The Other Public Health Crisis: How The DOJ Can Flatten the Overdose Curve


Amongst his first actions within the Oval Workplace, President Joe Biden signed an govt order convening a pandemic job pressure. This signaled an pressing dedication to utilizing science and proof with a purpose to bend the curve of the pandemic that has ravaged the US. 

However COVID-19 has not been the nation’s solely public well being catastrophe. The pandemic has turbo-charged the overdose disaster, already 20 years within the making. Preliminary data from the Facilities for Illness Management & Prevention (CDC) reveals a pointy spike in overdoses, and an evaluation of Emergency Medical Providers knowledge reveals overdoses up 50 percent over previous years. The Biden administration has a possibility to bend this curve by embracing confirmed measures and abandoning ineffective and counterproductive coverage. This may require coordinated motion by many federal, state, native, and tribal businesses. However the Division of Justice’s (DOJ) position deserves particular scrutiny as a result of it profoundly shapes the nation’s approaches to substance use, dependancy, and overdose.  

Background: The DOJ’s Function In Drug Enforcement & Regulation

The DOJ creates and influences drug coverage in a variety of methods. One is thru its discretionary enforcement decisions. By prioritizing the investigation, prosecution, and incarceration of people concerned in drug trafficking, the DOJ has maintained give attention to the “supply side” of the illicit drug market. Along with its felony enforcement, the DOJ makes use of mechanisms like consent decrees, civil litigation, and forfeiture to impact change on the bottom. Deployment of False Claims Act and different federal laws has been used to pursue pharmaceutical companies, prescribers, pharmacists, drug distributors and others to restrict the flow of pharmaceuticals in illicit channels. These enforcement efforts have achieved little to handle the disaster. 

A part of this work is completed by the Drug Enforcement Administration (DEA), which is housed inside the DOJ. The DEA conducts investigations, seizes medicine, and executes different Struggle on Medication techniques at residence and abroad. It performs an outsized position in shaping how different legislation enforcement businesses deal with overdose drug-related harms. As well as, regardless of its slim legislation enforcement experience, the DEA regulates the prescription of managed substances.

The DOJ additionally exerts big affect upon state, native,  and tribal businesses within the felony authorized system by means of billions of federal {dollars} in grant funding, coaching, joint job forces, forfeiture disbursements, technical help, and myriad different pathways.  

This affect combines with how the DOJ shapes black-letter insurance policies impacting overdose, substance use, and dependancy. Whereas it can’t enact laws, the DOJ has a direct hand in drafting legislative textual content and advocating on Capitol Hill. The DOJ additionally interprets federal statutes and points laws which have the pressure of legislation. For instance, the willpower of how medicine are scheduled inside the regime of the Controlled Substances Act is primarily made by the DEA. The Division’s attorneys then struggle to influence courts to undertake the federal government’s view of how legal guidelines must be interpreted and enforced. 

Lastly, the DOJ has essential informational affect. It controls and accesses large quantities of knowledge, together with prescription drug details about many Individuals.  By convening varied job forces, nationwide technique paperwork, and conferences, it diffuses info by means of networks of felony authorized decision-makers and opinion leaders. 

Its info manufacturing operate can also be operationalized by means of its place as a analysis gatekeeper. Its analysis arm—the National Institute of Justice—shapes the educational infosphere referring to how felony authorized techniques are designed and  operate. Lastly, the DOJ acts as a key gatekeeper for analysis involving managed substances. Sustaining a regulatory operate over analysis that may assist shift the scheduling of the medicine below its purview has endowed the DEA with the power to block or delay research that challenges its institutional preferences.  

In view of the overdose emergency, the DOJ can re-deploy these discretionary, policymaking, and knowledge instruments in service to public well being.

Right here’s how.

First, Do No Hurt

The Struggle on Medication has failed. The accelerating trajectory of the overdose disaster is a morbid reminder of this historic truth: Concurrently the U.S. has pursued a number of the most draconian drug policies in the world, it has skilled one of many worst drug crises in its history

General, the “success” of DOJ-led ventures diminished prescription drug overdose deaths by driving consumption towards unlawful medicine, the place deaths have surged. 

A lot of the DOJ’s consideration is concentrated on suppressing the diversion of prescription medicines despite the fact that such drugs are no longer driving the crisis. For example, at the least $27 million every year goes to funding Prescription Drug Monitoring Packages, or PDMPs. These monitoring techniques have shown a mixed record in lowering overdose and different drug harms, however continued cavalier funding illustrates the DOJ’s heavy-handed give attention to deterring opioid prescribing. These efforts have chilled prescribers from serving reputable ache wants and other people with substance use problems, and the dependancy drugs area stays extraordinarily under-staffed as a result of clinicians are scared away by the heavy hand of the DEA and its state counterparts. 

Because the DOJ pushed folks out of the clinic and into the black market, deaths from heroin soared. A current JAMA article posits that PMDPs and other interventions may have caused the increase. Quite than make it simpler for folks with opioid use dysfunction to entry drugs to deal with their illness and thereby scale back demand (a subject we focus on under), the DEA responded in its standard supply-focused approach, encouraging legislation enforcement to arrest individuals who manufactured, distributed, bought, or consumed medicine. Certainly, it poured new energies into international interdiction efforts to cease heroin from coming into the nation. Epic seizures adopted, and the DEA celebrated its “successes.” However traffickers responded by searching for out medicine that had been extra concentrated and might be extra readily hid. Their answer: fentanyl.

As deaths skyrocketed, the DOJ adopted a Janus-faced technique: proclaim a public well being mindset, stating that “we can’t arrest our approach out of this disaster,” whereas additionally leaning additional into interdiction and enforcement. Actual priorities might be measured by the place cash is requested and spent. The DOJ’s doc figuring out its FY21 budget request particularly concerning the overdose disaster asks Congress for $379,599,000. Of that, 90 % is for enforcement and interdiction actions and expanded DEA powers. The DEA’s own most recent annual report parades the previous 12 months’s most prized seizures and suggests a doubling down of the identical enforcement techniques which have fueled the disaster. 

Regardless of rising exuberance towards drug courts and different applications that heart the felony authorized system within the public response to dependancy and overdose, they deserve way more skepticism and scrutiny. Information proving their “effectiveness” are sometimes of poor high quality and weak to in depth bias. Drug courts, as an example, typically violate federal tips that mandate courts to permit members to take correctly prescribed medications to treat addiction. This mandate is mostly not enforced, regardless of proof that such insurance policies can have lethal penalties flowing from increased overdose risks related to abstinence-only insurance policies.  

Though the federal authorities doesn’t itself function many drug courts, federal funding channeled by means of the Bureau of Justice Help serves because the bedrock for these applications. For example, in fiscal 12 months 2019 the Complete Opioid, Stimulant, and Substance Abuse Program (COSSAP) awarded virtually $320 million to state, native, and tribal entities “to develop, implement, or develop complete efforts to establish, reply to, deal with, and assist these impacted by illicit opioids, stimulants and different medicine of abuse.” A lot of these funds threw good cash after unhealthy, comparable to by supporting drug courts ($81.2 million) and PDMPs (greater than $15 million), whereas a big fraction of the rest went to applications that insert legislation enforcement into partnerships with peer coaches and remedy suppliers. Certainly, a few of these applications can solely be accessed by exhibiting up at a police station and subjecting your self to a search and a warrant verify which will effectively get you arrested. 

The brand new administration can and should change the Division’s priorities and finances allocations, righting the course of a large company that has the facility to handle a disaster it helped to engender. 

Observe Restraint to Keep away from Additional Hurt 

Simply because the Division has the facility to decide on what to ask for in its discretionary funding requests, the DOJ can set inner coverage to encourage the smart use of discretion in deciding on circumstances for investigation and what fees to deliver (if any). Till just lately, DOJ coverage had been to pursue the harshest doable fees and penalties for which convictions might be readily obtained. Whereas rescinding the memo (issued below former President Trump’s first Lawyer Basic, Jeff Periods) codifying this pernicious coverage is a begin, it’s a marginal change that doesn’t deal with the structural dysfunction of the DOJ’s response to overdose and dependancy. 

Different actions are extra pressing. 

First, the DOJ ought to  cease dangerous “drug-induced” murder prosecutions. In permitting flawed deterrence concept to information its coverage, the DOJ gave life to a seldom-used sentence enhancement that dates again to the Eighties. Handed as a part of the Anti-Drug Abuse Act in 1986 the Drug Supply Leading to Loss of life (DDRD) provision permits for extreme penalties, together with life sentences, for individuals who distribute or promote medicine that end in an overdose loss of life. The DOJ has set the nationwide tone, prompting two dozen states to move related statutes and instantly funding some native prosecutors’ places of work to deliver DDRD, or “drug-induced” murder. circumstances. In lots of circumstances, federal prosecutors use the specter of a federal DDRD prosecution to coerce folks charged in state court docket into signing pleas for involuntary manslaughter, imposing prolonged sentences. 

Drug-induced homicide circumstances are designed to engender public assist for legislation enforcement’s position in addressing overdose. However analysis signifies that prosecutions are dangerously counterproductive and usually goal folks struggling dependancy or folks on the street-level of the market, not main traffickers. In lots of circumstances, it’s somebody who survives after folks use medicine collectively—typically a cherished one of many one that died—who’s then prosecuted and despatched to jail. These prosecutions map onto different examples of the felony authorized system’s disproportionate impression on BIPOC. Mathematical modeling additional means that these prosecutions have led to tens of 1000’s of excess overdose deaths. That is probably as a result of prosecutions discourage folks from calling 911 if an overdose happens (out of worry of authorized penalties) and encourage folks to make use of alone (with nobody to assist in the occasion of overdose). 

In June of 2021, a federal appeals court ruled that prosecutors have gone too far. Emma Semler, 26, was sentenced to 21 years in jail after sharing heroin with a good friend who overdosed and died in 2014. However in a 2-1 decision, the Third Circuit Court docket of Appeals vacated Semler’s conviction, explaining that “the definition of ‘distribute’ below the Managed Substances Act doesn’t cowl people who collectively and concurrently purchase possession of a small quantity of a managed substance solely for his or her private use.” Adopting the prosecution’s view, the bulk mentioned, would divert “punishment from traffickers to addicts, who contribute to the drug commerce solely as finish customers and who already undergo disproportionally from its harmful results.” Furthermore, “the specter of harsh penalties in any joint-use scenario may jeopardize addicts’ security much more by deterring them from utilizing collectively particularly in order that one can intervene if one other overdoses.” This can be the primary time a court docket has acknowledged how DDRD prosecutions of fellow customers don’t deal with traffickers and as an alternative improve overdose danger.

The brand new administration ought to embrace its energy of discretion by stopping these prosecutions altogether. 

However DDRD prosecutions are only one egregious illustration of the mismanagement of prosecutorial sources attribute of the DOJ’s response to the overdose disaster. All through the final a number of a long time there have been numerous examples of DOJ interventions that blocked hurt discount efforts that would have saved lives. The way in which to cease folks from dying of drug poisonings just isn’t by means of the idiot’s errand of attacking provide. One different is to clear the best way for cities, states, tribes, and different entities to pursue confirmed life-saving options no matter whether or not they arguably violate federal legislation.

Take drug checking. At the least two million Individuals undergo from opioid use dysfunction and way more use illicit opioids; all of them are susceptible to unintended overdose resulting from fentanyl tainting the drug provide and its inconsistent, unregulated titration. Should you imagine in remedy and restoration, you must hold folks alive. Drug testing strips or mass spectrometer expertise can detect the presence of fentanyl, but federal legislation criminalizes the possession of “drug paraphernalia” with a jail sentence of as much as three years. The DOJ ought to embrace the CDC’s current, historic advice that hurt discount businesses create drug checking applications as a instrument to fight overdose. Ask Congress to alter the legislation. Refuse to implement it within the meantime. Encourage states to not implement their paraphernalia legal guidelines in opposition to drug testing. This method wouldn’t be “enabling” drug use; it could be enabling survival.

As an artifact of stigma baked into coverage, the DOJ has jurisdiction over the regulation of medicines which are important for overdose prevention and dependancy remedy, together with buprenorphine (Suboxone). Regardless of being lauded because the gold commonplace in remedy for opioid dependancy, the DEA responded to the early opioid disaster by up-scheduling it from Schedule V to Schedule III within the Managed Substances checklist and making it exhausting to prescribe. A surgeon common report estimates that this important remedy solely reaches about one-tenth of the individuals who want it, and it’s far simpler to purchase fentanyl than it’s to get the drugs to cease utilizing fentanyl. 

This has created a market for unprescribed, “diverted” medications. Whether or not obtained in or out of a medical setting, the remedy is known to be extremely efficient at treating withdrawal and opioid use dysfunction. This remedy carries an extremely low overdose danger. Quite than persevering with to deal with it because the felony kin of heroin or fentanyl, the DEA may amend its regulatory stance to extend entry to this life-saving drugs, and the DOJ ought to pursue de facto decriminalization by means of a coverage of not arresting or prosecuting diversion or possession, a coverage that has saved lives in several municipalities. The DOJ ought to advance, relatively than discourage, each de jure and de facto decriminalization efforts on federal, state, and native ranges. 

However suboxone just isn’t the one remedy whose life-saving potential is unduly restricted by DOJ regulation. Methadone upkeep remedy is burdened with enormous red tape and regulatory boundaries, together with a DEA moratorium on cellular applications. Within the vein of liberating life-saving medicines, a associated space of modern hurt discount is within the provision of “safe supply.” This entails prescribing pharmaceutical-grade medicines to people who find themselves at the moment counting on road analogues of those medicines. In Canada and different jurisdictions which have efficiently deployed the protected provide framework, heroin, amphetamines, benzodiazepines, and different medicine kind a fuller spectrum of choices to cease the hurt of adulterated illicit provides. Above and past merely utilizing restraint in squashing such efforts, the DOJ has the authority to assist advance protected provide initiatives by means of a variety of channels, as we focus on under.

Likewise, the DOJ can assist or at the least not hinder the motion to open supervised consumption websites (also referred to as overdose prevention websites). These have been proposed in additional than a dozen U.S. cities. Regardless of the clear proof that these services stop overdose mortality, join folks to providers, don’t improve crime, and don’t serve to “recruit” folks into utilizing injection medicine, all have been met with DOJ threats of authorized motion together with prosecution. Safehouse in Philadelphia was scheduled to be the primary to open, however the DOJ introduced it to court docket, claiming that to open the power would violate the so-called “Crack Home” provision of the Managed Substances Act. The DOJ simply received one more ruling in federal court within the case. Much better could be if the DOJ simply obtained out of the best way. 

Abolish the DEA

Change in operate requires change in construction. As we have now written elsewhere, regardless of investing tons of of billions of taxpayer {dollars} and the earnest efforts of 1000’s of staff all through the years, the DEA has an abysmal observe file. Home and worldwide enforcement methods have failed to supply meant reductions in illicit drug markets. Pharmaceutical markets for managed substances can hardly be mentioned to be effectively regulated, and the DEA has woefully failed in its well being care and analysis administration duties. Each at residence and overseas, its operations have been a supply of numerous harms, together with human rights abuses, political instability, environmental degradation, and cascades of different poisonous outcomes. 

It’s long gone time to abolish this failed, costly company. That may require congressional approval, as would abolishing any of its element components or legislated missions. By way of govt motion alone, the administration may completely overhaul the company by means of useful resource allocation selections and coverage modifications. This is able to require selecting management that can depend on proof to scale back overdose deaths relatively than posturing with a purpose to protect turf. 

A dedication to proof and a willingness to scrap counterproductive applications could be a begin. A sober evaluation of the DEA’s applications utilizing significant metrics must be a prime precedence for this reorganization. An company devoted to regulating each licit and illicit drug markets must be held to account for the fact that, in the US, each formal and casual provide chains for psychoactive medicine are something however regulated. As an alternative of the round reasoning anchored to operational metrics like numbers of arrests and quantity of medication seized, the guiding benchmarks of “drug management” ought to give attention to how company actions impression drug-related harms, like overdose deaths. 

In approaching this reorganization, the DOJ should keep away from the “sunk prices” fallacy.  Sure, it invested trillions of {dollars} right into a coverage that was in the end unsuccessful in reaching its purpose, however persevering with to throw cash into the Struggle on Medication as an alternative of chopping our losses will solely depart us deeper in each debt and deaths. A panicked public clamored for the federal government to “do one thing” and the federal government responded in variety; doing one thing just isn’t the identical as doing one thing efficient.

From Prosecutorial Restraint to Science-Based mostly Priorities 

Along with issues DOJ should cease doing, there are key actions it should begin doing rather more aggressively. Prosecutorial instruments, as soon as largely reserved for imprisoning individuals who use medicine, can fight rampant client abuse within the rehab industrial complex. They will deal with discrimination within the well being care system focusing on folks affected by dependancy. They will assault restrictive zoning and different authorities insurance policies that infringe on the rights of people that use medicine. They will even be used to handle the foundation social and financial drivers of problematic opioid use and overdose. 

Hashish reform illustrates the DOJ’s skill to step again as native jurisdictions chart their very own path. Solely six states now have parity with federal legislation and maintain hashish to be absolutely unlawful with no medicinal makes use of. All different states have damaged from federal legislation partially or in complete. The hashish trade that has arisen from state reforms is a direct results of federal discretion. The identical mechanisms of discretion might be expanded to incorporate post-conviction and clemency evaluation for the 1000’s of people that have federal hashish convictions. Prison authorized sanctions cascade right into a lifetime of penalties in training, housing, employment, immigration, household, and different spheres. These tendrils have to be mapped and addressed in all areas of federal legislation and particular efforts have to be made for individuals who had been deported for hashish possession. 

The DOJ may also promote public well being efforts to handle overdose and dependancy. For example, it may possibly advance entry to lifesaving medicines like naloxone, buprenorphine, and methadone. There may be already work to scale back remedy boundaries in institutional settings like jails, group services, and nursing houses. Extra might be achieved to fight worth gouging, unfair collusion, and different business practices that put these medicines out of attain. Obligatory licensing and different mechanisms to develop entry might be thought of. The precise price of those medicines is usually a small fraction of the business costs. Extraordinary instances require extraordinary measures. 

Extra have to be achieved to enhance affected person entry to suppliers who can prescribe and dispense life-saving medicines to deal with opioid use dysfunction. Within the quick time period, the Division ought to work to completely abolish the “X waiver,” a rule that made it harder for docs to prescribe buprenorphine, and stand down in its aggressive monitoring and prosecution of prescribers of MAT. That is particularly vital in correctional establishments. The BOP should reform its insurance policies to supply remedy remedy in all federal carceral settings. It should mandate overdose prevention and naloxone distribution in all carceral settings that obtain DOJ cash. This work must also acknowledge and deal with deadly re-entry. Instruct establishments to induce medicines for opioid use dysfunction and facilitate connection to group suppliers. To additional enhance well being care in carceral settings, the DOJ ought to facilitate eliminating the inmate exception by supporting laws and regulatory efforts now underway.

In service to its info mission, the DOJ must also work with its sister businesses to facilitate the manufacturing and dissemination of correct details about medicine and their dangers. It should embrace science-based coverage by investing sources in understanding the place enforcement methods have been and proceed to be counterproductive—or iatrogenic. It may well spend money on figuring out public well being metrics which are tied to public security targets, and demand modifications amongst DOJ entities in addition to its grantees.

Conclusion: Redouble DOJ’s Dedication to Bending the Overdose Curve

The Division ought to demobilize its counterproductive efforts to handle the drug provide. Reassigning its personal brokers and stopping throwing good grant sources after unhealthy would go a great distance in lowering iatrogenic harms of those previous actions. On the similar time, permitting native innovation and hurt discount measures to proceed will open the door to broader deployment of confirmed public well being instruments to handle overdose. Ensuing redundancies might be invested in any variety of science-based priorities. This contains client safety, eliminating fraud and abuse within the rehab industrial sector, guaranteeing parity for psychological well being and substance use care in medical settings. It must also ponder making key medicines to handle overdose and dependancy extra accessible and reasonably priced. General, the DOJ’s justice mission ought to give attention to defending folks in opposition to highly effective pursuits that create the surroundings that makes folks weak to dependancy and overdose.

If this administration is critical about ending the overdose disaster, it might want to redeploy the instruments of the DOJ in true service to public well being. Change can’t come quickly sufficient.

The Different Public Well being Disaster: How The DOJ Can Flatten the Overdose Curve


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