Hasta La Gadget!

This piece comes to us courtesy of Stateline. Stateline is a nonpartisan, nonprofit news service of the Pew Charitable Trusts that provides daily reporting and analysis on trends in state policy.

For governors and lawmakers in nearly every state, the soaring overdose death toll from prescription painkillers, heroin and fentanyl has become an urgent priority.

Lawmakers in dozens of states took decisive action this year to stanch the flow of prescription pain drugs and help those addicted to them. Roughly 2.5 millionAmericans are addicted to opioids, and more than 28,000 people died of overdosesof painkillers or heroin in 2014, the highest toll ever.

To keep even more people from becoming addicted to medicines such as Percocet, OxyContin and Vicodin, lawmakers in five states set limits on the number of pills a physician can prescribe to a patient for the first time. Twenty-nine states beefed up monitoring of filled prescriptions to prevent addicts from “doctor shopping” for more pills.

Sixteen states expanded the use of naloxone, an overdose antidote drug few lawmakers had heard of just a year ago. And at least nine states adopted requirements that Medicaid and other insurers pay for all medically recommended addiction services, just as they would for other diseases, according to the National Conference of State Legislatures (NCSL).

Among lawmakers, governors and the medical community, there is broad support for measures aimed at rescuing people from fatal overdoses, providing more addiction treatment options and keeping highly addictive opioid pain medicines out of the hands of those who might abuse them. More doctors and patients are beginning to eschew opioids for alternatives such as anti-inflammatory medications, exercise, physical therapy, acupuncture and psychotherapy.

But the new laws are not without controversy. In several Northeast states, doctors are balking at new limits on the number of pills hospital emergency departments, physicians, dentists or nurses can prescribe for acute pain. Prominent medical groups, including the American Medical Association, argue that doctors and patients, rather than lawmakers, should be able to balance the need for pain relief against the risk of addiction in individual cases.

Prescribing Limits

Dr. Yngvild Olsen, past president of the Maryland Society of Addiction Medicine, said the prescription limits, typically a seven-day supply of pills for a minor procedure or injury such as a tooth extraction or sprained ankle, could cause some doctors to simply stop prescribing opioids because many of them bristle at being told how to practice.

“Arbitrary pill limits or dosage limits are not the way to go,” said Dr. Patrice Harris, chairwoman of AMA’s committee on opioid abuse. “They are one-size-fits-all, blunt approaches.”

Dr. Andrew Kolodny, director of Physicians for Responsible Opioid Prescribing, said patients would be better served if states urged doctors to talk to them about the risk of addiction and required a signed informed consent before prescribing. States also could require doctors to write a detailed treatment plan before prescribing opioids, and insist that prescribers seek prior authorization from a pain expert before prescribing high doses of opioids, he said.

In March, the U.S. Centers for Disease Control and Prevention released recommendations for primary care physicians and others who prescribe opioid painkillers, the first time a federal agency has issued prescribing directives. The agency called on prescribers to voluntarily limit their first prescriptions for acute pain to a three-day supply or less, rather than a 30-day supply, which is common practice in most hospitals and physicians’ offices. The final guidelines noted that “more than seven days will rarely be needed.”

After the CDC released its preliminary recommendations late last year, Massachusetts Gov. Charlie Baker proposed a mandatory three-day limit on first-time opioid prescriptions. State legislators opposed three days but agreed to seven, and Baker, a Republican, signed the compromise bill in March.

Seven-day limits also were adopted in Connecticut, New York, Maine and Rhode Island this year. Vermont left the precise number of days or pills for acute pain up to the state Health Department, which will consult with the state Medical Society before issuing a final rule.

In part, states were spurred to action by a National Governors Association committee formed to develop a unified state response to the opioid crisis.

At a February meeting of the group, Vermont Gov. Peter Shumlin, a Democrat, called on fellow governors to stop doctors from handing out painkillers like candy or prescribing them “just in case” a patient needs them.

Prescription Drug Monitoring

In contrast to prescribing limits, there is little resistance to tougher prescription monitoring laws. States have been tracking prescriptions for opioids and other federally regulated substances since the 1930s, primarily as a tool for law enforcement. Today, every state except Missouri has some type of tracking system, but the rules governing who has access to the information, how quickly pharmacies must enter dispensing data, and which medications are included vary widely. 

By tapping into a database of prescriptions, doctors can check patients’ opioid medication history, as well as their use of other potentially harmful drugs, such as sedatives and muscle relaxants, to better assess the risk of addiction or overdose death. A new study by researchers at Vanderbilt University in Tennessee found that state tracking systems have helped lower overdose deaths over the last 20 years.

This year at least 29 states updated their prescription monitoring statutes to improve their effectiveness.

Updates include requirements that pharmacists track more medications and upload the data as prescriptions are filled rather than weekly or monthly, new provisions allowing prescribers to delegate a member of their team to access the confidential information, and requirements that physicians review nearly all patients’ prescription drug histories before prescribing opioids or other dangerous or addictive medications.

Emergency Overdose Treatment

Most fatal opioid overdose victims die from a lack of oxygen because their lungs shut down one to three hours after taking a drug. That leaves a substantial amount of time for a friend, family member or bystander to administer naloxone (sold as Narcan), which is highly effective at reversing the effects of opioid intoxication.

Naloxone was federally approved in 1971, but until the late 1990s it was only used in hospital emergency departments and operating rooms. Even emergency medical personnel and other first responders did not use the rescue drug initially.

The opioid epidemic, which first took hold in New England and Appalachia around 2006, changed that. As of last week, all but three states — Kansas, Montana and Wyoming — had laws ensuring first responders and others could get access to the life-saving drug.

In addition, at least 32 states and the District of Columbia have so-called good Samaritan laws that provide varying levels of legal immunity to bystanders who call for help when someone has overdosed on drugs.

This year, Alaska, Arizona, Hawaii, Iowa, Missouri and South Dakota enacted naloxone laws. Ohio enacted a “good Samaritan” law and Rhode Island renewed one that had expired.

More Treatment

Since January 2015, several states, including Ohio, Illinois, Indiana, Massachusetts, New Jersey, New Mexico, New York, Rhode Island and West Virginia, have adopted new laws aimed at expanding addiction treatment services for the growing number of people seeking them, according to NCSL.

New York’s new addiction treatment law, for example, requires insurers to give people seeking treatment immediate access to care and to cover at least 14 days of continuous treatment before requiring authorization from providers. It also requires health care providers to use objective, state-approved criteria to determine what level of care a patient needs.

To protect patients from potential overdose, New York’s new law also allows families to seek 72 hours of emergency treatment, up from 48 hours.

Some states, including California, Indiana and Missouri, adopted new Medicaid rules to ensure enrollees with drug addictions have access to high quality treatment options, including medications, residential care and outpatient counseling and therapy, according to the National Association of Medicaid Directors.

An influx of federal money could prompt more states to adopt addiction treatment measures. President Obama’s proposed 2017 budget includes $1.1 billion to help states make medication-assisted treatment more available to opioid addicts.

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You are a judge – you see yourself as sober, clear-eyed and unbiased – on the verge of imposing sentence in a date rape case somewhere in America. Or a gay murder/hate crime sentence is before you. There is no jury; it is just you, the judge. In the face of recent, traumatic events is there any chance that you will extend leniency to the defendant standing in the dock – even if the case is unrelated, and even if leniency for him in his particular situation is truly warranted? Put otherwise, how willing will you be to expose yourself to the shrapnel from a tabloid-driven public’s demand for vengeance – frankly, for blood lust – in the wake of fallout over the aberrant sentence in Stanford? Or the atrocity of mass shootings at a gay night club in Orlando, Florida?

As if we need to be reminded, Judge Aaron Persky sentenced Brock Turner to six months in jail after the Stanford University swim-team member raped an unconscious woman after a party. The backlash was swift, immediate and unrelenting. Judge Persky is facing a recall effort; and he was removed from another sexual assault case assigned to him after complaints by prosecutors.

Was the uproar deserved? Put it into context. Yes, the pre-sentence report prepared by a county probation officer recommended six months, and, had Turner admitted his guilt, even his victim did not initially believe he should “rot in prison,” but . . . after trial and in response to Turner’s statements, the victim gave a compelling and graphic description of what she went through. And Turner’s father – a role model for his son? – asked for leniency because Brock had paid a “steep price” for “20 mins of action.” As to Orlando – what can be said. Forty-nine people dead and dozens injured while in a gay nightclub at the hands of an American man wielding an assault style rifle who called 911 during his rampage to proclaim fealty to ISIS.

Yes, the current state of affairs notwithstanding, you – a judge – might in your own mind’s eye imagine yourself capable of (courageously) staring down a public outcry. Let’s face it: pronouncing a harsh sentence is the easiest way to quell a potential public outcry. The average judge in the crosshairs probably won’t show the same integrity – an ability (or is it willingness?) – to brook the public’s undoubted opprobrium in according leniency. Nor, probably, would a state court judge, now, attempt leniency in a state with a recall vote (as Judge Persky has). Should we realistically expect judges to wear “blindfolds” with unwavering commitment to judicial purpose when the public backlash will likely be unrelenting?

Judges should (and often will) be scrupulous – they should look at the proof, the statements, the factors solely concerning the defendant before him when imposing a sentence. Yet, it is virtually inconceivable that even the most focused judge imposing a sentence will be totally uninfluenced by a current event such as Orlando or Stanford; which are not only inescapably in the public’s perception, but in the judge’s as well.

So what can be done to make certain (or as certain as possible) that a judge looks at the person before him, and only that person? Theoretically, “the System” could impose a moratorium on sentences that might be tainted because of the headlines of the day – but we all know that is not even moderately realistic. Defendants waiting to be sentenced; all judges being prohibited from sentencing because the headlines talk about similar, yet completely unrelated events? Ridiculous, really.

Another possibility? Should judges be affirmatively required to address the elephant-in-the-room when imposing sentence? Also silly! Now, sometimes a judge will say before sentence: “I read the paper; I know X happened last week in another state or another case but I will not consider it when imposing a sentence.” But, he might be doing that merely to “create a record” – a virtually unimpeachable record for an appellate court even if the comment might not necessarily be candid.

And when a judge does consider external factors, we want him to disclose his influences! A defense attorney would want a prosecutor to tell him exactly what he thinks about the defendant, and all attorneys – not to mention, the public – should want the same from judges. It gives counsel a fair opportunity to formulate and anticipate arguments by knowing what the judge thinks and, importantly, what outside factors he considers. It is also illuminating for the public, and allows all to know how justice is being administered.

There are judges who tell the world exactly what they think. As a case in point, remember televangelist James Bakker? PTL (Praise the Lord; People that Love), Tammy Faye and Heritage USA, the Christian Retreat Center for families. Back in 1990, Reverend Bakker was convicted for fraud and conspiracy. When sentencing him to 45-years, the judge said this: “He [Bakker] had no thought whatever about his victims and those of us who do have a religion are ridiculed as being saps from moneygrubbing preachers or priests.” Bakker’s appellate attorney, Alan Dershowitz, argued that this comment revealed that the judge improperly factored his own sense of religion into the sentence. Acknowledging that trial judges occasionally misspeak during sentencing without it being a basis for reversible error, the Court of appeals, with “genuine reluctance” remanded the Bakker case because the comments were “in the end, too intemperate to be ignored.” As an aside, Bakker was ultimately resentenced by another judge to serve 8 years. Whatever one might thing of Bakker and the judge’s view of him, the process ultimately worked because, although the judge was in error, ironically he was honest in acknowledging his prejudices (although he may not have seen them as such), which ultimately led to justice being meted out.

Earlier this month, Justice A. Kirke Bartley in Manhattan State Supreme Court presumably told the world exactly what he was thinking when he sentenced a man convicted of shooting a gay man to 40 years-to-life in prison: “I can’t help but perceive or observe the parallel to the tragedy in Orlando, that parallel is revealed in hatred, self-loathing, fear and death.” Was he right to consider Orlando when sentencing this particular defendant? Not for us to decide here; but by putting his considerations on the record, he at least allowed an appellate court to review what factored into his analysis. And everyone should want that.

In another context, Judge Richard Berman of the Southern District of New York spoke his mind when asked to allow wealthy businessman, Reza Zarrab, who had passports from Turkey, Iran and Macedonia to remain out of jail, under house arrest, while awaiting trial. Zarrab was charged with defrauding the United States through a scheme to allow Iran to access U.S. financial networks for the purpose of evading sanctions. While awaiting trial, he offered to: post a $50 million bond secured by $10 million in cash, restrict travel, surrender all passports and submit to home detention with GPS monitoring coupled with the retention of a security company to insure compliance. Judge Berman rejected the proposal, concluding that there was no set of circumstances which could insure Zarrab would appear for trial. And in doing so he noted, in bold letters: “Most importantly, the Defendant’s privately funded armed guard proposal is unreasonable because it helps foster inequity and unequal treatment in favor of a very small cohort of criminal defendants who are extremely wealthy. . .”

Inequity and unequal treatment for a wealthy cohort of criminal defendants? By using these words, Judge Berman may have opened himself to criticism – to the question of whether he was addressing the circumstances of this particular defendant or rather general concepts of justice for rich vs. poor. And since Judge Berman had already concluded that there was no guarantee that Zarrab would return for trial absent incarceration, perhaps he was using those words to make a broader point. In either case, Judge Berman conveyed to the parties, an appellate court and the public exactly what factored into his decision so that, if he impermissibly considered issues to cause “reversible error,” his ruling can be addressed.

Now, of course, one can never know for sure what is in a judge’s mind when he sentences any more than one can always know what is in the mind of his spouse or close friend. But given our 24-hour (incessant?) news cycle, and the news “alerts” we see every time we look at our phones (which for some of us is, all the time), it is virtually impossible to believe that judges are not influenced by the stories of the day, no matter how unrelated they may be to the defendants before them.

In criminal justice – even more than anywhere else in our justice system –
‘truth’ should always be the coin of the realm! Most judges will impose a sentence based solely on what is before them. Others may straight-out tell counsel the inherent and external factors bothering them (maybe, viscerally). But the most difficult is when judges say nothing about public events. If the defendant before the judge is a college student with facts similar to Stanford or a Muslim man on a charge of gun possession, everyone deserves to know the judge’s mind.

Should (or can) judges be required to recite every factor that goes into their thinking? Of course not. But when there is something in the news, something glaring at us from every headline that remotely touches a defendant, the judge should at least self-examine concerning the elephant in the room and the impact it might be having on her thinking.

A judge willing to look in the mirror to identify (and hopefully purge) her prejudices in a particular case, whether while on the bench or before she even gets there on the day of sentence, better dispenses justice. She will then better replicate the model of justice we have all come to visualize: the blindfolded lady, scales in hand.

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Amazon added over 50 new Dash buttons to their lineup this morning, and while you probably don’t need most of them (except the Nerf one, you definitely need that), there may be a few in there that could come in handy around your house. The buttons still cost $5 each, but as an added incentive, you’ll get that $5 back in the form of an Amazon credit when you press it for the first time.

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British geophysicists have discovered evidence of an ancient drainage network buried beneath Greenland’s ice sheet that once extended across nearly a fifth of its total surface. Some of the channels within this system were about a mile deep and over seven miles wide.

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Porsche has shrugged the silk off of the new 2017 Panamera, its redesigned four-door that promises lashings of performance for those who need more space than a 911. Revamped with styling borrowed from the 2017 Porsche 911 – which we drove earlier this month – along with the latest Cayman and 718 Boxster, the new Panamera gets a swooping, coupe-esque … Continue reading