Did lawmakers ignore how the country’s illegal opioid market works?

Opioid addiction has ravaged communities, claiming thousands of lives. But now federal lawmakers and policymakers are concerned that they may not be making progress in curbing the tide of addiction.

A report by the Congressional Research Service released last month alleges that most states do not have the legal tools necessary to aggressively address the opioid crisis and generally do not have enough resources to adequately address it.

The findings, reported by CNN, mean that several lawmakers and progressive groups have begun questioning the work of the legal arm of the government to prosecute drug companies.

The Wyden-led Senate subcommittee has been at the forefront of this debate.

In April, the panel held a hearing on a 2017 investigation published by ProPublica into the opioid industry, dubbed “The Battle for the Overdose Epidemic.”

During the hearing, lawmakers asked representatives from law enforcement and state governments if the legal resources available to combat the opioid crisis are sufficient.

The answers given to the subcommittee revealed that, on average, states have nearly one opioid court per 14 counties and hire almost six opioid-specific prosecutors for every 10,000 cases.

However, according to estimates from CRS, some states may have more than double this ratio.

The number of felony convictions “that have a strong likelihood of successfully entering the plea agreement process” also varies widely between states, including Nebraska, Ohio and Michigan.

Ohio had the second-lowest number of misdemeanor cases with a strong likelihood of a diversion agreement and was able to prosecute fewer than 20% of the cases with a strong likelihood of success. This was also the state with the highest number of felony opioids prosecutions.

And though only 45% of cases in New Hampshire resulted in diversion agreements, the state had the most opioid prosecutions per capita. This may mean that state prioritized prosecutions of opioid-related crime and may not have as many naloxone distributors on staff as other states.

Additionally, the 25 largest counties in the US had between 11 and 13 investigators devoted to opioid prosecutions.

The concern raised about prosecutors is significant because many opioid-related drug prosecutions occur under the “robber bar” model, whereby prosecutors face multiple revenue streams and can receive various benefits from a state, including funding and debt reduction.

In addition, it’s unclear whether prosecutors receive reports with state data around the availability of resources and assessment methods to successfully prosecute cases and, even if they do, are able to effectively evaluate these cases for diversion purposes.

According to a report by the Partnership for Drug-Free Kids, 95% of total judicial diversion rates occurred after a diversion agreement had been finalized.

Federal legislation has addressed aspects of this legal structure in the past. The Comprehensive Addiction and Recovery Act of 2015 focused on creating a multi-agency commission with the goal of providing model drug treatment courts to states.

Under this model, the committee not only determines the use of a drug treatment court in a particular state, but it also assesses how to reduce drug-related incarceration and how to fund its creation.

Last week, the Senate Judiciary Committee announced the appointment of Lamar Alexander to serve as the commission’s chairman, along with Iowa Republican Sen. Chuck Grassley. Sen. Patrick Leahy, a Vermont Democrat, will serve as vice chairman.

Feinstein criticized the first panel of commissioners, saying that the bill “established specific criteria for what constitutes a successful diversion agreement” and “essentially predicted the future form of the program.”

“These commission members are not only making assessments based on the evidence, they are making recommendations to the Commission that appear to go against the existing evidence,” she said.

Her concerns are shared by Progressive Democrats of America’s executive director, Ezra Levin, who told CNN that “the crisis is fundamentally a legal crisis, one in which people who are addicted are far more likely to die if they use drugs that are subject to legal restrictions.”

Levin said that groups like his “believe that this legal system has gone awry” and its low rate of diversion can stem from the fact that federal and state laws prevent diversion agreements, instead encouraging defendants to take a plea deal.

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