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Leah R. Thomas Feb. 27, 2015

As the heroin epidemic sweeps through communities across the country, it takes countless young lives with it,  either through death or incarceration. Unfortunately, in our own practice, we've seen both, and every local community is talking about how this happened. Craig Mastantuono previously wrote about the paths some of our clients took. Everyone is also talking about how to stop it. I previously wrote about the heroin-related laws enacted by the Wisconsin legislature, including possession immunity for those who call 911.

In Milwaukee County, courts and prosecutors are handling the uptick of heroin related cases by moving cases to drug treatment court, which we've written about in detail, or in more aggravated cases, insisting on increased incarceration. I have a visceral reaction every time a heroin case results in an inflated jail or prison recommendation from the prosecutor "because it's heroin." It accomplishes nothing. Heroin addicts don't need to be deterred from use with jail time – they need help. It is nothing more than a slippery-slope into the sentencing disparities in crack cocaine cases that began over 25 years ago: Heroin is the new crack.

The Fair Sentencing Act of 2010 was aimed at repealing the sentence enhancers for federal crack cocaine cases. Among other things, it repealed the 5-year mandatory minimum penalty for a first-time crack possession conviction in the federal system. The result of the increased incarceration term and the reason for the repeal, is that it also resulted in a racial disparity – African-Americans were more likely to be convicted for crack cocaine.

Increased incarceration is not the answer to slow the heroin epidemic. All you have to do is look at the what it didn't do to halt the crack cocaine epidemic and what it did do to Wisconsin's African-American male incarceration rates. Since that time, criminal justice policy in this area has progressed, and some have come to a realization that we can't incarcerate our way out of this problem, that the rational response model of deterrence through threat of incarceration has low success. Moreover, our prisons are breaking our bank. With more recent alternatives like drug treatment courts and treatment-focused diversion and deferred prosecution agreements – in Milwaukee and elsewhere – some are slowly realizing that combatting the heroin epidemic needs a different approach. If these programs are more robustly supported and increased, perhaps we can reverse the trend of heroin becoming the new crack. Until then, the jury is out.