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ON THE DEFENSIVE: Nation’s opiate epidemic sparks new response

By: Anthony Cotton//June 3, 2014//

ON THE DEFENSIVE: Nation’s opiate epidemic sparks new response

By: Anthony Cotton//June 3, 2014//

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Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.
Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

In the 1980s, America faced a crack cocaine epidemic.

Crack use was confined mostly to urban areas, most of the users were black, and the epidemic was correlated to an increase in crime, especially violent crime.

America’s response, at least on the federal level, was to drastically escalate the penalty structure for those who possessed or dealt small amounts of crack.

Historically, judges have been afforded general sentencing discretion, meaning they can impose a sentence, within a range, as they see fit. But in the ’80s and ’90s, legislators responded to the crack epidemic by setting mandatory-minimum prison terms that judges could not go below.

For example, Congress decided that 5 grams of crack should require a five-year minimum prison sentence and that 50 grams of crack should require a 10-year minimum sentence. Black people were penalized under this myopic framework.

Powder cocaine, which was common among white people, was treated much differently. Congress decided that a five-year minimum prison term would be reserved for only high-level dealers. A person had to possess 500 grams of powder to face five years and had to possess 5 kilograms to face a minimum 10-year sentence.

That disparity soon became known as the 100-to-1 disparity.

With that draconian sentencing structure in place, America embarked on an incarceration program of unprecedented scope. Federal judges often had their hands tied as they were forced to impose life-altering prison sentences against addicts, users and small-time dealers.

But mandatory-minimum sentencing did nothing to reduce the demand for drugs. It did, however, result in a generation of blacks becoming institutionalized.

Now we are faced with an opiate and heroin epidemic that largely afflicts white people in the suburbs. The opiate problem arguably is worse than the crack problem because the dependency is stronger and therefore harder to break.

The collateral consequences to the opiate epidemic are tremendous as businesses and homes are burglarized by addicts desperate to support their addiction.

As a society, our response has been to funnel millions of dollars in federal support to counties around the nation.

Those counties are creating drug-treatment courts to deal with opiate dependency. Other counties have formalized deferred-prosecution programs so addicts can receive treatment in the community rather than being warehoused in prisons.

Unlike the response to the crack epidemic, there almost is no call for escalating the mandatory-minimum penalty structure for addicts and low-level dealers. That change in attitude could be because legislators have learned from the mistakes made in response to the crack problem.

Or attitudes may be changing because, for our legislators, the problem hits closer to home.

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