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November 2017 , Page 05 

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From the President: Crack, Opioids, and the Modest Reparation of Clemency

By Rick Jones

Read more From the President columns.

In an interview given to Mother Jones in 1989, then-Minority Whip Newt Gingrich described his strategy for the crack cocaine problem — a strategy that called for an increase in prisons, police, prosecutors and law enforcement overall — as “very old-fashioned, because it works.”1 In a rare example of bipartisanship, both sides of the aisle seemed eager to burnish their tough-on-crime bona fides. The 100-to-1 disparity in sentencing between crack and powder cocaine found in the 1986 Anti-Drug Abuse Act was drafted by Democratic Senator Joe Biden.2 The Violent Crime Control and Law Enforcement Act of 1994, which implemented the “three strikes” rule, was signed into law by a Democratic administration with wide support from both sides of the aisle.

Several decades on and these aggressive responses to drugs have arguably proven more damaging than the very substances they were meant to combat. America’s prison population has quintupled, resulting in the United States having the highest incarcerated population in the world.3 The 100-to-1 disparity has translated into an enormous racial disparity.4 The prevalent but erroneous association between crack cocaine and low-income, inner-city neighborhoods has led to African Americans being four times more likely than whites to be picked up for drugs, despite similar rates of drug usage and sale.5 These disparities are compounded by a myriad of collateral consequences that follow a conviction. With the passage of the 1993 Higher Education Act, the government has the ability to delay or deny federal financial aid to anyone ever convicted of a felony or misdemeanor drug offense.6 A drug conviction can lead to eviction of an entire family by the New York City Housing Authority. With little opportunity to successfully reintegrate back into society, many formerly incarcerated individuals are forced back to the very circumstances that led to their incarceration in the first place.

And thus the measured response to the country’s opioid crisis — while its effect is felt overwhelmingly by white Americans — has been troubling for many. To be sure, the opioid crisis has not completely sidestepped African Americans: between 2003 and 2012, for instance, the rate of death among blacks due to prescription opioids grew by more than 500 percent in New York.7 Even so, the effects of opioids are overwhelmingly felt by white America. Including heroin, 90 percent of opioid deaths in 2015 were white.8 In this light, the rhetoric that painted the cocaine epidemic as a law enforcement issue and the opioid epidemic as a public health crisis raises the question of whether race is at the heart of this change in sentiment.

Certain media outlets have begun asking difficult questions about the role they played in framing the rise of crack cocaine. Stories in the late 1980s about children born to drug-using parents, already addicted and destined for physical and environmental suffering, were later found to be based on questionable scientific evidence.9 But the term “crack babies” captured the media’s attention and, in turn, the collective attention of the nation. Rather than presenting a “soft” depiction of cocaine users as victims themselves and documenting the human toll the drug had on individuals, families and communities, the media often took a more combative tone, borrowing from stereotypes of inner-city blight, neglectful parents, and crime.10 Academic studies into journalism reveal a visual archetype for stories about cocaine: neglected locations, poverty, law enforcement and photos shot in low-light or at night.11 Stories about the opioid crisis, however, have pictures of inviting homes, featuring family life and bright colors.12 If one listens to Joe Biden describe the bad information that informed Congress’ response to crack cocaine, it becomes apparent just how damaging a false narrative can be in the hands of the media.13 

But the media is not the only industry contributing to this discrepancy. A closer look at the medical profession suggests that the intersection of race and healthcare has played a fundamental role in how opioids are affecting different demographics. In a 2016 academic study relying on data from the National Hospital Ambulatory Medical Care Survey, black patients at emergency rooms for non-definitive conditions (such as back pain and toothaches) were over 50 percent less likely than white patients to be prescribed opioids.14 With no indication that blacks suffer from pain-inducing injuries and ailments any less than other demographics, some in the medical field suggest that in the absence of objectively apparent conditions such as fractures or kidney stones, doctors must rely on their own judgement.15 Factors they may consider include perceived drug-seeking behavior, provider-patient trust, fear that the patient may become addicted, or fear that the patient may in turn sell the prescription in the underground market.16 

This study, of course, operates under the particular circumstance in which black people are actually able to access healthcare services. In reality, most African Americans are far removed from quality hospitals and health centers. According to the 2011 National Healthcare Quality and Disparities Report, African Americans have 32 percent less access to quality healthcare than whites.17 Eric E. Whitaker, a physician and public health specialist at the University of Chicago, asserted that there is no healthcare system for the 1.1 million residents of Chicago’s South Side.18 The utter lack of accessible healthcare translates to African Americans rarely being prescribed opioids to begin with. Even if they are prescribed an opioid, there is little chance of finding the pain medication nearby. A study in the New England Journal of Medicine found that pharmacies in predominantly nonwhite communities consistently failed to stock opioids.19 Twenty-five percent of pharmacies in predominantly nonwhite neighborhoods (those in which less than 40 percent of residents were white) had adequate opioid supplies, as compared with 72 percent of pharmacies in predominantly white neighborhoods (those in which at least 80 percent of residents were white). The discrepancy in opioid access reveals that the opioid epidemic has strong yet rarely discussed roots in healthcare disparity and racial inequality.

While police interactions have focused the national conversation about implicit bias on law enforcement and criminal justice, the medical community is not immune from its own issues with race. Perhaps counterintuitively, a medical professional’s high degree of scientific training and their faith in their own objectivity may actually work against them in identifying implicit bias.20 Additional risk factors that lend to physicians being susceptible to bias include training that teaches population risk factors, an education that introduces young doctors to stereotype-enforcing conditions and professional time demands that make it easy for doctors to rely on those stereotypes.21 A study by the University of Virginia found that half the sample of white medical students believed at least one of the false physiological stereotypes presented, such as differences in nerve ending sensitivity or skin thickness between races.22 Perhaps most troubling, researchers found that the students endorsing those beliefs were less likely to make the appropriate choice of pain treatment among hypothetical patients.23 

In an op-ed from earlier this year, New Gingrich wrote that the 1980s policies of strong sentences for crack cocaine violations had “failed miserably.”24 Notably, the broader focus of the piece was to urge a measured, compassionate response to the opioid epidemic and one that distinguished those suffering a physiological addiction from those engaged in trafficking. In short, what was being advocated was a complete about-face from the policies levied against crack cocaine users. For his part, in a 2008 Senate hearing on the 100-to-1 ratio, Joe Biden went on the record stating that the disparity was “arbitrary, unnecessary and unjust,” adding that he was “part of the problem.”25 In late October, President Trump designated the opioid epidemic a public health emergency, pledging a public campaign to warn of the dangers of opioids, increased training for federal prescribers and expanding Medicaid-funded drug rehabilitation.26 Absent from the president’s remarks announcing these new initiatives was tough talk about users or a focus on law enforcement. As the country collectively addresses the opioid crisis, it is important to remember just how wrong we got it with the cocaine epidemic and how the worst of those policies are still reverberating through the most vulnerable among us. We must remain objective advocates, holding the justice system, the public and the media to account for allowing unchecked storylines to perpetuate false stereotypes. And as the country wrestles with healthcare legislation, it is important to recognize that the reason African Americans have been spared the worst of the opioid crisis may very well be their poor access to medical treatment to begin with. As we profess to have adopted a more compassionate response to the latest substance abuse epidemic, we must ensure that we continue to correct the disparities created by the mistakes of our past.

NACDL led the effort in beginning to correct those mistakes with its leadership in the Obama-initiated Clemency Project 2014, which led to the pardoning of nearly 900 individuals, with a large percentage of those charged with nonviolent drug crime. That effort involved the unprecedented participation of over 4,000 volunteer attorneys from around the country. Similarly, with New York State leading the way and other states to follow, NACDL is leading a state clemency initiative to again rectify past criminal justice mistakes and correct the disparities created therein. Once again, with the help of volunteer lawyers of all stripes, public defenders, small and solo practitioners and large firm lawyers, we can secure freedom for thousands of individuals who equally deserve our compassion.

Notes 

  1. David Beers, Newt Gingrich: Master of Disaster, Mother Jones, Sept. 1, 1989, http://www.motherjones.com/politics/1989/09/master-disaster.
  2. Federal Cocaine Sentencing Law: Reforming the 100-to-1 Crack/Powder Disparity: Hearing Before the Subcommittee on Crime and Drugs of the S. Committee on the Judiciary, 110th Cong. 2 (2008), https://www.gpo.gov/fdsys/pkg/CHRG-110shrg46050/html/CHRG-110shrg46050.htm.
  3. http://www.alternet.org/story/150785/the_failed_drug_war_has_created_a_human_rights_nightmare_--_how_can_this_happen_in_our_country_and_go_virtually_undiscussed.
  4. In 2010, Congress passed the Fair Sentencing Act (Public Law 111-220), which reduced the penalties for crack cocaine offenses, yielding a crack-to-powder drug quantity ratio of 18-to-1. NACDL has consistently maintained that the only fair crack-to-powder ratio is 1:1.
  5. Ashley Nellis, The Sentencing Project, The Color of Justice: Racial and Ethnic Disparity in State Prisons, June 14, 2016, http://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons.
  6. http://www.huffingtonpost.com/tony-newman/drug-war-consequences_b_2404347.html.
  7. Mark Sharp & Thomas Melnik, CDC, Poisoning Deaths Involving Opioid Analgesics — New York State, 2002-2012, April 17, 2015, https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6414a2.htm.
  8. Kevin McKenzie, Opioid Crisis Points to Racial Divide, USA Today, Mar. 27, 2017, https://www.usatoday.com/story/news/2017/03/27/opioid-crisis-points-racial-divide/99706092.
  9. Retro Report, Crack Babies: A Tale From the Drug Wars, N.Y. Times, https://www.nytimes.com/video/booming/100000002226828/crack-babies-a-tale-from-the-drug-wars.html; see also Douglas J. Besharov, Crack Babies — The Worst Threat Is Mom Herself, Wash. Post, Aug. 6, 1989, https://www.washingtonpost.com/archive/opinions/1989/08/06/crack-babies-the-worst-threat-is-mom-herself/d984f0b2-7598-4dc1-9846-3418df3a5895/?utm_term=.1865415720e9.
  10. Vann R. Newkirk, What the ‘Crack Baby’ Panic Reveals About the Opioid Epidemic, Atlantic, July 16, 2017, https://www.theatlantic.com/politics/archive/2017/07/what-the-crack-baby-panic-reveals-about-the-opioid-epidemic/533763.
  11. Michael Shaw, Photos Reveal Media’s Softer Tone on Opioid Crisis, Colum. Journalism Rev., July 26, 2017, https://www.cjr.org/criticism/opioid-crisis-photos.php?link.
  12. Id.
  13. Supra note 2.
  14. A. Singhal, Y-Y Tien & R.Y. Hsia, Racial-Ethnic Disparities in Opioid Prescriptions at Emergency Department Visits for Conditions Commonly Associated With Prescription Drug Abuse, PLOS ONE, Aug. 8, 2016, http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0159224#abstract0.
  15. Id.
  16. Gina Kolata & Sarah Cohen, Drug Overdoses Propel Rise in Mortality Rates of Young Whites, N.Y. Times, Jan. 16, 2016, https://www.nytimes.com/2016/01/17/science/drug-overdoses-propel-rise-in-mortality-rates-of-young-whites.html.
  17. U.S. Dep’t Health and Human Services, Disparities in Healthcare Quality Among Racial and Ethnic Groups (2011), https://archive.ahrq.gov/research/findings/nhqrdr/nhqrdr11/minority.html.
  18. Peter Slevin, In Chicago, a University Initiative Rethinks Healthcare, Wash. Post, July 25, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/07/24/AR2009072403717.html.
  19. R. Sean Morrison, et al., ‘We Don’t Carry That’ — Failure of Pharmacies in Predominantly Nonwhite Neighborhoods to Stock Opioid Analgesics, New Eng. J. Med., April 6, 2000, http://www.nejm.org/doi/full/10.1056/NEJM200004063421406#t=articleBackground.
  20. Elizabeth N. Chapman, et al., Physicians and Implicit Bias: How Doctors May Unwittingly Perpetuate Health Care Disparities, Nov. 28, 2013, Nat’l Center for Biotechnology Info., https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3797360.
  21. Id.
  22. Kelly M. Hoffman et al., Racial Bias in Pain Assessment and Treatment Recommendations, and False Beliefs About Biological Differences Between Blacks and Whites, Proceedings of the National Academy of Sciences of the United States of America, Vol. 113 No. 16, Apr. 19, 2016.
  23. Id.
  24. Newt Gingrich & Pat Nolan, Gingrich, Nolan: Opioid Additions Won’t Be Cured by Tough Sentences, May 22, 2017, Fox News, http://www.foxnews.com/opinion/2017/05/22/gingrich-nolan-opioid-addictions-wont-be-cured-by-tough-sentences.html.
  25. See supra note 2.
  26. Julie Hirschfeld Davis, Trump Declares Opioid Crisis a ‘Health Emergency’ but Requests No Funds, N.Y. Times, Oct. 26, 2017, https://www.nytimes.com/2017/10/26/us/politics/trump-opioid-crisis.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news&_r=0.

Rick Jones
Neighborhood Defender Service of Harlem
New York, NY
212-876-5500
www.ndsny.org
rjones@ndsny.org

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