Sex Workers Fight Efforts to Link Prostitution with Trafficking

As the campaign against sex trafficking emerges as a $47 million cottage industry, it has also spurred a “moral panic” that sex workers say has made them increasingly vulnerable to police abuse, and turns them into targets for those with religious or moral objections to prostitution.

At the height of national outrage over what government officials and activists call a human trafficking “epidemic,” sex workers are challenging what they say are misleading and harmful efforts to link prostitution to sex trafficking.

“People have used this moral panic, this idea that there is a trafficking epidemic, to create so much funding and so much policy that now that they’re being pressured to show the evidence—to show the sex trafficking arrests,” said Tara Burns, researcher and founding member of the Community United for Safety and Protection (CUSP), a group of former and current Alaska sex workers allied with sex trafficking victims.

“That’s where we see police arresting [prostitutes] for sex trafficking themselves, just so they can get those sex trafficking numbers up, and match the moral panic they’ve created.”

CUSP is lobbying for the passage of companion bills (HB 112/SB 73) in the Alaska Senate and House which would expand sexual assault laws to explicitly prohibit law enforcement from sexual contact with trafficking or domestic violence victims—as part of its continuing campaign to protect sex workers from laws that make them “vulnerable to violence and exploitation.”

In California, another group is challenging a state law that criminalizes prostitution, and asking a federal court to allow for a closer examination of studies that link consensual sex work to sex trafficking.

In January, a three-judge panel in the 9th circuit dismissed a suit by the Sex Workers and Erotic Service Providers Legal, Educational and Research Project (ESPLERP) to declare unconstitutional state laws that make prostitution a crime. The panel sided with 13 state and national organizations that wrote in to oppose ESPLERP, arguing that prostitution needs to remain criminalized in order to combat the “attendant evils” of violence against women, drug abuse—and above all, sex-trafficking.

ESPLERP filed for a rehearing before the full 9th circuit on January 31, wanting the court to subject the studies it cited to a higher standard of review. But in an era when pornography has been declared a “public health crisis” linked to modern-day slavery, researchers who do not openly condemn prostitution are fighting an uphill battle—and sex workers themselves find it hard to be heard over the din of victims’ advocates who would speak for them.

9th circuit

ESPLERP members and their legal team in court on Oct 2, 2017. Photo courtesy of Maxine Doogan

Maxine Doogan, founder of ESPLERP, says that denying sex workers equal protection under the law has led directly to abuse by police and other authorities, and that she and other people in the industry cannot report actual cases of forced trafficking without fearing arrest themselves.

“There are many people, many women, that I know who are prostitutes, who have been caught up in these prostitution sting operations; and have been sexually assaulted by the police, and raped,” she said in an interview with The Crime Report.

“Our activity is illegal. and so that just gives license for anybody to do anything to us that they want at any time, and get away with it.”

In the document submitted to the California court, opposition groups argued that “prostitution is sexual coercion, and closely related to sex trafficking,” and that “decriminalization of prostitution will legitimize sex trafficking.”

The authors of the opposition brief cited numerous “authorities” for their argument, identifying in particular eight publications by Melissa Farley, a clinical psychologist and anti-pornography activist well known for her view that sex work is “a particularly lethal form of male violence against women,” and an expression of “male hatred of the female body.”

“To the extent that any woman is assumed to have freely chosen prostitution, then it follows that enjoyment of domination and rape are in her nature,” Farley wrote in a 2000 article for Women & Criminal Justice.

But according to independent scholars in the field, the majority of the publications cited in the opposition brief have not only been debunked, but also discredited in the Canadian Supreme Court during cross-examination. The court subsequently struck down Canada’s anti-prostitution laws, finding them unconstitutional because of the negative impact they had on the safety and lives of sex workers.

Doogan notes that victim advocates are “not challenging the men who really have control over our world.”

She added: “They want to dismiss the sexual violence that we’re talking about that goes on with police.”

Doogan and other sex-worker advocates argue that the majority of people being rounded up and arrested during anti-sex-trafficking sweeps such as Operation Cross Country are not slaves held in bondage, but women working together, or as independent prostitutes– a claim supported by investigative journalists following this arrest data.

CUSP’s Terra Burns, who has analyzed thousands of charging documents from several states over the past five years, said that the most serious cases of child sex trafficking “are for the most part not cases that are being found in prostitution stings, [but] cases that are being found because somebody came forward and made a report.”

And in jurisdictions that aren’t aggressively charging people for prostitution, more sex workers are coming to police with tips, she added.

Burns, who herself was sex trafficked as a child, has lobbied extensively for legislative amendments in Alaska. She helped push through bills at the state and county level to allow immunity for sex workers reporting a crime, and hopes Alaska legislators will place priority on the proposed measure to make it illegal for police to sexually penetrate someone they were investigating.

“When an officer coerces you into having sex with him under the threat of arrest, or another kind of threat, that is an act of violence,” Burns said.

Police don’t need to have sex with someone in order to charge them with prostitution, but it happens. She describes one charging document where a police officer paid for a hand job at a massage parlor. “They could have arrested her right there, but instead he waited and got a hand job. and then he put her in handcuffs. And when that happens, it’s really traumatic.”

alaska legislature

Doogan (left) and Burns, introducing their first bills. Photo courtesy of Terra Burns

Other charging documents, published on CUSP’s website, describe police having multiple sex acts with women before arresting them.

The Alaska Department of Law as well as the Anchorage police continue to oppose the no-sexual-contact bill, and it has stalled for almost a year.

See also: ‘Invisible No More:’ The Other Women #MeToo Should Defend

In addition to government task forces, the anti-trafficking movement has also created a $47 million cottage industry of victim advocacy.

Significantly, in order to receive funding, organizations are still being asked to sign a Bush-era anti-prostitution pledge (also known as the “global gag rule”), even though it was ruled unconstitutional in a 2013 Supreme Court decision.

The same goes for researchers, according to George Washington University sociologist Ronald Weitzer, who has studied the sex industry and human trafficking for over three decades, and who served as an expert witness in the case before Canada’s Supreme Court. Before the gag rule was overturned, he was asked to sign the pledge in order to conduct an academic literature review for the National Institute of Justice.

“It’s shocking that even something as mundane as a literature review in this area becomes politicized,” he told The Crime Report.

More recent examples include University of Nevada researcher Barbara Brent, who was part of a 2014 task force developing a trafficking education program for first responders in Nevada.

In an email to The Crime Report, she wrote: “Participants, including Las Vegas Metropolitan Police, who receive federal trafficking funds, indicated that I could not include sex worker rights organizations on the team to develop programs because that violated their grant agreement. The task force eventually fizzled out, and I don’t know what happened to those efforts.”

Last year, the New Hampshire Human Trafficking Collaborative Task Force broke ties with its grants manager, Kate D’Amato, for apparently supporting decriminalization during a public event. The Manchester Police Department said D’Amato’s opinions violated a federal grant, though it is unclear whether that claim was ever challenged.

“What it means is often you’ll get religious or evangelical organizations, both in the US and internationally, to get funding for anti-trafficking work but have very little expertise in the area,” said Weitzer.

“And this was a major criticism of the bush administration funding for many of these anti-trafficking organizations during that period.”

For example: Priceless Alaska, a Christian anti- trafficking organization that works closely with law enforcement, engages a team of volunteer mentors to work with trafficking victims. By way of preparation, mentors receive a three-day training. According to its website, the training “focuses on the mentor’s personal spiritual development first and sex trafficking-specific training second.”

Among the organizations that signed on to the ESPLERP opposition brief was Covenant House, the largest privately funded agency in the US that provides services to homeless and runaway youth. Last year, Covenant House worked with Loyola University to produce a multi-city report on forced labor and sex trafficking. The report claims that one in every 5 homeless youth are victims of human trafficking.

In Anchorage, that number was even higher: “Study: 1 in 4 homeless youths in Anchorage victims of human trafficking,” the local headline read.

But Burns, who has been collecting state and county arrest records for over five years, says that the data don’t add up, and that the report is intentionally misleading.

“Nobody’s been charged with trafficking a minor in Alaska since 2008,” she told The Crime Report.

In 2014, following the national trend, Alaska created the Special Crimes Investigation Unit, which is devoted to finding and rescuing juveniles who are being trafficked for commercial sex.

“They’ve existed with that mission for four years now,” said Burns, “and have yet to charge anybody with trafficking a minor.”

The problem with the Loyola report, according to Burns, is the way it switches between various definitions of a sex trafficking victim; from youth that are not involved in the commercial sex industry at all, “youths that are underage and just trading sex for survival means,” and youths who are being coerced or held in bondage and commercially trafficked.

“If [Loyola researchers] had talked to a youth who actively had a violent pimp, they would have had to report that to police and the police would have gone in— because they’ve been looking to charge somebody with trafficking a minor, obviously, to support all this rhetoric. We would see some charges if it were actually going on in that way,” Burns said.

But when “you’re not being honest about what you’re actually talking about, and then you’re turning around and saying ‘oh these kids are being kidnapped by pimps and forced into prostitution’— then the policy that ends up being created is not going to serve those actually kids that really exist–that are out there having survival sex right now.”

Fundamentally, Burns believes that this study—and others like it—are compromised by the “religious agenda” underlying the moral campaign.

“Covenant House and Loyola University are both religious organizations who have a religious agenda to prevent other people from having sex that they disapprove of,” she said.

What Burns has found by looking at thousands of charging documents is that the majority of people arrested in “sex trafficking” stings are women working together as prostitutes, or with a driver—both things that increase safety in the sex industry, she says.

Just three people were charged with sex trafficking in the first two years of Alaska’s new sex-trafficking law. One was a dancer charged with sex trafficking herself, according records Burns obtained.

Another was Amber Batts, the owner of the online escort service Sensual Alaska. Prosecutors were unable to charge her with force, fraud, or coercion, since people were working for the service of their own free will– but they still convicted her on charges of 2nd degree sex trafficking. She was sentenced to five years in prison.

“When you think of sex trafficking, you think of people that are held against their will and made to do things that they don’t want to do,” Batts’ sister, Tiana Escalante, told The Crime Report.

Escalante described being shocked to learn that a woman can be charged with sex trafficking in Alaska for a consensual act—even when she is working independently.

“I think it’s kind of outrageous. It’s her body, her right to choose.”

Meanwhile, despite the funding for sex trafficking “rescue” operations, Burns says that as a first responder she has been unable to get law enforcement to investigate two recent cases where victims were held against their will and sold for sex. In the first case, she said the FBI told her there was not enough evidence.

“I’ve been involved in or around criminal investigations for quite a bit,” she said. “There was so much evidence, there were text messages.”

In the second case, she said, despite having an admission from a violent pimp on social media, “the FBI told me they didn’t have time.”

A year ago, Burns helped one victim who was violently trafficked make a report to the FBI, and managed to get her money from the state Victims of Violent Crimes Compensation Fund.

“But the people from the violent crime compensation board actually called me up and let me know, ‘you won’t be able to receive this money on her behalf because we can’t give money to organizations that don’t oppose prostitution,’” she said.

Describing people who have illegal sex as being incapable of making a choice, or too corrupted to understand their own victimhood, isn’t a new strategy.

“It’s very similar if you look at the history of the laws against gay sex and the stigma around gay people… you look back and remember [people said] ‘well, there’s only gay because they were abused as children. And so the gay people are going to go out and they’re going to rape our children,’” Burns said.

“That’s the same kind of stigma that we see around the sex work. Well, prostitutes are all either victims, or they started out as victims and now they’re going to go and victimize somebody else.

“Imagine if you saw the same kind of rhetoric around domestic violence victims. Saying that domestic violence victims need to be arrested because they’re too morally damaged to know what’s good for them.”

This is precisely what Doogan and her cohort are trying to face down in court. As a sex worker and founder of ESPLERP, she insists that she is not a victim.

“If you were a victim advocate, I wouldn’t even bother talking to you,” she told The Crime Report. She calls them the “Anti’s.” “I think that they’re extremely tone deaf.”

“They’re treating us like the sex slaves that they think that we are. That’s the problem with their approach. I stopped talking to them because they don’t want to hear, and take responsibility for their own exploitative behavior.”

Members of the media are some of the worst perpetrators of this narrative violence, says Doogan, “renaming us, reclassifying us, stripping us of our agency.

“We have been barred from our own authority on these issues.”

Those interested in watching oral arguments in ESPLERP v. Gascon can view them here. Victoria Mckenzie is Deputy Editor of The Crime Report. She welcomes readers’ comments. 


Do Orders of Protection Actually Shield Victims?

It’s easy to see why the victims of domestic violence may see getting protective orders as a waste of time. But although there are limits to the protections such orders offer, they’re still valuable tools that can help keep victims safe, writes TCR’s legal affairs columnist.

In December, 2017, Madonna McGuire was killed in her Florida home by her estranged husband, who then killed himself.

Shaekeya Gay was shot to death in August 2017 outside her job in North Carolina by her estranged boyfriend of two years, with whom she’d lived. He’s now facing charges for her murder.

In June 2016, Stephanie Goodloe was shot and killed by her ex-boyfriend in the bedroom of her home in Washington, DC. He was arrested and charged with murder.

Cassie Wagner was murdered in Oregon in September 2014 by her ex-boyfriend of 11 years.

Aside from being examples of incidents of domestic violence that ended tragically, the above situations have another fact in common: In each case, the victim had a protective order against the man who ultimately ended her life.

So, if you were an abused woman and read these kinds of stories, would you even bother getting such an order against your abuser?

It’s easy to see why the victims of domestic violence may see getting protective orders as a waste of time. But although there are limits to the protections such orders offer, they’re still valuable tools that can help keep victims safe.

Protective orders—also called orders of protection or restraining orders, depending on the jurisdiction—are intended to restrain the person to which they’re issued from harassing, attacking, stalking, threatening, contacting or coming near the target of the abuse as well as her home, workplace, school, etc. These orders can also extend such protections to children and even pets in some cases and states.

Although domestic violence cases stereotypically involve spouses, most states permit the issuance of protective orders in cases involving various types of close relationships.

For example, according to, in California, you can file for a domestic violence restraining order if you or your minor child have been the victims of domestic violence from:

  • A spouse or former spouse;
  • A person you’re dating or used to date, including a same-sex partner;
  • The mother or father of your child;
  • A person related to you by blood, marriage or adoption (such as a mother, father, child, brother, sister, grandparent or in-law); and
  • A person who regularly lives or used to live in your home.

There are both criminal and civil protective orders. To get an order against an abuser, you may need to have a pending case involving that individual in either criminal or civil court, such as an open assault case or child custody dispute. In other words, a judge often can’t just issue you a protective order in a vacuum—the order may need to be connected to an existing court case. (Emergency restraining orders are an exception to that general rule.)

Temporary protective orders typically last for the period of time between court dates on the related case and may need to be renewed at each subsequent court appearance. In some instances, an emergency order may only be in effect until a full hearing can be held on the need for such an order.

When the underlying case is resolved with, say, a guilty plea or a settlement, the court may issue the victim a final or permanent protective order. However, even so-called “permanent” orders aren’t usually permanent.

For instance, in New York, a final order of protection will often be granted for up to two years. But if the judge determines that one or more “aggravating circumstances” exist, such as the abuser’s use of a weapon, the order may be issued for up to five years. Note that some states, such as Florida, do permit the issuance of final protective orders without an expiration date.

Protective orders aren’t a cure-all. First, the orders typically bar the abuser from doing things that are already illegal, such as assaulting or harassing the victim, so they’re redundant in that respect.

Second, protective orders are only effective if the abuser feels compelled to comply with them. When such orders are issued in relation to a criminal case, the abuser has already shown a willingness to violate the law. Thus, it may be unreasonable to expect him to feel bound to comply with the terms of a piece of paper.

Third, the fact that the penalties for violations of protective orders aren’t that harsh—and are usually much less severe than the penalties for any abusive behavior—weakens their effectiveness as a deterrent of such behavior.

For example, at least two other women had filed for protective orders against Cassie Wagner’s ex-boyfriend, claiming similar threats or abuse at his hands. But when he violated Wagner’s order, he merely got probation. And 40 days after she became the third woman issued a protective order against him, she was dead.

Lastly, getting a protective order can sometimes make a bad situation worse by actually triggering a violent reaction by the abuser, especially if he’s surprised by the request.

(Note that research shows that if an abuser has a firearm, the likelihood of a fatality increases dramatically. Under the federal Violence Against Women Act, individuals who are the subject of a qualifying domestic violence protective order are barred from possessing firearms. However, enforcement of that ban has proved challenging—and is a topic that’s too complex for the scope of this article.)

Despite the above issues, victims of domestic violence should at least consider getting a protective order, says Susan Keilitz, JD, Principal Court Research Consultant at the National Center for State Courts and an expert on civil protection orders.

Several studies have found that despite the aforementioned issues, protective orders are effective.

For example, a 2004 study of 150 urban, abused women who applied for a two-year protection order against an intimate partner found significant reductions in threats of assault, physical assault, stalking and workplace harassment during the subsequent 18 months—even if the woman wasn’t ultimately granted the protection order.

The researchers concluded that the protection order was essentially an announcement that the abused woman refused to “take it” anymore and was acting on her own behalf. So, once a woman applied and qualified for a protection order, “a rapid and significant decline in violence scores occurred and was sustained for 18 months.”

Keilitz agrees that getting a civil or criminal protective order can be empowering for the victim, increasing their agency. “A protection order is a really important way that a survivor can try to take matters into his or her own hands and direct the kind of relief that they would like to have,” she explains. Thus, such orders shouldn’t be forced on a survivor—they should be voluntary, she believes.

In addition, getting such an order is a way to get the abuser’s attention and make him realize the seriousness of his behavior, adds Keilitz. And protective orders may give victims access to other kinds of relief, such as economic relief or compensation for property damage.

One of the benefits of having a protective order is that a violation of such an order is a crime in and of itself, separate from any other related charges. These violations may be easier to prove than the criminal charges that led to the issuance of the order in the first place—and may not even require the victim’s testimony.

For instance, suppose an abuser violated a protective order by going to the victim’s workplace, which was prohibited by the order. The prosecution may be able to prove that violation with, say, video surveillance of the workplace’s parking lot or the testimony of a security guard, who saw the abuser.

Thus, it’s critical that the police take these orders seriously and act appropriately when abusers violate them. In fact, in some states, the police are required to arrest the violators of protective orders.

For instance, in New York, the police must arrest an individual if the victim and that individual are members of the same family/household or are intimate partners, and an Order of Protection was violated.

But too often, the police fail to act when protective orders are violated.

For example, after Stephanie Goodloe got an emergency protective order against her ex-boyfriend, she notified the police that he was violating the order by calling her from multiple phone numbers and showing up at her home. She later called the police again to report more violations, saying he had called her at work and told her she should leave DC because he would send people to hurt her. The next day, Goodloe was killed.

Some government officials are trying to improve efforts to enforce protective orders and adequately protect those who hold them.

One tool some states and jurisdictions have embraced is the use of GPS monitoring of the targets of protective orders.

For instance, the Memphis Police Department has launched a three-year pilot program in which GPS ankle bracelets are being used to track the offenders in domestic violence cases. The devices are monitored 24 hours a day by a private company, which notifies the police when the offender enters an “exclusion zone.” So far, the program has resulted in 160 arrests.

However, GPS monitoring is not a perfect solution, either.

For example, when Madonna McGuire’s husband killed her, he was wearing a court-ordered ankle monitor and was in a prohibited area. But the company monitoring his whereabouts never notified the court that he was in an exclusionary zone and thus in violation of the protective order. (The court recently terminated its contract with that company.)

Keilitz notes that GPS monitoring can be effective but it’s expensive. She believes it should be reserved for the riskiest, most dangerous cases because it can be overkill.

There are things that the victims of domestic violence can do themselves, however, to increase the effectiveness of protective orders and ensure their own safety.

“I think you need to let as many people know that you have a protection order. including your employer, your child’s school and anywhere that you go regularly,” says Keilitz.

Give them a copy of the order and carry a copy on you at all times. People such as your friends, employer, neighbors, doormen, etc. can keep an eye out for your abuser and not let him in or notify the police if he shows up somewhere he’s not supposed to be.

After all, the victims of domestic violence are not always attacked at home. Remember that Shaekeya Gay was killed outside her job while on a break.

In addition, it’s important to keep a record of any and all violations of the order, no matter how small or innocuous, and to report certain violations to the court or the police, advises Keilitz. For example, while you might simply document the abuser’s failure to make a payment required by the order, you should notify the police if he shows up at your home or another location barred by the order.

Also, Keilitz warns that victims should avoid engaging with or encouraging their abuser, such as responding to his calls or texts. She explains that you don’t want to give him a window to say, “Well, she called me, so I thought she wanted to get back together.”

If you genuinely want to reconcile with your abuser, apply to alter the order’s terms or to remove the order completely, advises Keilitz.

Keilitz also suggests that victims stay in touch with domestic violence advocates or victim witness services, who can provide various kinds of assistance.

But perhaps the most important thing you can do is to recognize that the protective order should be just one element in your safety plan—don’t rely on it alone. “There is no halo of protection around a person just because they have a protection order,” observes Keilitz.

According to a 2010 review of studies on restraining orders, which was published in the Journal of the American Academy of Psychiatry and the Law, “protection orders are not a panacea…they are only one [emphasis added] component of any effective threat-management strategy.”

Keilitz says the best thing for a survivor is to have a safety plan, and to have thought out what they will do in certain circumstances and what their various options are down the line.

Victims should work with law enforcement officials, agencies and/or domestic violence advocates to develop a comprehensive plan, which may include counseling, job assistance, housing, and additional safety steps such as changing your phone numbers and email address.

Robin Barton

Robin L. Barton

Bottom line: Despite the issues and limitations, if you’re a victim of domestic violence and qualify for a protective order, you should seriously consider getting one with the advice of domestic violence experts and advocates.

But recognize that such orders are just one arrow in the quiver of protections for these vulnerable individuals and shouldn’t be relied on as the sole defense.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.


How We Win the Opioid War: Report

The Sentencing Project released a report Wednesday assailing the grievous lack of medical treatment for addiction in prisons and jails, hours before the newly appointed Bureau of Prisons director was scheduled to testify before the House of Representatives.

A national advocacy group released a report Wednesday assailing the grievous lack of medical treatment for addiction in prisons and jails, hours before the newly appointed Bureau of Prisons director was scheduled to testify before the House of Representatives.


Table courtesy of The Sentencing Project


While expanded use of drug courts helps divert people from the criminal justice system, authors of the Sentencing Project report excoriated policies that they said  limit treatment within the correctional environment, arguing that lawmakers need to get on board with evidence-based methods in the war on opioids.

The report calls on the federal Bureau of Prisons, state prisons and local jails to follow recommendations of the President’s Commission on Combating Drug Addiction and the Opioid Crisis to increase access to medication-assisted treatment, particularly the use of substitutions such as methadone or buprenorphine.

This treatment is also backed by the Centers for Disease Control, the National Institute on Drug Abuse, and the World Health Organization.

A majority of the roughly 2.2 million people incarcerated in the U.S. report having a drug addiction, according to the most recent data from the Bureau of Justice Statistics; from 58 percent of people in state prisons, to 63 percent of those serving time in jail.

Talk therapy, support groups, and “drug education” are not enough to combat an epidemic that kills at least 91 Americans every day, according to researchers at the National Center on Addiction and Substance Abuse at Columbia University.

Decades of empirical research and the “reflections of police chiefs” show that last century’s punitive War on Drugs model was not effective in reducing either drug use or crime, according to the report.

Authors note that the Mental Health Parity and Addiction Equity Act gives us legislative tools to help close the treatment gap, but are widely under-enforced. The report emphasizes for the population at large, cutbacks to health care coverage provided by the Affordable Care Act are creating the larges barrier to treatment.

This summary was prepared by Victoria Mckenzie, Deputy Editor of The Crime Report. Click here to view the full report, Opioids: Treating an Illness, Ending a War by Ghandnoosh and Casey Anderson, Program Associate at The Sentencing Project.



Fentanyl Spread ‘Alarming,’ Washington Hearing is Told

A U.S. Sentencing Commission hearing was told Tuesday that customs and border patrol agents had seen a “dramatic increase in seizures” of fentanyl and its analogues, from one kilogram in fiscal year 2013, to 208 kilograms in 2016, to 550 kilograms in 2017—a 160 percent increase over the previous year.

Medical and law enforcement experts gathered before the United States Sentencing Commission (USSC) on Thursday to testify on the nation’s growing fentanyl epidemic, in what was the third hearing on synthetic drugs held by the Commission this year.

Over the course of the morning, a group of nine doctors, chemists, emergency medical staff and law enforcement agents discussed the chemical structure, trafficking patterns, and impact of fentanyl and fentanyl analogues, widely believed to be responsible for the sudden acceleration of fatal drug overdoses in recent years.

The latest round of expert testimony still shows this class of drug to be a mercurial and proliferating enemy, due to fentanyl’s extreme potency and the ease with which it can be chemically modified and moved across global markets.

According to CDC data, 33,000 U.S. citizens died of opioid-related deaths in 2015, a number which has quadrupled since 1999; when the The New York times crunched state-level data, it estimated that fentanyl and its analogues caused 20,000 deaths that same year.

But according to statements by Washington D.C.’s chief medical examiner Roger Mitchell Thursday, national data doesn’t provide the full picture.

“Many medical examiners and coroners are not listing each drug on their death certificate,” Marshall told the Commission during the hearing, which was broadcast live over the internet.

He said they fill out their reports “using terms like ‘mixed drug toxicity’ accident,” so there is no way to know which combination of drugs caused the death. For better detail, Marshall added, you have to turn to local jurisdictions.

According to Mitchell, Washington, DC saw a 178 percent increase in fatal opioid overdoses between 2014 and 2016, with 62 percent of cases involving fentanyl or fentanyl analogues in 2016. Some 84 percent of all overdoses were among adults between 40-69 years of age, while fatalities hit those between ages 50-59.

And contrary to the epidemic’s characterization as a disease killing white Americans, 81 percent of opioid deaths in DC between January 2014 and August 2017 were among African Americans.

Major Juan Colon, commanding officer of the New Jersey State Police Drug Monitoring Initiative, reported an illicit drug market that has come full circle since a flood of prescription opioids first created a reservoir of addicted and dependent customers in the 1990s.

Many of these people later moved on to use street drugs, as greater restrictions were placed on narcotic pain medications. Now, fentanyl and fentanyl analogues are being used to make counterfeit prescription drugs.

New Jersey has seen an increase of naloxone use by EMS and law enforcement, from around 5,000 administrations a year in 2010, to over 12,200 so far in 2017, reported Colon. While naloxone use alone isn’t a sufficient measure of fentanyl overdose rates, Dr. Brian Brown, chair of the University of Maryland Medical School, says first responders were among the first to notice a change.

“Without clinically knowing that [the patient took] fentanyl, we find that suddenly now the paramedics are realizing that they give some and it’s not working, because of the intensity and the strength of the fentanyl and the analogues,” he told the Commission.

“They have to give more of it, and it isn’t lasting as long.”

So although emergency responders are not testing for it, he added, “the clinical circumstances are indicating—this is not the usual opioid overdose.”

According to the United States Customs and Border Patrol (CBP), the agency charged with identifying and responding to global narcotics trafficking trends, the majority of illicit fentanyl sold in the U.S. is manufactured overseas in China and Mexico, and smuggled into the country over the southern border.

CBP Commissioner Robert Perez testified that his agency has overseen a “dramatic increase in seizures”of fentanyl and its analogues, from one kilogram in fiscal year 2013, to 208 kilograms in 2016, to 550 kilograms in 2017–a 160 percent increase over the previous year. CBP expects this number to keep climbing in 2018.

Perez said that the relatively low purity of fentanyl trafficked through southern points of entry makes it more difficult to detect in the field, a fact that has led the agency to introduce a number of pilot programs that make use of handheld tools, reagent test kits, and the development of more “signature odor profiles” for training canine units.

But in terms of potential harm, an even greater threat is posed by the increased availability of high-potency fentanyl sold on the internet and shipped into the country by mail or carrier service. Small amounts of pure fentanyl are more maneuverable and don’t require the coordinated efforts of cartels and gangs, opening the market to individual entrepreneurs and small-scale retailers.

Joe Schleigh, the Acting Chief of Synthetic Drugs and Chemicals for the Diversion Control Division of the Drug Enforcement Administration (DEA), added that manufacturing tools such as pill presses are also easy to order online from China, Mexico and Germany.

Witnesses reported different prices for one kilo of Chinese fentanyl (ranging from $200 to $5,200), but agreed that a single kilo can yield over $6 million in profits if cut into pills in doses of 1.5mg or less.

Schliegh said the DEA ““has become increasingly alarmed” by the proliferation of fentanyl and its synthetic analogues. Street chemists and retailers are constantly altering their products to stay ahead of law enforcement, often introducing new unregulated compounds as soon as the DEA takes action to classify a particular substance as controlled. 

Perez also noted that the types of fentanyl and fentanyl-class compounds seen by U.S. Border Patrol laboratories grew from three in 2008 to 120 in 2016; and so far this year, CPB labs have analyzed 333 different kinds of fentanyl (broken down into 5 different class compounds and 2 starting materials).

It is enormously difficult for the DEA to trace the movement of Chinese drug compounds, said Schliegh, since traffickers use multiple freight forwarding services, making sure packages go through numerous chains of custody between the original supplier and border customs.

See also: Enforcement Can’t Stop Fake Drugs from China: Report

While CPB inspects mail arriving from over 140 different countries, Perez said agents are stymied by a lack of standardized cargo information, as well as the “sheer volume” of mail that needs to be manually inspected.

The Sentencing Commission also heard testimony from Dr. Howard Taft of the Maryland Department of Health and Mental Hygiene; Barry K. Logan, chief of Forensic Toxicology at NMS Labs; and Dr. Srihari Tella, Drug and Chemical Control Unit chief at the U.S. Drug Enforcement Agency.

Following the fentanyl panels, the Commission heard further testimony on the topic of synthetic cannabiniods.

Victoria Mckenzie is Deputy Editor of The Crime Report. She welcomes comments from readers.


Investigating the Homicide Bump: Federal Report

A federal report released Wednesday examines FBI crime data in big cities, considering two possible explanations for the “sudden and unforeseen” spike in homicides nationwide.

A federal report released Wednesday examines FBI crime data in big cities, considering two possible explanations for the “sudden and unforeseen” spike in homicides nationwide.

According to the National Institute of Justice (NIJ) study, which focuses on cities with a population of 250,000 or more, preliminary evidence suggests that expansions in illegal drug markets have driven the considerable increase of homicide rates among whites. In 2015 and 2016, drug-related homicides increased to a greater extent than other types of homicide.

The second hypothesis authors consider is the so-called Furguson effect, which resulted in “de-policing, compromised police legitimacy, or both.”

NIJ stipulates that “current evidence that links de-policing to the homicide rise is mixed, at best,” and that it remains an “open research question”– since arrests-offense ratios and arrest clearance rates had been declining for years, as were homicide rates, before the recent spike.

Neither explanation is meant to stand alone; in particular, growing tensions between African Americans and police do not account for the abrupt increase in homicides among whites beginning in 2013.

A look at the numbers

Nationally, 2014-2015 saw the largest percentage rise in the homicide rate since 1968, according FBI data; an increase of 11.4% over the previous year, or from 4.4 to 4.9 homicides per 100,000 people.

National homicide rates continued to increase by 8.2% in 2015-2016, and 10.8% in big cities. In 2015, Cleveland and Nashville saw the biggest absolute homicide increases, while Austin and Chicago topped the chart in 2016.

Only two cities bucked this upward trend: Miami and Tuscon both experienced a decline in homicides over the two-year period.

Despite the recent incline, the homicide rate in 2016 was still 35.4% lower than it was in 1995. “Even at the elevated rates of increase in 2015 and 2016,” note the authors, “it would take about five more years for the U.S. national and big city homicide rates to return to the levels of the early 1990s.”

‘Sudden and unforeseen’

In the search for external ‘shocks’  that could explain the rapid and unexpected nature of the recent homicide increase, NIJ finds two plausible candidates, both of which have parallels in contemporary U.S. history: the opioid epidemic, echoing the crack-driven homicide escalation of the 1980s–and anger over police brutality and fatal use-of-force, such as precipitated the civil unrest of the 1960s (and corresponding “crisis of institutional legitimacy,” according to some analysts).

Researchers need better data to measure the affects of the opioid crisis, according to the report. Drug arrests are not a reliable indicator, since they are “a product of both police
enforcement and criminal conduct,” and since “policymakers and law enforcement officials alike have viewed the heroin and synthetic opioid epidemic as more of a public health than a criminal justice problem.”

There is some data to suggest a link between heroin and increased homicides: arrests for heroin or cocaine were falling between 2010 and 2013, but heroin use was on the rise. Arrests then rose in 2014 and 2015, coinciding with the accelerating homicide rate.

Data also needs to be disaggregated by race, in order to “determine whether, as expected, whites have entered local drug markets in greater numbers over time as both buyers and sellers.”

Police activity and community “reservoir of discontent”

When considering the influence on homicide rates of police enforcement, legitimacy, and community alienation, reliable indicators are also hard to chase down.

Arrest rates not only measure crime, but police activity, as noted above. “Arrests fell in Baltimore in 2015 after the Freddie Gray incident, and in Chicago in 2016 after the delayed release of a video of a controversial police shooting there.” The reduction in arrests was then followed by an increase of homicide in both cities.

However, researchers say that it “remains to be seen whether comparable decreases in arrests preceded increases in homicide elsewhere.” The link between homicide and arrests/de-policing needs to be further examined at the neighborhood level, since homicide rates vary substantially across neighborhoods.

Calculating police legitimacy and community alienation is “onerous,” and largely measured through opinion surveys– “for the time being,” say the authors, “it appears that strategic case studies and one- or two-time snapshot surveys will have to suffice.”

There are two empirical indicators that can be measured, however, if police departments are willing to release the data: calls for police service, and complaints against the police.

“If the community alienation hypothesis is correct, investigators should expect to observe a reduction in calls for service and an increase in complaints in cities where controversial use-of-force incidents and outbreaks of community unrest have occurred, particularly in African-American communities. Increases in homicide…should be greater in those cities and communities than in others.”

The dark figure of homicide

Finally, and critically, “it is important not to overstate the precision of these figures,”say researchers. “Like all UCR crime data, they are based on the classification of homicide events by local law enforcement agencies, and crime classification criteria and procedures can differ across agencies or within the same agency over time.”

Homicides with unknown circumstances are omitted from the FBI’s Supplemental Homicide Report– and “the circumstances of fully 39.9 percent of homicides were unknown to law enforcement officials in 2015.”

To locate many of the indicators that researchers have identified, researchers will have to go beyond FBI data and work directly with public health and police sources, say authors of the report.


When Men Murder Women

Alaska has the highest rate of femicide by men, followed by Nevada, Louisiana, and Tennessee, according to the annual report of the Violence Policy Center (VPI) . Black women are more than twice as likely to be killed by men than their white counterparts.

The latest analysis of state-level homicide data shows a sharp increase in the rate at which women were slain by single men between 2014 and 2015 despite an overall 20-year decline, according to an annual report released by the Violence Policy Center (VPC) in September.

The 20th annual publication of When Men Murder Women analyzed the most recent Supplementary Homicide Report (SHR) data submitted to the FBI, which covers the year 2015, and offers a breakdown of cases in the ten states with the highest rates of female homicides committed by men. Alaska had the highest femicide rate, followed by Louisiana, Tennessee, South Carolina, Arkansas, Kansas, Kentucky, Texas, New Mexico, and Missouri. VPC notes that data from Florida and Alabama are missing, and data received from Illinois is incomplete.

The study, which only examined instances involving one female victim and one male offender, found that 1,686 females were murdered by males in the U.S. in 2015.

“This is the exact scenario—the lone male attacker and the vulnerable woman—that is often used to promote gun ownership among women,” write the authors, zooming in on VPC’s main target: gun laws. For 2015, firearms, and especially handguns, were the weapon most commonly used by men to murder women.

The report also notes the findings of a 2003 study from California which showed that while two-thirds of women who get a handgun do so for for protection, “purchasing a handgun provides no protection against homicide among women and is associated with an increase in their risk for intimate partner homicide.”

Editor’s note: According to the Gun Violence Archive, out of 46,597 incidents of gun violence so far this year, only 1,518 incidents were “defensive use” of a firearm– roughly equal to the number of accidental shootings, which numbered 1,511.

Here are highlights from VPC’s analysis of 2015 data on women slain by men:

  • For homicides in which the victim to offender relationship could be identified, 93 percent of female victims (1,450 out of 1,551) were murdered by a male they knew.
  • Fourteen times as many females were murdered by a male they knew (1,450 victims) than were killed
    by male strangers (101 victims).
  • For victims who knew their offenders, 64 percent (928) of female homicide victims were wives or
    intimate acquaintances of their killers.12
  • There were 266 women shot and killed by either their husband or intimate acquaintance during the
    course of an argument.
  • Nationwide, for homicides in which the weapon could be determined (1,522), more female homicides were committed with firearms (55 percent) than with any other weapon. Knives and other cutting instruments accounted for 20 percent of all female murders, bodily force 11 percent, and murder by blunt object six percent. Of the homicides committed with firearms, 69 percent were committed with handguns.
  • In 84 percent of all incidents where the circumstances could be determined, homicides were not related
    to the commission of any other felony, such as rape or robbery.

The Violence Against Women Act (VAWA) turned 23 this year.

Victoria Mckenzie is deputy editor of The Crime Report. Readers’ comments are welcome.


Trafficking Routes Up for Grabs After Fall of Top Caribbean Drug Kingpin

With global cocaine production estimated to be at historic levels, the flow of drugs, money and weapons through the Dominican Republic and its Caribbean neighbors looks poised to grow, reports InSight Crime. Homegrown criminal cells are also becoming stronger in a country that has traditionally come under the influence of Colombian and Mexican crime syndicates.

The man who was once considered the most powerful drug kingpin in the Dominican Republic and Puerto Rico has been convicted and sentenced to decades in a U.S. prison, raising questions as to who will step up to take control over the growing drug trade in this small but important trafficking corridor.

José David Figueroa Agosto, a Puerto Rican known by the alias “Junior Cápsula,” was sentenced to 30 years in prison on drug trafficking charges, local media reported on August 8. The sentence was handed down by a U.S. federal judge in May as part of a plea agreement, but relevant court documents had been sealed until recently.

A 2010 indictment charged Figueroa Agosto with shipping approximately 3 metric tons of Colombian cocaine between 2000 and 2001. His organization is thought to have controlled up to 90 percent of narcotics trafficking through the Dominican Republic and Puerto Rico at the height of his power. This led the Puerto Rican–who enjoyed a luxurious lifestyle, using various false identities and even resorting to plastic surgery to evade capture–to eventually be dubbed the “Pablo Escobar of the Caribbean.”

According to the indictment, Figueroa Agosto would acquire Colombian cocaine and ship it either straight from Colombia or through neighboring Venezuela to Puerto Rico. A U.S. Justice Department press release indicates that his group also dealt with heroin, and at times used private yachts to ship millions in cash earned from drug sales back to the Dominican Republic.

Earlier in his career in the drug business, Figueroa Agosto murdered an individual he believed had stolen cocaine, a crime for which he was sentenced to more than 200 years in prison in 1995. But four years later, the Puerto Rican national walked out of prison through the front door with a forged release permit, most likely with help from colluding guards.

Figueroa Agosto twice more secured his release in the Dominican Republic, supposedly by bribing officials, before his final arrest in Puerto Rico in 2010. Rumours swirled that he may even have bribed a presidential candidate. And in 2015, Figueroa Agosto’s defense attorney was sentenced to nearly six years in prison on money laundering charges. The Justice Department asserts the attorney bribed Puerto Rican officials with drug money, in the hope of obtaining the nullification of the original murder sentence.

Beyond his colorful story, Figueroa Agosto is one of the rare examples of a homegrown Caribbean kingpin. As the region’s importance as a drug transit point has grown, his demise raises questions about the future of the criminal landscape in the Dominican Republic and Puerto Rico, two of the Caribbean’s main drug trafficking hubs.

The volume of narcotics transiting through the region reportedly tripled between 2009 and 2014, while a series of multi-ton seizures in 2017 support official estimates that this upward trend has continued. Today, the Dominican Republic sees an estimated 120 metric tons of cocaine transiting through the country each year. Furthermore, the Caribbean’s role in the US market also appears to have grown over the past few years. In 2012, only 5 percent of drugs reaching the United States reportedly passed through the Caribbean; by 2015 this figure reached 13 percent.

No single major criminal figure has publicly emerged in the Dominican Republic since the days of Figueroa. But during recent field research to the country InSight Crime learned that local groups were assuming greater control of drug routes. This would represent an empowerment of homegrown criminal cells in a country that has traditionally come under the influence of Colombian and Mexican crime syndicates. It could also represent a potential impetus for conflict, if these local groups resort to violence in attempting to maintain or expand their operations.

Furthermore, analysts have suggested that corrupt government elements–particularly the military and police–have gradually stepped up their role in the drug trade from acting as facilitators to becoming traffickers in their own right. In 2015, top officials of the Dominican anti-narcotics police were accused of stealing over a ton of seized cocaine, and authorities suggested that up to 90 percent of organized crime related cases could involve collusion by security forces.

With global cocaine production estimated to be at historic levels, the flow of drugs, money and weapons through the Dominican Republic and its Caribbean neighbors looks poised to grow. The DEA’s Caribbean Division has also confirmed to InSight Crime that laboratories producing the powerful opioid fentanyl have been discovered on the island, potentially representing a new phenomenon in this traditional transit hub.

See also: Puerto Rico Cocaine Seizure Points to Caribbean’s Revival as Drug Hub

This story was originally published by InSight Crime, and is reproduced by The Crime Report under agreement. For the complete version, please click here. Readers’ comments are welcomed.


The Dirty Data Feeding Predictive Police Algorithms

The ability to predict crimes before they happen has long been a topic of fascination for science fiction writers and filmmakers. But in real life, the data feeding predictive algorithms is riddled with problems, according to a researcher at the UC Davis School of Law.

The ability to predict crimes before they happen has long been a topic of fascination for science fiction writers and filmmakers. In real life, predictive policing is getting a similar buzz, as dozens of police departments experiment with algorithm-driven programs to help them deploy resources more effectively.

But more attention should be focused on problems with the data that feed predictive algorithms, argues one researcher from the UC Davis School of Law.

“Predictive policing programs can’t be fully understood without an acknowledgment of the role police have in creating its inputs,” writes Elizabeth E. Joh, in a paper forthcoming in the William & Mary Bill of Rights Journal. Police aren’t just passive end-users of these data-driven programs–  they generate the information that feeds them.

The difference between crime, and crime data  

“A closer look at the “raw data” fed to these algorithms reveals some familiar problems,” the study maintains.

Even under the best of circumstances, crime data only partially captures the actual crime that occurs in any given place. To become fact, a crime must first be discovered, investigated, and recorded by police.

See also: Measuring the “Dark Figure” of Crime

Racial bias is only one factor that can influence the way police record crime, as well as the rate at which they record it, writes Joh. Other factors include workplace pressures, contract disputes, funding crises, the seriousness of the offense, “wishes of the complainant, the social distance between the suspect and the complainant, and the respect shown to the police.”

Changes in policy, such as the ‘broken windows’ campaign of the early 90s, also leave an indelible footprint on crime data.

There is also a concern that the algorithms produce self-fulfilling prophecies; send police to an area where crimes occurred in the past, and chances are that they’ll see something, reinforcing the the prediction.

As crime forecasting programs become more and more commonplace in police departments across the country, the consequences of data gaps will also grow in scale.

“Many of these issues will become even more difficult to isolate and identify as algorithmic decisionmaking becomes integrated into larger data management systems used by the police.”

The legitimacy of the “black box” algorithms themselves, which remain hidden behind proprietary information laws, is also uncertain. Last year, ProPublica investigated an algorithm created by Northpointe, Inc, and after comparing risk scores to actual recidivism rates, found the program to be only “somewhat more accurate than a coin flip.”

Ultimately, Joh cautions against “the assumption that algorithmic models don’t have subjectivity baked into them because they involve math.”

The same goes for law enforcement’s role in generating crime data:

“As long as policing is fundamentally a set of decisions by people about other people, the data fed to the machine will remain a concern.”

This summary was prepared by Deputy Content Editor Victoria Mckenzie. A full copy of the report can be obtained here. Readers’ comments are welcome.


Children Exposed to Crime Rarely Get Needed Services: Study

Children are more deeply affected by crime, both directly and indirectly, than previously realized, a sobering new research paper from University of Pennsylvania Law School has found. And while most states provide services for children affected by crime, a world-class bureaucratic labyrinth makes it extremely difficult for anyone, particularly parents who are not highly educated, to access these programs. Yet not providing counseling and other help for these children is a step almost certain to cause more lasting damage both […]

Children are more deeply affected by crime, both directly and indirectly, than previously realized, a sobering new research paper from University of Pennsylvania Law School has found.

And while most states provide services for children affected by crime, a world-class bureaucratic labyrinth makes it extremely difficult for anyone, particularly parents who are not highly educated, to access these programs.

Yet not providing counseling and other help for these children is a step almost certain to cause more lasting damage both to the helpless minors and to society in the long term.

The study, conducted by Michal Gilad, looked at five categories of impact across 50 states: children’s being directly victimized by crime, witnessing crime in the family, witnessing crime in the community, parents being hurt by crime, and parents being incarcerated. While no one thinks that a crime committed against a child won’t cause psychological harm, the report found that even indirect exposure, such as witnessing violence in the community, damages children because of the plasticity of their developing brains and lack of emotional maturity.

“The documented harm ranges from physical and mental health problems to increased risk for learning disabilities, behavioral problems, repeat victimization, juvenile delinquency, adult criminality, and substance abuse,” writes Gilad.

Moreover, the problem is much more widespread than most people may think. The study found that “nearly half of the minor children living in the United States today” have been victimized or exposed to crime in their home or community each year.

And yet, “even when identified, only a minuscule minority ever receive services or treatment to facilitate recovery.” While Gilad was surprised and heartened to discover through a newly designed survey that in the majority of the 50 states, services are in place to help children in four of the five crime-impact categories (the exception being children of incarcerated parents), an extremely challenging bureaucratic labyrinth exists.

Even in conducting the survey for his report, Gilad found that contact information for agencies serving children was hard to come by with phone numbers and emails withheld reportedly for security reasons and “phone contact frequently proved to be futile, as the caller seeking information is transferred from one person to another until reaching a dead end, usually a voice mail filled to capacity.”

In a disturbingly large number of cases, once Gilad was able to communicate with an agency worker, there was lack of awareness of statutorily mandated victim-assistance funds for necessary services. Lack of coordination, and stakeholders not speaking the same language, was apparent.

This report poses the chilling scenario: “Imagine a child in desperate need for assistance to overcome trauma in this environment. The child must depend almost solely on a lay parent with no professional skills, and often with only minimal education and resources, to go through the daunting journey through the thorny terrain of the system.”

The difficulty in finding out how to help children victimized by crime raises the possibility that “these persistent and reoccurring system design flaws and administrative roadblocks are not entirely coincidental,” and are saving states money in the short term, the report says.

“Unfortunately, an evidence-based examination of the problem indicates that such short-term savings are likely to result in epic long-term costs borne by tax payers and society,” Gilad writes.

This summary was prepared by TCR Deputy Web Editor Nancy Bilyeau. A full copy of the report can be obtained here. Readers’ comments are welcome.


The Wrong Path: Involuntary Treatment and the Opioid Crisis

The use of involuntary commitment for drug addiction is expanding across the country, as desperate families seek help for their loved ones. But it is likely to make things worse.

In May, nine people committed to the Massachusetts Alcohol and Substance Abuse Center in Plymouth briefly walked out from the minimum-security facility. State authorities mounted a manhunt, using helicopters and dogs to apprehend these treatment “patients.”

The episode illustrates a dangerously-blurred line between substance use treatment and prison, based on a statute that allows for involuntary commitment of “alcoholics or substance abusers.”

In this case, the facilities housing criminals and patients were, in fact, one and the same.

The Massachusetts provision—Section 35—allows family members, doctors and police to petition a judge to civilly commit an individual with substance use disorder, where the condition creates a “likelihood of serious harm.”

Across the US, at least 33 states have similar statutes, though their precise parameters and level of deployment vary widely. In Massachusetts, an individual can be ordered to a course of treatment for up to 90 days.

The use of this mechanism has rapidly expanded as the opioid crisis has worsened, used primarily by desperate families seeking to get help for their loved ones.

In some of the over 8,000 Section 35 commitments a year in the state, the mechanism is being invoked by the very individual who is to be committed. This is because many see Section 35 as the only—or the most expedient and cheapest—way to access treatment.

That highlights the perversion of our drug treatment system.

It’s easier to voluntarily submit oneself to “involuntary” treatment, just to receive rapid and free access to assistance. This is despite the fact that the path is through a coercive, criminal justice-based structure, rather than through normal health care navigation channels.

Drug users committed under this provision have committed no crime. Treating them as criminals and depriving them of agency and liberty without adequate justification violates basic constitutional and ethical principles, as recent and previous litigation has posited. To make matters worse, these individuals are now subject to being physically restrained in treatment facilities, raising concerns about possible physical abuse.

The parallel provision in Massachusetts law applying to mental health cases, such as cases of suicide risk, imposes only a three-day commitment and requires authorization from a mental health clinician. In contrast, Section 35 authorizes a person to be held for up to 90 days and considers clinical judgment non-binding.

Further, the rules of evidence do not apply to Section 35 hearings. And, for police and physicians, “committing” individuals through Section 35 recently became easier because a standing order in some courts now allows those petitioners to simply fax the petition rather than appearing in person.

In the meantime, police, family support groups, and others are disseminating information and instructions on how to “section” SUD-affected individuals.

Leo Beletsky

As it turns out, coerced and involuntary treatment is actually less effective in terms of long-term substance use outcomes, and more dangerous in terms of overdose risk.

Mandated evaluation of overdose data in Massachusetts has found that people who were involuntarily committed were more than twice as likely to experience a fatal overdose as those who completed voluntary treatment. (See page 48-49 in this preliminary analysis.)

Though further research is needed to confirm these findings, there are several possible reasons for this. One is that recovery is much more likely when it is driven by internal motivation, not by coercion or force (i.e. the person must “want to change”).

Second, the state may actually route individuals to less evidence-driven programs on average (e.g. “detox”) than the kind of treatment accessed voluntarily (i.e. outpatient methadone or buprenorphine treatment).

Finally, those receiving care in outpatient settings may also receive services that help address underlying physical or mental health needs, which are often at the root of problematic substance use.

Another important concern is that mechanisms like Section 35 massively shift financial responsibility for substance use treatment from insurers directly to taxpayers. In Massachusetts, care provided under Section 35 has to be paid for by state public health dollars (or criminal justice dollars, depending on the location of commitment). In contrast, care received voluntarily is paid for by health insurers.

This is in addition to the fact that the gold standard for most people with opioid use disorder is outpatient treatment, which does not require “beds.” In other words, taxpayers are left holding the bag for something that is more costly, less effective, and more traumatizing. Misuse of those resources also raises questions about what alternative evidence-based investments could be made with those resources.

Despite these and other weighty concerns, policymakers in Massachusetts and elsewhere have looked to expand the scope of mechanisms like Section 35, because they seem them as a key tool in addressing the opioid crisis. The recent federal announcement of a public health emergency will likely accelerate this trend.

Though involuntary commitment represents an attractively decisive policy option, it is in fact the wrong solution to the crisis.

Elisabeth Ryan

Across Massachusetts and throughout the U.S., families are desperate for solutions, but increased reliance on Section 35 is not the way to go. Many individuals who are in crisis are unable or unwilling to access help. There are formidable logistical, financial, and other barriers to receiving on-demand treatment and related services.

The way services are currently rendered is also a barrier.

Many users do not want to engage in existing programs because those programs use unproven methods and approach care in ways that traumatizes and denigrates patients. Others may simply not be ready to enter treatment.

Currently, there is no alternative mechanism that would trigger timely assistance and intensive case management of the kind that is necessary to support people in crisis and their families in non-coercive, evidence-driven way.

Any conversation about reducing over-reliance on involuntary commitment provisions like Section 35 must include a discussion of such alternatives.

See also: Leo Beletsky, Law Enforcement, Drugs and the ‘Public Health’ Approach 

Leo Beletsky is an Associate Professor of Law and Health Sciences at Northeastern University. He’s on Twitter at @leobeletsky. Elisabeth Ryan is a Legal Fellow at the Center for Health Policy and Law, Northeastern University School of Law. She runs, on Twitter at @phlawwatch. They welcome comments from readers.