By William K. Black
October 22, 2017 Kansas City, MO
This is the first in a series of columns I will write that are prompted by the joint 60 Minutes and Washington Post investigations of the role of Congress and the White House in making it far harder to sanction effectively companies selling massive numbers of opioids that they know will go largely to those addicted to opioids. I will use the case study to illustrate many important points that criminologists know about elite white-collar crime and how to limit it and sanction perpetrators.
In this column, I introduce one of the most important concepts in white-collar crime – “seeming legitimacy.” The most elite predators use the seemingly legitimate entities in the business, government, and non-profit sectors that they run as “weapons” of predation and “shields” against sanctions. The criminology term for this is “control fraud.” The same logic applies to non-criminal predation. I will show in later columns in this series that Representative Marino (R, PA), the worst of the political shills for the opioid Predator Class, repeatedly spread the falsehood that the worst of the opioid predators could not be predators because they structured their firm as if it were “legitimate.” As a former state and local prosecutor, Marino knows that CEOs running the largest frauds pose as seemingly legitimate firms because it optimizes control fraud.
Some of these columns will focus on the startling parallels to actions taken by Congress and the White House to aid the Predator Class’ epidemics of “control fraud” during the savings and loan (S&L) debacle and the opioid epidemic. Congress and the White House gave aid and comfort to the elite criminals leading epidemics of criminal conduct and predation that they knew would cause catastrophic harm in both crises.
Edwin Sutherland, who coined the term “white-collar crime,” demonstrated the many ways in which such criminals were able to gain great riches, cause vast harm, and avoid meaningful sanctions. At its worst, the predators so pervert truth and ethics that they successfully portray acts of murderous predation as laudatory. This is the case with many elite wholesale suppliers, ‘pill mills,’ and prescribing physicians – the principal drivers and beneficiaries of the opioid crisis. It is an ‘Alice in Wonderland’ world in which power and predation create an insane world dominated by the Predatory Class. Crony capitalism and kleptocracy represent the cases of maximal power for the Predatory Class.
The next level of a rigged system is one in which the Predator Class’ actions are unlawful, but there are no effective sanctions against their predation. This is why desupervision is typically far more destructive than deregulation.
The third level of a rigged system is when the only available enforcement actions against predation are non-criminal or the criminal and regulatory officials are unwilling to prosecute elite predators. It is exceptionally difficult to deter the elite Predatory Class without significant criminal sanctions directly against elite corporate officers.
The fourth level of a rigged system is that the Predator Class tolerate modest enforcement actions that gave the appearance of the rule of law. As long as the sanctions never threaten the overall predatory strategy of the most powerful CEOs the modest sanctions strengthen the Predatory Class by harassing smaller competitors. This makes the system appear legitimate. However, the Predator Class will suddenly push back and seek to use their elite social, political, and economic power to crush any enforcers or prosecutors who threaten to bring effective actions against the Predator Class.
In the opioid and S&L debacle, we witnessed elected traitors and anti-regulators who betrayed the citizens of the United States and their oaths of office, albeit for far more than 30 pieces of silver. Political contributions, lobbying, and the “revolving door” are generally not crimes, so no prosecutor will ever charge these politicians and anti-regulators in a court with treason. Their betrayal of the American people, however, maims and kills far more Americans than do those who commit formal treason or engage in street crimes. The fact that these political elites and the Predator Class cynically exploit loopholes in the law available as a practical matter only to the wealthiest of Americans makes their predation on the American people more reprehensible. Their fellow Americans gave the Predator Class vast benefits, yet the predators used their power and elite status to enrich themselves further by taking actions they know will cause immense misery and death. When we think of predators, we typically think of “apex” predators like lions and killer whales (orcas), but the mass killers are parasites. The Predator Class are parasites.
One of the things that white collar criminologists want the public to know is that elite fraud and corruption, in addition to causing extraordinary financial loss, maim and kill. In many countries, they maim and kill more people than do conventional “street” crimes. Opioids exemplify that point. Drug overdoses kill more Americans annually than died of AIDS at its peak U.S. death rate, homicides at their peak U.S. death rate, and car accidents at their peak. (These data exclude deaths from overdoses of a major drug category, alcohol.) The Congressional and White House scandal is about prescription opioids, but it is increasingly common for those addicted to prescription opioids to progress to using the far more lethal synthetic opioids such as Fentanyl, heroin, and drug ‘cocktails.’ Crushing prescription opioids can defeat the designed delayed release and greatly intensify the effective dosage, as can other means of ingesting the drug.
Here is the bare bones background you need to understand the context of this first column. Big pharma pitched opioids to patients, doctors, regulators, and the Congress as being exceptionally unlikely to prove addictive. That was a lie. Many physicians prescribed opioids to patients for uses such as chronic back pain and arthritis. Doctors never should have prescribed opioids for such purposes. Long-term use of prescription opioids poses a serious risk of addiction and can exacerbate chronic pain. As the frequency of opioid use grew massively, everyone honest in the pharma chain realized that it posed a critical health threat to our Nation that required emergency steps to contain to prevent the deaths of many thousands of Americans annually.
Long before opioids kill their users they often cause devastating harm to the users, their families, and to local community budgets. Dr. Francis Colllns, the NIH director, recently testified.
According the Substance Abuse and Mental Health Services Administration (SAMHSA)’s National Survey on Drug Use and Health (NSDUH), in 2016, over 11 million Americans misused prescription opioids, nearly 1 million used heroin, and 2.1 million had an opioid use disorder due to prescription opioids or heroin. Over the past decade, the U.S. has experienced significant increases in rates of neonatal abstinence syndrome (NAS), hepatitis C infections, and opioid-related emergency department visits and hospitalizations. Most alarming are the continued increases in overdose deaths, especially the rapid increase since 2013 in deaths involving illicitly made fentanyl and other highly potent synthetic opioids. Since 2000, more than 300,000 Americans have died of an opioid overdose. Preliminary data for 2016 indicate at least 64,000 drug overdose deaths, the highest number ever recorded in the U.S. Too many of our citizens are being robbed of their God-given potential in the prime of their life.
The diversion and dealing of prescription opioids is a major part of the problem. In the U.S., three big pharma companies control the distribution of opioids. They have readily available data that allows them to identify quickly, cheaply, and reliably the primary sources of diversion and dealing because these drug stores and pain clinics purchase opioids in amounts that are nonsensical given the size of the local population and stores making the purchases. The first scandal, therefore, is that the big three distributors continue to sell to firms that they know are diverting and dealing opioids in ways that are illegal and murderous. We should not need laws or rules to prevent the distributors from profiting from sales to obvious diverters and dealers. The people who run big pharma are experts in what opioids do to humans. All of big pharma firms have senior officers who are doctors and chemists. They know the human misery and murder their sales to the diverters are certain to produce in staggering numbers. When elite doctors and chemists are willing to profit by selling to those they know to be dealers and diverters who will maim and murder their countrymen and women you know the rot lies deep in our elites.
As a criminologist and lawyer, I believe that much of what the Drug Enforcement Agency (DEA) does is harmful and represents insane priorities used selectively against blacks and Latinos in obscene manners. Criminalizing drug use is typically a fruitless and harmful approach. The criminal justice system should be only part of our response to the opioid crisis. Criminal sanctions are, however, the vital response to big pharma and the pill mills’ criminal and predatory acts.
The DEA’s Joe Rannazzisi tried to warn Congress that legislation it was considering would gut one of the DEA’s primary tools to prevent big pharma from making massive sales to pill mills. For the high crime of speaking truth to power, Representatives Marsha Blackburn (Tenn.) and Tom Marino (Pa.), the twin primary sponsors of the bill that big pharma drafted to gut DEA’s ability to sanction big pharma, led the reprisals that forced Rannazzisi out after nearly 30 years of government service.
Congress’ gutting of DEA’s enforcement authority against what Rannazzisi aptly labeled “drug dealers in lab coats,” was disgustingly parallel to multiple actions that Congress and the administration took to aid the Predatory Class leading the fraud epidemics that drove the S&L debacle. Each of these actions constitutes an act of unintentional self-parody. The supreme act of unintentional self-parody was President Trump seeking to appoint Marino to run the DEA. It takes a Trumpian level of talent to reward Marino’s act of betraying the American people through obscene legislation and his leading the reprisals against DEA whistleblower with an appointment to run the DEA. Fortunately, the 60 Minutes documentary’s disclosures about Marino’s betrayal and unfitness showed that Trump’s actions appalled the American people.
Trump and Congress should take three actions immediately in light of the recent disclosures. First, Trump said that he was going to declare a national opioid emergency over 70 days ago – and still failed to sign an emergency order. He should do so immediately.
Trump also told reporters he would formalize his Aug. 10 national emergency declaration by signing it and sending it to Congress this week. That would enable the executive branch to direct millions of federal dollars toward things like expanding drug treatment facilities and supplying police officers with the anti-overdose remedy naloxone.
Second, the same source makes clear that Congress should repeal Marino’s act of betrayal.
Meanwhile, Sen. Claire McCaskill, D-Mo., announced Monday she would introduce legislation that would repeal the law Marino championed, saying it has “significantly affected the government’s ability to crack down on opioid distributors that are failing to meet their obligations and endangering our communities.”
Third, Trump should fill the DEA vacancy by nominating the public servant who has demonstrated his excellence, integrity, and courage – Joe Rannazzini.