The dangers of legalization


Drug overdose deaths in the US hit an all-time high last year, with more than 100,000 deaths in a 12-month period. The death toll has risen nearly 50 percent since the start of the Covid pandemic.

Whenever I write about fatal overdoses, some readers ask: Why don’t we legalize and regulate drugs? They argue that the government is doing more harm by banning drugs and enforcing those prohibitions through police and incarceration. They suggest that legalization and regulation can better minimize the risks.

So today I want to explain why that argument only goes so far — and why many experts are skeptical.

“Drug fighters said we should have a drug-free nation, which was totally fake,” Jonathan Caulkins, a drug policy expert at Carnegie Mellon University, told me. “But it’s completely fake on the other hand to say that we can legalize and all the problems will go away.”

We are in fact living through a crisis that shows the risks of legalization: the opioid epidemic.

The problem started with a legal, regulated drug: prescription painkillers. Pharmaceutical companies promised the drugs would help address pain, a major public health problem. But when the pills became widely available in the 1990s, their use skyrocketed — along with addiction and overdoses. And instead of carefully regulating the drugs, officials consistently gave in to profitable drug companies, which sold opioids to millions of people.

The crisis has evolved from its inception, with street drugs like heroin and fentanyl — and, increasingly, stimulants like cocaine and meth — behind most overdose deaths. But as I wrote earlier in this newsletter, opioid painkillers are at the root: Many of the people who now use heroin or fentanyl started on painkillers. And drug cartels began shipping heroin and fentanyl more aggressively to the US once they saw a promising customer base in the growing number of painkiller users.

Rather than curbing addiction and overdose, US regulators have enabled the current crisis.

America is incapable of legalizing and regulating drugs, some experts said. It tends to oppose regulation and prefer free market solutions over other developed countries. It is one of two countries that allow direct-to-consumer pharmaceutical advertising. The First Amendment protects some commercial expressions, making it difficult to regulate drug marketing.

“The policy has to fit the culture,” Caulkins said. And “we’re not good at having bureaucracies that see their mission as defending the people against the industry.”

The painkiller saga illustrates this. Aggressive marketing and messaging from companies like Purdue Pharma convinced not only doctors but also regulators of the drugs’ safety and effectiveness. That enabled the approval of Purdue’s OxyContin in 1995.

As we now know, those opioids were not as safe or as effective as claimed.

But federal agencies consistently failed to act as painkiller overdose deaths quadrupled, drug policy historian Kathleen Frydl argued:

  • After approving OxyContin with erroneous data, the Food and Drug Administration did not explicitly restrict its use until the 2010s.

  • The Drug Enforcement Administration sets limits on the number of opioids that can be produced, but has raised those limits for years, until mid-2010. At its peak in 2013, the quota for oxycodone was nearly 13 times higher than it was in 1998. we don’t have an opioid crisis,” Frydl told me.

  • The Centers for Disease Control and Prevention did not release guidelines calling for stricter prescription of opioids until 2016, more than two decades after OxyContin’s approval.

A spokeswoman said the FDA is using “a comprehensive, science-based approach” to limit the abuse of painkillers and expand addiction treatment. An official said the DEA is changing its quota-setting process with advances in data and information technology. The CDC did not respond to a request for comment.

But federal regulators have done too little, Frydl said: “None of these agencies have been asked to conduct any kind of introspection and accountability process so that we can have confidence in their decision-making going forward.”

Experts broadly agree that the US government has failed to properly regulate opioids. But that doesn’t justify the prohibition and criminalization of drugs, argued Kassandra Frederique, the executive director of the Drug Policy Alliance, an advocacy group. “That’s a false binary number,” she told me.

There are many options between commercialized legalization and criminalized prohibition, experts say. In 2001, Portugal decriminalized the personal possession of all drugs, but not their production and distribution. Canada bans drugs but allows facilities where trained personnel supervise drug users and can even provide resources to use.

Different drugs may also warrant different approaches. Marijuana is much safer than cocaine and heroin, and laws can reflect that.

And while the opioid crisis has highlighted the dangers of legalization, it has also exposed the risks of prohibition. People who die from a fentanyl overdose often think they are using heroin, cocaine, or another drug, without knowing that it is fentanyl or is contaminated with fentanyl. That is a problem of unregulated supply.

No drug policy is perfect, and they all involve compromises. “We have freedom, fun, health, crime and public safety,” Stanford drug policy expert Keith Humphreys told me. “You can use one and two — maybe even three with different drugs — but you can’t get rid of them all. You have to pay the bagpiper somewhere.”

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