Opinion

Opinion | Nancy Gertner

Governor Baker’s opioid proposals take a wrong turn with drug sentencing

Governor Charlie Baker opened a session called “Curbing the Opioid Epidemic” on the first day of the National Governors Association meeting July 13 in Providence.
Stephan Savoia/Associated Press/File
Governor Charlie Baker opened a session called “Curbing the Opioid Epidemic” on the first day of the National Governors Association meeting July 13 in Providence.

Governor Charlie Baker’s proposal to increase penalties for those whose illegal drug distribution causes an overdose death sounds good — at first glance. Increasing sentences usually does.

The approach also sounded good in the 1980s and 1990s, when a crack cocaine epidemic led Congress to approve of mandatory minimum sentences that doubled or tripled drug penalties — 10- or 20-year sentences, even life imprisonment. But the move did little to stem drug-related crimes or addiction.

Under Baker’s proposal, the crime of drug distribution that causes death would be treated as manslaughter, with a mandatory minimum punishment of five years and a maximum of life. It would be no defense that the victim knowingly contributed to his own death by taking the drugs. Nor would it matter if death was an accident from the victim’s combining numbers of illegal substances or was caused by the addict’s chronic health problems.

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Decades after the crack cocaine debacle, the governor should know better. Notwithstanding the “war on drugs,” addiction rates and drug crimes skyrocketed. High penalties did nothing to stop heroin abuse; heroin is now cheaper, purer, and more easily available. Indeed, according to the US Drug Enforcement Administration’s 2015 National Drug Threat Assessment, heroin is more available than it was in 2008 in just about every region of the country. All that higher penalties did was to swell the prison population, creating stunning racial disparities and the scandal of mass incarceration. Too often, lengthy sentences landed not on major drug traffickers but on street dealers.

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Just so with this bill. The bill focuses not on the parties who are really responsible for illegal drug distribution, but those whose acts “proximately caused” a death. The real responsible parties are the cartels in Mexico or Colombia, in the case of heroin, or drug companies that aggressively marketed painkillers, in the case of legal drugs, or doctors who over-prescribed them. This billl doesn’t penalize the most responsible but, rather, the one who is closest to the person overdosing, the one who “proximately caused” it. Drugs are often shared; who overdoses may be nothing more than dumb luck. The seller most likely to come within the sights of the law may well be an addict himself.

It would be one thing if the bill gave a judge the discretion to make distinctions among those caught in the heroin world — the addict sharing drugs with another addict, the street dealer in need of treatment. But five years would be the mandatory minimum. We trust judges to exercise their discretion with respect to other manslaughter crimes; manslaughter punishment ranges from probation to 20 years, but not in these drug-related cases.

The governor’s bill is fundamentally inconsistent with his other quite laudatory initiatives. He has recognized that opioid addiction is a public health crisis. He has worked to improve addiction treatment options, enhance education and prevention, improve early intervention. He joined with the Legislature in setting up a bipartisan group from the Department of Public Health, other government figures, higher education, and the private sector to take a comprehensive look at the opioid crisis — all the while ignoring their work when he made this latest proposal. The group’s report addressed the complexity of the problem, its multiple causes, and responsible parties. The doctor who prescribed an opioid six months before the overdose may have inadvertently led his patient to crave heroin after the prescription ran out. The drug addict’s overdose may have been caused by the ingestion of multiple substances, legal and illegal. After years of addiction, many suffer from chronic diseases that ultimately caused their death.

A member of President Trump’s opioid task force, the governor seems to be taking a page from Attorney General Jeff Sessions’ book. Sessions wants little else but a return to the discredited punishments of the past. Even though the governor does believe in mandatory minimum sentencing, refusing to support recent Massachusetts efforts to repeal such sentences, this proposal is counterproductive. If the population of drug-addicted dealers and drug-addicted victims is often the same, these punishments will lead not to a rational calculation to stop dealing on the part of the addict/dealer — higher penalties, after all, are supposed to deter crime — but to a decision to avoid treatment and the risk of prosecution. Worse, it will simply fill our jails and prisons — yet again.

Nancy Gertner, a retired federal judge, is a professor at Harvard Law School.