Contra Criminalization

This month’s Liberty Forum essay offers a thoroughly sensible take on a continuing and deepening problem afflicting the United States. Robert VerBruggen offers readers an excellent overview of the depth and breadth of the problem. The toll of opioids is well known to commentators and tragically familiar to many of us in our communities. VerBruggen urges reconsidering policies regulating the production and consumption of opioids. Many of his suggestions are excellent. He proposes several promising policy reforms. However, his essay remains within the dominant paradigm of criminalization. There is more room than VerBruggen suggests to allow for reimagining policy reform and reconsidering the relevance of moral considerations to policy options.

VerBruggen discusses the staggering numbers of lives lost to opioids. He also documents crucial details about these numbers: The lost lives are not mainly people who began as medical users only to fall into a cycle of addiction; instead, typical use and typical fatalities occur with those who abused the drug from the start. He notes many other ghastly trends in opioid abuse, including differences among races and regions of the United States. He traces the causes of opioid abuse to many factors, among which are: oversupply of dangerous substances, undisciplined or unscrupulous doctors and drug manufacturers, and illegal behavior. VerBruggen  suggests we be open to experiment to figure out what solutions will work. I would argue that we should be even more open to experiment than he allows.

He wants to retain at least some features of the current drug war, writing that “the epidemic is a strong indicator of the consequences of entirely legalizing drugs.” While it is not entirely clear what he means by “legalizing” and “entirely,” we can assume the sentence refers to changing or eliminating the current legal penalties associated with the use, possession, distribution, or manufacture of opioids.

Legalization might mean, for instance, complete parity for opioids with any other ordinary consumer item. For instance, someone opposed to government regulation might defend treating opioids like cans of Coke, and selling the painkillers from vending machines. I gather VerBruggen would oppose that, and many people would agree with him. If there are good arguments for restricting at least some people from having unlimited access to opioids, then perhaps the drugs do not belong in vending machines.

Children are the biggest concern. If children are especially vulnerable to the impact of opioid consumption, then minimally we might imagine age-restriction regulations, just as there are with cigarettes and alcoholic beverages. So let us suppose there is a good argument in favor of some paternalistic regulations that restrict access out of concern for children. These will impose some costs on adults, but we might say the costs are worth it compared to the danger of unfettered vending machine access by children.

Legalization might mean removing criminal penalties on illicit consumption of opioids. VerBruggen sensibly supports such changes. While, as he notes, prisons are not overflowing with people convicted of criminal offenses for consuming drugs, he nevertheless supports the treatment paradigm for users over the criminalization one. Treatment is likely to have better results. The numbers are on his side on this.

Even under this rubric, there are many possibilities. Opioids might be distributed over the counter at pharmacies and subject to some registry. This is the current regime for pseudoephedrine, which is the main ingredient in decongestants such as Sudafed but can be used to manufacture methamphetamine. While most states allow the sale of pseudoephedrine without a prescription, there are registries and limits on sales. The evidence on the effectiveness of such regimes is mixed. Putting such drugs behind the counter might only shift production locations but not strongly impact consumption patterns.[1] There is room to experiment with what might make a dent in consumption trends.

Legalization might also mean changing or removing the penalties on the manufacture and distribution of opioids. VerBruggen is clear that the war on drugs should continue. He states that the current epidemic should disabuse us of any “romantic notions” about legalization. The drug war, he states, has been effective by raising the price of drugs. If this is the sole measure of effectiveness, the drug war is a fabulous success. But we must also factor in the impact of enforcement costs, especially in light of alternatives. The data on that are underdeveloped. But the use and application of criminal paradigms are worrisome.

VerBruggen is clearly right about how doctors and the pharmaceutical industry are implicated in the trends. They are happy to push a product either to make money or move patients along in a system where speed is often prized at the expense of attentive and patient-centered care.

The New York Times has reported that insurance companies privilege the cheaper and more addictive opioids over other medications that might be just as effective but with fewer addictive properties. As a friendly amendment to VerBruggen’s suggestions, some reforms worth exploring to the current system might involve reconsidering the current model where insurance companies and gatekeepers determine which drugs are part of a prescription formulary and who may get them. More sharply, the third-party payment system, particularly where governments are key payers through Medicare and Medicaid, distorts distribution and prescription choices by privileging some drugs independently of patient needs.[2]

The problems, then, go much deeper than the use and abuse of this particular class of drug.

If state entities are involved in such choices at all (and for the near future that seems likely), figuring out how to change the pricing signals for third-party payers might be one avenue worth further exploration. But more fundamental reevaluations are appropriate for medical care in the United States. (Of course, we cannot fault VerBruggen for failing to suggest how to redesign the nation’s medical system!)

Surely he is right that people should be open to considering demand-side abatement measures such as harm reduction. Other possibilities might include widening the availability of compounds that can provide immediate relief for someone suffering an overdose (naloxone, for example, which could be distributed in nasal spray form). Many states are experimenting with allowing pharmacists and first responders to administer naloxone without a prescription, but there are still controversies over whether to devote resources to treating people who are sometimes quick to relapse.

Most worrisome, however, is VerBruggen’s insistence on retaining some criminal penalties such as for dealers. The drug war rages. Its toll is not given enough of a hearing in his essay.

While we know that opioid abuse disproportionately affects poor or working-class whites in certain regions, we don’t know about the cost of enforcement efforts and we don’t know about any differential or discriminatory applications of those enforcement efforts to different races and communities. We do not know about decriminalized alternatives, nor about what VerBruggen ambiguously calls “entirely” legalized alternatives.

Either of these might reduce the toll of the drugs, and they might do so better than the current criminal paradigm. As Doug Husak has written, criminal law is a blunt tool to affect behavior, and making an activity criminal is serious business.[3] Punishing people by using the coercive powers of the state must be justifiable to people; otherwise it is just brute and arbitrary force. VerBruggen has not quite shown us why such a stark measure is justified here.

Beyond these important issues of political morality, criminalization is just a bad policy idea. Retaining any criminal prohibitions on opioids perpetuates the stigma on opioid use and misses an opportunity to move the problem more firmly into therapeutic territory.

There is a bit of hyperbole when saying opioids “enslave and destroy when not used correctly.” Sometimes they do that. But not always. Attributing to these chemicals such sinister and irresistible powers distorts more than it illuminates, especially when people can responsibly use them and even recover after misuse. We should be open to evaluating the power and possibility of policies about these drugs, as VerBruggen clearly is, but we should consider reforms in all policy domains.

VerBruggen discusses what sort of measures resonate with the public. The public supports the two-track approach that he supports. The public does not support full legalization (whatever that might mean). I am unsure about the merits of the polls he cites, but I am even less sure about their significance. As a political matter it is mildly interesting to point to what might resonate with the folk.

The people might be wrong on these issues, both in terms of their instrumental and moral merits.

They were wrong about supporting disproportionately higher penalties for crack over cocaine. They were wrong about supporting criminal prohibitions about marijuana. They were wrong about prohibiting the sale of alcoholic beverages in the early 20th century. In each case, the costs were higher than any supposed public health gains. And in each case, there were significant moral costs as well to the freedoms of everyone.

Criminalization transgresses vital freedoms of users and nonusers alike. Reconsidering the criminalization paradigm seems like an excellent candidate for experimenting with alternatives. We do not know what forms the alternatives might take. The law should get out of the way to let people and their communities figure out what might work.

VerBruggen has advanced the conversation by considering policy alternatives in light of an honest consideration of the impact of opioid use and abuse. He commendably urges us to consider alternatives to the current regime. He should urge even more radical reform. The current criminalization model does not work.

[1] Carlos Dobkin, Nancy Nicosia, and Matthew Weinberg, “Are Supply-Side Drug Control Efforts Effective?: Evaluating OTC Regulations Targeting Methamphetamine Precursors,” Journal of Public Economics 120: Supplement C (2014), 48–61. https://doi.org/10.1016/j.jpubeco.2014.07.011

[2] Allysia Finley, “Does Medicaid Spur Opioid Abuse?: Overdoses and Hospital Visits Have Grown Far More in States That Took the ObamaCare Expansion,” Wall Street Journal, September 24, 2017.

[3] Douglas Husak, “In Favor of Drug Decriminalization,” in Contemporary Debates in Applied Ethics, edited by Andrew I. Cohen and Christopher Heath Wellman, Second Edition (Wiley-Blackwell, 2014), pp. 335–45.