Civil Liberties

Legislators Dust Off Medieval Methods to Address the Opioid Crisis


Faced with a mounting number of opioid-related overdoses, state lawmakers across the U.S. are turning to the devil they know.

Massachusetts Gov. Charlie Baker, for example—a moderate Republican—declared in August that opioids and gangs made it "critical that our laws give law enforcement the appropriate tools and enforcement measures to keep everyone safe." The "tools" he was referring to were stiff new mandatory minimum sentences.

A pernicious legacy of the 1980s' war on crack cocaine, mandatory minimums essentially allow prosecutors rather than judges to decide how long convicts will be imprisoned. Because the minimum sentences are statutorily imposed and non-negotiable, they empower prosecutors to issue the most illiberal of ultimatums: Plead guilty, or face a long term that can't be alleviated by mitigating factors.

Baker thinks anyone who supplies opioids to a person who then dies of an overdose should face a five-year mandatory sentence for manslaughter. But even worse laws are being debated elsewhere.

In June, legislators in Pennsylvania introduced Senate Bill 809, which includes a new one-year sentence and a $5,000 fine for any drug dealer caught with three doses or more of naloxone. Why is this such a hideous addition to the books? Because the substance in question is a drug that reverses opioid overdoses.

That's right: Pennsylvania lawmakers want to make it a crime for a drug dealer to keep his customers alive.

"It is obviously important to make Narcan widely available," the bill authors wrote in a memo—Narcan being one of the name brands of the medicine—"but it should not be used as a marketing tool for dealers who want to increase their chances of a repeat customer."

Countries around the world are also experiencing an uptick in opioid and heroin use. The policies they're implementing in response—safe injection facilities, clean needle exchanges, and heroin-maintenance therapy among them—save lives at a low cost. Throwing people in prison, where drugs are rife, doesn't.

With the death toll from opioids expected to increase annually for at least the next decade, the last thing Americans need is a 1980s revival. If those policies had worked the first time, we wouldn't be where we are today.