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New York’s Small Step on Pot Isn’t Enough

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The Editorial Board
, New York Times
New York’s Small Step on Pot Isn’t Enough

New York City’s Police Department suffered a major embarrassment this spring when a New York Times investigation demolished the department’s claim that people of color were more likely than others to be arrested on petty marijuana charges, because citizens in their communities complained more about pot smoking. The investigation found that even when complaints were factored in, the police nearly always arrested people at a higher rate in black areas.

A new policy Mayor Bill de Blasio announced on Tuesday will lead to fewer people being arrested for smoking marijuana in public. But the new approach — in which officers would usually issue summonses instead of hauling people off to jail — does not address the core problem of racial inequality and poses new dangers.

Marijuana has been essentially legalized for middle-class, white residents, who are rarely arrested on minor pot charges, while smoking it is still being punished in communities of color. The disparity is indefensible. These petty arrests don’t make the public safer, while defendants who get sucked into the justice system on low-level charges can have trouble getting jobs, attending school or entering the military, and run a risk of long-term entanglement with the law.

De Blasio estimated that giving most people summonses for smoking in public would eliminate about 10,000 arrests per year — more than half the total number — which is clearly an improvement over the status quo. This would also move the city a step closer to abolishing a class of arrests that no longer even exists in some states — including those where marijuana has been legalized.

The new policy, however, is less than ideal. For starters, summons court judges often issue warrants when people forget their court dates, which can lead to those people being fingerprinted and dragged through the criminal justice system. There is something patently unfair about letting a petty offense morph into a criminal record that dogs a person for the rest of his or her life.

New York City released its new plan a day after the New York state Health Department announced that a study commissioned by Gov. Andrew Cuomo would recommend that the state allow adults to use marijuana legally. This comes as something of a surprise, given that Cuomo last year described marijuana as “a gateway drug.”

Legalization would require approval of the state Legislature. Under ordinary circumstances, the conservative state Senate would most likely reject the idea out of hand. But the legalization of recreational marijuana that just passed in Canada — with which New York State shares hundreds of miles of a border — combined with legalization campaigns in neighboring states could force the normally hidebound Legislature to legalize the drug, if only to make sure New York gets a piece of an emerging industry.

Meanwhile, critics both inside and outside law enforcement are rightly attacking the part of New York City’s new marijuana plan that will continue to allow for the arrest of people on probation or parole who are struggling to re-enter civic life. On Tuesday, the Manhattan district attorney, Cyrus Vance Jr., said through a spokesman that such a system could easily intensify the already glaring racial inequities that come with marijuana enforcement.

Assessing the damage done by petty marijuana prosecutions, Vance has said his office would decline to prosecute marijuana cases beginning Aug. 1 — except in cases in which the Police Department can prove the defendant represents a danger to public safety. Other district attorneys should follow Vance’s lead.

How the Government Can Lower Drug Prices

In Baltimore, the health commissioner, Dr. Leana Wen, uses a need-based algorithm to decide which emergency rooms, needle-exchange vans, EMTs and opioid outreach workers receive the city’s limited supply of naloxone — and which don’t. The drug, which reverses overdoses, has saved some 14,000 Baltimore residents since 2015. But its price has increased in recent years, by between 95 and 500 percent, depending on which version of the medication is being considered. Even with donations and discounts from drugmakers, Wen says the city can’t afford all the naloxone it needs.

In Louisiana, the state secretary of health, Dr. Rebekah Gee, says officials must weigh the number of hepatitis C patients they could cure with new medications against a host of other priorities, like infrastructure and universal preschool. The drugs’ list prices run from $26,400 to $96,000 per person. Roughly 2.7 million Americans suffer from hepatitis C, a painful, often deadly infection spread mainly through injection drug use; roughly 20,000 of them are Louisiana residents who receive health care through state-funded programs. Even with various discounts, Gee says she cannot treat everyone on the state’s rosters.

Such calculations are being made everywhere, and not just because of the opioid crisis. Twenty-somethings fresh off their parents’ health insurance are rationing insulin; seniors are choosing between heart medications and groceries. Lives are laid to waste as cures stand at the ready.

One possible solution involves an obscure part of federal law known as Section 1498. The provision acts as a sort of eminent domain for patented inventions, allowing the government to circumvent patent protections as long as the patent holder is fairly compensated. In the case of a pharmaceutical, the Department of Health and Human Services can authorize a drugmaker to produce a low-cost generic version, which it could then buy in bulk. Both Gee and Wen have asked the government to consider invoking the law to address the twin epidemics of opioid overdoses and hepatitis C.

In the late 1950s and 1960s, the federal government routinely used 1498 to obtain vital medications at a discount. According to a paper in The Yale Journal of Law and Technology, it enabled the Department of Defense to save a total of $21 million on 50 drugs in one three-year period.

But the law fell out of use, some say as a result of the pharmaceutical industry’s growing influence on Capitol Hill. In 2017, drugmakers deployed 882 lobbyists and spent more than $171.5 million, thwarting efforts to lower prescription drug prices.

President Donald Trump campaigned on a promise to “negotiate like crazy” to reduce the cost of prescription drugs by “billions and billions and billions” of dollars. Such boldness has been conspicuously absent since he took office. Trump has taken no steps to negotiate prices with drug companies, and neither he nor his health and human services secretary, Alex Azar, have expressed interest in 1498. Meanwhile, pharmaceutical stocks are soaring.

The administration’s own opioid commission has advised the government to negotiate with drug companies to cut naloxone prices. Surgeon General Jerome Adams has issued a public health advisory — the first one since 2005 — urging opioid users and their loved ones to buy naloxone and keep it within reach. Most states have taken steps to make the drug easier to get, but availability is still a significant problem, largely because of cost.

The National Academies of Sciences, Engineering and Medicine recently concluded that “unrestricted mass treatment” of hepatitis C would eliminate the disease as a public health problem by 2030. Independent experts convened by Johns Hopkins University said that if drugmakers resist other options, 1498 would be a good way to accomplish that.

As Azar might remember, even the threat of a patent override can be a powerful motivator for an industry that lives and dies by its patent protections. He worked at the Department of Health and Human Services in 2001, when the nation was staring down an anthrax scare and his then-boss, the department’s secretary, Tommy Thompson, threatened to invoke Section 1498 to procure tens of millions of doses of the antibiotic ciprofloxacin. No need: Within days, the drug’s maker, Bayer, reduced the price voluntarily.

Drugmakers argue that high drug prices and strong patent protections are essential to spurring innovation and are justified by the high costs of drug development. But both naloxone and several of the new hepatitis C drugs were developed, at least in part, with government-funded research. Companies that make these drugs have either recouped their investments many times over or are on their way to doing so.

And, in any case, negotiations don’t have to be zero sum. There is a way for both sides to win.

For example, if the government used the prospect of 1498 to get drugmakers to the negotiating table, other potential solutions could then be worked out. One possibility is a subscription model, where a state or federal entity pays a fee for as much of a given medication as it needs. The fee would be far less than the original per-patient cost, but the company could then sell that many more doses. The government would save money, and the companies would gain an additional source of profit. Pharmaceutical companies use similar strategies to sell products in developing countries; there’s no reason the approach can’t work here.

But the federal government has to use its power to summon the drug industry to the table. Surely that couldn’t be difficult for an administration that has relished getting tough with groups far more vulnerable than Big Pharma.

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