Negotiating a truce in the war on drugs

A Penn Law symposium brought together experts from the legal, law enforcement, social work, and policy camps to discuss how to be less punitive and more protective.

Participants at the Addicted to the War on Drugs Symposium
Ethan Nadelman, founder and former executive director of the Drug Policy Alliance, Penn political science professor Marie Gottschalk, Evan Anderson, a senior lecturer in the School of Nursing, and Roseanne Scotti, the New Jersey director of the Drug Policy Alliance, discussed their policy ideas. (Photo: Gwyneth K. Shaw)

For more than 30 years, the metaphorical war on drugs tipped toward law enforcement. From urban street corners to international drug cartels, the idea was the same: Lock up the distributors, dealers, and users, and neighborhoods will be safer. 

But the problems weren’t resolved, even as incarceration rates skyrocketed. And drug overdose deaths have soared in recent years, to more than 70,000 nationwide in 2017—the majority involving opioid use. The tide has shifted toward promoting drug treatment, instead of jail, for users, and the movement to unwind the policies that led to mass incarceration is gathering momentum. 

So what now? On March 13, the student-run University of Pennsylvania Journal of Law & Public Affairs brought experts from the legal realm, activists, social workers, and members of the community together at Penn Law for a daylong symposium, “Addicted to the War on Drugs.”

 The conversations focused on a tough question: How to steer the ship in a different direction and get different results?

Jennifer Prah Ruger, the Amartya Sen Professor of Health Equity, Economics, and Policy at Penn’s School of Social Policy & Practice, said policies need to be evidence-based and focused on empowering people to make healthy choices and flourish, starting from early childhood. That means improving educational, health care, and work opportunities, as well as bolstering family and neighborhood networks. 

The solutions can’t come only from policy makers, Ruger said. Part of gathering the evidence needed to craft new ideas means listening to the communities affected by addiction, she said. 

“People are experts in their own experiences,” she said. “Let them help us understand what is going on and use the evidence to support the policies that are going to work.”

Across roles and disciplines, many said changing the laws should be a priority, but not the only one. The criminal justice reform bill passed by Congress late last year, dubbed the First Step Act, is just that, many said. It will take years, if not decades, to unwind the policies—and penalties—of the 1980s and ’90s, which reacted to the crack cocaine epidemic with often brutal punishments that fell most heavily on people of color.  

“We have a massive opioid problem,” said Alex Vitale, a sociology professor at Brooklyn College. “Criminalization is not the answer.”

The penalties extend beyond the walls of the courts and prisons, said Justine Olderman, executive director of the Bronx Defenders, a nonprofit public defense organization. An arrest for even a minor drug infraction, she said, can cause a public housing resident to be evicted, a parent to lose custody of their child, or a non-citizen to be deported. 

“How far are you willing to go to address what’s not working?” Olderman asked. 

Philadelphia District Attorney Larry Krasner, who was elected in 2017 after campaigning on a reform platform that included paring back drug prosecutions, agreed that it’s important to consider the effect on everyone in society of having a system like the one that’s been in place for decades. 

“It’s going to change when we are prosecutors do what we always should have done: define justice broadly,” he said. 

Krasner supports the opening of a safe injection site in Philadelphia, comparing it to the fight to distribute clean needs during the AIDS crisis in the 1980s. But William M. McSwain, the United States Attorney for the Eastern District of Pennsylvania, filed a suit earlier this year to stop it. 

Alison Donahue Kehner, an assistant U.S. Attorney and counsel to McSwain, said it’s not the job of prosecutors to change policy. Her office, she said, won’t turn away from enforcing the drug law.

“If you want to effect policy change, you should run for Congress,” she said. 

Potential solutions lie outside the courtroom, too. On a separate panel, Priya E. Mammen, an emergency room doctor and a fellow at Drexel University’s Lindy Institute for Urban Innovation, said treating overdoses exposes huge problems in the health care system.

“We see the things that aren’t addressed in other places,” Mammen said. “I see it as an access point, and I see it as a potential pivot.”

For example, she said some overdoses are accidents, the result of patients being prescribed opioids by one doctor and a drug that amplifies the effect by another doctor. An ER doctor like Mammen sees the overdose but often has no means to communicate the issue to the other doctors. 

Other users are overdosing because of fentanyl contamination, but most urine tests don’t react to fentanyl, so ER doctors end up looking at other reasons a patient is crashing. Finally, she said, too few doctors have the waiver necessary to prescribe buprenorphine, a medicine that is used to help opioid users stop—even though nearly all doctors are able to prescribe opioids.

“We treat symptoms of the problems, but not their causes,” said Leo Beletsky, an associate professor of law and health sciences at Northeastern University. “We know what works, but we often fail to do it.”

That problem extends into the political and policy framework, too. Neill Franklin, a longtime law enforcement officer in Maryland, is now the executive director of the Law Enforcement Action Partnership, which advocates for criminal justice and drug policy reforms. There will always be a role for law enforcement where drugs are concerned, he said. 

Police have fought the growing trend of decriminalizing marijuana, he said, in part because so many searches of people, cars, and homes start with an officer smelling the drug. 

“This is the number one tool for police for searching people,” Franklin said. “Law enforcement, generally speaking, does not want to see marijuana go away.”

Marie Gottschalk, a professor of political science in Penn’s School of Arts and Sciences and the author of “Caught: The Prison State and the Lockdown of American Politics,” said some of the current laws were the product of the “moral panic” about crack. 

The fears have ebbed, but the hugely punitive laws remain. That has had a big impact on who’s in jail, for how long, and how those imprisonments affect communities. And while African-Americans are jailed at an extremely high rate, even whites are incarcerated at much higher rates than in most other countries as a whole, she said.

She’s concerned that alternatives to traditional courts, such as drug courts, don’t change much and open the door to additional exploitation of users, who are often charged for the monitoring they undergo. 

“It’s still an idea that the courts should catch you, and it’s not respective of the public health model that you’re probably going to fail a few times before you get off of a drug,” Gottschalk said. “The police and the courts shouldn’t be the ones monitoring that.” 

Chris Moraff, a Philadelphia journalist who has been covering the opioid epidemic for years, particularly in the Kensington neighborhood, said flooding the streets with naloxone, which can reverse an overdose and be administered by someone with very basic training, has had a huge impact locally. 

But while efforts to move users into housing are helping, moving users out of the open-air camps into individual living situations means they’re using—and, too often, dying—alone, without someone who could reverse an overdose nearby. 

“We have a system where unmanageability is considered a symptom of a disease, but policies create that unmanageability,” he said.