The War on Drugs. What began as a battle waged on morals has created multiple public health crises, and no recent phenomenon illustrates this in more macabre detail than America's opioid disaster. 2017 alone amassed a higher death toll than the totality of American military casualties in the Vietnam, Iraq, and Afghanistan wars combined. With this wave of mortalities came a crash of parens patriae lawsuits filed by states, counties, and cities on the theory that jurisdictions are entitled to recompense for the costs of addiction ostensibly created by Big Pharma. To those attuned to the failures of the Iron Law of Prohibition, this litigious blame game functions merely as a Band-Aid over a deeply infected wound. This Article synthesizes empirical economic impact data to paint a clearer picture of the role that drug prohibition has played in the devastation of American communities, exposes parens patriae litigation as a misguided attempt at retribution rather than deterrence, and calls for the legal and political decriminalization of opiates. We reveal that America's fear of decriminalization has at its root the "chemical hook" fallacy--a holdover from Reagan-era drug policy that has been debunked by far less wealthy countries like Switzerland and Portugal, whose economies have already benefited from discarding the War on Drugs as an irrational and expensive approach to public health. We argue that the le gal and political acceptance of addiction as a public health issue--not the view that addiction is a moral failure to scourge--is the only rational, fiscally responsible option left to a country that badly needs both a prophylactic against future waves of heavy opioid casualties and restored faith in its own criminal justice system.
INTRODUCTION: DRUG ASSUMPTION RESISTANCE EDUCATION (D.A.R.E.) A. Prohibition Kills B. A Brief History of American Opiophilia C. The Iron Law of Prohibition D. Macroeconomic Depression as Unreported Demand II. JUST SAY NO A. Under the War on Drugs' Influence B. Drumming Power from Fear C. The Litigious Blame Game D. Return on Investment from Acceptance III. JUST SAY YES A. Ideologically Pure Solutions from Abroad B. The Limitations of Politically Feasible Initiatives C. Skip the Eggs-Kill the Black-Market Golden Goose D. Taxation Trumps Prohibition E. Home Brew Decriminalization IV. CONCLUSION I. INTRODUCTION: DRUG ASSUMPTION RESISTANCE EDUCATION (D.A.R.E.) (1)
"Despair may have made certain American communities more vulnerable to the epidemic. Economic and social factors may have contributed to the kindling--but the explosion in the supply of opioids was a flamethrower." (2)
America's opioid crisis is the latest battle in the War on Drugs, with war-like casualties. Like war, our opioid crisis is an entirely manmade, sweeping epidemic of death. (3) Major news outlets report that opioid overdoses have claimed more American casualties in one year alone than did the Vietnam, Iraq, and Afghanistan wars combined. (4) The World Health Organization estimates that 69,000 people die of opioid overdoses globally each year5--a sum barely greater than the 63,600 Americans who died from opioid overdoses in 2016 alone. (6) And since 2000, over 300,000 people (7)--roughly half the population of the state of Vermont (8)--have died from fatal opioid poisoning. Given that "[m]ore Americans die annually from [opioids] than are killed in car accidents or firearm incidents,'" (9) few can deny that the supersized scope of this national tragedy is uniquely American.
Our epidemic is not solely fueled by prescription oversupply, for our country's opioid-related deaths came not in one wave, but three. When listed as a toxicological cause of death, "opioids" include both illegal and legal FDA-approved formulations of the drug. For a diminishing portion of America, the former class is better known. Healthcare providers in one year wrote enough prescriptions to provide each American adult his own bottle of opioids like OxyContin and Vicodin, (10) and incidents of "medicine cabinet" overdoses were reported to have increased for at least a decade after increased prescribing habits began in the mid-1990s. (11)
Ten years after the peak of prescription opioid popularity came a tidal crash of heroin-related overdoses in 2010, (12) with another wave of deaths linked to synthetic opioids like fentanyl following soon after. (13) The U.S. Centers for Disease Control and Prevention (CDC) maintains that the strongest risk factor for heroin use is the "[p]ast misuse of prescription opioids," and describes the transition from off-label use of prescription opioids to heroin abuse as mere "part of the progression to addiction." (14) But according to the U.S. Department of Health & Human Services, increases in opioid-related fatalities are now driven by the use of illicitly manufactured fentanyl hybridized with heroin, counterfeit pills, and cocaine. (15)
What is worrisome about this trajectory from prescription opioids to fentanyl is the fact that their respective strengths are not linearly related. With their extremely variable potencies, (17) semi-synthetic heroin and synthetic fentanyl pose an exponentially more powerful threat. (18) And as we will illustrate later, the black-market economy virtually ensures their ample supply. The market for synthetic drugs has "never been so complex and widely spread." (19) This is a terrifying state of popularity for a category of drugs "up to 10,000 times" more potent than morphine, (20) for illicit opioids require neither Big Pharma, multi-million-dollar marketing budgets, nor free market availability, to supply their ever-increasing demand.
As Americans rapidly progressed from FDA-approved opioid use to illicit heroin and fentanyl, they also died in larger numbers, but the trajectory of overdose deaths today is detached from increases in new users of prescription drugs. (21) "[Clandestinely-manufactured synthetics" like fentanyl now constitute the "primary drivers" of opioid-related overdoses. (22) Our executive branch believes that our crisis can be solved by preventing children from stepping onto the slippery slope of opioid use. (23) How does that approach square with the trend of "dramatically" increasing "overdose deaths, addiction treatment admissions, and other adverse public health outcomes associated with [opioid] use ... since 2002," despite a simultaneous decline in new, nonmedical opioid users? (24) America has experienced such a sudden reversal in health from this crisis that its death toll has nearly surpassed that of the AIDS epidemic, which took the lives of 650,000 Americans between 1981 and 2015. (25) "A combination of behavioral change and drug therapy brought the US AIDS epidemic under control." (26) But "public awareness of the enormity of the AIDS crisis was far greater" than that of our opioid crisis today, (27) and our epidemic will likely cause millions to "age into Medicare in worse health than the currently elderly," positioning the middle aged to become a "lost generation" of health with "future[s] ... less bright than those who preceded them." (28) This cross generational destruction by opioid addiction is just one reason why our various legal, administrative, and policy approaches should aim to do more than merely prevent new opioid users. In order to do what works, we ought to glean insight from our past battles with these drugs.
A Brief History of American Opiophilia
Our current epidemic is not America's first bout with fatal opioid overdose poisoning en masse. Large-scale opioid abuse began almost immediately after the Civil War. (29) Deaths during this era were epidemiologically traced to the "popularization of hypodermically injected morphine," (30) which triggered thousands of overdoses between the 1870s and the 1920s. (31) State and federal legislation like the Pure Food and Drug Act of 1906, the Harrison Anti-Narcotic Act of 1914, and the Heroin Act of 1924 were enacted in response. (32) And countless newspapers articles published during that era--replete with yellow journalism-tinged titles like A Beautiful Opium Eater (33)--describe stories that, "aside from some Victorian-era moralizing," (34) feel strikingly familiar to those told on President Trump's CrisisNextDoor.gov. (35) The prototypical American anti-heroine heroin tale, then and now, goes something like this: a young American develops an addiction to opiates "at a vulnerable point in her life," finds enabling doctors, and then, inevitably, self-destructs. (36)
That tale, however, is a normatively prescribed archetype of abuse that inaccurately reflects our history with drug addiction. Often forgotten is America's battle with heroin addiction during the Vietnam War, when 20% of enlisted troops were addicted to heroin while stationed abroad. (37) A ready supply of cheap, illicit heroin--the apparent result of heavy "profiteering" by South Vietnamese government officials (38)--enabled high rates of use. But demand for analgesic escape was arguably extraordinary for this group as well. The hindsight of modern psychology lends a sense of obviousness to discussions about why heroin addiction flourished amongst U.S. servicemen during this era: "growing disenchantment with the war" and "progressive deterioration in unit morale" are posited to explain the instinct to self-medicate and hedonistically indulge while coping with the existential terror of life-threatening combat. (39) But heroin at the time was also considered the "bete noire of American drugs"--"the most addictive substance ever produced"--and "a narcotic so powerful" that it was "nearly impossible to escape." (40) A "horrified" American public awaited the war's end, fearing the apocalyptic return of hundreds of thousands of servicemen-turned-junkies. (41) Instead, the Archives of General Psychiatry found that 95% of those 20% of servicemen addicted to heroin did not resume their addictions...