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Legalize Heroin Essay

By the time I began as a drug policy reporter in 2010, I was all in on legalizing every drug, from marijuana to heroin and cocaine.

It all seemed so obvious to me. Prohibition had failed. Over the past decade, millions of Americans had been arrested and, in many of these cases, locked up for drugs. The government spent tens of billions of dollars a year on anti-drug policies — not just on policing and arresting people and potentially ruining their lives, but also on foreign operations in which armed forces raided and destroyed people’s farms, ruining their livelihoods. Over four decades, the price tag for waging the drug war added up to more than $1 trillion.

Yet for all the effort and cost, the war on drugs had little to show: Drug use had actually trended up over the past several years, and America was in the middle of the deadliest drug crisis ever in the opioid epidemic.

I wasn’t totally naïve. I believed legalization would increase drug use. But I also thought the government could sensibly regulate drugs to make sure the worst cases of misuse were kept under control — by cracking down on misleading marketing, keeping prices sufficiently high and therefore inaccessible to too much use, and, at the very least, making sure kids couldn’t get these substances.

Then I began reporting on the opioid epidemic. I saw friends of family members die to drug overdoses. I spoke to drug users who couldn’t shake off years of addiction, which often began with legal prescription medications. I talked to doctors, prosecutors, and experts about how the crisis really began when big pharmaceutical companies pushed for doctors and the government to embrace their drugs.

Meanwhile, the government responded very slowly. The opioid epidemic began in the late 1990s, particularly with the birth of Purdue Pharma’s OxyContin in 1996. But it wasn’t until 2014 that the Drug Enforcement Administration rescheduled some opioid painkillers to put harsher restrictions on them. And it took until 2016 for Congress to pass a law that attempted to seriously address the epidemic.

In fact, the federal government pushed doctors to prescribe opioids through the “Pain as the Fifth Vital Sign” campaign in the 1990s and 2000s, as drug companies misleadingly marketed opioids to treat chronic pain. And in some cases, different levels of government loosened access to opioids after lobbying from drug companies — by passing laws that, for example, required insurers to cover the drugs.

And while Purdue Pharma was eventually fined for its horribly misleading marketing for OxyContin, the hundreds of millions it paid added up to peanuts compared to the tens of billions it’s reaped from the drug.

As a result, a lot of people have died: In terms of overdoses, the opioid epidemic is deadlier than any other drug crisis in US history — more than crack, meth, and any other heroin epidemic. In total, more than 560,000 people in the US died to drug overdoses between 1999 and 2015 (the latest year of full data available) — a death toll larger than the entire population of Atlanta. And while many of these deaths are now linked to illicit drugs like heroin and fentanyl, the source of the epidemic — what got people started on a chain to harder drugs — was opioid painkillers, and legal painkillers were still linked to most opioid overdose deaths as of 2015 (although there are signs that changed in 2016).

This was exactly what anti-legalization activists have warned about: Companies got a hold of a dangerous, addictive product, marketed it irresponsibly, and lobbied for lax rules. The government’s regulatory response floundered. The government even worked with the drug companies in some cases — under the influence of lobbying, campaign donations, and drugmaker-funded advocacy groups. And people got addicted and died.

Looking at this crisis, it slowly but surely dawned on me: Maybe full legalization isn’t the right answer to the war on drugs. Maybe the US just can’t handle regulating these potentially deadly substances in a legal environment. Maybe some form of prohibition — albeit a less stringent kind than what we have today — is the way to go.

The opioid epidemic shows the US can be really bad at drug regulation

I should be clear: I am talking about the legalization of harder drugs, so none of this applies to marijuana legalization. While there are real concerns with pot addiction and people doing stupid things on weed, my perspective is that it’s such a relatively harmless drug, according to the best scientific evidence, that the government can afford to screw it up. Especially since the alternative is a prohibition regime that leads to hundreds of thousands of needless arrests in the US each year and fosters violence as traffickers fight over turf or settle other beefs related to the drug trade.

But with the harder drugs, there’s a lot of room to mess up — as the opioid epidemic demonstrates.

I’m not the first person to make this connection. For RealClearPolicy, Robert VerBruggenwrote that the opioid epidemic has forced him to confront some of his libertarian views on legalization. While he “was never so naïve as to think there would be no increase in drug use or abuse if drugs were legal,” he ultimately figured the cost-benefit analysis would land in favor of legalization and against prohibition.

“But,” he added, “it sure looks like loosening control of a drug made all hell break loose, and that's not what I would have predicted, say, ten years ago.”

I asked Ethan Nadelmann, the retired executive director of the Drug Policy Alliance, about this. As someone who has spent a career thinking about this issue, he acknowledged that the opioid epidemic “should give you pause” in terms of backing full free-market legalization.

Nadelmann suggested this is a failure in the US in particular. In a recent meeting with some Swiss officials, he brought up concerns similar to mine, and the officials remarked that the US’s failures in the opioid epidemic shouldn’t hinder legalization efforts in Europe. After all, across the Atlantic, opioids have been more strictly regulated and an overdose crisis has so far been averted.

But the US did fail. Horribly. There are many things that could have been done to stop the opioid epidemic in its tracks: The Food and Drug Administration (FDA) could have blocked or restricted the use of opioids — to better account for the risks of addiction and overdose, as well as the lack of scientificevidence that opioids are even effective for chronic pain. The Drug Enforcement Administration (DEA) could have limited the supply of opioids and taken stronger legal action against companies that carelessly let their drugs proliferate to unscrupulous prescribers, instead of focusing on bit players, like pill mills that popped up across the country.

Yet the government didn’t do much of anything for years. Kathleen Frydl, a drug policy historian, summarized some of the FDA’s failures:

From the misguided approval and branding of OxyContin, on the basis of information the FDA knew to be faulty, to the puzzling approval of the similar single-entity, extended-release opioids of Opana in 2006 and Zohydro in 2013, the FDA operates on the belief that opioids are beneficial in managing chronic pain, although there is to date no persuasive evidence of their effectiveness, and only mounting proof of their morbid risk. Also damning is the fact that most of the criminal and civil prosecution of drug companies for “misbranding” their opioid products as less addictive has come at the hands of U.S. Attorneys and whistleblowers, even though the law that defines the violation, the Food, Drug, and Cosmetic Act, falls well within the purview of the FDA. Aggressive in opioid approvals, the FDA has been lethargic in responding to the consequences.

The DEA, meanwhile, has the power to set production quotas for some opioids, like hydrocodone and oxycodone, produced for sales. It could have used this power, as it did during past drug crises, to limit the supply of these dangerous drugs. But Frydl pointed me to data that showed that the agency has since at least 1999 let the quota for opioids rise and rise and rise — effectively relinquishing a tool it could have used to limit the rapid growth of opioid use.

Here, for instance, is the quota for oxycodone going back to 1999, which trended up even after the Centers for Disease Control and Prevention in 2011 declared the opioid crisis an “epidemic”:

Much of this is the result of aggressive lobbying from pharmaceutical companies. Over the past decade, opioid producers and suppliers have spent more than $880 million at the federal and state level lobbying lawmakers to stop new regulations on their drugs, while calling on policymakers to actually loosen access to painkillers. That’s eight times as much as the gun lobby spent on its causes, according to Mother Jones. And it often worked: In Maine, for example, drugmakers successfully pushed for a bill that required insurers to cover opioid painkillers that are supposedly harder to abuse.

In fact, the DEA admits that pharmaceutical companies played a key role in its decision making in its own statements. Here is the agency in 1999 after an unnamed company asked for a formal hearing about the quotas: “In addition, one company requested a hearing to address the aggregate production quota for oxycodone (for sale) or hydromorphone if the aggregate production quotas were not increased sufficiently. The DA [sic], based on the date [sic] provided, has increased the aggregate production quotas for both oxycodone (for sale) and hydromorphone and has determined that a hearing is not necessary.”

The company didn’t even have hold a formal hearing to get what it wanted from the DEA.

All of this should make it clear: Regulation failed.

The reality, though, is this is a pattern that’s now popped up again and again in the US: America allows a dangerous, addictive drug, big companies excessively market it, and use and deaths spiral out of control. This may be a uniquely American problem — perhaps due to the country’s affinity for unfettered capitalism — but it’s something that’s happened multiple times before: with opioids, as well as alcohol and tobacco.

The opioid epidemic isn’t the first time the US has blundered drug regulation

Consider cigarettes. Sure, smoking rates have come down by nearly three-fourths in the past five decades, in large part thanks to government efforts like higher taxes on cigarettes and stricter enforcement of smoking age laws. But despite these efforts, smoking still kills an astonishing 480,000 people each year by some estimates and 540,000 by others. It would take roughly 30 years of murders, at the 2015 rate, to kill this many Americans.

That government regulators allowed the tobacco epidemic to get this bad before they finally took strong action from the 1960s to ’90s speaks to just how badly the US can botch drug regulation.

Then there’s alcohol. By the latest estimate, alcohol is linked to about 88,000 deaths and millions of hospitalizations each year. If anything, this seems to be getting worse: As opioid overdose deaths have risen, so too have alcohol-related deaths. And while experts have all sorts of ideas (including something as simple as raising alcohol taxes) to combat alcohol misuse and death, lawmakers and regulators have failed to do much of anything — in large part because alcohol companies aggressively lobby them not to, blocking anything from higher taxes to nutrition labels.

These drugs are dangerous and kill people, but Americans and policymakers have become largely desensitized to the deaths — seldom speaking to these hundreds or tens of thousands of deaths as a crisis or epidemic. So these issues, particularly with alcohol, blend into the background, letting the industry get away with its excesses as lawmakers get a pass for inaction.

It’s hard to imagine a society in which we’ve legalized heroin or cocaine and let a big industry flourish around those drugs, creating a similar scenario as alcohol or tobacco for harder substances. But 20 or 30 years ago, it was hard to imagine a society in which we’ve legalized marijuana and let a big industry flourish. Yet that’s exactly what legal pot is leading to, with the marijuana industry getting a bigger role in writing the laws and regulations that dictate how legal pot will work. This just seems to be how legalization works in America.

I disagree with Kevin Sabet, a co-founder of the anti-legalization Smart Approaches to Marijuana, on many drug policy issues. But in an interview a couple years back, he told me something that’s stuck in my mind as I have looked at the government’s failure to regulate tobacco, alcohol, and opioids:

If we were a country with a history of being able to promote moderation in our consumer use of products, or promote responsible corporate advertising or no advertising, or if we had a history of being able to take taxes gained from a vice and redirect them into some positive areas, I might be less concerned about what I see happening in this country. But I think we have a horrible history of dealing with these kinds of things.

Looking at the evidence, it’s impossible to really argue against that.

None of this means drug policy reform is a bad idea

Nadelmann explained that, while he doesn’t support what he describes as a “libertarian libertarian” drug legalization model (in which drug sales are legalized and loosely regulated, similar to alcohol), nothing he’s seen in the opioid crisis has given him pause about other kinds of drug policy reform.

“It’s about picking the lesser of two evils,” Nadelmann said, referring to criminalized prohibition on one end and legalization on the other. He argued that prohibition, as it’s currently enforced in the US, has possibly produced more harm than full-on legalization would. So while legalization would likely lead to more addiction and overdoses, chances are that would still be less harm than the suffering tied to the hundreds of thousands of drug-related arrests each year, the thousands of deaths linked to violence from the black market for drugs, and overdoses linked to impure drugs that would very likely be more easily prevented in a regulated market.

I am skeptical. Consider the US statistics: In 2015, drug overdoses killed more than 52,000 people, and more than 33,000 of those deaths were linked to opioids. That’s much more than the number of people who died to homicides: nearly 18,000 in 2015, only some of which were linked to violence in the war on drugs. Based on these figures, the legal drug led to a crisis that is killing way more people than black market–related violence possibly could.

And while it is true that there are other metrics for suffering under prohibition (such as arrests), the same also applies for the opioid epidemic: There are a lot of people suffering from addiction, along with their friends, family, and broader community, yet haven’t overdosed and may never die of an overdose.

So while it’s hard to draw a perfect comparison in terms of overall suffering, the opioid epidemic, at the very least, seems to be much deadlier than violence related to drug prohibition is in the US.

Still, it’s hard to deny that the current model of prohibition has serious costs. Just like lenient regulation through legalization is dangerous, so too is excessive regulation — via punishment — through prohibition.

There’s really little argument that America has been excessive in its punishment: the harsh mandatory minimum sentences, the three-strikes laws that can get someone life for drugs, and the ridiculous probation and parole rules that can get someone thrown back into prison for little more than possession. Not only can these measures cause a lot of human misery, but they also seem to be totally ineffective for actually deterring drug use.

The research is clear on this point: Severity of punishment does little to nothing to deter crime. In particular, a 2014 study from Peter Reuter at the University of Maryland and Harold Pollack at the University of Chicago found there’s no good evidence that tougher punishments or harsher supply-elimination efforts do a better job of driving down access to drugs and substance abuse than lighter penalties. So increasing the severity of the punishment doesn’t do much, if anything, to slow the flow of drugs.

As drug policy experts emphasized in a piece I reported out in 2016, there’s a lot of room for the US to relax its severity of punishment before legalization. One possibility is essentially the Portuguese model: Drugs are decriminalized for personal use, so you can’t be punished with prison time merely for possessing or using illegal substances like cocaine and heroin. But the drugs remain illegal for big companies to produce and sell for profit — effectively stopping the kind of commercialization that’s spurred the tobacco, alcohol, and opioid epidemics.

There’s also room for way more public health efforts to deal with drugs. As a landmark report from the surgeon general made clear in 2016, plenty of places across America could use basic access to drug treatment. And there are many experiments going on around the world to combat the opioid crisis, like prescription heroin in Canada that’s given to drug users who have been unable to shake off their addiction through other forms of treatment. A greater public health approach, with experiments like Canada’s, can be done even if commercial production and sales remain illegal.

This milder form of prohibition isn’t a perfect solution. I don’t think there is a perfect solution. As with many policy debates, this is really about picking between a bunch of unsatisfactory options. Faced with an excessively harsh criminal justice system and a legal industry that carelessly causes drug epidemics, I have come down somewhere in the middle of these two extremes.

As Keith Humphreys, a drug policy expert at Stanford University, once told me, “There's always choices. There is no framework available in which there's not harm somehow. We’ve got freedom, pleasure, health, crime, and public safety. You can push on one and two of those — maybe even three with different drugs — but you can’t get rid of all of them. You have to pay the piper somewhere.”

After witnessing the opioid epidemic firsthand, I have learned this lesson all too well — and I am genuinely scared of how America would pay for full legalization.

In this Storystream

The opioid epidemic: America's deadliest drug overdose crisis

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By Brian Earp

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Forget about “medical marijuana.” Isn’t it time to legalize heroin in the United States? Recreational cocaine? Ecstasy? LSD? How about the whole nefarious basketful of so-called ‘harder’ drugs?

Yes, it is, says Dr. Ron Paul, a fourteen-term libertarian congressman and obstetrician from the state of Texas. It’s a view shared by virtually none of his Republican colleagues, nor, for that matter, very many Democrats. Nor really anyone in the “mainstream” of American politics. But in this post, I’ll argue that he’s right.

Paul—who is currently making his third bid for President of the United States, and polling third among Republican contenders—offered his perspective to comedian and Daily Show host Jon Stewart in an interview earlier this week:

“I think drugs [like heroin] are horrible. I think they’re dangerous—prescription drugs as well as illegal drugs. I think they’re very, very dangerous. But the war on drugs, which violates civil liberties—getting people busted in their houses—that is the danger … [So] I fear the war on drugs more than I fear the drugs themselves.”

The “war on drugs” is dangerous indeed; it has failed, and failed dramatically. A new report by the Global Commission on Drug Policy concludes that that “political leaders and public figures should have the courage to articulate publicly what many of them acknowledge privately: that the evidence overwhelmingly demonstrates that repressive strategies will not solve the drug problem, and that the war on drugs has not, and cannot, be won.”

The commission consisted of such figures as former U.N. Secretary-General Kofi Annan, former U.S. Federal Reserve chairman Paul Volcker, and the former presidents of Mexico, Brazil and Colombia.

But what sort of “evidence” do they mean? What’s so bad about the war on drugs? A 2009 article in the Economist—to pick one of countless sources making the same point—renders the situation vivid:

The United States alone spends some $40 billion each year on trying to eliminate the supply of drugs. It arrests 1.5 million of its citizens each year for drug offences, locking up half a million of them; tougher drug laws are the main reason why one in five black American men spend some time behind bars. In the developing world blood is being shed at an astonishing rate. [And] far from reducing crime, prohibition has fostered gangsterism on a scale that the world has never seen before.

Ron Paul is right. The drug war is “bad” not only because it plainly doesn’t work, but because it actually brings about much greater harm than the activities it wages against. In light of this fact, the Global Commission on Drug Policy made a number of common-sense recommendations, summarized here. Highlights include:

  •  Encourage governments to legally regulate drugs to undermine the power of organized crime and safeguard the health and  security of their citizens
  •  Offer a variety of health and treatment services
  •  Invest in serious drug education programs (not cheap slogans like “Just Say No”)
  •  Focus repressive actions on violent criminal organizations, not on individuals
  •  Replace ideology-driven drug policies with policies and strategies grounded in science, health, security, and human rights

These are all good ideas, and measures in line with such recommendations have already been shown to work. As Denis Owsley and Sarah Serot explain in this excellent article, Portugal had the worst drug problem in Europe in the 1990s, and chose to abandon its war on drugs for the failure it had proven itself to be. In 2001, it decriminalized the possession of small amounts of drugs by individuals, with the result that drug deaths are now down 40 percent. But that’s not all. Owsley and Serot report:

Crime is down. HIV/AIDS incidence is down 17 percent. Drug treatment rates have doubled because people are voluntarily getting treatment. Marijuana use among teens fell 33 percent because it is no longer forbidden and glamorous. Drug use remained stable and only increased at the same rate as the rest of the world.

Despite statistics like these, many people, even progressive and liberal-minded people, struggle to go “all the way” with Dr. Paul and support the wholesale legalization of drugs across the board. Jon Stewart, for instance, in the interview I mentioned above, seemed to advocate for something like a compromise in his response to Paul’s argument. That is, he acknowledged the failure of the drug war with respect to substances like marijuana, but implied that heroin use should be kept legally off-limits:

“There’s so much that you say that appeals. And then I always feel like ‘Ron Paul, he’s really telling it like it is,’ and then you’ll go one step and I’ll go ‘No, Ron, oh.’ We were talking about the drug war and the legitimacy of the drug war, and you were saying that this was failing, and I was listening to you and thinking ‘Yes. Ron Paul, he’s schooling these guys.’ And then you went, ‘Like heroin for instance.’ And I went, ‘No! Ron!”

But why? Why put heroin in a class of its own? To ask the question another way, does it make sense to be opposed to the drug war in general, but support a limited ban on certain drugs seen as being especially addictive and harmful?

I think the pragmatic answer to this question has already been given. Criminalizing heroin, cocaine, and other ‘hard’ drugs simply doesn’t work; so to ban them achieves no good end. But if heroin were legal, some might say, wouldn’t droves of new users get in line to start the habit? As Paul asked a debate audience in South Carolina in May: “How many people here would use heroin if it were legal? Oh yeah”—signal sarcasm—“I need government to take care of me; I don’t want to use heroin so I need these laws!”

Paul might be right in his implied point that heroin use wouldn’t go up by much, at least long-term; but he might be mistaken. Those data would have to be collected. For my part, I can certainly imagine some individuals who might seize legalization as an opportunity to experiment with harder drugs—so it’s not inconceivable that this type of fear could be borne out. But libertarians like Paul would respond that if that really did happen (that is, if some people might try certain drugs if they were legal but not otherwise) it wouldn’t be the end of the world. Here’s why.

Libertarians believe that people should be maximally free, with one condition. That is, people have a right to do whatsoever it is they please—including stupid things that present a danger to themselves, even a grave danger, even danger to the point of death—just so long as they do not harm anyone else in the process. If they pose a threat to others, yes, the law can step in; otherwise personal liberty should be held paramount.

(I’ll show my cards here and state that I find this principle basically compelling, though I won’t take the time in this post to mount a philosophical case for libertarianism; others have done a much better job than I could possibly do, and it would distract from my present point.)

On the libertarian view, if a person wants to use heroin, knowing the addictive and life-destroying possibilities it harbors, the government has no business telling her she can’t. The government can educate; the government can persuade—but it has no moral right to force. It’s her body; it’s her life. Paul is also a strict federalist, by the way, which is relevant too. This means that he believes that nation-wide drug laws are by their nature overreaching; indeed, he thinks that they are inherently invalid as they deprive individual states of a vital prerogative. That prerogative, of course, is their 10th amendment right to experiment with legislation at a local-lab level—a constitutional design feature with huge practical benefit, since it allows for the generation of separate streams of real-world data on contentious issues, such as drug policy. It allows us to see what really works, or what works best in different situations.

So I should clarify Paul’s view. He doesn’t explicitly advocate the wholesale, immediate legalization of heroin and other hard drugs, nation-wide, as a practical policy measure in the US (though he clearly would support such a move in a libertarian utopia); but he does think that each state should be free to ban—or not to ban—substances of that ilk as they see fit.

Let’s re-cast the war on drugs, then, as a problem not just of pragmatics, but of principle. Given libertarian premises, which we’ll take as given for this particular post, and the point I’m trying to make, can it be consistent to defend a person’s right to harm herself if she chooses to do so … but only up to a point? Can you draw a line at marijuana, say, and leave heroin beyond the pale?

The answer, I think, is no.

It seems to me that the main concern here is third-party harm. That is, heroin can rightfully be banned if and only if its use can be shown to harm individuals other than the user. Remember: libertarians believe you have a right to take actions—even stupid, dangerous actions—so long as the one at risk of being hurt is you and you alone.

Then a few points arise:

First, you could obviously argue that an individual’s heroin use does indeed harm people other than the user. I don’t know enough about heroin to offer convincing examples, but insofar as the drug can gradually destroy a user’s body and mind, I expect that anyone who loves or cares for the user would be harmed—emotionally at least—by her disintegration. And insofar as this type of harm is worse for heroin than for marijuana, say, it could be a valid libertarian grounds for distinguishing between the two drugs in debates about legalization.

But arguments like this strike me as weak. People engage in all sorts of self-destructive habits and behaviors that cause emotional harm to loved ones, and we’d never think of banning all actions which cause this sort of harm to others. So is there another type of third-party harm we could invoke? Something more grounded, more physical?

What if heroin caused the user to commit terrible acts of violence, or at least made the commission of such acts much more likely under typical circumstances? But this won’t work, either, since heroin use—like marijuana use, and the use of and several other presently illegal substances—has an inverse relationship with violence and aggression. The relevant counterpoint is alcohol which, as is well known, is significantly more likely to lead to third-party physical harms than heroin, pot, et al.; but alcohol of course is legal, as it must be; prohibition doesn’t work.

So what are we left with? As far as I can make out, if a person has a right to engage in actions which are harmful only to herself, and if heroin is harmful in just this way—given the clarifying arguments and examples I’ve just explored—then there can be no good basis for banning even so dangerous a drug. Such bans don’t work, anyway; indeed they lead to greater overall harm to society than the drugs themselves.

The use of heroin, therefore, like that of ‘softer’ drugs like marijuana, should be treated as a medical and educational issue, rather than a criminal one. What do you think?

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