When Carver County Attorney Mark Metz announced last week that he was closing the investigation into Prince’s death without charging anyone, it marked a significant failure that is all too typical.
It wasn’t a failure because Metz did not charge Dr. Michael T. Schulenberg, who treated Prince at the end of his life. Metz made clear that while Schulenberg violated medical rules, he did not provide the drugs that killed Prince on April 21, 2016.
Rather, this outcome was a failure because the person or people who actually did provide the fentanyl-laced pills that caused the death were not identified, and the police have given up on that project.
As Metz described it, the investigation found that Schulenberg prescribed 15 Percocet pills to Prince shortly before he died. Percocet contains oxycodone, an opioid, along with the painkiller acetaminophen. It wasn’t those pills that caused Prince’s death, though. Rather, the killing agent was something especially evil: a tablet masquerading as Vicodin that actually contained fentanyl. Vicodin is another opioid-acetaminophen combination, while fentanyl — a synthetic form of heroin — is a much more powerful opioid.
Any of these drugs (Percocet, Vicodin, fentanyl) can feed the addiction of someone who is hooked on opioids. Fentanyl, though, is much deadlier because a very small amount can be lethal. When it is disguised as another drug, as apparently happened in Prince’s case, that lethality becomes truly frightening. The truly scary part about the case Metz closed is that the source of that fentanyl-in-Vicodin-clothing was never identified. If investigators can’t track down the path of lethality in this case, in which the victim was famous and remarkable resources were thrown at the probe, then we are truly in trouble.
And we are in trouble. Drug overdoses, most from opioids, are killing some 60,000 Americans a year, making it the leading cause of death among people under 50. Strikingly, this is happening even as the rate of prescription of opioids is going down. It is a huge number, and the carnage is occurring in every state and in every age group. The rise is probably driven by several factors, but one is the increasing number of cases like Prince’s, where “hidden” fentanyl plays a role.
In a place and time where someone can manufacture, market and distribute pills that look exactly like Vicodin but contain deadly fentanyl — not to mention all the street heroin and even cocaine now carrying substantial doses of fentanyl — what can we do?
First of all, the answer won’t be to go hard after users or small-time dealers with harsh sentences. We tried a war on drugs based on those tactics, and drugs won. The futility of the Prince investigation, too, shows the dead-end nature of that road. Instead, we need to look below and above that level — that is, we should focus on reducing demand for opioids by Americans while engaging law enforcement with the problem of determining how fentanyl is manufactured and how it gets into and around the country at wholesale.
To do either of those things there must be national leadership. President Donald Trump has paid lip service to the problem, certainly, and convened an opioid commission that one member labeled a “sham.” Within the Justice Department, though, Attorney General Jeff Sessions has announced some worthwhile measures. Most recently, he set out a project to take on pharmaceutical companies by setting quotas on the amount of opioids they could produce. Less helpfully, he hopes to use the death penalty to supposedly deter some illegal opioid dealers.
The president and Congress should choose a strong, capable, nationally known leader from the political mainstream to lead this fight, then give him or her the money to do it. This is not a job for Jared Kushner or Kellyanne Conway, two of the people previously tasked with the role.
It requires that level of attention not because Prince died but because almost all of us know someone, or several people, who have been damaged, sometimes beyond repair, by opioid addiction. It deserves that attention because families and communities are being ruined.
If a terrorist killed 60,000 Americans this year, we would find focus. We should do the same with this lethal threat.
Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas.