murder has no hope of release until spending more than 30 years in prison.

As has been demonstrated by the case of Cyntoia Brown, Tennessee is the biggest outlier. Cyntoia was born to a mother who drank a fifth of hard liquor nearly every night of her pregnancy and didn’t see a doctor until the day that Cyntoia was born. After Cyntoia was born, her mother soon abandoned her before returning to kidnap her from her new guardian, and Cyntoia would ping pong among parents throughout her childhood while suffering from Fetal Alcohol Spectrum Disorder.

In 2004, at age 16, she was repeatedly raped by her friend’s boyfriend and physically and sexually abused by a man named “Cutthroat” who forced her into prostitution. One night, she went to a local Sonic, which was known as a hot spot for prostitutes. There, she was approached by 43 year-old Nashville real estate agent Johnny Mitchell Allen. She gave him a price of $200 for sex. He countered with $100. They met in the middle. He bought her some food from Sonic and took her to his house.

Cyntoia says she felt uncomfortable while at Allen’s house, which was packed to the gills with guns, and she used one of them to fatally shoot him after she thought he was reaching for a gun to shoot her. The State claimed the murder was premeditated, using the fact that Cyntoia stole Allen’s wallet, some of his guns, and his truck after the shooting. Cyntoia contends she was acting in self-defense and that she was disoriented after the shooting and fearful that Allen was still alive and would track her down.

After Cyntoia was convicted of first-degree murder, there were only two sentencing options, the same options that still apply for all young homicide offenders in Tennessee: (1) life without parole; and (2) life with the possibility of parole after serving a minimum of 51 years. Cyntoia was given the latter sentence, meaning she will almost certainly die in prison. Despite being described as a model inmate who has earned an Associate’s Degree and is working toward a Bachelor’s Degree, she has no hope of being released until she’s 68 years old. That’s nearly 18 years past the life expectancy for juvenile lifers found by Deborah LaBelle in her study. Indeed, in her study, LaBelle was aware of only one juvenile lifer who had reached age 68: he’s confined to a wheelchair and has been in permanent hospital care for many years.

There is, however, hope on the horizon. Last year, Tennessee legislators proposed a bill that would end juvenile life without parole in the Volunteer state and allow for the possibility of release after 15 to 20 years. That bill never made it to a vote, but it should be reintroduced this year and has the support of Democratic Representative Raumesh Akbari and the Tennessee Black Caucus of State Legislators. But this is also a bipartisan issue. Doug Overbey and Jeremy Faison, the representatives who initially introduced the bill, are both Republicans, and allowing for the possibility of parole for juvenile lifers is a fiscally conservative issue. It’s estimated that every year an inmate spends in prison costs a state $25,000, meaning that an inmate like Cyntoia serving 51 years would cost the state of Tennessee $1.275 million. Unless the law is changed, it will also almost certainly cost Cyntoia her life.

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Proposed Federal Trafficking Legislation Has Surprising Opponents: Advocates Who Work With Trafficking Victims

Proposed Federal Trafficking Legislation Has Surprising Opponents: Advocates Who Work With Trafficking Victims

Congress is marking “National Slavery and Human Trafficking Prevention Month” by considering major anti-sex trafficking legislation in both houses. The bills use different approaches but would both target websites, such as Backpage, where sexual services are advertised.

Yet neither bill will result in justice for victims of human trafficking, anti-trafficking advocates and service providers told The Appeal. If passed, they say, the legislation stands to do more harm than good by failing to distinguish between trafficking victims and sex workers, eliminating sex workers’ source of income, and hampering anti-trafficking investigations.

The Senate bill, SESTA (Stop Enabling Sex Traffickers Act), which has 66 co-sponsors, was introduced by Ohio Republican Rob Portman, who last year held a Senate hearing with Missouri Democrat Claire McCaskill on Backpage and its alleged role in sex trafficking. (Just before the hearing, Backpage closed its “adult” ads section; those ads then migrated to their dating section.)

If enacted, SESTA would amend the 1996 Communications Decency Act (CDA), a provision of which — Section 230 — protects website operators from most types of legal liability for content created by their users. SESTA, Sen. Portman said in a January floor speech, “provides justice for victims of online sex trafficking because they’ll have the opportunity to sue — hold these websites accountable that knowingly facilitate crimes.”

The House bill, FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act), would update the century-old Mann Act, which prohibited prostitution across state lines. Introduced by Rep. Ann Wagner (R-MO), FOSTA was later amended by House Judiciary Chairman Bob Goodlatte (R-VA), who expanded its scope from sex trafficking to all prostitution. It introduces a new federal crime: using or operating “a means of interstate or foreign commerce with the intent to promote or facilitate the prostitution of another person.”

According to Wagner, FOSTA is about “putting an end to these websites” — like Backpage, which has already successfully defended itself against state civil and criminal suits under the CDA’s current language. Operators of any website where sexual services are advertised could be charged under the new federal criminal statute proposed by FOSTA. Like SESTA’s backers, FOSTA’s proponents say this would make it easier to take legal action against websites like Backpage, though, unlike SESTA, FOSTA does not open up the path for civil suits, and it encompasses websites that facilitate prostitution, not just sex trafficking.

The legislation is meant to protect victims of sex trafficking, but many advocates who work directly with people who have been trafficked oppose both bills. “They think that shutting down any online platform is going to miraculously end human trafficking,” Jessica Peñaranda, director of strategic initiatives at the Sex Workers’ Project, told The Appeal. “They think it’s an easy way to do this.” But real solutions aren’t so easy, she says.

The position she and other advocates are voicing against SESTA and FOSTA is one that tends to get drowned out. Typically, high-profile anti-trafficking lobbying groups that lead the charge for federal legislation, such as World Without Exploitation (led by former Brooklyn Assistant District Attorney Lauren Hersh), or Christian right groups like the National Center on Sexual Exploitation (formerly known as Morality in Media), oppose not only sex trafficking but sex work itself.

“As long as there is a global sex trade, ours will be an unsafe, unjust world,” World Without Exploitation wrote in a statement supporting SESTA. But there are other anti-trafficking advocates — including trafficking victims and survivors — who do not oppose sex work, but who are seldom heard from.

Laura LeMoon, an anti-trafficking and sex workers’ rights advocate, wants to change that. She worries that legislation like SESTA and FOSTA, though ostensibly meant to help trafficking victims, is based on dangerous presumptions about the sex trade, which can actually harm both sex workers and people who are trafficked. “It’s the assumption that if we go after all prostitution, we will by definition get some trafficking in there anyway, since it’s all ‘exploitative,’” she explains. LeMoon has been trafficked and later engaged in sex work. “I know that from my experience being on Backpage,” she says, “you can’t just assume everybody’s experience in one industry.”

Sex work and trafficking are not the same thing, LeMoon and other advocates explain. At different points in their lives, some people choose sex work or are forced into sex work, or do sex work because they have few other choices. Like LeMoon, some people who have been trafficked may also use Backpage to advertise independently as sex workers. If Backpage closes down, they and other sex workers could be pushed into more dangerous situations.

SESTA supporters say the Communications Decency Act (CDA) shields websites like Backpage from most types of legal liability, making them a safe haven for trafficking. But Alexandra Levy, adjunct professor of law at Notre Dame Law School, where she teaches about human trafficking, points out that the CDA would not protect Backpage operators from federal criminal prosecution if its operators were themselves facilitating trafficking. “Section 230 as it is currently written would not prevent a federal prosecution of Backpage, if there was a case to be made,” she says. “And that’s a big if.”

If SESTA succeeds in unleashing a flood of suits against Backpage, they could be so costly as to put Backpage out of business. Some of the bill’s opponents say that would not only put sex workers out of work, but it would also make investigations harder for law enforcement and advocates who use Backpage to identify trafficking victims. What makes Backpage useful to sex workers also makes it a valuable investigatory tool: If law enforcement wanted to invent a tool that tracked people who were trafficked, and allowed them to communicate their location without alerting their traffickers, Levy has argued, it would look a lot like Backpage.

Megan Mattimoe, executive director and staff attorney at Advocating Opportunity, which assisted 150 victims of trafficking this past year, says she has seen Backpage provide information about trafficking victims captured in ads along with data on advertisers to aid in prosecutions. “In our cases,” she says, “Backpage not only complied with prosecutors’ requests, but they would also send someone to trial to testify that those business records were authentic.” Since Backpage closed its adult advertising section in January 2017, Mattimoe says, her organization has seen “victims advertised on sites housed outside the U.S.,” where federal prosecutors have neither subpoena power nor Backpage’s cooperation.

As investigations and prosecutions have made it more difficult for Backpage to operate, says LeMoon, who now works with SWOP Behind Bars, assisting sex workers who are incarcerated, life has become more difficult for both sex workers and survivors of trafficking. “It’s had a real disproportionate effect on low-income sex workers, sex workers of color, trans sex workers, sex workers who are most at the margins,” she says, “because we’re the ones who really rely on Backpage as a means of income.” Legislation like SESTA and FOSTA would put these workers at further risk.

Though it has sufficient votes to pass, SESTA has yet to come to a vote on the Senate floor. In November, Democratic Senator Ron Wyden placed a hold on the bill, warning, “I continue to be deeply troubled that this bill’s approach will make it harder to catch dangerous criminals,” adding that it could also “stifle innovation” on the internet. FOSTA’s fate is equally uncertain: Though tech companies like Apple and interest groups like the Concerned Women of America, a Christian anti-feminist organization, support it, many of the anti-trafficking lobbying groups who support SESTA (like World Without Exploitation) openly oppose FOSTA, which they say was crafted without their input and, unlike SESTA, lacks a provision for a civil right of action.

Advocates who work directly with survivors oppose both pieces of legislation, but for different reasons than the lobbying groups. “There’s nothing in there to help victims at all,” says Mattimoe. Survivors of trafficking may be able to bring a civil suit against a website such as Backpage, but few survivors have the resources to do so — another factor SESTA does not address.

Both SESTA and FOSTA also fail to address the immediate needs of survivors. Peñaranda of Sex Workers’ Project, who assists both sex workers and people who have been trafficked, says her clients already struggle to find work and fear being treated as criminals for past or current involvement in commercial sex. When websites such as Backpage are criminalized, Peñaranda says, “it’s forcing the hand of survivors” — to choose safety, or survival.

Thanks to Burke Butler.

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