We Can't Go Cold Turkey: Why Suppressing Drug Markets Endangers Society

opioids, law & ethics • summer 2018 325

DOI: 10.1177/1073110518782942

We Can’t Go

Cold Turkey:

Why Suppressing

Drug Markets

Endangers

Society

Nick Werle and Ernesto Zedillo

I. Introduction

By now, much of the public and many of its policy-

makers understand the U.S. opioid epidemic through

a single narrative: The problem started as one of pre-

scription painkiller abuse, but users switched to heroin

after pills become somewhat harder to get, and this

black-market supply was quickly tainted by fentanyl

and other highly potent, synthetic opioids. This narra-

tive is powerful, because it also describes both a typical

drug user’s progression from pills to heroin to deadly

fentanyl-laced injections. But it omits a key acceler-

ant that transformed this wave of addiction into an

inferno of death, disease, and personal destruction:

criminalized suppression of drug use. At each stage

of the crisis, policymakers have sought to extinguish

the problem of opioid abuse by directing law enforce-

ment, regulatory agencies, and private parties to try

cutting o the supplies of drugs and deterring indi-

viduals from using them. These suppressive strategies

have produced unintended consequences that made

the crisis substantially more harmful by pushing

dependent users to engage in riskier behavior that is

more likely to transmit diseases and lead to overdoses.

This essay argues that policies aimed at suppress-

ing drug use exacerbate the nation’s opioid problem. It

neither endorses drug use nor advocates legalizing the

consumption and sale of all substances in all circum-

stances. Instead, it contends that trying to suppress

drug markets is the wrong goal, and in the midst of

an addiction crisis it can be deadly. There is no single,

correct drug policy; the right approach depends cru-

cially on the substance at issue, the patterns of use and

supply, and the jurisdiction’s culture, institutions, and

material resources. Decriminalization is no panacea

for a nation’s drug problems. Nevertheless, either de

jure or de facto decriminalization of personal drug

possession is a necessary condition for mitigating this

crisis. The United States must shift its policies away

from addressing drug use as a criminal justice issue

and employ a public-health approach to managing

substance abuse. While some U.S. jurisdictions have

adopted harm reduction strategies to deal with people

Nick Werle, J.D., is a graduate of Yale Law School, a research

associate in the International Drug Policy Unit at the London

School of Economics and Political Science, and a fellow at

Yale’s Solomon Center for Health Law and Policy. He received

an MSc in economic policy from University College London

and an MSc in risk and ﬁnance from the London School of

Economics and Political Science with support from the U.K.’s

Marshall Scholarship. Ernesto Zedillo, Ph.D., is the director

of the Yale Center for the Study of Globalization, professor in

the ﬁeld of international economics and politics, and a mem-

ber of the Global Commission on Drug Policy. He received his

M.A. and Ph.D. in economics from Yale University. He was the

president of Mexico from 1994–2000.

326

journal of law, medicine & ethics

SYMPOSIUM

who use drugs, these demand-side interventions will

be insucient on their own to stop this crisis. As the

Global Commission on Drug Policy has emphasized,

policymakers must also address the harder, supply-

side problems — by expanding lawful access to opi-

oids, with the twin objectives of undermining the black

market and reducing the harm that existing opioid use

poses to dependent users and their communities.

Suppressive policies intended to address opioid

abuse will likely exacerbate the crisis of overdose

deaths. State governments are rushing to restrict the

supply of opioid painkillers by implementing prescrip-

tion drug monitoring programs (PDMPs) and tighten-

ing regulations on medical practice. Over-prescription

helped trigger the addiction epidemic, so these crack-

downs may appear overdue. But the timing is wrong.

Decades of opioid abuse have changed the background

conditions against which these policies will operate.

Action in the 1990s and early 2000s to prevent the

pharmaceutical industry, unscrupulous healthcare

providers, and misinformed doctors from flooding

communities with painkillers might have made today’s

crisis less acute. But today, there are many chronic opi-

oid users unlikely to stop consuming when painkillers

become scarce. With black-market heroin increasingly

tainted with fentanyl, and without widespread access

to medication-assisted treatment, policies that restrict

the supply of genuine pharmaceuticals will push peo-

ple toward the more dangerous behavior of injecting

black-market powders. Thus, well-intended policies

may increase fatal overdoses and blood-borne disease

transmission, just as the introduction of abuse-deter-

rent pills increased HIV and hepatitis C infections by

pushing users to inject painkillers. The point is not

that painkiller diversion and prescription-drug abuse

are desirable, but rather that policies ought not push

existing users to start injecting fentanyl-laced heroin

by making safer alternatives unavailable. Absent an

accessible and safe supply of opioids for addiction

maintenance and treatment, these suppressive policies

will likely divert dependent demand to street drugs

and worsen the crisis.

This essay pragmatically critiques suppressive drug

laws, arguing that criminalization is a counterpro-

ductive response to opioid abuse. We start from the

premise that opioid use disorder is a chronic, relaps-

ing medical condition, not a moral failing.

Thus,

people suering from drug addiction deserve treat-

ment and social support, not punishment. Some

criminalization advocates recognize that opioid use

disorder is a disease, but support criminalization of

drug markets in the misguided belief that this will

reduce the number of people who have this illness. In

this essay we show that in fact criminalized suppres-

sion does little to reduce the incidence of

opioid use disorder, and surely increases

the harm — including the risk of fatal-

ity — for people who use drugs. Other

advocates of criminalization view drug

use primarily through a moral lens, and

believe that conviction is appropriate to

punish degeneracy. Combatting this idea

and its consequent stigma is important,

not least because they contribute to the

social exclusion of people who use drugs

that ampliﬁes substance abuse’s negative

eects. But refuting this punitive view is

beyond our scope.

Racism is another powerful motiva-

tion, conscious or not, to criminalize

people who use drugs. Many people have

powerfully explained how American drug laws reﬂect

and feed racial anxieties. Criminal drug-control laws

have contributed to immense racial disparities in

the U.S. prison population, and so racial justice is

an important reason to abandon these policies. The

current crisis has been understood in starkly racial-

ized terms, creating a popular understanding that the

opioid epidemic primarily aicts rural, white people,

even though the overdose death toll is more multira-

cial and more urban than generally understood.

The

narrative that today’s heroin users are largely white

and that heroin suppliers are largely black and Latino

has contributed to the public’s greater willingness to

address opioid use less punitively, even as politicians

have advocated for more suppressive supply-side

policies.

Nevertheless, drug prohibition’s racist ori-

gins and the suppressive framework’s disparate racial

eects are beyond the essay’s scope.

Finally, this essay does not address many of the ways

in which criminalization and incarceration harms

Today, there are many chronic opioid users

unlikely to stop consuming when painkillers

become scarce. With black-market heroin

increasingly tainted by fentanyl, and without

widespread access to medication-assisted

treatment, policies that restrict the supply of

genuine pharmaceuticals will push people

toward the more dangerous behavior of

injecting black-market powders.

opioids, law & ethics • summer 2018 327

Werle and Zedillo

individuals, their families, and communities. Convic-

tion and incarceration in any circumstance directly

infringes an individual’s liberty, presents numerous

collateral consequences for that person, and harms

others in ways that radiate through families and com-

munities. These impediments to human ﬂourishing

are crucially important to criminal justice reform,

both in general and speciﬁcally with respect to reform-

ing suppressive drug laws. But since this essay focuses

on why suppressive policies have exacerbated the opi-

oid epidemic, we neglect many issues pertinent to a

broader critique of the U.S. criminal justice system.

This essay proceeds in three parts. Section II

describes how the U.S. law has responded to the prob-

lem of drug abuse by suppressing non-medical use

and illicit supply chains. We also discuss criminalized

suppression’s historical roots and contrast it to harm

reduction. Section III analyzes criminalized suppres-

sion’s economic logic and consequences. We discuss

how the rise of fentanyl is a predictable consequence

of suppressive supply-side policies and how deterrence

has exacerbated the human costs of opioid addiction.

We also explain why state governments are wrong to

restrict the supply of prescription opioids by creating

mandatory PDMPs and other suppressive measures

without ﬁrst radically expanding regulated access to

opioids for maintenance treatment. Finally, section IV

proposes reforms that reject criminalized suppression

and discusses other countries’ pragmatic responses to

drug abuse. We argue that decriminalizing drug pos-

session is a necessary condition for mitigating this epi-

demic and that the United States must expand access

to medication-assisted treatment so as to provide an

accessible, regulated supply of opioids to dependent

users.

II. Criminalized Suppression: The Legal

Structure of Prohibition

American drug laws reﬂect a policy framework ori-

ented toward suppressing unauthorized drug produc-

tion and consumption, largely through the enforce-

ment of criminal laws. We describe this framework

as “criminalized suppression” of drug markets, an

approach that takes rates of non-medical drug con-

sumption and interdiction of illicit drugs as primary

indicators. This section describes criminalized sup-

pression’s historical origins in the period of alcohol

Prohibition and how it shapes opioid regulation and

addiction treatment today.

A. Government Suppression of “Non-Medical” Opioid

Consumption

The United States regulates opioids so as to simulta-

neously suppress and promote their use. On the one

hand, the law employs harsh criminal and regulatory

sanctions to suppress unauthorized consumption.

But on the other hand, legally supplying opioids is an

immensely proﬁtable, legal business: Pharmaceutical

companies may aggressively promote opioid use for

the medically supervised treatment of pain, and DEA-

licensed healthcare providers can prescribe opioid

painkillers to treat self-reported neuromuscular and

autoimmune pain, even absent clinical trials prov-

ing that opioids are safe and eective for those indi-

cations. True, the law bans nearly all access to some

substances, such as heroin. But licensed health care

providers may prescribe numerous chemically similar

opioids for pain management. Even if they prefer spe-

ciﬁc substances, dependent users are generally will-

ing to substitute other opioids based on availability,

potency, and price. The black market’s size and acces-

sibility depends not only on law enforcement action

but also on the extent of legal access, because con-

sumer demand shapes drug-tracking networks, just

as consumer demand in other sectors induces suppli-

ers to bring products to market.

Likewise, during the Prohibition era, alcohol

remained legal for speciﬁc purposes and in certain

preparations. Thus, the law suppressed the alcohol

trade rather than prohibiting it outright. The Volstead

Act, which regulated alcohol under Prohibition, per-

mitted people to consume “sacramental” wine and to

store pre-Prohibition alcohol in their homes.

People

could also obtain liquor under a doctor’s prescription.

These rules stratiﬁed Prohibition’s eects by class. The

wealthy could still purchase legal, high-quality liquor

through compliant doctors and pharmacies. But those

unable to pay the extortionate prices to access genu-

ine, “medical” liquor were relegated to buying traf-

ﬁcked liquor and often-adulterated spirits produced

in black-market distilleries.

The Volstead Act permit-

ted sale of so-called industrial alcohols, which were

required to incorporate poisons and distasteful addi-

tives so as to deter drinkers. But the criminal orga-

nizations and independent distillers that emerged to

satisfy the pent-up demand fortiﬁed their brews with

industrial alcohol to boost proﬁtability. As a result, the

poor ended up consuming these poisons to devastat-

ing eect.

Federal law has long distinguished between opi-

oid prescriptions intended to treat addiction through

maintenance therapy and those intended to numb

pain. This distinction stretches at least to the 1914

Harrison Narcotics Act, which was the ﬁrst federal

law to prohibit non-medical opioid use, and its sub-

sequent amendments. The Treasury Department,

charged with enforcement, promulgated regulations

excluding maintenance as a form of legitimate medi-

328

journal of law, medicine & ethics

SYMPOSIUM

cal practice.

Doctors could only administer opioids to

treat addiction if they rapidly weaned patients to sobri-

ety, a process known as detoxiﬁcation. The Supreme

Court subsequently adopted this view: Webb v. U.S.

presented the question of whether the Harrison Act’s

exception for medical opioid administration applied

where a physician prescribes “morphine to an habitual

user thereof, the order not being issued by him in the

course of professional treatment in the attempted cure

of the habit, but being issued for the purpose of pro-

viding the user with morphine sucient to keep him

comfortable by maintaining his customary use.”

The

Court held 5–4 that maintenance prescriptions were

non-medical and thus prohibited: “[T]o call such an

order for the use of morphine a physician’s prescrip-

tion would be so plain a perversion of meaning thatno

discussion of the subject is required.”

Today, opioid agonist treatment (OAT) for addic-

tion maintenance is the gold standard for treating opi-

oid use disorder. As a chronic, relapsing mental health

condition, opioid use disorder is not susceptible to a

cure, per se. But evidence-based treatments employ-

ing OAT can help patients stabilize their lives, manage

their addictions, reintegrate into society, and reduce

the harmful consequences of drug use.

Maintenance

therapy has been shown to be more clinically eective

and more cost eective than detoxiﬁcation.

Absti-

nence-based treatments are common in the United

States, where they often follow the model for alcohol

abuse treatment, with the goal of lifetime abstinence,

but there is little evidence of clinical ecacy.

Absti-

nence-based treatment can increase mortality risk:

While heroin withdrawal itself is rarely life-threat-

ening, putting people with opioid use disorder into

withdrawal poses a high risk of overdose, because a

period of abstinence leads to reduced tolerance.

This

risk of overdose explains why abstinence-based treat-

ment approaches for alcoholism are dangerous when

applied to people with opioid use disorder: Relapse to

alcohol use is rarely fatal, but relapse to fentanyl-laced

heroin often kills.

The government has long sought to suppress con-

sumption with a medication that would “cure” opi-

oid addiction outright. But evidence shows that this

goal can be deadly, because using medication to keep

someone abstinent further raises overdose risk. Many

drug courts and treatment programs now rely on nal-

trexone, which is sold under the brand name Vivitrol

as a wonder drug for stopping opioid use. Naltrexone

is an opiate antagonist that triggers immediate with-

drawal and blocks opioids’ pharmacological eects.

But this abstinence is costly: Overdoses are more com-

mon following cessation of naltrexone treatment than

among either untreated heroin users or maintenance

patients.

Nevertheless, Vivitrol is now the “go-to

option” in many of Ohio’s drug courts: The state paid

more than $38 million to provide 30,594 doses to

Medicaid-eligible people in 2016, up from 100 doses

in 2012.

Methadone’s legal status illustrates the focus on

suppression rather than user safety or public health.

The FDA ﬁrst approved methadone as an analgesic in

1947, but since the 1970s it has been used primarily for

OAT. Methadone is a synthetic opioid that produces

longer-lasting, less intense intoxication than heroin,

permitting people with opioid dependence to achieve

a stable, high-functioning state without withdrawal

symptoms or cravings. It has been proven to reduce

illicit opioid use

and its harmful consequences,

including mortality, crime, overdose, and HIV.

It is

also cost-eective, despite heavy regulation.

Still, federal law permits doctors to prescribe meth-

adone for pain more easily than for maintenance.

When used for pain relief, DEA-licensed doctors may

prescribe methadone without any more restrictions

than would apply to another Schedule II drug, such

as OxyContin.

In contrast, there are extensive fed-

eral regulations governing methadone maintenance.

Under federal law, all methadone maintenance treat-

ments must occur in a federally regulated opioid treat-

ment program. Specially licensed practitioners must

provide the treatments, and the law prohibits prohib-

its doctors from writing a methadone prescription to

be ﬁlled at a pharmacy, like they would for an opioid

painkiller.

Methadone for maintenance generally

must be dispensed and immediately consumed, requir-

ing patients to visit clinics daily.

Opioid treatment

programs must randomly screen patients for illicit

drugs.

And clinics must provide a host of additional

services to patients, adding to the cost and inconve-

nience of methadone maintenance.

State laws may

impose other requirements,

and local zoning laws

or community opposition complicates opening new

clinics. Methadone patients must organize their lives

around clinic visits, sometimes traveling several hours

daily. These obstacles interfere with employment

prospects and hinder social reintegration.

Other forms of opioid maintenance are also

restricted by law. Doctors seeking to prescribe

buprenorphine must receive special training and

certiﬁcations, and federal law limits the number of

patients they may treat at any time.

Yet no such pre-

scribing limits exist for opioid painkillers, and phar-

maceutical companies can even monitor prescribing

rates and oer perks to the doctors selling the most

pills.

Federal law requires a “legitimate medical pur-

pose” for opioid prescriptions, and it expressly prohib-

its doctors from prescribing opioid painkillers for the

opioids, law & ethics • summer 2018 329

Werle and Zedillo

purpose of addiction maintenance, except under the

regulations speciﬁcally applicable to buprenorphine

and methadone.

This creates an artiﬁcial shortage of

buprenorphine, particularly in rural areas far from a

methadone clinic where there are few doctors able to

prescribe buprenorphine but high demand for treat-

ment. Even in large cities, the regulations create an

artiﬁcial scarcity for buprenorphine treatment spots,

encouraging physicians to charge premium prices for

access, sometimes refusing to accept insurance.

a result, access to buprenorphine — much less dis-

ruptive to personal lives and less stigmatized than

methadone — is highly stratiﬁed by class and race.

State Medicaid rules may also require buprenorphine

patients to attend time-consuming group counseling

sessions, conditions that may be unduly burdensome

for people with poor access to transportation or who

are trying to maintain employment on often-inﬂexible

terms. Interviews with patients and providers suggest

that these requirements can function as barriers to

treatment, encouraging patients to self-medicate with

buprenorphine purchased from the black market.

Demand for opioid maintenance dramatically

outstrips the artiﬁcially constrained supply. In rural

areas, methadone clinics can be distant and doctors

capable of taking on more buprenorphine patients

rare.

In urban areas, zoning regulations and inad-

equate funding also constricts supply. Thus, patients

seeking maintenance treatment can face waiting lists

lasting a year or longer, during which time they face a

ten-fold higher risk of mortality than people immedi-

ately taken on.

Skeptics have cited black markets and

diversion as reasons to maintain these restrictions,

but with waiting lists that long, diversion should be

seen as a symptom of supply shortages, not evidence

that tight regulations are necessary to prevent abuse.

B. The role of criminalization in suppressing opioid

use

We describe this framework as criminalized suppres-

sion, because criminal law and policing are the central

means of enforcing the legal prohibition on illicit drug

consumption and supply. Typically, production, trans-

port, sale, and possession of illicit drugs are criminal

oenses under both state and federal law. While the

Supreme Court has declared it unconstitutional to

enact a “status crime” of being addicted to drugs,

states can achieve the same result in practice, by

criminalizing the incidences of drug addiction, such

as consumption, the possession of drug paraphernalia,

or the knowing keeping of premises for drug-related

purposes.

Even where policymakers have introduced drug

courts and other diversion programs, primary author-

ity remains vested in the police and judicial system,

rather than public health authorities. Drug courts gen-

erally retain the threat of incarceration for non-com-

pliance. This structure is a poor match for managing

a chronic, relapsing condition, and so incarceration

remains common. Judges often make treatment deci-

sions, and without enforceable drug court standards,

training in addiction medicine is scarce. Finally, many

drug courts provide only abstinence-based treatments

to participants. In one 2013 study, only 47% of U.S.

drug courts provided OAT, and only 26% permitted

methadone maintenance.

C. Harm reduction: An alternative framework

Many European countries have responded to heroin

crises of their own by shifting from criminalized sup-

pression to harm reduction. Harm reduction is policy

framework less concerned with the quantity of drugs

consumed than with the social and individual harms

wrought by drug production, sale, consumption, and

government policies. Rather than trying to deter peo-

ple from using drugs with criminal sanctions, harm

reduction aims to shift users into patterns of use that

are less dangerous and less disruptive to society. A

suppressive framework, focused solely on reducing

consumption, threatens to withdraw social services

from people with addiction to make drug use more

costly and withhold resources from people deemed

undeserving. In contrast, harm reduction policies

steer people with problematic drug use toward tai-

lored services, such as safe injection facilities, low-

threshold methadone treatment, or supportive hous-

ing. The goal is to help stabilize their lives, improve

their health, and reintegrate them into society, but

not necessarily to get them to stop using immediately.

Crucially, harm reduction services do not require con-

tinuous abstinence from illicit drug use as a condition

of eligibility.

Adopting a harm reduction approach does not

mean condoning drug use. Drug possession is still

illegal in jurisdictions with comprehensive harm

reduction policies, such as Switzerland and Portugal,

as local ocials explain early and often to observers.

However illicit drug possession for personal use rarely

leads to criminal charges. Instead, these societies have

created a set of institutions that treat substance use

as a medical and social issue. Police build trust more

eectively, because drug users need not fear incarcera-

tion. These countries assign primary responsibility for

opioid abuse to public health authorities, who evalu-

ate interventions on the basis of overdose deaths and

disease transmission rates. They also administer low-

threshold OAT, which provides safe, low-cost access to

opioids for maintenance purposes. These governments

330

journal of law, medicine & ethics

SYMPOSIUM

reason that the state can control the black market only

by undercutting it with a safer, cheaper, and more reli-

able supply than trackers provide. Addiction treat-

ment providers can help people achieve abstinence if

they desire, but they deﬁne treatment success in terms

of health and social inclusion, rather than urinalysis.

III. The Economic Consequences of

Criminalized Suppression

A century spent trying to eradicate illicit drug use has

conﬁrmed that consumer demand is the most pow-

erful force shaping drug markets. Where there is an

existing stock of habitual users, no degree of suppres-

sion consistent with a democratic society can eradi-

cate supply. Suppressive policies change, rather than

eliminate, drug markets, altering the prices paid, the

suppliers who proﬁt, and the content of substances

ingested. Prohibition increases proﬁtability, by insert-

ing a large risk premium into drug prices. Prohibition

also directs drug-market revenues to transnational

criminal organizations, ﬁnancing violence and cor-

ruption in consumer, transit, and producer countries.

Criminalization magnifies the risks users face, by

empowering criminal suppliers who predictably cut

drugs with toxic substances, and by stripping users’

access to medical care, social support, and economic

resources.

This section analyzes the economic implications of

criminalized suppression. First, we show how crimi-

nalized suppression predictably causes the illicit drug

supply to become more dangerous, because black-

market producers and smugglers have an economic

incentive to use highly potent additives. This “iron law

of prohibition” contributed both to today’s fatal opi-

oid overdose crisis and to the epidemic of poisonings

during alcohol Prohibition. Second, we analyze crimi-

nalized suppression’s economic logic, which seeks to

reduce demand by using the threat of punishment or

personal harm to deter people from using drugs. This

framework has been used to justify government poli-

cies that make drug use more dangerous to individu-

als and to society, even though it relies crucially on

the false assumption that the decision to use drugs is

rational, and thus amenable to deterrence. Finally, we

suggest an alternative mode of analyzing drug mar-

kets during an addiction epidemic that considers sup-

pressive policies’ implications for already-dependent

users and people initiating drug use.

A. Supply-side suppression makes the black market

more dangerous

Opioid overdoses are now the leading cause of death in

much of the United States. Many of the deaths are due

to fentanyl, which has adulterated the black-market

drug supply. This development reﬂects the economic

incentives that criminalized suppression creates for

drug suppliers. The “iron law of prohibition” describes

the tendency for aggressive supply-side policing to

lead drug supplies to become dominated by increas-

ingly potent and toxic additives. Alcohol Prohibition

triggered the iron law, poisoning scores who drank

spirits adulterated with additives that were both toxic

and intoxicating. Today, similar economic forces help

explain why fentanyl has become so dominant in U.S.

drug markets, even though its dangers are widely

known.

Alcohol Prohibition did far more to change what

Americans drank than how much. During the three

years after the Volstead Act took eect, consumption

dropped to almost 30% of its pre-Prohibition level.

But instead of making alcoholic beverages unavail-

able, the Volstead Act pushed production, trans-

port, sale, and consumption of alcohol underground.

Organized criminal groups, infamously including the

Maﬁa, took over illicit alcohol markets, which proved

to be enormously proﬁtable. By the late 1920s, after

the black-market industry had developed, per capita

alcohol consumption rebounded to 60–70% of its pre-

Prohibition value.

Even though per-capita alcohol consumption

decreased modestly under the Volstead Act, people

drank far more potent brews. The Act’s consequences

validate the Iron Law of Prohibition: “The more

intense the law enforcement, the more potent the

drugs will become.”

This follows from clear economic

incentives for black market producers, smugglers, and

dealers to increase their products’ potency:

[C]oncentrated, potent drugs are more eciently

smuggled, transported, and sold and are easier

for the consumer to conceal, transport, and

consume without detection. Another advantage

of potent drugs for the seller, but a disadvantage

for the buyer, is that potent drugs can more easily

be “cut” with other chemicals that resemble the

real thing. Often these dilutants are poisons.

Market data bear out that Prohibition’s greatest eect

on consumption was to cause hard liquor and wine to

replace beer as Americans’ drinks of choice. Per capita

consumption of beer decreased about 70% under Pro-

hibition, but people drank 65% more wine and 10%

more liquor, compared to the period from 1911–1914.

Some estimate that the potency of alcohol products

increased by more than 150% during Prohibition,

compared to the periods before and after.

This

dynamic follows from the cost structure of illicit drug

tracking: Actual production and reﬁning costs are

opioids, law & ethics • summer 2018 331

Werle and Zedillo

often insigniﬁcant compared to the expenses involved

in transport, smuggling, and distribution, so cutting

a product’s bulk by boosting its potency is a boon to

proﬁtability. Historical alcohol prices reﬂect this cost

structure: While beer prices increased more than

700% from pre-Prohibition prices, liquor prices only

increased about 270%.

Expenditures on distilled

spirits increased from 40% of total pre-Prohibition

alcohol spending to almost 90% during Prohibition.

For those who kept drinking, Prohibition made

alcohol more dangerous. Almost immediately after

Prohibition began, methyl alcohol, which cost about

one-eighth of drinkable ethyl alcohol,

appeared in

black-market alcohol. Bootleggers would stretch their

grain alcohol by adding homemade “wood alcohol” or

an industrial alcohol after attempting to distill out the

poisonous components.

This added a long-lasting,

powerful intoxication, but distillation was only occa-

sionally successful.

Wood alcohol blindness quickly

reached epidemic proportions.

Poisonings were

common and came in waves, when tainted batches hit

the streets, just as fatal fentanyl overdoses do today.

The scale was comparable to today’s crisis: In 1926,

industrial alcohol sickened or blinded 1,200 people

in New York City alone; another 400 died.

In the

South, a potent concoction known as “Jake ginger”

was legally sold by prescription for stomach ills but

also adulterated and strengthened by bootleggers.

Even small quantities of Jake caused nerve damage

and permanent paralysis. It produced an “epidemic

of poisonings,” and ultimately, “public health ocials

estimated the number of Jake victims at ﬁfty to sixty

thousand.”

The iron law also drives today’s overdose epidemic.

Much the death is due to fentanyl, which has per-

vaded the black market since 2013. Fentanyl-related

overdoses killed more than 20,000 people in 2016,

up more than 540% in three years.

Some users buy

fentanyl intentionally, because fentanyl is ultra-fast

acting and produces a more intense intoxication than

other opioids,

either from street dealers or via the

“dark web.”

But fentanyl is also laced into both heroin

and counterfeit painkillers. In recent years, the DEA

has identiﬁed the rising trend of fentanyl-laced, coun-

terfeit pharmaceuticals as particularly dangerous,

because it expands the population of at-risk users.

Fentanyl’s rise was not an unfortunate coincidence;

it was a predictable consequence of the supply-side

incentives created by suppressive government policies.

Fentanyl is cheaper to produce than heroin, because

it does not require labor-intensive cultivation and

harvesting of opium poppies. But more importantly,

fentanyl is cheaper to trac: Its lethal dose is just 2

milligrams.

Suppliers can thus boost proﬁtability

by lacing heroin with fentanyl, since they smuggling

less bulk produces the same number of doses. The

government has sought to fortify the southern border,

responding to Mexican cartels tracking heroin.

But

fentanyl has traditionally taken dierent smuggling

routes than heroin. For a while, much of the illicit fen-

tanyl supply entered the United States in illegal ship-

ments from China.

But consistent with the iron law,

heightened interdiction rates increased the incentive

for cartels to substitute fentanyl for heroin. Today,

Mexican cartels reportedly synthesize fentanyl them-

selves from Chinese precursors.

Prohibition in the face of persistent demand gen-

erates a black market with artiﬁcially high prices and

grants criminal organizations monopoly power over

that lucrative commerce. The economies of scale

achievable in drug production, smuggling, corruption,

violence, and money laundering mean that organized

crime will tend to ﬁght for and ultimately establish

dominant positions in their markets. In regions home

to illicit agriculture, cartels can act as monopsonies,

keeping opium prices low and forcing subsistence

farmers to absorb the costs of crop eradication.

The

bulk of drugs’ black-market value comes from traf-

ﬁcking them across international borders, so Mexico’s

worst violence has been in the north, with cartels ﬁght-

ing for control of land crossings to the United States.

At the distribution level, a single cartel is dominant in

Just as alcohol Prohibition barely reduced drinking and produced a violent

black market, attacking today’s drug trackers is fruitless so long as the U.S.

opioid market is so lucrative. Production volumes of illicit drugs are so high,

and drug tracking is so proﬁtable, that interdiction cannot raise prices

enough to induce lower consumption.

Instead, supply-side suppression has

encouraged trackers to smuggle cheaper and more potent opioids.

332

journal of law, medicine & ethics

SYMPOSIUM

many U.S. markets, possibly explaining why dealing-

related violence has remained low.

Just as alcohol Prohibition barely reduced drinking

and produced a violent black market, attacking today’s

drug trackers is fruitless so long as the U.S. opioid

market is so lucrative. Production volumes of illicit

drugs are so high, and drug tracking is so proﬁtable,

that interdiction cannot raise prices enough to induce

lower consumption.

Instead, supply-side suppres-

sion has encouraged trackers to smuggle cheaper

and more potent opioids.

B. Deterrence and the economic logic of criminalized

suppression

An oversupply of pharmaceutical opioids may have

triggered this addiction epidemic, but mitigating it

requires managing Americans’ demand for illicit opi-

oids. Traditionally, demand reduction takes several

forms. First, prevention reduces the number of people

who begin using opioids, a crucial intervention in the

midst of an addiction epidemic. Second, treatment

cuts demand from current users, both by reducing

their consumption and by legally obtaining opioids for

maintenance. And ﬁnally, deterrence convinces people

not to use drugs, by increasing the risks of drug use

and threats of legal sanctions. American drug policy

has long relied heavily on deterring drug use and

underinvested in addiction treatment. But that faith in

deterrence is misplaced, because it relies on a ﬂawed

model of human behavior. The economic theory justi-

fying deterrence assumes that drug consumption is a

rational decision, in which potential users weigh the

costs and beneﬁts of getting high. Despite criticism,

this theory continues to motivate government policies

that exacerbate the health risks and social isolation

faced by people who use drugs, entrenching addic-

tion’s etiology.

Deterring future consumption is the central ratio-

nale for punishing drug users. The modern theoreti-

cal justiﬁcation for deterrence is rooted in the micro-

economic analysis of addiction, which models drug

use as a rational choice.

Microeconomics describes

someone as acting rationally when she takes only

those actions for which her expected marginal ben-

eﬁt exceeds her expected marginal costs; that is, if she

expects the choice to produce more pleasure than pain

in the future. This model’s conclusion is that someone

could rationally use addictive drugs because the plea-

sure of today’s euphoria outweighs the present value

of addiction’s future pain and the risk of punishment

for acting illegally. Consequently, policymakers should

be able to deter people from using drugs by increasing

the expected future costs of addiction. These expected

costs may come from the drug’s purchase price, the

drug’s degradation of health and social capital, or the

possibility of prosecution and punishment for illicit

consumption. The theory also concludes that strong

addictions must end “cold turkey,” arguing that any-

thing but immediate, full withdrawal is irrational, and

thus inappropriate, for treating heroin addiction.

Subsequent economic theories have complicated this

picture, explaining the decision to use drugs through

a model of temptation and self-control,

mistake,

time-inconsistent preferences

. But these approaches

still assume rationality and counsel the same policies:

deterring future use by raising the user’s expected

costs, suppressing drug supplies, and educating peo-

ple about drugs’ harmful eects.

The rationalist view of addiction has been subject to

extensive critique, but its intuitive theory of deterrence

still animates policy decisions. Deterrence strategy

usually takes the form of trying to make prosecution

more likely and punishments more severe. This strat-

egy reached its apogee during the Reagan era, when

Congress imposed draconian mandatory minimum

sentences for trafficking and production offenses,

criminalized simple possession under federal law, and

introduced several enhancements that lengthened

incarceration for repeat drug oenders and for use of

a ﬁrearm in connection with a drug crime.

The United States is unique among developed

democracies in the extent to which it incarcerates

people with substance use disorders, often follow-

ing conviction for minor drug distribution or prop-

erty oenses, even though incarceration is known to

dramatically increase rates of overdose death. While

incarceration generally exacerbates the social, psycho-

logical, and economic reasons why someone ends up

in prison, incarceration poses extreme risks to people

with histories of injection drug use. Few U.S. detention

facilities oer OAT, so incarceration usually produces

withdrawal and a dramatic fall in opioid tolerance.

Thus, formerly-incarcerated people with histories of

opioid addiction face an elevated risk of fatal overdose

in the weeks following release.

Trying to deter drug use by raising its risks is a

common and deadly government strategy. During

Prohibition, the federal government tried suppress-

ing illicit drinking by making it riskier, a strategy that

predictably led to severe consequences. In 1926, “dry”

congressmen demanded that the federal government

more aggressively deter bootleggers from transform-

ing industrial alcohols into salable spirits. In response,

Secretary of the Treasury Andrew Mellon approved

federal chemists’ “Formula No. 5,” which doubled the

methyl alcohol concentration in denaturing agents.

The strategy worked, in the sense that it made safe

alcohol much harder to obtain. But in so doing, it

opioids, law & ethics • summer 2018 333

Werle and Zedillo

caused needless death and injury, since people contin-

ued drinking anyway.

Opponents of harm-reduction policies often invoke

similar logic, arguing that access to syringe exchanges,

safe injection facilities, housing programs, and low-

threshold OAT will encourage drug use, because it

mitigates the risks of disease, homelessness, and poor

health that supposedly dissuade people from using

opioids. For instance, politicians have argued that

syringe exchange programs encourage illicit drug use,

even though public health research has shown that

syringe exchanges do not encourage injection.

fact, syringe exchanges are eective conduits to sub-

stance abuse treatment.

Indiana exemplifies how misguided deterrence

logic has increased this epidemic’s toll. Scott County

in southern Indiana has seen a severe HIV outbreak

since 2015. According to CDC analysis, the outbreak

emerged from abuse of the painkiller Opana, which

gained popularity after access to OxyContin became

more dicult.

In 2012, Opana’s manufacturers had

released an abuse-deterrent formulation designed

to prevent users from crushing and snorting pills.

But once this reformulation arrived in Scott County,

addicts began injecting.

Indiana law is hostile to

harm reduction eorts, and possession of syringes

with intent to use them for nonmedical purposes is

a felony.

It is illegal to purchase syringes without a

prescription, and a burdensome exception for syringe

exchanges was only added in 2015.

But the result-

ing syringe shortage didn’t deter injection. It just led

people to share needles, predictably triggering an HIV

epidemic. In 2015, then-Governor Mike Pence permit-

ted one syringe exchange to open in Scott County, and

a few other counties eventually followed suit. But local

politicians have resisted these harm reduction mea-

sures on moral and deterrence grounds. Two counties

closed their syringe exchanges in late 2017 in the face

of ongoing an HIV epidemic. The Indiana Attorney

General recently praised these closures, falsely assert-

ing that syringe exchanges encourage drug use: “Law-

rence County is wise to back o the practice of distrib-

uting free needles to heroin addicts and other opioid

abusers. Handing out clean needles encourages sub-

stance abusers to shoot up and, in many cases, shoot

up more often.”

Misplaced deterrence theories also

power resistance to harm reduction ser-

vices proven to reduce overdose deaths.

Other countries, including Canada, have

used safe injection facilities (SIFs) to

reduce overdoses, disease transmission,

and public nuisances stemming from

opioid use.

But the Department of Jus-

tice recently invoked the threat of federal

criminal prosecution to prevent state and

local ocials from setting up the nation’s

ﬁrst legally sanctioned SIF, arguing that

it would encourage drug use.

Similar

rhetoric slowed naloxone distribution.

Opponents claimed that reducing over-

dose risk through naloxone access would

encourage injection drug use and would

discourage entry to abstinence-based

treatments. However, numerous studies

have disproven these assertions applying

deterrence theory to naloxone access.

These examples demonstrate how

the suppressive logic of deterrence has

exacerbated the health consequences of the opioid

epidemic by obstructing access to harm reduction ser-

vices. When people who use drugs associate state ser-

vices with only repression and punishment, a deﬁcit of

trust develops, the neediest people will be unlikely to

seek out public services. So long as criminalized sup-

pression remains the framework within which drug-

dependent people interact with the state, it will unduly

hamper treatment access and social service provision.

C. Suppressing prescription drugs without expanding

access to opioid maintenance treatment will

exacerbate the overdose crisis

State governments are responding to the overdose epi-

demic suppressing the painkiller supply and making it

These examples demonstrate how the

suppressive logic of deterrence has

exacerbated the health consequences of

the opioid epidemic by obstructing access

to harm reduction services. When people

who use drugs associate state services with

only repression and punishment, a deﬁcit of

trust develops, the neediest people will be

unlikely to seek out public services. So long

as criminalized suppression remains the

framework within which drug-dependent

people interact with the state, it will unduly

hamper treatment access and social service

provision.

334

journal of law, medicine & ethics

SYMPOSIUM

“abuse-resistant.” But these are the wrong policies at

the wrong time. With so many people already addicted

and access to opioid maintenance treatment an inac-

cessible patchwork, making it harder for dependent

users to access pharmaceutical opioids will push them

to inject fentanyl-laced, black-market powders and

ingest counterfeit pills. Prescription painkiller abuse is

serious, but pushing users into the black market mag-

niﬁes the epidemic’s harmful consequences, including

overdoses. Policymakers should respond to the opioid

problem by expanding access to OAT, rather than by

pushing people toward riskier behavior.

The misguided eort to suppress painkiller abuse

by introducing abuse-deterrent formulations (ADFs)

is a cautionary tale. Starting around 2012, pharma-

ceutical companies reformulated several blockbuster

opioid pills, including OxyContin and Opana, to

make them harder to crush and sni. Manufacturers

had two motivations. Public health research showed

that most heroin users initiated opioid use by tak-

ing legally dispensed pills, crushing and sning the

pills before starting to inject.

ADFs were intended to

make painkiller abuse more dicult and thus prevent

painkiller users from developing destructive addic-

tions. But ﬁnancial incentives may have dominated:

Manufacturers faced impending patent expirations,

which would have opened their blockbuster painkill-

ers to generic competition. They responded by intro-

ducing newly patented ADFs and then lobbying the

FDA to take pills without these “safety” features o

the market, preventing non-ADF generics from com-

peting with brand-name painkillers.

At the time, no

generics on the market had ADFs. Several years later,

economists and public health ocials have conﬁrmed

that the ADFs backﬁred and blame them for accelerat-

ing users’ transitions from pills to powders.

Unable

to snort the pills, many users turned to injecting them,

increasing risks of overdose and disease transmission.

Others turned to black-market drugs, buying fen-

tanyl-laced heroin or counterfeit pills.

Despite the

evidence, ADFs’ intuitive appeal has attracted federal

ocials eager to be seen responding to the addiction

crisis. Expanding the transition to ADFs is now a cen-

terpiece of the FDA’s national response.

State governments have taken the lead in responding

to the crisis, but many states’ strategies have empha-

sized restricting prescription opioid access with Pre-

scription Drug Monitoring Programs (PDMPs) and

physician discipline, instead of expanding OAT access.

Forty-nine states now operate PDMPs, statewide

databases that record patients’ prescription histories

for controlled substances.

PDMPs permit provid-

ers to identify patients who are “doctor shopping” to

try to obtain multiple, simultaneous prescriptions for

their own use or to sell to others. State health depart-

ments, and law enforcement personnel, can also use

some states’ PDMPs to identify anomalous behavior

and then target providers or patients for enforcement

actions.

PDMPs have been shown to reduce the vol-

ume of opioids prescribed by more than 30%,

par-

ticularly in the 32 states that mandate provider access

prior to prescribing opioid analgesics.

The states have taken other measures to suppress

nonmedical use of pharmaceutical opioids and restrict

the diversion of pills to dealers. Some legislatures and

medical boards have limited the number of pills and

reﬁlls doctors may prescribe at a time. Attorneys gen-

eral, medical licensing boards, criminal prosecutors,

and health departments have sought to deter physi-

cians and pharmacists from prescribing opioids to

people with addictions. The federal government, state

attorneys general, and private litigants have also sued

pharmaceutical manufacturers and distributors for

misbranding and negligent distribution practices.

Are these policies helping? PDMPs and these other

measures have been touted for reducing the number

of opioid prescriptions.

But this begs the question

of whether reducing prescriptions is an unalloyed

public health beneﬁt. Restricting the volume of opi-

oids that doctors can prescribe to new pain patients

may reduce the rate at which people become addicted.

But prescription opioids’ reduced accessibility also

compels habitual painkiller abusers to switch from

genuine pharmaceuticals to using counterfeit pills or

black-market heroin. As with the similar shift follow-

ing ADFs’ introduction, harmful consequences should

increase. Indeed, empirical work from the past year

has validated these concerns. A recent econometric

analysis found that adopting PDMPs increased by

47%–84% the rate of heroin-involved criminal inci-

dents that police encounter in the counties with high-

est per capita rates of pre-PDMP prescription opioid

consumption.

But in lower-consumption counties,

PDMP adoption did not signiﬁcantly change the rate

of heroin-involved incidents.

Studies of overdose

mortality found that PDMP adoption had widely vary-

ing eects across states, but one found that implemen-

tation of PDMPs was associated with an 11% increase

in drug overdose mortality.

Another study found a

slight decrease in mortality overall.

These data are

consistent with the proposition that reducing access

to genuine pharmaceuticals is harmful where unman-

aged opioid addiction is prevalent and OAT access is

dicult.

In the same vein, states with restrictive cannabis

laws have fared worse than those with legal access.

Cannabis is a less addictive analgesic than hydroco-

done and habitual use is less harmful than habitual

opioids, law & ethics • summer 2018 335

Werle and Zedillo

heroin use, so cannabis could have been a better option

for many chronic pain patients and a less harmful sub-

stitute for some non-medical opioid use. A nationwide

analysis from 1999 to 2010 found that states permit-

ting chronic pain patients to obtain medical cannabis

legally had an opioid analgesic overdose mortality rate

25% lower than states without medical cannabis laws.

Colorado’s experience from 2000–2015 also suggests

that legalization of recreational cannabis produced a

6.5% reduction in opioid-related deaths in the follow-

ing two years.

This evidence supports our contention

that providing safe, regulated access to “illicit” drugs

mitigates the consequences that drugs pose to society.

Counterintuitively, the best response to the opioid

epidemic at this juncture may be to increase, rather

than to suppress, regulated opioids access. We are not

arguing that prescription opioid abuse is good. Rather,

we contend that with such a large stock of dependent

users and without access to low-threshold mainte-

nance treatment, suppressing the supply of genuine

pharmaceuticals pushes addicted people to consumer

riskier black-market drugs. Therefore, until OAT is

widely accessible, further suppression of pharmaceu-

ticals is unwise.

IV. Toward Public-Health Oriented

Regulation of Opioids

In 2016, more than 2.1 million Americans had an

opioid use disorder.

Those unable to remain absti-

nent need a regulated and safe means of maintaining

their addictions and obtaining treatment. Introduc-

ing a safe, reliable, and suciently accessible supply of

opioids for existing users can erode the demand that

supports black markets. Just as important, a regu-

lated supply system can improve individual and pub-

lic health, because people are less likely to overdose

or contract diseases consuming pharmaceutical-grade

opioids than injecting substances bought on the street

or in an anonymous, online bazaar. This system of sup-

ply should be run through a revamped, low-threshold,

insurance-funded OAT system. This section discusses

why decriminalization of drug possession for personal

use is a necessary response to the crisis and describes

reforms to the U.S. OAT system that could transform

it into an eective way of supplying opioid-dependent

people with an accessible and regulated source for

addiction maintenance.

A. Decriminalization is a necessary but insucient

response to the crisis

Some U.S. jurisdictions have abandoned the most

draconian tactics for suppressing drug consumption.

But even where the government relies less on threat-

ened punishment to deter people from using drugs,

policies remain tethered to suppression, because most

dependent users still lack access to a regulated supply

of drugs. States should rapidly reform both their laws

and practices so as to shift from a punitive framework

to one based on medical treatment, social support,

and harm reduction.

Decriminalization policies must be tailored to spe-

ciﬁc communities. In some areas, de facto decriminal-

ization, achieved through law enforcement policies

and cooperative relationships with drug treatment

providers and community groups, may be sucient.

However, de jure decriminalization is better, because

it eliminates police officers’ power to selectively

arrest drug users, thereby fostering greater trust. For

instance, Good Samaritan laws that protect people

witnessing an opioid overdose from arrest amplify the

public-health beneﬁts from equipping police ocers

with naloxone, because witnesses are more likely to

call for help. Even better is the model of cooperation

between police and social workers in the Law Enforce-

ment Assisted Diversion (LEAD) model: Social work-

ers, defense attorneys, prosecutors, and police ocers

work together in case-management teams to stabi-

lize the lives of marginalized drug users. In practice,

LEAD operates as de facto decriminalization of drug

possession, with cooperative rehabilitation replacing

outright suppression. By substituting social support

for arrest, LEAD has been able to reduce participants’

odds of arrest by 58%.

Non-U.S. jurisdictions that have eectively stopped

opioid epidemics have shifted primary responsibil-

ity to public-health agencies, which tend to respond

to relapse with service provision rather than punish-

ment. The dierence between American drug courts

and the Portugal’s commissions for the dissuasion of

drug addiction (CDTs) highlight why public health

authorities must take the leading role. American drug

courts operate on a post-arrest diversion model, with

criminal prosecution held in abeyance pending com-

pletion of the drug court program. People can avoid

a judgment only if they avoid relapsing. The entire

process of arrest, booking, detention, and ongoing

proceedings is costly and stigmatizing, complicating

social and economic reintegration even if someone is

“successful.” But if the defendant fails the drug court’s

program, she remains liable to incarceration. Such

failure is common, because many drug courts ascribe

to an abstinence-based philosophy and either prohibit

OAT or permit it only under restrictive conditions.

Because substance use disorder is a chronically relaps-

ing condition characterized by compulsive drug use, a

model that punishes people for “failure” is itself poorly

equipped for success.

336

journal of law, medicine & ethics

SYMPOSIUM

In contrast, the Portuguese public health authorities

run the CDT system. If the police encounter someone

on the street in possession of drugs for personal use,

they give him an administrative summons for atten-

dance at the local CDT. There is no arrest and no crim-

inal record. CDT panels comprise psychiatrists, social

workers, and lawyers, working together with a sta to

understand the client’s needs in a holistic manner. If

the CDT determines that his drug use is unproblem-

atic, they may impose a small ﬁne, order community

service, or merely dismiss him. But if it ﬁnds that he

has an addiction or another social problem, it will

refer him to appropriate services, chieﬂy low-thresh-

old OAT. Access to these drugs is much easier than in

the United States: Vans circulate throughout Lisbon,

dispensing methadone to clients without burdensome

rules or drug testing requirements. The CDT operates

as a case manager, connecting people with necessary

services. People with more severe problems receive

more substantial services, and there is no threat of

juridical coercion.

Portugal’s is a religious and socially conserva-

tive society. Portuguese ocials stress that drug use

remains illegal, but that decriminalization is the neces-

sary condition for their real reform — low-threshold

OAT — to work. American commentators advocat-

ing drug policy reform often point to Portugal as an

example of how “decriminalization” can eliminate drug

problems. But that’s not how the Portuguese see it.

Only by decriminalizing the lives of drug users can the

state build the trust necessary to bring them into state

care for addiction treatment, social services, and OAT.

Portugal’s current situation is by no means utopian,

and there is still problematic drug use. But the country

enacted a self-consciously pragmatic policy response

to a severe opioid epidemic at the end of the 1990s, and

these measures successfully restrained the crisis and

reduced overdose deaths and disease transmission.

The United States should adopt a similar harm

reduction strategy. Given the prevalence of high-risk

injection drug use, safe injection facilities ought to be

opened as soon as possible. SIFs are professionally

supervised healthcare facilities that seek to reduce

mortality and morbidity by providing high risk drug

users with a safe, hygienic place to consume drugs

obtained o-premises. While politically contentious,

SIFs’ public health beneﬁts are well settled. More than

90 SIFs operate legally in other countries, includ-

ing Switzerland, Germany, Spain, France, Denmark,

Norway, Canada, and Australia.

Unsanctioned

SIFs operate in New York City and elsewhere in the

United States, and several cities’ public health depart-

ments are working toward opening a municipal SIF

in 2018, despite the federal government’s steadfast

opposition.

Numerous studies have found that SIFs

do not increase injection drug use, drug tracking,

or crime.

100

SIFs do, however, decrease the morbid-

ity and mortality associated with injection drug use,

increase uptake of addiction treatment, and reduce

the public nuisances associated with drug use, such

as discarded syringes and injection in public spaces.

101

SIFs have been remarkable successful in reducing

fatal opioid overdoses: In Vancouver, Canada opening

a SIF caused fatal opioid overdoses to fall 35% in the

surrounding area.

102

In Sydney, Australia, the num-

ber of ambulance calls responding to overdoses near

a SIF decreased 68% during its operating hours.

103

None of the legally operating SIFs has ever reported

a fatal opioid overdose by a someone using its ser-

vice.

104

In 2011, when the Canadian Supreme Court

ordered the Minister of Health to continue licensing

Vancouver’s experimental SIF, the Court declared its

social value to be settled: “[the Vancouver SIF] saves

lives. Its beneﬁts have been proven. There has been

no discernable negative impact on the public safety

and health objectives of Canada during its eight years

of operation.”

105

Abstinence-based limits on access to wraparound

social services and public benefits should also be

removed, because requiring people to be abstinent

Law enforcement agencies cannot address the root causes of substance

use disorder, because they lack authority to establish regulated systems of

supply and low-threshold OAT. But for those systems to work,

law enforcement agencies must be fully engaged partners, policing in ways

that reinforce, rather than undermine, the medical care and

social reintegration of people who use drugs.

opioids, law & ethics • summer 2018 337

Werle and Zedillo

in order to get access to services does not help people

manage addiction. The best-studied context is hous-

ing, and the evidence is clear: “[The] traditional absti-

nence approach was not more eective at reducing

rates ofsubstanceuse.”

106

In randomized controlled

trials, people provided with housing ﬁrst, and subject

to no abstinence requirements, were “significantly

less likely to use or abuse substances when com-

pared to Treatment First clients.”

107

Deterrence-based

approaches are counterproductive, because relapse

does not follow from rational cost-beneﬁt calcula-

tions. Stable housing permits people who use drugs to

reintegrate into society and better manage chemical

dependencies. Stress is a crucial driver of relapse to

problematic drug use, and eviction needlessly intro-

duces stress, trauma, and disruption into an already

disorganized life. So even if abstinence is the goal, law

should not make it a necessary condition receiving

social support.

Law enforcement agencies cannot address the

root causes of substance use disorder, because they

lack authority to establish regulated systems of sup-

ply and low-threshold OAT. But for those systems to

work, law enforcement agencies must be fully engaged

partners, policing in ways that reinforce, rather than

undermine, the medical care and social reintegration

of people who use drugs.

B. Public health-oriented regulation of opioids

How can we design a system that provides an acces-

sible, regulated supply of opioids to people already

dependent on the drugs without encouraging others

to start using? Other countries, including Switzerland,

Portugal, Germany, and the Netherlands have faced

epidemics of heroin abuse in the past and reformed

their systems for healthcare, policing, and social ser-

vices to abate the crisis and manage future abuse.

Each successful national addiction treatment system

has at its core a comprehensive, low-threshold OAT

system that provides existing users with an accessible

and low-cost source for pharmaceutical grade opioids.

Access to maintenance drugs is considered essential,

mainstream medical care, and so regulations permit

people who have stabilized their conditions to quickly

escape the disruptive pattern of daily clinic visits for

methadone maintenance by shifting oversight to

general practitioners and permitting prescriptions

for take-home doses to be ﬁlled at local pharmacies.

Several jurisdictions have also recognized the value

of adding medical-grade heroin as an OAT mainte-

nance option because some patients’ conditions are

more stable with heroin-assisted treatment (HAT)

than with methadone or buprenorphine. Finally,

these jurisdictions use far fewer opioids in pain treat-

ment than the United States and prohibit the kinds of

ﬁnancial incentives and marketing practices that led

to overreliance on painkillers in the ﬁrst place.

Low-threshold methadone maintenance is the cor-

nerstone of comprehensive drug treatment. Where

methadone and buprenorphine maintenance is avail-

able in the United States, the numerous regulatory and

practical barriers to access make it a “high-threshold”

service. Features of high-threshold treatment include

requirements that patients visit specialized and often

inaccessible clinics daily for supervised drug admin-

istration, inﬂexible admission criteria, waiting lists,

limited-duration treatment, zero-tolerance of illicit

drug use, and high prices. In contrast, low-threshold

services impose few requirements to access treatment.

Patients need not abstain from illicit drugs as a condi-

tion of service use, and these programs aim to reduce

all documented barriers to service access and mini-

mize requirements for retention.

108

They also aim to

destigmatize treatment, so people who use drugs feel

welcome, trust the service, and know they will not be

discriminated against. Low-threshold services con-

sider relapses to be expected features of the underly-

ing condition, and they respond with additional ser-

vices rather than discipline. Wraparound services and

counseling are usually oered but are not compulsory.

Service providers seek to be minimally disruptive to

patients’ lives, so they do not require patients to travel

long distances, using pharmacy distribution, “metha-

done buses,” and take-home doses to eliminate daily

clinic visits.

Other countries’ pragmatic responses to opioid crises

of their own can serve as a model for U.S. policymakers.

In France, methadone maintenance must be initi-

ated in clinics, but a patient may transfer her prescrip-

tion to a general practitioner after her condition is

stabilized. Methadone is free in clinics and pharmacy-

dispensed doses are reimbursed through standard

prescription coverage. Pharmacies may provide up to

a week’s doses at a time. Users are not required to reg-

ister, undergo no testing for illicit drug use, and need

not undergo counseling as a condition of treatment.

109

These policies, introduced in 1995, are credited with

substantially reducing opioid overdoses, HIV and

hepatitis C incidence, and drug-related crime.

110

In Hong Kong, the Department of Health actively

promotes methadone maintenance and makes on-

demand methadone treatment very accessible. Opi-

ate-dependent people can generally access methadone

maintenance on the same day they present for treat-

ment, following a urine test to verify that they are opi-

oid users. People under 18 are admitted, and parental

consent is preferred but not mandatory.

111

The fee for

each visit is ﬁxed at HK$1 ($0.13).

112

The clinics oper-

338

journal of law, medicine & ethics

SYMPOSIUM

ate daily and are open before and after work hours, as

more than half of maintenance patients are employed.

Methadone’s accessibility is key, and mobile ser-

vice provision has been successful in several cities. In

Amsterdam, the government has distributed metha-

done by bus since the 1970s. These mobile clinics dis-

pense free methadone throughout the city, so patients

may attend more easily.

113

Lisbon adopted this model

in 2001, and now has several buses that dispense

free methadone throughout the greater metropoli-

tan area.

114

One can only imagine how providing such

mobile methadone services would increase mainte-

nance treatment access both in the rural areas of the

United States, where addiction is rampant and metha-

done access extremely limited, and in sprawling met-

ropolitan areas.

The U.S. government should also add pharma-

ceutical-grade heroin to the list of approved drugs

for maintenance therapy. Switzerland, Germany, the

Netherlands, the United Kingdom, France, Australia,

and Canada have all oered heroin-assisted treatment

(HAT) in specialized clinics, either as an established

or experimental treatment.

115

Studies have shown that

incorporating heroin maintenance was more eec-

tive than methadone maintenance alone for certain

groups of long-term and treatment-resistant drug

users and produced no greater incidence of seri-

ous adverse eects.

116

Randomized controlled trials

in the Netherlands have shown that HAT patients

experienced signiﬁcantly fewer heroin cravings and

engaged in less illicit heroin use than methadone

maintenance patients.

117

A randomized, controlled

trial in Vancouver found that for some patients, using

injectable heroin for maintenance was more eective

than oral methadone at retaining people in addiction

treatment and at reducing illicit drug use and other

illegal activity, such as sex work.

118

Interviews in Van-

couver showed that HAT permitted people with long-

term addictions to stabilize their lives, improve their

health, regain employment, and reintegrate into social

and political life. But realizing these beneﬁts requires

open-ended maintenance treatment, since forced

cessation of HAT causes the gains to evaporate.

119

Introducing pharmaceutical-grade heroin as a main-

tenance therapy option could therefore improve the

health of America’s existing injection drug users and

help extinguish the demand powering illicit markets.

Switzerland shows how government-administered

OAT can stabilize an epidemic of drug use and under-

cut an incumbent black market. Methadone and

buprenorphine are available on a low-threshold basis

through general practitioners and regular pharma-

cies. Patients addicted for more than two years who

have twice failed other treatment regimens qualify for

high-threshold, clinic-based HAT. Swiss health insur-

ance plans must cover all OAT options, providing

extremely low-cost and reliable access to a safe, high

quality, supply. And since providing these services

is not unusually proﬁtable, providers lack structural

incentives to expand the market. The absolute num-

ber of opioid consumers, including OAT recipients,

has stayed consistent since the height of the Swiss

opioid epidemic in the early 1990s, indicating that

prevention eorts and the regulatory structure gov-

erning OAT have kept people from initiating opioid

use, despite collapsing heroin prices.

120

The addiction

treatment system has largely replaced the black mar-

ket as a source for accessing opioids. The black market

has been structurally stable and largely non-violent

during this period, with well entrenched, Albanian

criminal organizations dominating the scene.

121

Intel-

ligence suggests that the heroin trade is now mini-

mally proﬁtable. So long as the potency and volume of

the heroin market remain stable and residual track-

ing activity produces neither violence nor public nui-

sances, suppressing the illicit heroin market remains a

low police priority.

Skeptics may object that expanding the OAT system

and lowering access thresholds would risk providing

an accessible and socially acceptable means for people

to initiate drug use. But the experiences of Switzerland

and other countries belay that fear. Low-threshold

OAT access does not mean no-threshold access: Pro-

viders still test patients’ urine to ensure that they are

opioid users, because giving methadone to someone

without any tolerance is dangerous. A well-regulated

OAT system actually reduces the risk of initiation,

because it undermines black-market suppliers, who

have incentives to promote opioid dependence and

so seek out new customers. In the United States, the

black market’s ubiquity likely explains the troubling

increase from in the proportion of people initiating

opioid use directly with black-market heroin. A recent

study estimated that the proportion of Americans who

initiated opioid use with heroin increased from 9% in

2005 to 33% in 2015.

122

This dramatic increase in peo-

ple starting directly with heroin further suggests that

policymakers focused on restricting painkiller access

are actually ﬁghting the last war.

Opioids are highly addictive substances, but politi-

cal economy is as important as chemistry in triggering

an addiction epidemic. In better regulated supplies,

the goal should providing dependent users with a safe,

accessible, and reliable supply of opioids for addic-

tion maintenance without encouraging oversupply

and initiation of abuse. Unlike today’s alcohol mar-

ket, no entities should have economic incentives to

promote problematic consumption. Given the intrin-

opioids, law & ethics • summer 2018 339

Werle and Zedillo

sic risks of dispensing opioids and the documented

success of existing OAT regimens, it makes sense to

organize access through the treatment system and

to fund the care through medical insurance. Relying

on market-based incentives to enlist private-sector

providers entails making maintenance treatment suf-

ﬁciently proﬁtable. But making opioid prescription

proﬁtable entails its own substantial risks, made plain

in the well-known stories of pharmaceutical industry

manipulations and physician proﬁteering that ignited

the epidemic of painkiller addiction.

The pharmaceutical industry’s dismal track record

in fomenting this epidemic is a cautionary tale. Even

some libertarian-minded advocates of drug “legal-

ization” have questioned their stances, in light of the

role legal opioids played in triggering addictions.

123

But concluding that prohibition is best follows only

from an ideological premise that criminalized pro-

hibition and unregulated legalization are the only

available policy alternatives. Prescription painkillers

caused such damage because they were aggressively

and deceptively marketed in a regulatory environment

excessively deferential to industry and focused more

on proﬁtability than on health. Many of prescription

opioids’ dangers stem from the fee-for-service ﬁnanc-

ing models that generally bedevil American health-

care, though the iatrogenic risks of over-testing pale in

comparison to those of over-medicating post-surgical

and pain management patients. Even more dangerous

are laws permitting pharmaceutical manufacturers to

supplement physicians’ incomes with perks and con-

sulting fees, as Perdue Pharma famously did for doc-

tors that prescribed the most OxyContin. To regulate

opioids consistently with public health needs, provid-

ers must be compensated on the basis of population

health, not services rendered. And prescribers should

follow the direction of impartially generated medical

evidence, not industry marketing materials.

Neither are addiction treatment providers guaran-

teed to be public-health regarding. Indeed, this addic-

tion epidemic has spurred a concomitant boom in the

treatment market, and private capital is rushing in to

exploit proﬁt opportunities. This has ﬁnanced dra-

matic consolidation of addiction treatment providers,

fueled by billions of dollars in cash from the private

equity industry.

124

Since American addiction treat-

ment lacks clear standards of care, proﬁtability, rather

than evidence, often determines treatment regimens.

This frequently means abstinence and group therapy,

rather than OAT. Sometimes, it can also mean com-

pulsory work programs, with sober home residents

or drug court participants sent to work without pay

in local businesses that have made ﬁnancial arrange-

ments with “treatment” providers.

125

People seeking

addiction treatment for themselves or their loved

ones often lack the information necessary to make

informed choices, and maintenance therapy’s stigma

drives people away from evidence-based treatment.

As a result, many patients are in expensive facilities

but lack access to OAT. The trend has even resulted in

privatization of purportedly public institutions, such

as facilities for civil commitment of opioid users, which

are increasingly run by the private prison industry and

too rarely provide high-quality OAT.

Government has an important role, not just as a

regulator but as a direct service provider or a link in

the supply chain. Models exist for using exclusive gov-

ernment provision of critical supply chain services to

prevent proﬁt-maximizing, private entities from over-

supplying a habit-forming substance and damaging

public health. For instance, the Uruguayan law legal-

izing recreational cannabis created a state monopoly

at the wholesale level. This entity mediates between

highly regulated growers and highly regulated retail-

ers, setting prices that both ensure sucient returns

on investment to attract private capital and prevent

the industry from expanding and commercializing to a

degree that would undermine public health. In an ear-

lier era, the British government successfully addressed

the problem of drunkenness in wartime factory towns

by nationalizing pubs, which then provided alcohol

under conditions dictated by public health concerns

rather than proﬁtability.

126

And following Prohibition,

some U.S. states retained government monopolies on

retail liquor sales. Of course, public control does not

eliminate risk of bad regulatory design: One need only

consider state-run lotteries to see how public entities

can also run amuck.

Widespread public provision of low-threshold

maintenance treatment would be an excellent invest-

ment. Numerous studies have found that mainte-

nance therapies are cost eective, even as currently

provided, because people with OAT-stabilized addic-

tions impose fewer costs on other social programs,

law enforcement, and healthcare services.

127

But the

current system is unnecessarily expensive and thus

crowds out more and better services for people who

use drugs. Methadone is an unpatented medicine

that is cheap to produce. Many of the costs associated

with maintenance treatment are the result of the sup-

pressive regulations that also impede access. Shift-

ing maintenance treatment to a low-threshold model

would not just ease access to care, but that it would

also make proper addiction medicine more aordable

and thus more widely available.

Ultimately, drug policies that govern policing and

prescribing cannot solve this crisis on their own. Issues

as disparate as employment conditions, pharmaceuti-

340

journal of law, medicine & ethics

SYMPOSIUM

cal misbranding regulations, healthcare ﬁnance, hous-

ing policy, and sustainable development programs

all aect patterns of drug use and supply. Cannabis

legalization and implementation of harm reduction

responses to the opioid epidemic reﬂect a growing

awareness that eradication of non-medical drug use

is a futile objective. Our contribution is to show that

suppression is not just fruitless but is actually harm-

ful. Although beset by crisis, the United States has

an historic opportunity to break from the policies of

criminalized suppression. No two drug crises are the

same, just as no two societies are interchangeable.

Nevertheless, other countries’ experiences demon-

strate that a public health approach to drug problems

is both more humane and more eective than crimi-

nalized suppression.

Note

The authors have no conﬂicts to declare.

Acknowledgements

Many thanks to Kate Stith, Abbe Gluck, and Haynie Wheeler for

making this article possible. The authors also beneﬁtted greatly

from comments and suggestions by John Collins, Alejandro

Madrazo Lajous, Gregg Gonsalves, Nina Cohen, Kate Redburn,

Nathan Guevremont, Lisa Erickson, and Barbara Selvin. The

authors would also like to thank the participants of the work-

shop on opioid regulation at the Yale Center for the Study of

Globalization.

References

1. Global Commission on Drug Policy, Advancing Drug Policy

Reform: A New Approach to Decriminalization, 2016, avail-

able at <https://www.globalcommissionondrugs.org/reports>

(last visited April 25, 2018).

2. See, e.g., G. F. Koob and N. D. Volkow, “Neurocircuitry of

Addiction,” Neuropsychopharmacology 35, no. 1 (2010):

217–238.

3. J. Katz and A. Goodnough, “The Opioid Crisis Is Getting

Worse, Particularly for Black Americans,” New York Times,

Dec. 22, 2017.

4. See K. James and A. Jordan, “The Opioid Crisis in Black

Communities,” Journal of Law, Medicine & Ethics 46, no. 2

(2018): 404-421.

5. See Title II, §6, Volstead Act, Pub. L. 66-66 at 311 (exception

for sacramental wine) & Title II, §33 Pub. L. 66-66 at 317

(exception for possession and personal consumption of pre-

Prohibition liquor in one’s dwelling).

6. See Id., §7.

7. See L. McGirr, War on Alcohol (New York: W. W. Norton &

Co., 2015).

8. D. F. Musto, The American Disease, 3d ed. (Oxford: Oxford

U.P., 1999): 122–23.

9. 249 U.S. 96, 99 (1919).

10. Id.

11. See generally W. van den Brink and C. Haasen, “Evidence-

Based Treatment of Opioid-Dependent Patients”The Cana-

dian Journal of Psychiatry 51, no. 10 (2006): 635-646.

12. K. L. Sees et al., “Methadone Maintenance vs. 180-Day Psy-

chosocially Enriched Detoxiﬁcation for Treatment of Opioid

Dependence: A Randomized Controlled Trial,” JAMA 283

(2000):1303–1310; See also D. Polsky et al., “Cost and Cost-

Eectiveness of Standard Methadone Maintenance Treat-

ment Compared to Enriched 180-Day Methadone Detoxiﬁca-

tion,” Addiction 99, no. 6 (2004): 718–726.

13. See A. Paraherakis et al., “An Abstinence-Oriented Program

for Substance Use Disorders: Poorer Outcome Associated

with Opiate Dependence,”The Canadian Journal of Psychia-

try45, no. 10 (2000): 927-931.

14. van den Brink and Haasen, supra note 11, at 637.

15. A. J. Ritter, “Naltrexone in the Treatment of Heroin Depen-

dence: Relationship with Depression and Risk of Over-

dose,”Australian and New Zealand Journal of Psychiatry36,

no. 2 (2002): 224-228, at 227.

16. R. Dissell, “Ohio’s Spending on Opioid Addiction Treatment

Drugs Vivitrol and Suboxone Spikes, Spurs Debate on what

Treatments Work,” Cleveland Plain Dealer, April 30, 2017.

17. R. P. Mattick et al., “Methadone Maintenance Therapy versus

No Opioid Replacement Therapy for Opioid Dependence,”

Cochrane Database Systematic Reviews 3, no. 3 (2009): 10-11.

18. van den Brink and Haasen, supra note 14, at 637.

19. P. G. Barnett, “The Cost-Eectiveness of Methadone Main-

tenance as a Health Care Intervention,” Addiction 94, no. 4

(1999): 479–488.

20. C. S. Davis and D. H. Carr, “The Law and Policy of Opioids

for Pain Management, Addiction Treatment, And Overdose

Reversal,” Indiana Health Law Review 14 (2017): 1–39, at 17.

21. 42 C.F.R. §8.12.

22. 21 C.F.R. §1306.7.

23. 42 C.F.R. §8.12(f)(6).

24. 42 C.F.R. §8.12(f ).

25. 42 C.F.R. §8.11(f)(1).

26. 21 C.F.R. §1301.28.

27. See P. R. Keefe, The Family That Built an Empire of Pain,

New Yorker, Oct. 30, 2017.

28. 21 C.F.R. §1306.04.

29. See J. A. del Real, “Opioid Addiction Knows No Color, but its

Treatment Does,” New York Times, January 12, 2018.

30. H. Hansen, C. Siegel, et al., “Buprenorphine and Methadone

Treatment for Opioid Dependence by Income, Ethnicity and

Race of Neighborhoods in New York City,” Drug and Alcohol

Dependence164 (2016): 14-21.

31. S. C. Sigmon, “Access to Treatment for Opioid Dependence

in Rural America: Challenges and Future Directions,” JAMA

Psychiatry71, no. 4 (2014): 359-360.

32. E. Peles et al., “Opiate-Dependent Patients on a Waiting List

for Methadone Maintenance Treatment are at High Risk for

Mortality until Treatment Entry,”Journal of Addiction Medi-

cine7, no. 3 (2013): 177–182.

33. See Robinson v. California, 370 U.S. 660, 666–67 (1962).

34. H. Matusow et al., “Medication Assisted Treatment in US

Drug Courts: Results from a Nationwide Survey of Availabil-

ity, Barriers and Attitudes,”Journal of Substance Abuse Treat-

ment44, no. 5 (2013): 473–480.

35. C. Warbuton, “Economic Results of Prohibition,” (New York:

Columbia University Press, 1932): at 260; See also J. A. Miron

and J. Zwiebel, “Alcohol Consumption During Prohibition,”

American Economic Review 81, no. 2 (1991): 242–247, at 242.

36. Miron and Zwiebel, supra note 35, at 242.

37. R. Cowan, “How the Narcs Created Crack,” National Review,

December 5, 1986, at 26, 27.

38. S. Duke, “Drug Prohibition: An Unnatural Disaster,” Con-

necticut Law Review 27 (1995): 571–612, n. 104 at 598.

39. Warburton, supra note 35, at 260 (comparing consumption

from 1927–1930 with that from 1911–1914).

40. L. Beletsky and C. S. Davis, “Today’s Fentanyl Crisis: Prohi-

bition’s Iron Law, Revisited,” International Journal of Drug

Policy 46 (2017) 156–159, at 157.

41. Id.

42. Id.

43. S. L. Ziegler, “The Ocular Menace of Wood Alcohol Poison-

ing,” British Journal of Ophthalmology 5, no. 8 (1921): 365–

373, at 368.

44. D. Blum, The Poisoner’s Handbook (New York: Penguin Press,

2010), at 154–156.

opioids, law & ethics • summer 2018 341

Werle and Zedillo

45. Id. at 161–162.

46. Ziegler, supra note 43, at 365.

47. Blum, supra note 44, at 157–8.

48. McGirr, supra note 7, at 59.

49. Id.

50. J. Katz, “The First Count of Fentanyl Deaths in 2016: Up

540% in Three Years,” New York Times, September 2, 2017.

51. H. Smith, “A Comprehensive Review of Rapid-Onset Opioids

for Breakthrough Pain,”CNS Drugs26, no. 6 (2012): 509–535,

at 515.

52. N. Popper, Opioid Dealers Embrace the Dark Web to Send

Deadly Drugs by Mail, New York Times, June 10, 2017.

53. DEA Intelligence Brief, “Counterfeit Prescription Pills Con-

taining Fentanyls: A Global Threat,” DEA-DCT-DIB-021-16,

(July, 2016) at 4.

54. European Monitoring Centre for Drugs and Drug Addiction,

“Fentanyl Drug Proﬁle,” available at <http://www.emcdda.

europa.eu/publications/drug-proﬁles/fentanyl> (last visited

January 23, 2017).

55. See M. Keck and G. Correa-Cabrera, “US Drug Policy and

Supply-Side Strategies: Assessing Eectiveness and Results,”

Norteamérica 10, no. 2 (2015): 47–67, 50–53 (describing his-

tory of U.S. interdiction eorts at the U.S.–Mexico border).

56. S. O’Connor, U.S.-China Economic and Security Review

Commission, “Fentanyl: China’s Deadly Export to the United

States,” February 1, 2017, available at <www.uscc.gov/sites/

default/ﬁles/Research/USCC%20Sta%20Report_Fentanyl-

China’s%20Deadly%20Export%20to%20the%20United%20

States020117.pdf> (last visited May 2, 2018)

57. See A. Ahmed, “Drug That Killed Prince is Making Mexican

Cartels Richer, U.S. Says,” New York Times, June 9, 2016.

58. See T. Wainwright, “Narconomics,” (New York: Public Aairs,

2017): 13–27.

59. DEA, “United States: Areas of Influence of Major Mexi-

can Transnational Criminal Organizations,” DEA-DCT-

DIR-065-15, July 2015.

60. See H. A. Pollack and P. Reuter, “Does Tougher Enforcement

Make Drugs More Expensive?” Addiction 109, no. 12 (2014):

1959–1966.

61. See G. S. Becker and K. M. Murphy, “A Theory of Rational

Addiction,” Journal of Political Economy 96, no. 4 (1988):

675–700.

62. Id., at 692-693.

63. See, e.g., G, Faruk, and W. Pesendorfer, “Harmful Addic-

tion,”Review of Economic Studies74, no. 1 (2007): 147–172.

64. See, e.g., B. D. Bernheim and A. Rangel, “Addiction and Cue-

Triggered Decision Processes,” American Economic Review94,

no. 5 (2004): 1558–1590.

65. See, e.g., T. O’Donoghue and M. Rabin. “Self-Awareness and

Self-control,” in G. Lowenstein, D. Read, and R. F. Baumeister

eds. Time and Decision: Economic and Psychological Perspec-

tives on Intertemporal Choice, (New York: Russel Sage Foun-

dation, 2003): 217–244.

66. See I. A. Binswanger et al., “Release from Prison-A High Risk

of Death for Former Inmates,” New England Journal of Medi-

cine 356, no. 2 (2007): 157–165.

67. “Government to Double Alcohol Poison Content and Also

Add Benzine,” New York Times, December 29, 1926, at 1.

68. Blum, supra note 47, 158–159.

69. Institute of Medicine, Preventing HIV Infection Among

Injecting Drug Users in High-Risk Countries. An Assessment

of the Evidence (Washington, D.C.: National Academies Press,

2006).

70. R. Heimer, “Can Syringe Exchange Serve as a Conduit to Sub-

stance Abuse Treatment?”Journal of Substance Abuse Treat-

ment15, no. 3 (1998): 183–191.

71. J. T. Brooks, CDC Outbreak Investigations Involving OPANA®

ER 19, presentation at Joint Meeting of the Drug Safety and

Risk Management Advisory Committee and the Anesthetic

and Analgesic Drug Products Advisory Committee, March

13, 2017, available at <https://www.fda.gov/downloads/

AdvisoryCommittees/CommitteesMeetingMaterials/Drugs/

AnestheticAndAnalgesicDrugProductsAdvisoryCommittee/

UCM547237.pdf> (last visited Jan. 23, 2018).

72. S. A. Strathdee and C. Beyrer, “Threading the Needle—How

to Stop the HIV Outbreak in Rural Indiana,” New England

Journal of Medicine373, no. 5 (2015): 397-399.

73. Ind. Code § 16-42-19-18 (2017).

74. Ind. Code §16-41-7.5-5 (2017).

75. Curtis Hill, Indiana Attorney General, Facebook, Oct. 19,

2017, available at <https://www.facebook.com/inattygen-

eral/photos/a.261125104318377.1073741828.2605959543712

92/384654158632137/?type=1&theater> (last visited May 2,

2018).

76. S. Burris et al., “Federalism, Policy Learning, and Local Inno-

vation in Public Health: The Case of the Supervised Injec-

tion Facility,” St. Louis University Law Journal 53 (2008):

1089–1154.

77. U.S. Attorney’s Oce for the District of Vermont, Statement

of the U.S. Attorney’s Oce concerning Proposed Injection

Sites, December 13, 2017, available at <https://www.justice.

gov/usao-vt/pr/statement-us-attorney-s-office-concerning-

proposed-injection-sites> (last visited May 2, 2018).

78. A. R. Bazazi, et al., “Preventing Opiate Overdose Deaths:

Examining Objections to Take-Home Naloxone,”Journal of

Health Care for the Poor and Underserved21, no. 4 (2010):

1108–1113.

79. S. E. Lankenau et al., “Initiation into Prescription Opioid

Misuse Amongst Young Injection Drug Users,”International

Journal of Drug Policy23, no. 1 (2012): 37–44.

80. See FDA, “General Principles for Evaluating the Abuse Deter-

rence of Generic Solid Oral Opioid Drug Products Guidance

for Industry,” November 2017, available at <https://www.fda.

gov/downloads/Drugs/GuidanceComplianceRegulatoryInfor-

mation/Guidances/UCM492172.pdf> (last visited Mary 2,

2018) (“applicant should evaluate its proposed generic drug

to show that it is no less abuse deterrent than the RLD with

respect to all of the potential routes of abuse.”)

81. See W. N. Evans, E. Lieber, and P. Power, “How the Refor-

mulation of OxyContin Ignited the Heroin Epidemic,”Notre

Dame Department of Economics Working Papers, June 1,

2017, available at <https://www3.nd.edu/~elieber/research/

ELP.pdf> (last visited May 2, 2018).

82. See A. Alpert, D. Powell, and R. L. Pacula, “Supply-Side Drug

Policy in the Presence of Substitutes: Evidence from the

Introduction of Abuse-Deterrent Opioids,” National Bureau

of Economic Research, working paper No. 23031, (2017).

83. See e.g., S. Gottlieb, “FDA Takes Important Steps to Stem the

Tide of Opioid Misuse and Abuse,” FDA Voice by Commis-

sioner Scott Gottlieb, M.D., September 28, 2017, available

at <https://blogs.fda.gov/fdavoice/index.php/2017/09/fda-

takes-important-steps-to-stem-the-tide-of-opioid-misuse-

and-abuse> (last visited May 2, 2018).

84. National Alliance for Model State Drug Laws, Compilation of

Prescription Monitoring Program Maps, May 2016, available

at <http://www.namsdl.org/library/CAE654BF-BBEA-211E-

694C755E16C2DD21/> (last visited May 2, 2018) (hereinafter

NAMSDL), at 2.

85. Id., at 18.

86. Y. Bao et al., “Prescription Drug Monitoring Programs are

Associated with Sustained Reductions in Opioid Prescribing

by Physicians,”Health Aairs 35, no. 6 (2016) 1045–1051, at

1048.

87. See T. C. Buchmueller and C. Carey, “The Eect of Prescrip-

tion Drug Monitoring Programs on Opioid Utilization in

Medicare,” National Bureau of Economic Research working

paper, No. w23148, (2017); NAMSDL, supra note 84.

88. CDC, Opioid Overdose: State Successes, available at <https://

www.cdc.gov/drugoverdose/policy/successes.html> (last vis-

ited Jan. 23, 2018).

89. J. Mallatt, “The Eect of Prescription Drug Monitoring Pro-

grams on Opioid Prescriptions and Heroin Crime Rates,”

Purdue University Economics Department Working Paper No

1292, (2017), at 20–21.

342

journal of law, medicine & ethics

SYMPOSIUM

90. Id.

91. G. Li et al., “Prescription Drug Monitoring and Drug Over-

dose Mortality,”Injury Epidemiology1, no. 1 (2014) at 3.

92. S. W. Patrick et al., “Implementation of Prescription Drug

Monitoring Programs Associated with Reductions in Opi-

oid-Related Death Rates,” Health Aairs 35, no. 7 (2016):

1324–1332.

93. M. A. Bachhuber et al., “Medical Cannabis Laws and Opioid

Analgesic Overdose Mortality in the United States, 1999-

2010, ”JAMA Internal Medicine174, no. 10 (2014) 1668–1673,

at 1671.

94. M. D. Livingston et al., “Recreational Cannabis Legalization

and Opioid-Related Deaths in Colorado, 2000–2015,”Ameri-

can Journal of Public Health107, no. 11 (2017) 1827–1829, at

1829.

95. SAMHSA, Results From The 2016 National Survey On Drug

Use And Health: Detailed Tables, September 7, 2017, at Table

5.2A, available at <https://www.samhsa.gov/data/sites/

default/ﬁles/NSDUH-DetTabs-2016/NSDUH-DetTabs-2016.

pdf> (last visited May 3, 2018).

96. S. E. Collins et al., “Seattle’s Law Enforcement Assisted

Diversion (LEAD): Program Effects on Recidivism Out-

comes,” Evaluation and Program Planning 64 (2017) 49-56,

at 53.

97. B. Andraka-Christou, “What Is Treatment for Opioid Addic-

tion in Problem-Solving Courts: A Study of 20 Indiana Drug

and Veterans Courts,” Stanford Journal of Civil Rights and

Civil Liberties 13 (2017) 189–254, at 230.

98. European Monitoring Centre for Drugs and Drug Addiction,

Drug Consumption Rooms: An Overview of Provision and

Evidence (Lisbon: European Monitoring Centre for Drugs

and Drug Addiction, 2015).

99. See A. H. Kral and P. J. Davidson, “Addressing the Nation’s

Opioid Epidemic: Lessons from an Unsanctioned Supervised

Injection Site in the US,” American Journal of Preventive

Medicine 53, no. 6 (2017): 919–922.

100. C. Potier et al., “Supervised Injection Services: What has been

Demonstrated? A Systematic Literature Review,” Drug and

Alcohol Dependence 145 (2014): 48–68, at 63.

101. Id.

102. B. D. Marshall et al., “Reduction in Overdose Mortality after

the Opening of North America’s First Medically Supervised

Safer Injecting Facility: A Retrospective Population-Based

Study,” Lancet 377, no. 9775 (2011) 1429–1437.

103. A. M. Salmon et al., “The Impact of a Supervised Injecting

Facility on Ambulance Call-Outs in Sydney, Australia,” Addic-

tion 105, no. 4 (2010): 676–683.

104. Potier, supra note 100, at 62.

105. Canada (Attorney General) v. PHS Community Services Soci-

ety, [2011] S.C.C. 44 (Can.).

106. D. K. Padgett et al., Housing First: Ending Homelessness,

Transforming Systems, and Changing Lives (Oxford: Oxford

University Press, 2015): at 54.

107. D. K. Padgett et al., “Substance Use Outcomes Among Home-

less Clients with Serious Mental Illness: Comparing Housing

First with Treatment First Programs,” Community Mental

Health Journal 47, no. 2 (2011) 227–232, at 230.

108. M. M. Islam et al., “Deﬁning a Service for People who use

Drugs as ‘Low-Threshold’: What Should be the Crite-

ria?,”International Journal of Drug Policy 24, no. 3 (2013):

220–222.

109. International Harm Reduction Development Program, Open

Society Institute, “Lowering the Threshold: Models of Acces-

sible Methadone and Buprenorphine Treatment,” (2010) at

11-12, available at <https://www.opensocietyfoundations.

org/sites/default/ﬁles/lowering-the-threshold-20100311.pdf>

(last visited May 3, 2018).

110. J. Emmanuelli and J. C. Desenclos, “Harm Reduction Inter-

ventions, Behaviours and Associated Health Outcomes in

France, 1996–2003,” Addiction 100, no. 11 (2005): 1690–700,

at 1696–1699.

111. Hong Kong Legislative Council, “Methadone Treatment Pro-

grammes in Hong Kong and Selected Countries,” RP12/95-

96, March 1996, at 5–10, available at <http://www.legco.

gov.hk/yr97-98/english/sec/library/956rp12.pdf> (last visited

May 3, 2018).

112. Hong Kong Department of Health, “Methadone Clinics,” May

16, 2017, available at http://www.dh.gov.hk/english/main/

main_mc/main_mc.html, (last visited Jan. 23, 2018).

113. See H. N. Plomp et al., “The Amsterdam Methadone Dis-

pensing Circuit: Genesis and Eectiveness of a Public Health

Model for Local Drug Policy,” Addiction 91, no. 5 (1996):

711–721.

114. H. Waal et al., “Open Drug Scenes: Responses of Five Euro-

pean Cities,”BMC Public Health14, no. 1 (2014): 853, at 7.

115. B. Fischer et al., “Heroin‐Assisted Treatment as a Response

to the Public Health Problem of Opiate Dependence,” Euro-

pean Journal of Public Health 12, no. 3 (2012): 228–234, at

229.

116. See P. Blanken et al., “Heroin-Assisted Treatment in the Neth-

erlands: History, Findings, and International Context,”Euro-

pean Neuropsychopharmacology 20, Supplement 2 (2010):

S105–S158.

117 P. Blanken et al., “Craving and Illicit Heroin use Among

Patients in Heroin-Assisted Treatment,” Drug and Alcohol

Dependence120, no. 1 (2012): 74-80, at 77–78.

118. E. Oviedo-Joekes et al., “Diacetylmorphine versus Methadone

for the Treatment of Opioid Addiction,”New England Journal

of Medicine361, no. 8 (2009) 777–786.

119. I. Demaret and E. Quertemont, “Loss of Treatment Ben-

efit when Heroin-Assisted Treatment is Stopped after 12

Months,” Journal of Substance Abuse Treatment 69 (2016):

72–75.

120. See C. Nordt and R. Stohler, “Low-Threshold Methadone

Treatment, Heroin Price, Police Activity and Incidence of

Heroin Use: The Zurich Experience,” International Journal

of Drug Policy20, no. 6 (2009): 497–501.

121. F. Zobel et al., Le Marché des Stupéﬁants dans le Canton de

Vaud. Partie 1 : Les Opioids (Lausanne: Addiction Suisse,

2017) at 38–60, 70-90.

122. T. J. Cicero et al., “Increased use of Heroin as an Initiat-

ing Opioid of Abuse,” Addictive Behaviors (2017): 63–66, at

64–65.

123. See, e.g., R. VerBruggen, “What the Opioid Crisis Can Teach

Us about the War on Drugs,” Law and Liberty, November

1, 2017, available at <http://www.libertylawsite.org/liberty-

forum/what-the-opioid-crisis-can-teach-us-about-the-war-

on-drugs> (last visited May 3, 2018).

124. See J. Whalen and L. Cooper, “Private-Equity Pours Cash into

Opioid-Treatment Sector,” Wall Street Journal, September 2,

2017.

125. See D. Segal, “City of Addict Entrepreneurs,” New York Times,

January 3, 2018; A. J. Harris and S. Walter, “They Thought

They were Going to Rehab. They Ended up in Chicken

Plants,” Reveal News, (October 4, 2017).

126. See R. Duncan, Pubs and Patriots: The Drink Crisis in Brit-

ain during World War One (Liverpool, UK: Liverpool Univer-

sity Press, 2013): 121–149.