Innovation Ecosystem

Where state drug policy and gun violence policy converge

R.I. Attorney General discusses his legal strategy when it comes to holding those responsible for the opioid epidemic accountable, including drug manufacturers, drug distributors, and consultants advising those corporate entities

Photo by Richard Asinof

R.I. Attorney General Peter Neronha, answering questions in an in-depth interview on May 18 at his office.

By Richard Asinof
Posted 5/24/21
Pursuing lawsuits to hold the manufacturers, the distributors, and the consultants responsible for the opioid epidemic requires a coordinated approach at the state level, according to R.I, Attorney General Pete Neronha, in Part Two of an in-depth interview.
Which leaders in the R.I. General Assembly will become champions of the legislative efforts to ban high-capacity magazines and crack down on straw purchases of firearms? What is the medical cost of gun violence and how is it calculated by health care systems as a rising health care cost trend? What kind of resources is the R.I. General Assembly willing to invest in increasing resources for the R.I. Attorney General to protect citizens from the corporate greed driving the opioid epidemic? What are the stumbling blocks re reforming felony laws regarding substance use in Rhode Island, particularly as the state considers legalizing recreational marijuana use?
In talking about substance use and the behavioral disorders surrounding it, particularly when it comes to how there has been a sharp increase in overdoses during the COVID-19 pandemic, one thing that keeps being left out of the conversation about recovery from the economic disruption caused by the pandemic is the wisdom that many in the recovery community have in talking about what recovery means: that it is a long-term process, often taking years to achieve, and that short-term fixes and investments often are doomed to fail.
Despite the expertise available in Rhode Island, the question is: when will Gov. McKee and his team engage with recovery community advocates and involve them in conversations with CommerceRI to chart a more long-term approach to recovery?

Part TWO

PROVIDENCE – When it comes to regulating health care in Rhode Island, the watchwords for R.I. Attorney General Peter Neronha are access, affordability, and quality – particularly when it comes to hospital mergers and acquisitions, as detailed in Part One of this series, detailing an in-depth conversation held with Neronha on May 18.

In Part TWO, the interview with Neronha focuses on the Attorney General’s efforts around holding those most responsible for the opioid epidemic – the drug manufacturers, the drug distributors, and the consultants advising them on policy – accountable for the pain and suffering they have caused so many Rhode Islanders.

To do so, Neronha has had to navigate a minefield of competing lawsuits in both state and federal courts, while at the same time managing the legal efforts with limited resources.

Nor surprisingly, the efforts to prosecute the legal war on those who profited from the opioid epidemic often run smack dab into the collision with criminal justice policy and gun violence policy.

Here is the second part of the interview with R.I. Attorney General Peter Neronha.

ConvergenceRI: If we can switch gears a bit to talk about some of your other work around drug policy. You have been very aggressive in trying to hold companies accountable, such as Purdue. What is the status of the lawsuits?

I know that it must seem as if I am always asking that question. I think it would be helpful if the general public really knew what was going on.

For instance, I nearly fell out of my chair when I learned that McKesson had been given the responsibility for distributing the COVID-19 vaccine. Why should they be rewarded for all their past, bad behavior?
NERONHA: Lets’ talk a little bit about the litigation and why it’s complicated and where it is and why there are a lot of facets to it. And then, some of the conundrums of [suing] these pharmaceutical companies.

What makes it complicated is that there are a lot of players and [lawsuits occurring] in a lot of different places.

You have states that have actions against the pharmaceutical companies, the distributors, the manufacturers, and what I’ll call the consultants -- McKinsey is an example of one of them.

That litigation has a lot of different aspects to it. You have states that have combined together in what’s called a multi-state [action]. In some instances, there hasn’t been a lawsuit brought. So they are basically just threatening a lawsuit.

Then there are states like ours, where a case has actually been filed and there’s a court case pending right now in state Superior Court. We have a trial date of January [of 2022], I believe.

In Rhode Island, in our case against the distributors and the manufacturers and the Sacklers [the private owners of Purdue] in their individual capacities, at least one of them, that case will proceed, I suspect, unless there is a settlement, either in our case or part of a national settlement.

ConvergenceRI: Do you know which judge the case is before?
NERONHA: I believe it’s Superior Court Judge Netti C. Vogel. We have a lot of balls in the air, but our case is moving along.

We are also in settlement discussions, as has been reported, involving all of the states and, as you know, municipalities around the country, and counties around the country, that have also sued various members of the pharmaceutical industry.

To be candid, that’s what makes any settlement complicated. Who represents the city of Providence? Is it the city of Providence? Or is it the Attorney General, who represents the entire state of Rhode Island, including the city of Providence?

You can see, just in Rhode Island alone, [why it is complicated]. Then there are some cities and towns who haven’t sued. Is the Attorney General representing the state but only those cities and towns that haven’t sued in their own right? Or, everybody?

That, I believe, has complicated things. I believe it has been advantageous to us to have our own lawsuit going.

Some states – I have had this conversation with my former colleague in California who is now the U.S. Secretary of HHS – Xavier Becerra. There was a lot of discussion as to how the states should share, and how attorneys’ fees should be based.

And, one of the comments I made to him was: “We filed a lawsuit. We’ve taken depositions. Rhode Island has been in the fight.”

And California, as of that conversation, I believe, to date, has not actually filed a lawsuit yet.

So, you have states that are looking to participate [in any settlement] that haven’t filed a lawsuit. You have states that have their own individual actions pending. The state of Washington, for example, I believe, will go to trial, whether there is a national settlement or not.

So, that has made the litigation complicated. So, where it ends up is where it ends up,

And then, of course, you have the Sackler bankruptcy, which is also ongoing. I’m no bankruptcy lawyer; we collectively hired outside counsel to handle the bankruptcy matters, but I couldn’t agree – I didn’t agree with the bankruptcy settlement, because in my view, I’ve said this before, and I’ll say it again today, I didn’t feel we had enough information about the Sacklers’ worth to be able to analyze whether what was being proposed was a just result.

If you want to come to the table to talk about a settlement, you have to be prepared to give us the information that allows us to understand whether that settlement is appropriate. Because how do you put a number on the loss of life or lives impacted by the opioid crisis?

It’s really challenging. To me, part of that number is [answering the question]: What kind of pain are you going to feel as someone who caused the crisis?

And, that is really only going to happen in the context of dollars. If you don’t know how much money somebody has, how are you going to know how much pain they are going to feel?

ConvergenceRI: One of the issues, and you mentioned it earlier, is attorneys’ fees. When you are talking about lawsuit that was brought by cities and town and then aggregated, I believe, in federal court in Cleveland…
NERONHA: Yes, that’s where it is.

ConvergenceRI: How much money would be going to attorneys’ fees, if there were to be a settlement? Where would the money be going, beyond attorneys’ fees?
NERONHA: One of the challenges for this office is: I have 27 civil attorneys. We had a budget hearing recently and I was describing the work of the civil attorneys.

Before I get to your question, I am going to lay out exactly what we do in the civil division, and that will explain I think my answer.

There are 27 lawyers. Those 27 lawyers are defending, as of my Senate budget hearing, 573 state cases involving things like tort liability.

So, [hyopthetically], say somebody gets run over by a R.I. DOT truck. A state employee is sued for whatever. We are defending 573 of those cases, with an exposure to the state of nearly $70 million.

That’s just defensive work alone. That’s not environmental work, that’s not health care, that’s not consumer protection, that’s not insurance.

That’s just defending the state: 573 cases, with $67 million in exposure.

We’ve already talked about health care. I’ve got four people doing health care. I’ve got three people doing environmental work. I’ve got public utilities to cover. I’ve got consumers to cover.

What that means is: I don’t have the lawyers here to bring a case against the pharmaceutical industry alone. I probably need five lawyers, full time, to do that.

And frankly, to recruit the level of talent I need to bring that kind of a case, my budget would have to go up substantially.

Now, unlike other states, take Mass. AG Maura Healey’s office, for example, she has 300 lawyers. Her office has limited criminal jurisdiction, because there are district attorneys in Massachusetts; she can build a much different office than I can build [here in Rhode Island]. With California, same thing; with New York, same thing.

So, when this office brings that kind of litigation, we have to get outside counsel. I don’t like outside counsel; I’d much rather do it out of [this office]. I wouldn’t have to call a law firm in South Carolina. Or, in California, as in our climate change case.

But, the reality is, this office can’t bring those kinds of cases without outside counsel. And so, as a result, we’re going to pay a contingency fee in those circumstances. The question is: What’s the amount of the contingency fee? And how do we solve for it in terms of the settlement?

One of the things that has been the topic of conversation, and I can’t get into it, because we are still involved in those negotiations, is: what fees are reasonable? And, where is the money for fees coming from?

In other words, we want to make sure that every dollar that we can comes back to the state to handle the opioid crisis. But, the reality is, without outside counsel, we would not be able to bring this case in the first place. That’s just the reality of where we are.

So, when we walk into court, when that case gets tried, next January, there will be a lawyer from this office, at least one from this office, and at least one from the outside firm, Motley Rice, which is trying this case. That’s just the reality.

So, then you come to the question, which is: Once it gets to Rhode Island, what happens to the [settlement] money?

And, that’s another challenge. You’re right, I want to make sure that the money goes to wherever it’s supposed to go. At the same time, I am not a grantmaker here.

I don’t want to have to choose winners and losers. And, frankly, under Rhode Island law, it’s not clear that that is my function. Some of my predecessors have done it that way.

I worry about that a little bit. Because, I would be picking who to give the money to. And then, who audits it afterward? Who makes sure that [the money] is being spent in the right way, and in an effective way?

One of the things that we are still working out is this: We’ve got the $2.5 million from McKinsey settlement [Rhode Island’s share of the $537 million settlement in a case brought by 47 state attorneys general], what do you do with that money?

Does it go back to the R.I. General Assembly? For them to use it in a way that is consistent with the consent decree? I made that pretty plain in the consent decree in that case, it  mandates that it be used to alleviate and remedy the opioid crisis.

But where within state government does it go? How can we assure that it is used in an effective way? And that is a knotty question that we are still grappling with.

And, here’s the thing. How we answer that question is going to drive whatever other recoveries follow McKinsey through the door. So, we want to try and get it right in the first instance, and we are still working that through.

ConvergenceRI: When you start to talk about “legislative” actions that can increase your ability to do your work as Attorney General, I know that, in the past, you have been a strong advocate of changing some of the drug laws, in terms of what gets criminalized, and what doesn’t…
NERONHA: Yes.

ConvergenceRI: …changing the focus in how we look at – it’s not addicts, or people who are abusing things, but it really about seeing substance use as chronic illness, if you change the laws, you change the responsibilities of the criminal justice and how it deals with people who have those issues…
NERONHA: Yes.

ConvergenceRI: …Which are inherently tied up with how we fund criminal justice, and mental health and behavioral services, where there is a great unmet need.

Sorry if my questions are rambling.
NERONHA: Not at all.

ConvergenceRI: In terms of the legal remedies that would help you in your work, what are those things?
NERONHA: What you are talking about dovetails I think with what we’ve been talking about in the last 48 hours, 72 hours, about gun violence.

Those things are symptomatic of an underlying problem that the criminal justice system can’t fix. We can respond to it, but we can’t fix it.

So, talking about drug policy. I’ve had [proposed] legislation now for three years that would reclassify possession of small amounts of any kind of narcotic as a misdemeanor, rather than a felony.

Why? I just don’t think that it is felony conduct. A felony to me is a serious crime that warrants a serious response. Misdemeanor conduct is criminal activity that has an underlying cause that needs to be addressed – and doesn’t need to be addressed with prison time.

If you are being charged with a felony, most of the time, jail ought to be a potential part of punishment. Doesn’t mean it should be in every case. I don’t think that jail should ever be on the table for somebody who possesses a small amount of drugs for personal use. And the facts bear that out.

We went back and we looked at simple possession – that means possession of a small amount – of the most serious narcotic out there today, which is fentanyl, over the last five or six years.

I don’t have the details in front of me, but the number of times somebody went to jail out of – a hesitate to put a number on it – but let’s round it off, say about 500 cases over five years. The number of people who went to jail on that charge was less than 10.

And, I believe, again, I have to go back and look at the data again, every time somebody went to jail on that charge, there was an explanation. Meaning, they were already on probation for something else.

Perhaps the person had been before a judge five, six, seven times, and the judge finally decided, enough is enough.

But even when they went to jail, and these are felony cases, remember, where the potential jail sentence can be over a year, doesn’t have to be, but it can be over a year, punishable by a year or more, they are getting 30 or 60 days.

What that told me was that we are treating things as felonies that are not really felonies. It’s a matter of policy and it’s a matter of practice.

So, why are we doing it?

There is an effect of doing it, which means, when they emerge, on the other side, hopefully, of their substance use disorder, they are carrying a felony [conviction] around their neck, which makes it even harder to stay in recovery. It’s harder to get a job; it makes it harder to maintain housing.

To me, it just made sense to treat substance use disorder for what it was, which is, at most, a misdemeanor, at most, and I say at most, because a lot of those cases, if not all of them, today, are ending up in Diversion Court.

Diversion Court is a new court that started after I took office, something I advocated for along with presiding Justice Gibney in Superior Court. The R.I. General Assembly passed it 2020, I believe. And it was started up last year, and now 25 percent of our felony filings are in Diversion Court. And, they are not just substance use disorder-related cases, although many of them are.

And, the end game there is: Get the problem addressed, and then the case is dismissed. There is still felony conduct; we haven’t changed the law yet; but there is no conviction at all, because your case is dismissed.

One of the benefits of that court is you are getting access to services through the court, which leads me to second part of what I said earlier. And it also addresses the gun violence issue.

ConvergenceRI: Can you talk a little bit more about the gun violence issue? How important is it for the legislature to act at this moment?
In my opinion, I don’t think we need any more information that we are in a crisis, that it is a public health crisis, that in terms of cost, the costs of what happens to the people who suffer [at the hands] of gun violence, it is a chronic issue. What you like to see the R.I. General Assembly do in terms of gun legislation.
NERONHA: There are two things: One, gun legislation, and two, support for programs that will assist young people.

Let me address both. We have a series of gun bills up there this session, again, some of them pertain more to the kind of urban violence, some of them are sort of mass-shooter targeted. You know, high-risk, relatively low likelihood, but still, really high risk. To me, that is the assault weapons ban. Really high-risk in terms of impact, but low probability.

The odds of assault weapons attack are, hopefully, fortunately, low. At the same time, if one happens, and they can happen, we see them happen around the country. When they do happen, the devastation is really traumatic.

Two of the bills would be working to remedy that great risk of devastation. But is more working to remedy that great risk of devastation. Which ones am I talking about: high-capacity magazines and straw purchasing legislation.

With high capacity magazines, the legislation we have up there now would limit magazines, to 10 rounds or less. A high-capacity magazine, obviously, carries more than that.

We are finding in Providence, in the context of motor vehicle stops, in the context of fleeing motor vehicles, where a gun is tossed out the window, in executing search warrants and making arrests, high capacity magazines.

I had my folks pull cases. Something we don’t do in Rhode Island, or anywhere, is keep track of data very well.

But I asked my folks to go through their various cases, and let me know, in the past couple of years, how many times we have seized the high-capacity magazines.

We have seized at least 16 of them. What that tells me is that there are high capacity magazines – and they have been seized in the context of criminal activity, obviously – and there have been lots of other incidences where there have been lots of shell casings upon the ground.

We don’t have the firearms, so we don’t know if there are high-capacity magazines [in use], but you can draw a pretty sensible conclusion that when you have 20, 30 rounds of casings on the ground, that a high-capacity magazine may have been used.

We have recovered at least 16 of them in the last few years alone. So, banning those high-capacity magazines, with 20 rounds or 30 rounds in a magazine, will limit the number of bullets that are being discharged.

Making it harder for someone to reload would help. The other thing, in terms of legislation that we have up there which directly goes to the kind of urban violence we are seeing, is the straw purchasing bill, which would strengthen our straw purchasing statute, and allow us to make those cases.

Why is that important? We have a case that has been charged right now where it is alleged that one person bought guns for four other people at the rate of 89 firearms.

That one individual bought 89 firearms – and sold some or all of them to four other individuals who could not have bought those firearms themselves. The problem there is obvious.

That’s what a straw purchase is. It’s someone who can buy a gun, buying them for people who can’t.

Those guns get on the street and they are used in gunplay. That’s just the reality, and if we don’t tighten up that statute, then we are going to continue to have a lot of these problems.

So, what does that mean as a practical matter?

Not only does it ban straw purchasing, it would give us information when there are multiple sales of firearms, so that we can follow up and try to figure out why someone is buying a lot of firearms at a particular time.

You asked about legislation. That is legislation that can have a real impact because we see it happening right now. We are seeing straw purchases. And we are seeing high-capacity magazines on the streets of the urban core [cities], so there’s that.

But, when I say that those things alone – and the other thing I think is really important to mention, on the enforcement side is, we know, both in this office, and we know, working with our law enforcement partners, who the shooters are in Rhode Island. We know that. Our intelligence tells us that.

I showed my list of the cases where we have recovered high capacity magazines to Colonel [Hugh T. ] Clements, [chief of police at the Providence Police Department] yesterday. Just in passing, we were at a press event. [His response]: “Oh, yeah, there’s that guy. Oh yeah, there’s that guy….”

People like Chief Clements and the people who work with him, people who work in this office, they know who the shooters are. And, if we can focus our law enforcement efforts on those individuals, we can lower the temperature on the streets. There’s no doubt in my mind.

These shooting are retaliatory. You can connect them. Because somebody is retaliating for a shooting caused by somebody else. It’s a back and forth. That’s clearly what’s going on here. Not just over the course of a weekend, or over the course of months, but over the course of years.

If we can take those individuals off the streets, based on the criminal activities they are engaged in, we can prevent those retaliatory shootings.

A few weeks ago, a month or so ago, same kind of thing, a spate of retaliatory shootings, somebody goes to a wake for somebody who had been shot and killed, he goes to that wake, looking for retaliation, he’s arrested for disorderly conduct, taken off the street, and the temperature goes down for two or three weeks, and that person is not there to drive the retaliation.

With a lot of these young people who are engaged in gun violence, I believe, they look up to older individuals who are really driving it and leading it, and making that kind of activity acceptable. And so, we need to target our enforcement efforts.

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