The Opioid Crisis

When we discuss the opioid crisis, we use the term “opioid” interchangeably to describe “opiates,” which are drugs derived from the opium poppy (e.g., heroin), and “opioids,” which are synthetic drugs with similar effects (e.g., fentanyl). Illicit or licit, natural or synthetic, the chemical response in the brain is roughly the same. Opioids bind to specific receptors in the brain, lowering the perception of pain, sometimes generating a sense of chemically induced euphoria, but also causing respiratory depression and even death. For most users, opioids come in two modalities: illicit opioids (e.g., heroin) and licit opioids (e.g., prescription drugs like OxyContin). Buprenorphine, codeine, fentanyl (and its analogues), heroin, hydrocodone, hydromorphone, meperidine, methadone, oxycodone, oxymorphone, tramadol, and morphine are all opioids.

With opioids, history seems to keep repeating itself. In 1821, Thomas DeQuincy wrote Confessions of an English Opium-Eater. DeQuincy explained how his opium use began with his taking the opium-tincture laudanum for a toothache and ended with him being an addict. Sixteen years before DeQuincy’s Confessions, Friedrich Sertürner first isolated the alkaloid morphine from opium. He named “morphine” for Morpheus, a Greek god associated with an aspect of sleep. Morphine, once isolated, had medicinal purposes but also was found to be addictive.

In 1874, C.R. Wright, an English pharmacist, was supposedly working to enhance the medicinal value of morphine while reducing its addictiveness. Wright’s experiments led to diacetylmorphine, which was manufactured by Bayer, a German pharmaceutical company. The product was sold legally until at least 1913. Diacetylmorphine was used as a pain reliever and a cough suppressant. Bayer marketed diacetylmorphine under the name by which we know it best: heroin. One hundred five years later, we are still battling the unintended consequences of the invention of heroin.

The narrative of our current opioid crisis often begins with pharmaceutical manufacturers, “pill mill” pain clinics, and a deluge of prescription opioids like OxyContin. Prescription opioids have turned some people into addicts. This narrative has cut deep into popular culture. For example, Kanye West revealed his battle with opioid addiction after he received a prescription for an opioid to combat the aftereffects of a medical procedure. On Travis Scott’s song “Watch,” West rapped: “opioid addiction, pharmacy’s the real trap, sometimes I feel trapped, Jordan with no Phil Jack[son].” (Travis Scott, Watch (Epic Records 2018).)

The flood of prescription opioids did not just turn people into addicts, however; it also drew drug addicts from other drugs to opioids. But as governments became more successful at stopping the incoming tide of prescription drugs and drug-dealing medical professionals, some percentage of prescription drug addicts turned or returned to illicit drugs. Today, the illicit drug causing the most death is fentanyl and its analogues.

Fentanyl is a strong narcotic analgesic that was first synthesized around 1960 by Janssen Pharmaceutica of Belgium. (See Esmé E Deprez, Li Hui & Ken Wills, Deadly Chinese Fentanyl Is Creating a New Era of Drug Kingpins, Bloomberg, May 22, 2018.) Today, fentanyl is prescribed to treat serious pain, including that relating to post-surgical care, cancer treatments, and hospice care. Prescription fentanyl comes in several forms, including as a transdermal patch (e.g., Duragesic), an IV solution, a tablet (e.g., Fentora), and a lollipop (e.g., Actiq). The fentanyl plaguing America today is rarely diverted from a prescription but is, instead, illicitly manufactured fentanyl in the form of a white or off-white powder.

Fentanyl itself is deadly. In an interview with the Washington Post on July 12, 2018, Attorney General Jeff Sessions explained:

When it comes to synthetic opioids, there is no such thing as a small case. . . . Three milligrams of fentanyl can be fatal. That’s equivalent to a pinch of salt. It’s not even enough to cover up Lincoln’s face on a penny. Depending on the purity, you could fit more than 1,000 fatal doses of fentanyl in a teaspoon.

(Sari Horwitz, Sessions Targets 10 Areas in U.S. for Crackdown on the Sale of Fentanyl, Wash. Post, July 12, 2018.) Indeed, fentanyl can be 100 times more potent than morphine, which is the baseline against which the potency of opioids is measured and conveyed by way of the descriptor of “morphine milligram equivalents,” or MMEs. In contrast, heroin, which is lethal enough, is usually only 10 times as potent as morphine. Fentanyl has even been purposefully used to kill. On August 14, 2018, Nebraska employed a four-drug cocktail to carry out the death sentence of Carey Dean Moore. One of the four drugs used in the cocktail was fentanyl. (Mitch Smith, Potent Opioid with Deadly Track Record Gets Put to a New Use, N.Y. Times, Aug. 15, 2018, at A10.)

Fentanyl is being compounded by illicit drug suppliers into batches of heroin, cocaine, ecstasy, and any and every illicit drug—smoked, snorted, injected—and pressed into pills. Readily and cheaply produced, fentanyl and its analogues are now the number one problem in the opioid crisis. This becomes apparent in the examination of local death data, which can reveal fentanyl spikes after a sudden influx of fentanyl into an area leads to a pronounced increase in overdose deaths.

Fentanyl has a core chemical structure, but modifications of that structure can produce different effects. There are at least four licit fentanyl analogues—alfentanil, carfentanil, remifentanil, and sufentanil—but there are hundreds of illicit variations, including acetylfentanyl, acrylfentanyl, butyrylfentanyl, cyclopropylfentanyl, and furanylfentanyl (sometimes called China White). Narcotics traffickers are constantly tinkering with fentanyl’s structure, generating new variations, and then selling them.

These variations can dramatically change the potency of fentanyl. The most famous licit variation is carfentanil (a carboxylated fentanyl), which was meant to anesthetize large animals, such as elephants. Carfentanil is approximately 10,000 times more potent than morphine; a few specks of carfentanil can be lethal to most human beings. During a hostage crisis in a Moscow theater in October 2002, evidence suggests that the Russian government may have used an aerosol mixture of carfentanil and remifentanil to knock out the Chechen terrorists to try to prevent the killing of the 750 hostages that the terrorists held captive. (See James R. Riches et al., Analysis of Clothing and Urine from Moscow Theatre Siege Casualties Reveals Carfentanil and Remifentanil Use, 36 J. Analytical Toxicology 647 (Nov. 1, 2012).) The carfentanil-infused aerosol may have killed more than 120 of the hostages. (See id.) There are also drug dealers and suppliers who sell carfentanil to drug users, and, predictably, people die as a result.

For drug dealers, overdose deaths attract the attention of law enforcement, but, perversely, they also can attract customers. Trapped on the hedonic treadmill, addicts frequently chase ever-more-potent opioids as they try to get back to their highest high. These addicts look for the dealers with the most potent drugs and so, rather than another addict’s death being a warning, it can serve as a calling card that the dealer is selling the most potent drugs. This is a disturbing pattern among some of the most hardened opioid addicts.

Opioids also are killing those who never intended to take them. Most illicit drug users fundamentally have no idea what they are taking when they buy and use illicit drugs. Drug suppliers, armed with cheap and potent fentanyl, are mixing it into things being sold as ecstasy pills, Xanax pills, and even cocaine. It is not just those in the drug trade who are being put at risk. Law enforcement officers have suffered nonfatal overdoses because they were exposed to opioids while conducting searches in opioid-strewn environments.

Not all of these combinations are inadvertent. The fentanyl-cocaine combination may be the latest iteration of the “speedball,” a mixture of cocaine as an “upper” and another drug as a “downer.” In the past, the speedball downers were morphine and later heroin. By combining uppers and downers, drug users seek the euphoria while hoping that the combination cancels out other side effects of the drugs. The reality is that the combination actually appears to increase the risk of overdosing and dying. Alternatively, some dealers may be sneaking in comparatively cheap fentanyl into batches of cut cocaine. Whatever the reason, the results are the same: a sharp rise in cocaine-opioid deaths.

Another factor in some of the opioid-overdose deaths is the combination of opioids with other central nervous system (CNS) depressants like benzodiazepines (e.g., Xanax). The combination does not usually occur through compounding the way cocaine mixed with fentanyl can. Instead, the person using the opioids—prescribed or illicit—is also taking the CNS depressant, legally or illegally. This combination significantly increases the depressive effects of both drugs upon the respiratory system.

During a crisis, law enforcement acts with speed and purpose. The number one goal is to bring down the number of deaths. In the short term, there is one thing that is clearly saving lives: the widespread adoption and deployment of naloxone hydrochloride (e.g., Narcan and Evzio). Quick administration of sufficient naloxone hydrochloride can reverse an overdose event. Naloxone hydrochloride, which is a narcotic antagonist, has a greater affinity between it and the opioid receptors in the brain than that between the receptors and opioids. Naloxone hydrochloride therefore can displace opioids from the brain’s receptors, buying the body time to metabolize and eliminate the opioids.

When opioids enter the human body, the body’s basic metabolic processes begin to break them down so that they can be eliminated through what is essentially a process of detoxification. The liver is heavily involved. Forensic toxicologists characterize the metabolization process in terms of “plasma half-life,” which is how long it takes to reduce by half a given concentration of a drug in the body. The first-pass metabolization can occur in only minutes; the body converts the drug into another form (e.g., heroin becomes the unique 6-monoacetylmorphine). The second-pass metabolization can, again, be as quick as a matter of minutes, but the traces of the metabolite created often remain for hours. The body continues to process those metabolites. For example, heroin metabolizes into the unique 6-monoacetylmorphine, which then metabolizes into the nonunique morphine, which is also what results from the use of heroin, codeine, and morphine. Given enough time, the body metabolizes and eliminates the opioids.

The metabolism process leaves behind the key forensic clues used to prosecute opioid-caused deaths. In the federal system, distributing a drug the use of which results in death or serious bodily injury carries with it at least a 20-year minimum mandatory sentence. (21 U.S.C. § 841(a)(1), (b)(1)(A)–(C).) The US Supreme Court has limited the enhancement to cases where the “use [of the drug] is a but-for cause of the death or injury.” (Burrage v. United States, 134 S. Ct. 881, 892 (2014).) The autopsy normally answers the “but-for” causation question.

For that answer, prosecutors often turn to an unsung hero in death investigations: forensic toxicologists. Forensic toxicologists determine what was in the body of the decedent. Extremely potent drugs like fentanyl can kill quickly, meaning the body may not have time to thoroughly distribute the drugs through the circulatory system, much less fully metabolize them. In such cases, blood from the heart or within the core of the circulatory system frequently can contain some of the clearest evidence of the drug that caused the death (e.g., fentanyl). The forensic toxicologists have to know not just where to take the samples from, but how to figure out what is in them.

The necessary equipment to perform these identifications is not cheap, maintaining the core competency required takes work, and keeping up on the latest opioids (e.g., fentanyl analogues) is time-consuming. Forensic toxicologists not only help to answer the “but-for” cause of death; they also help to identify drugs found at the scene of overdoses, particularly when other forensic units could not because they lacked the necessary equipment or capabilities. This makes the forensic toxicologist the lynchpin of many opioid-death investigations and prosecutions.

Unfortunately, forensic toxicology is frequently one of the slowest parts of the autopsy process. In television police dramas, the toxicology reports come back in moments, leaving plenty of time for clever plot twists. In reality, the toxicology results can lag six months behind the death. This slows the investigation and prosecution of the deaths. It is also likely why the CDC data for 2017 came out in August 2018. This delay slows the learning curve of law enforcement about what drugs are killing people at any given moment, making it harder to effectively react. Further, medical examiners and forensic toxicologists are constantly straining to work with limited resources and ever-growing demands.

Ideally, the strain will be reduced by reducing the number of overdose deaths. Over the long and medium terms, the fastest way to achieve that goal is to severely constrict the supply of opioids being used outside the legitimate care of true medical practitioners. There have been two main fronts in the anti-opioid effort, one against the overprescribing medical practitioners and the other against the illicit drug trade.

There has been significant success on the prescription opioid front. Prosecutors have pursued medical professionals involved in illegally and improperly distributing licit opioids. Laws have been passed that have curtailed many pill mills. Technology has been used effectively. For example, Prescription Drug Monitoring Programs (PDMP) databases capture controlled substances dispensed to individuals and reveal critical information about both drug-seeking and drug-supplying behaviors. This is a significant asset in the fight against prescription opioid diversion. The main battle is now against illicit opioids.

Domestically, the illicit opioid trade is little different than any other illicit narcotics trafficking. There are street-level dealers, sometimes themselves addicts, and suppliers. Law enforcement employs all of the traditional techniques and tools to investigate the cases (e.g., undercover operations, confidential informants, search warrants, wire taps). Reacting in a crisis requires agility, focus, and a continuous evaluation of the success of each strategy employed to tackle the opioid crisis. The key is finding strategies that work.

One strategy that has shown success, i.e., fewer overdoses, is to focus on geographic areas where a large number of overdoses are occurring. Such focused operations can be characterized by maximum sustained effort with local, state, and federal partners to pursue opioid and opioid-related crimes. While some of the individual cases may be comparatively small, the intent is to generate maximum deterrence in the aggregate and to save lives in specific communities that are in the direst need of help. For example, in 2017, the US Attorney’s Office for the Middle District of Florida initiated OCDETF Operation Hot Batch in Manatee County with the Manatee County Sheriff’s Office, DEA, ATF, Border Patrol, and IRS-CI. (See Jessica de Leon, Operation Hot Batch Is Coming after Heroin Dealers in Manatee, Bradenton Herald, Apr. 15, 2017.) The Operation targeted the dealers, not the addicts, and started at the street level with a goal of working up the supply chains. (See Dan Sullivan, A Dealer’s Downfall: How Efforts to Tackle the Opioid Crisis Brought down a Group of Drug Traffickers, Tampa Bay Times, Apr. 18, 2018.) Law enforcement estimated that there was a corresponding 78 percent decrease in the number of overdoses in the area targeted. (Id.)

Prosecutors are generally filing the most serious readily provable offenses against opioid narcotics traffickers. These criminal charges are frequently little different from those filed in the 1980s “cocaine cowboys” era or the 1990s “crack cocaine” era. The biggest difference between the eras is the behavior on the streets. Instead of drive-by shootings and gang warfare, there are drive-up purchases and packages in the mail. Just as with past eras, the opioid crisis is replete with death, but it feels centered on people using opioids and not on the control of the distribution and supply of the drugs.

Part of this also may be a result of technology. The dark web anonymously connects drug dealers with manufacturers and global suppliers. Bitcoin and other cryptocurrencies add another layer of anonymity to purchases. Once a purchase is made, the opioids, particularly synthetic opioids, often are mailed to the domestic buyer. (See Lethal Opiates Delivered by Mail from China, Killing Addicts in the U.S., Nat’l Pub. Radio (Mar. 11, 2017).) The packages are even frequently mailed through international mail or freight forwarders, adding additional anonymity for the seller from the purchaser. Because synthetic opioids are so potent, significant amounts of them can be mailed in relatively small and hard-to-detect packages, unlike other drugs. In this way, technology has flattened the hierarchy of some aspects of opioid distribution and perhaps temporarily broken up parts of the cartel drug trade model, at least for certain synthetic opioids.

Opioids continue, however, to present a significant transnational, organized-crime problem. For example, narcotics traffickers in Mexico’s southwest state of Guerrero are among the top producers of heroin being imported into the United States. (On the Hunt for Poppies in Mexico—America’s Biggest Heroin Supplier, Nat’l Pub. Radio (Jan. 14, 2018).) Mexican drug trafficking organizations also are making, procuring, smuggling, and trafficking in fentanyl. (Kristina Davis & Sandra Dibble, Fentanyl Has Taken over America’s Drug Market. Where Is It Coming from?, San Diego Union Trib., June 17, 2018.) Much of the fentanyl from Mexico is apparently purchased from China or manufactured in Mexico using precursor chemicals from China. (Id.) The Mexican fentanyl also is being compounded with other drugs and cutting agents so that the fentanyl is comparatively impure, unlike the pure fentanyl coming in directly from China or indirectly through Canada. However, the quantities can be staggering. In March 2018, Francisco Quiroz-Zamora was indicted after having allegedly arranged for nearly 20 kilograms of fentanyl—enough fentanyl to potentially kill 10 million people—to be shipped from Mexico to New York. (Katie Zezima, Suspected Drug Kingpin Charged with Trafficking in Enough Fentanyl to Kill 10 Million People, Wash. Post, Mar. 27, 2018.) The Quiroz case allegedly involved the Sinaloa cartel. (Id.)

This presents an international problem that will be fought, at least in part, in American courtrooms. In October 2017, Attorney General Sessions announced the first-ever indictments of Chinese nationals for fentanyl trafficking, charging 32 defendants in those cases. (See Press Release, Dep’t of Justice, Two Chinese Nationals Charged with Operating Global Opioid and Drug Manufacturing Conspiracy Resulting in Deaths (Aug. 22, 2018).) On August 22, 2018, Attorney General Sessions announced the unsealing of a 43-count indictment against the leaders of the Zheng drug-trafficking organization based in China, whom the indictment alleges sold drugs that killed at least two people in Ohio. (Id.) The Attorney General explained, “[f]entanyl and its analogues are the number one killer drug in America today, and most of them come from China. . . . By cutting off fentanyl and its analogues at the source, we can save American lives.” (Id.)

The Chinese government also has taken some steps to reduce opioid manufacturing in China. Until March 2017, carfentanil could be legally manufactured and sold by Chinese companies, which then shipped it all over the world. In March 2017, China banned the domestic manufacturing and sale of carfentanil, acrylfentanyl, furanylfentanyl, and valerylfentanyl. (China’s Fentanyl Ban a “Game-Changer” for Opioid Epidemic, DEA Officials Say, CNN (Feb. 16, 2017).) But there is still more work to be done to reduce the export of fentanyl, fentanyl analogues, and fentanyl precursors. (See Sui-Lee Wee & Javier C. Hernández, China’s Opioid Bazaar Is Booming, Making It Hard for U.S. to Patrol, N.Y. Times, Nov. 10, 2017, at A8.)

This is also not China’s first involvement in a fight against opioids. On June 3, 1839, Lin Zexu, an official in the Qing Dynasty, took a stand against opium flowing into China. (See Cui Jia, Cao Li & Hu Meidong, Drugs Destroyed to Mark Humen Opium Destruction, China Daily (June 3, 2009).) Lin confiscated over 1,000 tons of opium in the city of Humen at the mouth of the Pearl River. (See The Opium Wars Still Shape China’s View of the West, The Economist (Dec. 19, 2017),) At the time, China controlled tea, which it sold for silver. England was a voracious consumer of tea, and it controlled India’s poppy fields. This led to a new trade pattern: opium for tea (and other Chinese goods like porcelain). But opium was addictive and viewed by Lin and others in China as a vice that they did not want to spread. Unfortunately, Lin’s efforts failed, serving instead as one of the causes of the First Opium War (1839–1842) between the British and Chinese. (See id.) It ended in the signing of the Treaty of Nanking, resulting in China ceding Hong Kong to the British. (See Cheung v. United States, 213 F.3d 82, 84 (2d Cir. 2000) (citation omitted).) Thereafter, England and China fought a Second Opium War (1856–1860) and entered into a series of “unequal treaties” that resulted in China being forced to endure opium’s spread. Not so today. Today, America, China, and much of the world share a common enemy in opioids.

As with all confrontations, the acme of victory is winning a war without having to fight it. Prosecutors thus utilize community outreach to try to reduce the number of addicts and deaths. Among other initiatives, there are frequent, prosecutor-led community screenings of the Federal Bureau of Investigation (FBI) and Drug Enforcement Administration (DEA) jointly produced film Chasing the Dragon, which is meant to educate the public on the dangers of opioids. The film is freely available online at https://www.fbi.gov/video-repository/newss-chasing-the-dragon-the-life-of-an-opiate-addict/view and is part of the community outreach toolkit law enforcement hopes will save lives. Everyone in and out of the criminal justice system is encouraged to view it, screen it, share it, or otherwise do their part to stop the spread of opioid addiction.

Although this crisis has existed in various permutations for centuries, it has evolved and reached devastating proportions. Every death is a call to action. The entire criminal justice system has a powerful and positive role to play in fighting this epidemic and saving lives. A multilayered approach of meting punishment to deter others from distributing powerful killer opioids, administering effective treatment to addicts entering the criminal justice system, and connecting people to available services may be used to help prevent addiction, relapse, recidivism, and death. The defense bar, prosecutors, and the courts all have a valuable role to play in reducing the opioid death toll. Tom Petty, who died from a fentanyl-related overdose last year, made his career writing songs about everyday Americans. As everyday Americans, we “won’t back down” in our fight to save lives.