Bronchitis, Antibiotics, and Mandatory Minimum Drug Laws
By: Greg Newburn
Tags: Science, Criminal Justice Reform, Sentencing Reform, Health, Prison Reform

Part 1

U.S. residents suffer approximately 500 million non–influenza-related viral respiratory tract infection (VRTI) episodes every year. VRTI is the most common illness in humans. The total domestic economic impact of these infections is estimated to approach $40 billion annually.

A few weeks ago my son had bronchitis. We didn’t know he had bronchitis when we took him to the doctor for an unrelated issue. He’d had a cough for a while, but it didn’t seem like it required much attention beyond rest and symptom control. His pediatrician prescribed antibiotics; the cough cleared up in a few days.

A few days after that, I started coughing. Rory had some antibiotics left over, so I was going to take them, but I didn’t know the proper dosage. So I went to a website that lets you search for things to try to find it.

Somewhere in my search I came across this paper. I found out that “Approximately 90 percent of acute bronchitis infections are caused by viruses.”

I knew antibiotics are worthless against viral infections, so I wasn’t too surprised to learn that, “clinical data support that antibiotics do not significantly change the course of acute bronchitis, and may provide only minimal benefit compared with the risk of antibiotic use itself.” As a result, “The American College of Chest Physicians (ACCP) does not recommend routine antibiotics for patients with acute bronchitis . . .”

And yet! “Although 90 percent of bronchitis infections are caused by viruses, approximately two thirds of patients in the United States diagnosed with the disease are treated with antibiotics . . . Physicians appear to deviate from evidence-based medical practice in the treatment of bronchitis more than in the diagnosis of the condition.”

So, 90% of acute bronchitis cases are caused by viral infections, antibiotics are useless against viral infections, #data confirm antibiotics don’t improve cases of acute bronchitis, and experts tell doctors not to prescribe antibiotics for acute bronchitis. Why, then, do they prescribe antibiotics in nearly two out of every three cases of acute bronchitis?

Turns out it’s our fault.

Patient expectations may lead to antibiotic prescribing. A survey showed that 55 percent of patients believed that antibiotics were effective for the treatment of viral upper respiratory tract infections, and that nearly 25 percent of patients had self-treated an upper respiratory tract illness in the previous year with antibiotics left over from earlier infections . . . Many patients with bronchitis expect medications for symptom relief, and physicians are faced with the difficult task of convincing patients that most medications are ineffective against acute bronchitis.

Doctors prescribe antibiotics even when they know the medication is ineffective because they’re afraid of disappointing their patients, who mistakenly believe antibiotics are effective for bronchitis. For the most common illness humans face, doctors substitute the intuitions of patients for evidence. The result is unnecessary prescriptions.

But, hey, better safe than sorry, right? 90 percent isn’t 100 percent, and antibiotics are recommended in at least some bronchitis cases, for example, “when pertussis is suspected as the etiology of cough.” So, isn’t it better for a doctor to cover all of her bases, and prescribe the antibiotics just in case? No harm no foul, right?

Maybe! But there are, of course, several costs associated with unnecessary antibiotics prescriptions. The first is the most obvious. According to this paper, “more than $1.1 billion is spent annually on the estimated 41 million unnecessary antibiotic prescriptions for persons experiencing a non–influenza-related [ Viral respiratory tract infection] episode.”

Then there’s the gross nightmare called Clostridium difficile infection, which is “due to a toxin-producing bacteria that causes a more severe form of antibiotic associated diarrhea,” and “ usually occurs when people have taken antibiotics that change the normal colon bacteria allowing the C. difficile bacteria to grow and produce its toxins.”

C. difficile is no joke.

Clostridium difficile (C. difficile) caused almost half a million infections among patients in the United States in a single year, according to a study released today by the Centers for Disease Control and Prevention (CDC). Approximately 29,000 patients died within 30 days of the initial diagnosis of C. difficile. Of those, about 15,000 deaths were estimated to be directly attributable to C. difficile infections, making C. difficile a very important cause of infectious disease death in the United States. More than 80 percent of the deaths associated with C. difficile occurred among Americans aged 65 years or older. C. difficile causes an inflammation of the colon and deadly diarrhea. Previous studies indicate that C. difficile has become the most common microbial cause of healthcare-associated infections in U.S. hospitals and costs up to $4.8 billion each year in excess health care costs for acute care facilities alone. The new study found that 1 out of every 5 patients with a healthcare-associated C. difficile infection experienced a recurrence of the infection and 1 out of every 11 patients aged 65 or older with a healthcare-associated C. difficile infection died within 30 days of diagnosis.

Lastly, there’s the terrifying problem of antibiotic resistance, which the World Health Organization calls “one of the biggest threats to global health, food security, and development today.” Antibiotic resistance occurs when bacteria change in response to the use of antibiotics. As bacteria change, antibiotics become less effective. Indeed, per the WHO, “A growing list of infections — such as pneumonia, tuberculosis, blood poisoning, gonorrhoea, and foodborne diseases — are becoming harder, and sometimes impossible, to treat . . .”

Again, we’re the problem. “Antibiotic resistance is accelerated by the misuse and overuse of antibiotics,” and “ the emergence and spread of resistance is made worse . . . in countries [where] . . . antibiotics are often over-prescribed by health workers and veterinarians and over-used by the public.”

Some of the costs of antibiotic resistance are already being felt. For example, “In the US alone, more than two million infections a year are caused by bacteria that are resistant to at least first-line antibiotic treatments, costing the US health system 20 billion USD in excess costs each year.”

The problem is dire, and the possible outcome catastrophic. One report paints a particularly bleak picture:

Based on scenarios of rising drug resistance for six pathogens to 2050, we estimated that unless action is taken, the burden of deaths from AMR could balloon to 10 million lives each year by 2050, at a cumulative cost to global economic output of 100 trillion USD. On this basis, by 2050, the death toll could be a staggering one person every three seconds and each person in the world today will be more than 10,000 USD worse off.

Antibiotic over-prescription is a collective action problem. Every given doctor, acting as a rational actor in pursuit of private gain — i.e., to retain patients and avoid a reputation for being soft on respiratory tract infections — has an incentive to prescribe antibiotics for acute bronchitis, even though antibiotics are an ineffective treatment. But the result of unnecessary antibiotics prescriptions is collectively disastrous, and counterproductive to the very ends antibiotics are intended to serve.

Part 2

U.S. residents suffered around nine million violent or property crimes in 2017. According to the GAO, “Researchers have estimated varying annual costs of crime in the United States that range from $690 billion to $3.41 trillion.” Meanwhile, “More than 70,200 Americans died from drug overdoses in 2017 . . . a 2-fold increase in a decade.”

Floridians suffered more than 600,000 violent or property crimes in 2017 — about 6.82 percent of total crime nationally — and more than 5,000 Floridians died of drug overdoses in 2017 — about 7.24 percent of total drug overdose deaths nationally. (In 2017, Florida’s population was about 6.44 percent of the national population.)

In an effort to combat drug trafficking and crime associated with drug abuse, Florida adopted harsh mandatory minimum sentencing laws in 1979. But mandatory minimum drug laws are no more effective against drug trafficking, drug abuse, or drug-related crime than antibiotics are against viral infections. (See, e.g., here, here, here, here, here, here, here, here, here, here, here, and here.)

And yet! Florida has had mandatory minimum drug trafficking laws on the books for 40 years, and even now around 5,000 drug offenders are serving mandatory minimum sentences in Florida prisons.

So, #data confirm that mandatory minimums do not achieve any of their objectives — i.e., they do not deter drug trafficking, drug abuse, drug overdose deaths, or crime associated with the drug trade — and experts tell legislators not to pass mandatory minimums for drug trafficking. Why, then, do legislators continue to pass mandatory minimums for drug trafficking (and resist repealing those already on the books)?

Again, it’s our fault.

As one paper noted back in 1993, “Sentencing in Florida has long been driven by consistent political pressures advocating the most punitive approach possible.” Not much has changed since. Too many politicians still fear being labeled “soft on crime,” and still reject evidence-based policy in favor of laws that just sound tough. They believe voters want them to “do something” about drug crime, and mandatory minimums are something.

So, legislators pass mandatory minimums even when they know (or reasonably should know) such laws are ineffective because they’re afraid of alienating voters (and powerful law enforcement special interest groups) who (the politicians fear) mistakenly believe that mandatory minimums are effective against drug crimes. For this very difficult and complex problem, legislators substitute the perceived intuitions of voters and the policy preferences of special interest groups for evidence. They deviate from evidence-based policy practice in the solutions for drug abuse more than in the diagnosis of the condition. The result is unnecessary incarceration.

But, hey, better safe than sorry, right? Surely some of those drug offenders serving a mandatory minimum sentence deserve to be there, and surely some of them would be committing crimes against the rest of us but for their incarceration. So, isn’t it better for the legislature to cover its bases, and “prescribe” incarceration for all drug trafficking offenders just in case? No harm no foul, right?

Maybe! But there are, of course, several costs associated with unnecessary incarceration. The first is the most obvious. Florida spends more than $100 million annually incarcerating drug offenders serving mandatory minimum sentences. Nearly half of those prisoners are considered “low risk,” and could almost certainly be held accountable with alternatives to prison, which would be both cheaper and more effective.

Second, there’s the cost of incarceration on offenders themselves. Among them, as Professor John Pfaff notes in this piece:

But aren’t prisoners responsible for their plight in ways that a bronchitis patient isn’t? To that I offer two replies.

First, that position begs the question by assuming those prisoners belong in prison in the first place. Remember we’re talking about unnecessary incarceration, just as we’re talking about unnecessary antibiotics prescriptions. A person who suffers the burdens of unnecessary incarceration suffers those burdens in exactly the same way a patient suffers from C. difficile after an unnecessary antibiotics prescription; neither deserves the suffering. The same goes for an offender serving a sentence longer than justice requires. As Will Wilkinson has pointed out, such sentences are morally akin to kidnapping. In those cases, the excessive sentence itself is unjust, and could be a greater injustice than the crime itself. Any suffering endured after one has served the just portion of one’s sentence is as undeserved as a C. difficile diagnosis.

And second, even sick people aren’t necessarily morally blameless, or completely so anyway. Reckless behavior can increase the odds of getting sick. Failure to get a flu shot puts one at greater risk of flu, for example. Attending a child’s birthday party at Chuck E. Cheese can increase one’s odds of getting strep throat. Even forgetting to wash one’s hands regularly could lead to a viral infection, which in turn could lead to unnecessary antibiotics prescription, and then the dreaded C. difficile.

A third cost of unnecessary incarceration is the heartbreaking and incalculable burdens it places on the families of those in prison. It’s no coincidence FAMM was founded as “Families Against Mandatory Minimums.” Our founder, Julie Stewart, herself the sister of a federal prisoner at the time, quickly realized what every sincere criminal justice reformer comes to know: when a person is sentenced to prison, the entire family does the time.

This report by the International Committee of the Red Cross does a good job highlighting some of those costs. For example, incarceration places burdens on romantic relationships:

“ . . .couples experienced major obstacles to maintaining contact via phone and in person visits when the male partner was in prison. For those who could continue some form of contact, the financial costs of phone calls and visits were substantial and often drained resources that family members would have otherwise used to pay household bills or buy food. For those whose communication was greatly reduced or eliminated entirely while the male partner served his sentence, often there was both an emotional cost of the loss of contact and a social cost of a hiatus in the relationship.”

And on relationships with children:

“ . . . distance and lack of communication made it difficult for fathers to maintain relationships with children during incarceration. When asked what was hardest about being a father in prison, many men focused simply on the physical separation from their children . . . Women often perceived men’s absence as limiting the latter’s ability not only to bond with their children, but also to learn how to parent. This was sometimes portrayed as coming at the cost of the entire father–child relationship.”

Much of the difficulty maintaining personal relationships through a period of incarceration stems from the cost of communication. As the report found,

“The chief barriers to communication were lack of transportation to correctional facilities, institutional policies that felt invasive or objectionable (e.g., searches, lack of child-friendly spaces), the high cost of visiting (transportation, food, child care, and long distances between the prison and the home community) and phone calls, and logistical difficulties coordinating times to connect.”

The report concluded:

“ . . . the costs of imprisonment resonate in the financial, social and emotional domains for justice-involved families . . . the expense of phone calls with an incarcerated loved one may simultaneously decrease a family’s ability to pay household bills, narrow their social network by diminishing the disposable income available for after-school and weekend activities, and increase interpersonal stress by contributing to arguments about money. . . . [D]ecreased contact with a loved one might lead to depression, which could result in a lowered paycheque due to missed days of work and social isolation due to reluctance to leave the house. For people who experience the dissolution of relationships due to distance, prohibitive expenses and institutional barriers, the cost of imprisonment may be vast, extending throughout every aspect of their lives.”

Given the staggering fact that half of all U.S. adults have an immediate family member currently or previously incarcerated, it is long past time to include the enormous costs that unnecessary incarceration places on American families as part of the cost-benefit analysis of incarceration generally. They alone create a moral imperative to eliminate unnecessary incarceration.

For a particularly powerful and heartbreaking story of how families endure the unnecessary incarceration of a loved one, make sure to watch “The Sentence.”

Then join FAMM.

Finally, and perhaps most importantly, there’s the public safety cost of unnecessary incarceration. Just as overprescribing antibiotics makes it more difficult to treat the very ailments for which antibiotics were prescribed in the first place, mandatory minimum drug laws are counterproductive to public safety, the very purpose for which they were imposed in the first place.

As noted previously, unnecessary incarceration is expensive. When Florida spends $50 million a year incarcerating low risk drug offenders serving mandatory sentences, that’s $50 million that can’t be spent on other, more effective strategies.

For example, this RAND report found that,

“A million dollars spent extending sentences to mandatory minimum lengths would reduce cocaine consumption less than would a million dollars spent on the pre-mandatory-minimum mix of arrests, prosecution, and sentencing. Neither would reduce cocaine consumption or cocaine-related crime as much as spending a million dollars treating heavy users.”

In other words, if Florida stopped spending money locking up drug offenders serving mandatory sentences, and reallocated that money to either traditional (i.e., non-mandatory minimum) enforcement or treating heavy users, we’d reduce drug consumption more than we do under the status quo. This means that every year we keep mandatory minimums on the books, we get more drug consumption than we would if we tried either of those alternatives instead.

Moreover, a report released earlier this year found that incarcerating low risk offenders in Florida — including low risk offenders serving mandatory minimum drug sentences — actually increased those offenders’ recidivism rates relative to non-incarceration alternatives. That means Floridians pay more money every year than we need to in order to lock thousands of people up in prison, and in return we get more crime than we would’ve had if we’d taken a less punitive path. More money for more crime. Not good!

Finally, wasting money on unnecessary incarceration crowds out other, more effective crime control strategies generally. For example, everyone knows that, as this essay notes, “there is far more empirical support for the deterrent effect of changes in certainty of punishment than changes in the severity of punishment.”

However, as Mark Kleiman (who has forgotten more about crime and punishment than most of us can ever hope to learn) points out in this piece, there is a tradeoff between swiftness and severity on one hand, and severity on the other. To have more of one is by definition to have less of the other. As Kleiman writes, “ . . . severity is the enemy of certainty and swiftness, because severe punishments chew up scarce capacity and require a lot of time-consuming due process.” Kleiman followed up on that point in this Reason interview, pointing out that under California’s “Three strikes law,” a 25-year mandatory minimum means 25 people can’t be locked up for a year. Kleiman says such laws, which trade certainty for severity, create “randomized Draconianism,” and reduce our ability to fight crime efficiently.

(Read Kleiman’s book.)

One good way to increase “certainty and swiftness” in criminal punishment is hiring more police officers. And wouldn’t you know it? This RAND report ran a cost-benefit analysis on the effect of adding more police officers to city forces, and concluded:

“…investments in police personnel generate net social benefits . . . [F]or a number of large cities, we estimate returns on investments in additional police in terms of reduced crime that are likely to be appreciably above hiring costs . . . returns on investments in police personnel are likely to be substantial.”

Unnecessary incarceration is a collective action problem. Every given legislator who perceives that a reputation for being “soft on crime” threatens his or her reelection prospects has an incentive to vote for mandatory minimum drug laws, even though mandatory minimum drug laws are an ineffective solution to drug crime and lead to unnecessary incarceration. But the result of such unnecessary incarceration is collectively disastrous, and counterproductive to the very ends mandatory minimums are intended to serve.

Conclusion

At a Florida Bar summit last year, the State Attorney for Florida’s 8th Judicial Circuit, Bill Cervone, cautioned the legislature against doing away with Florida’s mandatory sentencing laws. Cervone likened crime to a health problem, and mandatory minimums to a cure. He said, “If you have a chronic health issue and you get it under control with some sort of medication . . . [if you] stop taking the medication the chronic health issue you had under control will come back.”

This is of course true — under the assumption that the medication in fact cured the chronic health issue. But the true test of a medicine’s efficacy isn’t whether a patient improves, but whether that medicine reliably outperforms a pharmacologically inert substance in double-blind, placebo-controlled studies.

I suspect most VRTI patients don’t rush to the doctor as soon as they start coughing. Instead, they will wait it out, and go to the doctor only when they think the VRTI isn’t going away on its own. (That’s what I did!) But that’s also exactly the time the infection is most likely to go away on its own! (Like mine did!) But the doctor prescribes antibiotics because the patient expects them, and the patient takes them, and the patient believes the antibiotics cured the infection. It’s a reasonable inference, but it’s wrong, the medicinal version of the Post hoc fallacy.

Post hoc errors are one reason quacks have always been able to sell worthless “miracle cures,” and why credulous marks have always paid for them. I was reading just today about Franz Mesmer, an eighteenth century German doctor who “thought that the positions of the planets influenced human health, and was caught up in the wonders of electricity and magnetism.”

Per Carl Sagan’s description,

“[Mesmer] catered to the declining French nobility on the eve of the Revolution. They crowded into a darkened room. Dressed in a gold-flowered silk robe and waving an ivory wand, Mesmer seated his marks around a vat of dilute sulfuric acid. The Magnetizer and his young male assistants peered deeply into the eyes of their patients, and rubbed their bodies. They grasped iron bars protruding into the solution or held each other’s hands. In contagious frenzy, aristocrats — especially young women — were cured left and right.”

Eventually, a commission of experts (which included Benjamin Franklin!) conducted a control experiment. The commission found that, “when the magnetizing effects were performed without the patient’s knowledge, no cures were effected. The cures, the commission concluded, were all in the mind of the beholder.”

Sagan reports that Mesmer and his followers were undeterred (of course).

“One of them later urged the following attitude of mind for best results: ‘Forget for a while all of your knowledge of physics . . . Remove from your mind all objections that may occur . . . Never reason for six weeks . . . Be very credulous; be very persevering; reject all past experience, and do not listen to reason.’ Oh, yes, a final piece of advice: ‘Never magnetize before inquisitive persons.’”

Indeed, the entire field of “patent medicine” —complete with charismatic con artists traveling from town to town selling miracle elixirs — rested on the layperson’s inability to distinguish between effective medicine and snake oil. And, as we’ve seen, antibiotics are still prescribed tens of millions of times every year for viral infections that would have cleared up on their own.

But at least the infections go away! By any conceivable metric, Florida’s drug problem is worse today than it was 20 years ago when the legislature re-imposed mandatory minimum drug laws. Drug overdose deaths are up nearly 150% since then, in fact, and Florida’s overdose death rate has been higher than the national average nearly every year since 1999. VRTI patients can be forgiven for believing in the healing powers of antibiotics; legislators have no similar excuse for mandatory minimum drug laws.

And despite the promises of the original proponents of mandatory minimum drug laws, Florida’s crime rate rose about 11 percent over the decade after we adopted those laws in 1979. And despite the dire warnings from the same people that repealing them would send crime rates spiraling upward, the crime rate fell around 26 percent between 1994 (when the legislature repealed most of the mandatory minimum drug laws in Florida statutes) and 1999 (when the legislature put them back on the books). Crime has continued to fall in Florida, of course, but crime has fallen everywhere, including in states that have either never had mandatory minimum drug laws, or that have repealed them.

Given the available evidence, any disinterested observer will conclude that Florida’s mandatory minimum drug laws are not the “medication” we’ve used to get our “chronic health issue” under control. Instead, they are more like antibiotics for viral respiratory tract infections — an overzealous and irresponsible “treatment,” a “prescription” based on ignorance and intuition instead of evidence and best practices, and a “cure” that is often worse than the disease.

Then again, who knows? Maybe mandatory minimum drug laws do work. Just don’t try to defend them before inquisitive persons.