by Tony Wyman

A new law proposed by Massachusetts Gov. Charlie Baker to charge drug dealers with manslaughter when the drugs they sell kill the user has strong support from many who see the state’s opiod crisis as one of the biggest threats facing the Commonwealth. But the bill has some skeptics who think increased jail time has little or no impact on drug abuse.

If the law goes into effect, drug dealers responsible for the deaths of users would face a minimum sentence of five years in a state prison, but could be put away for life.

“It is only through education, prevention, and treatment that, together, we will solve this public health crisis. Our focus must remain on these three pillars of our strategy. While maintaining that focus, however, we should also ensure that those who cause our citizens the most harm by illegally selling drugs that kill people are held accountable for their actions,” Gov. Baker wrote in a letter to lawmakers.

Massachusetts is one of the nation’s leaders in spending on drug abuse, according to the National Center on Addiction and Substance Abuse , dedicating 22.2% of the state budget to the crisis.

Only Maine (27.3%) and Vermont (30%) spend a larger share of their state budgets on drug abuse and drug crimes. But only 1% of Massachusetts’ spending goes towards treatment, prevention and education, according to the NCASA.  The rest is spent on jails, police and, what the Center calls “the consequences” of substance abuse.

“Gov. Baker’s proposal to incarcerate more people in response to the opioid epidemic runs contrary to everything we’ve learned in the failed war on drugs, and to Baker’s own 2014 campaign promises. Mandatory minimum sentences do not make our communities safer and they do not reduce illegal drug use. Those are facts,” said Newton Mayor Setti Warren, declared Democrat Party candidate for governor in 2018. 

“Proposing harsher sentences might help Gov. Baker placate his conservative base, but that will be cold comfort to the thousands of families and communities who we know are disproportionately impacted by mandatory minimums, and to those struggling with opioid addiction, who are more likely to find a jail cell than a treatment bed under Baker’s approach.”

The governor’s office responded to Mayor Warren’s criticism by pointing to a 2016 Department of Justice Report that showed Massachusetts already had the 9th lowest incarceration rate in the country (1680 prisoners per 100,000 residents, well below the national average of 2760 in 2014).  

And they cited a 5% decrease in the number of opioid-related deaths in the first half of 2017 compared to the same period in 2016, which they attributed to higher spending on education, prevention and treatment, as well as the governor’s focus on the issue.

Other States Are Doing It Too

Massachusetts isn’t the only state enacting laws punishing drug dealers when the narcotics they sell lead to deaths. In fact, 20 states now have them.  Florida is one of them and the Sunshine State is wasting little time using the new tool to combat drug dealers after the state saw a 135% increase in the number of Fentanyl-related deaths from the first half of 2015 to the first six months of 2016.

Fentanyl is an opioid that is as much as 50 to 100 times more potent than morphine or heroin.  It is the drug that rock music legend Prince took that led to his death in 2016.

Florida’s state legislature unanimously passed bills that were signed into law in June by Gov. Rick Scott that subject dealers to minimum sentences, including possibly the death penalty, on murder charges, when they sell fentanyl and similar opiods to users who die from using the drugs.

The state already had capital punishment on the books for dealers selling cocaine, opium and methadone prior to the legislation adding the new drugs.

“This legislation provides tools for law enforcement and first responders to save lives. We are committed to helping our communities fight opioid abuse and that’s why I declared a Public Health Emergency to ensure that our first responders have immediate access to lifesaving drugs to respond to overdoses,” said Gov. Scott at a press conference following signing the bill.

Making sure first responders have access to Narcan, the drug used to counteract the effects of opioids, is certainly a strong step towards saving the lives of people overdosing on the narcotics, but critics are skeptical that increasing the punishment for dealers will have any real or lasting impact on the opioid crisis.

The Drug Policy Alliance, a leading group that advocates for new approaches to drug treatment and abuse prevention, a group that lists honorary board members like former Secretary of State George Schultz, rock musician Sting and former Federal Reserve Chairman Paul Volcker among its numbers, thinks the new focus on further criminalizing drug use is misguided.

“We know that more incarceration will fail to tackle the opioid epidemic, and we know that more treatment and overdose prevention are approaches that work. Giving any Attorney General broad power to decide which substances should be banned and which penalties apply is incredibly dangerous and misguided,” said Michael Collins, Deputy Director of the Drug Policy Alliance’s Office of National Affairs.

The Alliance also worries that concerned friends or family members will either not call 911 when someone they gave opioids to overdoses for fear of being criminally prosecuted.

“We see situations where people leave the home and call 911 from a pay phone or from another home because they’re concerned about prosecution,” said Art Way, Director of Criminal Justice Reform for the Drug Policy Alliance, in an interview with National Public Radio. “And when you add murder to that mix, you’re only increasing that dynamic in driving things further and further underground.”

Instead of additional laws criminalizing drug use, the DPA suggests states would profit from looking at less punitive measures to tackle the problem.

“The failures of prohibition are painfully obvious: wasted money, wasted lives and wasted opportunities. Determining what works best is less straightforward, but we have examples from all over the world and even our own states of policies that show progress and represent opportunities to improve,” says a statement on the group’s website.

Khary Rigg, an expert in drug policy and an assistant professor at the University of South Florida, agrees.

“Harm-reduction laws are highly stigmatized,” he said, adding that opponents prefer to stigmatize users than to help them beat their addictions.  “Drug users are bad. Drugs are inherently bad. We shouldn’t be rolling out these laws to make drug use safer.” said Professor Rigg, repeating the opinion of opponents of decriminalizing drug use.

He blamed what he called the “draconian thinking” of anti-drug and criminalization proponents for why many states are reluctant to try programs that he believes work, like “good Samaritan” protections for drug users and dealers who call 911 to help those who have overdosed, needle exchanges that reduce the chances of users becoming AIDS or Hepatitis C infected, and easier access to Narcan without a prescription.

“All this crazy draconian thinking is sort of the reason Florida has been slow to embrace these sorts of things,” he said. ” There’s never been a society that’s been totally drug-free. You can’t eradicate it. You can control and mitigate it.”