Rights-Based Approach to Overdose Epidemic Must Include Decriminalization

Diederik Lohman and Kasia Malinowska

In her blogAmerica’s Opioid Epidemic: A Rights-Based Approach”, Juliet Sorensen argues that the United States must commit “resources to proven interventions and the highest attainable standard of care” to turnaround an overdose crisis that is killing tens of thousands of Americans every year. While we agree with Sorensen’s call for more funds, we would argue that a measure that does not require resources—indeed, that would free them up—should be a core element of a rights-based approach to this crisis: decriminalizing drug possession for personal use.

Although the public discourse increasingly treats drug use as a public health issue, legally it continues to constitute a criminal offense in all of the United States. Indeed, law enforcement agencies enforce these criminal statutes with vigor: a joint American Civil Liberties Union and Human Rights Watch report published in 2016 found that every 25 seconds someone is arrested in the United States simply for possessing a drug for their personal use. Additionally, more than one in nine arrests made by state law enforcement is for drug possession, amounting to a total of 1.25 million arrests each year.

From a human rights perspective, criminalization of drug use per se is inherently problematic as it infringes on people’s right to autonomy and privacy for private behavior. While the government has good reason to discourage drug use given the health and other harms it can cause, the imposition of criminal sanctions is a disproportionate measure when that private behavior causes no harm to others. It is thus inconsistent with human rights norms.

But criminalization is even more inappropriate in the context of an overdose crisis that is killing people by the thousands because it is essential that people who use drugs feel safe contacting the authorities to seek help, report an overdose, or alert them to dangerous batches of drugs—for example, heroin adulterated with the powerful synthetic opioid fentanyl.

As long as drug use is a criminal offense, however, the threat of arrest or criminal charges will continue to hang over the heads of people who use drugs, and push them away from the health and social services that can save their lives or those of fellow drug users. Research has repeatedly found that criminalization of drug use makes people who use drugs less likely to seek treatment or other health services or report a suspected overdose. The Good Samaritan laws that Sorensen mentions may reduce this reluctance but are unlikely to negate it altogether.

While the current overdose crisis began in rural America and initially primarily killed white Americans, it has now spread to urban areas and is increasingly exacting a toll on African American and Latino communities. Kaiser Family Foundation data shows that, in 2012, the overdose death rate among white Americans was almost 2.5 times higher than among Black Americans; in 2017, it was 1.5 times higher. Criminalization is a particularly significant barrier to countering the overdose crisis in these communities because of the racially biased enforcement. For many years, law enforcement agencies have disproportionately targeted Blacks and Latinos for arrest and prosecution on drug charges. The ACLU/HRW study found that, nationally, Black adults were more than 2.5 times as likely as white adults to be arrested for drug possession, and that in some states the disparity was as large as 6 to 1.

Decriminalizing drug possession for personal use would be an important step toward creating the trust between communities, law enforcement, and health authorities that is essential to addressing the health harms of drug use and to reducing overdose deaths. And we know that decriminalization works. In the 1990s, Switzerland faced major problems with illicit drug use and a growing HIV epidemic. Instead of doubling down on a criminal justice response, it decriminalized drug use, expanded harm reduction services, and opened safe injecting sites. Today, Switzerland has among the lowest levels of drug related deaths and new HIV infections in Europe. Faced with similar problems, Portugal decided to decriminalize drug use and scale up evidence-based drug treatment, including methadone and buprenorphine programs, in 2000. It now boasts among the lowest drug mortality rates in Europe. Moreover, decriminalization appears to have little or no effect on levels of drug use in a population.

We endorse Sorensen’s calls for increased availability of naloxone, Good Samaritan laws, and greater access to drug and other medical treatments. They are all key parts of a rights-based response to the overdose crisis. But decriminalization of drug possession for personal use must lie at the heart of that response.

Diederik Lohman is a visiting scholar, Dornsife School of Public Health, Drexel University

Kasia Malinowska is director, Global Drug Policy Program. Open Society Foundations