There have been some major changes to the laws concerning the possession, sale, and manufacture of controlled substances this year. One major change concerns what level of offense a person can be charged with for breaking into a car or commercial building. Under certain circumstances, explained below, what used to be a misdemeanor or state jail felony can now be charged as a third degree felony.
Burglary of a vehicle, that is, breaking into a vehicle with the intent to commit any felony or theft, is generally a Class A misdemeanor charge. (If a person has two prior convictions for breaking into cars, or if the vehicle is a railcar, then the offense is a state jail felony.) But, new in 2017, a person can now be charged with a third degree felony if a person breaks into a vehicle owned or operated by a wholesale distributor of prescription drugs and breaks in with the intent to steal the drugs.
Additionally, burglary of a building is generally a state jail felony level offense. However, effective September 1, 2017, burglary of a commercial building where controlled substances are generally stored (pharmacy, clinic, hospital, etc.) is now a third degree felony.
Why the change?
Both the House Committee Report and Senate Committee Report identified the catalyst for the increase in punishment: the opioid crisis has caused a substantial increase in burglaries and thefts of pharmacies. (Note: Both Committee’s suggest an increase without providing data to support this suggestion.) Both Committees then suggested the impetus for the change in legislation was to protect the public from property crimes (i.e. burglary and theft) associated with the increased demand for opioids.
This justification is unconvincing for several reasons, not the least of which is that increasing the penalty for drug offenses has never been shown in any credible study to reduce the commission of drug offenses. That is, increasing punishment has no deterrent effect whatsoever. (See, among others, Daniel S. Nagan, “Deterrence In the Twenty-First Century: a review of the evidence,” Carnegie Melon Research Showcase, published 2013; and the National Research Council’s “The Growth of Incarceration in the United States: exploring the causes and consequences,” National Academic Press, 2014).
Additionally, this will likely do little to stem the flow of illegal opioid prescription medication. As multiple inquiries and reports have previously noted, the vast majority of opioid medications that are sold on the street are initially acquired legally from a doctor. (See, for example, National Threat Assessment 2016, U.S. Dept. of Justice – Drug Enforcement Administration.) In all likelihood the new law will have no effect on the flow of opioid prescription medication available.
So what’s the point of the new law? That’s hard to say, although it seems to be a self-congratulatory, pat-on-the-back type of law to show the bill’s author’s representatives that they did something to combat the opioid epidemic. In reality, it will make no difference in stemming the tide of the opioid epidemic because it does not address the critical component of the epidemic: people with substance abuse issues who seek out opioids. Laws like this one, and building border walls to keep drugs out, seek to curb the supply of opioids without addressing the demand.
Texas has, once again, missed an opportunity to enact legislation that would address the opioid epidemic as a public health issue. Instead, Texas has treated the epidemic as an issue of law enforcement. Does this work? In ALL of 2015, Denton Police seized 3.726 grams of heroin. In the first seven months of 2016, Denton Police seized (as noted above) 35.868 grams of heroin—nearly 10 times as much heroin as they had seized in the entire year of 2015. Clearly, this approach is not working. If we are mindful of history, we would be unwise to expect this new legislation to make any difference whatsoever.