Policy Analysis
June 29, 2020 | Number 894
Kicking the Habit
The Opioid Crisis and America’s Addiction to Prohibition
By Josh Bowers and Daniel Abrahamson
T
EX EC U T I V E S UMMARY
here is no single cause of America’s opioid
crisis, but overprescription of opioids has
undoubtedly contributed. The federal
government has responded predictably,
criminally prosecuting doctors who pre-
scribe opioids to the drug dependent. The approach may
seem sensible, but it is as wrongheaded as our century-old
drug war. Law enforcement’s recent push for punishment
might succeed in limiting opioid prescriptions but only at
the cost of driving drug-dependent individuals into more
dangerous criminal markets and toward adulterated street
heroin and fentanyl. For individuals addicted to opioids
or suffering from chronic pain, a war on drugs has never
been a prescription for improving wellness. This dominant
abstinence-based policy model is grounded in the logic
of prohibition, and it depends not upon healing but upon
shame, isolation, prosecution, and penalty. The better
model is “harm reduction,” grounded in connection and
Josh Bowers is the F. D. G. Ribble Professor of Law at the University of Virginia School of Law. Daniel Abrahamson founded the Office of Legal
Affairs of the Drug Policy Alliance.
care, reason and rights, and human dignity and worth.
International and historical public health efforts
have demonstrated that one of the best ways to con-
front epidemic drug use is addiction maintenance—that
is, establishing medically supervised clinics to provide
pharmaceutical-grade narcotics (often free of charge) in
amounts calibrated to maintain the social and physical
well-being of the drug dependent. In this policy analysis,
we survey these international and historical efforts. We
look to our own past to examine the roots of the modern
American drug war and describe contemporary reforms
both within and beyond the opioid crisis. We explain
how meaningful change is likeliest to occur: from the
ground up, as a product of underground experimentation
initiated by and within the most-affected communities.
Finally, we offer our own public health prescription: a set
of pragmatic harm-reduction responses to prohibition
and its counterproductive and often deadly effects.
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INTRODUCTION
The war on For a century, the United States has
drugs exposes fought a war on drugs.1 Some strategies have
changed over time, of course. The state has
a particular diverted manpower from opium to other
drawback substances, including heroin, marijuana, hal-
of law, legal lucinogens, powder and crack cocaine, and
institutions, prescription and nonprescription opioids.
Likewise, police, prosecutors, and politicians
and the legal have supplemented conventional statutory ap-
turn of mind: proaches, such as the Harrison Narcotics Act,
all have a with more powerful policies, including the
Controlled Substances Act and other state-law
tendency corollaries.2 Other strategies have remained
toward constant. For instance, law enforcement has
rigid rules, kept its sights trained throughout the drug war
intimidation, on low-income and minority neighborhoods.
More to the point, the goal of the drug
and aversion war—punitive prohibition—has never shifted.
to risk and With the exceptions of alcohol, tobacco, and,
experimen­ to a narrow extent, marijuana, recreational
”
drugs are still forbidden, and users are still
tation. prosecuted. The state has consistently prohib-
ited much more, even prosecuting the activ-
ists and medical professionals who would help
problematic drug users through unconven-
tional but promising means. It has defunded
studies searching for innovative approaches
to solve the problems arising from drug use
and abuse, and it has undermined local reform
efforts. The state’s objective is a drug-free
society—full stop.
An entire study could be devoted to unpack-
ing the reasons for the drug war’s obsession
with prohibition. It is enough, however, to flag
three principal influences. First, the drug war’s
preoccupation with prohibition lies partially
in America’s history and worldview.3 Second,
and to a greater degree, punitive prohibition is
rooted in racism. Third, and more subtle, the
logic of punitive prohibition follows a fixation
with rules. Prohibition is what happens when
public policy is left to be shaped from the top
down. The war on drugs exposes a particular
drawback of law, legal institutions, and the le-
gal turn of mind: all have a tendency toward
rigid rules, intimidation, and aversion to risk
and experimentation.4
While some legal regimes and bureaucrat-
ic frameworks have great value, many tend
to fall prey to limited perspectives that not
only make for misguided public policy but
also complicate course correction. Simple
answers are preferred to the pursuit of nu-
anced solutions. On this reasoning, prohi-
bition takes on a certain elegance, captured
by the directive, “Just Say No.”5 One might
dismiss this as no more than an anodyne pub-
lic service message. But those three words
succinctly describe much more: a century
of a state-sponsored war on drugs that has
proven to be a public health failure.
Yet now, in the face of a brutal opioid cri-
sis, there is a modicum of energy for genu-
ine drug policy reform—for a shift from the
prevailing just-say-no mentality. The shift is
welcome, of course. Still, it is hard to get too
excited about a newfound enthusiasm that
is, in itself, seemingly grounded in racial bias.
White America has opened its eyes to the evils
of the drug war at the very moment that the
opioid epidemic has begun to plague rural and
predominantly white communities.6 We are
witnessing an example of interest convergence
theory in action, which posits that white
America will only see fit to help black America
if white Americans are forced to face the same
challenges as black Americans.7 Simply put,
there are limits to a polity’s moral imagination
when the problem exists “over there” only.
We would rather see reform grounded
in a genuine commitment to civil, constitu-
tional, and human rights—in a commitment to
the liberty, equality, dignity, and interests of all
drug users and their circles of social support. All
the same, we are pragmatic drug policy reform-
ers. And, because lives do in fact hang in the
balance, we’ll take what we can get—including
any opportunity to shift the narrative, however
slightly, from that of a criminal justice menace
to a public health crisis.
In this policy analysis, we address the histori-
cal and contemporary approaches to addiction
treatment and policy. First, we recall a time,
before our centurylong war on drugs, when
America responded to an opioid epidemic

not with prohibition but with an intervention
known as addiction maintenance—that is, pro-
viding drugs in amounts calibrated to main-
tain the well-being of dependent persons. We
examine what changed and how we came to
abandon that harm-reduction model.8 Next,
we explore contemporary international ef-
forts to return to an old-style, harm-reduction
approach. In the process, we explore some of
the advantages of addiction maintenance in its
modern form. Then we discuss how, when, and
why addiction maintenance works and evalu-
ate what stands in the way of addiction main-
tenance. Finally, we survey a host of domestic
reform efforts and provide a framework for
understanding when, how, and to what extent
these endeavors have succeeded.
As these reform efforts reveal, addiction
maintenance is only one front in harm re-
duction. Indeed, additional reforms neces-
sarily must precede addiction maintenance
because the practice is appropriate only after
the failure of other much-needed therapeutic
interventions—such as medication-assisted
treatment with methadone, buprenorphine, or
suboxone, none of which are uniformly avail-
able at present. We conclude with a six-point
plan, designed to address the current opioid
crisis in a manner that moves away from pro-
hibition and toward harm reduction.
EARLY ADDICTION
MAINTENANCE EFFORTS
Throughout the 19th century, drugs re-
mained mostly unregulated.9 Users purchased
products through mail-order catalogs and at lo-
cal pharmacies.10 Sears, Roebuck and Company
sold syringes with doses of injectable cocaine
for one or two dollars.11 Opiates were packaged
into serums with delightfully alliterative names,
like “Mrs. Winslow’s Soothing Syrup.”12 And,
critically, this legal market was substantially
safer than the modern-day criminal market:
Before the ban, almost all opiate users
would buy a mild form of the drug at
their corner store for a small price. A few
3
“
did become addicts, and that meant
their lives were depleted, in the same By the turn of
way that an alcoholic’s life is depleted the century,
today. . . . But virtually none of them
committed crimes to get their drug, or
the push for
became wildly out of control, or lost prohibition
their jobs. Then the legal routes to the had begun—
drug were cut off—and all the problems
in part as
we associate with drug addiction began:
criminality, prostitution, violence.13 a means
to control
Medical professionals of the era con- minority
sidered opioid abuse a public health prob-
commu­
”
lem.14 The idea of a drug war would likely
have seemed foreign to them.15 To the con- nities.
trary, doctors regarded persons suffering
from drug addiction as patients deserving of
treatment.16 Even for the profoundly depen-
dent, the medical profession provided a form
of palliative care—often termed addiction
maintenance—by which cravings were treat-
ed by access to the craved substance.17
By the turn of the century, the push for
prohibition had begun—in part as a means to
control minority communities. Politicians,
pastors, and the press drew specious links be-
tween drug abuse and the exploitation of white
women.18 These early drug warriors pushed
for aggressive state responses, playing on ra-
cial stereotypes.19 African Americans were
singled out for especially harsh treatment.
Unsubstantiated claims linked black drug
abuse to “many of the horrible crimes com-
mitted in the Southern States,” thus providing
another convenient excuse for all varieties of
Jim Crow persecution and oppression, includ-
ing continued disenfranchisement.20 Notably,
Harry Anslinger—the first commissioner
of the Federal Bureau of Narcotics—was an
unapol­ogetic bigot who waged a ruthless (and
almost bizarrely personal and obsessive) cam-
paign against African American jazz singer and
drug user Billie Holiday.21
Then, as now, whites used drugs at rates
comparable to—and perhaps even higher
than—other populations.22 Indeed, historian
David Courtwright concludes that “southern
whites [of the era] had the highest addiction
4
“
rate of any regional racial group in the country,
Attitudes and perhaps one of the highest in the world.”23
about But, among more-privileged populations, it
seems that drug abuse was still considered no
recreational worse than an unfortunate but tolerable vice.24
drugs were In other words, attitudes about recreational
shaped by drugs were shaped by caste and class—by the
caste and desire to prevent the “wrong” type from asso-
ciating with the “right” type. Unsurprisingly,
class—by then, the first shots of the drug war were,
the desire like most shots since, targeted strikes against
to prevent poorer and darker communities.25
What did early regulation look like? In
the ‘wrong’ 1914, Congress passed the Harrison Narcotics
type from Tax Act, which taxed, but did not wholly
associating prohibit, the production and distribution of
cocaine and opioids.26 In this way, doctors
with the
could still prescribe narcotics, and many con-
‘right’
”
tinued to do so to treat dependence. In fact,
type. several municipalities ran public addiction
maintenance clinics, including opioid clinics
in New York City, Los Angeles, New Orleans,
Shreveport, Atlanta, New Haven, Albany, and
Jacksonville.27 These dispensaries operated
aboveground, granting prescriptions for hard
drugs to users. Health officials not only treat-
ed but also tracked patients.28 Participants
were required to register with the state, which
minimized the risk of diversion of the drugs
into criminal markets and provided a data
source to measure success empirically—even
though such studies were apparently relatively
uncommon at the time.29
It seems that the efforts were largely suc-
cessful. If nothing else, they initially enjoyed
widespread support from city councils, boards
of health, and even local law enforcement.30
According to one city official in Los Angeles,
the city’s maintenance clinic “did more
good . . . in one day than all the prosecutions in
one month.”31 But the legal landscape was shift-
ing. “Law enforcement officials soon began to
move to curtail the medical profession’s free-
dom to prescribe narcotics in the treatment of
addicts.”32 Initially, law enforcement focused
on the so-called script doctors who liberally
dispensed opioids to patients. Federal prosecu-
tors argued that addiction maintenance failed
to qualify under the Harrison Act’s allowance
for good faith prescriptions in the course of
professional practice.33 And the Supreme Court
would come to agree. First, in Webb v. United
States, the court held that a doctor was prohib-
ited from prescribing to a habitual user a dose
of morphine if the doctor’s intention was not
to cure the habit but to keep the patient “com-
fortable by maintaining his customary use.”34
Subsequently, in Jin Fuey Moy v. United States,
the court reaffirmed this position, observing
that a prescription could not “cater to the appe-
tite . . . of one addicted to the use of the drug.”35
Finally, in United States v. Behrman, the court
held that a violation of the Harrison Act did
not turn on a doctor’s subjective motivation,36
meaning that “prescribing drugs for an addict
was a crime regardless of the physician’s in-
tent in the matter.”37 Somewhat surprisingly,
however, in Linder v. United States, the court en-
dorsed a different approach:
[Addicts] . . . are diseased, and proper
subjects for such treatment, and we can-
not possibly conclude that a physician
acted improperly or unwisely or for oth-
er than medical purposes solely because
he has dispensed to one of them, in the
ordinary course and in good faith . . .
morphine or cocaine for relief of condi-
tions incident to addiction.38
But Linder would prove to be sui generis—an
exception to the dominant rule, applied to a case
where the doctor had prescribed only a rela-
tively small dose.39 The Harrison Act had set
the stage for punitive prohibition. And, with
the passage of the Eighteenth Amendment,
the logic of prohibition became a constitu-
tional mandate, shifting both legal and cultural
norms.40 Enforcement of the Harrison Act
“stigmatized medication-assisted treatment as
well as the patients who received such care.”41
In short order, the practice of addiction main-
tenance disappeared.42 By 1925, the last clinic
had closed.43
With the repeal of the Eighteenth
Amendment in 1933, there was, perhaps,

some hope that the state might soften its
approach to prohibition writ large.44 To the
contrary, federal officials, now relieved of
alcohol-interdiction duties, were free to de-
vote even more time and criminal justice en-
ergy to narcotics.45
The government had its reasons, of course,
to worry about unscrupulous physicians who
indiscriminately dispensed opioids and other
drugs.46 There is a legitimate concern about
the diversion of prescription drugs into crimi-
nal markets.47 And the line is fine between
treating and creating drug dependency. Thus
the Harrison Act replaced the physician’s tools
with the threats of the criminal justice system.
“The unfortunate consequence of this policy
was to drive from the field of treatment not
only the unethical ‘script doctor’ but the legit­
imate doctor as well.”48
INTERNATIONAL PUBLIC
HEALTH EFFORTS
Beyond our borders, several cities and coun-
tries have, for some time, successfully provid-
ed free, uncontaminated, comparatively safe
narcotics to persons addicted to controlled
substances.49 Among those closest to home,
Vancouver has witnessed a grassroots campaign
undertaken by drug users—the Vancouver Area
Network of Drug Users (VANDU)—to support
and care for each other.50 VANDU initially
estab­lished an underground, supervised injec-
tion facility: a sterile, medically staffed environ-
ment to which recreational users could bring
drugs to consume in relative safety.51 And, as
VANDU’s successes became apparent, it took
its efforts mainstream.52 It pressured the mu-
nicipality to declare a public health emergency
and won the support of the city’s conservative
mayor, Philip Owen.53 Then Vancouver opened
Insite, the first licit drug-consumption safe site
in North America.54 Drug users who brought
their drugs to Insite were made safe in three
ways: they were insulated from arrest and pros-
ecution, they were given sterile injection equip-
ment and other drug-use paraphernalia, and
they were supervised by medical professionals
5
“
prepared to administer naloxone and oxygen as
needed to reverse overdoses.55 Beyond our
The results were transformative. To date, borders,
Insite claims to have reversed nearly 5,000
overdoses without suffering a single overdose
several cities
death.56 More than that, clean needles have and countries
kept injectable-drug users from transmitting have, for
communicable diseases, such as HIV and
some time,
hepatitis.57 And, as participants have moved
their habits—and needles—indoors, qual- successfully
ity of life in Vancouver’s formerly derelict provided free,
Downtown Eastside has improved dramati- uncontam­
cally.58 Many heavy drug users have reduced or
even ceased their drug use and have secured
inated,
stable employment and housing.59 Notably, comparatively
between 1996 and 2006, life expectancy in the safe narcotics
Downtown Eastside rose by several years.60
to persons
These results are in keeping with recent re-
search tracing the roots of addiction.61 The addicted to
current phrase is, “The opposite of addiction controlled
”
is connection,” and by normalizing but still substances.
discouraging drug use, these international
experiments have served to reconnect depen-
dent drug-users with their communities.62
But, ultimately, the safe site was not enough
to effectively serve the needs of drug-affected
Vancouver communities. Thus the city opened
the Providence Crosstown Clinic, which op-
erates on a genuine addiction maintenance
model.63 At Crosstown, staff provide addicts
with pharmaceutical-grade heroin in a super-
vised setting with care sometimes paid for by
Health Canada (the country’s national public
health care provider).64 The program reaches
the very individuals that criminal legal systems
label recidivists.65 Indeed, many participants
have previously cycled through Canadian jails
and prisons—to no avail.66 Crosstown makes
heroin available to patients for whom all oth-
er interventions have failed, including even
medication-assisted therapy with methadone,
buprenorphine, or suboxone.67 Out of options,
Vancouver took the only viable step left: the city
turned to free heroin, turning run-of-the-mill
repeat offenders into patients.68
The aim is palliative care.69 First, harm is
reduced to the opioid-dependent person by
providing clean needles in a clinical setting
6
“
and drugs of predictable quality, unadulter-
The idea is ated by more toxic substances such as fentan-
to transform yl.70 Second, harm is reduced to the public by
minimizing the incentives of drug seekers to
the heavy commit property and violent crimes to feed
drug user into drug habits.71 The operating philosophy is
a functional not American-style prohibition or use reduc-
tion.72 To the contrary, there is little expecta-
and socially
tion that habitual users will even taper their
productive usage in the near future.73 The idea is to trans-
individual form the heavy drug user into a functional
who need and socially productive individual who need
not spend every waking moment evading law
not spend enforcement to furtively score and use illicit
every waking substances of unknown purity, potency, and
moment provenance.74 To that end, the clinic also offers
evading law other supportive services, such as social work-
ers on staff and job and housing programs, all
enforcement designed to help participants maintain social
to furtively connections and construct lives of meaning,
score and even as participants remain drug dependent.75
But it should be noted that opportunities are
use illicit
”
likewise available to participants to transition
substances. to more conventional treatment, including
abstinence-based programs, meaning that par-
ticipants may ultimately reduce use, although
that is not the core objective.
Vancouver’s efforts were built upon those
of mainly European countries that had previ-
ously fashioned innovative harm reduction
interventions, including the establishment
of addiction maintenance programs. For in-
stance, dating back to the 1980s, the city of
Liverpool, England, experimented with pre-
scription “heroin reefers”—cigarettes soaked
in heroin.76 Although few data were developed
or kept, a police study showed that crimi-
nal convictions for drug-addicted persons
dropped from 6.88 convictions per individual
in the 18 months prior to enrollment to only
0.44 convictions in the 18 months thereafter.77
Likewise, Switzerland opened addiction
maintenance clinics in the 1990s.78 Today, there
are 23 such clinics treating more than 2,000
heroin-dependent persons.79 Predictably, the
country has enjoyed a marked decline in com-
municable diseases as well as drops in inci-
dences of crimes associated with drug use.80
And the percentage of participants maintain-
ing full-time employment has tripled, while
dependence upon welfare has declined dra-
matically.81 In turn, harm reduction efforts
have grown in popularity. In 2008, 68 percent
of Swiss voters approved a measure to incor-
porate addiction maintenance into the coun-
try’s official health policy.82
Portugal has implemented even more am-
bitious harm reduction measures and has
achieved even greater success. By the end of
the 20th century, a staggering 1 percent of
Portugal’s population was hooked on heroin.83
In 2001, the government decriminalized pos-
session and use (but not sale) of all drugs and
invested heavily in treatment and social ser-
vices.84 Portugal’s new philosophy was to treat
drug users as patients, not criminals—to keep
them “inside the health system, not outside of
it.”85 And its efforts have worked. Portuguese
rates of drug use remain relatively high,
but rates of hard drug use have declined,
with heroin use declining by an astound-
ing two-thirds from its peak.86 More to the
point, drug-related HIV infections plummeted
more than 90 percent and overdose deaths
fell 85 percent—to the lowest death rate in
Western Europe and one-fiftieth the rate in
the United States.87 Portugal may have ad-
opted radical policies of decriminalization and
harm reduction, but it is not tolerant of drugs;
rather, it is intolerant of death and all the other
unintended consequences of prohibition. As
Nicholas Kristof remarked, “Portugal may be
winning the war on drugs—by ending it.”88
HOW, WHEN, AND
WHY ADDICTION
MAINTENANCE WORKS
Why have these international efforts proved
so successful? First, they are finely targeted to
the challenges facing dependent drug users
and are designed deliberately to help those
users at critical moments. Heroin and other
opioids are prescribed only after the failure
of other efforts—whether therapeutic inter-
ventions or criminal enforcement.89 Second,

addiction maintenance promotes safety: the
drugs must be consumed onsite—in comfort-
able but sterile settings with well-equipped
medical personnel on hand, thereby minimiz-
ing risks of death and the diversion of opioids
into criminal markets.90 Third, and perhaps
most importantly, these efforts are oriented
against the logic of prohibition.91
The goal of addiction maintenance is harm
reduction—a reduction in the harms that flow
from illicit drug markets, infectious diseases,
overdoses, and criminal enforcement and
punishment.92 And, because addiction main-
tenance is an intervention of last resort (not
unlike “heroic” measures in medicine93), it
promises to reduce harm for the most depen-
dent users.94 For those for whom nothing has
worked, addiction maintenance provides the
possibility to stay off streets, with families, in
jobs, and out of emergency rooms, hospitals,
jails, and mortuaries.95
And, even though addiction maintenance
is intended only to provide palliative care,
there is some evidence that—under the right
circumstances—it may reduce overall drug
use.96 This would seem counterintuitive, of
course. How could it be that free access to
opioids might help dependent users get clean?
Appreciate, first, the context in which drugs
are most often abused. The environmental
theory of addiction insists that pharmacology
is only secondarily related to dependence.97
Chemicals have physiological effects to be sure,
but plenty of drug users maintain relative free
will to ingest without becoming dependent.98
Indeed, the vast majority of people who try
even hard drugs avoid dependence.99 A small
subset develop powerful compulsions, but the
question of when and whether these compul-
sions take hold may depend more on an indi-
vidual’s life circumstances than the chemical
composition of the drug.100
This is the environmental theory of
addiction;101 consider a series of animal stud-
ies.102 In an early set of studies, rats were
placed alone in cages with food, water, and co-
caine drips.103 In short order, most rats aban-
doned their food and water and fixated on the
7
“
cocaine, consuming copious amounts until
death.104 At first blush, the studies seemed The goal of
to demonstrate the intensity of chemical addiction
hooks.105 But, decades later, social scientists
replicated the studies with a clever twist:
maintenance
several rats were housed together in nurtur- is harm
ing environments, not in isolation in sterile reduction—a
cages, and they were given ample opportuni-
reduction in
ties to interact and socialize.106 These rats still
exper­imented with the cocaine, but not to ex- the harms
cess and less so over time.107 Consider also the that flow
many heroin-dependent American soldiers from illicit
fighting in Vietnam who readily gave up sub-
stance abuse once they returned home safe-
drug markets,
ly.108 These men self-medicated against the infectious
horrors of war but were able to alter their be- diseases,
havior once the context changed.109 Like the
overdoses,
drug-dependent soldiers in Vietnam, the first
set of rats was self-medicating against pain and and criminal
loneliness. The second set enjoyed meaningful enforcement
lives, and those rats had less desire or compul- and punish­
”
sion to fill the void with self-harm.110
Now consider the life of a drug user under
ment.
the framework of prohibition. The threat of
criminal repercussions drives users under-
ground in search of drugs of unknown qual-
ity and provenance while isolating them from
the resources and support systems needed
to address addiction. According to Gabor
Maté, a doctor specializing in childhood trau-
ma and addiction,
If I had to design a system that was in-
tended to keep people addicted, I’d de-
sign exactly the system that we have right
now. . . . I’d attack people and ostracize
them. . . . The more you stress people, the
more they’re going to use. The more you
de-stress people, the less they are going
to use. So to create a system where you
ostracize and marginalize and crimi-
nalize people, and force them to live in
poverty with disease, you are basically
guaranteeing they will stay at it.111
Maté has been criticized for overstating
the influence of isolation and trauma while
underplaying pharmacological effects.112 But
8
“
the Vancouver and European experiences
The suggest strongly that the isolation and trau-
conclusion is ma created by prohibition cause substantial
harm. When these international municipali-
inescapable. ties and governments abandoned prohibition
Addiction and focused instead on eliminating barriers
need not be to drug acquisition, drug users were better
a terminal able to focus on self-improvement. Their
”
ties to family, community, education, and
condition. employment were strengthened (or at least
left intact). Thus, for instance, a Lancet study
found that the majority of participants in
Switzerland’s addiction maintenance clin-
ics were able to pivot eventually to metha-
done or abstinence programs.113 Moreover, as
Vancouver’s Downtown Eastside discovered,
fewer people are likely to become drug de-
pendent in the first instance once a neighbor-
hood’s quality of life improves.
The conclusion is inescapable. Addiction
need not be a terminal condition. And, for the
most dependent, the most promising treat-
ment may just be to feed the habit.114 If noth-
ing else, addiction maintenance facilitates the
process known as aging out.115 Heavy drug
abuse and other risk-taking behaviors con-
centrate in populations of young adult men.116
As individuals mature, they tend to use less.117
The more stable people’s lives are, the likelier
they are to age out more quickly.118 The take-
away is obvious: sometimes the best approach
is patience—to wait out drug use, misuse,
abuse, or dependence—and, in the interim, to
minimize the damage done to the individual
and his social network.
This is what addiction maintenance pro-
grams are designed to achieve. They try to keep
the hopeless addict alive, relatively healthy, and
socially integrated long enough to navigate,
eventually, to the other side of the age divide—to
steer clear of the most destructive and deadly
byproducts of punitive prohibition.119
LEGAL ROADBLOCKS
But isn’t the current opioid crisis a prod-
uct of a prescription market and model? Drug
manufacturers pushed opioids on doctors.120
And “pill mills”—the pharmacies and phy-
sicians that overprescribed and overdis-
pensed medications—pushed opioids on
patients.121 In short, America already sub-
scribed to a drug-licensing regime, and it led
to lives ruined or ended prematurely, families
and communities splintered, and support
networks broken down.122 If prescriptions
and addiction maintenance are so promising,
what went so wrong?
The short answer is that recent American
experience cannot be understood as addic-
tion maintenance. Under addiction mainte-
nance, people who abuse opioids and who
have failed to respond to other kinds of treat-
ment, including methadone maintenance,
would be admitted into medically supervised
clinics and provided pharmaceutical-grade
narcotics in amounts calibrated to reduce the
harms of obtaining and using drugs from il-
licit markets while maintaining social and
physical well-being.123 The American ap-
proach is, in fact, the opposite of addiction
maintenance. Our prevailing licensing regime
permits doctors to prescribe opioids only un-
til patients become dependent.124 A recently
passed Michigan statute captures this, defin-
ing good-faith practice as “the prescribing or
dispensing of a controlled substance . . . in the
regular course of professional treatment . . .
for a pathology or condition other than that
individual’s physical or psychological dependence
upon or addiction to a controlled substance [ital-
ics added].”125 Once patients get hooked,
patient-centered care is displaced and the
protocols of mandatory tapering and forced
cessation imposed, backed by threat of crimi-
nal penalties.126
Use-reduction logic might seem simple
enough: fewer prescriptions for pills should
correspond with less use by the drug depen-
dent. And, indeed, prescription opioid use
has dropped dramatically in recent years.127
Prescriptions peaked in 2012 and have fall-
en since.128 In 2017 alone, they plummeted
10 percent, the sharpest decline in a quarter cen-
tury.129 But current enforcement efforts have
succeeded only in minimizing prescription

drug use and diverting prescription drugs and
prescription drug users into illicit markets.130
Put simply, a downtick in prescription drug
availability translates into an uptick in de-
mand for street-manufactured drugs. Patients
become criminal buyers, the price of heroin
undercuts illicitly diverted pharmaceuticals,
syringes replace pills, and dealers cut drugs
with fentanyl and other dangerous chemicals.
According to Johann Hari:
If I am an American who has developed
an Oxycontin addiction, as soon as my
doctor realizes I’m an addict, she has to
cut me off. She is allowed to prescribe
to treat only my physical pain—not
my addiction. . . . That’s when, in des-
peration, I might hold up a pharmacy
with a gun, or go and buy unlabeled pills
from street dealers. Most of the prob-
lems attributed to prescription drugs in
the United States . . . begin here, when
the legal, regulated route to the drug is
terminated. . . . The prescription drug
crisis doesn’t discredit legalization—it
shows the need for it.131
The data bear out Hari’s claims. As opioid
prescriptions have plummeted, opioid-linked
deaths have skyrocketed.132 Street trade pro-
duces unreliable doses that fluctuate in quality
and strength. One dealer may find it profitable
to dilute a batch and sell more. Another dealer
may cut costs by adding cheap fentanyl—an
extremely potent and highly lethal synthetic
opioid for which even seasoned opioid users
may lack tolerance. More to the point, dealers
may not even be aware of the purity and po-
tency of their own unlabeled and unregulated
goods. And comparatively milder prescription
drugs, which were previously more accessible
on pharmacy shelves, are often just too expen-
sive and bulky for street-level sellers to keep in
stock. “Just as when all legal routes to alcohol
were cut off, beer disappeared and whisky won,
when all legal routes to opiates are cut off, Oxy
disappears, and heroin prevails. This isn’t a law
of nature. . . . [It’s] drug policy.”133
9
“
Recent reform efforts have made the
problem only worse. The current war on opi- As opioid
oids is, like the first war on drugs, a war on prescriptions
physicians. In the words of former attorney
general Jeff Sessions, “‘We’re going to target
have
those doctors.’”134 In January 2018, the Drug plummeted,
Enforcement Agency (DEA) initiated a “surge” opioid-
in efforts to shut down pill mills.135 The next
linked deaths
month, the Justice Department started a task
have sky­
”
force to pursue manufacturers and distribu-
tors.136 According to a press release, “The rocketed.
Department will . . . use all criminal and civil
tools at its disposal to hold distributors such
as pharmacies, pain management clinics, drug
testing facilities, and individual physicians ac-
countable for unlawful actions . . . to prevent
diversion and improper prescribing.”137 In
March 2018, the administration announced
plans to cut opioid prescriptions by a third
within three years, and the DEA initiated new
drug-production quotas, ultimately produc-
ing dramatic opioid shortages.138 In June 2018,
Sessions announced charges against 162 indi-
viduals, including physicians, for crimes relat-
ed to prescribing and distributing prescription
opioids.139 And, even before this recent crack-
down, the DEA had increased actions against
doctors from 88 in 2011 to 479 in 2016.140
The escalation and crackdown are not
unique to federal law enforcement. The
Centers for Disease Control and Prevention
(CDC) has promulgated its own guidelines for
prescribing higher dosages.141 Initially, these
were recommendations only, but several states
and medical boards have turned those guide-
lines into rigid rules, using the CDC template
to enact statutory and regulatory limits that
help define what constitutes medical malprac-
tice and criminal wrongdoing.142 Likewise,
public and private insurers have imposed their
own tapering protocols that expand tracking,
interfere in the physician-patient relationship,
and curtail further the responsible practice of
individualized medicine.143
In turn, physicians have stopped treating
patients whose health could genuinely benefit
from large or long-term doses of prescription
opioids. Consider the DEA’s pursuit of Forest
10
“
Tennant, a prominent California physician
This is who faced criminal investigation for atypical
overdeterrence prescribing.144 Tennant specialized in severe
chronic pain and was world-renowned for pal-
in action— liative care, often at the end of life.145 He had
another evidence-based reasons for prescribing such
example large quantities of opioids.146 Nevertheless,
of how law enforcement successfully pushed Tennant
into early retirement, leaving his patients to
prohibition suffer without effective pain management.147
chills socially This is overdeterrence in action—another
valuable example of how prohibition chills socially
valuable conduct at the margins.148 Indeed,
conduct at the
”
in some states, the wait to see a qualified pain
margins. management specialist has increased to a year
or longer.149 And it stands to reason that some
of the most ethical doctors may be the most
easily dissuaded from prescribing opioids con-
sistent with patients’ actual needs; because
these physicians are likelier to be compara-
tively risk averse, they are likelier to overcor-
rect in order to steer well clear of increasingly
pronounced criminal justice threats and con-
sequences. Moreover, they are likelier to be
aware of (and comply with) the heightened
recordkeeping requirements that law enforce-
ment may use to trawl for patient and physi-
cian targets. At a certain point, it’s just not
worth the effort. As one primary care doctor
put it, “‘I will no longer treat chronic pain.
Period. . . . There is too much risk involved.’”150
THE FUTURE OF REFORM
Meaningful domestic drug reform has
only ever arisen from the bottom up. Take
the example of syringe exchanges. Starting in
Europe in the 1980s, activists experimented
with exchanges as a response to the deadly epi­
demic of HIV/AIDS.151 American reformers
took note, but federal and state governments
worked actively against such initiatives. The
DEA, for example, had previously promulgat-
ed the Model Drug Paraphernalia Act, which
provided a template for 46 states to criminal-
ize the manufacture, possession, or distribu-
tion of drug paraphernalia, broadly defined.152
Moreover, the federal government refused to
fund syringe exchanges until they were proven
“safe and effective” (and, of course, it refused
also to fund research into the question).153
Indeed, Sen. Jesse Helms (R-NC) equated any
public effort to implement a syringe exchange
to government-supported drug abuse.154
Nevertheless, activists persisted in doing
what they could, typically underground.155
Over time, some mainstream stakeholders
even began to buy in. Ultimately, a number
of municipal and state authorities authorized
syringe-exchange programs, maneuvering
polit­ically and legally to prevent pushback.156
By 2015, even the federal government had
lifted its funding ban—albeit only partially
(and more than a quarter century too late).157
Overall, reform efforts proved successful.
Consider the example of medical canna-
bis. Today, a majority of states permit at least
some form of medical use.158 But these statu-
tory public health interventions were slow in
coming, even though, as early as the 1970s,
it was already well established that cannabis
could quell cancer patients’ nausea and stimu-
late their appetites.159 Over the next 20 years,
patients and advocates raised awareness that
cannabis could also alleviate suffering from
other illnesses and afflictions—glaucoma,
AIDS-related wasting syndrome, epilepsy,
neuropathic pain, and the side effects of in-
gesting certain drug cocktails.160
Nevertheless, the federal government re-
mained largely intransigent. In 1996, after
California voters passed the Compassionate
Use Act by proposition, federal authori-
ties threatened physicians with civil and
criminal penalties merely for recommend-
ing medical cannabis.161 Even today, the
Controlled Substances Act classifies marijua-
na as a Schedule I drug—a substance purport-
ed to have no therapeutic benefits and a high
potential for abuse.162 Simply put, federal law
continues to criminalize cannabis.163
In spite of these hurdles, activists
found a way to build a grassroots move-
ment around medical cannabis, establish-
ing a collection of underground dispensaries.164
Municipalities and states began to follow their

lead, primarily, at first, by citizen-initiated
resolutions, referendums, and propositions.165
Lawmakers only began to act once the issue of
medical cannabis had become obviously expe-
dient.166 Until then, the path to meaningful re-
form was direct democracy and direct action.
To these examples, we could add the
drug-court movement, which now boasts
over 2,000 courts currently operating nation-
wide.167 In the interest of full disclosure, we
should make it clear that we, as authors, are
deeply skeptical of the ability of drug courts to
provide appropriate treatment and to function
effectively as an alternative to incarceration
(much less to avoid the collateral harms of the
drug war).168 The drug-court model embraces
and perpetuates the same prohibitionist and
coercive paradigm of abstinence that we be-
lieve is so misguided. The movement operates
within criminal justice, retaining the threat of
punishment as a backstop for the noncompli-
ant participant. Disappointingly, but perhaps
unsurprisingly, many leading drug-court ad-
vocates have tended, therefore, to publicly
oppose more ambitious drug policy reform, in-
cluding the decriminalization of cannabis (even
for medical use),169 reduction of felony posses-
sion offenses to misdemeanor or noncriminal
offenses,170 and acceptance of (and reliance
upon) medication-assisted treatments.171
The origins of the drug-court movement
can be traced to a small handful of ground-level
advocates (in this case, county judges and local
law enforcement) who could no longer counte-
nance the most egregious excesses of the drug
war, such as lengthy jail and prison sentences
for low-level, nonviolent drug offenders.172
With no other viable option, these officials
began to experiment, first quietly, then vocally,
with alternative judicial interventions intend-
ed to avoid draconian penalties for chemically
dependent persons.
These examples illustrate the failure of the
drug war and the role of grassroots activism
in driving meaningful change. Although there
has been some progress, such issues remain
with respect to the opioid epidemic. Until rel-
atively recently, federal and state laws largely
11
“
prevented most people from preemptively
gaining access to naloxone, an opioid antago- The origins
nist, which reverses overdoses.173 Naloxone of the
(trade name Narcan) is called the Lazarus
drug for a good reason: injecting naloxone
drug-court
into a person’s bloodstream revives the suf- movement
ferer by counteracting respiratory distress.174 can be traced
For a long time, however, possession of nalox-
to a small
one was limited principally to emergency med-
ical technicians and emergency room staff.175 handful of
Thus its benefits could reach only those over- ground-level
dose victims who lived long enough to see the advocates
inside of an ambulance or hospital.
Technically, some physicians could still pre-
who could
scribe naloxone, but any such efforts were re- no longer
sisted by public officials, law enforcement, and countenance
even many within the medical community.176
the most
In a classic example, opponents of naloxone
relied upon the argument that ready access to egregious
naloxone would encourage opioid users (anti- excesses of the
”
dote in hand) to use drugs more often and more drug war.
recklessly.177 Naloxone is neither an addictive
nor mind-altering chemical compound, and it
is incapable of recreational abuse.178 It is, first
and foremost, a lifesaver. To withhold it is to
endorse the view that death is an appropriate
punishment for those who overdose.
Enter the street activists. Piggybacking
on the highly successful work of a syringe ex-
change program in Chicago, activists began
distributing naloxone to syringe-exchange
clients and taught them how to administer
naloxone to reverse an overdose.179 Days after
distribution of the first naloxone dose, a “save”
was recorded.180 Hundreds and then thou-
sands of saves followed.181 Other syringe ex-
changes took note of the Chicago experiment,
as did local public health departments. In
short order, communities across the coun-
try began to distribute (or turn a blind eye to
the distribution of) naloxone; municipal and
state-level law and policy reform followed
thereafter. By July 2017, all 50 states and the
District of Columbia had taken legal steps to
increase access to naloxone.182
Four dynamics describe these drug policy
reforms. First, until harm reduction interven-
tions are well established, public officials and
12
“
law enforcement agents are typically part of
A precursor to the problem, not the solution. Policymakers
the addiction and professionals initially either opposed
pragmatic harm reduction measures or stayed
maintenance mum, fearing backlash.183 The enforcers of the
clinic has drug war participate in a multibillion-dollar
already criminal justice–industrial complex, just as
begun to find drug traffickers participate (illicitly and licitly)
in multibillion-dollar drug-distribution and
traction—the pharmaceutical-industrial complexes.184 In
safe site, or each of these markets, there is a lot at stake.
supervised Criminal justice has its jail and prison cells, paid
prosecutors and judges, and police, probation,
injection and corrections officers. The prescription drug
facility, which industry has its drug representatives, scientific
does not researchers, public relations professionals, and
supply drugs political lobbyists. Organized drug crime has
its guns and safe houses, gang members, foot
but provides soldiers, and street dealers. The pressure is tre-
a space for mendous to keep feeding the drug-war machin-
relatively safe ery. No surprise, then, that institutional elites
tend to make bad insurgents.
consump­
”
Second, and relatedly, public health inno­
tion. vations typically start underground. For
years—without any change in local, state, or
federal law—sterile syringes were exchanged,
medical marijuana was ingested, and naloxone
was distributed and injected. If “Just Say No”
is the mantra of the drug war, then the ethos
of drug reform is Nike’s motto, “Just Do It.”
Grassroots activists have proven to be willing
to risk everything to defy the status quo by
purposefully violating drug laws.185 For these
advocates, protecting and saving lives is worth
the gamble.
Third, if and when de jure reform occurs, it
often bubbles up from below. Long before leg-
islators find the motivation or courage to en-
act statutes, community activists, advocates,
and organizers persuade independent-minded
city councilors and mayors to declare states
of emergencies—authorizing, for instance,
syringe exchanges to combat HIV/AIDS.186
Local police and prosecutors exercise discre-
tion to look the other way when grassroots
activists disobey criminal laws against the
possession of naloxone.187 City officials use
local initiatives to push law enforcement to
deprioritize the criminal possession of small
amounts of marijuana.188 And the public
pass popular resolutions and referendums.189
Eventually, states may follow suit—but only af-
ter witnessing what has worked locally.
Fourth, all the while, the federal structure
stays largely intact. Its orientation remains
prohibition first. At best, federal officials may
tolerate local experimentation. But the fed-
eral law remains criminal law—the Controlled
Substances Act and other punitive statutes
like it. Even today, federal support for sy-
ringe exchanges is largely passive. Likewise,
the federal government continues to oppose
medical cannabis. And, perhaps more impor-
tantly, it continues to stifle medical-cannabis
research,190 thereby keeping technically true
the hollow claim that the substance has no
proven medical benefits.191
It is against this backdrop—and within this
framework—that we should consider addic-
tion maintenance. Addiction maintenance is
more than a theoretical possibility; it is a his-
torical and international reality. But, as a do-
mestic practice, it remains a distant prospect.
How distant is unclear. By nature, underground
enter­prises are hard to track. It could well be
that an American addiction maintenance clinic
is operating illegally already—either with a wink
and nod from local officials or completely un-
derground. The lives of heroin-dependent per-
sons rely upon access to pharmaceutical-grade
heroin instead of toxic street-corner junk.
More to the point, a precursor to the ad-
diction maintenance clinic has already begun
to find traction—the safe site, or supervised
injection facility, which does not supply drugs
but provides a space for relatively safe con-
sumption.192 For some time, it has been an
open secret that at least one unsanctioned
supervised injection facility has operated
within the United States.193 And activists
have lobbied to bring underground safe sites
to the surface.194 Even the American Medical
Association has come aboard, declaring sup-
port for the model.195 Likewise, the idea has
spread to progressive prosecutors and police
commissioners.196 Just this past year, public

health advocates in Philadelphia, with the
support of city leaders, formed a nonprofit
called Safehouse to open the first above­
ground supervised injection facility in the
country.197 Predictably, state officials have op-
posed the effort with claims that it cannot be
done under federal law (though Pennsylvania’s
governor has signaled that he may keep his
hands off the effort).198 Federal officials have
responded predictably, flexing drug-war mus-
cles with threats to enforce the so-called crack
house law against any safe site should one try
to open aboveground.199 In the same vein,
the Justice Department is currently plan-
ning to appeal a district court ruling that the
Controlled Substances Act would not apply to
Safehouse’s operations.200 Notwithstanding
the federal resistance, we believe it likely that
licit supervised injection facilities will open
domestically—if not in Philadelphia, then
somewhere else sometime soon.201
That is what happened with syringe ex-
changes and medical cannabis. More to the
point, that is what happened in Vancouver
where underground efforts by street activists
eventually produced a legally authorized su-
pervised injection facility.202 And that facility,
in turn, helped produce an aboveground addic-
tion maintenance clinic—a site where individ-
uals now go to get their fix without needlessly
jeopardizing their lives and liberty or, for that
matter, public safety and order.
CONCLUSION
The drug-free society is a pipe dream. If, in-
stead, we were to acknowledge that drugs are an
often (but not always) unfortunate fact of life,
we might come to regard drug misuse, abuse,
dependence, and addiction for what they
are—questions of health, not morality, and of
social policy, not penology. Our success would
not be measured by our proximity to a drug-free
America but whether we have minimized
drug-related deaths, disease, crime, and suf-
fering, whether we have improved health and
welfare, and whether we have preserved and
expanded autonomy and dignity.
13
“
We remain doubtful that American soci-
ety and its legal and medical institutions can Our success
reorient wholly from a criminal-legal model would not be
to a public health model. The logic of prohibi-
tion has enjoyed too much dominance for far
measured by
too long. Few medical schools meaningfully our proximity
incorporate addiction treatment into core cur- to a drug-
ricula, and few new doctors choose to special-
free America
ize in addiction medicine.203 Perhaps doctors
have avoided practicing addiction medicine but whether
because the professional and legal risks are too we have
great. Moreover, until relatively recently, in- minimized
surance providers could legally refuse to cover
addiction treatment—at least, more readily
drug-related
than other accepted medical interventions.204 deaths,
But, for many in the industry, the problem is disease, crime,
likewise cultural. Although many medical pro-
and suffering,
fessionals have been on the front lines of the
most ambitious drug policy reforms, it is still whether
not uncommon to encounter doctors who har- we have
bor the same attitudes as prohibitionists. improved
However, precisely because culture plays
such an influential role in drug policy and
health and
medical practice, there is a silver lining to the welfare, and
immediate epidemic. The opioid crisis has awo- whether
ken a previously indifferent America to the fail-
we have
ings of prohibition.205 We are hopeful, but not
overly so, that this awakening could translate to preserved
meaningful change all the way up to the federal and expanded
level. We are especially encouraged—and some- autonomy and
”
what surprised—that the Senate, by a remark-
able vote of 99 to 1, recently passed sweeping
dignity.
legislation that could make it easier for doctors
to prescribe suboxone (buprenorphine) and
other forms of medication-assisted treatment
for addiction.206 Again, interest convergence
has a way of making the seemingly impossible
suddenly possible, even if not for entirely admi-
rable reasons.207
But these welcome developments are
counterbalanced by more conventional resis-
tance, like the Justice Department’s recent
crackdown against prescribing doctors. All
in all, we expect to see mainly street-level
activism and politically popular local initia-
tives but too few positive steps beyond that.
The logic of prohibition will continue to
predominate, and the machinery of criminal
14
“
punishment will continue to churn.208 Still,
The empirical we offer this pragmatic six-point plan for ad-
and anecdotal dressing our current opioid crisis:
evidence is 1. Grant 911 amnesty from arrest for all
persuasive drug offenses for all individuals who
that these contact authorities to report overdoses
or people in need of aid.209
interventions
2. Make naloxone available without a pre-
will save lives, scription at pharmacies, fire stations,
alle­viate public libraries, police stations, hospi-
suffering, tals, jails and prisons, and supervised in-
jection facilities.210
and lessen 3. Make pill and powder testing available to
drug-related
”
assess drug purity and to detect the pres-
crime. ence of fentanyl and other dangerous
compounds as a means to enable drug
users to make informed choices about
whether and how to use substances.211
4. Make medication-assisted treatment
available with prescription, within and
beyond clinical settings, for all individu-
als who require it, inmates included,
without forced detoxification after fixed
time periods.212
5. Make supervised injection facilities,
drug consumption rooms, and syringe
exchanges available in areas of concen-
trated injection drug use.213
6. Make physician-supervised addiction
maintenance programs available with
prescription for individuals for whom
other forms of medication-assisted ther-
apy have failed.
The empirical and anecdotal evidence is
persuasive that these interventions will save
lives, alle­
viate suffering, and lessen drug-
related crime.
Criminal law is the wrong tool for addressing
the opioid epidemic. People are dying in record
numbers, and we must acknowledge and aban-
don our addiction to punishment and broaden
our legal horizons to adopt measures proven to
reduce and avoid harms related to both drug
use and enforcement of the drug war.214

NOTES
Many thanks to Rebecca Rubin for her exceptional research
assistance.
1. Drug Policy Alliance, “A Brief History of the Drug War,”
DrugPolicy.org.
2. “The Controlled Substances Act,” United States Drug En-
forcement Administration, https://www.dea.gov/controlled-
substances-act.
3. Bettina Muenster and Jennifer Trone, Why Is America So Puni-
tive? A Report on the Deliberations of the Interdisciplinary Roundtable
on Punitiveness in America (New York: John Jay College of Criminal
Justice, 2015).
4. Josh Bowers, “Legal Guilt, Normative Innocence, and the Eq-
uitable Decision Not to Prosecute,” Columbia Law Review 110, no.
7 (November 2010): 1655, 1691. “Legal formalism may produce a
kind of childishness—an inability to interact with the uncertain-
ties of the real world and an eagerness to retreat to ‘structures of
authority’ that substitute hollow make-believe for life in fact. Put
simply, legal training facilitates incuriosity by emphasizing hierar-
chical and rule-bound thinking.” Quotes Richard A. Posner, How
Judges Think (Cambridge, MA: Harvard University Press, 2008);
and Josh Bowers, “Probable Cause, Constitutional Reasonable-
ness, and the Unrecognized Point of a ‘Pointless Indignity,’” Stan-
ford Law Review 66, no. 5 (May 2014): 987, 1048–49 (discussing
legal culture and the lawyer’s turn of mind).
5. “Her Causes,” Ronald Reagan Presidential Foundation and In-
stitute (discussing Nancy Reagan’s 1980s “Just Say No” advertis-
ing campaign).
6. Jenae Addison, “How Racial Inequity Is Playing Out in the
Opioid Crisis,” NewsHour, PBS (July 18, 2019); and Melissa Healy,
“Why Opioids Hit White Areas Harder: Doctors There Prescribe
More Readily, Study Finds,” Los Angeles Times (February 11, 2019).
7. Derrick A. Bell Jr., “Brown v. Board of Education and the Interest-
Convergence Dilemma,” Harvard Law Review 93, no. 3 (January
1980): 518, 523.
8. By way of explanation, harm-reduction models focus on
minimizing the negative social, economic, and physical ex-
ternalities that flow from human behaviors. Ingrid Van Beek,
“Harm Reduction—An Ethical Imperative,” Addiction 104,
no. 3 (2009): 341, 343. On the other hand, drug prohibition
15
focuses on abstinence—also termed “use reduction” or “preva-
lence reduction”—backed by the cudgel of criminal justice.
Robert J. MacCoun, “Moral Outrage and Opposition to Harm
Reduction,” Criminal Law and Philosophy 7, no. 1 (January 2013):
83–84; and Robert J. MacCoun and Peter Reuter, Drug War
Heresies: Learning from Other Vices, Times, and Places (Cambridge:
Cambridge University Press, 2001). By way of analogy, imag-
ine two methods for promoting sexual health—providing free
condoms or criminalizing contraceptives. Harm reduction de-
scribes the first approach; prohibition describes the second.
9. Alfred R. Lindesmith, “The Addict and the Law,” Indiana Law
Journal 40, no. 3 (1965): 464–68 (discussing the history of federal
drug policy in the United States).
10. Alexander Cockburn and Jeffrey St. Clair, Whiteout: The CIA,
Drugs and the Press (London: Verso, 1999), p. 71.
11. Cockburn and St. Clair, Whiteout.
12. Johann Hari, Chasing the Scream: The First and Last Days of the
War on Drugs (New York: Bloomsbury, 2015); and Cockburn and
St. Clair, Whiteout, p. 35.
13. Cockburn and St. Clair, Whiteout, p. 226.
14. Ellen M. Weber, “Failure of Physicians to Prescribe Pharma-
cotherapies for Addiction: Regulatory Restrictions and Physician
Resistance,” Journal of Health Care Law & Policy 13, (2010): 49, 56.
“The medical community viewed addiction as a medical problem,
and physicians prescribed opioid medications for the care of ad-
dicted patients without legal restrictions.”
15. David T. Courtwright, “The Hidden Epidemic: Opiate Addic-
tion and Cocaine Use in the South, 1860–1920,” Journal of South-
ern History 49, no. 1 (1983): 57–72.
16. Courtwright, “Hidden Epidemic.”
17. Weber, “Failure of Physicians,” p. 34 (quoting Henry Smith
Williams, “The doctor knows just what should be done . . . that he
has but to write a few words on the prescription blank that lies at
his elbow, and the patient . . . will receive the remedy that would re-
store him miraculously to a semblance of normality”); and Henry
Smith Williams, Drug Addicts Are Human Beings (Washington:
Shaw Publishing, 1938).
18. Weber, “Failure of Physicians,” p. 17 (describing the racist
16
belief, prevalent during the era, that marijuana made black men
“forget the appropriate racial barriers—and unleased their lust for
white women”).
19. Alyssa Pagano, “The Racist Origins of Marijuana Prohibi-
tion,” Business Insider, March 2, 2018; Michael Woodiwiss, “Re-
form, Racism, and Rackets: Alcohol and Drug Prohibition in the
United States,” in The Control of Drugs and Drug Users: Reason or
Reaction?, ed. Ross Coomber (Amsterdam: OPA, 1998), 13–30;
Edward Huntington Williams, “Negro Cocaine ‘Fiends’ Are a
New Southern Menace: Murder and Insanity Increasing among
Lower Class Blacks Because They Have Taken to ‘Sniffing’ Since
Deprived of Whisky by Prohibition,” New York Times, February
8, 1914 (detailing racist allegation of a “negro . . . ‘running amuck’
in a cocaine frenzy, [who] had [purportedly] attempted to stab a
storekeeper, and was [allegedly] . . . ‘beating up’ the various mem-
bers of his own household”); and “How Did We Get Here? His-
tory Has a Habit of Repeating Itself,” The Economist, August 14,
2018 (describing early 20th-century racist perception of “drug-
crazed, sex-mad negroes” and drug-addicted “Chinese ‘coolies’
brought into California to build railways and dig mines”).
20. “Cocaine Sniffers: Use of the Drug Increasing among Negroes
in the South,” New York Daily Tribune, June 21, 1903, p. 11; and
David F. Musto, The American Disease: Origins of Narcotic Control,
3rd ed. (New York: Oxford University Press, 1999) (describing
“fantasies characterized by white fear, not the reality of cocaine’s
effect” that “coincided with the peak of lynchings, legal segrega-
tion, and voting laws all designed to remove political and social
power from [black Americans]”).
21. Weber, “Failure of Physicians,” pp. 17–32.
22. John Helmer and Thomas Vietorisz, Drug Use, the Labor Mar-
ket and Class Conflict (Washington: Drug Abuse Council Inc.,
1974) (finding that whites used drugs at higher rates than blacks in
early 20th-century America); and “Criminal Justice Fact Sheet,”
National Association for the Advancement of Colored People,
https://www.naacp.org/criminal-justice-fact-sheet/.
23. Courtwright, “Hidden Epidemic”; and Musto, American Dis-
ease, p. 57.
24. Hari, Chasing the Scream; and Weber, “Failure of Physicians,”
pp. 35–36.
25. William J. Stuntz, “Race, Class, and Drugs,” Columbia Law Re-
view 98, no. 7 (1998): 1795.
26. Harrison Narcotics Tax Act of 1914, Pub. L. No. 63-223, 38 Stat.
785 (December 17, 1914) (repealed 1970).
27. Musto, American Disease, pp. 59, 151; Harrison Narcotics Tax
Act of 1914; Hari, Chasing the Scream; Weber, “Failure of Physi-
cians,” p. 37; Courtwright, “Hidden Epidemic”; Weber, “Failure of
Physicians”; Pagano, “The Racist Origins of Marijuana Prohibi-
tion,” pp. 58–59 (“Federal and state health officials and local law
enforcement, beginning around 1912, created maintenance clinics
in a dozen states that would prescribe medication in an effort to
prevent suffering related to addiction and wean individuals from
their drug use through the gradual reduction of dosage.”); and Alex
Kreit, Controlled Substances: Crime, Regulation, and Policy (Durham,
NC: Carolina Academic Press, January 2013), pp. 739–40 (discuss-
ing addiction maintenance).
28. Courtwright, “Hidden Epidemic”; and Musto, American Dis-
ease, p. 60.
29. Weber, “Failure of Physicians”; and Pagano, “The Racist Ori-
gins of Marijuana Prohibition,” p. 59.
30. Musto, American Disease; Hari, Chasing the Scream, pp. 151,
156–78
31. Hari, Chasing the Scream; Weber, “Failure of Physicians,” p. 37.
32. Thomas M. Quinn and Gerald T. McLaughlin, “The Evolution
of Federal Drug Control Legislation,” Catholic University Law Re-
view 22, no. 3 (1973): 586, 595.
33. Jin Fuey Moy v. United States, 254 U.S. 189, 194 (1920).
34. Webb v. United States, 249 U.S. 96, 99–100 (1919). (“[T]o call
such an order for the use of morphine a physician’s prescription
would be so plain a perversion of meaning that no discussion of
the subject is required.”)
35. Jin Fuey Moy v. United States, 254 U.S. at 194 (holding that the
physician’s exemption did not include “a distribution intended to
cater to the appetite or satisfy the craving of one addicted to the
use of the drug,” and noting that a “‘prescription’ issued” for ad-
diction maintenance “protects neither the physician who issues
it, nor the dealer who knowingly accepts and fills it”).
36. United States v. Behrman, 258 U.S. 280, 288 (1922).
37. Rufus King, The Drug Hang-Up: America’s Fifty-Year Folly, 1st ed.

(New York: W. W. Norton, 1972), p. 42.
38. Linder v. United States, 268 U.S. 5, 18 (1925). “What constitutes
bona fide medical practice must be determined upon consider-
ation of evidence and attending circumstances.”
39. Lindesmith, “Addict”; and Weber, “Failure of Physicians,”
pp. 6–7.
40. “Symposium: The Legal Construction of Norms,” Virginia
Law Review 86 (2000): 1577–2021.
41. Weber, “Failure of Physicians”; and Pagano, “The Racist Ori-
gins of Marijuana Prohibition,” p. 56.
42. See Pagano, “The Racist Origins of Marijuana Prohibition,”
pp. 58–60. (“The American Medical Association issued a resolu-
tion in 1920 opposing ambulatory maintenance clinics and con-
demning the use of heroin, which sanctioned the further pros-
ecution of physicians who continued to prescribe maintenance
medication.”)
43. Pagano, “The Racist Origins of Marijuana Prohibition,” p. 60.
44. “Eighteenth Amendment,” Encyclopedia Britannica.
45. Weber, “Failure of Physicians,” p. 38; and Pagano, “The Rac-
ist Origins of Marijuana Prohibition,” pp. 57–59 (discussing
the federal government’s ever-more vigorous enforcement of
the Harrison Act after alcohol prohibition); and Hari, Chasing
the Scream.
46. Quinn, Evolution of Federal Drug Control; Lindesmith, “Ad-
dict,” pp. 594–95; Michael Nedelman, “Doctors Increasingly
Face Charges for Patient Overdoses,” CNN, July 31, 2017; and Pia
Malbran, “What’s a Pill Mill?,” CBS News, May 31, 2007.
47. Khary K. Rigg, Steven P. Kurtz, and Hilary L. Surratt, “Pat-
terns of Prescription Medication Diversion among Drug Deal-
ers,” Drugs: Education, Prevention and Policy 19, no. 2 (2012): 145–55.
48. Quinn, Evolution of Federal Drug Control; and Lindesmith, “Ad-
dict,” p. 595.
49. Peter Reuter, Can Heroin Maintenance Help Baltimore?
(Baltimore: Abell Foundation, January 2009). (“A small but grow-
ing number of Western nations are experimenting with heroin
maintenance.”)
17
50. Hari, Chasing the Scream; Weber, “Failure of Physicians,”
pp. 197–202; and Matthew Power, “The Alleys of Vancouver,”
Slate, February 3, 2010.
51. Hari, Chasing the Scream; and Weber, “Failure of Physicians,”
pp. 202–3.
52. Hari, Chasing the Scream, p. 200. “Suddenly, VANDU was
an international news story . . . from the BBC to the New York
Times.”
53. Hari, Chasing the Scream, pp. 200–2.
54. Hari, Chasing the Scream, pp. 202–3.
55. German Lopez, “The Case for Prescription Heroin:
Vancouver Gives Heroin to People Suffering from Addiction—
and It Works,” Vox, June 12, 2017; Hari, Chasing the Scream;
Weber, “Failure of Physicians,” p. 219; and John Strang, Teodora
Groshkova, and Nicola Metrebian, New Heroin-Assisted Treat-
ment—Recent Evidence and Current Practices of Supervised Injectable
Heroin Treatment in Europe and Beyond, EMCDDA Insights Se-
ries no. 11 (Luxembourg City, Luxembourg: Publications Office
of the European Union, 2012).
56. JoNel Aleccia, “As Seattle Eyes Supervised Drug-Injection
Sites, Is Vancouver a Good Model?,” Seattle Times, November 30,
2016.
57. Canada (Attorney General) v. PHS Community Services Society,
[2011] 3 S.C.R. 134, 147–8 (describing the work and impact of
VANDU); and Robert Matas, “B.C. Drug Deaths Hit a Low Not
Seen in Years,” Globe and Mail, December 9, 2008.
58. Evan Wood et al., “Changes in Public Order after the Open-
ing of a Medically Supervised Safer Injecting Facility for Illicit
Injection Drug Users,” Canadian Medical Association Journal 171,
no. 7 (2004): 731, 733. (“Our observations suggest that the estab-
lishment of the safer injecting facility has resulted in measurable
improvements in public order, which in turn may improve the liv-
ability of communities and benefit tourism while reducing com-
munity concerns stemming from public drug use and discarded
syringes.”)
59. Drug Policy Alliance, Drug Courts Are Not the Answer: Toward a
Health-Centered Approach to Drug Use (New York: Drug Policy Alli-
ance, March 21, 2011) (describing Canadian “opioid-maintenance
therapy” that has “decreased drug use and crime”).
18
60. Sam Cooper, “‘I Don’t Want to Die Here’: Residents Buoyed
by Stats Showing People in Poorest Area Living Longer,” Province,
September 7, 2012.
61. Hari, Chasing the Scream; Weber, “Failure of Physicians,”
pp. 170–75; and accompanying text discussing the environmental
theory of addiction.
62. Robert Weiss, “The Opposite of Addiction Is Connection:
New Addiction Research Brings Surprising Discoveries,” Psychol-
ogy Today, September 30, 2015.
63. Lopez, “Case for Prescription Heroin.”
64. Lopez, “Case for Prescription Heroin.”
65. Lopez, “Case for Prescription Heroin.”
66. Lopez, “Case for Prescription Heroin.”
67. Lopez, “Case for Prescription Heroin”; Hari, Chasing the
Scream; and Weber, “Failure of Physicians.”
68. Lopez, “Case for Prescription Heroin”; Josh Bowers, “What
If Nothing Works? On Recidivism, Crime Licenses, and Public
Health,” forthcoming (reexamines recidivism through a public-
health lens).
69. Lopez, “Case for Prescription Heroin.”
70. Lopez, “Case for Prescription Heroin.”
71. Lopez, “Case for Prescription Heroin.”
72. See Weber, “Failure of Physicians to Prescribe Pharmacothera-
pies for Addiction: Regulatory Restrictions and Physician Resis-
tance,” and accompanying text (comparing harm-reduction and
use-reduction approaches).
73. Lopez, “Case for Prescription Heroin”; and Hari, Chasing the
Scream.
74. Lopez, “Case for Prescription Heroin.”
75. Lopez, “Case for Prescription Heroin”; and Hari, Chasing the
Scream.
76. Hari, Chasing the Scream; Weber, “Failure of Physicians,” p. 210.
77. Linnet Myers, “Europe Finds U.S. Drug War Lacking in Re-
sults,” Chicago Tribune, November 2, 1995.
78. Hari, Chasing the Scream; Weber, “Failure of Physicians,”
p. 219; and John Strang, Teodora Groshkova, and Nicola Metrebian,
New Heroin-Assisted Treatment—Recent Evidence and Current Prac-
tices of Supervised Injectable Heroin Treatment in Europe and Beyond,
EMCDDA Insights Series no. 11 (Luxembourg City, Luxembourg:
Publications Office of the European Union, 2012).
79. Gaelle Faure, “Why Doctors Are Giving Heroin to Heroin Ad-
dicts,” Time, September 28, 2009.
80. Hari, Chasing the Scream; Weber, “Failure of Physicians,”
p. 221 (notes drop in HIV infections caused by injection drug
use from 68 to 5 percent); Joanne Csete and Peter J. Grob, “HIV
and the Power of Pragmatism: Lessons for Drug Policy Devel-
opment,” International Journal of Drug Policy 23, no. 1 (2012): 82
(noting drop in hepatitis infections caused by injection drug use
from 51 to 10 percent); and Denis Ribeaud, “Long-Term Impacts
of the Swiss Heroin Prescription Trials on Crime of Treated
Heroin Users,” Journal of Drug Issues 34, no. 1 (2004): 163 (noting
50 percent reduction in vehicle thefts among participants).
81. Hari, Chasing the Scream; and Weber, “Failure of Physicians,”
p. 222.
82. Kreit, Controlled Substances; and Cockburn and St. Clair, White-
out, p. 740.
83. Luis M. Faria, “Portugal Solved Its Drug Crisis. Why Can’t
America Do the Same?,” HuffPost, November 9, 2019; and Lauren
Frayer, “In Portugal, Drug Use Is Treated as a Medical Issue, Not a
Crime,” Morning Edition, NPR, April 18, 2017.
84. Faria, “Portugal Solved Its Drug Crisis”; and Frayer, “In
Portugal, Drug Use Is Treated as a Medical Issue, Not a Crime.”
85. Faria, “Portugal Solved Its Drug Crisis.”
86. Hari, Chasing the Scream; Weber, “Failure of Physicians,” p. 249;
and Faria, “Portugal Solved Its Drug Crisis.”
87. Hari, Chasing the Scream; Weber, “Failure of Physicians,”
pp. 249–50, 268; Faria, “Portugal Solved Its Drug Crisis” (not-
ing decline in death rate from one per day to only a couple
per month); Naina Bajekal, “Want to Win the War on Drugs?
Portugal Might Have the Answer,” Time, August 1, 2018; Caitlin

Elizabeth Hughes and Alex Stevens, “What Can We Learn
from the Portuguese Decriminalization of Illicit Drugs?,” Brit-
ish Journal of Criminology 50, no. 6 (July 2010): 999; Christopher
Ingraham, “Why Hardly Anyone Dies from a Drug Overdose
in Portugal,” Washington Post, June 5, 2015; Nicholas Kristof,
“How to Win a War on Drugs,” New York Times, September 26,
2017; and Frayer, “In Portugal, Drug Use Is Treated as a Medi-
cal Issue, Not a Crime.”
88. Kristof, “How to Win” (Belgium, Germany, the Netherlands,
Sweden, and Uruguay have undertaken similar harm-reduction
reforms with similarly promising results); Hari, Chasing the
Scream; Weber, “Failure of Physicians,” pp. 264–73; and Shirley
Haasnoot, “Dutch Drug Policy, Pragmatic as Ever,” The Guard-
ian, January 3, 2013.
89. Lopez, “Case for Prescription Heroin”; and Bowers, “What If
Nothing Works?”
90. Lopez, “Case for Prescription Heroin”; and Bowers, “What If
Nothing Works?”
91. Lopez, “Case for Prescription Heroin”; Bowers, “What If
Nothing Works?”; and Harry G. Levine and Craig Reinarman,
“From Prohibition to Regulation: Lessons from Alcohol Policy
for Drug Policy,” Millbank Quarterly 69, no. 3 (1991): 461, 464.
92. Julia Lowe Behr, “Methadone Maintenance Therapy for
Opioid Addiction,” MDedge.com, Clinician Reviews, June 18,
2008.
93. Thomas Lathrop Stedman, ed., The American Heritage Stedman’s
Medical Dictionary, 2nd ed. (Boston: Houghton Mifflin Company,
September 2004). Defines “heroic” measures as last-ditch efforts
to address a medical problem.
94. Lopez, “Case for Prescription Heroin”; and Bowers, “What If
Nothing Works?”
95. Lopez, “Case for Prescription Heroin”; and Bowers, “What If
Nothing Works?”
96. Josh Bowers, “Contraindicated Drug Courts,” UCLA Law Re-
view 55 (2008): 801–02; and Lopez, “Case for Prescription Hero-
in,” p. 16.
97. Hari, Chasing the Scream; and Pagano, “The Racist Origins of
Marijuana Prohibition,” pp. 170–75.
19
98. Bowers, “Drug Courts”; Malcolm Gladwell, The Tipping
Point: How Little Things Can Make a Big Difference (London:
Abacus, February 2002), pp. 234–38; and Gene M. Heyman, “Is
Addiction a Chronic, Relapsing Disease?,” in Drug Addiction
and Drug Policy: The Struggle to Control Dependence, eds. Philip
B. Heymann and William N. Brownsberger (Cambridge, MA:
Harvard University Press, 2001), p. 86.
99. Bowers, “Drug Courts”; and Hari, Chasing the Scream, p. 801.
100. Hari, Chasing the Scream, pp. 171–73.
101. Hari, Chasing the Scream.
102. Hari, Chasing the Scream, pp. 171–73.
103. Hari, Chasing the Scream.
104. Hari, Chasing the Scream, pp. 171–73.
105. Hari, Chasing the Scream, p. 171.
106. Hari, Chasing the Scream, pp. 172–73.
107. Hari, Chasing the Scream.
108. Hari, Chasing the Scream, p. 173.
109. Hari, Chasing the Scream.
110. Hari, Chasing the Scream, p. 172.
111. Hari, Chasing the Scream, p. 166.
112. Stanton Peele, “The Seductive, but Dangerous, Allure of
Gabor Maté,” Psychology Today, December 5, 2011.
113. Reuter, Can Heroin Maintenance Help Baltimore?
114. Gavin Bart, “Maintenance Medication for Opiate Addiction:
The Foundation of Recovery,” Journal of Addictive Diseases 31, no. 3
(2012): 207.
115. Maia Szalavitz, “Most People with Addiction Simply
Grow Out of It. Why Is This Widely Denied?,” Pacific Stan-
dard, October 1, 2014.
116. Laura Duberstein Lindberg, Scott Boggess, Laura Porter, and
20
Sean Williams, Teen Risk-Taking: A Statistical Portrait (Washington:
Urban Institute, June 2000).
117. Szalavitz, “Most People with Addiction”; and Lopez, “Case
for Prescription Heroin.”
118. Szalavitz, “Most People with Addiction”; and Lopez, “Case
for Prescription Heroin.”
119. Hari, Chasing the Scream; Weber, “Failure of Physicians,”
pp. 171–73 (“Most addicts will simply stop, whether they are
given treatment or not, provided prohibition doesn’t kill them
first.”); and Richard Lawrence Miller, The Case for Legalizing Drugs
(Westport, CT: Praeger Publishers, 1991), p. 53. (“Researchers
have found chronological age to be a prevalent reason for drug
use. Abuse is typically a young person’s habit, given up as the indi-
vidual matures.”)
120. Nedelman, “Doctors Increasingly Face Charges.”
121. Malbran, “What’s a Pill Mill?”
122. CNN Wire Service, “10 People Died of Overdoses within 26
Hours in 1 Ohio County,” Fox6Now.com, WITI, September 30,
2019.
123. Lopez, “Case for Prescription Heroin”; and Bowers, “What If
Nothing Works?”
124. H. Westley Clark and Karen Lea Sees, “Opioids, Chronic
Pain, and the Law,” Journal of Pain and Symptom Management 8,
no. 5 (July 1993): 297, 299.
125. Michigan Compiled Laws, Public Health Code Act 368 §
333.7333 (1978); Clark, “Opioids, Chronic Pain, and the Law,”
p. 299; Szalavitz, “Most People with Addiction.” (“When a physi-
cian writes an opioid prescription, care must be taken to deter-
mine whether the person is an addict.”)
126. Susan Buckles, “4 Ways Individualized Medicine Can Be
Applied Immediately to Patient Care,” Mayo Clinic News
Network, October 5, 2016; and Lev Facher, “Tapered to Zero:
In Radical Move, Oregon’s Medicaid Program Weighs Cut-
ting Off Chronic Pain Patients from Opioids,” STAT News,
August 15, 2018.
127. Art Levine, “The Government’s Solution to the Opioid
Crisis Feels Like a War to Pain Patients,” HuffPost, July 31, 2018;
and “U.S. Opioid Prescribing Rate Maps,” Centers for Disease
Control and Prevention.
128. “U.S. Opioid Prescribing Rate Maps”; and Malbran,
“What’s a Pill Mill?”
129. Levine, “Government’s Solution”; Terrence McCoy, “‘Unin-
tended Consequences’: Inside the Fallout of America’s Crack-
down on Opioids,” Washington Post, May 31, 2018; and Anson,
“DEA Scrutiny.”
130. Levine, “Government’s Solution.” (“There’s evidence that
thousands of prescription users cut off by fearful doctors are turn-
ing to dangerous street drugs, or being left to suffer.”)
131. Hari, Chasing the Scream, p. 226.
132. McCoy, “Unintended Consequences”; Murray Aitken and
Michael Kleinrock, Medicine Use and Spending in the U.S.: A Re-
view of 2017 and Outlook to 2022 (Durham, NC: IQVIA Insti-
tute, 2018) (opioid prescriptions shrank 29 percent between
2011 and 2017); Levine, “Government’s Solution”; Anson,
“DEA Scrutiny”; Darius Tahir, “Databases Key to Trump’s
Crackdown on Opioids,” Politico, June 29, 2018; and “Attorney
General Sessions Announces New Prescription Interdiction
and Litigation Task Force,” Department of Justice, news re-
lease, February 27, 2018.
133. Hari, Chasing the Scream; and Weber, “Failure of Physicians,”
p. 231 (noting that, on the streets, Oxycontin is three times more
expensive than heroin).
134. McCoy, “Unintended Consequences”; and Anson, “DEA
Scrutiny.”
135. Levine, “Government’s Solution”; and McCoy, “Unintended
Consequences” (internal quotations omitted).
136. “Sessions Announces,” U.S. Department of Justice.
137. “Sessions Announces,” U.S. Department of Justice.
138. Levine, “Government’s Solution”; and “Sessions Announces,”
U.S. Department of Justice.
139. U.S. Department of Justice, “Attorney General Sessions De-
livers Remarks Announcing National Health Care Fraud and Opi-
oid Takedown,” news release, June 28, 2018.

140. Nedelman, “Doctors Increasingly Face Charges”; and Levine,
“Government’s Solution.”
141. “Prescribing Opioids for Chronic Pain—United States, 2016,”
Centers for Disease Control and Prevention, March 18, 2016.
142. Office of Arizona Governor Doug Ducey, Arizona Opi-
oid Epidemic Act (2018), p. 13, https://azgovernor.gov/sites/
default/files/related-docs/arizona_opioid_epidemic_act_
policy_primer.pdf (discusses limiting daily dosage levels to
mirror CDC guidelines); Erika Ferrando, “New AR Medical
Board Guidelines Limit Opioid Over-Prescribing,” THV11.
com, July 18, 2018 (discusses new Arkansas policy that sets
“excessive” opioid prescription practices at just over half the
daily CDC guideline); “Opioid Prescription Limits and Poli-
cies by State,” Ballotpedia.org; Patty Wight, “Intent on Re-
versing Its Opioid Epidemic, a State Limits Prescriptions,”
Morning Edition, NPR, August 23, 2017; Andy Marso, “Opioid
Backlash: Kansas Citians in Chronic Pain Say Fewer Doctors
Will Prescribe Meds,” Kansas City Star, September 2, 2018. By
way of further example, the state of Missouri announced that
it plans to crack down on 8,000 doctors for overprescribing
opioids. See Marso, “Greitens Announces Opioid Crackdown
That Could Affect 8,000 Missouri Doctors,” Kansas City Star,
March 5, 2018. The number is astonishing, considering that
there are only 19,000 physicians in the entire state; and “CDC
Guideline for Prescribing Opioids for Chronic Pain—United
States, 2016.”
143. Lev Facher, “Tapered to Zero: In Radical Move, Oregon’s
Medicaid Program Weighs Cutting Off Chronic Pain Patients
from Opioids,” STAT News, August 15, 2018; “Sessions An-
nounces,” U.S. Department of Justice; Marso, “Greitens”; Janet
E. Joy, Stanley J. Watson Jr., and John A. Benson Jr., eds., Insti-
tute of Medicine, Marijuana and Medicine: Assessing the Science Base
(Washington: National Academies Press, 1999), p. viii (describing
Missouri HealthNet’s new rule requiring prescribers to adhere to
CDC guidelines); McCoy, “Unintended Consequences”; and Pat
Anson, “Dr. Forest Tennant Retiring Due to DEA Scrutiny,” Pain
News Network, March 26, 2018.
144. Anson, “Dr. Forest Tennant Retiring.”
145. Anson, “Dr. Forest Tennant Retiring.”
146. Forest Tennant, “Ultra-High Dose Opioid Therapy: Uncom-
mon and Declining, but Still Needed,” Practical Pain Management
13, no. 4 (May 2013).
21
147. Anson, “Dr. Forest Tennant Retiring.”
148. Brianna Ehley, “How the Opioid Crackdown Is Backfir-
ing,” Politico, August 28, 2018; Levine, “Government’s Solution”;
McCoy, “Unintended Consequences”; and Marso, “Opioid Back-
lash.” (“The result . . . has been a chilling effect nationally that has
reduced the number of doctors willing to prescribe opioids and
has left patients already dependent on them in the lurch.”)
149. Katie Fairbanks, “Opioid Regulations Worry Chronic Pain
Patients, Doctors,” U.S. News & World Report, September 22, 2018.
150. Ehley, “How the Opioid Crackdown Is Backfiring”; and
Erwin Chemerinsky, Jolene Forman, Allen Hopper, and Sam
Kamin, “Cooperative Federalism and Marijuana Regulation,”
UCLA Law Review 62, no. 1 (January 2015): 84–86.
151. Don C. Des Jarlais, “Harm Reduction in the USA: The Re-
search Perspective and an Archive to David Purchase,” Harm Re-
duction Journal 14 (2017): 1, 3.
152. Scott Burris, David Finucane, Heather Gallagher, and Joseph
Grace, “The Legal Strategies Used in Operating Syringe Exchange
Programs in the United States,” American Journal of Public Health
86, no. 8 (1996): 1161.
153. Des Jarlais, “Harm Reduction in the USA,” p. 3; Jessie
Balmert, “What Is Ohio Issue 1? Separating Fact from Fiction
on Divisive Drug Ballot Initiative,” WKYC.com, November
5, 2018; and 42 U.S.C. § 300ee–5 (1988). (“None of the funds
provided under this Act . . . shall be used to provide individuals
with hypodermic needles or syringes so that such individuals
may use illegal drugs.”)
154. Richard Weinmeyer, “Needle Exchange Programs’ Status in
U.S. Politics,” American Medical Association Journal of Ethics 18, no. 3
(March 2016): 252, 253.
155. “History of Health: Needle Exchange in San Francisco,” San
Francisco AIDS Foundation.
156. Des Jarlais, “Harm Reduction in the USA,” p. 4; and Balmert,
“What Is Ohio Issue 1?”
157. Consolidated Appropriations Act, Pub. L. No. 114-113, § 520,
129 Stat. 2652 (2015); Weinmeyer, “Needle Exchange Programs’
Status in U.S. Politics”; and Shankar Vedantam, Jennifer Schmidt,
Parth Shah, Tara Boyle, and Camila Vargas-Restrepo, “Life,
22
Death, and the Lazarus Drug: Confronting America’s Opioid Cri-
sis,” Hidden Brain podcast, NPR, June 24, 2019.
158. Marijuana Policy Project, “Medical Marijuana Map,”
Scribd.com, https://www.scribd.com/document/394217841/
Medical-Marijuana-Map.
159. New Mexico Stat. Ann. § 26-2A-2 (West 1978); and Lester
Grinspoon and James B. Bakalar, Marihuana: The Forbidden
Medicine, rev. ed. (New Haven, CT: Yale University Press, 1997),
pp. 4–7.
160. Joy, Marijuana and Medicine, p. viii; and Alex Kreit and Aaron
Marcus, “Raich, Health Care, and the Commerce Clause,” Wil-
liam Mitchell Law Review 31, no. 3 (2005): 957, 959.
161. Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).
162. 21 U.S.C. § 812(c)(10) (2018); Alliance for Cannabis Therapeu-
tics v. Drug Enforcement Administration, 15 F.3d 1131, 1134–35 (D.C.
Cir. 1994); Kreit, Controlled Substances: Crime, Regulation and Poli-
cy, p. 961; and Don Terry, “A Shot That Saves the Lives of Addicts
Is Now in Their Hands,” New York Times, July 24, 2010.
163. Peter Grinspoon, “Medical Marijuana,” Harvard Health Pub-
lishing, Harvard Health Blog, January 15, 2018. The very narrow
exception may be the Food and Drug Administration’s “Inves-
tigational New Drug” program, which permits studies on medi-
cal cannabis in narrowly circumscribed settings; and Robert C.
Randall and Alice M. O’Leary, Marijuana Rx: The Patients’ Fight
for Medicinal Pot (New York: Thunder’s Mouth Press, 1998),
pp. 104–12.
164. Jordan Heller, “From Drug War to Dispensaries: An Oral
History of Weed Legalization’s First Wave,” NYMag.com, Intel-
ligencer, November 14, 2018.
165. Office of the Registrar of Voters, San Francisco Voter Informa-
tion Pamphlet and Sample Ballot (San Francisco: Office of the Reg-
istrar of Voters, November 5, 1991), p. 12, https://webbie1.sfpl.org/
multimedia/pdf/elections/November5_1991short.pdf; and “Santa
Cruz County Measure A: Marijuana for Medical Use Initiative,”
Schaffer Library of Drug Policy, http://www.druglibrary.org/
schaffer/hemp/medical/santcruz.htm.
166. Chemerinsky, “Cooperative Federalism,” pp. 84–86; Com-
passionate Use Medical Marijuana Act, S.B. 119, 213th Leg., 2008
Sess. (N.J. 2009); Heller, “From Drug War to Dispensaries”; and
Balmert, “What Is Ohio Issue 1?”
167. Bowers, “What If Nothing Works?”; Lopez, “Case for Pre-
scription Heroin,” p. 784.
168. As both authors have examined elsewhere, court-imposed
treatment depends upon a logical and normative flaw: the
more typical drug-court graduate is the least compulsive user;
the genuinely addicted drug user, by comparison, is likelier to
fail out and face a draconian termination sentence—a jail or
prison sentence longer, perhaps, than even traditional drug
penalties. Daniel N. Abrahamson, “The Substance Abuse and
Crime Prevention Act of 2000: The Parameters and Prom-
ise of Proposition 36,” California Criminal Defense Practice Re-
porter 2001, no. 11 (November 2001): 535, 536; Bowers, “What
If Nothing Works?”; Lopez, “Case for Prescription Heroin,”
pp. 789, 792–98 (“Studies found that the sentences for failing
participants in New York City drug courts were typically two
to five times longer than the sentences for conventionally ad-
judicated defendants.”); Daniel N. Abrahamson, “Drug Courts
Are Not the Answer: Guest Commentary,” Los Angeles Daily
News, May 12, 2015; and Drug Policy Alliance, Drug Courts Are
Not the Answer: Toward a Health-Centered Approach to Drug Use
(New York: Drug Policy Alliance, March 21, 2011).
169. In Debate of Legalizing Marijuana, Disagreement over Drug’s
Dangers (Washington: Pew Research Center, April 14, 2015);
and American Addiction Centers, “Voices from Both Sides of
the Medical Marijuana Debate,” DrugAbuse.com.
170. Balmert, “What Is Ohio Issue 1?”
171. Jeannette Pforr, “Medication-Assisted Treatment: A Solution
or Substitution,” IBH News (blog), IBH Solutions, February 6,
2018.
172. Michael C. Dorf and Charles F. Sabel, “Drug Treatment
Courts and Emergent Experimentalist Government,” Vanderbilt
Law Review 53, no. 3 (2000): 831, 841–43 (discussing development
of first drug court in Miami Dade County, which was spearheaded
by local officials who “actively sought more effective alternatives
to incarceration”).
173. Corey S. Davis and Derek Carr, “Legal Changes to Increase
Access to Naloxone for Opioid Overdose Reversal in the United
States,” Drug and Alcohol Dependence 157 (December 2015): 112, 113
(noting that until 2015, “a patchwork of laws and legal consider-
ations” blocked many people’s access to naloxone).

174. Vedantam, “Life, Death, and the Lazarus Drug”; and Daniel
Kim, Kevin S. Irwin, and Kaveh Khoshnood, “Expanded Access
to Naloxone: Options for Critical Response to the Epidemic of
Opioid Overdose Mortality,” American Journal of Public Health 99,
no. 3 (March 1, 2009): 402, 403.
175. “Public Policy Statement on the Use of Naloxone for the
Prevention of Opioid Overdose Deaths,” American Society of
Addiction Medicine, October 2016.
176. Leo Beletsky et al., “Physicians’ Knowledge of and Willing-
ness to Prescribe Naloxone to Reverse Accidental Opiate Over-
dose: Challenges and Opportunities,” Journal of Urban Health 84,
no. 1 (January 2007): 126, 130, 132; Jennifer L. Doleac and Anita
Mukherjee, “The Moral Hazard of Lifesaving Innovations: Nalox-
one Access, Opioid Abuse, and Crime,” working paper, March 31,
2019; Kim, “Expanded Access to Naloxone”; Dorf, “Drug Treat-
ment Courts”; and Heller, “From Drug War to Dispensaries” (dis-
cussing objections to expanded access).
177. Doleac, “Moral Hazard”; Burris, “Legal Strategies,” pp. 1, 36.
178. “Understanding Naloxone,” Harm Reduction Coalition,
https://harmreduction.org/issues/overdose-prevention/overview/
overdose-basics/understanding-naloxone/.
179. John Keilman, “Dan Bigg Remembered as ‘Revolutionary’
for Approach to Heroin Crisis, Pioneered Life-Saving Naloxone,
Needle Handouts,” Chicago Tribune, August 22, 2018.
180. Keilman, “Dan Bigg Remembered.”
181. Terry, “Shot That Saves the Lives of Addicts”; and Chris
Bentley, “Chicago Recovery Alliance’s Naloxone Distribution
Saves Lives,” Comer Family Foundation.
182. Corey Davis, Legal Interventions to Reduce Overdose Mortality:
Naloxone Access and Good Samaritan Laws (Edina, MN: Network
for Public Health Law, December 10, 2018).
183. Davis, Legal Interventions.
184. Linda Evans and Eve Goldberg, “‘Prisons Are Big Business’:
The Prison-Industrial Complex and the Global Economy,” Cen-
tre for Research on Globalization, October 18, 2001.
185. Dorf, “Drug Treatment Courts”; Davis, Legal Interven-
tions to Reduce Overdose Mortality, pp. 841–43; Heller, “From
23
Drug War to Dispensaries”; Balmert, “What Is Ohio Issue 1?”;
Kirchner; and Terry, “Shot That Saves the Lives of Addicts.”
186. Burris, “Legal Strategies”; and Grinspoon, The Forbidden Med-
icine, p. 1164 (discussing approaches taken by Philadelphia, Cleve-
land, Los Angeles, and San Francisco).
187. Grinspoon, The Forbidden Medicine, pp. 1162, 1164; Ricky N.
Bluthenthal, Alex H. Kral, Jennifer Lorvick, and John K. Watters,
“Impact of Law Enforcement on Syringe Exchange Programs:
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no. 1 (1997): 61. On equitable discretion, see Bowers, “What If
Nothing Works?”
188. “Lowest Law Enforcement Priority Jurisdictions,” Mari-
juana Policy Project; and Amanda Ross and Anne W. Walker,
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dence from California,” Contemporary Economic Policy 35, no. 2
(April 2017): 231, 241.
189. Ross, “Impact of Low-Priority Laws”; Jacewicz, Teaching
Doctors About Addiction Medicine, p. 242, Table 1 and accompa-
nying text; and Curtis VanderWaal, Jamie F. Chriqui, Rachel
M. Bishop, and Duane McBride, “State Drug Policy Reform
Movement: The Use of Ballot Initiatives and Legislation to Pro-
mote Diversion to Drug Treatment,” Journal of Drug Issues 36,
no. 3 (2006): 619.
190. John Hudak and Grace Wallack, Ending the U.S. Government’s
War on Medical Marijuana Research (Washington: Brookings Insti-
tution, October 20, 2015).
191. Alex Halperin, “Most in US Think Cannabis Has Health Ben-
efits, Despite Lack of Data—Study,” The Guardian, July 23, 2018.
192. Janet Burns, “Opioid Activists Are Going Rogue to Prove
That Safe Injection Sites Save Lives,” Forbes, August 10, 2017.
193. Burns, “Opioid Activists” (describing an unauthorized safe-
injection site operating in the United States).
194. German Lopez, “Cities Are Considering Safe Injection Sites.
A Federal Judge Just Said They’re Legal,” Vox, October 2, 2019.
195. Martha Bebinger, “AMA Endorses Trying Supervised Injec-
tion Facilities,” CommonHealth, WBUR, June 16, 2017.
196. Cherri Gregg, “Krasner: Philly DA’s Office Won’t Prosecute
24

Those Using Safe Injection Sites,” CBS Philly, February 14, 2018;
and Joyce Chen, “Philadelphia Wants to Be First U.S. City to
Open Safe Injection Sites,” Rolling Stone, January 24, 2018 (quot-
ing Philadelphia police commissioner Richard Ross, who is
“keep[ing] an open mind” about supervised injection facilities).
197. Bobby Allyn, “As Philly Moves Closer to Supervised Injection
Site, Gov. Wolf Remains Opposed,” WHYY, October 8, 2018.
206. Colby Itkowitz, “Senate Passes Sweeping Opioids Pack-
age,” Washington Post, September 17, 2018; and Office of Senator
Michele Brooks, “Brooks’ Bill to Curb Suboxone Abuse Passes
Senate,” press release, June 28, 2019.
207. Bell, “Brown v. Board of Education and the Interest-
Convergence Dilemma,”; and Cockburn and St. Clair, White-
out, and accompanying text.

198. Allyn, “As Philly Moves.”
199. Allyn, “As Philly Moves.”
200. United States v. Safehouse, Civil Action No. 19-0519 (E.D. Pa.
October 2, 2019).
201. For instance, officials in Ithaca, New York, are likewise
considering the reform. Lisa W. Foderaro, “Ithaca’s Anti-
Heroin Plan: Open a Site to Shoot Heroin,” New York Times,
March 22, 2016.
202. Elana Gordon, “What’s the Evidence That Supervised Drug
Injection Sites Save Lives?,” NPR, September 7, 2018.
203. Natalie Jacewicz, “Teaching Doctors about Addiction Medi-
cine,” Kaiser Health News, August 2, 2016.
204. Mental Health Parity and Addiction Equity Act, Pub. L. No.
110-343, 122 Stat. 3765 (2008) (modified by the Affordable Care
Act to mandate coverage for addiction treatment and prohibit
discrimination between addiction treatment and other essential
health benefits).
205. Derrick A. Bell Jr., “Brown v. Board of Education and the
Interest-Convergence Dilemma,” Harvard Law Review 93, no. 3
(January 1980): 518, 523; and Cockburn and St. Clair, Whiteout (de-
scribing “interest convergence” and white America).
208. Stephanos Bibas, The Machinery of Criminal Justice (Oxford:
Oxford University Press, 2012).
209. “Good Samaritan Fatal Overdose Prevention Laws,” Drug
Policy Alliance.
210. Matthew R. Jordan and Daphne Morrisonponce, “Nalox-
one,” National Center for Biotechnology Information, March 16,
2020, https://www.ncbi.nlm.nih.gov/books/NBK441910/.
211. Tibor M. Brunt et al., “Drug Testing in Europe: Monitoring
Results of the Trans European Drug Information (TEDI) Proj-
ect,” Drug Testing and Analysis 9, no. 2 (February 2017): 188–198
(presenting data on drug-testing systems in Spain, Switzerland,
Belgium, Austria, Portugal, and the Netherlands).
212. Kate Sheridan, “How Effective Is Medication-Assisted
Treatment for Addiction? Here’s the Science,” STAT News,
May 15, 2017 (describing various studies on the effectiveness of
medication-assisted treatment).
213. “Safe Injection Sites: Are They Helping or Hurting?,” Nova
Recovery Center, November 14, 2018 (summarizing research on
safe injection sites).
214. Evan MacDonald, “Heroin and Fentanyl Killed More People
in Cuyahoga County in 2016 Than Homicides, Suicides and Car
Crashes,” Cleveland.com, May 24, 2017.

CITATION
Bowers, Josh, and Daniel Abrahamson. “Kicking the Habit: The Opioid Crisis and America’s Addiction to Prohibition.” Policy Analysis
No. 894, Cato Institute, Washington, DC, June 29, 2020. https://doi.org/10.36009/PA.894.

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