Hostname: page-component-848d4c4894-75dct Total loading time: 0 Render date: 2024-05-26T16:48:50.925Z Has data issue: false hasContentIssue false
  • English
  • Français

Waging a War on Drug Users: An Alternative Public Health Vision

Published online by Cambridge University Press:  29 April 2021

Larry Gostin
Get access Rights & Permissions [Opens in a new window]

Extract

This article returns to a war waged for the better part of this century-between the theories of punishment and rehabilitation in impeding the drug epidemic. Today, the terms of the war are recast as supply-side policies based upon law enforcement, destroying crops in source countries, interdiction and increased sentencing, and demand reduction based upon prevention, education and treatment.

The war on drugs has reached a feverish pitch. New policies and statutes have tightened the grip of supply-side policies, with images of battle and hate-mongering which go beyond the vilified drug lords and governments which harbor them, to the middle men, the dealers, and even the users. The in-vogue policies of user accountability and zero tolerance make it acceptable to direct the state's formidable powers at drug dependent persons themselves. Drug dependent persons have profound physical and psychological problems, and are primarily concentrated in poor, minority urban areas.

Type
Article
Information
Law, Medicine and Healthcare , Volume 18 , Issue 4 , Winter 1990 , pp. 385 - 394
Copyright
Copyright © 1990 American Society of Law, Medicine & Ethics

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

The White House has been promoting a range of penalties for persons caught using or possessing even small amounts of drugs. Among them are: suspension of driver's licenses; suspension of state benefits such as student loans, grants and contracts; and criminalization for solicitation without consummating a sale or purchase of drugs. The White House, National Drug Control Strategy 126 (1989).Google Scholar
Feldman, & Biernacki, , “The Ethnography of Needle Sharing Among Intravenous Drug Users and Implications for Public Policies and Intervention Strategies,” in Needle Sharing Among Intravenous Drug Abusers: National and International Perspectives 28 (Battjes, R. & Pickens, R., eds, NIDA Monograph 80 1988).Google Scholar
Id.Google Scholar
See generally, Stryker, , “IV Drug Use and AIDS: Public Policy and Dirty Needles,” 14 J. Health Policy, Politics and Law 719 (1989); Gostin, “A Decade of a Maturing Epidemic: An Assessment and Directions for Future Public Policy,” 16 Amer. J. L. & Med. 1, 23–32 (1990).Google Scholar
Martinson, , “What Works?—Questions and Answers About Prison Reform,” 35 The Public Interest 48 (1974). See Walker, Sense and Nonsense About Crime: A Policy Guide 168 (1985).Google Scholar
The White House, National Drug Control Strategy 17–18 (1989).Google Scholar
Id., at 8.Google Scholar
National Narcotics Intelligence Consumers Commission, The Supply of Drugs to the U.S. Illicit Market from Foreign and Domestic Sources in 1981, at 107 (1983). See Cloud, , “Cocaine, Demand, and Addiction: A Study of the Possible Convergence of Rational Theory and National Policy,” 42 Vanderbilt L. Rev. 725, 734, 751–757.Google Scholar
The White House, National Drug Control Strategy 25 (1989).Google Scholar
PL 100–690, 102 Stat. 4181, Title V, Subtitle C, Chapter 1, amending the U.S. Housing Act of 1937.Google Scholar
Title V, Subtitle G.Google Scholar
Title V, Subtitle D, the Drug-Free Workplace Act of 1988. See White House, National Drug Control Strategy 126–127 (1989).Google Scholar
Title, Subtitle B, the Asset Forfeiture Amendments Act of 1988.Google Scholar
White House, National Drug Control Strategy, 16 – 27.Google Scholar
National Drug Control Strategy: Budget Summary (1990).Google Scholar
Americans with Disabilities Act of 1990, sec. 104.Google Scholar
Joint Explanatory Statement of the Committee of Conference on the Americans with Disabilities Act of 1990, para. 78.Google Scholar
White House, National Drug Control Strategy 25 (1989).Google Scholar
White House, National Drug Control Strategy 16–27, 125–127 (1989).Google Scholar
These women are not necessarily charged with possession, an act which justifies criminal sanctions under current jurisprudential thinking. Rather they are charged in connection with an involuntary physiological activity over which they have no control—i.e., the process by which nourishment is delivered to the fetus in utero. The act of ingesting drugs, to be sure, is a conscious act, but that is not the act for which the woman is charged. Criminalizing a physical status such as being under the influence of drugs or alcohol, or being pregnant, or both, is unconstitutional. See Robinson v. California, 370 U.S. 660 (1962).Google Scholar
Most courts have so far refused to utilize child abuse laws to criminalize fetal abuse. See People v Stewart, No. M508197 (San Diego Mun. Ct., Feb. 26, 1987); People v. Reyes, 75 Cal. App.3d 214, 141 Cal. Rptr. 912 (1977). Some states, however are entering child abuse statutes which explicitly cover fetuses. See, e.g., N.J. section 30, 4C-11, 1981.Google Scholar
See In re Baby X, 97 Mich. App.111, 293 N.W.2d 736 (1980).Google Scholar
See In re Jennifer Johnson.Google Scholar
White House, National Drug Control Strategy (1989).Google Scholar
Anti-Drug Abuse Act of 1988, PL 100–690, 102 Stat. 4181, Title V, Subtitle F.Google Scholar
National Institute on Drug Abuse, National Household Survey on Drug Abuse: Population Estimates 1988 17, 29 (1989).Google Scholar
See Sourcebook of Criminal Justice Statistics, 1989 (Bureau of Justice Statistics, Dept. of Justice); Nadelmann, , “Drug Prohibition in the United States: Costs, Consequences, and Alternatives,” 245 Science 939, 941 (1989).Google ScholarPubMed
Moral condemnation of illicit drugs is highly culturally specific. Americans appear to be far more tolerant of other addictive drugs which have harmful health consequences such as alcohol, nicotine, caffeine, and prescription and over-the-counter pharmaceuticals.Google Scholar
In the early 1970s approximately 44 percent of the drug abuse budget went to activities relating to interdiction, eradication and other law enforcement, with the remainder going to drug treatment, prevention and education. By 1976 the proportion was relatively even with 50.4 percent going to supply side policies. But from the 1980s to the present, the law enforcement proportion of expenditures rose substantially to between 73 and 82 percent, and is estimated at 71 percent for Fiscal Year 1991. See “Needles and the Conscience of a Nation,” 1 Drug Policy Letter 5–6 (1989); White House, National Drug Control Strategy: Budget Summary (1990). In addition, the Anti-Drug Abuse Act of 1986 significantly increased the penalties for drug use. PL 99–570, 100 Stat. 3207.Google Scholar
National Institute on Drug Abuse, National Household Survey on Drug Abuse: Population Estimates 1988 (1989) (The estimated number of Americans using any illegal drug at least once in the last thirty day period dropped from 23 million in 1985 to 14.5 million in 19.88).Google Scholar
Virtually all other measures of “success” in the drug war are disappointing. The number of drug-related emergency hospital admissions increased by 121 percent between 1985 and 1988; felony drug convictions now account for the single largest and fastest growing sector of the federal prison population; three quarters of all robberies and half of all felony assaults committed by young people now involve drug users; and there is a 28 fold increase in hospital admissions involving crack since 1984. William Bennett, Director of the Office of Drug Control Policy, concludes that “a wealth of other, up to date evidence suggests that our drug problem is getting worse, not better.” Introduction, National Drug Control Strategy 1 (1989).Google Scholar
White House, National Drug Control Strategy 10 (1989).Google Scholar
See Cloud, supra note 8, at 736–751, and citations therein.Google Scholar
See, e.g., National Association of State Alcohol and Drug Abuse Directors, Treatment Works: A Review of 15 Years Of Research Findings on Alcohol and Other Drug Abuse Treatment Outcomes (March 1990) [Hereinafter cited as NASADAD Treatment Works]; National Criminal Justice Association, Treatment Options for Drug-Dependent Offenders: A Review of the Literature for State and Local Decisionmakers (U.S. Department of Justice, Bureau of Justice Assistance, Feb. 1990 [Hereinafter cited as NCJA Treatment Options]; Hubbard, R., Marsden, M., Rachal, J., Harwood, H., Cavanaugh, E. & Ginzburg, H., Drug Abuse Treatment: A National Study of Effectiveness (1989) [Hereinafter cited as the TOPS Study); Simpson, “National Treatment System Evaluation Based on the Drug Abuse Reporting Program (DARP) Follow Up Research,” in Drug Abuse Treatment Evaluation: Strategies, Progress and Prospects 139 (Tims, F. & Ludford, J., eds 1984) [Hereinafter cited as NIDA Research Monograph No. 51].Google Scholar
The opportunity costs incurred by zero tolerance policies are enormous. In the Fiscal Year 1991 budget $1,219 million is requested for domestic crime investigations, $700 million for prosecutions, $1,297 million for corrections, and $172 million for intelligence. The real policy question, hardly addressed by government, is what health and social benefits could be achieved if even a small part of these budget requests were transferred to prevention, education, and treatment. White House, National Drug Control Strategy: Budget Summary (1990).Google Scholar
The health effects of drug use include direct physiologic effects of the drug, particularly when an excessive or impure dose is self-administered. See, Isner, , Estes, , Thompson, ,et al, “Acute Cardiac Events Temporarily Related to Cocaine Abuse,” 315 N. Engl. J. Med. 1438 (1986); Isner & Chokshi, “Cocaine and Vasospasm,” 321 N. Engl. J. Med. 1604 (1989). Psychoactive substance abuse among teenagers is also associated with increased suicidal behavior. Crumley, “Substance Abuse and Adolescent Suicidal Behavior,” 263 J. Amer. Med. Assn. 3051 (1990).Google Scholar
National Drug Control Strategy, at 1.Google Scholar
Id., at 2. See Petitti, & Coleman, , “Cocaine and the Risk of Low Birth Weight,” 80 Am. J. Pub. Health 25 (1990).Google ScholarPubMed
See, e.g., Lange, , Snyder, , Lozovsky, , et al, “Geographic Distribution of Human Immunodeficiency Virus Markers in Parenteral Drug Abusers,” 78 Am. J. Pub. Health 443 (1988); Centers for Disease Control, HIV/AIDS: U. S. Cases Reported Through April 1990 (May 1990).Google ScholarPubMed
Mason, , “From the Assistant Secretary of Health,” 263 J. Am. Med. Assn. 494 (1990).Google Scholar
See, e.g., Berke, “Bennett Doubts Value of Drug Education,” N.Y. Times, February 3, 1990, p.1.Google Scholar
One of the most thoughtful arguments for law enforcement as effective deterrence is provided by Wilson, “Against the Legalization of Drugs,” Commentary 21 (Feb. 1990).Google Scholar
Among the questions which arise in setting the parameters of the public health strategy for confronting the drug epidemic are: How is drug use identified and administered by legal and political institutions? (Responsibility for drug abuse programs is variously located in departments of health, public health, mental health, or specialized agencies for drug control.) Why have drug prevention and intervention programs been separate and apart from the mainstream of medical and hospital care? Are therapeutic interventions paid for through medicaid, medicare, and private health insurance? Lack of consistency in structuring, financing and delivery of drug abuse programs through conventional health and public health mechanisms has been an important part of the problem of inadequate services.Google Scholar
What is the logical endpoint for a public health inquiry? Must the public health strategy be designed to lower morbidity and mortality associated with drug use, prevent dependence on drugs without having to show a causal relationship with prolonging or preserving life, or prevent any use of drugs even if only casual or recreational? The broadest public health approach would be to prevent and to treat ill health associated in any way with the use of drugs. Deterrence and punishment of casual use of drugs may, or may not, be justified on other grounds, but it does not come within the parameters of a public health approach.Google Scholar
Compare Nadelmann, , “Drug Prohibition in the United States: Costs, Consequences and Alternatives,” 245 Science 939 (1989), with Wilson, supra note 42.Google ScholarPubMed
See Report of the Presidential Commission on the HIV Epidemic 94–103 (1988); Kerr, “Drug Treatment Shortage Imperils AIDS Control,” New York Times, Oct. 4, 1987, A-16; Marriott, “For Addicts a Long, Scary Wait for Treatment,” New York Times, Jan. 10, 1990, A-1.Google Scholar
NASADAD Treatment Works, at Appendix I.Google Scholar
NASADAD Treatment Works, Appendix I.Google Scholar
See Institute of Medicine, National Academy of Sciences, Confronting AIDS: Directions for Public Health, Health Care, and Research 108–109 (1986); Institute of Medicine, National Academy of Sciences, Confronting AIDS: Update 1988 84 (1988); Report of the Presidential Commission on the HIV Epidemic 94–104 (1988).Google Scholar
See Malcolm, “In Making Drug Strategy No Accord on Treatment,” New York Times, Nov. 19, 1989. A-1.Google Scholar
Brown, , Hickney, , Chung, , Craig, & Jaffe, , “The Functioning of Individuals on a Drug Abuse Treatment Waiting List,” 15 Am. J. Drug, Alcohol Abuse 261 (1989).Google ScholarPubMed
See note 29 supra and accompanying text; Cloud, supra note 8, at 783–84.Google Scholar
Cloud, supra note 8, at 783.Google Scholar
See Kleber, , “Treatment of Drug Dependence: What Works,” 1 International Rev. of Psychiat. 81 (1987).Google Scholar
NCJA Treatment Options, at 1–2 (“Drug experts and criminal justice practitioners almost universally agree that reducing the demand for drugs through prevention and treatment holds the best hope of controlling drug abuse.”); NASADAD Treatment Works, at 13; Senay, “Clinical Implications of Drug Abuse Treatment Outcome Research,” in Drug Abuse Treatment Evaluation: Strategies, Progress, and Prospects 139 (Tims, F. & Ludford, J., eds., 1984) [Hereinafter cited as NIDA Monograph No.51].Google Scholar
See the TOPS study, supra note 34.Google Scholar
The DARP study is reported in numerous publications. The primary source for the DARP study is found in Sells, S. & Simpson, D. (eds.), The Effectiveness of Drug Abuse Treatment: Evaluation of Treatment Outcomes for 1971–1972 DARP Admission Cohort, Vol. IV (1976) [Hereinafter cited as DARP]. See Simpson, in NIDA Monograph No.51, supra note 34; Simpson & Sells, “Effectiveness of Treatment for Drug Abuse: An Overview of the DARP Research Program,” 2 Advances in Alcohol and Substance Abuse 7 (1982).Google Scholar
See, e.g., Simpson, , Joe, , Lehman, & Sells, , “Addiction Careers: Etiology, Treatment and 12-year Follow-up Outcomes,” 16 J. of Drug Issues 107–122 (1986); Burt Associates, Drug Treatment in New York City and Washington, D.C.: Follow-up Studies (NIDA 1977); Kosten, Rogasaville & Kleber, “A 2–5 year Follow-up of Cocaine Use Among Treated Opioid Addicts,” 44 Archives of Gen. Psychiat. 281 (1987).Google Scholar
See NCJA Treatment Options, at 1; U.S. Government General Accounting Office, Controlling Drug Abuse: A Status Report (March 1988).Google Scholar
See Greenburg, & Adler, , “Crime and Addiction: An Empirical Analysis of the Literature,” 3 Contemporary Problems 1920 (1974); Gandassy, R., Drugs and Crime: A Survey and Analysis of the Literature, U.S. Dept. of Justice, National Institute of Justice (1980)Google Scholar
TOPS found that three to five years after leaving treatment, the proportion of clients involved in predatory crimes was one-third to one-half of the pre-treatment level.Google Scholar
DARP found that more than 50% of therapeutic community clients had been arrested before admission, but only 33% were arrested in the first year and 23% in the third year after treatment; out-patient arrest records declined from 87% before admission to 34% one year after treatment and to 22% in the third year.Google Scholar
See Stryker, , “IV Drug Use and AIDS: Public Policy and Dirty Needles,” 14 J. Health Policy, Politics & Law 719 (1989).Google Scholar
National Institute of Drug Abuse, Effectiveness of Drug Abuse Treatment as an AIDS Prevention Strategy (July 1989).Google Scholar
Presidential Commission on the HIV Epidemic (1987). Estimates for drug treatment costs for IV drug users in 1987were $3,000 (out-patient methadone maintenance), $2,300 (out-patient drug free), and $14,600 (non-hospital residential drug free). NASADAD Treatment Works, at 25.Google Scholar
See Fox, , “Financing Health Care for Persons with HIV Infection: Guidelines for State Action,” 16 Am. J. Law & Med. 223 (1990).Google ScholarPubMed
Tabbush, V., The Effectiveness and Efficiency of Publicly Funded Drug Abuse Treatment and Prevention Programs in California: A Benefit Cost Analysis (University of California, Los Angeles, March 1986).Google Scholar
The White House, National Drug Control Strategy 1, 3 (1989).Google Scholar
See Lewis, & Gordon, , “Alcoholism and the General Hospital,” 59 Bull. New York Acad. Med. 181 (1983); Kennedy, “Chemical Dependency: A Treatable Disease,” 71 Ohio St. Med. J. 77 (1985).Google ScholarPubMed
Gottlieg, , Mullen, & McAlister, , “Patient's Substance Abuse and the Primary Care Physician: Patterns and Practice,” 12 Addictive Behaviors 23 (1987).Google Scholar
Gordin, , Givert, , Hawley, & Willoughby, , “Prevalence of the Human Immunodeficiency Virus and Hepatitis B Virus in Unselected Hospital Admissions,” 161 J. Infect. Dis. 14 (1990); CDC, Strategic Planning Meeting, Counseling and Testing for HIV Infection in Acute Care Hospitals, Atlanta, Georgia, April 5–6, 1990.Google Scholar
See Des Jarlais, , Friedman, & Stoneburner, , “HIV Infection and IV Drug Abuse,” 10 Rev. of Infectious Diseases 151 (1988).Google Scholar
See, Lindenbaum, , Carroll, , Daskal, & Kapusnick, , “Patterns of Alcohol and Drug Abuse in an Urban Trauma Center,” 29 Trauma 1654 (1989); Bailey, “Cocaine Detection During Toxicology Screening of a University Medical Center Population,” 25 J. Clinical Toxicology 71 (1987).Google Scholar
Current methadone maintenance regulation has a chilling effect on the ability and willingness of health care providers to offer drug treatment services. Very few providers in the health care system can prescribe methadone because they are not approved to do so. See Department of Health and Human Services, Food and Drug Administration, and the National Institute on Drug Abuse, 21 CFR Part 291, “Methadone Maintenance and Detoxification: Joint Revision of Conditions for Use,” 54 (40) Fed. Reg. 8954 (March 2, 1989).Google Scholar
Centers for Disease Control, “Urine Testing for Drug Use Among Male Arrestees-U.S.,” 38 Morbidity and Mortality Wkly Rpt 780 (1989).Google Scholar
U.S. Department of Justice, Bureau of Justice Statistics, Drug and Crime Facts (1989).Google Scholar
Vigdul, & Stadler, , “Controlling Inmate Drug Use Cut Consumption by Reducing Demand,” Correction Today 96 (June 1989).Google Scholar
Tims, F., Drug Abuse Treatment in Prisons 13 (NIDA Research Report No.ADM 86–1149, 1981, reprinted 1986).Google Scholar
See “Drug Testing Common, Often Random in Institutions,” Probation & Parole Corrections Compendium 12 (Aug. 1986).Google Scholar
See for example the TOPS and DARP studies.Google Scholar
See Hubbard, Collins, Rachal & Cavanaugh, “The Criminal Justice Client in Drug Abuse Treatment,” in NIDA Monograph No.86, at 57; Cook & Weinman, “Treatment Alternatives to Street Crime,” in NIDA Monograph No.86, at 99.Google Scholar
See NCJA Treatment Options, at 9.Google Scholar