Stiffer sentences won't get you out of the opioid crisis

A recent decision from the Court of Appeal in British Columbia has ruled that, given the impact of the fentanyl crisis, those convicted of trafficking the drug should face tougher sentences.

The case stems from the conviction of 59-year-old Frank Stanley Smith — who in January of 2015 sold drugs to an undercover police officer in Vancouver's Downtown Eastside.

Smith was arrested, found to be in possession of fentanyl and cocaine, and later pleaded guilty to one count of possession of cocaine and one count of possession of fentanyl. As a first time offender, he was sentenced to six months in prison.

But given the scope of the opioid crisis in B.C., crown lawyers appealed the decision and pushed for the sentencing range — which for other drugs is six to 12 months — to be increased to 18 to 36 months in prison for people convicted of street-level sales or distribution of fentanyl.

"The problem with the sentence that was imposed, from the Crown's perspective, is that it really didn't give recognition to the unprecedented nature of the problem that we're facing with fentanyl distribution in British Columbia, and indeed right across the country," said Paul Riley, the crown prosecutor who brought the appeal forward..

Riley says B.C.'s criminal justice system felt the need to "to show an appropriate response" to the fentanyl crisis by imposing sentences that were truly reflective of the gravity of the offence of trafficking. 

While the decision from the Court of Appeal dismissed the appeal, upholding Smith's six-month sentence, it sided with the prosecution saying that the sentencing range for street-level dealing in fentanyl should be "materially higher than the sentencing range applicable to other dangerous drugs such as heroin." 

The judges also noted that the first two principles of sentencing — denunciation and deterrence — had to be given primacy in cases involving fentanyl.

Sentencing in Canada is guided by the following six overarching principles. 

Mixed reaction

B.C. Minister of Public Safety Mike Morris welcomed the decision from the Court of Appeal.

"I think it's good. These traffickers are targeting the most vulnerable people that we have in society, those that are addicted, and I think this is a step in the right direction."

But to drug policy lawyer Adrienne Smith, the decision and the government's reaction ignores the fact that many street level drug dealers are also addicts themselves.

As a result, Smith is critical of the rationale that stiffer sentences have a deterrent effect.

"Most of the offenders that we are dealing with in this category are like Mr. Smith, who came to be involved in the drug trade as a result of his addiction, because they're paid in money that they can translate into drugs or in the drugs themselves. And until we deal with the underlying issues of those folks, it doesn't matter how many people you throw the book at. That will lead to overcrowded jails, but it won't help the fentanyl epidemic."

Leslie McBain — whose son died in 2014 because of an overdose on prescription opioids — agrees harsher sentencing won't help.

Once she started studying opioids, especially fentanyl, she realized the criminal justice system is not the way to approach a public health crisis.

"We aren't going to arrest our way out of the problem of fentanyl ... the sentencing is what it is, and the criminal justice system is what it is, and they can do what they want, but it's not going to solve the problem," she says.

Why not?

Until you start looking into drug markets and addiction, like McBain did, you wouldn't be blamed for thinking that longer sentencing would have an impact on the sale of fentanyl.

But Leo Beletsky, associate professor in law and health science at Boston's Northeastern University, says that kind of approach doesn't work in the drug market, and certainly not with opioids.

"People who are dependent and or addicted to opioids, those folks are not going to stop using just because of those additional barriers. And when you increase penalties for dealers or when you take dealers out of that commercial arena, because of the demand and the money that can be made, other people will step in."

Beletsky likens the drug market to how pyramid schemes are organized — take out people at the bottom, and there will always be someone else to step in. And even if the criminal justice branch went after the top level organizers of drug trafficking, Beletsky says that's also ineffective since history has shown there is always a deputy that can step in.

"It kind of undermines the whole idea...which is a strategy we've been pursuing for decades now and it hasn't really proved to be effective."

Minister of Public Safety, Mike Morris is skeptical of the criticism that longer sentences are ineffective deterrents.

"I disagree. I think harsher sentences do get people's attention and it provides opportunities. There's a lot of people who are trafficking in various drugs, and the longer the sentence, the longer we have to get them through rehabilitation programs. If they're addicted, we can help them beat their addictions while they're in, so there's a number of thing we can do with that extra time that they might receive" he said.

Adrienne Smith, however, notes that while B.C. has made some gains, it doesn't provide the kind of comprehensive treatment that is needed.  

Beletsky, for his part, says even if the treatment was comprehensive there is a lot of evidence to show that people who are accessing treatment do better when it is voluntary and in the community, rather than coerced and within a prison environment.

Finally, Beletsky says if policy makers and legislators really want to have an impact on the opioid crisis they need to stop engaging in policy theatre — and instead address the root causes of opioid addiction.