Citing what he called unfinished business from his nearly 30 years in the General Assembly, Maryland Attorney General Brian E. Frosh said he plans to support legislation next session to protect users of generic prescription drugs from being gouged on prices.
The time is ripe for the legislature to “come up with a formulation to keep prices of generic drugs fair,” Frosh told The Daily Record last month during a wide-ranging interview as he approaches the midpoint of his four-year term.
He cited the recent instance of generic drug manufacturer Mylan raising the price of its EpiPen – a widely used device to combat severe allergy attacks – from $57 each in 2007 to more than $600 for a two-pack earlier this year. He also noted drug owner Martin Shkreli’s 5,000 percent increase in the price of the HIV pill Daraprim as harmful for consumers afflicted with the disease.
Frosh said he is discussing legislative options with public-health advocates in advance of the General Assembly session, which begins in January.
“We have never been able to get a price-gouging law passed in Maryland,” Frosh added. “We are basically starting from square one.”
Frosh, who turned 70 last month, declined to announce whether he will seek re-election but did say “I do have some fundraisers coming up.”
Frosh also defended his call for a Maryland Judiciary rule requiring judicial officers not to assess bail beyond a defendant’s ability to pay, saying that such high fees violate constitutional guarantees of due process and prohibitions on excessive punishment.
The following are Frosh’s thoughts during the interview on a variety of topics, edited for clarity and length.
On bail reform:
We are in effect putting people in jail for being poor. I don’t think it’s intentional.… A lot of the time, the judicial officer thinks this is a bail this guy can meet…. But, in fact, you know there are lots of people who cannot pay 100 bucks to a bail bondsman to get out on a thousand dollars’ bail or 250 bucks and they end up sitting in jail for days or weeks sometimes months.
Now you get into the policy considerations. It’s a great expense to the local jurisdictions or the state and a great expense to the defendants who can lose their jobs, lose their homes, lose their families because they are sitting in jail. We think the rules ought to be changed, the policies ought to be changed to fix the constitutional problems and do a better job of administering the pretrial process.
On what would happen if the attorney general’s advice to the General Assembly contradicts the governor’s will on a certain issue:
We represent the governor, we represent the General Assembly and occasionally that puts us in a posture where we have a conflict of interest, where our client doesn’t feel that we can do a good job because of my political position or whatever. What they can do is ask us to allow them to hire outside counsel. So far, that hasn’t happened in my administration, and we would have to say “yes” or “no” if the issue ever arose…. There are conflicts built into the job.
On criticism that his office’s advisory letters fail to state a strong position:
We do come to a conclusion. We say, “Here is our best advice as to what the law is” and that’s the point of the letter. But, as I said before, we’re calling balls and strikes, we’re not trying to make a case. It’s not an advocacy piece. It’s a letter of advice that lays out the law so we lay out the arguments on both sides and then we come to a conclusion. We wouldn’t be doing our job fully if we didn’t say, “Look, here are the arguments that you have to address in order to get to the conclusion,” and if there are 10 cases, four of them go to the answer “no” and six of them go to the answer “yes,” we think the answer is “yes.”
There are arguments on both sides on all of this stuff or nobody would need our advice. People are asking because it’s not clear. Sometimes it’s pretty easy and sometimes it’s 51-49. But in all cases we are trying to make sure that people understand what the basis for the conclusion is.
On whether he misses the Senate and his chairmanship of its Judicial Proceedings Committee:
I love the job I’m doing; I wouldn’t trade it. But I loved being in the Senate. It was interesting, challenging and important. And there are advantages and disadvantages to being in my job versus being in the Senate. There’s a social and collegial aspect to being in a legislative body that you don’t have as an attorney general. On the other hand, I don’t need any other votes to take action when action is called for in the AG’s office.
On the attorney general’s role:
The attorney general’s office is the top law enforcement, the top legal officer for the state: We’ve got to be right. We try not to bring cases that we think aren’t meritorious; we try not to defend cases that we think we’re on the wrong side of; and we try to settle stuff where the state may have gotten off on the wrong foot because the state makes mistakes all the time. You know, somebody gets hit by a car driven by a state employee, the state has to pay for it. The state is not always in the right, but the attorney general’s office ought always to be seeking justice, seeking to do the right thing.
On not pursuing action against daily fantasy sports, though having issued an advisory letter calling the activity likely illegal in Maryland:
We think the legislature needs to clarify whether daily fantasy sports are legal or illegal and send it to referendum if that’s the appropriate way of doing it….
I think the best situation would be that the General Assembly makes clear what its intent is with respect to daily fantasy sports and then if it’s their will we’re prepared to enforce it….
I don’t think that we are obligated to investigate and pursue every potentially illegal act that occurs in the state. We don’t have the resources to do that and we have to prioritize. And in this case, I think it becomes a high priority when the General Assembly gives clear direction. Without it, I think it goes further down in the stack.”
On Fourth Amendment rights and new surveillance technologies:
The Fourth Amendment is a very robust and historically protective and sound doctrine…. Because I am a law-enforcement officer now, I tend to think that if you’ve got a cellphone and you’re pinging off a tower or if you are posting on Facebook or engaging in any other activity that can be traced back either to you or to your location that your privacy interests are interests that you knew or should have known were at stake when you were posting, when you were calling, when you were driving….
Now, my portfolio includes law enforcement…. Now, I am the one who has got to make the search stick. I am the one who has got to make sure that the bad guy ends up in jail so I want law enforcement to have the tools that it needs.
On whether the attorney general’s office should take over police brutality cases to ensure independence:
I’m not asking for that authority. I want to make that very clear. I think the prosecutors in the state do an excellent job on those issues.
Brian E. Frosh
Maryland Attorney General, Jan. 6, 2015-present
Maryland State Senator – District 16, 1995-2015
(Chair, Judicial Proceedings Committee, 2003-2015)
Maryland State Delegate – District 16, 1987-1995
Attorney in Private Practice (Karp, Frosh, Wigodsky & Norwind P.A.), 1976-2015
Member of Maryland Bar, since Jan. 14, 1972
Member of District of Columbia Bar, since Sept. 1, 1972
Member of U.S. Supreme Court Bar
Education: J.D., Columbia University School of Law, 1971
B.A., Wesleyan University, 1968