A letter to the editor in the August 14 New England Journal of Medicine by researchers at the University of Michigan proudly reported on the results of their effort, called the Michigan Surgical Quality Collaborative (MSQC), to reduce the volume of opioids prescribed for postoperative pain. The Collaborative developed a set of guidelines for its participating prescribers.


As a result, they found that from January 2017 through May 2018, the mean number of pills prescribed for postoperative pain decreased from 26 (+/-2) pills pre-guideline to 18 (+/– 3) pills post-guideline. Patient pill consumption also decreased from an average of 12 pills (+/-1) pre-guideline to 9 pills (+/-2) post-guideline. During that period there was no discernible difference in the pain scores reported by these patients pre-and post-guideline.


It seems all of health care is now fixated on getting the number of prescription pain pills down. Yet there is no correlation between prescription volume and nonmedical use or use disorder/​addiction. And as prescription volume has dramatically come down since 2010, the overdose rate has dramatically increased. Furthermore, in 2017 at least 75% of opioid-related overdoses were from heroin or fentanyl, while 40% of overdoses involving prescription opioids had multiple other drugs onboard, including heroin, fentanyl, alcohol, and tranquilizers.


So, as academic physicians continue to virtue signal and show the media and regulators how well they are complying with the “new opiophobia” by reducing opioid prescribing, the overdose rate continues to climb.


To be fair, an oversupply of prescription pain pills to patients can lead to more pills getting diverted into the black market for nonmedical users. But as a doctor who cares about reducing deaths, I would prefer that nonmedical users take diverted prescription opioids as opposed to heroin or fentanyl or counterfeit prescription pills made from fentanyl. 


The focus should be on the number of deaths, not the number of pills. For that to happen, policy must to shift to harm reduction.
 

It seems that no amount of data-driven information can get policymakers to reconsider the hysteria-driven pain prescription policies they continue to put in place.

I can understand lay politicians and members of the press misconstruing addiction and dependency, but there is no excuse when doctors make that error. Yet National Public Radio reports that surgeons in 18 Upstate New York hospitals have agreed on an initiative to limit the amount of pain medicine they will prescribe to postoperative patients discharged from the hospital. The reporter says that researchers “now know” that patients prescribed opioids for postoperative pain “can become addicted” and that “the new prescription guidelines can prevent this particular gateway to abuse.” 

But what does the research show? One recent study published in the BMJ of more than 568,000 “opioid naïve” postsurgical patients followed for 8 years found a total “misuse” rate of 0.6 percent. (“Misuse” includes a range of non-prescribed drug use, from self-medicating with leftover pills to treat an ankle sprain on one extreme to addiction on the other.) Broken down further, the researchers found the misuse rate was 0.15 percent in patients given just one prescription postoperatively and was 0.29 percent in patients who got a second prescription as a refill. 

Multiple highly-respected Cochrane systematic analyses, the most rigorous reviews in the medical science literature, found the addiction rate in chronic noncancer pain patients on long-term opioid therapy to be around 1 percent.

Addiction and dependency/​tolerance are two separate entities, but policymakers and many in the media equate the two. But the doctors in Upstate New York should know better. Physical dependence refers to the physiological adaptation to the drug such that abrupt cessation or tapering off too rapidly can precipitate a withdrawal syndrome, which in some cases can be life-threatening. Tolerance is an aspect of physiological adaptation, in which increasing dose of a medication become necessary to achieve the desired effect. Once a patient is properly tapered off of the drug on which they have become physically dependent, they do not feel a craving or compulsion to return to the drug. Dependence and tolerance are seen with numerous types of drugs, from anti-depressants and anti-epileptics to beta-blockers (used to treat hypertension and other cardiovascular conditions).

Addiction, on the other hand, is defined by the American Society of Addiction Medicine as a “chronic disease of brain reward, motivation, memory and related circuitry…characterized by the inability to consistently abstain, impairment in behavioral control, craving” that continues despite resulting destruction of relationships, economic conditions, and health. Addiction has a biopsychosocial basis with a genetic predisposition and involves neurotransmitters and interactions within reward centers of the brain. Some experts believe addiction is a learning disorder in which behavioral patterns are automatized as mechanisms for coping with stress or trauma. A major feature of addiction is compulsiveness. This compulsiveness is why alcoholics or other drug addicts will return to their substance of abuse even after they have been “detoxed” and despite the fact that they know it will further damage their lives. 

Writing in the New England Journal of Medicine in 2016, Drs. Nora Volkow and Thomas McLellan of the National Institute on Drug Abuse explained, “Unlike tolerance and physical dependence, addiction is not a predictable result of opioid prescribing. Addiction occurs in only a small percentage of persons who are exposed to opioids — even among those with preexisting vulnerabilities.”

In 2016 the Centers for Disease Control and Prevention published guidelines regarding opioid prescribing for pain. Many scholars and clinicians specializing in pain management and addiction treatment criticized the guide as lacking a basis in evidence. Despite the fact that the CDC stated its guidelines were meant to be “voluntary rather than prescriptive standards, “ and that much of the guidelines were based on “Type 4 evidence” (defined as “based upon clinical experience and observations, observational studies with important limitations, or randomized clinical trials with several major limitations”), policymakers on the federal and state level have been quick to adopt many of these guidelines as statutory limitations on opioid prescribing. The guidelines recognized that “clinical decision making should be based on a relationship between the clinician and patient, and an understanding of the patient’s clinical situation, functioning, and life context.” But one-size-fits all limitations on prescription dosages and amounts implemented by policymakers are incompatible with that statement.

An outcry from chronic pain patients experiencing the rapid tapering or termination of their chronic opioid treatment that followed in the wake of statutory enactments of the CDC guidelines led former Food and Drug Administration Commissioner Scott Gottlieb to order a meeting on “Patient-Focused Drug Development for Chronic Pain” on July 9, 2018, stating in the meeting announcement: “In short, having sound, evidence-based information to inform prescribing can help ensure that patients aren’t over prescribed these drugs; while at the same time also making sure that patients with appropriated needs for short and, in some cases, longer-term use of these medicines are not denied access to necessary treatments. We will take the first steps toward developing this framework in the coming months, with the goal of providing standards that could inform the development of evidence based guidelines (emphasis added).” Thus, the Commissioner implied his sympathy with criticisms raised by academic and clinical physicians and their patients regarding the misinterpretation and misapplication of guidelines that lacked a solid basis on the evidence.

Complaints by academicians, clinicians, and the American Medical Association(Resolution 235) finally caused the CDC to issue a clarification in April 2019, noting, “Some policies, practices attributed to the Guideline are inconsistent with its recommendations.” Among the misapplications of the guidelines it noted were those that result in “hard limits or ‘cutting off’ opioids,” stating the “Guideline does not support abrupt tapering or sudden discontinuation of opioids.” 

Yet the statutory and regulatory restrictions remain unchanged. To date 18 states have laws limiting the amount of opioids that can be prescribed for acute and chronic pain. Many have limits on the morphine milligram equivalent daily dose (MEDD) that may be prescribed, despite evidence in the peer-review science literature that MEDD is an inaccurate and inappropriate metric. And it appears that even many actively practicing physicians, such as the surgeons in the 18 upstate New York hospitals, ignore the science as well as pleas from patients. 

So the march continues, undeterred by the facts, toward a pre-modern approach to the understanding and treatment of pain, and a pre-modern understanding of the risks and benefits of opioids, and the subtleties that differentiate dependency from addiction.

It’s nearing back-to-school time, and that means in addition to lots of yellow buses, we’ll be seeing the annual spate of education polls. The first one just came out—the 2019 Phi Delta Kappa poll—and it furnishes some interesting information illustrating why it’s so hard for public schools to inculcate values. Short answer: we just don’t agree on them, and a lot of people fear what their kids might be taught.

This edition of the survey—PDK, by the way, is an organization of professional educators—has a special focus on teaching religion, civics, and other values-based subjects, as well as presenting regular fare such as grades for public schools and lists of perceived “biggest problems.” Taken as a whole, it reveals that most people want values taught, but there is major disagreement about what values specifically, and the possible consequences of teaching them. It’s what we see play out in districts nationwide on Cato’s Public Schooling Battle Map, and no doubt in many places not on the Map because conflicts and concerns don’t make it onto reporters’ radars.

Start with civics. A central promise since the earliest days of American public schooling advocacy was that “common” schools would form good citizens. But to the extent that involves things like teaching how government works, it’s not happening. One reason may be that while those who are supposed to govern public schools—“the people”—overwhelmingly agree that civics should be taught, they don’t think it is nearly as important as other things. When asked what “the main goal of a public school education” should be, only 25 percent of respondents replied “to prepare students to be good citizens.” 21 percent said “to prepare students for work” and 53 percent “to prepare students academically.” The results specifically for parents, in the chart below, were similar.

The next problem is, if you do teach civics, what do you include? 27 percent of respondents, and 29 percent of parents, were at least “somewhat” concerned that “civics classes might include political content” with which they would disagree, with 35 percent of Republicans feeling that way. That’s less stark than one might expect if one thinks of such heated showdowns as those in Michigan and Texas over the core word “democracy,” but having more than one in four people fearing political bias means there’s a good chance of polarizing disagreement in lots of schools, making even basic civics something of a minefield to avoid.

Even more precarious is religion, but many Americans are religious, and we have seen several states pushing to include religious content, especially on the Bible, in schools. The PDK poll shows that while almost everyone thinks civics should be taught, if not prioritized, feelings are more mixed on religion. On whether comparative religion classes should be in public schools, only 7 percent of respondents said they should be required, 70 percent supported them as electives, and 23 percent did not want them at all. Bible classes were more polarizing, with 6 percent wanting them to be mandatory, 58 percent electives, and 36 percent nowhere in the schools. (Again, as the chart below shows, parents were similar to the general public.) Tracking with this, about one in four respondents feared comparative religion classes would cause students to question their families’ beliefs or change their faith, and more than one in three feared Bible classes “might improperly promote Judeo-Christian religious beliefs.”

Again, those numbers may feel a little low, but having any sizable share of families potentially object to what is taught is a powerful deterrent against presenting the material. Indeed, while the pollsters found nearly unanimous approval for teaching generic “honesty” and “civility,” nearly 40 percent of respondents said it would not be possible to get people in their community “to agree on a set of basic values.”

All of this points to an inherent problem for public schools in a diverse society: It is very difficult get diverse people to agree on what to teach, especially on highly personal matters such as religion, or highly volatile such as politics. The result is that public schools often spark social conflict, downplay anything potentially controversial, or first do one and then the other, harming social cohesion and academic rigor. Of course, there is an educational arrangement that avoids the zero-sum nature of public schooling, fostering peace and rigor: school choice. This year, PDK did not ask about that.

Yesterday the Centers for Disease Control and Prevention reported that while naloxone prescriptions have increased 106 percent in the last year, the increase has been spotty, and largely confined to urban areas. Columbia University epidemiologist Katherine Keyes told the Los Angeles Times that she suspects the increase in naloxone distribution is contributing to what appears to be a stabilization of the opioid-related overdose rate in 2018. I agree, as I have written here. 

Distributing the opioid overdose antidote naloxone is one harm reduction measure that has gained widespread acceptance among policy makers, despite a few naysayers who believe making naloxone available presents a moral hazard and may encourage non-medical drug use.

Dr. Anne Schuchat, the CDC Principal Deputy Director, told reporters she also believes naloxone contributed to the stabilization, and that naloxone needs to be more much widely distributed and employed. She told reporters,“If each person with a high-dose opioid prescription were offered naloxone, nearly 9 million prescriptions for naloxone could have been dispensed in 2018.”

Last year the Surgeon General issued a Public Health Advisory encouraging Americans to learn more about the drug and to consider carrying the drug with them if they or someone they know use high-dose opioids. 

As I have written here, a good way to help accelerate the dissemination of naloxone would be for the Food and Drug Administration to make it truly an over-the-counter drug. In the recent past, the FDA Commissioner seemed very amenable to the idea. It is time to take that next step.

A recently released working paper from the National Bureau of Economic Research by Analisa Packham of Vanderbilt University examined the impact of needle exchange programs (referred to as Syringe Exchange Programs or SEPs) on the incidence of HIV as well as overdose hospitalizations or deaths. The author concluded that the openings of SEPs decrease the rate of new HIV diagnoses by 18.2 percent. But she also pointed to evidence suggesting that they may be associated with an increase in visits to hospital emergency rooms for overdose, and an increase in overdose deaths. The author concluded, “needle exchanges alone may be less effective than other interventions at stimulating recovery.”

This paper was recently cited in National Review as an argument against needle exchange programs. Without having had the chance to study or comment on the study’s methodology, I have a few remarks to make to those who see this as an argument against this proven harm reduction strategy.

• Needle exchange programs are a time-tested, proven method of reducing HIV and hepatitis ever since they were first implemented in this country in the 1980s. The principal goal of the program was to reduce the spread of deadly blood-borne infectious diseases. This latest working paper from the NBER provides yet more evidence of the efficacy of needle exchange programs for the reduction of HIV transmission.
• While many needle exchange programs refer clients to rehab programs, people have to be motivated to enter and stay in such programs. And not all rehab programs are the same. Some, like 12-step abstinence programs, have a high drop out rate. Other programs, like Medication Assisted Treatment, sometimes are more effective, depending upon the degree of social support and adjunctive psychotherapy.
• Not every illicit substance user is an addict in need of “recovery.” Many are recreational users. In fact, many who begin recreational use of illicit drugs after the age of 25 are not addicted, and the majority of illicit drug addicts recover without treatment by the time they reach 30.
• Needle exchange programs were never touted as a means to reduce overdose or overdose deaths—just the spread of disease. However, very recently, many needle exchange programs have started handing out naloxone to their clients to use in the event of an overdose, which still may be problematic if a drug user is alone at the time of overdose.
• This is precisely why Safe Injection Facilities, also known as Safe Consumption Sites or Overdose Prevention Sites, are being promoted in the US. Unfortunately, they are prohibited by federal law—“Crack House Statute”—which prevents several major US cities from establishing them. The Department of Justice is, at this moment, preventing a non-profit group in Philadelphia from opening a “Safehouse” for IV drug users in its Kensington district.
• Safe Injection Facilities work effectively in more than 102 major cities in Europe, Canada, and Australia—since the early 1990s—to reduce overdose deaths precisely because there are people standing close by with naloxone while a drug user injects in a clean and safe environment. Furthermore, the used needle and syringe are collected after each use so they cannot be sold or shared with others out on the street. Recent studies from the University of Pittsburgh and the Canadian Institutes of Health are among the several studies that demonstrate Safe Injection Facilities reduce overdose deaths and save lives. We had a panel on Safe Injection Facilities that featured the program director of North America’s oldest such facility in Vancouver, BC at a harm reduction conference held at the Cato Institute last March. You can view that panel here. The clean, safe, compassionate, and non-judgmental environment these facilities provide is also conducive for referrals to rehab and other social services.
• Harm reduction and addiction recovery are not the same thing. The strategy of harm reduction begins with the understanding that there will never be a drug-free society. It seeks to reduce the harm that results from the non-medical use of licit and illicit drugs. Needle exchange programs were never created for “stimulating recovery,” but rather as programs designed to reduce the harm to people who continue to use. It is therefore inappropriate to judge the efficacy of needle exchange programs as a means of attaining recovery.

For these reasons, my immediate reaction to this latest NBER study is to conclude that it found, as did many other studies that preceded it, that needle exchange programs are an effective way to reduce the spread of HIV. It also pointed out the shortcomings of needle exchange programs, which is precisely why harm reduction advocates point to the need to federally decriminalize Safe Injection Sites. 

Rather than making the case against needle exchange programs, I find this study augments the argument for Safe Injection Facilities. 

The Bureau of Economic Analysis has released data on worker pay for calendar 2018. The data show that compensation for U.S. private-sector workers grew faster than for federal civilian government workers last year.

Average wages for private workers increased 3.2 percent in 2018, outpacing the increase for federal workers of 2.7 percent. Total compensation (wages plus benefits) for private workers increased 3.2 percent in 2018, topping the increase for federal workers of 2.9 percent

That is good news for private-sector workers, but their pay still falls far short of pay for federal workers, on average. Federal workers had average wages of $94,463 in 2018, or 49 percent more than the private average of $63,306. Federal workers had average total compensation of $135,971 in 2018, or 80 percent more than the private average of $75,381.

Experts agree that federal government workers have a large advantage in their gold-plated benefits packages. Federal pension and health benefits are excessively generous.

The chart shows the growth in average federal and private-sector compensation since 2000. Federal compensation grew much faster than private compensation until a brief federal wage freeze under President Obama. But since the freeze ended, federal compensation has resumed its upward trajectory. Over the past five years, federal compensation has grown 18 percent compared to growth of 13 percent in the private sector.

This study examines federal compensation issues in detail, and the underlying BEA data are in section 6 tables here.

During Wednesday night’s Democratic presidential debate, Tulsi Gabbard tore into Kamala Harris for her track record as a prosecutor in San Francisco and later as California’s Attorney General. The attack was sharp and effective, earning Gabbard an outsize share of the post-debate commentary. Its thrust was entirely fair, too, as any number of articles have demonstrated, including Lara Bazelon’s recent takedown in The New York Times titled Kamala Haris Was Not a Progressive Prosecutor.


The real significance of Gabbard’s critique, however, lies not in the proposition that Harris was a particularly unprofessional or malign prosecutor, but rather in the fact that she seems to have been a rather ordinary prosecutor who simply did her job the way most prosecutors do. And if that makes a former-prosecutor-turned-presidential-candidate look like a monster, then perhaps that says more about prosecutors in general than it does about Kamala Harris in particular.

Related Podcast

Cato Daily Podcast: Prosecutor Turned Senator Kamala Harris on Criminal Justice

Kamala Harris, now a candidate for Vice President, did some things as a prosecutor that should make people question her fidelity to the law, but that doesn’t place her outside the mainstream of prosecutors. Jay Schweikert comments on Harris’s background.

Listen here.

Gabbard’s gut-punch underscores the difficult position that modern prosecutors find themselves in as the key players in a substantially immoral and increasingly indefensible criminal justice system. A near-universal blind spot of career prosecutors like Harris is their failure to appreciate the fact that law and morality can—and in our system frequently do—diverge.


Is it hypocritical for a person who has used marijuana to prosecute someone for possessing or selling it? Plainly yes, as Gabbard suggested in calling out Harris for doing precisely that. But enforcing bogus laws is not just hypocritical, it can be immoral as well. Consider the Fugitive Slave Act of 1850, a federal law that, among other things, required citizens of free states to assist in the capture and return of escaped slaves. Or eugenics laws adopted by more than half the states during the 20th century that subjected tens of thousands of law-abiding citizens, mostly young women, to forced sterilization and a childless future. Then there’s Shreveport, Louisiana’s ordinance making it a crime to wear saggy pants. Some 726 men, 96 percent of them black, were arrested under that law between its adoption in 2007 and its repeal in June of this year, after a Shreveport officer shot and killed 31-year-old Anthony Childs while trying to arrest him for wearing pants that didn’t come up to his waist. All of those laws were immoral, and participating in their enforcement constitutes a manifestly immoral act.

Though prosecutors often claim they have no choice but to enforce the laws as written, that simply isn’t true. First and foremost, of course, they can resign. Second, they can exercise prosecutorial discretion to make better—and more ethical—use of law enforcement resources. Indeed, in an era when police solve fewer than two-thirds of all homicides and thousands of rape kits go untested, the fact that there were more arrests for marijuana possession in 2017 than for all violent index crimes (murder and nonnegligent manslaughter, rape, robbery and aggravated assault) combined is obscene. Finally, line prosecutors may simply refuse to work on certain types of cases as a matter of principle.


So there are some laws that are immoral to enforce at all. Other laws are immoral to enforce against certain people under certain circumstances. For example, whatever the morality of prosecuting people who prefer the safest of the three most popular mood-altering substances in America (alcohol, tobacco, and marijuana), it is certainly immoral to enforce marijuana laws against people who suffer from cancer, seizures, PTSD syndrome, or wasting diseases like AIDS, particularly when it appears no other therapy offers comparable—or, in some cases, any—relief.


Besides enforcing laws that are substantively immoral, prosecutors routinely employ a vast array of morally indefensible tactics in the ordinary course of their business. These immoral practices are too numerous to catalogue here, but examples include:

• Overcharging and charge-stacking in order to increase a defendant’s exposure to punishment—and willingness to plead guilty. Federal prosecutors did this when they hit Internet genius Aaron Swartz with a 13-count indictment exposing him to 35 years in prison and a million-dollar fine for breaking into a computer closet at MIT and initiating a mass-download of articles from the JSTOR academic database. The feds offered a six-month plea deal, but Swartz died by suicide during plea negotiations. That sort of tactical overcharging-then-discounting is absolutely routine in both state and federal prosecutions. 
• Using grossly excessive mandatory-minimum sentences to coerce defendants into pleading guilty. A Kentucky prosecutor did this when the defendant in an $88 check-fraud case rejected his plea offer of five years, prompting the prosecutor to follow through on his threat to reindict the man as a habitual offender, thereby exposing him to a mandatory life sentence, which the Supreme Court upheld in Bordenkircher v. Hayes (1978) when the defendant went to trial and lost. “Lawful but awful,” as judges sometimes say in acknowledging the fundamental injustice of their rulings.
• Threatening to indict friends or family members if the defendant refuses to plead guilty. Criminal defense attorneys say this happens all the time, particularly in federal prosecutions.
• Threatening potential defense witnesses in order to discourage them from testifying. The Enron prosecutors were credibly accused of doing this with dozens of witnesses in a deliberate attempt to sandbag various defendants.
• Engaging in plea negotiations while withholding so-called Brady material favorable to the defense that the prosecutor knows will have to be disclosed if the case proceeds to trial.  True to character, the Justice Department offered a full-throated—and ultimately successful—defense of this practice in a 2017 amicus brief before the Fifth Circuit Court of Appeals.
• Insisting that a defendant waive various rights as a condition for accepting a plea offer. These rights include the ability to subsequently FOIA prosecutors’ case file to see whether they withheld Brady material or to appeal one’s sentence if a legislature reduces the sentencing range for the crime at issue in the future.
• Resisting reasonable post-conviction DNA-testing requests. This nearly uniform practice, including by Kamala Harris, is particularly galling given that 365 people have been exonerated through DNA tests by the Innocence Project since 1989. 
• Invoking the judge-made doctrine of absolute prosecutorial immunity. The Supreme Court has invented from whole cloth the doctrine of absolute prosecutorial immunity, which protects prosecutors from civil liability even for the most egregious, deliberate acts of misconduct, including ones that lead to the false conviction and lengthy incarceration of an innocent person.

While these practices are legal and widespread, they are also immoral. For too long, too many prosecutors have embraced the fallacy that if the law allows them to do something, then it must be morally acceptable to do it. But public reaction to Tulsi Gabbard’s attack on Kamala Harris—again, not for being a particularly vicious prosecutor, but rather for being a perfectly ordinary one—suggests it might be time for prosecutors to reconsider that fallacy—particularly if they aspire to higher office.