American policymakers have long waged a costly, punitive, racist, and ineffective drug war that casts certain drug use as immoral and those who engage in it as deviant criminals. The War on Drugs has been defined by a myopic focus on controlling the supply of drugs that are labeled as dangerous and addictive. The decisions as to which drugs fall within these categories have neither been made by health agencies nor based on scientific evidence. Instead, law enforcement agencies have been at the helm of the drug war advocating for and enforcing prohibition.
The drug war has been a failure on all counts. American taxpayers have invested trillions of dollars in the war, yet the United States continues to witness record-setting numbers of drug overdose deaths every year. The drug war has been used as a tool to disenfranchise and incarcerate generations of individuals minoritized as Black. Black Americans are nearly six times more likely to be incarcerated for drug-related offenses than their white counterparts, notwithstanding that substance use rates are comparable across those populations.
The public rhetoric concerning drug use has notably changed in recent years. Many policymakers have replaced the punitive, law-and-order narratives of the Old Drug War with progressive, public-health-oriented language, which suggests that the Old Drug War has ended. We, however, caution against such a conclusion. This paper examines three categories of laws and policies that attend to individuals who use drugs under our country’s new, and purportedly public-health-centric, approach: (1) laws that increase surveillance of certain drugs or those who use them; (2) the criminalization and civil punishment of the symptoms or behaviors related to drug use; and (3) laws that decrease access to treatment and harm reduction programs.
Our assessment of these policies demonstrates that the War on Drugs is not over. It has merely been retooled, recalibrated, and reframed. The “New” Drug War may be concealed with public-health-promoting rhetoric, but it is largely an insidious re-entrenchment of the country’s longstanding, punitive approach to drug use.
Introduction
Since the 1800s, American policymakers have waged a racist, costly, and punitive drug war that characterizes some drug use as morally reprehensible behavior and those who engage in it as deviant criminals. The War on Drugs myopically focuses on controlling the supply of drugs deemed dangerous and addictive through prohibition and deterring their sale and possession through arrest and incarceration. American government officials’ simplistic justifications for centering drug policy around supply control include their commitment to the notion that people only use drugs because they are available and, once they are no longer available, people will neither initiate nor continue drug use.
Upon superficial examination, limiting access to potentially dangerous drugs sounds like a promising approach to address drug misuse and poisoning problems. A litany of actual evidence, however, suggests that supply control measures steeped in criminal legal theories of deterrence are ineffective at decreasing overdoses and substance use disorders. This is because those tactics fail to address any of the underlying causes of drug demand, facilitate an unpredictable and ever more dangerous drug supply, and often result in the substitution of one drug for another, more potent drug.
Interdiction efforts alone have cost American taxpayers more than a trillion dollars over the last several decades. Federal, state, and local governments spend an estimated 47.9 billion dollars annually on drug enforcement. Despite the substantial funding dedicated to the War on Drugs, American overdose deaths have reached historic levels. According to the Centers for Disease Control and Prevention, the United States suffered a record 107,941 overdose deaths—the highest number of such fatalities ever cataloged in a single calendar year—in 2022.
The War on Drugs is not only costly. It has failed to mitigate both the escalating drug overdose deaths and the myriad poor health outcomes associated with chaotic drug use. The War on Drugs is also racist. In 2016, one of President Nixon’s top aides admitted that the War on Drugs was motived by Nixon’s desire to subordinate and disenfranchise Black persons and the antiwar left, whom Nixon identified as political enemies. The War on Drugs is, and always has been, fueled by stereotypical myths, racist beliefs, and a desire for political and societal control of racial minorities and others opposed to failed law and order-driven drug policies.
Evidenced by the framing of the current overdose crisis as a public health issue rather than a criminal legal problem, some argue that the War on Drugs is on the wane. There is no doubt that the rhetoric that drives the drug war has changed in recent years as policymakers have adopted “health-oriented” language to describe what has been popularly characterized as the “opioid overdose crisis.” A common refrain from both policymakers and law enforcement has been: “We cannot arrest our way out of this crisis.” This change in framing is due, at least in part, to the rampant whitewashing of prescription opioid misuse. Moreover, given that Congress has enacted at least two significant pieces of legislation since 2016 to address the crisis that include provisions that are predominantly health-centric, perhaps the dominant and most visible political response to the “opioid crisis” was a “[w]ar on [d]rugs [t]hat [w]asn’t.”
We nonetheless caution against any conclusion that the War on Drugs has ended. It has not. It has merely been retooled, recalibrated, and reframed by health-centric rhetoric. New policy proposals aimed at addressing the current overdose crisis may appear more public-health-oriented, and we concede that some are, but an insidious re-entrenchment of the punitive approach to drug use walks in lockstep with those highly publicized public health measures.
Part I of this Article provides an overview of the key features of the Old Drug War with an emphasis on the racism endemic to its purposes. Part II enumerates the extravagant failures of the punitive, supply-side-centric Old Drug War, explaining why its tactics ensure an increasingly dangerous and deadly American drug supply. Part III of this Article deploys three categories of recent laws and policies to demonstrate that the United States persists in waging a punitive and predominantly supply-side War on Drugs cloaked in health-oriented rhetoric.
Part III proceeds in three Sections. Section III.A gives an overview of state laws that provide law enforcement with new data and evidence for criminal prosecution through enhanced controlled substance surveillance. While policymakers have couched such surveillance as an effort to improve health outcomes, it has motivated a marked decrease in the prescribing of opioid analgesics and, as a result, driven many patients in legitimate medical need of such prescription drugs to the illicit (and more dangerous) market. Increased surveillance has been accompanied by the highly publicized prosecution of prescribers, a chilling effect on providers, and the neglect and abandonment of patients in chronic and intractable pain. Such patients are frequently labeled as drug-seekers and deviants unworthy of treatment in the American health care system. We further detail how the algorithms purportedly used to quantify patient drug use risks are steeped with racial and gender prejudice and discriminate against individuals with disabilities.
Section III.B delineates and analyzes certain criminal and civil punishment enhancements of the New Drug War. It explains that several states have enacted new criminal laws that make it easier to charge persons with drug-induced homicide (“DIH”) for overdose deaths and posits that the aggressive enforcement of such laws may lead to an increase in drug-related fatalities and disparately impact individuals minoritized as Black. This Section also points to the federal government’s recent use of fentanyl-related product scheduling to enhance the criminal penalties for drug use and distribution. Section III.B concludes by elaborating on the significant civil collateral consequences experienced by individuals who use drugs due to punitive child welfare and drug testing laws and policies.
Section III.C explains how New Drug War policies continue to create obstacles to evidence-based treatment and harm reduction resources for individuals who use drugs. This Section explains that policymakers remain resistant to reducing the numerous and burdensome federal laws and policies that govern access to opioid use disorder (“OUD”) medications—the gold-standard treatment for OUD—and contends that those policies exacerbate the country’s escalating overdose crisis. This Section further details America’s ongoing battles against and opposition to the operation and funding of two specific evidenced-based harm reduction programs that have been proven effective in reducing overdose fatalities and the health and safety harms associated with drug use: syringe services programs and overdose prevention centers.
The three categories of “New” Drug War laws and policies that are showcased in Part III of this article—enhanced surveillance, enhanced criminalization and civil punishment, and ongoing obstacles to treatment and harm reduction—demonstrate that our “New” Drug War is simply an extension of its predecessor disguised by a public health promotional campaign. Simply stated, the popularity of a predominantly punitive, supply-side, law-enforcement-centric drug policy approach persists despite ample evidence that its core tactics are woefully ineffective. Before diving into a discussion about the very familiar characteristics of our “New” Drug War, we turn first to an overview of the old one, which is provided in the following Part.