At the fourth Democratic debate, Sen. Kamala Harris (D-Calif.) called for drug company executives to be “locked up” over business practices that, she says, led to America’s opioid crisis.
“I will tell you as a former prosecutor, I do think of this as being a matter of justice and accountability because they are nothing more than some high-level dope dealers,” she said. “And so as president of the United States, I would ensure that the United States Department of Justice understands that you want to deal with who is really a criminal. Let’s end mass incarceration and end that failed war on drugs, and let’s go after these pharmaceutical companies for what they’ve been doing to destroy our country and states like Ohio.”
Former HUD Secretary Julian Castro joined her refrain, as did Sen. Elizabeth Warren (D-Mass.)
But while Warren previously said members of the Sackler family — who owns Purdue Pharma, one of America’s biggest opioid manufacturers — should “go to jail,” she also took campaign contributions from Beverly Sackler, the wife of Purdue Pharma co-founder Raymond Sackler for her two previous U.S. Senate campaigns. Earlier this year, Warren outlined a plan to donate that money to be consistent with her political stance on the issue.
And when Harris tried to pressure Warren to call on Twitter to suspend President Donald Trump’s Twitter account during the debate, Warren called her out for taking campaign contributions from Big Pharma executives.
“We have already agreed, Bernie and I, we are not taking any money from Big Pharma executives,” Warren said. “You can’t go behind closed doors and take the money of these executives and then turn around and expect that these are the people who are actually finally going to enforce the laws.”
According to The Intercept, Harris took $1,250 from the vice president of Endo Pharmaceuticals (which manufacturers opioids), $250 from the vice president of Pfizer (which is responsible for raising prices of commonly prescribed drugs by more than 20 percent in a four-year period), $1,000 from an executive at Vertex Pharmaceuticals and $1,000 from the CEO of Cidara Therapeutics, a drug startup. In fact, many Democrats attacking the drug industry today have taken donations from them in the past.
In addition to the apparent hypocrisy of calling for their one-time donors to go to jail, actually getting them behind bars may be difficult for Democrats to do.
Only a few key players in the opioid crisis currently face criminal charges, partly because charging individuals (instead of companies) consumes so much time and effort.
In April, federal prosecutors filed criminal charges against the CEO and other executives of opioid distributor Rochester Drug Cooperative for allegedly pumping out opioids to patients who didn’t need them in an elaborate money-making scheme. Prosecutors accused them of a narcotics conspiracy. Federal prosecutors in Cincinnati, Ohio led by the acting Attorney General Benjamin Glassman, filed criminal charges against the former president and former compliance officer of opioid distributor Miami-Luken in July.
Glassman accused them with narcotics conspiracy, and said, “They and other co-conspirators are alleged to have knowingly entered into an agreement to distribute … outside the scope of professional practice and not for a legitimate medical purpose.”
They could face a sentence of up to 20 years in prison if convicted.
Three former and current Purdue Pharma executives pled guilty to criminal charges of misleading patients about the risk of opioid addiction but paid out hefty fines in a multimillion-dollar settlement instead of going to prison in September.
According to a report from NPR, the Ohio judge presiding over one of the biggest opioid lawsuits including defendants like Johnson & Johnson and CVS wants the parties to settle. For many district attorneys and prosecutors in poorer, rural areas dealing with the opioid crisis, settling a lawsuit is a win-win: nabbing a victory for your resume and a fat check for the office.
Hui Chen, a distinguished research fellow at Rutgers Law School and the first Compliance Counsel Expert for the Department of Justice, told InsideSources that building a case against individuals at large corporations is often extremely difficult to accomplish.
“In order to essentially convict someone of a crime, you have to have the mens rea, which is the mental element, the mindset of wanting to commit the crime, and then you have to have the activus reus, which is the act of committing the crime,” she said. “What’s typically really challenging when a company has behaved badly, having specific evidence of individual involvement at both the mental and the acting level. A lot of times corporate decision-making is not the kind of decision-making where one person instructs another. It’s hardly ever that clear.
“Typically what happens is marketing or product development comes up with an idea and takes it up the chain, and may not even know what the legal requirements are. And then they would make a decision and go do it, and some people would simply say go get this done, without having any real detail-level involvement,” Chen said.
That’s one reason why so few corporate executives are prosecuted — even if the public feels like they deserve to “pay” for the wrongs they’ve committed with jail time.
“In many of the cases that outrage the public, [it is] actually quite difficult when it comes to proving against an individual,” she said. “Sometimes the higher up a person is, the more difficult it is, because they’re insulated. They may have no knowledge [of the crime], and if they did, you have to prove it. You have to find that smoking gun email. You need something like a transaction on the books or email and those things are not always easy to get.”
But it could be difficult to indict pharmaceutical executives if a new president has their campaign contributions, and even more difficult to indict executives at some of the biggest companies responsible for the crisis, like Johnson & Johnson and McKesson, because they wield enormous lobbying power and influence in Washington.
