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 people 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 VerBruggen wrote 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 scientific evidence 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 to take part in 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, excessive drinking 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 people who have been unable to shake off opioid 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.