Criminally Yours: Can White Heroin Addiction Change The Paradigm?

Until law enforcement, prosecutors, and legislators work out their own conflicted feelings about helping versus punishing drug users, maybe it's time to move this out of police hands entirely.

I’ve been representing people charged with heroin possession and sale for decades. Most of them were African-Americans — obviously, not because they’re the only people who use heroin, but because that’s just how the story’s been.

Possess a certain weight of heroin, half an ounce or more, and there’s an automatic presumption that you possess it for sale and not for personal use. Many of the self-proclaimed functioning heroin addicts I’ve met told me they could easily go through that much heroin by themselves. They bought in bulk because it was not only cheaper but safer. They wouldn’t have to go to their supplier, often in the street where they were more likely to get arrested, to re-up except once a month. It made sense.

Yet police “experts” would routinely testify at trials that no single “junkie” could possibly possess 33 bags of heroin for his own personal use. I won some of these cases and I lost some. People went to prison for 3 ½ years and up because they had a habit.

Worse even was the trick played on methadone users. It was common that undercover cops (UCs) pretending to be junkies or to have sick “old ladies” would hang around methadone clinics on Saturday mornings. Methadone users had to show up every day to drink their bottle of methadone. They weren’t trusted with taking bottles out, except on the weekend. The clinics were closed on Sundays. So on Saturdays, the UCs would wait and give the legal user a sob story to persuade him to either sell, give, or share his bottle with him. Then five minutes later, the good-Samaritan would be arrested and charged with drug sale — a B drug felony — one level less than murder.

This dynamic now appears to be changing. Why? Because white kids from middle-class and upper-middle-class families are developing habits and dying from overdoses and their parents don’t want them going to jail. Suddenly there’s a giant movement to temper the consequences of heroin possession and a bigger push to legislate for drug treatment in lieu of prison.

It’s about time, and whatever it took to happen, I’m glad it’s here. According to an article on the front page of the Times Saturday (“In Heroin Crisis, White Families Seek Gentler War on Drugs”), heroin has become the scourge of white communities. According to the article, nearly 90 percent of those who tried heroin for the first time in the last decade were white.

What started out as addiction to prescription painkillers turned into a taste for heroin. Deaths from heroin rose to 8,260 in 2013, and drug overdoses now cause more deaths than car crashes.

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But law enforcement has yet to catch up with this changed dynamic. The let’s-treat-heroin-use-as-a- health-issue and not a criminal one proposal is only erratically applied. In 18 states, if you call 911 to report a friend has overdosed and you happen to be carrying some drugs or drugs are in your house or car, you could be charged with possession – discouraging many from wanting to contact police.

Worse, if you provided the heroin that jeopardized your friend, you could be charged with murder.

So why call the police at all? If drug use is a health care issue, can’t we just get right to treatment?

I used to live in France and once came upon a heroin user, needle sticking out of her leg, in my hallway. She told me she was a diabetic, but I knew better. My first impulse was to call the police but I didn’t know the French equivalent of 911, so I asked a neighbor, a former heroin user herself. She was emphatic, “Don’t call the police. Call the firemen. They’ll bring her to a hospital, not a jail.”

Until law enforcement, prosecutors, and legislators work out their own conflicted feelings about helping versus punishing drug users, maybe it’s time to move this out of police hands entirely.

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Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.