In heroin debate, a detour from sentencing reform

The scourge of heroin is difficult to overlook in southeastern Louisiana, from an exponential increase in overdoses to an alarming spike in trafficking. The highly addictive narcotic has emerged as an affordable drug of choice and a killer to be reckoned with, gaining new users and fueling the state’s violent crime rate.

Heroin-related deaths soared last year from New Orleans to Baton Rouge, and the drug has shown no signs of loosening its grip as the epidemic spills into more and more parishes. On the verge of panic, authorities are warning of a public health crisis that demands new methods of deterrence.

“When we’re getting to people, they’re dead,” said Col. Mike Edmonson, the State Police superintendent. “When we’re getting to people, the needle is still hanging out of their skin.”

Against this backdrop, law enforcement officials are supporting legislation to drastically increase prison time for heroin dealers and users, including a bill backed by the influential Louisiana Sheriffs’ Association that would impose a mandatory minimum of two years behind bars — without parole — for anyone caught possessing even a small amount of heroin.

House Bill 332 sailed through the House Criminal Justice Committee last week and is attracting bipartisan support, even among lawmakers otherwise skeptical of the “tough-on-crime” policies that have been blamed for Louisiana’s nation-leading incarceration rate.

“I think everybody understands the danger of heroin,” said Rep. Joseph Lopinto, R-Metairie, the committee’s chairman and the author of the bill. “I don’t want to put them away for the rest of their lives, but from the other standpoint, I want to make it enough of a deterrent that when they do get out of prison they say, ‘I’m staying away from that stuff.’ That’s the purpose.”

The proposal, which also would double the mandatory minimum sentence for heroin distribution from five to 10 years, stands in sharp contrast to a package of other legislative measures that aim to reduce the state’s teeming prison population, in part by shortening jail time for nonviolent offenders. And it comes at a time of growing recognition among conservatives and liberals alike that mandatory minimums for drug offenses have strained state coffers while doing little, if anything, to curb crime.

“Louisiana already has the highest incarceration rate in the nation, and part of the reason for that is their history with mandatory minimums for nonviolent drug offenses,” said Lauren Galik, a policy analyst at the Reason Foundation, a libertarian think tank, who has studied the state’s sentencing laws. “It clearly hasn’t served as a deterrent effect if people are still using drugs.”

Ideological collision

The heroin debate comes as lawmakers are considering a raft of “smart-on-crime” proposals geared toward prioritizing prison space for violent offenders and stemming incarceration costs, including legislation that would reduce penalties for marijuana possession and roll back the state’s habitual-offender law as it pertains to nonviolent crimes. The Louisiana Sentencing Commission, which was not asked to weigh in on the issue of heroin, has recommended a bill, sponsored by a Republican lawmaker, that would eliminate a requirement that people convicted of manufacturing methamphetamine serve at least 10 years behind bars without parole.

Opponents of Lopinto’s heroin bill attribute this ideological collision to the widespread fear heroin has sown, a public perception that has elevated the drug into a category of its own. In interviews, the opponents assailed the proposal as a short-sighted reaction that ignores years of studies showing mandatory minimums fall short of their intended purpose. The proposed law would jettison judicial discretion in cases of addicts who need treatment far more than an extended stay in state prison, critics say.

“You can see that these legislators desperately want to get this problem under control, but there is simply no evidence that this proposed solution will actually do what they want it to do,” said Greg Newburn, the Florida project director of Families Against Mandatory Minimums, a national nonprofit group. “We’ve got 40 years of data on the subject, and we know with 100 percent certainty that mandatory minimums do not achieve the effect their proponents intend.”

Lopinto acknowledged that the proposed prison terms are “arbitrary,” but he said a mandatory minimum sentence for heroin possession will ensure heroin users receive sufficient “time for a detox.” He also disputed the assertion that heroin abusers are nonviolent, noting the drug’s connection to other crimes.

“You can put them on probation, but you’re not doing them any penalties,” Lopinto said. “Part of the idea is to give them a lockup from the very beginning. Obviously, these people don’t know it’s dangerous because they’re still putting it in their arm.”

Not all lawmakers are persuaded, and some have sought to emphasize the distinction between users and dealers.

“I have all the sympathy in the world for the addict, and I’d like to see them get treatment, but I have zero sympathy for those who distribute it because they’re distributing a death sentence,” said Sen. Dan Claitor, R-Baton Rouge, who introduced a bill that would increase the maximum sentence for heroin dealers from 50 to 99 years — at least five of which would have to be served without parole.

‘Moving backwards’?

Rep. Patricia Smith, D-Baton Rouge, said the state would be “moving backwards” if Lopinto’s proposal passes. Current law calls for a prison sentence of four to 10 years for heroin possession, but those sentences are often suspended, meaning a defendant is placed on probation. Lopinto’s bill would change the equation by requiring the first two years of any sentence for heroin possession to be served without benefit of parole, probation or suspended sentence.

“I realize heroin is causing some havoc right now in the state,” Smith said. “But we’re just getting to the point where we realize we’ve filled our prisons with a lot of drug offenders, and we don’t provide enough treatment facilities for individuals to get well.”

Like many states, Louisiana has seen a resurgence in heroin due in large part to a coordinated crackdown on prescription-pill abuse. Heroin has been prevalent in New Orleans for the past five years but has increasingly spread into the Baton Rouge area and beyond, authorities say. According to a recent report prepared for law enforcement leaders by the Louisiana State Analytical & Fusion Center, heroin is smuggled into the country and Louisiana via trains, buses, parcel delivery services, private vehicles — especially along the Interstate 10 and 20 corridors — and on commercial flights and even vessels from Colombian ports.

The statistics are staggering. Authorities seized at least 152.45 pounds of heroin in the state last year, compared with 21.48 pounds in 2012 — a 624 percent increase in one year. Heroin today is particularly lethal because of the high purity being peddled on the street, as well as the growing number of inexperienced users who switch to the drug from prescription opioids. Preliminary statistics released last week by the state Department of Health and Hospitals show statewide heroin-related deaths jumped from 12 in 2008 to at least 111 last year.

Aside from the legislative push, prosecutors in some parts of the state, especially Baton Rouge, have been using an obscure provision in Louisiana’s second-degree murder statute to charge dealers accused of providing or administering heroin that can be linked to a fatal overdose, even when the death is unintentional. Testifying before the House committee last week, East Baton Rouge District Attorney Hillar Moore III urged lawmakers to increase heroin sentences “to send a message,” referring to the current state of affairs as a public health crisis.

2001 law to blame?

An increasingly popular refrain among veteran law enforcement officials is that the state invited the return of heroin when legislators passed a law in 2001 that scrubbed life sentences for heroin distribution. While derided by some as draconian, the life sentences had all but eliminated the drug from the state, supporters claim. “Confidential informants validated that distributors wanted no part of any Louisiana heroin market because of the risk,” Pete Adams, the executive director of the Louisiana District Attorneys Association, told The Advocate last year.

Critics contend the heroin market is far more complicated and that the recent explosion is driven by increased availability, lower prices and the state’s efforts to rein in doctor shopping. Dealers already face a mandatory minimum of five years in prison if convicted, they note.

Marjorie Esman, executive director of the American Civil Liberties Union of Louisiana, said the push toward harsher heroin sentences has likely benefited from the fact that no other solutions have been proposed. She said the debate should be focused on how to ensure better treatment for people caught in heroin’s snare, instead of on how long to warehouse them in prison.

“When the only proposal on the table is enhanced sentences, and people recognize there’s a problem and don’t know what else to do, they’re going to do the only thing that’s offered,” Esman said. “I think if an alternative proposal had been made that said we’re going to treat this as a public health crisis, then maybe you might be able to change the conversation.”