Perspective: A simple two-step plan to solve Florida’s opioid crisis

Published April 2 2018
Updated April 6 2018

Even as Florida’s opioid crisis devastates families around the state, there are real, viable solutions that could curb this epidemic, substantially reduce the cascading number of deaths and provide necessary and appropriate treatment for those addicted. They could recover and lead productive lives and not be relegated in life to a choice between prison or death.

There are two primary issues: (1) curbing the supply and unlawful distribution of these killers and (2) providing treatment to those addicted to these drugs.

Regarding prescription pills, the supply and distribution issue should be the simplest to solve. We are not talking about South American drug cartels, cross-border gangs and multinational transit of contraband here. These are all domestically produced substances requiring bona fide prescriptions for access, and the total supply chain, from factory to ingesting them, occurs within our borders.

The state’s prescription registry and documentation of each opioid prescription written and filled within the state already exists, and we are told by those in charge just how terrifically it is working. Statistically, Florida’s share of the most notorious narcotics prescribers has diminished in the last year due to these efforts.

The state authorities should absolutely know by now which doctors are writing the criminally abusive prescriptions and which doctors are improperly prescribing the majority of the pills winding up in the wrong hands. Why aren’t these bad guys being rounded up and prosecuted? The same goes for the pharmaceutical companies and their wholesalers/distributors. Isn’t this what the state is supposed to protect its citizens from —- the extreme harm caused directly by individuals and entities that the state licenses and/or allegedly regulates?

Not so many years ago this writer’s former law firm collaborated with Gov. Lawton Chiles and several motivated legislators to draft, have passed and implemented as Florida law a strategy to recover costs of treatment, state Medicaid expenditures, economic losses and other substantial damages from tobacco companies that had previously escaped liability for the knowing death and injury their products inflicted on Floridians. This plan worked better than anyone could have thought at the time of conception and was the basis for the state recovering tremendous sums of money from the manufacturers of cigarettes.

Today we need a similar strategy to rein in the unlawful proliferation of opioids in Florida. The state could hire top-notch private practice trial lawyers to sue the drug manufacturers and distributors actually responsible for the epidemic. There is virtually no cost to the state or the public and the attorneys only get paid if and when they win the cases and collect the damages awarded by juries.

This model has a proven track record in Florida and only requires passage by the Legislature and the signature of the governor to implement. This is not heavy lifting.

Instead, the solution put forward by a succession of Legislatures and governors has been to criminalize every aspect of the opioid crisis, focusing on incarcerating the victims. Consider the reality of the Florida prison system, which housed under 9,000 inmates in 1970. Since then, the state’s population has nearly tripled. But Florida’s prison population has exploded by more than 11 times to well more than 100,000 inmates.

The obscenity of this fact is that more than one half of Florida’s total prison population is made up of totally nonviolent offenders who have committed crimes of drug use, possession or purchasing, as well as nonviolent property crimes. Major crime in Florida was reduced 52 percent from 1991 through 2010 even as the prison population of nonviolent drug offenders blew up.

Instead of offering treatment and hope to addicted Floridians, the state has created a system to imprison people who are truly sick rather than offering any treatment. It is shameful. Florida leads the nation in incarcerating its own people. More than one out of every 200 people in Florida is in prison, not including thousands more in local jails in pretrial confinement due to the inability to raise bail.

The Department of Corrections spends $2.5 billion a year just to hold 100,000-plus inmates in custody. This is an average of $25,000 per inmate. This amount buys the taxpayers of Florida nothing to help make any of these folks productive citizens, cure their addiction or otherwise address the epidemic. It’s simply a warehouse fee.

Addiction to drugs responds to and can be cured by decent treatment. This is not a revelation to anyone but our political class. Here’s what we should do to start helping the addicted instead of condemning them to the state’s dungeons.

If we take the 22,500 nonviolent drug offenders currently rotting away in Florida’s prisons and place them in outpatient treatment programs where they can live at home or in a halfway house, we have freed up $25,000 for each, totaling $562,500,000, instantly available for treatment, retraining and the hope for a productive future.

If we add to this the nonviolent inmates imprisoned only for property crimes, currently totaling 24,846 inmates at $25,000 apiece, this creates the availability of another $621,150,000, for a total just under $1.2 billion. If we assume that just one in three currently imprisoned for nonviolent drug possession and minor property crimes are immediately eligible for consideration of supervised release, that results in 18,000 Floridians being released to treatment and productivity with an immediate savings of $450 million to be devoted to treatment, rehabilitation and reintegration back into society.

No new taxes are required. This sum is more than 10 times the amount the governor and Legislature have set aside to confront opioids.

Current eligible inmates would be released or resentenced to the auspices of this program, conditioned upon their active, good-faith, successful participation until fully released after completion. They would be supervised and followed by probation officers. Participants would be assigned to community service to cover any restitution ordered by the courts and to earn wages doing work-release activities to prepare for the future.

Future nonviolent drug offenders would be initially directed to the program as is done in similar diversion opportunities before having to proceed through the criminal courts. The court, prosecutors, law enforcement and parole and probation officials will be able to oversee the programs with the time and resources that are freed up by eliminating the criminal prosecutions of these individuals as long as they abide by the requirements of the treatment and diversion plan.

The hundreds of millions of dollars saved annually by not imprisoning nonviolent offenders involving only drug use and addiction as well as minor property offenses would be used to provide treatment and local treatment facilities for outpatient care in local communities. Regional facilities would be established for any necessary intensive, in-patient care and treatment. Halfway house-type housing would also be made available for those requiring living space while undergoing treatment.

These protocols would not just provide long-needed care and treatment but also give those addicted Floridians the hope for and a real chance to get clean and become contributing members of the community and their respective families.

Doing the right thing for our inflicted neighbors will actually cost far less than just tossing them into prison as we do now. The alternative, the status quo, is effectively a long and slow death sentence as well as a capitulation by the rest of us to the ravages of opioids. It is time to make the politicians do their job and protect the most vulnerable of our state. Simple common decency requires no less. Florida should do more than nothing.

Barry Silber is an attorney and businessman in Tampa. He is a former assistant attorney general, Cabinet Affairs attorney during two gubernatorial administrations and Florida Ethics Commission prosecutor, among other positions.

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