In a recent op-ed in The New York Times, Deputy Attorney General Rod Rosenstein pointed to the catastrophic opioid crisis facing the US as evidence that our drug policies have failed. Despite increasing drug overdose deaths, criminal prosecutions have actually declined, he laments, noting that the Trump administration is working to reverse those trends.
Rosenstein suggests that the takeaway from the current overdose epidemic is that we should “fight drug abuse” rather than “subsidizing it” through safe injection sites (SISs) proposed by several cities around the country. Rosenstein calls these facilities, which are run by nurses and other health professionals who provide care and medical assistance to people who use drugs, a “taxpayer-sponsored haven to shoot up.” He also says that any sites that open would be met "with swift and aggressive action."
Although Rosenstein is right to note that our drug policies have failed, he is tragically wrong in his view about how they have failed. Our problem is not that we fail to treat people who use drugs as criminals; it’s that we fail to treat them as people with health needs. Drug use and substance use disorder are problems not for criminal justice, but for public health.
If this seems controversial at all, consider Rosenstein’s own motivation for the discussion: the fact that tens of thousands of Americans are dying each year from drug overdose. If that is the motivation for our discussion of drug policy, then presumably a primary goal of such policies will be to reduce overdose deaths (and, given that health is a concern, also to reduce disease and non-overdose deaths related to drug use).
We might think that reducing access to dangerous drugs is a worthy goal, but that is really just a proxy for reducing drug use. And so we might then think that reducing drug use is the final goal, but that seems to be just a proxy for yet another goal, which is to reduce death and disease resulting from drug use. So, when assessing if drug policy works or not, the primary consideration ought to be: Does this save lives?
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This is the standard to which potential drug policies should be held, and so if Rosenstein wants to return to even more aggressive criminalization of drug use, we must ask whether doing so is likely to save lives.
The data on this question is in, and it does not favor aggressive criminalization. Not only has the Drug War failed to meaningfully curb addiction rates or overdose rates, but it has actually caused more harm than good.
Arrest does not help a person suffering from addiction. In fact, drug overdose is three to eight times more likely to occur in the first two weeks after being released from prison than prior to or further out from release. Enforcement of drug laws also causes people who inject drugs to engage in riskier practices, like rushed injection, needle sharing, and not carefully measuring dosages. This can lead to increased incidence of overdose and HIV and hepatitis C infections.
Moreover, it is the very prohibited nature of heroin that opens the possibility for adulterants like fentanyl to claim the lives of so many people. This is known as the Iron Law of Prohibition. When the 18th Amendment outlawed alcohol, America saw the rise of moonshine and organized crime. The same is happening to heroin with the influx of illicitly manufactured fentanyl in the black market.
Clearly, there is a strong case to be made that our drug laws are worsening the opioid epidemic and that the criminal justice framework needs to be restructured, not doubled down on.
When Rosenstein says the administration intends to aggressively target dealers while offering treatment to people with opioid use disorder, he may be assuming that prosecution can differentiate between supply side and demand side interdiction. However, many heroin users also sell heroin or other drugs to fundraise for themselves, so if he plans to crack down on one group but not the other, he is mistaken.
Increased prosecution is unlikely, then, to curb overdose deaths; so what will? Well, the very sorts of policies that Rosenstein rails against: harm reduction. Such policies include needle exchange programs, standing prescriptions for naloxone (overdose reversal medication), and addiction medications such as methadone and buprenorphine.
Broadly speaking, peer-reviewed literature on such services demonstrate their success. When it comes to SISs, much research has shown that they achieve marked reductions in overdoses and the spread of HIV and hepatitis C. Although it’s not yet clear that the evidence in favor of SISs is as strong as the evidence in favor of other harm reduction practices, what is clear is that they do not cause the sort of harm that Rosenstein implies.
Rosenstein uses loaded language to deride the SISs of Europe and Canada as “helping people abuse drugs” but fails to elaborate on why that may be a bad thing. Perhaps SISs encourage drug use or new drug users? Data reveal this is not the case.
Rosenstein then claims that SISs won’t make drug use safer because 1, fentanyl is more dangerous than heroin; 2, users often don’t know what is in their drugs; and 3, a bystander or first responder could be harmed by contact with fentanyl. But Rosenstein is here undermining his own position. The first two claims are precisely the motivation for establishing SISs, since they mitigate the risks of fentanyl and the knowledge deficit necessitated by the black market by providing a safety net of healthcare professionals ready to provide first aid or administer naloxone. And the third claim is simply false: You can’t overdose on fentanyl by touching it.
Far from the community-destroying effect that Rosenstein describes, SISs are community havens. InSite, in Vancouver, is largely credited for a dramatic revival of the surrounding community. Rather than drawing flocks of drug users, SISs tend to attract only those at the highest risk, and far from becoming centers of criminal activity, at least one study shows that they may slightly reduce surrounding crime. If Rosenstein is interested in policies that truly have community-devastating potential, he need only look at the drug laws he aims to revamp.
What the opioid epidemic needs is a concentration on policies that actually save lives. This means embracing evidence-based harm reduction policies, including SISs, that genuinely promote health. If the Trump administration is serious about ending the drug overdose crisis, it should subsidize healthcare, not fight it.
Rob Stenzel, MBE, is a recent graduate from the Johns Hopkins Berman Institute of Bioethics and the Bloomberg School of Public Health. He writes on ethical issues surrounding drug policy and the opioid epidemic.
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