What’s Said Is Not What’s Done: How Reagan-Era Drug Warrior Politics Dominate in Progressive Massachusetts — and What We Can Do About It.
It’s de rigueur these days in progressive circles to decry attempts by Attorney General Jeff Sessions to “bring back the war on drugs.” A cursory internet search for the phrase “Sessions wants to bring back the war on drugs” returns nearly identical headlines containing a variation on the theme from the Washington Post, New York Magazine, the New Republic, Vice, and Salon. “How Jeff Sessions wants to bring back the war on drugs,” a Washington Postheadline explains. The New Republic’s headline is even more direct: “Jeff Sessions is bringing back the war on drugs.”
These headlines are great clickbait for left of center websites reliant on readers hungry for reasons to be outraged at the Trump administration. The only problem is they are dead wrong: the drug war never left.
As progressive states like Massachusetts try to grapple with the opioid crisis, however, the war has shape shifted. Faced with unprecedented levels of white addiction and overdose death, lawmakers, prosecutors, and police across the country have largely stopped blaming the victims. So in a sense, it’s easy to see why generally reliable newspapers and news sites would run such inaccurate headlines.
The rhetoric has indeed changed. Unfortunately, the policy has not — except for where it has gotten worse in many places, including Massachusetts.
Recent events here demonstrate how great is the great chasm between what officials in liberal states say about drug problems and what they actually do. The most powerful politicians in the state — the district attorneys, the Governor, and the Attorney General — are all complicit in a system that continues to recycle the same failed approaches to drug policy that have produced the current crisis. But if you only listened to their rhetoric, and didn’t pay close attention to their actions, you wouldn’t know it.
Heaping scandal upon scandal in Massachusetts’ drug labs
In recent years, two chemists working at Massachusetts drug testing laboratories have been found to have committed criminal misconduct, tainting not only thousands of samples in tens of thousands of criminal prosecutions but the reputation of the criminal justice system itself.
Thanks to the efforts of the ACLU of Massachusetts, my employer, and the state public defender’s office, the Committee for Public Counsel Services (CPCS), the first of those scandals is largely resolved.
In the face of official inaction and neglect, a 2016 ACLU and CPCS lawsuit, Bridgeman v. District Attorney for Suffolk County, asked the state’s high court to order dismissed over 20,000 criminal convictions tainted by chemist Annie Dookhan’s nearly decade-long misconduct. The Supreme Judicial Court, in a landmark ruling on April 19, 2017, ordered the district attorneys to dismiss the vast majority of those tainted convictions, preserving only those cases they were confident they could re-try without the tainted lab evidence. As of today, over 21,000 of the Dookhan convictions have been vacated with prejudice. It remains the largest single dismissal of criminal convictions in United States history.
In the Dookhan fiasco, the powers that be in Massachusetts worked overtimeto try to frame the issue as a case of one bad apple. The system works, the party line went, so no need to upset the cart or pursue systemic reforms. That’s nonsense.
In fact, the Dookhan scandal presented state prosecutors and other elected leaders with an unprecedented opportunity to prove their claim that the system works, to demonstrate their respect for basic fairness and due process. They did not seize the opportunity. Instead, prosecutors like Suffolk County District Attorney Dan Conley revealed what little regard they have for the people they churn through the merciless gears of the criminal punishment system day in and day out — the bulk of them poor, and disproportionately people of color — by fighting tooth and nail to defend not the integrity of the system, or the rights of the accused, but rather the tainted convictions.
And what a revealing bunch of tainted convictions it was. Though Massachusetts prosecutors rhetorically frame their drug war as a fight between the heroic government lawyer and the evil, large scale drug trafficker, the Bridgeman case pulled back the curtain to show us the scandalous reality of the modern war on drugs in the Bay State. In over 60% of the cases, the only drug conviction was for simple drug possession. And over 90% were prosecuted in district, not superior, court, suggesting that even the majority of the distribution and trafficking prosecutions were targeting relatively minor offenses. The first drug lab scandal thus revealed the lie at the heart of the drug war: Prosecutors by and large are not ensnaring the big fish — they’re going after drug users and petty sellers.
Despite the low-level nature of the vast majority of the cases at issue, the district attorneys appeared to be perfectly content to let tens of thousands of tainted convictions stand on the records of some of Massachusetts’ most marginalized residents — the majority of them drug users, not sellers. Despite their rhetorical commitment to treating substance use as a public health matter, DAs like Boston’s Conley showed precisely zero leadership when drug users needed help clearing their records of these tainted convictions.
It was into that leadership vacuum that civil rights and defense groups stepped. Had the ACLU and CPCS not filed suit, those tainted convictions would probably remain on the records of the victims of Dookhan’s misconduct.
But it’s not just prosecutors — almost anonymous figures in Massachusetts politics, despite their vast powers — who say one thing and then do another. The state’s highest profile politician, Governor Charlie Baker, also fails to match deed to word.
On opioids, Governor Charlie Baker is not the hero you’re looking for.
Governor Baker is the most popular governor in the country. As the Republican leader of a blue state in the midst of a catastrophic drug crisis, Baker has put addressing the opioid problem at the center of his agenda.
In 2015, Baker oversaw the passage of a state law that expanded opioid education, limited doctors’ prescribing power, and mandated the use of the state’s prescription drug monitoring database, which tracks doctors, pharmacists, and patients. Of the legislation, Baker said, “While there is still much work to be done, our administration is thankful for the legislature’s effort to pass this bill and looks forward to working with the Attorney General and our mayors to bend the trend and support those who have fallen victim to this horrific public health epidemic.” In recognition of his efforts, in May 2017 President Trump appointed Baker to the national opioid commission.
Like other politicians in Massachusetts, Charlie Baker talks the progressive talk on opioids. The crisis is a “public health epidemic,” he says. But while the Governor has taken some positive steps, including obtaining federal funds for a medication-assisted treatment program for people leaving jails, his efforts have fallen far short of what’s needed to stop the climbing overdose rates. And even worse, he’s aggressively fought for retrograde prohibitionist policies that would have been right at home in the 1980s, and which would likely make Jeff Sessions proud.
Despite the public health rhetoric, Baker ultimately listens to prosecutors — not public health experts — when he crafts policy. Baker has thus far refusedto sign an executive order to enable advocates and medical professionals to run safe injection facilities in the state, despite the Massachusetts Medical Society’s 193–21 vote in favor of the sites — a vote motivated by research confirming that SIFs save lives. And while Baker’s own Department of Public Health has published horrifying statistics directly linking incarceration to overdose death, the Governor has thrown his political weight behind a number of legislative proposals that would exacerbate the public health crisis, by giving law enforcement even more power to lock people up for longer sentences, and even for new crimes.
According to the state’s data, substance users are an astonishing 120 timesmore likely to die of overdose upon release from jail or prison, compared to people with substance use disorders who are never incarcerated. The obvious public policy answer to these statistics linking incarceration to overdose death is to decriminalize drug possession, and to shift the resources currently spent on law enforcement, incarceration, and probation into medication-assisted treatment on demand, housing, and health care for substance users. But Governor Baker is doing the opposite, by doubling down on failed prohibition policies, putting drug users at even greater risk of death.
Like other politicians grasping for solutions to the opioid crisis, Baker has endorsed the hair-raising strategy of charging drug sellers with homicide, in the event that their wares result in overdose death. The Governor introduced legislation to that effect, arguing that his proposal “will give prosecutors and public safety officers the ability to better respond to new drugs coming into our communities, and to hold accountable drug dealers who put profits over the lives of other people.”
In the fact-based community, we know this to be nonsense — dangerous and harmful legislation that runs contrary to Baker’s acknowledgement that opioid addiction is a public health issue. For one thing, the tidy distinction the Governor and other politicians draw between drug users and drug sellers is a fiction. While this fiction may hold political value for officials, who desperately cling to drug prohibition despite its failure to reduce drug death, it has no basis in fact, and its propagation is monstrous in the face of so much avoidable misery. As any user will tell you, most drug users at some point sell drugs themselves, or at the very least share (i.e. distribute) drugs with friends or fellow travelers.
That’s one of the reasons public health advocates are rightly aghast at the idea of charging distributors with murder. Should such a proposal become law in Massachusetts (and the state Senate has already approved a similar amendment), it would erase all the progress the state has made towards reducing the stigma associated with opioid use, plunging drug users back into the shadows — “Good Samaritan” laws be damned. Put plainly: If someone shares drugs with a friend, and then the friend has an overdose, the person who shared the drugs is far less likely to call paramedics if there’s a chance the call may result in their prosecution for manslaughter.
Worse yet, Baker has also aggressively pushed for expansive new wiretap powers, which would enable prosecutors and cops to use wiretaps in even the lowest-level drug distribution cases. If law enforcement got that power, they would be able to force drug users to wear wires in street level drug investigations — a tactic that has resulted in the murders of drug users across the country.
Adding insult to injury, at the precise moment when advocates have political winds at our backs to repeal racist, costly, and harmful mandatory minimum sentencing laws for drug crimes, Baker has pushed for new drug related mandatory minimums.
Like other state leaders, and leaders nationwide, Baker talks a good talk on opioids. He needs to, given the unprecedented crisis the state faces. But while crisis presents opportunity, Baker isn’t seizing it. Far be it from promoting radical, evidence-based reforms like decriminalization and decarceration, the Governor is doubling down on the very policies that got us into this mess.
Unfortunately, he’s hardly alone in that respect. The second most powerful person in Massachusetts politics is right behind him — putting drug users across the Commonwealth at great risk.
Does the AGO treat drug use as a public health issue? Not when it counts.
When it comes to challenging big business, opposing sex and religious discrimination, and fighting for consumer protection, Attorney General Maura Healey is a true progressive hero. In these areas, her rhetoric is matched by her action. She’s spoken out in opposition to Trump’s various Muslim ban executive orders, and she’s joined lawsuits to try to stop them. Healey doesn’t just talk about climate change; she is fighting Exxon in court to determine whether or not to bring fraud charges against the company for lying to the public about the effects of human-caused carbon emissions. And as soon as the Trump administration issued rules enabling employers to deny contraceptive coverage to their employees, Healey filed suit to overturn them.
As Massachusetts’ top law enforcement official, Healey also says all the right things about the opioid epidemic. It’s a public health issue, she says. Treatment, not law enforcement, is what drug users need. Her campaign website lists “[r]eforming our criminal justice system to focus on substance abuse and mental health treatment and not incarceration” as a primary plank of her plan to address the opioid crisis. In June 2015, standing next to Governor Baker, Healey echoed public health professionals and drug policy experts. “We are not going to arrest or incarcerate our way out of this,” she said. “This is a public health crisis, and we must address it as such.”
But in court, where it counts most, her appellate division is fighting to ensure the government can put drug users in cages simply because of their addiction. Probably no case better demonstrates how large is the gap between what Healey says and what her office does on drug use than Commonwealth v. Eldred.
Julie Eldred is an opioid user from Acton, Massachusetts. She has what doctors call a substance use disorder, meaning she is addicted. Her addiction is a disease. In 2016, Eldred was arrested for larceny. A Concord District Court judge sentenced her to a year of probation, with conditions. Among the conditions was that Eldred stop using drugs, and submit to routine drug tests. Predictably, Eldred failed one of those drug tests. Her probation officer notified the judge, who directed Eldred to be incarcerated.
Eldred is now asking the Supreme Judicial Court of Massachusetts to find that her incarceration was unconstitutional. She argues that her addiction — which her attorneys describe as “a chronic brain disease whose hallmark feature is an inability to exert control over the impulse to use drugs” — compelled her to use drugs in violation of her probation. Citing a 1962 Supreme Court ruling in Robinson v. California, which held that California law couldn’t criminalize drug addiction, she argues that her incarceration was unlawful because, since she didn’t voluntarily decide to violate her probation by using drugs, but rather was compelled to by her addiction, she was effectively being punished for her disease.
The fundamental question at issue in the case is whether or not Julie Eldred willfully committed a probation violation when she consumed opioids. Eldred’s lawyers submitted an expert affidavit from the preeminent addiction scientist in Boston, Dr. Sarah Wakeman. Wakeman’s affidavit connects the dots for the court: “centuries of efforts to reduce addiction by punishing addictive behaviors [have] failed to produce adequate results” because addiction is a disease, and users cannot simply decide to stop using drugs — “despite negative consequences” like incarceration.
The more we learn about addiction and recovery, the clearer this becomes. Even Maura Healey herself has acknowledged the science is unambiguous on this question. In 2016, Healey said as much to a Washington newspaper: “Addictions are a chronically relapsing medical condition, not a lack of willpower. Our efforts must open the doors to treatment, rather than incarceration.”
Experts agree. A September 2017 amicus brief signed by addiction experts and the Massachusetts Medical Association weighed in on Eldred’s case, to inform the court that the latest addiction research confirms drug users do not willfully choose to use drugs, but rather that their addiction compels them to.
Every dollar the Commonwealth of Massachusetts spends on arrest, detention, prosecution, incarceration, and probation related to drug use offenses is a dollar the state cannot spend on treatment. There’s a consensus in the recovery community about what substance users need: long-term treatment on demand, including affordable or free medication-assisted treatment. But while it’s easy to find an open bed in a jail cell in Massachusetts, it’s damn near impossible to find affordable long-term treatment.
Finally, this bears repeating: the Massachusetts Department of Public Health found that people recently released from incarceration were 120 times more likely to die from opiate overdose than drug users who were never incarcerated.
Given these facts, and given AG Healey’s public position on substance use, you might think her office would welcome the opportunity to affirm, before the state’s highest court, that drug addiction is a disease, and that incarceration is not the correct response to treating it. A public health approach to the opioid crisis would agree with Julie Eldred, and assert that the court — through the probation department — cannot legally criminalize addiction by imposing probation conditions substance users cannot meet. Instead, Healey’s office is fighting to make sure the court’s probation officers retain the authority to require that probationers remain entirely drug free, and to incarcerate them if they slip up. Public health and addiction science be damned.
AG Healey is investigating Exxon because the company allegedly knew, for decades, that human caused carbon emissions were changing the climate in ways that could threaten life on our planet, but acted as if the science didn’t exist, or was uncertain. Ironically, Healey’s AGO is doing the exact same thing in the Eldred case, except this time, her office is on the side of science denial.
Who’s to blame? In short: The district attorneys
Maura Healey isn’t the only public official in Massachusetts or the nation who says the right things on drug policy, only to turn around and do the wrong things. And she’s not even the worst offender. But because she walks the talk on so many other important issues, and fails to do so on drug policy and criminal justice matters more broadly, she offers us insights that can inform our approach to moving the needle on these issues across the country. In order to move that needle, we need to understand why politicians like Healey — bold, progressive, and righteous in so many critical ways — don’t do more to enact bold, progressive, righteous criminal justice reforms, or at least get out of the way when the rest of us try.
And the answer isn’t that complicated: It’s just politics — specifically, politics related to district attorneys.
Despite the apparent contradictions, it’s no mystery why Attorney General Healey’s office made the otherwise confounding decision to fight Julie Eldred’s petition to the SJC to stop criminalizing addiction. Healey’s office echoed the 1980s, war on drugs line about addiction as moral failure because she is protecting her right flank from the organized, politically entrenched power centers of state and local American politics: prosecutors.
The sad reality in states across this country is that if you upset the law enforcement establishment, it’s difficult to get elected to public office. (This message probably rings even louder in the ears of Massachusetts politicians, because no one in Massachusetts politics has forgotten what happened to Mike Dukakis.) Prosecutors, especially, have far more power in electoral races and state capitals than the vast majority of the public comprehends. To publicly cross prosecutors, or to dare to strip them of some of their almost God-like powers, is to put yourself at grave political risk.
In a way, it’s a relief to know this is just a political problem. It means that in order to get politicians like Maura Healey and Charlie Baker to do the right thing on critical issues like drug policy, all we have to do is become more politically influential than the interests that oppose us.
Above all else, that means directly confronting the political power prosecutors hold in state capitals across this country. Doing so will take political education, community organizing, statewide lobbying, and most important, a cultural shift away from knee-jerk calls for punishment as the default response to addiction and crime. It means demanding our elected officials consult medical professionals and addiction researchers instead of cops and district attorneys when they shape legislation to combat public health crises like opioid addiction.
That shift is already taking place in cities across the country, including here in Boston. In October, I listened to candidates for City Council talk about what they can do to address gun violence. Even the most law enforcement friendly candidates talked about building social safety nets and investing more resources in human needs, instead of calling for harsh “tough on crime” penalties or more aggressive police powers. The conversation is already shifting. If we can push it further, we can change the political calculus for politicians like Maura Healey and Charlie Baker, to make it politically risky for them to continue with the same old policies that have resulted in the crisis we now face.
To do that, we need to be strategic. We need to articulate a long-term vision of a society that addresses root causes instead of applying carceral “solutions” that only make things worse. We need to be uncompromising when it comes to articulating that vision. And we must fight like hell to demand our lawmakers change the law to reflect the science — city by city, county by county, and state by state. If prosecutors and the politicians who follow them won’t join us in that march towards a healthier, more just society, they need to get out of our way.
Kade Crockford is the director of the Technology for Liberty Program at the ACLU of Massachusetts and an MIT Media Lab Director’s Fellow. The views and opinions expressed in this article are Kade’s and do not necessarily reflect the views of the Fair Punishment Project.