Rachel L Rothberg & Kate Stith. The Journal of Law, Medicine, and Ethics. Volume 46, Issue 2, 2018.
This article examines how federal law enforcement has responded to the opioid epidemic nationally and in a variety of locales. We focus in depth on two initiatives, including prosecution in opioid-death cases, undertaken by the U.S. Attorney’s Office in Connecticut.
Introduction: The Growing Opioid Crisis
At approximately 4:10 a.m. on November 19, 2015, police and emergency medical services personnel responded to a report of a twenty-two-year-old male in cardiac arrest at his family’s home in Woodbridge, Connecticut. Within ten minutes, the responders declared the young man dead. The cause of death was an increasingly familiar one in communities across the United States: heroin overdose.
But this particular overdose death led to a then-unfamiliar consequence. Prior to that time, federal authorities in Connecticut (and their counterparts around the country) very rarely investigated and prosecuted small-scale dealers whose illicit wares led to an overdose. This widespread exercise of prosecutorial discretion reflected the difficulty and expense of conducting such investigations and the relatively limited impact of incarcerating low-level suppliers compared to going after major drug traffickers. That night in Woodbridge, however, responding police officers seized evidence from the scene of the death, and a thorough federal investigation, led by the Drug Enforcement Administration (DEA), began shortly thereafter. By January 2016, the retail-level dealer and his supplier had both been arrested and charged with simple distribution of heroin in violation of federal law. Since then, the United States Attorney’s Office for the District of Connecticut has routinely investigated and prosecuted low- and mid-level opioid dealers responsible for opioid-overdose deaths.
An opioid crisis has swept the United States, ravaging communities across the country. In this Article we examine how federal law enforcement has responded to the crisis, both nationally and in a variety of locales. We focus in depth, however, on federal investigators and prosecutors in the District of Connecticut, where the epidemic has hit hard. In 2016, 917 people died of accidental drug overdoses in Connecticut, which has a total population of just over 3.5 million people—the vast majority had some sort of opiate in their system. In comparison, there were 87 homicides, 387 suicides, and 319 motor vehicle deaths in Connecticut in 2016. Nationwide, over 64,000 people died of accidental drug overdoses in 2016, compared to 37,461 motor vehicle accident fatalities. Between 2013 and 2016, the number of deaths involving synthetic opioids, namely fentanyl and its analogues, increased by 540%, from roughly 3,000 to over 20,000. (We discuss the extraordinary dangers presented by fentanyl in our companion article, Fentanyl: A Whole New World?.)
Between 2014 and 2015, Connecticut experienced the second-highest increase in death rates from synthetic opioids (from 94 to 211 deaths, or 125.9%) among the twenty-eight states the CDC classifies as having “high quality reporting on death certificates of specific drugs involved in overdose death.” From 2016 to 2017, total accidental overdose deaths in Connecticut increased 13.2%, from 917 to 1038; fentanyl-related deaths increased by nearly 40%.The death toll is so high that, in February 2017, Connecticut’s Office of the Chief Medical Examiner lost full accreditation from the National Association of Medical Examiners for its inability to store bodies in refrigerated space. The officially reported mortality figures are likely an undercount, since the data do not include those who, for instance, were revived by Narcan but had already suffered brain injury due to lack of oxygen. If these users die weeks later of pneumonia or other overdose-induced complications, doctors will often focus on that immediate cause of death, even though the opioid overdose was the proximate cause.
What role can criminal law—and those who enforce it—play in combatting the opioid crisis? The Connecticut U.S. Attorney’s Office’s shift in policy represents just one of many federal law enforcement reactions to alarming increases in opioid abuse and overdose deaths. As opioid users’ tolerance increases and their access to prescription pills dwindle, they often transition to cheaper heroin, and then again to the more powerful synthetic opioids—sometimes unwittingly. In general, law enforcement has struggled to keep up with the epidemic and the opioid market’s evolving characteristics.
In Part II of this Article we provide an overview of the nationwide, interagency efforts initiated by the Department of Justice (DOJ, or “Main Justice”) in Washington, D.C. In Part III, we briefly survey a number of strategies pursued by various U.S. Attorney’s Offices (USAOs). There are ninety-three U.S. Attorney’s Offices in the United States, and although all of them are part of the DOJ, each one is semi-autonomous in deciding which cases to investigate and prosecute.
Then, in Part IV, we narrow our focus to the federal prosecutorial efforts of the U.S. Attorney’s Office for the District of Connecticut. We focus on the Office’s two main strategies—(1) charging the supplier of an illicit substance resulting in death with the crime of drug distribution; and (2) educating the community, particularly high-school students, about opioid usage—and discuss whether they have implications for the national role of federal law enforcement. Lastly, in Part V, we address what more might be needed from federal law enforcement going forward to protect communities nationwide from the devastation wrought by opioid proliferation.
We pause here to note that federal law currently makes all non-medical sales and distribution of opioids, however minor, a felony. While opioids such as Vicodin, Percocet, and Oxycodone (Schedule II substances) are dispensable by medical providers under certain circumstances, they are illicit when diverted, manufactured outside the legal chain, or used by someone other than for whom the medicine was prescribed. Simple possession of an illicit drug—including an opioid—is also a crime under federal law, but this charge is seldom pursued outside of federal workplaces and national parks. Hence this Article examines but a small corner of criminal prosecution: the circumstances under which federal prosecutors may choose to bring drug-distribution charges against small-time illicit distributors as part of their response to the ongoing opioid epidemic. We do not address the foundational questions of whether use or possession of non-prescribed opioids should be criminalized under state or federal law.
Main Justice and Interagency Responses
In September 2016, the DOJ devoted its United States Attorneys’ Bulletin to “Addressing the Heroin and Opioid Crisis.” Then-Deputy Attorney General (DAG) Sally Quillian Yates highlighted a sample of recent initiatives implemented by the Drug Enforcement Administration (DEA), the Organized Crime Drug Enforcement Task Force Program, and the Bureau of Justice Assistance’s Prescription Drug Monitoring Grant Programs. According to the Bulletin, because the entire Department of Justice had found itself “in a position of needing to operate, in part, outside its traditional bailiwick,” these new strategies “reflect[ed] an emerging understanding that any solution to this epidemic must be holistic.”
The new presidential administration, ushered in just a few months later, appears to be maintaining the opioid-related initiatives announced by Yates and creating new ones. For instance, the DEA Special Operations Division Heroin/Fentanyl Task Force Working Group continues to leverage support from several federal agencies to identify, target, and dismantle national and international fentanyl trafficking organizations; to analyze intelligence data; and to provide case coordination and direct operational support for all investigations. Additionally, the Office of National Drug Control Policy, DEA, and the State Department have sought to enhance coordination with Canada and Mexico since the inaugural meeting of the trilateral North American Dialogue on Drug Policy in October 2016. DEA, both at that meeting and again at its March 2017 technical workshops, has “shared best practices and methodology on identifying the sources of heroin and fentanyl in North America and combatting criminal distribution networks.”
As part of a multi-agency effort, Main Justice also will bring legal actions based on the investigative efforts of the U.S. Department of Health and Human Service (HHS) and its Most Wanted Health Care Fugitives initiative, Health Care Fraud Prevention and Enforcement Action Team, and Medicare Fraud Strike Force. The Medicare Fraud Strike Force, for instance, was established in 2007 and works with federal, state, and local law enforcement entities “to prevent and combat health care fraud, waste, and abuse.” It recently was part of the Department of Justice’s largest-ever health care fraud action, where over twenty percent of those arrested nationally were charged with crimes relating to schemes to unlawfully distribute opioids and prescription drugs. These healthcare fraud cases are usually prosecuted out of one—or several—of the U.S. Attorney’s Offices.
On August 2, 2017, Attorney General Jeff Sessions announced the creation of a new Department of Justice pilot program, the Opioid Fraud Abuse and Detection Unit. This unit is focusing “specifically on opioid-related health care fraud using data to identify and prosecute individuals that are contributing to this prescription opioid epidemic.” The program targets pill-mill schemes and pharmacies that unlawfully divert or dispense prescription opioids for illegitimate purposes. Like the HHS-investigated cases above, DOJ will prosecute out of a U.S. Attorney’s Office—in this case, bringing charges in one of the twelve participating federal districts. The Unit announced its first indictment, out of the Western District of Pennsylvania, on October 26, 2017, the same day that President Trump declared the opioid crisis a nationwide “public health emergency.” One day later, DEA announced the establishment of six new enforcement teams focused on combatting the flow of heroin and illicit fentanyl, and on December 5, 2017, the U.S. Sentencing Commission held a public hearing on fentanyl, fentanyl analogues, and synthetic cannabinoids. Since then, the Commission has promulgated amendments to the federal sentencing guidelines—effective November 1, 2018—to account for the serious dangers posed by such drugs.
Despite all these initiatives and the many that will inevitably be rolled out after this article has gone to press, we agree with Yates that “law enforcement efforts alone will not bring an end” to this persistent and increasingly complex problem. Overdose deaths continue to rise, and a 10% increase in the death rate from 2015 to 2016 for people between ages 25 and 34 have contributed to a declining national life expectancy for the second year in a row. At the same time, though, we also agree with Yates that federal law enforcement agencies, with their institutional knowledge, intelligence capabilities, and attendant resources, have a role to play in fighting the epidemic through investigations, individual and corporate prosecutions, and community outreach. One of the earliest enforcement efforts took place long before most in the public were even aware of a growing opioid crisis. In 2007, Purdue Pharma—the company that makes the narcotic painkiller OxyContin—and three of its executives pled guilty “to criminal charges that they misled regulators, doctors and patients about the drug’s risk of addiction and its potential to be abused.” To resolve both criminal and civil charges related to the drug’s “misbranding,” the company agreed to pay $600 million in fines, and the executives a total of $34.5 million—at that time one of the largest settlements paid by a drug company in such a case, though not high enough in the view of some critics. The Office of the Inspector General within HHS has continued to pursue criminal and civil enforcement actions against fraudulent medical practices in the decade since the initial Purdue Pharma settlement.
Responses by U.S. Attorney’s Offices
U.S. Attorney’s Offices’ responses to the opioid crisis have been manifold. Though they continue to prosecute large-scale drug distributors, many have adjusted or ramped up investigation and charging strategies related to individual opioid distributors. Additionally, Offices have developed non-prosecutorial initiatives focused on education, prevention, and awareness in the communities they serve.
Charging Large-Scale Distributors
Although HHS, DEA, and the countless interagency task forces and working groups noted above each contribute to federal investigations and enforcement actions, Assistant United States Attorneys (AUSAs) at the ninety-three U.S. Attorney’s Offices generally are responsible for bringing any resulting legal action. Traditionally, the U.S. Attorney’s Offices—along with the federal government itself—have not dedicated their limited resources to prosecuting simple possession of heroin (or any other illicit substance). Rather, they have sought to prosecute large-scale distributors and networks. In fiscal year 2016, the federal government obtained 19,199 drug-trafficking convictions, compared to just 230 simple-possession convictions (over half of which were for marijuana). Just sixteen individuals in total were sentenced for simple possession of heroin. Under the federal sentencing guidelines, the lowest offense level for trafficking heroin (less than ten grams) is twelve, but the median offense level for all federal heroin trafficking convictions was twenty-six, which corresponds to trafficking between four hundred and seven hundred grams of heroin.
As demonstrated by these statistics, U.S. Attorney’s Offices have not sought to prosecute drug-dependent users who simply sell some of the substance to support their habit. Rather, U.S. Attorney’s Offices have typically focused on the seizure of drug transshipments and prosecution of major distributors, and they have generally continued to do so for heroin and other opioid trafficking as the crisis has escalated.
Charging Small-Scale Distributors
In some federal districts, however, that longstanding focus is at least partially shifting in response to the increasing devastation of the opioid crisis. Notably, a number of Offices have sought to hold suppliers’ feet to the fire by bringing prosecutions under 21 U.S.C. § 841(b)(1)(C), which specifies criteria to charge a twenty-year mandatory minimum prison sentence for a person who distributes a drug that causes death. For example, by July 1, 2016, the U.S. Attorney’s Office-EDKY had already secured convictions in fifteen of these cases as part of its larger “Overdose Prosecution Initiative,” with sentences ranging from twenty years to life in prison. The Northern District of Ohio has been similarly aggressive, with an explicit goal “to seek mandatory minimum sentences based on a death enhancement at the federal level,” part of that Office’s “Heroin and Opioid Community Action Plan,” which has been in place since 2013. Perhaps unsurprisingly, these charges are most frequently employed in communities that have been particularly ravaged by the opioid crisis, such as Appalachian regions of West Virginia and Tennessee. No area is immune from the opioid crisis, however, and many other jurisdictions are “charging the death” as well.
Districts that have adopted the policy of “charging the death” face significant legal hurdles. Because of the very high criminal penalty, the Supreme Court in Bur-rage v. United States (2014) interpreted § 841(b)(1) (C) to require proof of “but-for” causation. Obtaining proof beyond a reasonable doubt that the charged drug distribution was a “but-for” cause of the purchaser’s death has become the single greatest impediment to “charging the death” under the statute. Despite this constraint, such prosecutions continue. The 2016 U.S. Attorneys’ Bulletin featured an article in which the then-U.S. Attorney for the Northern District of West Virginia shared practical takeaways from Burrage and explained the varying interpretations of the decision in the twelve regional federal appellate courts. The practical tips included specifying and clarifying the terms “mixed-intoxication,” “combined intoxication,” and “contributing cause” for the jury; having the medical examiner articulate the “but-for” causes of death; and presenting in laymen’s terms the evidence upon which the medical examiner’s opinion is based.
Charging Medical Providers
Various U.S. Attorney’s Offices have also taken differing approaches to targeting illicit opioid supplies that originate in licit channels, including prescription abuse by healthcare professionals. In some districts, Offices subject these doctors to the same charges as drug suppliers without white coats. The Eastern District of New York, for instance, indicted an eighty-one-year-old doctor, Martin Tesher, under the death-resulting proviso of § 841(b)(1)(C). Charged with unlawfully prescribing oxycodone and fentanyl to a patient without legitimate medical purpose which resulted in the patient’s overdose death, the defendant faces a maximum sentence of life imprisonment. In a similar case, on the other hand, the District of Nevada charged and convicted Dr. Robert Gene Rand of one count of involuntary manslaughter of a patient, which carries a maximum sentence of eight years in prison. Rand additionally pled guilty to the unlawful distribution of oxycodone, which carries a maximum sentence of twenty years; he was ultimately sentenced to ten years in prison on both counts, in addition to paying a $25,000 fine and $11,960 in restitution.
In another prescription diversion case out of the District of Nevada, a medical assistant was sentenced to twenty years in prison for conspiracy to distribute controlled substances and distribution of large quantities of highly addictive prescription opioids, including oxycodone, even without a resulting death. His co-defendant, Dr. Henri Wetselaar, a ninety-three-year-old pain management specialist, was also found guilty after a ten-week trial and was sentenced to ten years in prison. At the time, Dr. Wetselaar was the fifth doctor convicted in the District of illegal distribution of opioids in recent years; he was also the oldest of the five doctors, and his sentence was almost three times longer than any previous doctor had received. The elderly doctor’s lengthy sentence, especially in light of his never having been tied to a particular death, demonstrates the extent to which some prosecutors have adopted a “take no prisoners” approach to deter prescription fraud and abuse by medical professionals. The merits of various charging and sentencing strategies will be addressed further infra Section IV.B.3.
Community Outreach Efforts
As then-DAG Yates noted in the September 2016 DOJ Bulletin, separate from these shifts in prosecutorial policies is a novel DOJ effort to spread knowledge about the opioid crisis across Offices and communities. Like “charging the death,” these outreach initiatives have been led by the U.S. Attorney’s Offices in regions most severely impacted by opioids. The U.S. Attorney’s Office for the Western District of Pennsylvania, for instance, worked with the Executive Office for United States Attorneys (in Washington, D.C.) to develop an “Opioid Toolkit,” containing outreach and prevention models for use by the prosecutorial community. The Cleveland Office “began educating its communities about the epidemic and working with public health officials to stem the tide of opioids flooding that community.”
Similarly, since 2015, EDKY has sought “to re-channel the grief experienced by the families of overdose victims into a public education campaign.” In doing so, EDKY created the first U.S. Attorney’s Heroin Education Action Team (HEAT), formed on the premise that “those who have walked this dark path with a son, a daughter, a sibling, or a parent are uniquely positioned to give voice to their experiences, sounding a warning to this insidious threat.” While the various districts seek to tailor their strategies to particular needs of their community (be it an influx of gang activity or a need to focus on doctor-based pill mills and over-prescription), they also have much in common, including the ever-present need to prevent—and when that fails, to treat—addiction.
U.S. Attorney’s Office for the District of Connecticut: A Case Study
Stunning Increase in Opioid Overdose Deaths Leads to New Initiatives
The U.S. Attorney’s Office for the District of Connecticut (USAO-CT) has approximately forty-five criminal division AUSAs, about a third of whom are in the Violent Crimes and Narcotics Unit, which handles opioid-related prosecutions. However, as the opioid crisis grew, the Chief of the Organized Crime Drug Enforcement Task Force in that unit, AUSA Robert M. Spector, sought help from other units in a variety of ways and “received an incredible showing of support.” At any given time, seven-to-ten AUSAs from other units now pitch in to help prosecute the overdose death cases, discussed infra Section IV.B, and about ten other AUSAs, some of whom are in the civil division, help run the school assemblies and presentations as part of HEAT, discussed infra Section IV.C.
USAO-CT undertook these new initiatives because of the gravity of the crisis in Connecticut. Large amounts of fentanyl are being directed into the Northeast. In December 2016, a routine traffic stop on a state highway near New Haven recovered enough fentanyl—fifty-five pounds—to kill everyone in the state twice. In late June 2017, the DEA’s Hartford Task Force seized nearly one million consumer bags of heroin cut with fentanyl and eventually arrested thirteen people, whom USAO-CT is now criminally prosecuting.
While the quantity of deadly opioids seized in those cases was unusual—the December 2016 traffic stop was one of the largest seizures in U.S. history—opioid seizures are frequent, and the prosecution of such large-scale confiscations is business-as-usual for USAO-CT. Whatever one thinks about the wisdom of the mainly “supply-side” approach of federal drug investigations and prosecutions, DOJ has proceeded on the premise that some degree of general deterrence is achieved by prosecuting profit-maximizing major distributors. Additionally, the prosecutors and DEA agents with whom we spoke strongly believe that the public would be shocked if “the Feds” failed to prosecute cases like the two noted above. No one who spoke with us questioned the role of the federal government in dismantling these trafficking rings and prosecuting the major distributors responsible for distributing lethal drugs like fentanyl and heroin to the citizens of Connecticut, and destroying people’s lives for profit.” Federal prosecutors and DEA agents in Connecticut also strongly believe that such significant intervention does prevent death further down the supply chain, if only from the particular highly potent drugs that have been seized.
In addition to prosecution of black-market drug traffickers, the Connecticut Office—like all other U.S. Attorney’s Offices—has prosecuted pill-mill schemes, in which doctors and healthcare providers illicitly distribute narcotics, perpetuate health care fraud, and launder money. In November 2015, Dr. John Katsesos received a sentence of seven years in federal prison for defrauding healthcare programs and illegally dispensing oxycodone “well outside the scope of accepted medical practice”; the general practitioner flooded the community with more than two million dosage units to more than two thousand patients, at least one of whom died of an overdose. In July 2017, Doctors Bharat Patel and Ramil Mansourov were indicted for conspiracy to distribute oxycodone and hydrocodone, health care fraud, and money laundering, and they now face decades in prison. The DEA Special Agent in Charge of New England, Michael J. Ferguson, noted that “the reckless actions by these two doctors by writing prescriptions outside the scope of their legitimate medical practice contributed to the widespread abuse of opiates, which is a gateway to heroin addiction and is devastating our communities.” Ferguson referred to the DEA’s commitment to ensuring that Controlled Substance Act registrants “are in compliance and abide by DEA’s distribution regulations.” This is critical to stemming gateway drugs like oxycodone and hydrocodone by way of decreasing OxyContin, Vicodin, and Percocet illicit prescriptions. And while such prosecutions have increased in number as opioids have proliferated, there is nothing novel about the prosecutions themselves.
USAO-CT, however, has also undertaken two non-traditional initiatives in response to the opioid crisis. One of these involves prosecutions—“the last line of defense”—that would not otherwise have occurred, while the second involves prevention, treatment, and anti-diversion efforts. As noted supra page 296, these two novel initiatives are:
- The prosecution of even low-level suppliers or dealers who distributed the product that resulted in an overdose death, as discussed infraSection B. Significantly, these defendants are often minor players who would not otherwise be prosecuted by USAO-CT because they are not major distributors.
- Proactive community outreach, particularly to high schools, in order to educate students and others about the growing danger of opioid usage in order to reduce initiation of opioid use. The Office’s prevention efforts, described infraSection C, target the “gateway” use—and abuse—of prescription pills such as Xanax, Vicodin, Percocet, and Oxycodone.
Federal Prosecution in Overdose-Death Cases
1) Overview
In the twenty-four months prior to January 1, 2018, DEA investigated over 225 separate opioid-related overdose deaths, resulting in about one hundred separate prosecutions by USAO-CT. By comparison, prior to that period, there had been, on average, one overdose-death investigation per year.
Critically, USAO-CT would not charge these minor suppliers in the absence of the resultant overdose death. The charges—most commonly intentional distribution of a small amount of heroin in violation of 21 U.S.C. § 841(a)(1) and the portion of 21 U.S.C. § 841(b)(1)(C) broadly applicable without “charging the death”—reflect the defendants’ low-level role and carry a sentencing guidelines range of three-to-five years. As opposed to prosecution of major distributors, these charges are brought not for general deterrence, but primarily to provide solace for victim’s families. In every case involving a death, the federal prosecutor requests an upward departure from the guidelines, but there is no guarantee the sentencing judge will impose a higher sentence (and the judge has legal authority to impose a below-guidelines sentence as well).
Thus, USAO-CT represents a sort of middle ground in the prosecution of low-level dealers who are the proximate cause of an overdose death. As we have previously noted, a conviction for distribution that is charged as causing death carries, under 21 U.S.C. § 841(b)(1)(C), a mandatory minimum sentence of twenty years imprisonment. Unlike U.S. Attorney’s Offices in Kentucky, West Virginia, and Ohio (among others), the Connecticut Office has never “charged the death.” Still, USAO-CT has departed from its usual stance of not spending its finite resources prosecuting small-scale drug distribution.
This shift has impacted investigations, in addition to prosecutions, because the site of an overdose death is now treated—by DEA and by most local law enforcement in Connecticut—as a crime scene. In April 2016, as part of a larger “statewide initiative targeting narcotics dealers who distribute heroin, fentanyl or opioids that cause death or serious injury to users,” the U.S. Attorney’s Office and DEA, with input from Connecticut state prosecutors (called State’s Attorneys), developed a new protocol for responding to heroin and other opioid-overdose deaths. The protocol, which was distributed to every State’s Attorney office and police department in Connecticut, asks local law enforcement officers to “perform time-sensitive investigative techniques and preserve all evidence at the scene of an overdose death.” Police are requested to “contact DEA at the early stages of an investigation, and ensure that an autopsy of the decedent is performed.” After the initial evidence collection, the “DEA and local police will then jointly investigate to determine the events leading up to the death, the source of the drug involved, and the composition of the drug [to ensure that individuals] responsible for distributing drugs causing overdose deaths will be prosecuted.”
In April 2017, USAO-CT developed a related statewide initiative urging every local police department and the Connecticut State Police to designate one officer or detective and one backup who will be responsible for responding to every opioid-overdose death in its jurisdiction. That same month the Office conducted a statewide training through the State Police Academy for two hundred of these designated police officers, “teaching them how to investigate and prosecute these cases both in state and federal court.”
As a result, in many Connecticut towns and cities, designated first responders now search for evidence at the scene of an apparent overdose death, including identifying and preserving the victim’s cell phone, laptop computer (particularly important if the victim’s smart phone cannot be unlocked), wallet, and drug paraphernalia. For its part, USAO-CT has designated one prosecutor (the aforementioned AUSA Rob Spector) responsible for coordinating all of these opioid-death investigations. DEA has also designated one such central agent, in addition to providing a full-time intelligence analyst able to prepare subpoenas for subscriber information, cell site information, and toll records. Once the relevant information has been collected, the various partners from the local or state police, the relevant State’s Attorney office, DEA, and USAO-CT consult and decide whether to pursue state or federal charges.
State charges, it turns out, are rarely pursued. Middlesex County, for instance, had forty-six fatal overdoses between May 1, 2016 and November 30, 2017, but no state prosecutions. The incidence of state prosecution is so low that some state prosecutorial districts do not bother to keep statistics. Though these districts may want to prosecute narcotics suppliers—and some have undertaken significant investigations to find provable facts to be able to do so—ultimately, the circumstances often make bringing such charges unworkable. Sometimes, a defendant will be initially charged in state court and kept on that docket, while USAO-CT undertakes additional investigation and charges the same defendant in federal court. Once “the case is disposed of in federal court,” the local State’s Attorney’s office will dismiss its own case. One local State’s Attorney office, for the district of Ansonia-Mil-ford, has brought two overdose-death prosecutions, having retained jurisdiction “in cases where proving a direct link between the drugs provided by the supplier and the victim would be problematic” in federal court. In these two cases, however, it prosecuted the “alleged distributor for the underlying drug offenses understanding that the case should be treated more seriously than a simple possession because the defendant, in some way, was involved in a person’s overdose death.”
When a federal charge is pursued, which is the vast majority of the time, USAO-CT has the full array of federal investigative tools at its disposal. Often the investigations are relatively simple, requiring little besides grand jury subpoenas for phone or bank records and for any witnesses to the overdose (who had “knowledge of the victim’s movements and actions within the last 24 hours before the overdose”); cell phone seizures; GPS search warrants; and immunity offers. In a typical federal case, the victim dies of a heroin (or fentanyl) overdose at his residence. The first patrol officers on the scene may seize a cell phone and one empty bag of the opioid. If family members have a reasonable expectation of privacy in the victim’s telephone (or any other evidence), officers seek to obtain their consent to take it. They then seek to uncover the victim’s phone password from relatives, parents, or friends with whom the victim lived. In addition, first responders seek to identify and acquire consent to search any phone that might be in another person’s name but may have been in contact with the heroin source. Similarly, all drug evidence from the scene (baggies, scales, needles, etc.) and any prescription medication to which the victim had access is seized. The first responders photograph the scene and any seized evidence before submitting the narcotics for expedited drug testing to either the Connecticut or the DEA toxicology laboratory.
These policies shift the Office’s focus toward arguably proportionate retributive justice that provides solace for victims’ families through punishment of responsible dealers. Charging the supplier in a drug-overdose death may also represent a concomitant move away from deterrence- and rehabilitation-based efforts.
In the simplest case, the victim’s phone is searched, and the text messages identify the transaction leading to an overdose. Telephone subscriber records then identify the dealer directly. In other instances, once USAO-CT has identified those with whom the user was communicating in the hours prior to death, it may use grand jury “target” letters and proffer sessions to encourage disclosure of the actual dealer. While the Office often would like to “go up the chain” to prosecute a supplier’s supplier, this strategy is not always possible because of major investigatory and evidentiary challenges. Sometimes low-level defendants do not want to cooperate, or they do not know enough to be able to provide assistance, or the information they do offer cannot be corroborated. In other cases, the immediate source of the drugs in question (even if low level) appears to be the most appropriate person to prosecute—for instance, when there is evidence that he knew the substance he was distributing was especially dangerous, as in the case of Frank Pina, infra page 303.
In sum, USAO-CT’s new policies call for thorough—although necessarily time-consuming and expensive—investigation of overdose-death scenes in the service of prosecuting the often small-time dealers whose opioids served as the proximate cause of death. These policies shift the Office’s focus toward arguably proportionate retributive justice that provides solace for victims’ families through punishment of responsible dealers. Charging the supplier in a drug-overdose death may also represent a concomitant move away from deterrence- and rehabilitation-based efforts. The following subsections analyze, first, the stated justifications for USAO-CT’s new focus and, second, whether this charging policy—which constitutes a departure for this U.S. Attorney’s Office, but stops short of fully “charging the death”—strikes a reasonable balance
2) The Impetus for and Rationale Behind the Prosecution Strategy
Connecticut’s federal prosecutorial change-of-course began in January 2016, precipitated by the overdose death of a twenty-two year old man in Woodbridge, CT, as noted supra page 292. The victim’s father was a retired police detective; the young man, the Office later learned, started using oxycodone and then moved to heroin purchased on the street. The DEA’s initial investigation, aided by cellphone search warrants, confirmed that the victim had purchased heroin from Wade Pettingell in the past. However, upon his arrest, Pettingell “explained that, the night before the overdose, he and his friend, Kevin Foster, had traveled with the victim to meet with one of Foster’s heroin sources in Waterbury. Foster had arranged for this source to sell them heroin to provide to the victim.” That source was Reginald Miles, Jr., who was ultimately charged with possession with intent to distribute and distribution of heroin on January 24, 2016 and sentenced to three years in prison, which was within his thirty-to-thirty-seven month guidelines range.
The fall of 2015 had seen a spike in overdose deaths, with record-high death tolls of eighty-six in October and seventy-six in November. Still, the initial thought at the time was that USAO-CT might prosecute only one or two low-level distributors who sold to users who died, as it had occasionally done in years past. But between January 2016 and when the statewide task force was publicly announced that April, the Office had already conducted twenty investigations into overdose deaths. It has not stopped since. For over two years now, USAO-CT has sought to investigate every drug overdose death, “for the sake of the victims and their families.” Prosecutors told us that they believe such proactive law enforcement efforts demonstrate to the victims’ families and communities that these deaths are taken seriously and that these victims matter. Not to pursue a criminal investigation and, where possible, prosecution, they told us, might have the effect of stigmatizing substance abusers or suggest that these victims brought this fate upon themselves—that they “had it coming.”
At its core, the new prosecution strategy embodies a motivating belief that “death is different,” especially when there are suddenly so many overdoses—so many deaths, and of so many young people. Federal prosecutors in Connecticut have repeatedly and openly sought to explain this motivation and philosophical premise. For example, at a sentencing hearing on August 28, 2017, the AUSA explained the Office’s logic for requesting an upward departure from the sentencing guidelines range when death has resulted:
General deterrence … is important, but I’m not suggesting that the sentence in this case will somehow shift the tide. On the other hand, because somebody died, everything about this case is different.
The prosecutor will sometimes request restitution to defray the cost of funeral and burial expenses. However, individual prosecutors note that, even if this money is recovered for the victim’s family, nothing can truly compensate for the devastating loss of life itself. USAO-CT believes that its new approach—focused on retribution and justice for victims’ families—has been helpful in gaining the trust of the diverse Connecticut populations that have been hit by the opioid crisis. Whether or not the Office is correct in that belief, in the past few years, its strategy of investigating and prosecuting overdose-death cases has garnered the support of partnering law enforcement agencies such as DEA, as well as state and local police.
For the judges, too, the cases are different than run-of-the mill low-level distribution cases (which USAOCT previously seldom brought). The significance of the death of the victim is brought to bear when the victim’s family speaks at sentencing. Courts acknowledge that all of these prison terms are temporary, while someone’s daughter or “son will never have a second chance.” Judges have noted that the victim-purchasers expected heroin but received it laced with fentanyl (though query whether this expectation is reasonable in 2018); that they might have had a substance use disorder, but they did not intend to die; and that sometimes the deceased had just begun to use opioids and thus was unable to tolerate substances closer to “pure fentanyl.” While judges have expressed compassion for those defendants who themselves have substance use disorders, this particular consequence of a defendant’s drug habit—death of another person with the same disorder—is “irreversible.” One judge, Alvin W. Thompson, explained:
When you have drug dealing and people get addicted and they have a habit, society can step in and help them, through counseling and treatment, to cope with and overcome the results of that criminal conduct. When you have a case where somebody has died as a result, there’s nothing anybody can do, and that’s what makes this kind of a case different.
It appears that the federal judges throughout the district have been supportive of this prosecutorial initiative; most cases now result in sentences at the top or above the guidelines range.
In an early, precedent-setting, overdose-death case, Ryan Russow pled guilty in December 2014 to conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. Although the Office maintained that the heroin distributed by Russow resulted in the death of a man identified as “R.P.,” it reached a plea agreement not to “charge the death” under 21 U.S.C. § 841(b)(1)(C) and, therefore, not to subject Russow to the twenty-year mandatory minimum. However, the Office reserved its right “to argue for an upward [sentencing] departure on the basis that the heroin distributed by the defendant contributed and/or caused the heroin overdose death of R.P.” Separate from prosecutorial discretion to “charge the death” under § 841(b)(1)(C), the U.S. Sentencing Guidelines under § 5K2.1 authorizes a judge to impose a higher-than-guidelines sentence because a death occurred.
After two days of evidentiary hearings, U.S. District Judge Janet Bond Arterton issued an oral ruling finding that “the Government met its burden of showing that Defendant’s offense resulted in R.P.’s death” such that the guidelines sentencing calculation would include the enhancement authorized by the guidelines when death results (an enhancement, in Russow’s case, of twenty-four months). Judge Arterton relied on the Second Circuit’s direction that “to determine whether [the guidelines enhancement] is applicable, the court should use the preponderance of the evidence standard to determine whether death resulted.” The Court noted that because the guidelines are only advisory, the actual extent of any sentencing enhancement was “largely left to the sentencing court’s discretion.” Judge Arterton explained that she was “free to determine on the basis of all the factors described above (plus any other relevant factors) whether to [impose an enhanced sentence] and if so, how [great].” Recounting the facts and finding that the Government had proven by a preponderance of the evidence that Russow had sold the heroin resulting in R.P’s death, Judge Arterton sentenced Russow to sixty-five months in prison. Had the death not resulted, the Court observed, his offense level would have yielded an advisory guidelines range of forty-one to fifty-one months.
Indeed, whether or not the guidelines provided for an advisory sentence enhancement, Judge Arterton had the lawful discretion to take into account R.P.’s resulting death at Russow’s sentencing. Under federal law, courts have authority to consider the consequences of a defendant’s action—even without proof beyond a reasonable doubt of a causal link—in fashioning a sentence for the crime of which he was convicted.
Now, three years later, the Russow case is routinely cited in the Government’s sentencing memoranda to support a sentencing enhancement or an upward departure from the sentencing guidelines in overdose-death cases. And the district judges frequently impose sentences at the top of the sentencing guidelines range or above that range. For instance, in United States v. Commerford, Judge Alvin W. Thompson imposed a sentence at the top of the range, seventy-one months of imprisonment and six years of supervised release, where the defendant had sold nearly pure fentanyl to his eighteen and sixteen-year-old acquaintances, though it was his twenty-three-year old customer who died. In United States v. Mignani, Judge Jeffrey B. Meyer imposed a sentence of sixty months in jail, above the forty-six-to-fifty-seven month range, where the fifty-year-old defendant had sold heroin that was implicated in two deaths (which were separated by five months). The judge noted that the defendant was a relatively low-level dealer, but continued selling after the first death. In United States v. Cintron, the defendant received from Judge Vanessa L. Bryant a sixty-month sentence, above the thirty-seven to forty-six month guidelines range, for selling heroin that led to the death of eighteen-year old Lukas Breton in East Haddam.
USAO-CT reports that sometimes these cases can have a positive impact on defendants who have hit rock bottom themselves. One example provided to us is the case of United States v. Pettingell, supra page 300. The defendant led investigators to another—more significant—distributor, Reginald Miles, and sought both inpatient and outpatient treatment. The Office eventually agreed to allow Pettingell to plead guilty to a misdemeanor, rather than felony opioid distribution, and he was sentenced to two years’ probation. We were informed that since then he has been “clean,” employed, and taking college classes—“he has literally turned his life around.” Pettingell’s story has been featured in the USAO-CT-created documentary, “The Opioid Crisis Hits Home: Stories from Connecticut.”
Yet in another overdose-death case, United States v. Esposito, the defendant suffered from opioid use disorder and had been struggling for years. Although the federal prosecutor tried to “cooperate” her (whereby it would recommend sentencing leniency in exchange for useful information regarding other drug distributors), this strategy led nowhere, and Esposito was facing six to twelve months at sentencing. In her impact statement submitted to the court, the victim’s mother showed remarkable empathy for the defendant:
Do I blame Ms. Esposito? I might think that she and her family are also dealing with the horrors of drug use: the enormous toll it takes on all. Will a long sentence do anything to help her? Mostly likely not – I do not wish that for her or her family … Mostly, I hope that this event has “awakened” her to the fact that she is human and could hurt herself and more people if she continues on her flawed path.
Judge Alfred V. Covello ultimately sentenced Esposito to six months in prison and, concerned that she had relapsed while on bond, did not permit her to self-surrender. Rather, the defendant was led off in handcuffs when the sentencing proceeding ended, as her mother and the decedent’s mother, who had never met, consoled each other.
3) Discussion
Does it make sense to target smaller-scale distributors where death results, whether by “charging the death” (as federal prosecutors in Kentucky and Ohio routinely do), or just charging the drug distribution itself (as USAO-CT seeks to do in every death case)?
While, as we discuss below, such prosecutions of minor distributors for simple distribution are compatible with the purposes of criminal law, USAO-CT’s strategy of prosecuting based on tragic results that are largely outside of the dealer’s control—as is the case with overdose deaths—provides little general deterrence. Overdose-death prosecutions may bring retributive justice to victims’ families and friends, but such prosecutions represent a policy choice with broader implications. First, given the necessarily limited resources of federal law enforcement agencies, every choice entails opportunity costs. Is investigating and prosecuting opioid-death overdose cases more important than, for instance, devoting additional resources to larger drug-network investigations—or to political corruption prosecutions, for that matter? Second, prosecuting based chiefly on result (rather than conduct and intent), can lead to seemingly arbitrary convictions and create problems of fundamental fairness among defendants. USAO-CT has avoided the worst of these concerns by refusing to trigger § 841(b)(1) (C)’s twenty-year mandatory minimum, but its policies must still be justified in light of the opportunity costs and justice issues noted here.
In many instances throughout criminal law, unintended results should not—and do not—drive prosecution or sentencing. The mens rea with respect to the injurious act is often the crucial indicia of culpability. In other circumstances, however, the simple fact of causation of harm does play a critical role in criminal law. A drunk driver who accidentally injures someone will be treated differently than a drunk driver who swerves but causes no serious bodily injury. Most directly relevant is the law of homicide. Here the harm caused—death—is the sine qua non of the crime itself. While intentional homicide is graded the highest (as murder), even reckless and negligent homicides are criminalized.
By changing its charging policy in overdose-death cases, USAO-CT appears to be seeking to achieve a gradation of culpability and retributive justice similar to that of homicide law. Many of the defendants in these cases are low-level suppliers who were negligent, perhaps reckless, with respect to the deaths caused, but they did not intend to cause the death. Often, there is no evidence that the supplier-defendant knew the lethality of the product he sold, though arguably he should have. Perhaps most problematic, in a good portion of the cases the victims and defendants have undertaken comparable conduct and are largely indistinguishable from one another. This reality greatly exacerbates the fairness issues raised by treating similarly situated dealers differently based on a result (an accidental overdose death) that was outside of the dealer’s control. USAO-CT most commonly charges such individuals with simple distribution, but these defendants previously would not have been federally prosecuted at all, and now are prosecuted only because of the death.
As noted, in no case so far has the evidence or the equities of the overdose death prompted USAO-CT to “charge the death” by seeking a mandatory minimum sentence of twenty years for an opioid dealer. Often, though, the Office will seek a more severe sentence using a variety of sentencing enhancements available under federal law, and when the facts at hand are egregious enough to warrant a significant increase in prison term, sentencing judges are likely to oblige. Take, for instance, the case of Frank Pina, where the defendant was clearly on notice of the extreme potency of the drug he was distributing. Pina himself wound up in the hospital unconscious and unable to breathe as a result of ingesting the drug. Yet upon discharge he immediately sold the same substance to others. One doctor treating Pina in the hospital had warned him that the substance “might contain an adulterant that made it especially dangerous.” The substance was cocaine laced with fentanyl, and Pina’s buyers—not accustomed to the depressant effect of opioids—immediately became ill. In less than twenty-four hours on June 23, 2016, seventeen users in New Haven overdosed, and three of them died. After Pina pled guilty to one count of possession with intent to distribute and one count of distribution of controlled substances, the sentencing judge determined,
[H]e knowingly risked the deaths of those to whom he thereafter sold the product … [and] although all drug selling carries some risk of harm to those who ingest the drugs, the cocaine distribution guideline did not reflect an allowance for the substantial risk knowingly incurred by the defendant in selling to others the same substance that had nearly caused his own death.
Judge Michael P. Shea sentenced Pina to eighty-seven months in prison, a sentence that reflected an upward departure for causing death (under § 5K2.1), and an additional three years beyond the guidelines range—one year, the judge explained, for each of the three victims.
On an intuitive level, directing more resources into small-scale overdose-death prosecutions as the number of these deaths skyrockets has some appeal. If there were ten murders annually in a city the size of New Haven (about one hundred thousand people), for instance, few would want—or see the need for—federal law enforcement involvement. In 2011, however, New Haven had thirty-four murders. Local political leaders and law enforcement sought the assistance of the FBI and the U.S. Attorney’s Office, which initiated “Project Longevity.” Through the Project, USAOCT eventually prosecuted two large organized crime cases—Operation Bloodline (with over one hundred defendants) and Operation Red Side (which solved seven cold-case homicides). The homicide rate in New Haven has steadily declined since, to seven in 2017. The federal prosecutors with whom we spoke believe that local police and law enforcement want the federal government to become proactive, including through individual prosecutions, when the harm to the community has become so pronounced. We note, though, that the ramp up of violent crime prosecution in New Haven beginning in 2011 was done not just because of the harm to the community; it was also consistent with several purposes of the criminal law—general deterrence and incapacitation, as well as just deserts. In the case of prosecuting low-level distributors where death results, however, neither general deterrence nor incapacitation rationales clearly apply. And when retributive justice for the victim’s family is the only purpose, a larger question remains: Should federal prosecutors in the field be primarily responsive to the concerns and needs of the residents of their district, or to national priorities set by Main Justice?
In addition, while bringing overdose-death cases in response to such pronounced local harm represents a legitimate and potentially valuable prosecutorial decision, U.S. Attorneys’ Offices still must consider whether doing so can be justified as a policy decision. We agree, at some level, that “death is different,” but is it different enough to justify taking investigative and prosecutorial resources away from a large-scale trafficking investigation or prosecution of other federal crimes? In other districts, such as Kentucky and Ohio, is death different enough to justify the gulf between no prosecution at all and a twenty-year mandatory minimum?
One question involves resource-allocation, with value judgments inherent in each distributional model. A wide range of allocations may be justifiable, but law enforcement offices should be cognizant that a shift towards a retributive model in this area may bring a corresponding shift away from deterrence and rehabilitation efforts. A second question is largely one of fundamental justice: charging the death (or even simple distribution) in overdose cases is clearly authorized by federal law, but doing so may lead to arbitrary outcomes for supplier-defendants. For this reason, we believe that “charging the death” to trigger the statutory mandatory minimum will almost never be justified; the difference between no prosecution and a twenty-year minimum creates too great of a disparity, especially where the victim and the dealer are similarly situated. By charging only simple distribution and arguing for an enhancement or upward departure from the guidelines at sentencing, USAO-CT has adopted an approach representing a justifiable middle ground that limits potential unfairness to defendants.
Of course, the U.S. Attorney’s Office is not the only law enforcement office in the state. The thirteen Connecticut State’s Attorney offices can also bring charges in these overdose deaths. Often, however, state drug and homicide laws have complications similar to Burrage‘s “but-for” requirement under federal law. Moreover, the penalties are not necessarily higher than those for federal drug-distribution convictions. The expressive value of a state manslaughter conviction may not be worth the added prosecutorial burdens, especially in the face of a relatively short state sentence. Under Connecticut law, for instance, first-degree manslaughter occurs when a person “engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” This statute, which carries a maximum penalty of twenty years in prison, requires the defendant to exhibit extreme indifference to human life. In the context of a drug-overdose death, the Connecticut Supreme Court has interpreted this standard to require proof that the defendant knew that the drug he was selling was unusually toxic. Second-degree manslaughter, which has a maximum penalty of ten years in prison, occurs when a person recklessly (consciously disregarding a substantial and unjustifiable risk of which he is aware) causes the death of another person—also a high standard to meet.
As is true under Burrage‘s “but-for” requirement, another challenge in pursuing state manslaughter charges is proof of proximate cause in a multi-toxicity death. Many cases involve multi-substance toxicity, where heroin or fentanyl is determined to be a contributing factor in the death, but not necessarily a “but-for” cause. In 2017, for instance, about 313 of Connecticut’s opioid deaths involved a benzodiazepine such as Xanax. Thus, when the Danbury State’s Attorney sought a manslaughter arrest warrant for defendant Patrick Hackett—who ultimately pled guilty to sale of narcotics—the state court denied the warrant because “the court did not feel the connection was close enough.” Regardless of the particular challenges involved in bringing state prosecutions in Connecticut, the existence of state law enforcement offices and drug laws suggests another possible middle-ground approach available to federal prosecutors: encouraging state and local investigation and prosecution of overdose deaths, rather than turning them into federal cases.
Prevention and Awareness: HEAT and Other Programs
We believe that criminal law enforcement, both state and federal, has a role to play in combatting the diversion and importation of opioids that have so contributed to the crisis. At its heart, however, the opioid crisis is a public health emergency. Criminal enforcement efforts against distributors, large and small, cannot solve the crisis on its own, and we believe that individuals with opioid abuse disorder have a disease best targeted through medical and psycho-social intervention. Echoing the statements of many other law enforcement officials, the commander of Connecticut’s Statewide Narcotics Task Force, Captain John S. Eckersley, explained: “We have to look at the situation globally. We’re not going to arrest our way out of this.”
1) Community Outreach Efforts
In addition to their investigative and prosecutorial abilities, law enforcement offices can draw on their training, stature, and community relationships to play a pivotal role in promoting prevention, awareness, and safety through activities outside of the criminal arena. In Connecticut, many local law enforcement officials and civic organizations have worked to create community-based strategies for dealing with the “demand” side of the opioid crisis, and USAO-CT has sought to partner with and support these local efforts. Last year, on June 22, 2017, the Connecticut State Police has rolled out a major initiative, CRISIS (Connection to Recovery through Intervention, Support, and Initiating Services), which was honored at the U.S. Attorney’s annual Community Policing Awards Ceremony in October 2017. CRISIS was launched in Griswold as part of the Connecticut State Police’s Statewide Narcotics Task Force. Funded by the U.S. Department of Justice, the initiative is a partnership between state police, mental health and addiction services, and a variety of other non-profit organizations. CRISIS’s team-based approach seeks to provide individuals with substance use disorder the resources to help break their addictions. Substance abusers are referred to treatment after self-identification, patrol outreach by police, or emergency medical personnel. These efforts are seen as less stigmatizing and harmful to the person in need than the other common way that individuals might be referred for treatment—arrest.
Beyond increasing its enforcement in overdose deaths and supporting local community-outreach efforts, USAO-CT has developed its own program that focuses on prevention and awareness. In the last two years, the Office has undertaken a variety of education and prevention-based actions, including creating an opioid awareness video (featuring defendant Pettingell, supra page 302), promoting DEA’s National Prescription Drug Take-Back Days, and participating in and co-sponsoring conferences in order to publicize the nature of the crisis. One of these conferences, The Opioid Crisis in Connecticut, was co-sponsored by Yale Law School in September 2017.
The central component of USAO-CT’s prevention program, though, is its Heroin Education Action Team (HEAT), a replication of the concept first created in the EDKY, supra 297. The Connecticut HEAT was formed in early 2016 in an effort to “reduce the growing harm to Connecticut families and communities caused by heroin/opioid abuse by increasing community understanding of this epidemic.” One of the challenges in combatting the heroin crisis is the lacking of deep public awareness of the significant devastation that any opioid usage can lead to, whether the initial opioid is doctor-prescribed Vicodin or Percocet after wisdom teeth removal, street heroin, or cocaine that has been cut with illicit fentanyl. Many people remain unaware that opioid use and abuse cuts across all demographics—gender, age, race, and socioeconomic class. The goal of programs such as HEAT is to change the public narrative surrounding the opioid crisis. Over time, USAO-CT has built a partnership with some parents and other family members from its overdose cases. The Office believes that these family members are effective messengers, commending these “courageous moms, dads, brothers, sisters and children [willing to] share their story in order to help others avoid the grief of losing a family member from this dangerous epidemic.”
[F]ew AUSAs expected that by becoming federal prosecutors, they would be giving presentations in middle school more often than going to trial.
While USAO-CT hopes to reach as wide an audience as possible—“to inform our communities of what we are up against, and what we can do to fight back”—reaching middle-school and high-school students and their parents has been the top priority. Young people may have access to opioid prescriptions, either from their own doctors or in a family medicine cabinet, and federal statistics show that four out of five new heroin users began with prescription opioids. As their source of legally prescribed pills disappears, they seek to find easier, cheaper alternatives; in the New Haven area, the street price of a 40-mg oxycodone pill can be $40, compared to $5 for an equivalent amount of heroin. Thus, the teenager who begins experimenting with his father’s leftover Vicodin may end up developing a heroin habit, which eventually must be satisfied through street deals, which in turn will often contain unknown but lethal quantities of fentanyl. Federal law enforcement in Connecticut believes that the “underlying problem that increasing numbers of young people quietly are becoming addicted to opioids” must be addressed through prevention and awareness, rather than prosecutions alone.
Since September 2016, USAO-CT has put on HEAT presentations, free of charge, for about 40,000 students in eighty high schools across Connecticut. The typical team consists of a parent who has lost a child to an overdose, the DEA agent who investigated that death, and an AUSA who works on overdose-death prosecutions (though anyone in the Office can—and does—volunteer). At the start of the ninety-minute assembly sessions, the trio will usually screen the FBI and DEA-produced documentary, Chasing the Dragon: The Life of an Opiate Addict, before transitioning into a discussion about avoiding prescription-pill abuse. As part of HEAT, at least ten different civil and criminal prosecutors in the District of Connecticut have done multiple presentations at high schools and middle schools. Though few AUSAs expected that by becoming a federal prosecutor they would be giving presentations in middle school more often than going to trial, this strategy is considered by USAO-CT to be more effective than prosecuting kids in these audiences on the back end.
2) Discussion
We are convinced that HEAT’s prevention-focused approach is a helpful strategy, as disseminating information to schools and communities and building “prevention infrastructure” at worst does no harm. The Office maintains that most parents and children are simply unaware of the dangers of legal prescription opioids, despite the prevalence of their associated harms. In a room of 450 students at Griswold High School, for instance, half of the teenagers raised their hands when asked if they knew someone affected by addiction. One sophomore remarked how surprised she was by the data she heard during the presentation—she “didn’t know how many people this killed.” Whether this teenager’s shock leads to insight, whether it is widely shared, and whether it will alter behavior are unknown. But it is clearly possible that HEAT presentations, especially if accompanied by significant additional measures to change attitudes, could result in a reduction in new opioid users—much as a host of social awareness and other measures have reduced the incidence of initiation of cigarette smoking. As former DEA Acting Administrator Chuck Rosenberg explained to those at the Yale Law School conference in September 2017, it is crucial for people to “educate yourself, and then educate someone you love” about the opioid crisis. By encouraging parents and the broader community to attend its HEAT presentations, USAO-CT has attempted to provide parents and kids with the same language, hopefully sparking communication within families, no matter how awkward or difficult. Though there are many more high schools and localities still to be visited, the Office has at least been able to open a dialogue about addiction in the broader community. HEAT has also led local businesses to donate services. For instance, after the Office did a presentation at East Catholic High School in Manchester, a marketing company offered to help launch a social media campaign of public service announcements (PSAs) featuring HEAT parents and siblings.
With the right curriculum, prevention programs can be effective. Today, however, there is much debate over the effectiveness of “just say no” drug strategies. The well-known Drug Abuse Resistance Education (D.A.R.E.) curriculum (first developed in 1983) has been criticized for not providing opportunities for students to interact with instructors, role-play with peers, and practice the interpersonal skills needed to refuse drugs over a longer period of time and in various difficult environments. Instead, behavioral scientists have been suggesting new approaches to achieve behavior-change, such as hands-on exercises to allow children to rehearse abuse-resistance tactics. Traditional prevention programs, including D.A.R.E., have taken note. The same nonprofit organization that administered D.A.R.E. has created a new course incorporating some of the latest research. The course, “keepin’ it REAL”—which stands for Refuse, Explain, Avoid, and Leave—consists of a ten-week, researcher-designed curriculum that aims to “help kids make smart decisions” about drugs. One report claims that it “has reduced substance abuse and maintained antidrug attitudes over time among students in early trials.”
Similarly, the Office of the Surgeon General (OSG), surveying the latest research, recommends that effective evidenced-based prevention programs should be tailored to particular communities and should build community coalitions to prioritize local needs and implement programs that match those needs. Often, these evidence-based interventions can be improved when communities “have a culture and climate that supports innovation” in their use, and when they have the “budget and skills needed to plan for and monitor the implementation” of programs through follow-up and feedback.
Connecticut’s HEAT program has not been the subject of careful follow-up analysis to determine its effectiveness, and we would urge the Substance Abuse and Mental Health Services Administration (SAMHSA) to provide resources to conduct such research of HEAT and similar programs in order to increase the efficacy of these efforts. Furthermore, while the USAO-CT’s decision to dedicate some of its resources and its AUSAs’ time to promoting prevention and awareness is laudable, its chosen methods may limit the potential benefits. Chasing the Dragon, in particular, with its melodramatic presentation and focus on abstinence, may fail to impress young people. Although DEA and FBI released a discussion guide for Chasing the Dragon, the film’s didactic style might fit more with the D.A.R.E. of the past, rather than the evidence-based programming that is needed. Produced for adolescents, Chasing the Dragon does not strive for nuance, but rather features hyperbolic imagery such as maggots crawling out of an addict’s leg. Public health research suggests that heavy-handed programming with limited follow-up constitutes a suboptimal method of promoting prevention and awareness. Interestingly, AUSAs in Connecticut have told us that sometimes the “heavy hand” of Chasing the Dragon has served as a launching pad for robust discussion with skeptical high-school students. Nevertheless, as long as AUSAs are going to spend time educating schools and communities, their programming ought to take advantage of what public health experts have learned through decades of rigorously studying substance use and abuse.
“The good news,” according to the OSG, “is that there is strong scientific evidence supporting the effectiveness of prevention programs and policies” when they are carried out properly. USAO-CT appears willing to adapt when appropriate, both substantively and in the tools used, and each HEAT presentation is informed by the current challenges facing the state. Two years ago, for instance, counterfeit pills were not seen to be a critical problem, and accordingly, HEAT did not devote time to this danger; recent presentations do address the risks posed by counterfeit pills, which have since inundated the state. Similarly, USAO-CT expects to phase-out Chasing the Dragon since the statistics it offers are dated. There are plans for more sophisticated PSAs through social media platforms as well, but we also wonder: Why it is the U.S. Attorney’s Office, rather than community-based prevention organizations, taking on this role?
Reason for Hope?
On November 29, 2017, Attorney General Sessions announced new tools to combat the crisis, such as the designation of “Opioid Coordinators” and over $7 million in grants from the Community Oriented Policing Services Office to the Anti-Heroin Task Force Program. On December 20, 2017, DOJ created a new senior level position—Director of Opioid Enforcement and Prevention Efforts. Overall, the Attorney General has offered the American public a hopeful message: “In the face of the worst drug crisis in our history, we need to use every lawful tool we have. But I’m convinced this is a winnable war.”
Despite the Attorney General’s optimism, law enforcement indeed has a tough road ahead. In the face of a globalized and multifaceted threat of fentanyl, these initiatives may be woefully inadequate. Customs and Border Patrol have been hard-pressed to stem the influx of opioids from abroad that are key to satisfying the American addiction at home. Domestically, various U.S. Attorney’s Offices have sought deterrence, incapacitation, and punishment through lengthy sentences, but little has changed. In our view, the overwhelming focus going forward should be on prevention and awareness, as well as treatment of those who already have opioid use disorder.
On the last day of his tenure, former DEA Administrator Rosenberg reiterated: “We will not enforce or incarcerate our way out of this mess—not a chance.” And at least in Connecticut, federal law enforcement agrees that the opioid crisis must be addressed, first and foremost, as a public health crisis. Still, the former United States Attorney and AUSAs with whom we spoke believe that their educational interventions in schools and social media supplement can reinforce public health efforts, while their overdose-death prosecutions bring a measure of justice and closure to affected families and communities.
For USAO-CT specifically, the goals should be twofold. First, in prosecuting overdose deaths, the Office must weigh the benefits of retributive justice and the potential drawbacks (such as diverting resources from other investigations and possibly foregoing opportunities for offender rehabilitation); it must ensure a balance that is defensible, not just under traditional criminal law principles, but as judged by the broader community.
Second, USAO-CT should strengthen its outreach efforts, including the HEAT program, by incorporating decades of evidence-based, public health research. On the whole, though, we conclude that federal prosecutors around the country should take note of the Connecticut Office’s public outreach initiatives. By using their law enforcement status and their service-oriented role as a powerful platform, federal prosecutors can raise awareness of the opioid crisis and its consequences, and may even prevent opioid use initiation and new overdose victims.