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Opinion: How judges can fight the opioid epidemic

From The Charleston Gazette-Mail, Gazette Page:

Editor’s Note: This commentary was written by lawyers in the Kanawha County Public Defenders Office: Sara Whitaker, David Anderson, Barbara Brown, Justin Collin, John Danford, David Ford, Iram Hasan, Richard Holicker, Jason Nicholas, Diana Panucci, C. Joan Parker, Susan Settle and Ronni Sheets.

Last month, U.S. District Judge Joseph Goodwin made headlines when he rejected a plea agreement between the federal prosecutor’s office and a defendant accused of selling heroin. The defendant is a 38-year-old man with severe mental health disorders and a history of addiction that dates back to his childhood. In his opinion, Judge Goodwin argued against leniency in the context of our state’s devastating opioid epidemic.

The opioid epidemic is the great moral question for our state, but harsher sentences are not the answer. Substance abuse is a public health crisis that deserves a public health solution.

Judge Goodwin’s opinion takes issue with the asymmetry between the number of original charges filed against the defendant and the single charge to which he ultimately pleaded guilty. Judge Goodwin, like many citizens, looks at that resolution and concludes that a prosecutor must have bargained away charges to avoid trial for the prosecutor’s own convenience, resulting in “leniency” toward the defendant.

There is another explanation.

Over the past two decades, the primary driver of mass incarceration has been prosecutors’ increased willingness to file charges. During that time, crime rates, arrests per crime, prison admissions per felony filing and time served have remained flat or fallen. Yet, the number of prisoners has tripled. Why? Because the number of people charged with felonies has exploded.

Many prosecutors are overcharging, indicting a defendant at a higher-level offense than the evidence warrants or charging the defendant with multiple offenses for a single incident. This has become easier to do, thanks to what federal Judge Alex Kozinski calls “the overcriminalization of virtually every aspect of American life.”

Judge Goodwin notes that a grand jury found probable cause to charge the defendant in this case. But as one judge famously said, “If a district attorney wanted, a grand jury would indict a ham sandwich.”

In a recent year, federal prosecutors asked for grand jury indictments in over 162,000 cases. They were denied only 11 times.

A prosecutor’s virtually unfettered power to charge, combined with harsh mandatory minimum sentences, has made plea agreements the most likely option for avoiding longer, costly prison sentences.

In 2012, the average sentence for federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months). This is because federal sentencing guidelines call for harsher sentences for those who do not “accept responsibility” and insist on exercising their constitutional right to go to trial. Judge Goodwin says he wants more trials. But in this environment, a call for more trials will likely lead to longer sentences or more punitive plea agreements, and not an end to our public health crisis.

But the opinion is also silent on the vital role of the defense attorney, whose job it is to scrutinize the evidence and reveal the weaknesses in the government’s case. In a sentencing memorandum, the defense attorney provided a glimpse of potential weaknesses in the case — credibility issues affecting the government’s witnesses, and a lack of corroborating video evidence traditionally available in these cases — that could make a trial conviction less of a sure thing for the government.

Finally, the opinion overlooks the defendant’s humanity. Instead, this man has been reduced to his criminal record and addiction history. All of us are more than the worst things we have done. And we hope judges take into account the entirety of the person who stands before them.

As the defense sentencing memo revealed, the defendant was born into a poor, overcrowded household, plagued by addiction and domestic violence. Judge Goodwin’s opinion does not mention that the defendant had escaped this home to live on the streets at age 12. Nor is there mention of psychiatric diagnoses of bipolar disorder and schizophrenia — two brutal illnesses that even well-to-do people struggle to manage.

Finally, Judge Goodwin is unmoved by the fact that the defendant himself has been addicted to the same drugs he is accused of selling. That is, the defendant is apparently another victim of the opioid crisis on which Judge Goodwin has focused.

Substance abuse is the defining crisis of our generation. We know that mass incarceration is not the solution, because we have tried it. The number of people imprisoned for drug offenses in this country ballooned from 25,000 in 1980 to 300,000 today. In West Virginia we have more people than ever in prison, yet our fatal overdose rate continues to rise year after year.

Just before Judge Goodwin issued his opinion, the Pew Charitable Trusts announced that a 50-state analysis found “no statistically significant relationship between states’ drug offender imprisonment rates and three measures of drug problems: rates of illicit use, overdose deaths, and arrests.”

Longer sentences do not deter drug crimes. Judge Goodwin acknowledges that his 22 years on the bench have provided him “scant evidence that prohibition is preventing the growth of the demand side of the drug market.” What’s more, mass incarceration is a zero-sum game — especially for defendants addicted to drugs. Every taxpayer dollar we spend on prison for addicts is a dollar not spent on prevention, treatment and the well-being of our citizens.

But we also know what works. And judges can and must play a vital role.

We need judges who will join their colleagues in speaking out against costly and counterproductive mandatory minimum laws, which drive plea negotiations.

We need judges who will demand that drug-addicted defendants spend less time passively languishing in prison cells and more time making things right — through treatment, through restitution to victims and through community service.

Judge Goodwin calls for a criminal justice system that values transparency, public scrutiny and an acknowledgment of the horrible context that is the opioid epidemic. So do we.

The public interest demands a public health solution for a public health crisis. Costly jury trials that lead to harsher sentences will not get us there.


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