The “War on Drugs” Increases Drug-related Harm
The crisis of overdose and other drug-related harm continues to impact communities across the United States. According to the most recent provisional data, the 12-month period ending June 2023 was one of the deadliest on record, with approximately 110,000 lives lost in the U.S. due to drug-related overdoses.1 Both non-fatal overdoses and injection-related infections are at or near all-time highs as well.Reference Barocas2
Since the 1970s, the United States has resolutely pursued a “War on Drugs” that directs the power of the state not toward reducing drug-related harm but to the criminalization and stigmatization of people who use certain drugs. Under this “War,” the number of incarcerated people has risen steadily; the U.S. now incarcerates its citizens at a higher rate than nearly every other country. More arrests are made for drug offenses than any other category of crime — nearly 1.3 million for simple possession in 2019 alone — and nearly 1 in 5 incarcerated people are imprisoned for a drug offense.3 The “War” has perpetuated and in many cases exacerbated racial disparities in arrest and incarceration; while Black and White people use drugs at a similar rate, Black people make up a quarter of those incarcerated for drug crimes despite comprising only 14% of the population.4
The “War” has not, however, reduced either illicit drug use or drug-related harm. The percentage of 12th graders who reported using any illicit drug in the prior year has hovered around 40% since the mid-1990s, and fatal overdose rates have continued to grow at an exponential rate since the late 1970s.Reference Compton5 This dichotomy is not surprising; indeed, extensive evidence demonstrates that punitive drug laws and drug law enforcement do not deter drug use or initiation but rather increase harm to individuals and communities.Reference Friedman6
Simply having been arrested for a drug crime is a risk factor for overdose death, and that risk increases with the number of arrests an individual experiences.Reference Krawczyk7 Police activity reduces the number of people who access syringe service programs and low-barrier buprenorphine.Reference Park8 Black individuals who are arrested in young adulthood experience significantly increased odds of later drug use and substance use disorder, and formerly incarcerated people are at extremely high risk for overdose.Reference Binswanger9 Researchers have suggested that punitive drug laws encouraged illicit drug suppliers to shift production from heroin to the more potent and more easily transportable fentanyl, helping to drive the current crisis of fentanyl-related overdose.Reference Beletsky and Davis10
Federal Commitment to the War
In 2011, then Director of the Office of National Drug Control Policy (ONDCP) Gil Kerlikowske stated, “As someone who has spent their entire career in law enforcement, I know we cannot arrest our way out of the drug problem.”Reference Kerlikowske11 This realization has not led to any meaningful changes in drug arrests. Over 1.5 million such arrests were made in the U.S. in 2019, nearly 80,000 more than when Director Kerlikowske noted the futility of prioritizing them.12 Approximately one in three people with opioid use disorder in the U.S. are arrested every year, and overdose incidents often result in arrest and incarceration.Reference Fiscella13
In 2011, then Director of the Office of National Drug Control Policy (ONDCP) Gil Kerlikowske stated, “As someone who has spent their entire career in law enforcement, I know we cannot arrest our way out of the drug problem.” This realization has not led to any meaningful changes. Over 1.5 million drug arrests were made in the U.S. in 2019, nearly 80,000 more than when Director Kerlikowske noted the futility of prioritizing them.
While most arrests are made for alleged violations of state law, states and localities often take direction from the federal government. The Biden administration has increasingly adopted the rhetoric of a more public health-focused approach to illicit drug use, but in practice it remains committed to a system that criminalizes and stigmatizes people who use drugs. Among many other examples, the federal Department of Justice has been battling for years to stop an overdose prevention center — a facility where people can use pre-obtained drugs in a controlled setting — from operating in Philadelphia, despite evidence that such facilities reduce fatal overdose without increasing crime.Reference Burris14
When a conservative publication claimed that the Biden administration was going to “fund crack pipe distribution,” the administration responded not by voicing support for the evidence-informed practice of providing safer smoking equipment but by announcing that federal funds were not to be used for it.Reference Hauf15 Indeed, such instruments are illegal in most states because the Drug Enforcement Administration created a model paraphernalia law and urged states to adopt it. Despite overwhelming evidence that paraphernalia laws increase harm without reducing drug use, the administration has done nothing to encourage states to repeal them.Reference Davis and Carr16
States Can Lead the Way Forward
While some states have passed laws that double down on “War on Drugs” approaches such as increasing the penalties for fentanyl-related crimes, most have also adopted at least some evidence-based, human-focused policies designed to reduce drug-related harm. For example, almost all states now have some form of overdose Good Samaritan laws, and, in just the past few years, most have eliminated penalties for the possession and distribution of fentanyl test strips.17 A few states have made even more sweeping efforts to change the legal environment to one that benefits, rather than harms, individuals and communities.
Perhaps the most far-reaching of these state changes occurred in Oregon. There, advocates built support for decriminalization of simple drug possession by pairing that change with increased funding for prevention, treatment, and recovery. The result, ballot measure 110, was approved by nearly 60% of voters. Measure 110, which went into effect in early 2021, reduced personal drug possession from a crime to a non-criminal violation that results only in a $100 fine, which is waived if the individual completes a health screening.18 Initial evidence from this change shows that drug arrests have declined dramatically, with no impact on violent crime or overdose deaths. Reference Davis19 Disappointingly but not surprisingly, proposals are already underway to roll back many of the changes made by Measure 110, despite generally positive initial results and increasing recognition globally of the necessity of decriminalization.Reference Dake20
Despite the federal government’s continued opposition to OPCs, Rhode Island passed legislation in July 2021 that legalized the facilities in the state.21 State officials have carefully crafted a regulatory framework to support and protect OPC workers and participants in ways that are responsive to the needs of the community, and the first licensed facility is expected to open soon.22 Meanwhile, unauthorized but officially-supported OPCs in New York City have intervened in over 1,000 overdoses in their first year of operation, potentially saving many lives.Reference Soto23
Minnesota has also been a leader in drug policy reform. As noted above, one of the most absurdly harmful prohibitionist policies is the criminalization of drug use equipment, or “paraphernalia.” In 2022, Minnesota passed a sweeping law that decriminalized the possession, use, and free distribution of drug paraphernalia in the state.24 The bill also decriminalized residual amounts of controlled substances in and on drug paraphernalia and allowed for the unlimited sale of syringes by pharmacists.
Conclusion
Over five decades on, the “War on Drugs” — rightly recognized by the Secretary of the Department of Health and Human Services as a “war on people” — continues to have a devastating impact on individuals and communities.Reference Becerra25 In light of continuing failure by the federal government to stop fighting this war on its own people, some states — pushed by reform advocates — have shown bold leadership in adopting evidence-based, human-centered drug policy reforms.
Overdose death and other drug-related harm is preventable. Removing paraphernalia laws, decriminalizing drug possession, and authorizing OPCs are common sense ways to prevent that harm. In light of continuing federal inaction, states should work with advocates and people with lived and living experience to make the changes necessary to save lives.
