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To End the Opioid Crisis, Skip the Handcuffs and Rethink Health Insurance, Report Says

A new report from The Sentencing Project offers a blueprint for putting an end to a deadly epidemic.

Spencer Platt / Getty Images

To End the Opioid Crisis, Skip the Handcuffs and Rethink Health Insurance, Report Says

A new report from The Sentencing Project offers a blueprint for putting an end to a deadly epidemic.

On Tuesday, Louisiana Attorney General Jeff Landry gathered with law enforcement officials from across the state and country to train police and prosecutors how to crack down on the opioid epidemic in his state. Louisiana is one of more than 30 states that has requested this training from the National Attorneys General Training and Research Institute (NAGTRI), the Associated Press reported. Louisiana sheriffs, chiefs of police, and District Attorneys in attendance discussed tactics and tools for investigating and prosecuting cases related to overdose deaths.

“We’re trying to fight this fight collectively,” Joanne Thomka of NAGTRI told the AP.

As in many places across the country, Louisianans have watched opioid-related overdose death rates rise in their communities, and they are eager for a solution. But according to a report released today from The Sentencing Project, a D.C.-based nonprofit research and advocacy organization, Landry’s approach won’t solve this crisis. Opioids: Treating an Illness, Ending a Warposits that not only will a criminal justice response to drug addiction fail to stem the use of opioids, but that the current state of American healthcare is slowing down an effective response to the epidemic.

“Any serious discussion about ending the opioid crisis must prioritize addressing the limitations of the U.S. healthcare system,” Nazgol Ghandnoosh, the report’s coauthor, told In Justice Today by email.

The report documents how the crisis has grown, and situates the opioid emergency within the broader context of past and current health and criminal justice policies, particularly the war on drugs. It points a finger squarely at healthcare insurers that restrict coverage of mental health care, addiction treatment, and “less addictive, non-opioid medications and non-drug treatments, such as physical therapy.”

Insurers place lower-risk pain relief medications in a coverage tier that makes them more expensive than opioids, which are widely understood to pose a higher risk of dependence. Similar roadblocks to less-addictive painkillers exist in Medicare and Medicaid programs. These restrictions contributed to the increase in overdose deaths involving prescription opioids, according to the report. Such deaths have increased from 1.3 per 100,000 people in 1999 to 4.9 deaths per 100,000 people in 2015.

Some advocates and lawmakers argue that limiting opioid prescriptions will increase overdose-related deaths by pushing people with opioid use disorder toward heroin or other synthetic, unregulated drugs. While the report does recommend curbing opioid prescriptions, it notes that state and federal efforts to do so have only achieved “modest” success in stemming the growth of overdose deaths.

Ghandnoosh says focusing on overprescription “misses the big picture … and fails to diagnose that it’s a lack of access to drug treatment that makes limiting [prescriptions] harmful.” While insurance companies make non-opioid painkillers less accessible, those without insurance often lack access to medication-assisted treatment. The lack of access hits low-income Americans the hardest, according to Richard Frank, Professor of Health Economics at Harvard Medical School. Frank’s analysis of the 2015 National Survey on Drug Use and Health found that, among U.S. residents aged 18 to 64, those with incomes below the federal poverty level were 47% more likely to have an opioid use disorder than those with incomes above 200%. This same demographic is less likely to have health insurance coverage.

The “treatment gap” described by the report is also a growing concern in prisons and jails. The rate of drug use among incarcerated people is 10 times that of the general population, according to the Bureau of Justice Statistics. As a growing number of opioid users wind up behind bars, opioid detox-related deaths are increasing. A recent investigation by Oregon-based KOIN 6 reporters notes a rise in heroin-related detox deaths in county jails, sparking numerous lawsuits. To make matters worse, incarcerated people suffering from substance use disorders are often unable to access effective treatment programs. The Sentencing Project observes that the U.S. Bureau of Prisons doesn’t currently have an established medication-assisted treatment program in its prisons.

“Jails and prisons are not the place to deliver drug treatment, but if we’re going to lock up people with substance use disorder, then we better be sure to provide them with effective forms of drug treatment,” says Ghandnoosh.

So, what can be done about this complex crisis? For one, Ghandnoosh and coauthor Casey Anderson recommend abandoning the drug war. They point out that the “aggressive law enforcement” approach to crack and heroin use of the past 30 years offers a clear blueprint for what not to do. Not only did these policies fail to curb the drugs’ use, the report argues, they contributed to the current massive prison population that states are now struggling to reduce.

Unfortunately, state and county lawmakers and prosecutors do not seem inclined to learn from past mistakes. Many are increasing criminal penalties in an attempt to drive down opioid use and overdose deaths. The report documents opioid-related legislation that has emerged over the last three years in Florida, Maryland, Massachusetts, Kentucky, and Louisiana. In each of these states, bills that increase sentences or permit prosecutors to charge people who sell opioids to someone who dies from an overdose with homicide have passed or are pending.

The report’s authors also suggest curbing opioid prescriptions and increasing access to treatment in and out of prisons and jails. Reducing the number of drug-related arrests and introducing drug sentencing reforms, they say, is key to stemming the tide of opioid-use disorders and overdose deaths. Finally, they recommend expanding access to, and training for, harm reduction tools, such as naloxone, to “individuals with substance use disorder and those around them, first responders, police officers, and pharmacies.”

Thanks to Burke Butler.

Kentucky’s Heroin Bill Was Meant to Ease the State’s Opioids Crisis; Instead It’s Increasing the State’s Prison Population

Kentucky State Senator Chris McDaniel

Kentucky’s Heroin Bill Was Meant to Ease the State’s Opioids Crisis; Instead It’s Increasing the State’s Prison Population

In 2013, Kentucky closed the last of its private prisons partly because of a 2011 State House Bill that moved low-level drug offenders into treatment instead of prison, through a deferred prosecution program. Fueled by the bill’s success, Kentucky’s prison population went down to 20,300 by the end of 2013, down from 21,466 in 2012. The 5.3% drop was tied for the third highest decrease in the United States. In 2015, new legislation was enacted to increase funding for substance abuse programs, expand access to the overdose reversal drug naloxone and allow local health departments to set up syringe exchanges. “We’re coming to help you,” then-Governor Steve Beshear said, addressing folks caught up in the opioid epidemic plaguing Kentucky and the rest of Appalachia. “Work with us. Help us to help you to get on the road to recovery, and to becoming a productive member of society.”

Two years later, however, the state’s prison population has reached an all-time high of 24,600 and Kentucky is getting back into the private prison business.

What happened? The Kentucky legislature passed a law responding to the state’s opioid epidemic; the legislation was credited for taking a public health approach to opioids, but the law was also highly punitive. While the bill did provide money for treatment programs, establish some needle exchanges, and increase access to the heroin overdose drug naloxone, the 2015 law also increased the penalty for drug trafficking, which had previously been one to five years. Selling between 2 and 100 grams of heroin remained a Class C felony, but because of the bill, individuals convicted of that offense had to serve at least half of their sentences. Two new levels of offenses were also introduced for high-volume traffickers and a new crime of “Importing Heroin” was created. Selling less than two grams of heroin remained a Class D felony, but dealers charged with two “indicators of trafficking” (like having baggies on them or large sums of cash) had to serve at least half of their prison sentence.

In 2012, 881 people were admitted to Kentucky jails for Class D felonies. In 2016, the number was 1,821.

“We believe that we need to trust our prosecutors locally to make these decisions,” said GOP state Senator Chris McDaniel, as he pitched the public on the stricter sentencing in the 2015 bill, “and we trust our prosecutors.”

Prosecutorial discretion is, however, one of the major reasons that Kentucky’s attempts to reduce their prison population have been such glaring failures. Take rural Carroll County: Under the 2011 legislation’s “deferred prosecution” program, first and second-time drug possession offenders can avoid conviction by seeking treatment. But in 2016, Jim Crawford, the commonwealth’s attorney for the 18th Judicial Circuit, told the Courier Journal that he doesn’t believe in deferring prosecution because, “I lose control over the defendant and can’t keep track of what they are doing.” In 2014, Carroll County sent people to prison at a higher rate than any other US county with a population of more than 10,000 for which data is available.

The prison population in Kentucky is likely to increase again thanks to House Bill 333, signed into law in July by GOP Governor Matt Bevin. The law increases penalties for trafficking illicitly manufactured fentanyl and lengthens the sentence for those dealing or even sharing any amount of heroin, even if the defendant is struggling with addiction. Incredibly, Assistant District Attorney turned State Senator Whitney Westerfield urged passage of the bill by citing law enforcement’s sensitivity “to the need for substance abuse care.”

But this new legislation’s carceral approach simply picks up where the 2015 bill left off: Kentucky’s prison population is projected to increase by another 19% over the next decade, at a cost of $600 million to taxpayers. Despite these efforts, many parts of the state are still ravaged by heroin addiction. In 2016, overdose deaths in the state hit a record high, with 1,404 people dead. If the state’s reform strategies continue to be pushed alongside repackaged “War on Drugs” policies, we can expect things to get even worse very soon.

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Sex Registries as Modern-Day Witch Pyres: Why Criminal Justice Reform Advocates Need to Address the Treatment of People on the Sex Offender Registry

Sex Registries as Modern-Day Witch Pyres: Why Criminal Justice Reform Advocates Need to Address the Treatment of People on the Sex Offender Registry

Perhaps the most irrefutable statement that can be made about modern day America is this: we have a penchant for putting people in cages. More than any other nation on the planet, we rely on incarceration as the fix for our social ills.

America’s unprecedented prison boom spawned advocates who work tirelessly to put the police state toothpaste back into the tube. As a result, despite a steady media diet of cops and robbers police procedurals, the rhetoric on crime policy has begun to shift. The country appears to be approaching something akin to apostasy. We have begun to lose our faith in imprisonment as an effective response to problems like drug addiction. For the first time since the data was tracked, state and federal prison populations declined in 2014, albeit slightly, from historic highs.

Yet amidst this wave of reform, one group of people continue to languish in the collective “harsher is better” mindset: sex offenders.

The American journalist H.L. Mencken once said that

The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

Mencken was right: if you’re interested in defending human freedom, get ready to spend a great deal of time defending people you might not like. The guns of oppression are aimed at the friendless before they swing to the connected and moneyed.

And no one is more friendless than those on the sex offender registry.

The sex offender is the modern-day witch: the registry, the contemporary pyre. A scarlet letter for our technocratic era, forcing people to register as sex offenders “is what puritan judges would’ve done to Hester Prynne had laptops been available.” While undoubtedly there are those on the registry who have been convicted of blood curdling crimes, the designation is also extended to those who have been convicted of far more banal ones.

Reformers urgently need to draw public attention to the cruel and unnecessarily harsh treatment afforded to sex offenders within the justice system. Sex offender registries are rapidly proliferating and becoming an increasingly popular back-end tool for feeding people into the carceral state.

Geographic exclusion zones, pictured above, limit where people on sex offender registries are lawfully able to live, work, and “loiter.” Source: 6th Circuit Court of Appeals

In understanding the reasons why sex offenders ought to be a higher priority for mainstream justice reform advocates, a grasp of the evolution and operation of the sex offender registry is critical.

The forebears for modern sex offender registries and so-called “sexual psychopath laws” first appeared in late 1930s California, and largely targeted LGBTQ individuals. What began as relatively simple lists of individuals convicted of crimes grew in the wake of two high profile murders of children in 1937, which spawned a moral-sexual panic: simultaneously horrifying and captivating the nation.

Operating on the premise that the American public had a right to know about the sordid pasts of those it deemed miscreants, registries began to spread from state to state, city to city, arguably arriving in modern form in the wake of the grisly rape and murder of Megan Kanka in New Jersey in 1994 — the namesake for Megan’s Law (the colloquial term by which sex offender registries are most commonly known).

Perhaps owing to our puritan roots, it has been said that everyone in America lies about sex, because everyone lies about the designs that they have on their neighbors’ bodies.

Our institutions may not be terribly different.

In 2003, in a case titled Smith v. Doethe United States Supreme Court was asked to consider whether the Alaskan sex offender registry was so punitive as to be constrained by the ex post facto clause of the United States Constitution, which is meant to stop punishments from being increased after the fact. In asserting — falsely, as has been conclusively demonstrated — that the risk of re-offense posed by sex offenders was “frightening and high,” the Court green-lit a cross-country, decade-long race to the bottom in denying those on the registry essential and time-honored legal protections.

Despite having been given two recent high-profile opportunities to revisit its holding and erroneous factual assertions, the Supreme Court has so far chosen not to do so. Worse, in the concurring opinion in 2017’s Packingham v. North Carolinathe conservative wing of the Court reaffirmed Smith’s central fallacywhich laid the foundation for present-day sex offender registriesJustice Anthony Kennedy, who authored the majority opinion in both Smithand Packingham, remained silent on the elephant in the room that was given life by his authorship in Smith: the erroneous assertion on re-offense rates.

Population of individuals incarcerated vs. Population of individuals on a registry, 2005–2016. *Corrections data for 2016 not yet available.

In the wake of Smith, sex offender registries and their attendant restrictions have grown at a brisk clip. The number of people listed on a sex offender registry in the United States has grown from slightly more than 500,000 in 2005 to 874,725 todayResearch has found that sex offender registries have a disproportionate impact on minorities.

While registries and their attendant requirements are sold as enhancing public safety, research consistently indicates that they are exceedingly bad at this goal. One explanation is because, contrary to Smith’s baseless assertion and what most believe, people on the registry have one of the lowest rates of re-offending out of any class of criminal.

A tenuous relationship with facts notwithstanding, registries are wildly popular: a whopping 94% of Americans support their existence and increasingly harsh treatment of those required to register (though most people report that they never actually check the registry). Even as the public appears to be finally questioning the wisdom of putting so many people in cages, the same cannot be said for its seeming willingness to put so many in virtual cages out of fear of what they “might” do.

Because of its popularity, public officials who depend on votes for their livelihood — like lawmakers and judges — are loathe to tinker with the registry, other than to devise ever-more severe punishments for its inhabitants.

As a piece of criminal justice machinery brought to bear on people, the registry can best be thought of as a two-headed beast: a 1–2 punch of distinct effects.

The first head is the direct impact on the lives of those on the registry itself. With no Due Process or Ex Post Facto brakes to slow down the juggernaut, it has become weaponized. A far cry from its origins as a simple list of purported perverts, it has morphed into a web of prison-without-bars that would make Franz Kafka blush. The oppressiveness, breadth, and lack of due process inherent in these modern day sex offender registries led a federal court in Colorado to label it a cruel and unusual punishment; a legal conclusion virtually unheard of outside of the cloistered world of death penalty litigation.

The second head is the tangle of legal requirements for those on the list: a knot of vague, illogical, ever-expanding, and sometimes contradictory laws that even lawyers, judges, and law enforcement have difficulty interpreting.Examples can include strict time limits on reporting even minor changes in information (such as online accounts) or residence, residency restrictions, or even the clothing one wears. States promise swift felony prosecutions if individuals do not observe hyper-technical compliance with these requirements.

Unsurprisingly, it is exceedingly easy to run afoul of the requirements, keeping those that do trapped in a cycle of legislatively-crafted “crime” that can be tantamount to a de facto life sentence. “Failure to register” is fast becoming the crime of choice for returning those on the registry to prison. In 2008 in Minnesota, failure to register charges became the most common reason sex offenders were returned to prison. Between 2000 to 2016, Texas saw a more than 700% increase in FTR arrests, from 252 in 2005 to 1,497 in 2017. To borrow a phrase from computer programming, this is not some kind of criminal justice bug.

It is a feature.

If America has a civil death penalty, putting people on the sex offender registry is it. In a recent experiment, when individuals were given the choice between being labeled a child molester or dying, most chose death.

The numbers of those currently on the registry are staggering, and continue to increase each year. Absent seismic shifts in criminal justice policy, the trend will likely continue. In a nod to Mencken’s admonition, the model popularized with sex offender registries is quietly being exported to other classes of crime — including white collar crimesmethguns, and animal abuse — despite little evidence that such registries accomplish much beyond branding its inhabitants irredeemable.

Decades on, ghosts of dead children are dragooned into supporting legislation that vastly expands the powers of the state, with few prepared to offer informed criticism. Despite doing little to protect children from the varied and pernicious harms that they face, sexual or otherwise, such “first-name” legislation is crafted by political operatives who use the memory of innocents in the same way one might use a human shield. No one with a beating heart is unmoved by the plight of parents of a murdered child; nor could one could easily criticize a law named in memoriam without simultaneously disrespecting that plight. Optics such as these are not accidental, they are political.

In order to sell policies to the public, our political leaders have often created boogeymen. During the heyday of the drug war, the boogeymen pressed into service were so-called superpredators, a heavily racialized term describing young people with “no respect for human life and no sense of the future.”Ostensibly toting Glocks and selling death to our communities, they ended up selling the belief in prison-as-protection, government-as-protector: a profoundly punitive turn in our legislation and discourse.

Even as we find ourselves in a new era marked by bipartisan acknowledgement of the need for criminal justice reform, in some areas we continue to be influenced by this same appeal to boogeymen, even if their shape and form changes. Instead of “super” predators, we’re now faced with “sexually violent” ones.

As with witches, the modern-day sex offender is largely a creature of our own creation, acting as a sort of repository for many of our collective moral anxieties around sex. While a baked-in ick factor often turns many erstwhile warriors into silent observers, awareness and informed response is badly needed from those within the criminal justice community.

And it is needed soon.

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