Opioids in 2021: Enforcement Strategies and Policy Prescriptions

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Dean Reuter:  Welcome to The Federalist Society's Teleforum Practice Group Webinar as today, July 26, 2021, we discuss "Opioids in 2021: Enforcement Strategies and Policy Prescriptions." I'm Dean Reuter, Senior Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. I'm very pleased to welcome to our program today four experts. We're going to hear from each of them opening remarks of about five minutes, then I'll ask some questions as we head to a conversation, but then, as always, we'll be looking to the audience for your questions. Please use the Q&A function for those questions. A reminder that our event is being recorded today, and will used as a podcast later -- also, this event is open to the public and open to the press.

 

      With that -- I mentioned opening remarks of five minutes each -- we're going to hear first from Jeffrey A. Singer. He's a senior fellow at the Cato Institute and works in the Department of Health Policy Studies there. He'll be followed by Christina E. Nolan. She's a former U.S. Attorney's Office staffer in Vermont, but then, ultimately, led the office as U.S. Attorney from November 2017 until March 2021.

 

      She'll be followed by Robert M. Duncan, Jr., who is United States Attorney for the Eastern District of Kentucky, and then we will close the opening remarks with Professor Tomas J. Philipson. He holds the Daniel Levin Chair in Public Policy at the University of Chicago Harris School of Public Policy.

 

      With that, we will turn it over to Jeff Singer. Go right ahead, please.

 

Jeffrey A. Singer:  Thank you, Dean, and thank you to The Federalist Society for giving me this opportunity. I'm going to start off by saying this is not an opioid crisis. This is a drug prohibition crisis. Congress passed the Combat Methamphetamine Epidemic Act in 2005, which among other things, restricted access to the decongestant Sudafed. Meth-related deaths have increased over tenfold from 2005 to 2020. Of the 93,000 overdose deaths in 2020, 24,000 were meth-related. That's 26 percent. This is a good time to mention that anyone who has watched Breaking Bad knows there are more efficient ways to cook meth than with Sudafed.

 

      In 2010, when drug overdose deaths totaled 38,000, 17,000 involved diverted prescription pain pills. Diverted pain pills were involved in 13,000 of the 93,000 overdose deaths in 2020.

 

      Based upon the false narrative that the so-called opioid crisis was caused by doctors hooking their patients on pain meds, efforts to reduce prescribing caused a roughly 61 percent drop in opioid prescribing since 2012. Overdoses, which overwhelmingly involve multiple drugs in combination, have soared. Eighty-three percent of 2020 opioid-related deaths involve illicit fentanyl, more than a quarter of opioid-related deaths involve meth, more than a quarter involve cocaine, a fifth involve heroin, and just over a tenth involve prescription pain pills, which has been the case for the past several years.

 

      While it's commonly believed that doctors hooked their patients on opioids, the data say otherwise. Data from the CDC and the Substance Abuse and Mental Health Services Administration show no association between prescription volume and the non-medical use of prescription pain pills or of opioid-use disorder.

 

      Dr. Nora Volkow, of the National Institute on Drug Abuse, wrote in the New England Journal of Medicine that patients placed on pain pills rarely become addicted, "even in patients with pre-existing vulnerabilities." Multiple Cochrane studies, the gold standard of medical research, show addiction rates in the one-to-two percent range in chronic, non-cancer pain patients.

 

      Perhaps people confuse dependency intolerance with addiction. That's understandable—many of us do. As a doctor, sometimes I even do that. Addiction is defined as compulsive use despite negative consequences. We see this most commonly with alcohol, of course. And this is a good time to mention that we average 95,000 deaths per year due to excessive alcohol. But we also see it with gambling addiction or shopping addiction or with several narcotics and psychoactive drugs. Addiction is a behavioral disorder with numerous causal factors.

 

      But dependency refers to a person physiologically adapting to a drug so that they may require greater doses over time to get the same effect, and abrupt cessation can lead to withdrawal symptoms. Many drugs besides opioids induce dependency—antidepressants do. Beta-blockers, like propranolol, used to treat high blood pressure, can induce fatal withdrawal reactions if suddenly stopped, and I don't think anybody would suggest that person is "addicted" to propranolol.

 

      Now, it's true that doctors were prescribing more opioids than ever before in the early part of this century. They were encouraged, over the previous 20 years or more, to take patients' pain more seriously. And actually, I believe that was a good thing. And more prescriptions mean more pills that can be diverted to the black market for non-medical use. And there's no question that some doctors over-prescribe narcotics. Some doctors over-prescribe antibiotics. In fact, that's become a global problem with the development of resistant organisms. Some doctors over-prescribe blood pressure pills.

 

      And there's no question that some doctors and pharmacists teamed up to use their healthcare degrees to effectively become drug dealers. Some of these pill mills worked in conjunction with the drug dealers, like those who ran the "Oxy Express" between the Northeast and Florida. But blame that on prohibition. The lure of easy money from prohibition brings out the worst in people. It corrupts doctors and pharmacists, but it also corrupts law enforcement, prosecutors, and politicians.

 

      And prohibition does even worse damage by putting young males in cages for non-violent drug crimes—disproportionately males of color—and ruining their chances at any meaningful future because they're marked with felony convictions. And the family is disrupted by this -- result in too many single-parent households. And research tells us children raised in such homes are more likely to drop out of school and engage in drug use and crimes.

 

      And don't forget all the patients now under-treated for acute pain, like kidney stones or post-surgical pain, or the chronic pain patients, well-managed with opioids, who are abruptly tapered or cut off from these meds because doctors fear law enforcement may destroy their practices. Some of these chronic patients turn to the dangerous black market, or worse, to suicide. The University of Pittsburgh recently reported, based on government data, that the overdose rate has been on an exponential growth trend since at least the late 1970s with no end in sight. The only things that have changed over the decades are which drugs are in vogue at any point in time.

 

      So we're deluding ourselves if we think redoubling efforts to fight the war on drugs is going to produce a different result. I believe the ideal solution would be for the federal government to legalize all controlled substances and defer the matter to the states as was done when we finally recognized the disaster called alcohol prohibition. And if that is politically impossible, then at least decriminalize these drugs and redirect effort towards harm reduction because we will never, ever have a drug-free society.

 

      Just like we need to learn to live with the Covid virus, we need to learn to live with the fact that people are going to engage in drug use and do our best reduce the harms from it.

 

      Thank you. I'll turn it over now to Christina.

 

Christina E. Nolan:  Thank you, Dr. Singer. I was going to focus my remarks on what I see as the solutions going forward. And I do think that the solution has lied in, and will continue to lie in, a holistic multidisciplinary approach to the drug crisis that aims for drug-supplier reduction and drug-demand reduction. And I think that is going to involve, and has involved, enforcement, treatment, and prevention communities working together and supporting one another.

 

      And if we look at 2019, before Covid -- we might want to come back and discuss Covid -- but if we look at 2019 before Covid hit -- and in my state, Vermont, there was a reduction in opioid overdose deaths for the first time since 2014—a 30 percent reduction in overdose deaths, from 130 to 111, so a very significant reduction. And I attribute the reduction in overdose deaths in Vermont during that time, and in most regions of the country, to the formula I just described—enforcement, treatment, and prevention working together.

 

      I think it's very important to enforce the law federally and on the state side, as well. I think more arrests and more seizures of drugs reduce the supply of drugs in communities and deter others from engaging in drug trafficking -- maybe not everybody, but certainly some. Arrests and seizures also give drug users and individuals with substance use disorder space to make a treatment decision because drugs are not as readily available when they are taken out of communities or when certain suppliers are taken out of communities. So, in that sense, I think supply and demand reduction efforts are very much related.

 

      Before 2020 and Covid, the U.S. Attorney's Office in Vermont doubled the number of people it charged annually, and we were proud of that increase. And most of that increase involved charging drug traffickers and those engaged in related violence. We also targeted communities for what we called surges of arrests. So we'd go into a particularly hard-hit community and make dozens of arrests at a time, and after those arrests were made, we would pair those arrests with community forums where we talked about treatment options and also had police officers go into the community to known addicted individuals and provide them with treatment information.

 

      Now, I fully agree, you can't arrest -- I hope we all agree that we can't arrest our way out of this problem. And to that end, I have encouraged -- and tried to practice what I preach this way -- but encourage law enforcement to get involved with the treatment and prevention communities and actively support those efforts. As U.S. Attorney, I made a documentary called Face of Recovery. The subject of that documentary was a man I had previously prosecuted as a line assistant for drug trafficking and gun-related crimes. He went on to make an incredible recovery. He has an incredible life now, a great job, he's expecting his first child. We remain friends. He is the subject of this documentary and the reasons we made it are twofold.

 

      We brought it to young people, to schools, and screened it for them, and also took question and answers afterward to encourage them not to use drugs in the first instance. But we also wanted to send a message of hope. We talk a lot about the deaths, and I understand why we do, but we don't talk enough about the success stories, how many thousands and thousands of people overcome addiction and go on to live productive lives. And that's what we wanted to emphasize with this project.

 

      I was also involved in working with a non-profit with local law enforcement and with treatment providers to open a recovery facility in a county in Vermont. The facility is for women who have suffered from trauma and drug addiction, and it involved -- it was unique in the sense that it involves a continuum of services—wrap-around services -- not just a place to live, but educational training, vocational training, and ongoing support—comprehensive support system.

 

      What I don't think we should do -- I've talked about what I think the -- where the solution lies. What I don't think we should do is give up. And I am deeply troubled by aspects of the so-called harm-reduction movement, which I believe basically says, "Look, people are never going to stop using. It's a lifestyle choice. And we need to create safe conditions for them to use." That's my belief about what the harm-reduction philosophy boils down to. Some of it may have -- I think there are some good ideas, like needle exchanges and Narcan, that I agree with this movement on.

 

      But I think it can also be a hopeless and cynical philosophy that gives rise to policies that undermine supply and demand reduction, such as efforts in certain East and West Coast cities to open so-called -- well, to open fentanyl and heroin injection facilities. These are facilities where people can inject deadly drugs in a state-sanctioned setting. I think that will -- allowing that to happen will not only deepen the addiction crisis and drive up drug supply and drug demand, but it could encourage users who have never used to use in the first place, and send a signal to those who need treatment, and treatment efforts we should support, to go and use with state sanction instead of getting into treatment. And likewise, I feel this way about decriminalization of deadly drugs.

 

      So those are my -- where I wanted to go with my opening remarks. And now I'll hand it off to my former colleague, former U.S. Attorney, Rob Duncan.

 

Robert M. Duncan:  Thank you, Christina. Thank you to the other members of the panel and to The Federalist Society for the opportunity to present today. I will be brief in my opening remarks. I want to focus my remarks, though, on the impact that we have felt throughout Appalachia, and particularly in the Commonwealth of Kentucky.

 

      As I think we can all agree, and we're all certainly aware of, the opioid epidemic has tremendously impacted our nation for several years, and nowhere, I would argue, greater than here in Appalachia, with Kentucky, many consider the epicenter of the opioid problem. Opioids, first through prescription pills, then heroin, now fentanyl and its synthetic derivatives, have caused thousands of overdose deaths in the Commonwealth of Kentucky.

 

      In 2020 alone, over 1,300 Kentuckians lost their lives because of overdose deaths. That is up from 2019. In 2018, we did have a decrease, so there were signs of positive effect. But the past two years, particularly with the pandemic upon us, have caused overdoses to continue to rise, and of the number of overdose deaths that we have encountered in Kentucky in the past several years—at least the past three, in particular—the majority of those deaths have been caused by fentanyl.

 

      I spent the majority of my career as a prosecutor—thirteen years as an Assistant U.S. Attorney, and then three years and a few months as the United States Attorney for the Eastern District of Kentucky. I have witnessed firsthand the devastation caused by the illegal distribution of all drugs, particularly opioids. The fallout is not just limited to the person who becomes addicted and ultimately may lose their life because of that addiction. It negatively impacts families. It negatively impacts communities. It harms the entire fabric of our society. As long as there are laws prohibiting the distribution of controlled substances, there will be a need for enforcement and prosecution. And I make no apologies for my work prosecuting drug traffickers that cause pain and misery in our communities.

 

      Law enforcement and prosecutorial resources should focus on those individuals who are unlawfully trafficking in, and profiting from, the illicit distribution of drugs and opioids. I make the distinction there -- and I want to be clear that we're not talking about prosecuting those individuals that are addicted or have a substance-use disorder. We're talking about traffickers, whether they are traffickers in the street sense or whether they are professionals who have violated their oath—those that are seeking to make a profit from someone else's misery. Those are where we should appropriately, I believe, focus our prosecutorial and law enforcement resources.

 

      As Christina mentioned, I fully recognize that we cannot prosecute our way out of this problem. Law enforcement is a part of the equation, but it's only a part. It is not the entire solution. There is, obviously, a need for treatment for those that are suffering from substance abuse disorder. There's a need to provide opportunities for those who are in recovery to find work and to regain their lives. It's imperative that we have adequate funding for these programs, as well as having access to counseling and educational services that go along with recovery. And I fully support those efforts. I don't think that there is a one-size-fits-all solution to this problem. It's going to take involvement from all the stakeholders, law enforcement included.

 

      And with that, I look forward to a robust discussion of these issues, this topic, this afternoon. And I will turn it now to Professor Tomas Philipson.

 

Tomas J. Philipson:  Thank you, Robert. I'm going to focus -- I'm an economist by training, so I'm going to focus a little bit more on the economic perspective from a -- that the, sort of, economic research literature that’s generated on this topic. And it's kind of shifting away a little bit from the focus on the supply side of this market, whether it’s the legal prescription market or the illicit market, and more focused on the demand side—in particular, this crisis could be afforded by a very poor population, in some sense. So, clearly—and most people believe that currently illegal behavior should be prosecuted, whether it's in the legal prescription market or in the illicit drug market—that's not at argument here.

 

      However, I believe that the prescription-based crisis that the government lawsuits of suppliers often involve would have been infeasible without existing government policies. So, let me try to explain what I mean by that.

 

      Government subsidies for pain management and other medical uses of opioids may be valuable. And one can disagree or not -- most people will feel that the subsidies for medical uses of opioids is valuable. But people are dying from non-medical uses of opioids. And I'm now talking about the prescription market that started this crisis. And I'm going under the assumption that few believe that non-medical uses of opioids should be publicly subsidized.

 

      So, what we have found in our research is that one of the most important drivers of the crisis was the federal government's indiscriminate financing of the non-medical uses of opioid prescriptions that was enabled by certainly well-intended policies that aimed to subsidize the medical use of opioids. And I think that's an important distinction because, without government subsidies for prescription drug coverage, it would have cost between, we estimate, $26,000 to $53,000 per year to maintain an opioid addiction as defined by CDC, and paying it out of pocket.

 

      So without subsidies or insurance, it would cost you $26- to $53 grand a year. And the reason it costs so much is obvious, but an addiction amounts to consumption of a large amount of pills. It's not like when you and I go to the pharmacy and it's a $20 copay and we don't really care if it's $20 or $30. This is, basically, a large quantity of pills to maintain an addiction at brand-name prices. This is during the initial part of the prescription crisis, which started in 2001, we take it.

 

      So, given the concentration of the crisis in the poor, and often uninsured population, with average incomes that are often below these numbers -- the average income in the U.S, is in the $40,000 range -- it seems that it would have been infeasible without these subsidies to have such a large crisis, meaning you cannot buy more than your annual income allows for, but the subsidies allowed you to do that.

 

      A 2019 economic report from the White House Council of Economic Advisors, CEA, which I chaired, found that the share of opioid pills paid for by the government went from 17 percent to 66 percent from 2001 to 2010 -- that is to say, during the height of the growth of the prescription drug crisis in opioids. In this period, the government programs contributed to 75 percent of the growth in spending on prescription opioids. This was largely due to the growth of the new Medicare Part D program, which also covered disabled people through social security—certainly well-intended policies for the medical use of opioids, even though it was also often used for the non-medical use of opioids.

 

      Out-of-pocket prices for prescription opioids declined by an astounding amount of 81 percent during this period. So, you basically cut the price by 81 percent in the period when we saw the most rapid growth of prescription opioid use.

 

      Innovation into new forms of illegal or illicit opioids using fentanyl was only profitable because there was a large market of already addicted individuals on prescription opioids to innovate for. Fentanyl was essentially an innovation which increased the potency and, therefore -- what economists call the quality-adjusted price for this particular product. In lay terms, you could call it the price of a high. And it did so by both increasing potency -- that is to say, raising quality and lowering price at the same time. That innovation would not have been profitable was there not a large market to sell to, enabled by the prescription drug -- and the growth in prescription drug use for non-medical purposes.

 

      In addition, more restrictive prescription opioid policies started to come into place after 2010, roughly, which increased the price, if you want -- the full price, including the time, cost, and hassle, etc. to get your hands on prescription-based opioids. So, at the same time prices—quality-adjusted prices—were falling from illegal innovation through fentanyl at the same time as prices in the legal market for opioids through prescriptions were rising. This obviously led to large substitution away from legal opioids or prescription opioids into illicit ones.

 

      I think this is a missed aspect of the opioid crisis that people have not looked at -- in how it was financed on the demand side. There's no way that this poor population could have afforded consuming so many pills without the help of the government. Obviously, this suggests policies that, while preserving subsidies for the medical use of opioids, aimed to lower those subsidies for the non-medical use. And there's certainly been a slew of those policies that's been discussed. So, with those comments, I'll hand back to Dean to start the Q&A.

 

Dean Reuter:  Well, thank you. I think we're off to a great start. There's a lot on the table, a lot of ground to cover yet. We heard in opening remarks, at least from Jeff and Christina, talk about harm reduction. So, I want to try and dig down a little bit deeper there, if we could, and just to refresh for our audience. And let me turn to Jeff Singer. What is harm reduction? What's the goal and what are the pros and cons of it, from your perspective? And then I want to turn back to Christina to get her response to you.

 

Jeffrey A. Singer:  Okay. Well, harm reduction, actually, is a very familiar strategy for physicians. We've been practicing harm reduction for most of the mid-20th century on, because, in an affluent, advanced society like us, many of the illnesses we treat are due to lifestyle changes. So for example, when we doctors put a person who's overweight and has developed early diabetes -- we put them on a high blood pressure pill because they got high blood pressure and a pill for the diabetes, because they will not make adjustments in their lifestyle where we wouldn't need to medicate them -- we're practicing harm reduction. We're basically accepting the fact that they're not necessarily going to adjust their lifestyle to where we'd like, so we're trying to make sure that we reduce harm.

 

      So, that strategy's been around, with respect to substance use problems, since about the early '70s. It actually started in England. And so it's the idea that you're not going to have a drug-free society and so your focus should be on trying to make it less dangerous for those people who choose to do it. And Christina was mentioning about safe consumption sites. Safe consumption sites have been around in the world since the mid-'80s. There are over 120 of them in Europe, North America, Canada, particularly -- not in the United States, because it's illegal here -- and in Australia. They have a fantastic track record for not only reducing overdose deaths and the spread of HIV and hepatitis, but also bringing people into rehab.

 

      In fact, the first one in North America was Insite in Vancouver in 2001. Now there are 38 safe injection sites in Canada. Now what they're doing -- they just -- you may have read this in today's Wall Street Journal -- for about the past year, since -- in British Columbia they've started what's called safe supply where they're actually allowing doctors to prescribe legal pharmaceutical narcotics as substitutes because they -- in order to reduce the harm.

 

      So, with no forced rehabilitation or anything like that, doctors are being permitted to prescribe, for example, Dilaudid, to people who are addicted to heroin⸺Dilaudid is actually twice the potency of heroin, but it's legal⸺or Dexedrine to people who are addicted to methamphetamine or cocaine and things like that.

 

      So that's even better because that's a recognition of the fact that as long as we have prohibition, all these substances that are gained in a black market are deadly. All drugs are dangerous, but they're made more dangerous by prohibition. If I just could say one thing about it to Professor Philipson. He alluded to what we call the iron law of prohibition, which is "the harder the law enforcement, the harder the drug."

 

      So, one of the reasons fentanyl has become the predominant drug right now is because prohibition tends to foster the development of much more potent forms of the drug so they can be smuggled in in smaller amounts and subdivided more. Basically, it's for the risk the smugglers are taking. And that's how we got crack cocaine, and that's how we now have fentanyl and everything.

 

      So, it's the prohibition that's not only making drug use more dangerous, but it's actually developing more dangerous drugs.

 

Dean Reuter:  Christina, do you want to respond?

 

Tomas J. Philipson:  Let me just comment on that. I don't think that's what I was referring to because I was referring to the legal prescription market, right? So, the legal prescription market has put a ton of restrictions on doctors to prescribe excess consumption. So, we have painkillers after surgery, but we don't send you home with two bottles of them, essentially, that you can then sell or consume yourself.

 

      And so, my discussion was more about, how has the policies towards legal opioids or prescription opioids led to them being much more costly to obtain for addicts and, therefore, the cheaper fentanyl versions in the illicit market seems a lot more attractive. So, I agree with you that it could be this iron law. But this was actually -- I think everyone believes in -- that we should have prescription opioids out there.

 

      I don't know if you -- we can have a separate discussion whether we should have prescription medicine. Some people believe that's not in the -- necessary. But that's a separate discussion. But I was simply talking about the legal market, not the illegal.

 

Dean Reuter:  Christina, do you want to weigh in on the idea of harm reduction? Do you have the same sort of definition? And how do you -- how do you assess those efforts?

 

Christina E. Nolan:  Well, I think it's easy to just use these terms in broad strokes without digging into the policies. I think you need to look at each policy, rather -- we all agree with the concept of reducing harm from the drug crisis. We want -- and so I think it really depends. I don't think you can just paint with a broad brush using that term.

 

      I think my view starts with the premise that life addicted, life on drugs, is hell, and as Rob points out, it destroys not only the person⸺takes away their future and their freedom⸺but their families, their communities, it’s bad for the economy. And by contrast, as my former defendant has experienced, life after treatment and without relapse is a beautiful life. And so, I think we need to have policies that encourage individuals to seek treatment or to not use in the first place, and not policies that create the conditions where they can be -- that encourage them to use or continue in their addiction.

 

      So I'm aware of the facilities all over the world—not here legally in the U.S.—including the Vancouver facility, and a lot of the so-called studies that would tend to suggest that these facilities are successful actually were done by the people who owned the -- opened the Vancouver site and needed to show positive results in order to continue to get funding from the government of Canada.

 

      But if you really dig into the studies, they show that the people who use the facilities don't get into treatment -- a very small number do. The facilities don't really believe in encouraging people to get into treatment because they think injecting fentanyl is a lifestyle choice and they actually want to make it possible for them to do it. The majority of people don't go to the facilities for most of their injection events and that's because their lives are chaotic and disorganized and they lack transportation.

 

      And as Dr. Singer probably knows, we actually are starting to hear about some deaths in these facilities because Narcan -- some strains of fentanyl are resistant to Narcan. So, that's obviously -- to me that's very disturbing. Not to mention, folks go in there for a short period of time, and they walk out after consuming drugs that are -- that make them unpredictable and put others at risk and their own safety at risk. I don't think we want people driving a car when they're on fentanyl.

 

      The other problem is, they use methamphetamine and other drugs in these facilities and, of course, Narcan can't reverse a methamphetamine overdose. So, I just think we should pursue, what I view as part of the harm-reduction policy, such as medically-assisted treatment. So, this is opioid treatment drugs with doctor oversight and wraparound services such as counseling and so forth, but not -- I just think it's the wrong way to go to create state-sanctioned facilities, which are being advocated for only on the East and West Coast, places like San Francisco and Philadelphia. I want to see people -- I want to see us work toward drug-free lives for people and that's not always about putting them in prison or charging them. That's about supporting our treatment and prevention communities, too.

 

Dean Reuter:  Dr. Singer, I want to give you a chance to respond in just a second, but I want to first check-in with Rob Duncan and see if he wants to agree, disagree. What does your on-the-ground experience tell you about harm-reduction efforts, Rob?

 

Robert M. Duncan:  Thanks, Dean. I would agree, largely, with Christina and her comments. I think she and I are of like mind on this issue. And as U.S. Attorneys, she and I both had the opportunity to work on matters related to drug policy and, particularly, as it related to opioids. I do agree that the opportunity to have services available—as Christina mentioned, needle exchanges, medically-assisted treatment—I think those are ideas that are pretty well-recognized in terms of helping those individuals that have become addicted manage and, hopefully, maintain and regain some of their previous life prior to coming to be substance-use dependent.

 

      That said, I think that the safe injection sites are, at this point, a bridge too far. It's currently against the law to possess and distribute those drugs that are deemed controlled substances without a legitimate prescription or need for use. And so certainly, the state sponsoring such a site, I think, is problematic from a legal perspective. Christina is right that where we have seen it currently in the United States appears to be both on the East and West Coast and not seeing that so much in the heartland of the country where I am. But I do agree that those are problematic.

 

Dean Reuter:  Dr. Singer, you want to…?

 

Jeffrey A. Singer:  Yeah, I -- for those who are interested, I posted in the chat, a link to my policy analysis on harm reduction that I did for the Cato institute in 2019. First of all, safe consumption -- I think Christina is mischaracterizing safe consumption sites. There's a wealth of data from Germany where they call them drug consumption rooms. And they've been around, like I say, for over -- at least since the late 1980s, and that's not how they operate.

 

      For example, when a person comes into a safe consumption site, the first thing they're doing -- is given test strips, like fentanyl test strips because research from University of California, San Francisco shows that most heroin users actually viewed fentanyl as a contaminant. It's a totally different experience from fentanyl. They don't like fentanyl; it makes their heroin use dangerous. So, they're given test strips to test to make sure there's no fentanyl in it, and if there is, they make adjustments in their dose.

 

      Second of all, they're not -- they don't just go out and drive a car. Unfortunately, these people live on the street and don't have a car or anyplace to drive to with it, but besides that, they're actually kept in what they call chill rooms where they have them hang around for about a half-hour to an hour or so until they get over that initial buzz.

 

      In addition to that, you'll see, for example, in Germany, which has been doing this longer than most countries, their opioid prescription pattern kind of mirrors the United States. They have the second-highest prescription volume rate of any country in the developed world, second only to us. Canada is number three. Yet, they have a much lower overdose rate because they've embraced these harm-reduction measures for many, many years.

 

      And then finally, there was a -- Rhode Island, as you probably know, recently passed in their legislation a state law which is going to have state-supervised -- two pilot programs within the state -- of safe consumption sites. But the fact is, that it's not like this is a brand-new experimental thing. This has been around. In fact, it was -- the experience in Vancouver is such that the Canadian government permitted 38 subsequent safe injection facilities throughout Canada. If it was so dangerous and didn't work well, why would it be in Canada, Australia, and all of Europe, but not in the United States?

 

Dean Reuter:  Can I ask you just a quick factual question for Dr. Singer? It's been mentioned that studies in support of the harm-reduction facilities have been sponsored by, or conducted by, the owners of those facilities. Is that true? And if it is, can you site some other studies that are more independent?

 

Jeffrey A. Singer:  I'm not aware of any studies. I'm sure there are some, but I'm not aware of any conducted by the owners of the facility. For example, in British Columbia, they're conducted by University of British Columbia and by the British Columbia Health Ministry, and they're monitored by them, and data is collected and published frequently. In fact, on July 15, like I said, British Columbia Health Ministry said now they're going to safe supply. And so this is government policy. This isn't private companies. In fact, Insite is a non-profit.

 

Dean Reuter:  Interesting. A quick question – well, I see Christina Nolan shaking her head. I don't know if you have a comment. You're on mute, Christina.

 

Christina E. Nolan:  The founders of Insite were involved in studying their own facility in order to get additional government funding and they had to show that it was successful. And so I think that that is problematic for anybody who's like Dr. Singer, or anybody on the panel, who's interested in objective, independent research. I'll just say that overdoses also went up in Vancouver after they opened the site and they actually went up at a higher rate than other surrounding areas, right in the immediate area of the site. But I don't want to monopolize, and I think we've definitely laid out our two perspectives here.

 

Dean Reuter:  Great. I want to check in with all four of you on the nature of this problem and whether it's a national problem, whether it's the same in every part of the country. But we've heard some discussion about East Coast, West Coast versus the rest of the country, and this can go to the economics as well. Do we need a federal policy here? Are we better off with different state policies? What are the arguments for and against preemption and, I guess, finally -- I've heard from many people that legitimate providers feel squeezed, as between federal and state laws. I wonder if we could talk about that, as well. And I'm happy to see a hand go up for who wants to respond to that potpourri of issues. Dr. Singer.

 

Jeffrey A. Singer:  Well, it’s true that it’s different in different parts of the country. I think it was 2003, the government accounting office had a report showing that the heaviest use was in areas that have a history of other substance use problems, including alcohol -use disorder, colloquially called alcoholism. And going back to the days of prohibition days -- this is areas, again, like in Appalachia, where a lot of bootlegging was going on.

 

      So, they’re regions of the country that seem to have always had a higher incidence of this. But I would favor the –basically, the federal government getting out of it and deferring it to the states, just like we did with alcohol prohibition. So, different states could have different rules and regulations regarding it, but I think the federal government should stay out of it.

 

Dean Reuter:  Anyone else want to respond on these issues?

 

Tomas J. Philipson:  Yeah, I can. I think -- the overriding issue, I think, with this crisis -- the economic issue, I think, with this crisis compared to other addictive substances is that, usually, we tax addictive substances such as cigarettes, alcohol, etc. In this case, we have subsidized an addictive substance through, like I said, well-intended policies, to try to subsidize the medical use of the prescription market that started this crisis. And I'm a firm believer that the illicit market wouldn't be as big at all hadn't it started in the prescription -- you know, 10 years ago -- or 20 years ago, it started, but then the illegal took over, maybe, 10 years ago.

 

      So, the real issue is, I think, for policy makers to figure out. We just don't want to tax prescription opioids. We might want to tax various other things, but how do we help people who need pain management at the same time that we are discouraging non-medical uses of opioids for addictive purposes? And that's kind of the crux of the matter.

 

      But what we did, initially, was essentially just turn on the hose and paid for non-medical use indiscriminately and it should, therefore, not be so surprising that when you subsidize something you get more of it, and in this case, you got a huge growth of an addictive crisis.

 

Dean Reuter:  I would like to hear from, I guess, everybody on the panel. Has the pendulum—the enforcement pendulum—swung in such a way that now pharmacies are afraid of distributing and doctors are afraid of prescribing -- that you have a fair number of legitimate patients in need of pain medication that can't get what they legitimately need?

 

Robert M. Duncan:  Dean I'll -- if I can, I'll --.

 

Dean Reuter:  Let's go to Rob, and then Dr. Singer. Go ahead, Rob.

 

Robert M. Duncan:  I don't know if the pendulum has swung too far. I will acknowledge that -- I'm sure that those in the medical community have become more hesitant and more circumspect in their prescription of opioids, and certainly, the purpose of enforcement is to bring to bear the resources against those bad actors that are taking advantage of the system and the situation and that are putting their own greed before patient care.

     

      So obviously, as Dr. Singer alluded to early on in his remarks, there are those in the medical community that have abdicated their responsibilities and have decided to become drug dealers. And that's where the resources, I think, in investigation and prosecution should rightly be focused. Those individuals give the medical practice a bad name.

 

      We may disagree on certain aspects related to harm reduction and to safe injection sites, but I think we can all agree that those individuals that are in the medical community, that have truly become drug traffickers with no regard for the care of their patients -- there will be a place for enforcement to deal with those individuals.

 

Dean Reuter:  Dr. Singer, you had a comment?

 

Jeffrey A. Singer:  Yeah. I think hesitancy and circumspect is putting it mildly. I'm a doctor in practice. I see it every day. Most doctors are now terrified to prescribe any pain medicine. I'm seeing patients sent home after major surgery with, like, a two-day supply of painkiller. And then, they call saying they're out of pain medicine and they're suffering, and because of the drug laws, I can't just phone in or e-prescribe in a refill. I have to have them brought in to my office so I can examine them, which is oftentimes not easy when they're in a lot of post-op pain. And even then, if I have to give them more than one refill, I get nervous, because I know -- I'm afraid I'll get a visit from the DEA.

 

      So, doctors -- we've seen people sent home from the ER with kidney stones on Tylenol, which, by the way, has questionable use for pain management. It's good for a fever, though. So in fact, the pendulum has swung so much that most doctors are in fear, and if they have patients asking for more than one refill, they tend to refer them to pain management specialists, whose offices are all backed up with this, so they can't see them for several weeks, and they end up telling them to go see an addiction specialist, even though they're not addicted, they're just in pain. And it's just a disaster out there.

 

Dean Reuter:  Anybody else on these issues? Christina Nolan, go ahead.

 

Christina E. Nolan:  Yeah, I just want to agree. We don't want to go too far in the other direction. I am not a doctor, and I – obviously, Dr. Singer, your experience is of note. I'm hearing what you're saying. I know nobody like anecdotes, but I -- in prosecuting drug cases for years, I can't tell you how many witnesses and cooperating defendants I worked with that told me their addictions—which eventually became fentanyl, heroin addiction—started with getting more opioids than they needed for an injury or some other medical condition.

 

      So I think it was a problem. We've seen Perdue Pharma recently plead guilty to crimes involving over-detailing of doctors who were outliers in terms of how many prescriptions they were writing. They were going and trying to get these doctors to do more -- their salespeople were.

 

      And I think that -- so I think that, while fentanyl accounts for more overdoses by far -- deaths -- that's not surprising. It is a more potent substance. But what that doesn't account for is the people who start with something like oxycodone and then move into heroin and fentanyl. So the origin of their addiction is oftentimes oxycodone that has gone into the market that shouldn't have been there.

 

      And I think that, as Rob says, charging people who -- charging doctors who are effectively dealers has -- deters that conduct and I think it should continue. And I think that the prescription monitoring has helped, but not fixed the problem. And I guess it's all a long way of saying the fact that overdoses from prescription pills are down, may, in fact, suggest that doctors dialing back on prescribing them, as well as prosecutions of bad doctors, has led to a reduction in overdose deaths on opioid pills.

 

Jeffrey A. Singer:  Well, as I said, that doesn't comport with what we know about this. First of all, there's no correlation. And I published on this in the peer-reviewed medical literature as well. Between prescription volume and non-medical use or opioid use disorder -- no correlation whatsoever. But on top of that, for example, two years ago, in the BMJ, a group at Harvard and Johns Hopkins published a prospective study on 568,000 opioid-naïve patients given oxycodone for acute post-op pain. And they followed them from 2008 to 2016, and they found a total misuse rate of 0.6 percent. That's misuse. That's all types. That means using it because you had a toothache even though -- because it was left over from your hernia operation. Total misuse rate of .6 percent.

 

      Like I said, University of Pittsburgh shows that overdoses have been on an exponential growth trend since the '70s. It’s true that diverted prescription pain pills are very popular for college kids and high school kids doing drugs to use and then, when that source dried up because prescriptions came down, the black market filled the void with, first heroin and then heroin in fentanyl. As a doctor, I'd rather them misuse—or use non-medically—pharmaceutical-grade oxycodone than something that's sold to them in an alleyway that may be oxycodone or may be something worse.

 

Dean Reuter:  Christina, it looks like you had a quip there, but you were muted.

 

Christina E. Nolan:  Well, I want them to use neither, and -- but I do -- I am hearing you say that as doctors prescribe less and less, for reasons that, I think, you think are not fair or correct, or may be an overresponse, but as they prescribe less and less, the number of deaths from oxycodone and other pain medications went down.

 

Jeffrey A. Singer:  Right, because the number of overdose deaths are skyrocketing because the people who were non-medically using diverted prescription pain pills are now using much more dangerous stuff. So, we're actually making pain patients suffer and driving up the overdose rate among non-medical users. I mean, you couldn't ask for a dumber way to do this.

 

Dean Reuter:  I've got a question that I want to close with in a minute about -- we've seen each of you talk about the evolution of the problem, where it started, and how it's progressed. I'm interested in your thoughts on what's going to happen next and are there some obvious next steps here.

 

      Before I do that, I want to ask the two prosecutors, or anybody else who wants to answer it since I've got you both on the line here, I've always heard -- again, maybe, perhaps, anecdotally -- maybe there are studies on this, that -- and this relates to the decriminalization or the incarceration rate and getting people out of jails and out of prisons. What I've heard is that we should take the casual users, the non-distributors, and get them out of prisons.

 

      On the other side, I've heard that, “Well, people can be in prison or jail for simple possession, but they were distributors.” In other words, the plea-bargain effect is that you get caught with an amount that makes you a distributor, or with a handgun, you plead to a lesser offense, and you're in jail for that. Is that a real phenomenon? Or if there is a move to get simple personal users out of jail and prison, are we getting confused there?

 

Robert M. Duncan:  Dean, I can't speak for the experience in state court, and I can certainly really only speak for my experience in the Eastern District of Kentucky where I was a prosecutor, but the -- where we spent our resources, where we spent our time, was prosecuting drug traffickers and not those that were drug possessors. I know, certainly, each state—Kentucky is no exception—has drug possession laws that, depending on the level of criminal history of the offender, that those could become felony offenses.

 

      I think, as a practical matter, where the limited resources of law enforcement should go when it comes to prosecution, should be on those individuals that are trafficking in the substances versus -- be that opioids or methamphetamine or cocaine -- versus mere possession.

 

      You mentioned a firearm. Certainly, offenses that involve crimes of violence or use of a firearm in furtherance of drug trafficking -- those will often rise to the level of federal prosecutions. And that's done to try to deter the violent conduct that often goes with street drug trafficking. So, you will see sometimes, smaller amounts of drugs -- still distribution quantities, but with a firearm enhancement, may be lesser than what you would typically see in just a straight drug prosecution. I don't know if Christina has different thoughts on how she handled it in Vermont.

 

Christina E. Nolan:  Yeah. So, I echo all of that. We don't charge people for possession, simple possession of drugs, in federal court in Vermont. And to the extent that they're prosecuted in state court, which is the only place they would be prosecuted in Vermont, they aren't going to jail for it. If they are in jail, it's probably because of repeated furlough violations or parole violations.

 

      So, we focused on traffickers, people who were dealing for profit, sophisticated dealers with large organizations, perhaps people who were laundering money, and those who were involved in human trafficking along with the drug trade and violence along with the drug trade, attendant gun crimes, recidivists.

 

      There is no question that, in Vermont, which is an end-use state, there are some significant traffickers who are on their fourth, fifth case, who are also users, but -- and so we did prosecute some of those individuals. And that doesn’t mean they're going to jail for a long time, though. Certainly, we crafted a number of resolutions which had big variances or downward departures from the sentencing guidelines, or in which we decided not to pursue a mandatory minimum and instead focused on their -- what their supervised release, prospectively their probation, was going to look like, and giving them that opportunity.

 

      So it's really -- there's no one-size-fits-all approach, but we -- it is not a crime to addicted, we did not charge people for being addicted, of course, or for simply possessing drugs, and what we want to see for those folks is treatment -- getting them into treatment.

 

Dean Reuter:  I'm going to give you each 60 seconds to talk about what, ideally, should happen going forward and what you think will happen going forward. And let's now revert to the original order we used for our panel. Dr. Singer, you want to go first?

 

Jeffrey A. Singer:  Well, what I realistically think will happen going forward -- I think we're going to see more and more efforts at decriminalizing -- not legalizing, but decriminalizing drugs and embracing harm reduction. We saw, for example -- well, decriminalization has worked beautifully in Portugal since 2001; it's served as a model for that. So subsequently, just recently, Norway decided to go that route. Malaysia is going that route. Mexico is considering it. And Oregon has passed it within its state.

 

      I think we're going to start to see that spread around the country, at least on a state level, and we're going to see efforts in more localities -- not just in the cities like Philadelphia and New York and Boston and San Francisco and Seattle, but also in states like Rhode Island to open up safe consumption sites.

 

      So I think going forward -- I think that people are going become more and more amenable to harm reduction as the way to deal with this, but unfortunately, they're going to still keep it illegal, which is going to continue to keep the cartels rich and busy and it's also going to keep the drugs dangerous.

 

Dean Reuter:  Christina, 60 seconds on what needs to happen and what you think will happen.

 

Christina E. Nolan:  Yeah. So, I think we need to continue to pursue policies that encourage people toward drug-free lives and punish those who are profiting from the misery of others by dealing deadly drugs. And I think that we need to support policies that create conditions for people to get into treatment, that hold accountable dealers, and send a message to children, young people, or other people who have not used, of any age, that it's not worth wasting your life to take that first risk.

 

      And so I don't -- so I think we reduce the harm from the drug crisis by prosecuting the traffickers and supporting our treatment and prevention communities and working with our treatment and prevention communities. And I think it would only increase harm to support policies that encourage youth and effectively help to trap people -- continue to trap people in the cycle of addiction.

 

Dean Reuter:  Rob?

 

Robert M. Duncan:  I think we have to continue enforcing the laws that are in effect. I don't think decriminalization is the answer, with respect to Dr. Singer. And I certainly appreciate his position and his years of experience, but I believe that even if certain restrictions were lifted, the cartels would still continue. Even if a certain class of drug were made legal, they would still continue to try to undercut the market, and simply decriminalizing all drugs is not going to drive them out of business.

 

      I think where we need to focus our law enforcement resources are, as we have discussed, on traffickers—on those folks and entities that continue to drive the illicit drug market -- particularly synthetic opioids like fentanyl that are causing a significant number of overdose deaths, currently.

 

      I think we also have to continue to destigmatize those individuals that are suffering from substance use disorder or addiction. And we have to help them continue to obtain treatment that they need and reintegrate themselves back into society and give them opportunities to be successful. But from a law enforcement perspective, I think we need to continue our efforts ongoing after the individuals and groups that are trafficking in these drugs.

 

Dean Reuter:  And Professor Philipson, you get the final word here.

 

Tomas J. Philipson:  Yeah. I'm going to take the middle of the road a little bit here, I think. I think there's strong arguments for decriminalizing and still keeping the laws on the book. I'm not going to get into that debate, but given that we have the laws that we have, taking those as given -- economists talk a lot about entry barriers into industries preventing competition and therefore raising prices. So, what we want to do on the legal suppliers is to have very high entry barriers into this industry to keep prices high, essentially, to make use -- if the demand for illegal use is downward sloping, presumably use will be lower the higher the prices are.

 

      And, I think a missed issue here today is a little bit that 90 percent of heroin comes in through the Southern border with Mexico, and currently, we're basically opening that up completely to trafficking. And that seems to be a major issue if you want to have, literally, an entry barrier for coming into the country, in a literal sense, for those supplying these products. I think it's worth thinking about that as facilitating competition and innovation in this illegal industry. And if you think that's a bad thing, you want to have as high entry barriers as possible, including entry into the country.

 

Dean Reuter:  Well, my thanks to each of you. I think this has been a great discussion. I appreciate the distinct and several views represented here today. I tried to get to a lot of the audience questions, formulating them as my own, at least some version of them, so thanks as well to the audience for zooming in today.

 

      This whole thing has been recorded and will appear on our website in the next day or two. But until our next event, we are adjourned. Thank you very much, everyone.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.