The Dangers of Legalization – New York Times

Deaths from drug overdoses in the United States reached their highest point ever recorded last year, with more than 100,000 deaths over 12 months. Deaths have risen by nearly 50 percent since the start of the Covid pandemic.

Every time I write about fatal overdoses, some readers ask: Why not legalize and regulate drugs? They claim the government is causing more harm by banning drugs and enforcing those bans through police and jail. They suggest that legalization and regulation could better minimize the risks involved.

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 that was completely fake,” said Jonathan Caulkins, a drug policy expert at Carnegie Mellon University. “But it is completely false on the other hand to say that we can legalize and all the problems will disappear.”

In fact, we are living through a crisis that shows the risks of legalization: the opioid epidemic.

The problem began with a legal, regulated drug: prescription painkillers. Pharmaceutical companies promised that the drugs would help solve pain, a major public health problem. But as 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 profit-oriented drug companies that sold opioids to millions of people.

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

Instead of limiting addiction and overdoses, U.S. regulators activated the current crisis.

America is ill-equipped to legalize and regulate drugs, some experts said. It tends to resist regulation and favor free market solutions more than other developed nations. It is one of two countries that allow drug ads directly to consumers. The first amendment protects some commercial speech, making drug marketing difficult to regulate.

“Politics has to match the culture,” Caulkins said. And “we are not good at having bureaucracies that see their mission as defending the people against the industry.”

Pain relief saga illustrates this. Aggressive marketing and messages from companies like Purdue Pharma convinced not only doctors but also regulators about the safety and effectiveness of drugs. This enabled the approval of Purdues OxyContin in 1995.

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

But federal agencies consistently failed to act when the death toll from an overdose of painkillers quadrupled, drug policy historian Kathleen Frydl claimed:

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

  • The Drug Enforcement Administration sets limits on how many opioids can be produced, but it increased those limits for years until the mid-2010s. The quota for oxycodone was almost 13 times higher at its highest in 2013 compared to 1998. Without higher quotas, “we would not have an opioid crisis,” Frydl told me.

  • The Centers for Disease Control and Prevention did not issue guidelines calling for stricter prescription of opioids before 2016, more than two decades after OxyContin was approved.

A spokeswoman said the FDA uses “a comprehensive, science-based approach” to curb painkillers and expand addiction services. An official said the DEA is changing its process of setting quotas 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 carry out any kind of introspection and accountability process so we could be confident in their decision-making going forward.”

Experts broadly agree that the US government failed to regulate opioids properly. But that does not justify the ban and criminalization of drugs, claimed Kassandra Frederique, the executive director of the Drug Policy Alliance, an advocacy group. “It’s a fake binary,” she told me.

There are many options between commercialized legalization and criminalized bans, experts said. Portugal decriminalized the personal possession of all substances in 2001, but not the manufacture and distribution. Canada bans drugs, but allows for facilities where trained personnel monitor drug users and can even supply drugs for use.

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

And while the opioid crisis has shown the dangers of legalization, it has also revealed the risk of bans. People who die from an overdose of fentanyl often think they are consuming heroin, cocaine or another drug without knowing that it is actually fentanyl or contaminated with fentanyl. It’s a problem with unregulated supply.

No drug policy is perfect and everyone involves trade-offs. “We have freedom, pleasure, health, crime and public safety,” Stanford drug policy expert Keith Humphreys has told me. “You can push on one and two of them – maybe even three with different drugs – but you can not get rid of them all. You have to pay the pipe somewhere.”


Sunday’s question: Should Finland and Sweden join NATO?

Both are strong democracies that would strengthen the Alliance’s military, Foreign Policy’s Elisabeth Braw argue. Sara Bjerg Moller notes the risksincluding that NATO should defend Finland’s 800-mile border with Russia if Moscow reacted aggressively.

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