Criminalizing prescription drug use, distribution: The next frontier for 21st century drug warriors

Should prescription drug abuse be treated primarily as a medical or a criminal justice matter? At the Texas Senate Criminal Justice Committee last week, the answer to that question seemed nearly a faint accompli, with the focus more on tactics and best practices for maximizing prosecutions of doctors and potentially patients. See the Texas Tribune's coverage.

Americans consume 80% of the world's opiates, including 99% of the world's hydrocodone, Dr. Emilie Becker of the Texas Department of State Health Services told the Texas Senate Criminal Justice Committee last week. (Here's the agenda and here's the link to the online video.) In 1990, said Becker, the Center for Disease Control estimated there were  575,000 new opiod users nationally; by 2010 that number had mushroomed to 4.5 million, with the number of drug-related deaths rising with use. She presented this striking chart to the committee, demonstrating that last year, for the first time, drug overdoses eclipsed deaths from firearms and traffic accidents:

Drug Overdoses vs. Firearm, Vehicle Deaths

Via the Houston Chronicle.

Becker said the rise in prescription drug use increased in lockstep with number of people who die from them, but the demographic of people dying of overdoses is changing: It's more likely white, male and middle aged. She cited Austin in particular for a 41% increase in overdose deaths, which she mostly attributed to prescription drugs as opposed to heroin or other illegal drugs. Becker ominously called the "pen" a "deadly instrument in the doctor's office."

One in five Texas teenagers have experimented recreationally with prescription drugs, said Becker. By far the biggest proportion of opiod use among teens was attributed to kids drinking codeine cough syrup. The volume of prescription drugs presently on the market is vast. Sitting unused in US medicine cabinets, she said, is "enough hydrocodone to medicate every American adult 5 mg every 4 hours for 1 month "

Becker's primary suggestions involved better coordination between state regulators and law enforcement, and she agreed with other speakers that the Legislature had so recently passed new enhancements on these topics that one couldn't yet judge the impact of changing the law or what additional changes might be beneficial. But she emphasized that she wanted to target not just doctors at "pill mills" but also physicians who prescribed the pills (presumably in good faith) as part of their regular practice. That seems to step pretty quickly into dicey territory, especially for Republicans who spent the last two years bashing government interfering with the doctor-patient relationship or dictating medical care to physicians.

DPS Col. Steve McCraw continued with the tough talk, declaring, "A pusher is a pusher, a drug trafficker is a drug trafficker whether they've got a lab coat or what." However, he agreed the new laws haven't yet had tie to be fully evaluated and recommended staying the course, though at Sen. Huffman's insistence he said that if the Legislature chose to prioritize this task, it could pony up for more investigators at the agency to target doctors.

Judge Ryan Patrick, son of committee member Sen. Dan Patrick, was appointed by Gov. Rick Perry as a Houston-area district judge, but before that he was prosecuting prescription drug cases. He praised DPS for retraining narcotics investigators to monitor the state's prescription tracking program for doctor shoppers. Thanks to that shift in resources, the Harris DA saw a doubling of cases filed, all with "incredibly high" clearance rates. Most of them focused on people who go to 30-40 doctors and/or pharmacies per month, he said. "The evidence on these cases was terrific."

Multi-agency task forces went after pill mill clinics, said Patrick, but the clinics are getting smart. Some require blood draws, he said, because they know undercover police officers can't get stuck with a needle. Frequently, they're charging higher entrance fees. He said a special exception for nurse practitioners operating clinics created particular headaches. 

Prosecuting pharmacists remains difficult, he said. It requires the DA's office dealing with the administrative boards, which they'd never done before, and administrative regulators to cooperate with law enforcement more than they're used to. It's easier in some instances to prosecute patients. Under the recently enhanced statute, he said, a patient commits a felony if they go to a new doctor for a prescription and don't notify their old one.

According to the state pharmacy board, over one million dosage units were reported pilfered in 2010, declining nearly 50% in 2011. A Houston PD rep testified that recent changes in the law have been effective and suggested no changes to penalty structures, though he recommended more data gathering. Before regulation and recent penalty enhancements, he said, pain clinics would pop up around Houston "like mushrooms after a Texas rainstorm." TCJC's Travis Leet said that already 30% of incoming prison inmates are incarcerated for drugs, 75% of those for low-level possession. He encouraged alternatives to the criminal justice system, particularly for users, noting that returning veterans numbered disproportionately among those addicted to pain killers and other prescription drugs. (See his written testimony.)

Another doctor urged the committee not to interfere with the doctor-patient relationship and that there were still many people out there with "untreated pain." Sen. Huffman insisted that wasn't the intent of the committee, they just wanted to keep such drugs "out of the hands of teenagers, basically" she said. (One notices that doesn't quite get to the white, male, middle aged demographic described by the DSHS as the main prescription drug abusers.)

Finally, Jeannette Moll from the Texas Public Policy Foundation said that this is a different type of crime because most purchasers didn't purchase the drugs illicitly. She called for a statutory presumption that offenders convicted of possession be sentenced to treatment instead of prison. The presumption would not apply to trafficking crimes nor where the judge thinks the defendant poses a danger to society, she suggested. She also advocated a "Good Samaritan" exception be crafted to prescription drug statutes to encourage people to call 911 in response to an overdose.