Opioids, pot and criminal justice reform helped undermine this decade's War on Drugs

With an extraordinary number of Americans suffering, the door has opened to understanding and treating the pain of drug use rather than apply brute force.
Illustration of graves with drug paraphernalia engraved on them.
While the opioid crisis didn’t begin in this decade, it did accelerate to unprecedented heights, with record-breaking death rates leading to a drop in life expectancy.Kiki Ljung -- Folio Art / for NBC News
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By Zachary Siegel

This much we know: Americans like to do drugs. That might explain why a prescient headline in the satirical publication The Onion stands as one of the most enduring comments on American drug enforcement — “Drugs Win Drug War.”

There are ongoing arrests for cannabis and deep racial disparities among those detained, but the change in the trend line is profound.

While that article was published in 1998, it was only during the past decade that its parody devolved into grim reality. In many ways, this reality has been an aching nadir, with more lives lost annually to overdoses than AIDS, gun violence and car crashes. But this past decade also brought its highs (pun intended): Recreational marijuana prohibitions started to fall in a domestic domino effect as one state after another accepted that it was pointless to criminalize the use of such a widely consumed drug. And at root, it is this shifting attitude on the role of the criminal justice system in prosecuting drug use that signifies the most fundamental change in our love-hate relationship with controlled substances.

Though far from over, the War on Drugs has felt more like a tug of war across this past decade rather than a righteous crusade, with reformers trying to fend off the country’s prohibitionist impulse as it makes a last-gasp effort to ramp up arrests and enhance penalties. And the reformers have public opinion on their side — the decade comes to an end with a majority of Americans favoring a more compassionate approach than locking users up. The criminalization of drug use is both out of step with what people want and what the evidence shows to work; in fits and starts, policy, policing and the law are finally starting to catch up.

There’s no single cause on which to pin this shift in opinion, but the highly visible white victims of the opioid crisis — from suburban teenagers to the non-college educated across the Midwest and Appalachia — surely played a role. A 2015 New York Times headline captured this development better than anywhere else: “In Heroin Crisis, White Families Seek Gentler War on Drugs.”

The story went on to explain that “zero tolerance and stiff prison sentences” defined the Drug War back when the crack epidemic was its centerpiece and “poor, predominantly black urban areas” were its headquarters. In contrast, with almost 90 percent of first-time heroin users in the preceding decade white, suburban and small-town families vocally pushed to soften the country’s approach to drugs, “from altering the language around addiction to prodding government to treat it not as a crime, but as a disease,” as the Times put it.

While the opioid crisis didn’t begin in this decade, it did accelerate to unprecedented heights, with record-breaking death rates leading to a drop in life expectancy for three years in a row (2015-17), which hadn’t happened in America since the Spanish flu coincided with World War I. Of course, the Drug War, too, didn’t start in this decade, and its continuing legacy meant that white families didn’t quite get their wish. This decade saw prosecutors unleash harsh penalties on friends, family members and loved ones of overdose victims, who are increasingly being charged with homicide and manslaughter simply for sharing drugs.

But the criminal justice system still evolved, with more jails and prisons beginning to treat opioid addiction with life-saving medications like methadone and buprenorphine,. Meanwhile, pressure from outside the system such as lawsuits, bad publicity and shame also moved the needle. The decade ended with the fall of the company, Purdue Pharma, that produced the blockbuster painkiller OxyContin, which research based on recent court filings suggests was pivotal in sparking the first major wave of overdoses 20 years ago. According to the New York state attorney general, Purdue's owners the Sackler family tried to hide their ill-gotten billions overseas before declaring bankruptcy to fend off more than 2,000 civil suits as public demonstrations pushed a medical school and a museum to drop their name. (The Sacklers have disputed the AG's findings.)

If shame was a potent force in fighting against the company that oversold opioids, it was the shedding of stigmas that characterized the massive shift in public opinion toward marijuana in the past decade — which transformed more than that on just about any other policy across the American landscape. In 2000, 63 percent of Americans said the use of marijuana should be illegal, according to polling from Pew Research Center. By 2010, that number had dropped to 52 percent, and for the last 10 years it continued to plunge, shifting the balance in favor of marijuana. In 2019, a full two-thirds of Americans believed cannabis should be legal.

There is no way to characterize this but as a loss for the so-called War on Drugs. Marijuana not only continued to be consumed — with nearly 55 million people who indulge, it’s one of the most widely used drugs — but now, thanks to the legalization drive, there’s a chance to right wrongs of the past. For instance, once legalization goes into effect in Illinois on Jan 1, 2020, the city of Evanston will use tax revenue on cannabis to fund reparations for black residents.

Yes, there are ongoing arrests for cannabis and deep racial disparities among those detained, but the change in the trend line is profound. And with that change comes a repudiation of the founding principles of the erstwhile draconian approach: Nancy Reagan’s advice to “just say no” is clearly not a successful way to get people to curtail their pot use; putting users in jail is not an effective use of the criminal justice system; and normalization means quality control, taxation and other constructive mechanisms can be implemented.

So how did 80-year-old cannabis laws finally begin to crumble this past decade? Though very different in properties and ill effects, marijuana’s image shifted for some of the same reasons that opioids changed the drug conversation in America: White people being criminalized, the medical industry having a role in how to calibrate use of the drug, and a feeling among both liberals and conservatives that filling up jails with users was a waste of lives and money.

Cannabis laws didn’t change all by themselves, and it’s important to recognize the role that grass-roots advocacy played. “The remarkable progress of marijuana legalization over the past decade was driven not by for-profit interests but by people and organizations who care first and foremost about freedom, justice, compassion and human rights,” said Ethan Nadelmann, the founder and former director of the Drug Policy Alliance, the nonprofit that helped get cannabis on the ballot in numerous states.

Another explanation for this seismic shift away from the brain-frying-in-a-pan attitude toward drugs is generational. Fewer millennials and zoomers have grown up on abstinence anti-drug education after groups such as DARE lost millions in funding after research consistently showed its ’80s-style programming was ineffective (DARE has since rebranded and claims their “keepin’ it REAL” campaign works this time).

Underpinning the evolution in how consumption of cannabis is treated is the fact that the criminal justice system has come to be viewed as outdated, expensive and overly punitive. In 2018, over 75 percent of Americans — Democrats, Republicans, independents and especially women among them — believed that the criminal justice system needed major improvements. Some specific drug-related policies, such as mandatory minimum sentences erasing judges’ discretion to lower penalties for nonviolent offenders, are universally loathed.

Particularly significant has been the growing dissent from within the system over the past decade. From politicians to prosecutors to police chiefs, those who had formerly propped up the system were no longer defending it in the face of a mobilized electorate.

It’s too late to help the victims of these tragedies, but they could still galvanize us to band together to create a healthier society.

While the Obama administration provided a sweeping number of pardons and commutations to nonviolent drug offenders in federal prison, influential conservatives also joined the effort to reduce incarceration. Notably, mega-GOP donors the Koch brothers backed 2018’s First Step Act, which aims to reduce recidivism through a variety of new programs and sentencing guidelines, including reducing mandatory minimums. A year afterward, more than 3,000 people have been released. Newcomers to Congress are going even further, with politicians like New York Rep. Alexandria Ocasio-Cortez calling for the decriminalization of all drugs.

But much of the change was driven by local criminal justice systems. A politically strategic and well-disciplined movement of activists helped make the term “progressive prosecutor” trendy, while a wave of new district attorneys and prosecutors around the country refused to prosecute low-level drug offenses, preferring to deal with such cases outside the criminal system. Activists in Philadelphia scored a major legal victory over Safehouse, a nonprofit that hopes to open America’s first ever overdose prevention site — a facility where people can use drugs under medical supervision.

Major legal reforms of the decade have also occurred outside of liberal hubs. Smart policy like syringe-exchanges that challenge America’s quixotic quest for a drug-free society spread this past decade to states including Kentucky, North Carolina, West Virginia and Tennessee.

Since Richard Nixon declared drugs “public enemy No. 1” nearly 50 years ago, much of America’s drug policy focused on eradicating the supply of drugs. Finally, the country is wrestling with our insatiable demand for drugs, and given the extraordinary number of Americans suffering, the door has opened to understand and treat this pain as opposed to stamping it out with brute force.

This decade gave rise to the term “deaths of despair” to describe the ills of our time: overdoses, alcohol and suicide. It’s too late to help the victims of these tragedies, but they could still galvanize us to band together to create a healthier society.

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