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States Adopt New Strategies Against Opioids

Lawsuits, murder charges, and syringe exchanges: Cities and states try new tactics against opioid epidemic

For the first time in 30 years, drug overdose deaths in America are on the decline—a drop that some have attributed to the wider distribution of naloxone and new restrictions on prescription opioid painkillers. But this news is tempered by concerns about a rising number of methamphetamine-linked deaths and the continuing presence of synthetic opioids like fentanyl in the drug supply.U.S. Department of Health and Human Services, Centers for Disease Control and Prevention (CDC), “Provisional Drug Overdose Death Counts,” database (Washington, DC: CDC), https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm; Abby Goodnough, Josh Katz, and Margot Sanger-Katz, “Drug Overdose Deaths Drop in U.S. for First Time Since 1990,” New York Times, July 17, 2019, https://www.nytimes.com/interactive/2019/07/17/upshot/drug-overdose-deaths-fall.html; and Abby Goodnough, “A New Drug Scourge: Deaths Involving Meth are Rising Fast,” New York Times, December 17, 2019, https://www.nytimes.com/2019/12/17/health/meth-deaths-opioids.html.Although total drug overdose deaths in the United States dropped by about 5 percent in 2018 (the most recent figures available)—the number of overdose deaths still exceeded 68,000 people.CDC, “Death Counts.”And Black people are making up an increasing share of these deaths: in 2017, the most recent year for which data is available, opioid overdose deaths among Black people rose more than 25 percent.Kaiser Family Foundation (KFF), “Opioid Overdose Deaths by Race/Ethnicity,” database (San Francisco, CA: KFF), https://www.kff.org/other/state-indicator/opioid-overdose-deaths-by-raceethnicity/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D.The crisis not only impacts public health: too often, opioid use disorder leads to criminal justice involvement.See for example William H. Fisher, Nancy Wolff, Albert J. Grudzinskas, Jr. et al, “Drug-Related Arrests in a Cohort of Public Mental Health Service Recipients,” Psychiatric Services58, no. 11 (2007), 1448-1453 and table 3, https://perma.cc/XV82-XES7.On the intersection of addiction and rural incarceration, also see Richard A. Oppel Jr., “‘A Cesspool of a Dungeon’: The Surging Population in Rural Jails,” New York Times, December 13, 2019, https://www.nytimes.com/2019/12/13/us/rural-jails.html.It’s a deadly cycle: a recent study from North Carolina looking at people released from state prison found that they were 40 times as likely to have a fatal opioid overdose within the first two weeks after release as the general population.Shabbar I. Ranapurwala, Meghan E. Shanahan, Apostolos A. Alexandridis et al., “Opioid Overdose Mortality Among Former North Carolina Inmates: 2000–2015,” American Journal of Public Health108 (2018), 1207-1213.

In 2019, jurisdictions across the nation continued to use a variety of tactics in their battles against the opioid epidemic, with varying success. Some enacted controversial laws to charge people who supply the drugs involved in fatal overdoses with murder.Dave Collins, “Should Drug Dealers Be Charged with Murder? States Ponder,” Associated Press, February 25, 2019, https://perma.cc/2YDS-LBA3.Others increased access to syringe exchanges and naloxone, a drug that can reverse opioid overdoses.Max Blau, “Southern States Slowly Embracing Harm Reduction to Curb Opioid Epidemic,” Pew Charitable Trusts, April 15, 2019, https://perma.cc/4KVS-9279.Some even considered establishing supervised injection sites.Lenny Bernstein, “Judge Rules Philadelphia Supervised Injection Site Does Not Violate Federal Law,” Washington Post, October 2, 2019, https://www.washingtonpost.com/health/judge-rules-philadelphia-supervised-injection-site-does-not-violate-federal-law/2019/10/02/7f2cd210-e569-11e9-b403-f738899982d2_story.html.And the federal government, all 50 states, and Washington, DC—as well as a number of cities, counties, and Native American tribes—pursued some combination of criminal investigations and civil lawsuits against pharmaceutical companies.Corinne Ramey, “Federal Prosecutors Launch Criminal Probe of Opioid Makers, Distributors,” Wall Street Journal, November 26, 2019, https://perma.cc/2P23-MW42; Jan Hoffman, “Purdue Pharma Tentatively Settles Thousands of Opioid Cases,” New York Times, September 11, 2019, https://www.nytimes.com/2019/09/11/health/purdue-pharma-opioids-settlement.html; and Jan Hoffman, “$260 Million Opioid Settlement Reached at Last Minute With Big Drug Companies,” New York Times, October 21, 2019, https://www.nytimes.com/2019/10/21/health/opioid-settlement.html.

Some progressive methods of addressing the crisis gained ground in unexpected places. Big cities like Chicago, New York, and San Francisco have been offering resources like syringe exchanges and naloxone distribution for decades, but in recent years, these efforts have expanded to traditionally conservative jurisdictions.Blau, “Southern States Slowly Embracing Harm Reduction,” 2019.In 2014, no southern state provided access to syringe exchanges or naloxone; today, all states in the South let people obtain naloxone without a prescription, and an increasing number are setting up syringe exchanges.Ibid.(Currently, 29 states and the District of Columbia allow syringe exchanges; 12 states—the majority of which are in the South and Midwest—have laws that make them illegal, and nine states permit exchanges based on local ordinances.)amfAR, “National Opioid Epidemic: Syringe Exchange Program Legality,” database (New York: amfAR), https://opioid.amfar.org/indicator/SSP_legality.Georgia and Florida were among the states that approved bills legalizing syringe exchanges in 2019.Georgia HB 217 (2019), http://www.legis.ga.gov/Legislation/en-US/display/20192020/HB/217; and Florida SB 366 (2019), https://perma.cc/J2HA-3PNN And North Carolina, which legalized syringe exchanges three years ago, approved state funding for clean syringes in July; it also decriminalized the use of testing strips that alert people to dangerous contaminants in their drugs.Shelbi Polk, “NC to Pay for Clean Needles Under New State Law to Prevent Opioid Overdoses, Deaths,” News & Observer, July 12, 2019, https://www.newsobserver.com/news/local/article232543287.html.

Another strategy in the fight against fatal overdoses—opening safe injection facilities that allow people to use drugs under the supervision of medical staff—got a significant boost in October when a federal judge ruled that establishing such a site in Philadelphia would not violate the federal Controlled Substances Act.U.S. v. Safehouse, No. 19-0519 (E.D. Pa.) (Order and Memorandum Denying Government’s Motion for Judgement on the Pleadings, filed October 2, 2019), https://perma.cc/94AE-JCSK; 21 U.S.C. § 856; and Bernstein, “Judge Rules Philadelphia Supervised Injection Site,” 2019.The U.S. District Court judge held that while the Controlled Substances Act prohibits operating a facility for the purpose of using illegal drugs, the purpose of the proposed site was not to facilitate the use of drugs but to save lives and help people get into treatment.Christine Vestal, “Philadelphia Could Become the First US City to Host a Safe Injection Site for Drug Users,” Stateline via USA Today, November 18, 2019, https://perma.cc/986C-JPMG.The U.S. Department of Justice (DOJ) had sued for a declaratory judgment against the nonprofit Safehouse in February that would have definitively established that supervised injection sites are illegal under federal law, after the city of Philadelphia said it would not prosecute those who ran the facility or used drugs there.U.S. v. Safehouse, 2019; and Katie Zezima, “Justice Department Sues Philadelphia Over Supervised Injection Facility That Aims to Prevent Fatal Drug Overdoses,” Washington Post,February 6, 2019, https://www.washingtonpost.com/national/justice-department-sues-philadelphia-over-supervised-injection-facility-that-aims-to-prevent-fatal-drug-overdoses/2019/02/06/ed9815a4-2a55-11e9-984d-9b8fba003e81_story.html.The DOJ has vowed to fight the court’s ruling.Vestal, “Philadelphia Could Become the First US City,” 2019.

Despite these advances, states are also increasingly returning to “war on drugs”-era criminal justice responses to the crisis, doubling down on stricter sentencing for those who supply drugs that are involved in fatal overdoses. North Carolina, for example, passed the Death by Distribution Act, which gives prosecutors the option to pursue murder charges against people who supply heroin, fentanyl, and other opioids that lead to deaths—without having to prove the person acted with malice.North Carolina HB 325 (2019), https://perma.cc/W9E9-ACCE; and Tammy Grubb, “New NC Laws Get Tough on Criminals, Drug Dealers and People Who Ignore Child Abuse,” News & Observer, December 2, 2019, https://www.newsobserver.com/news/politics-government/article237916579.html.In response to criticism by advocates like the North Carolina Harm Reduction Coalition that a possible murder charge might make someone afraid to call 911 in the event of an overdose, North Carolina’s new law includes language saying that it does not restrict or interfere with the state’s Good Samaritan laws.Cammie Bellamy, “Prosecutors, Advocates Divided on N.C.’s New Death by Distribution Law,” Star-News, July 18, 2019, https://perma.cc/3TZV-NAHP. North Carolina has a number of overdose prevention laws that have included 911 Good Samaritan law and naloxone-access components, including 2013's SB 20, 2015's SB 154, and 2017's HB 243.But the same advocates have expressed concern that those laws are silent on whether a person who calls 911 and also provided the drugs at issue is protected from prosecution.Bellamy, “Death by Distribution,” 2019.

Twenty-three states, Washington, DC, and the federal government have enacted similar drug-induced homicide laws, and more than a dozen other states use existing manslaughter, felony murder, or other homicide laws for the same purpose.Health in Justice Action Lab and Legal Science, “Drug Induced Homicide Laws,” database (Philadelphia, PA: Temple University Beasley School of Law Center for Health Law, Policy and Practice), dataset updated January 1, 2019, http://www.pdaps.org/datasets/drug-induced-homicide-1529945480-1549313265-1559075032; and Lindsay LaSalle, An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane (New York: Drug Policy Alliance, 2017), https://perma.cc/47RY-4B5M.Opponents, however, say such laws don’t deter people who supply drugs, disproportionately affect people of color, discourage people from calling 911, and too often result in incarceration for the friends and families of overdose victims—people who are often also dealing with substance use issues.Collins, “Should Drug Dealers Be Charged with Murder?” 2019; Aubrey Whelan, “Pa. Is Treating More Opioid Overdoses as Homicides. Defense Lawyers Are Learning to Fight Back,” Philadelphia Inquirer, November 8, 2019, https://perma.cc/3WYM-D8UY; Morgan Godvin, “My Friend and I Both Took Heroin. He Overdosed. Why Was I Charged with His Death?” Washington Post, November 26, 2019, https://www.washingtonpost.com/outlook/my-friend-and-i-both-took-heroin-he-overdosed-why-was-i-charged-for-his-death/2019/11/26/33ca4826-d965-11e9-bfb1-849887369476_story.html; and Rosa Goldensohn, “They Shared Drugs. Someone Died. Does That Make Them Killers?” New York Times, May 25, 2018, https://www.nytimes.com/2018/05/25/us/drug-overdose-prosecution-crime.html/us/drug-overdose-prosecution-crime.html.This last reason was why Virginia Governor Ralph Northam vetoed a bill in May that would have made it a felony murder to make, give, or sell drugs that cause a fatal overdose.Katie O’Connor, “Governor Vetoes Bill That Would Treat Drug Overdose Deaths as Felony Murder,” Virginia Mercury, May 2, 2019, https://perma.cc/WVV5-V99P. For the failed legislation, see Virginia HB 2528 (2019), https://lis.virginia.gov/cgi-bin/legp604.exe?ses=191&typ=bil&val=hb2528. Veto statement available at https://lis.virginia.gov/cgi-bin/legp604.exe?191+amd+HB2528AG.

Perhaps the most significant development in the fight against opioids in 2019 was the action taken against major players in the drug industry, including the launch of a criminal investigation by federal prosecutors into whether opioid makers and distributors intentionally allowed the drugs to flood the market.Ramey, “Federal Prosecutors Launch Criminal Probe,” 2019.In late November, it was reported that at least six drug companies had received federal subpoenas: Mallinckrodt Pharmaceuticals plc, Teva Pharmaceutical Industries Ltd., Johnson & Johnson, Amneal Pharmaceuticals Inc., and wholesale drug distributors McKesson Corp. and AmerisourceBergen Corp.Ibid.; and Lenny Bernstein and Renae Merle, “Six Drug Companies Subpoenaed in Federal Opioids Probe,” Washington Post, November 27, 2019, https://www.washingtonpost.com/health/six-drug-companies-subpoenaed-in-federal-opioids-probe/2019/11/27/745899e6-112e-11ea-bf62-eadd5d11f559_story.html.Separately, Purdue Pharma, maker of the opioid painkiller OxyContin, acknowledged that it is working with the DOJ to resolve a criminal matter.Bernstein and Merle, “Six Drug Companies,” 2019.

But criminal charges weren’t the only way pharmaceutical companies ended up in court in 2019: civil lawsuits also proliferated. In August, a judge in the Cleveland County District Court in Oklahoma ordered Johnson & Johnson to pay the state $572 million in the first trial to hold a drug manufacturer liable for contributing to the crisis.Oklahoma v. Johnson & Johnson, No. CJ-2017-816 (Dist. Ct. Cleveland Co., August 26, 2019) (judgment after nonjury trial), https://perma.cc/7AZV-L22Y; and Jackie Fortier and Brian Mann, “Johnson & Johnson Ordered To Pay Oklahoma $572 Million In Opioid Trial,” National Public Radio (NPR), August 26, 2019, https://perma.cc/X94Q-VPE6.And thousands of consolidated lawsuits brought by cities, counties, tribes, and individuals are still pending, folded into one massive federal case known as the National Prescription Opiate Litigation.National Prescription Opioid Litigation, No. 1:17-MD-2804 (N.D. Ohio), https://perma.cc/6WM7-BDE3. See also Colin Dwyer, “Your Guide to the Massive (and Massively Complex) Opioid Litigation,” NPR, October 15, 2019, https://perma.cc/LSV3-3W2D.This case, overseen by the Northern District of Ohio, compiles cases brought by individual jurisdictions and groups of jurisdictions against one or more manufacturers and distributors of prescription opioids and is likely to take years to litigate as groups of defendants negotiate settlements with individual plaintiffs and some defendants attempt to settle all claims.Brian Mann, “Opioid Trial: 4 Companies Reach Tentative Settlement with Ohio Counties,” NPR, October 21, 2019, https://perma.cc/Y6P3-4EPV; and Lenny Bernstein, Sari Horwitz, and Scott Higham, “Mallinckrodt Reaches Settlement with ‘Bellwether’ Counties in Mammoth Opioid Lawsuit,” Washington Post, September 6, 2019, https://www.washingtonpost.com/health/mallinckrodt-reaches-settlement-with-bellwether-counties-in-mammoth-opioid-lawsuit/2019/09/06/1e8a19f8-d0d9-11e9-b29b-a528dc82154a_story.html.Companies that reached multimillion-dollar civil settlements with local governments in 2019 include Johnson & Johnson; generic manufacturers Mallinckrodt Pharmaceuticals and Teva Pharmaceuticals; and drug distributors McKesson, Cardinal Health, and AmerisourceBergen.Scott Neuman, “In Opioid Settlement, Johnson & Johnson Agrees To Pay Ohio Counties $20 Million,” NPR, October 2, 2019, https://perma.cc/9QZE-23YK; Bernstein, Horwitz, and Higham, “Mallinckrodt Reaches Settlement,” 2019; Hannah Kuchler, “Teva Puts Further $468m Aside for Opioid Settlements,” Financial Times, November 7, 2019, https://perma.cc/3FJN-DGX7; and Hoffman, “$260 Million Opioid Settlement,” 2019.In the meantime, some claims are still proceeding to trial under a carefully managed schedule: two Ohio counties agreed to settle claims on the eve of an October 2019 trial, and a trial against major pharmacy chains including CVS, Rite Aid, and Walgreens has been set for October 2020.Mann, “Tentative Settlement,” 2019; and Lenny Bernstein, “Pharmacy Chains Face October 2020 Trial Over Their Role in the Opioid Crisis,” Washington Post,November 19, 2019, https://www.washingtonpost.com/health/pharmacy-chains-face-october-2020-trial-over-their-role-in-the-opioid-crisis/2019/11/19/61666ee4-0b1b-11ea-bd9d-c628fd48b3a0_story.html.

In September, facing claims from all 50 states and hundreds of local and tribal governments, Purdue Pharma filed for bankruptcy.Tom Hals, “Cracks in Purdue’s Proposed Opioid Settlement as Arizona Backs Out,” Reuters, October 8, 2019, https://perma.cc/RL36-8Q3H.Purdue—as well as its owners, the Sackler family—is attempting to settle the lawsuits for an estimated $10 billion, which includes the donation of drugs for substance use treatment and overdose reversal as well as new ownership for the company, but the settlement is opposed by 25 states.Ibid.; and Renae Merle, “Judge in Purdue Pharma Bankruptcy Case Extends Lawsuit Protection to Sacklers,” Washington Post, November 6, 2019, https://www.washingtonpost.com/business/2019/11/06/judge-purdue-pharma-bankruptcy-extends-lawsuit-protection-sacklers/. The states of Ohio and Kentucky have entered into a separate settlement with Purdue. Hals, “Cracks in Purdue’s Proposed Opioid Settlement,” 2019; Hoffman, “Purdue Pharma Tentatively Settles,” 2019.In October, a federal bankruptcy judge ordered a monthlong halt in legal action by the states in opposition so the company could proceed with the settlement, saying that the costs of litigation were siphoning funds from the company that should be dedicated to the settlement.Mary Williams Walsh, “Judge Orders Pause in Opioid Litigation Against Purdue Pharma and Sacklers,” New York Times, October 11, 2019, https://www.nytimes.com/2019/10/11/health/purdue-bankruptcy-opioids.html.