Mandatory minimums: The wrong strategy for the opioid epidemic

The recent investigation by the Washington Post and 60 Minutes on the opioid epidemic has shone a light on a murky world that exists as our nation struggles with this crisis.

The power of “Big Pharma,” politicians kowtowing to the wishes of special interests, a revolving door where the watchmen of the Drug Enforcement Administration end up working for the very companies they have investigated — there’s a lot to be shocked and angry about. But the story also underlined one of the key failures of this country’s drug enforcement policy.

{mosads}We have spent decades locking up low-level drug sellers, giving them lengthy sentences and erecting barriers to reenter society. Meanwhile, the real perpetrators of our country’s opioid epidemic — large pharmaceutical companies — are rarely confronted. 

As the United States attorney for the District of Kansas for six years, my office was on the front lines of our country’s opioid epidemic. Our prosecutors managed to put away some very undesirable characters — cartel leaders and kingpins who were wreaking havoc on the streets with their violent trade. But, more often, we would spend our time prosecuting cases that were not going to stop the opioid or any other drug epidemic.

They involved small-time sellers, far down the chain, individuals who were looking to make some extra money and had got caught up in the drug trade. It wasn’t El Chapo; it was someone who made a mistake and found themselves charged in a drug conspiracy case that would led to a 10-year minimum sentence in federal prison.

Almost half of the individuals in U.S. federal prison population are there for drug offenses but you won’t find many pharma executives. Rather, you are more likely to find people of color, like Ramona Brant. Brant was sentenced to life in prison without the chance of parole because of her association with an abusive boyfriend who had a significant role in the drug trade.

She never sold drugs in the past and the offense — conspiracy to sell drugs — was her first. Even the judge at the time noted that her sentence was too harsh, but the nature of our drug laws, with its mandatory minimum sentences, left little discretion to the sentencing judge. After more than 20 years in prison, Brant eventually had her sentence commuted by President Obama, but there are many more who languish in prison with similar stories.

It is not simply that these sentences are inhumane. It is not just that they do nothing to curb drug use. They are also a huge waste of taxpayer money.

Consider our current predicament. A debate rages in the White House and halls of Congress about how much funding to dedicate to the opioid epidemic. Yet nearly $7 billion is spent annually by the Bureau of Prisons to incarcerate 185,000 people in federal prisons, half of whom are there for a drug offense.

Instead, some of that money could be used to treat patients with substance abuse disorders, and more effectively mitigate the current opioid epidemic. We need more treatment facilities, not more prisons.

Currently, the nationwide push for sentencing reform presents us with a unique opportunity. We can and should reduce sentences for low-level drug offenses, enabling people to reenter society and make their contribution. At the same time, we should use the vast savings from reducing our bloated prison population to invest in public health approaches to the opioid epidemic.

Indeed, a group of Republican and Democratic senators recently introduced a bill that would do that. The Sentencing Reform and Corrections Act would reduce excessive mandatory minimum sentences for drug offenses, promote reentry, and could impact the lives of thousands of people in federal prison. It would also save millions of dollars that could be redirected into dealing with the opioid epidemic.

There are no easy solutions to the opioid crisis. But we have to be willing to accept what hasn’t worked. Too much money on incarceration and not enough money on public health has been a recipe for disaster in our communities. A fresh approach with the right focus is the way ahead.

Barry R. Grissom was the U.S. attorney for the District of Kansas 2010-2016. He is a shareholder with the Polsinelli Law Firm in the White Collar Defense & Governmental Investigations Group.