In 3400 B.C., opium poppy was cultivated in the lower Mesopotamia. It was called the “joy plant” by the Sumerians.


Opium through the centuries has been hailed, and used, as a cure to pain. The famed English physician Thomas Sydenham, called the “Shakespeare of Medicine,” refined the drug that became a staple in Americans’ medicine cabinets: Laudanum – two ounces of opium, 1 ounce of saffron, a drachm of cinnamon, and cloves dissolved in a pint of Canary wine. Laudanum would become one of the many pain-killing opiate derivatives of opium. Today the most common opiates, or opioids, are heroin, morphine, oxycodone, hydrocodone, and methadone. With the exception of heroin, each of these pain-killing drugs is legal by prescription.


In December 1995, the FDA approved OxyContin as an opiate derivative of oxycodone, and while other pain-killers like Percocet and Percodan contain oxycodone, it is the only ingredient in OxyContin, making the drug far stronger. That’s why many law enforcement officials consider OxyContin more dangerous than oxycodone which is usually combined with Ibuprofen or Tylenol.


But, the fact that OxyContin was to be the strongest pain-killer introduced to the American medical community didn’t deter its manufacturer, Purdue Pharmaceuticals, from launching a major marketing campaign after its FDA approval, urging doctors to prescribe it for musculoskeletal and post-operative pain. In less than five years, thousands of Americans were addicted to OxyContin, including famed conservative radio talk host Rush Limbaugh.


The U.S. Sentencing Commission has never been very good at setting sentencing guidelines for drug offenses, politicians have been even worse.


The Commission’s 2003 reaction to the increasing reported abuses of OxyContin best illustrates this point. That year the Commission amended the equivalency table for oxycodone—a decision not based on the drug’s potency or its risks of abuse which had been used in the formulation of the equivalency tables for other opiates. The new equivalency table for oxycodone was 1 gram of oxycodone to 6700 grams of marijuana—an equivalency designed to establish a specific penalty for 10 mg. of OxyContin. With this amendment, the Commission ensured that oxycodone, and OxyContin, would be punished more severely than other opiates: 1 gram of oxycodone was given an equivalency 13.4 times greater than a mixture or substance containing morphine, methadone, or hydrocodone; 6.7 times greater than a mixture or substance containing heroin; 2.65 times greater than a mixture or substance containing hydromorphone; and 1.34 times greater than a mixture or substance containing oxymorphone.


Americans afflicted with crippling pain then discovered hydrocodone. Doctors began to prescribe the drug more than they did codeine—to the point that nearly 140 million prescriptions for hydrocodone are written each year. Government and private sources estimate that as many as 5 million Americans today abuse hydrocodone and other pain-killers—oftentimes with deadly consequences. Hydrocodone depresses respiration that can result of a deadly overdose when users take more of the drug to overcome their increasing tolerance to it and combine it with other drugs or alcohol. That’s what happened to Anna Nicole Smith in 2007. Hydrocodone can also destroy the liver because acetaminophen was added to the drug to discourage its abuse, but many users either do not know or ignore the link between liver damage and acetaminophen.


The abuses of opiates like OxyContin and hydrocodone has unquestionably created a lucrative black market for the drugs. Drug cartels and some unscrupulous doctors began operating what has become known as “pill mills” to supply the drugs necessary to feed the abuses. Still, oxycodone has consistently remained the more dangerous of the two drugs. For example, drug-related Emergency Room Visits for Misuse or Abuse of Drugs shows that in 2011 there were 175,229 oxycodone visits as compared to 97,183 hydrocodone visits. This is not the only difference. Several studies have shown that oxycodone abusers are more likely to “score” their drugs from drug dealers while hydrocodone abusers are more likely to obtain their drugs from legitimate medical sources.


The evidence is also clear that hydrocodone poses less social risks. In the FY 2006-2012, 24 percent of the defendants prosecuted in federal court for either oxycodone or hydrocodone were women with more (32.7%) being prosecuted for oxycodone than for hydrocodone (22.5%). Virtually all of these defendants had either no or minimal criminal history with only a small number involving the use of a weapon.


Almost half of the oxycodone defendants (47%) were in the Fourth and Sixth circuits while 53 percent of the hydrocodone defendants were in the Fifth, Fourth and Sixth circuits, particularly in rural districts like the Eastern and Western Districts of Texas. As too often is the case, law enforcement efforts did not target major drug traffickers or the pill mills but went after lower level offenders who may be guilty of nothing more than sharing, or even selling, their prescribed medication to family members.


This past April the Commission voted to follow the lead of the decision by the FDA last year to move hydrocodone from a Schedule III to a Schedule II class of drugs, effectively increasing the recommended penalty range for hydrocodone offenses.


For example, even in small quantity hydrocodone cases, the recommended guideline range will increase significantly. Schedule II opiate offenses call for a minimum offense level of 12 which means that many defendants who plead guilty, with credit for acceptance of responsibility, can no longer receive probation unless it is a condition of confinement or home detention.


The new equivalency table for hydrocodone is 1 gram of hydrocodone (actual) to 4467/6700 grams of marijuana. This is far more than the U.S. Justice Department recommended in 2009 when it proposed an equivalency of 1 gram (actual) of hydrocodone to 1675 grams of marijuana. Thus, the result of the Commission’s latest foray into drug sentencing has produced this absurd result: heroin is more potent than oxycodone but is punished less severely, while oxycodone is more dangerous than hydrocodone and will be punished equally or more severely than oxycodone.

Have we already forgotten the crack cocaine disparity disaster?


We believe the equivalency of oxycodone should be significantly reduced and the equivalency of hydrocodone should always be less than oxycodone.


Many in the federal criminal justice system agree. In FY 2012, nearly one-third (30.9%) of the oxycodone/OxyContin cases received a government sponsored below the recommended range sentence. That represented a 13% increase in below recommended range sentencing over the previous six years.


As often happens with knee-jerk reactions to the drug scare of the day, judges, lawyers and others working in the criminal justice system will tire of seeing poor, working class, non-violent defendants receiving sentences comparable to major drug traffickers and this guideline will hopefully be adjusted. But, as we have seen before, it will come only after far too many people have suffered a truly unreasonable fate.


The Commission’s latest recommendation will, unless corrected by Congress, become law in November of this year. It will inevitably produce more chaos, disparity, unfairness, and injustice in the federal drug sentencing scheme. This comes at a time when prominent lawmakers, federal judges, defense attorneys, criminal justice professionals, and some prosecutors are calling for a complete overhaul and reform of the federal drug sentencing scheme.


Author’s Note: Statistics and information for this blog was gleaned from the “Statement of Lex Coleman,” Assistant Federal Defender for the Southern District of West Virginia, which was presented to the U.S. Sentencing Commission on March 12, 2015 concerning the proposed increase in the hydrocodone equivalency table.