By Leo Beletsky, Dan Werb, Ayden Scheim, Jeanette Bowles, David Lucas, Nazlee Maghsoudi, and Akwasi Owusu-Bempah
The accelerating trajectory of the overdose crisis is an indictment of the legal and policy interventions deployed to address it. Indeed, at the same time as the U.S. has pursued some of the most draconian drug policies in the world, it has experienced one of the worst drug crises in its history.
The legal and institutional system of U.S. drug control remains defined by its racist, xenophobic, and colonialist roots. It is no surprise, then, that current policy approaches to drug use have amplified inequities across minoritized and economically marginalized Americans. Reliance on the criminal-legal system and supply-side interventions have disproportionately devastated Black and brown communities, while failing to prevent drug-related harms on the population level.
The Biden-Harris Administration has an unprecedented opportunity to chart a different path. The priorities for the Administration’s approach should flow directly from its stated principles: emphasis on scientific evidence and a focus on equity.
The following key areas require immediate, bold, and evidence-grounded action.
- Removing Obstacles to Harm Reduction for Overdose and Infectious Disease Prevention
An estimated 75,500 Americans died of overdose between March 2019 and March 2020, and preliminary data indicate that overdose deaths will reach an all-time high in 2020. In cities such as St. Louis and Philadelphia, Black and Hispanic communities are being disproportionately impacted by the overdose crisis, alongside well-publicized racial disparities in the COVID-19 pandemic. Multiple outbreaks of HIV and Hepatitis C infection related to injection drug use have occurred in urban and rural areas across the United States since 2015.
Over thirty years of evidence supports the use of harm reduction strategies to prevent overdose and infectious disease transmission. Harm reduction refers to a set of interventions to reduce the negative consequences of substance use. Harm reduction interventions are often described as “meeting people where they are at,” and do not require abstinence, which is not always a realistic or desired goal. Harm reduction interventions include the provision of sterile injecting equipment, naloxone, and education for opioid overdose reversal, supervised consumption spaces, and clinical approaches to reduce barriers to accessing treatment.
However, current federal policies and enforcement decisions limit the ability of states and municipalities to implement these proven, life-saving interventions. These barriers must be removed. To this end, the Biden-Harris administration should:
- Support state and local efforts to pilot and evaluate supervised consumption sites (SCSs) in the United States.
- Eliminate the ban on federal funding for syringe service programs (SSPs), which are recognized by the World Health Organization as the primary strategy to prevent infectious disease transmission related to injection drug use.
- Increase access to naloxone to prevent overdose deaths by (a) mandating coverage in public and private insurance plans, (b) requiring that federally-funded drug treatment programs and correctional settings provide naloxone upon release, and (c) negotiating with manufacturers for reduced bulk pricing of naloxone.
- Increasing Access to Medication-assisted Treatment
Extensive research has identified opioid agonist therapies as the gold standard in treating opioid use disorder. These therapies, which are dubbed Medication for Opioid Use Disorder, or MOUD, are pharmaceutical medications such as methadone, buprenorphine, and other formulations that can manage opioid withdrawal symptoms and help stabilize individuals’ drug use and lives.
Evidence from the United States and elsewhere demonstrates that they are also effective in preventing overdose and drug-related recidivism. Despite this medical consensus on the effectiveness of MOUD, however, under 20% of eligible Americans have access to these life-saving treatments. To prevent the cycle of untreated OUD, overdose death, and criminal justice involvement, the Biden-Harris Administration must prioritize access to these life-saving treatments.
Scaling up access to medication-assisted treatments requires four parallel actions. First, create an MOUD stockpile sufficient to cover all eligible Americans. Second, address gaps in the provision of MOUD for incarcerated and recently-incarcerated people that contributes to a high prevalence of overdose post-release. Third, provide training and education for clinicians to increase their capacity to prescribe these medications. Fourth, respond to misinformation about the effectiveness of these medicines, which has critically hampered their rollout.
- Modernizing Drug Courts
For people charged with eligible drug-related offenses, drug courts offer a treatment-based alternative to incarceration. However, even with more than 4,000 problem-solving courts in the United States, people who use drugs remain over-policed, over-incarcerated, under-housed, and, with respect to healthcare delivery, under-served. And drug courts have had no demonstrable impact on incarceration rates or the overdose crisis.
Drug courts must be re-designed as a non-coercive, non-punitive, trauma-informed, and evidence-based intervention. To become less coercive – and closer to the voluntary option they aim to be – drug courts must become pre-plea across the board. To become non-punitive and more humane, the common practice of sanctioning participants for not achieving abstinence must be prohibited. To further reduce participant harms – particularly to victims of sexual violence – drug courts need to implement trauma-informed alternatives to observed urine-testing protocols, like sweat patches or oral swabs. To be considered an evidence-based intervention, drug courts must provide full access to life-saving opioid medications, not prohibit the use of prescribed psychiatric medications, and not otherwise intervene in any doctor/patient relationship. Lastly, to become a more racially equitable and historically-responsive intervention, drug courts must interrogate their admission and community engagement practices, as well as shift their focus away from one-size-fits-all treatment mandates towards addressing key health determinants such as housing, primary healthcare, education, and employment.
- Elevating the Use of Discretion in Drug Law Enforcement
Decisions relating to prioritization and modes of law enforcement by police, prosecutors, and other actors within the criminal legal system are absolutely critical to shaping the policy environment on-the-ground.
In the drug policy sphere, one major example of the leverage of enforcement discretion is in the area of cannabis. Although major legislative and regulatory reform is still needed, the cannabis sector in the United States has emerged as a product of enforcement discretion on the federal level.
This example is relevant to other spheres of federal drug policy, where discretion can be leveraged to prevent deaths and promote recovery. Especially at a time of intersecting national public health crises, federal law enforcement must not stand in the way of state and local drug policy experimentation. Decisive and coordinated changes in enforcement priorities could rapidly transform the drug policy landscape without necessitating legislative or regulatory shifts. Enforcement discretion could be crucial to rapidly achieving many of the priorities outlined above, such as not prosecuting those involved with supervised consumption sites, and relaxing enforcement of MOUD prescribing regulations.
Although restraint is warranted in a number of areas, more aggressive federal law enforcement is warranted in other areas to address the opioid crisis. This includes scaling up federal law enforcement:
- To address fraud, abuse, and discrimination in drug treatment and other health services, including inside correctional settings.
- To promote access to housing, employment, and other supportive systems through enforcement of anti-discrimination, parity, and other provisions.
- And to oppose discriminatory and unhealthy zoning provisions that block access to harm reduction, treatment, housing, and other services.
- Reforming Cannabis Policy
Prohibition has failed to control the demand and supply of cannabis, with widespread use and availability continuing unabated, based on data from the United Nations Office on Drugs and Crime, and other sources. Beyond its failure to achieve these goals, the prohibition of cannabis has caused significant harms, including disproportionate criminalization for low-level offenses (6.1 million cannabis arrests in the United States between 2010 and 2018), especially among Black, Indigenous, and Latinx communities, barriers to access of medical cannabis, and impediments to cannabis research.
The Biden-Harris Administration’s top priority in this realm should be to remove cannabis from Schedule I of the Controlled Substances Act (CSA), such as by adopting the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3884/S. 2227). This federal legislation would not only remove cannabis from the CSA, but also begin to address persisting racial inequities by allowing for the expungement and resentencing of cannabis convictions, providing financial support to communities most harmed by criminalization, and diversifying the regulated cannabis industry.
- Abolish the DEA
Change in function requires change in structure. As we have written elsewhere, despite investing hundreds of billions of taxpayer dollars and the earnest efforts of thousands of employees throughout the years, the DEA has an abysmal track record.
Domestic and international enforcement strategies have failed to produce intended reductions in illicit drug markets. At the same time, pharmaceutical markets for controlled substances can hardly be called well-regulated. Both at home and abroad, its operations have been a source of countless harms, including human rights abuses, political instability, environmental degradation, and cascades of other toxic outcomes. Instead of the circular reasoning anchored to operational metrics such as numbers of arrests and volume of drugs seized, the guiding benchmarks of “drug control” should focus on how agency actions impact drug-related harms, like overdose deaths.
It is long past time to abolish this failed, bloated agency. That would require congressional approval, as would abolishing any of its component parts or legislated missions. Through executive action alone, the Administration could thoroughly overhaul the agency through resource allocation decisions and policy changes. A sober look at all of the DEA’s programs using meaningful metrics should be a top priority for this reorganization.
Moving the United States beyond the opioid overdose crisis, pernicious inequities in law enforcement, and the unacceptably low levels of access to quality, evidence-based substance use disorder treatment requires bold, innovative solutions. The recommendations listed herein offer a roadmap to addressing the current challenges in drug policy. We urge the Biden-Harris Administration to immediately begin implementing these evidence-based recommendations to advance equity, health, and the social well-being of all Americans.
This post is adapted from a draft memorandum. The brief, published in April 2021, is available here.
Leo Beletsky is a Professor of Law and Health Sciences and Faculty Director of the Health in Justice Action Lab at Northeastern University School of Law.
Dan Werb is the Executive Director of the Centre on Drug Policy Evaluation.
Ayden Scheim is an Assistant Professor of Epidemiology and Biostatistics at Drexel University’s Dornsife School of Public Health.
Jeanette Bowles is the Postdoctoral fellow at the MAP Center, St. Michael’s Health, Toronto.
David Lucas is a clinical advisor at the Health in Justice Action Lab at Northeastern University School of Law.
Nazlee Maghsoudi is the Manager of the Policy Impact Unit at the Centre on Drug Policy Evaluation.
Akwasi Owusu-Bempah is an assistant professor in the Department of Sociology at the University of Toronto and a Senior Fellow at Massey College.