ANNAPOLIS – The General Assembly follows trends in handling drug abuse and right now that trend is moving away from harsh penalties, according to the governor’s legislative director Joseph Getty.
Getty said the so-called “heroin homicide” legislation did not make it through this past session in part because the proverbial pendulum is swinging away from mandatory minimums, harsher penalties and creating new crimes. The legislation would have allowed prosecutors to go after heroin and fentanyl dealers whose product led to overdose deaths, with exceptions for users sharing drugs and a Good Samaritan provision to grant immunity if someone calls for help for an overdose.
“Right now the General Assembly is more in a phase of reducing harsh sanctions for criminal activity. We certainly saw that in the legislature this year in the last couple of years, so to create a new offense that’s a harsher penalty – homicide by distribution – in a General Assembly that is eliminating mandatory minimums for drug dealers…it’s hitting the General Assembly in the wrong phase of the pendulum swing,” Getty said.
Members of the Montgomery County Delegation, Senator Susan Lee (D-16) and Delegate Kathleen Dumais (D-15), proposed the bills in their respective chambers. It passed out of committee in the House but failed to go further and Lee withdrew it in the Senate.
Dumais said she supported a multi-faceted approach to solving the “heroin problem” and felt happy this year the legislature passed the Justice Reinvestment Coordinating Council, which will use data to modernize the criminal justice system.
Dumais drafted the heroin legislation with the help of Montgomery County State’s Attorney John McCarthy, who said he never intended the bill to replace treatment and prevention.
To him, the 30-year penalty in the bill is not much compared to the 20 years someone could already get for distributing heroin.
“This was an additional 10 years for taking a life. It’s 10 years for taking a life. I did not think that was Draconian. I did not think that was not well reasoned,” McCarthy said.
But Getty said the General Assembly felt more amenable to a criminal justice system approach during a previous heroin epidemic in the 1990s.
“In the mid-1990s, late-1990s, there was a heroin epidemic not as severe as what we have today, and the General Assembly did move toward the criminal justice side for mandatory minimums for drug dealers (and) making heroin charges a reportable offense to the school system,” Getty said.
The bill this year faced opposition by those who worried it would take the focus off of treatment or persecute users who need help, despite the amendment that clarified the bill only targeted those who profited from heroin and fentanyl, rather than users who happen to share with a friend.
Although he does not know exactly why the bill did not pass, Montgomery County Behavioral Health and Crisis Services Chief Raymond Crowel said he has seen a trend toward treatment and prevention of overdose deaths from heroin and other opiates – a trend he hopes will continue and expand to other sources of addiction.
“I’m hopeful the swing away from criminalization of addiction continues because for a very long time we neglected the treatment system in favor of… locking people away, so this is a long overdue shift,” Crowel said.
McCarthy said he also supported treatment and prevention options, and disagreed with the bill’s opponents who thought it would take the focus off a holistic approach. His office already has programs like drug and truancy court that focus on helping before punishing.
“I reject that it’s one or the other,” he said.
That focus on either/or solutions can also ultimately be harmful when dealing with drug addictions from a policy standpoint, said Eric Wish, director of the Center for Substance Abuse Research at University of Maryland, College Park.
“We are in the middle of a swing away from excessive prohibition to potentially the excesses of harm reduction and hopefully at some point we will reach a moderate position because it takes both approaches to create a safe society,” Wish said.
Wish said that swing between two extremes also happened with cocaine. President Jimmy Carter’s drug czar said he did not understand the focus on cocaine because it was benign, but then that generation had to relearn why it had been considered so dangerous in the first place.
While treatment programs always need more resources, Wish said law enforcement is also a necessary part of the package and can provide a wake-up call for those who need to seek treatment.
“It used to be said in the drug field that people who are heavily dependent need to hit bottom before they have the motivation to change and law enforcement oftentimes is a big component in making someone sort of hit bottom. I know it doesn’t sound nice, but dependence isn’t nice and while it may be an illness, oftentimes it takes strong motivation to go into treatment and to focus on the illness and law enforcement can provide that,” he said.
Wish also gave the example of drug courts, which have proven effective at combining law enforcement and treatment resources.
Robert DuPont, the first director of the National Institute on Drug Abuse, also said the two have to be used to complement each other. He said about 40 percent of people in treatment are there because of the criminal justice system.
“Treatment can do things that law enforcement can’t and law enforcement can do things that treatment can’t,” DuPont said.
When the bill comes back before the legislature in the future, McCarthy said he intends to work harder on educating everyone about the details of the legislation so it is not reduced to “soundbites.”