Among his first actions in the Oval Office, President Joe Biden signed an executive order convening a pandemic task force. This signaled an urgent commitment to using science and evidence in order to bend the curve of the pandemic that has ravaged the United States.
But COVID-19 has not been the nation’s only public health disaster. The pandemic has turbo-charged the overdose crisis, already 20 years in the making. Preliminary data from the Centers for Disease Control & Prevention (CDC) shows a sharp spike in overdoses, and an analysis of Emergency Medical Services data shows overdoses up 50 percent over previous years. The Biden administration has an opportunity to bend this curve by embracing proven measures and abandoning ineffective and counterproductive policy. This will require coordinated action by many federal, state, local, and tribal agencies. But the Department of Justice’s (DOJ) role deserves special scrutiny because it profoundly shapes the nation’s approaches to substance use, addiction, and overdose.
Background: The DOJ’s Role In Drug Enforcement & Regulation
The DOJ creates and influences drug policy in a number of ways. One is through its discretionary enforcement choices. By prioritizing the investigation, prosecution, and incarceration of individuals involved in drug trafficking, the DOJ has maintained focus on the “supply side” of the illicit drug market. In addition to its criminal enforcement, the DOJ uses mechanisms like consent decrees, civil litigation, and forfeiture to effect change on the ground. Deployment of False Claims Act and other federal legislation 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 done little to address the crisis.
Part of this work is done by the Drug Enforcement Administration (DEA), which is housed within the DOJ. The DEA conducts investigations, seizes drugs, and executes other War on Drugs tactics at home and abroad. It plays an outsized role in shaping how other law enforcement agencies address overdose and other drug-related harms. In addition, despite its narrow law enforcement expertise, the DEA regulates the prescription of controlled substances.
The DOJ also exerts huge influence upon state, local, and tribal agencies in the criminal legal system through billions of federal dollars in grant funding, training, joint task forces, forfeiture disbursements, technical assistance, and myriad other pathways.
This influence combines with how the DOJ shapes black-letter policies impacting overdose, substance use, and addiction. While it cannot enact legislation, the DOJ has a direct hand in drafting legislative text and advocating on Capitol Hill. The DOJ also interprets federal statutes and issues regulations that have the force of law. For example, the determination of how drugs are scheduled within the regime of the Controlled Substances Act is primarily made by the DEA. The Department’s lawyers then fight to persuade courts to adopt the government’s view of how laws should be interpreted and enforced.
Finally, the DOJ has crucial informational influence. It controls and accesses massive amounts of data, including prescription drug information about many Americans. By convening various task forces, national strategy documents, and conferences, it diffuses information through networks of criminal legal decision-makers and opinion leaders.
Its information production function is also operationalized through its position as a research gatekeeper. Its research arm—the National Institute of Justice—shapes the academic infosphere relating to how criminal legal systems are designed and function. Finally, the DOJ acts as a key gatekeeper for research involving controlled substances. Maintaining a regulatory function over research that can help shift the scheduling of the drugs under its purview has endowed the DEA with the ability 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 information tools in service to public health.
First, Do No Harm
The War on Drugs has failed. The accelerating trajectory of the overdose crisis is a morbid reminder of this historical fact: At the same time as the U.S. has pursued some of the most draconian drug policies in the world, it has experienced one of the worst drug crises in its history.
Overall, the “success” of DOJ-led ventures reduced prescription drug overdose deaths by driving consumption toward illegal drugs, where deaths have surged.
Much of the DOJ’s attention is focused on suppressing the diversion of prescription medications even though such drugs are no longer driving the crisis. For instance, at least $27 million per annum goes to funding Prescription Drug Monitoring Programs, or PDMPs. These monitoring systems have shown a mixed record in reducing overdose and other drug harms, but continued cavalier investment illustrates the DOJ’s heavy-handed focus on deterring opioid prescribing. These efforts have chilled prescribers from serving legitimate pain needs and people with substance use disorders, and the addiction medicine field remains extremely under-staffed because clinicians are scared away by the heavy hand of the DEA and its state counterparts.
As the DOJ pushed people out of the clinic and into the black market, deaths from heroin soared. A recent JAMA article posits that PMDPs and other interventions may have caused the increase. Rather than make it easier for people with opioid use disorder to access medicine to treat their disease and thereby reduce demand (a topic we discuss below), the DEA responded in its usual supply-focused way, encouraging law enforcement to arrest people who manufactured, distributed, sold, or consumed drugs. Indeed, it poured new energies into international interdiction efforts to stop heroin from coming into the country. Epic seizures followed, and the DEA celebrated its “successes.” But traffickers responded by seeking out drugs that were more concentrated and could be more readily concealed. Their solution: fentanyl.
As deaths skyrocketed, the DOJ adopted a Janus-faced strategy: proclaim a public health mindset, stating that “we cannot arrest our way out of this crisis,” while also leaning further into interdiction and enforcement. Real priorities can be measured by where money is requested and spent. The DOJ’s document identifying its FY21 budget request specifically regarding the overdose crisis asks Congress for $379,599,000. Of that, 90 percent is for enforcement and interdiction activities and expanded DEA powers. The DEA’s own most recent annual report parades the past year’s most prized seizures and suggests a doubling down of the same enforcement tactics that have fueled the crisis.
Despite growing exuberance towards drug courts and other programs that center the criminal legal system in the public response to addiction and overdose, they deserve far more skepticism and scrutiny. Data proving their “effectiveness” are often of poor quality and vulnerable to extensive bias. Drug courts, for instance, often violate federal guidelines that mandate courts to allow participants to take properly prescribed medications to treat addiction. This mandate is generally not enforced, despite evidence that such policies can have deadly consequences flowing from increased overdose risks associated with abstinence-only policies.
Although the federal government does not itself operate many drug courts, federal funding channeled through the Bureau of Justice Assistance serves as the bedrock for these programs. For instance, in fiscal year 2019 the Comprehensive Opioid, Stimulant, and Substance Abuse Program (COSSAP) awarded almost $320 million to state, local, and tribal entities “to develop, implement, or expand comprehensive efforts to identify, respond to, treat, and support those impacted by illicit opioids, stimulants and other drugs of abuse.” Much of those funds threw good money after bad, such as by supporting drug courts ($81.2 million) and PDMPs (more than $15 million), while a significant fraction of the remainder went to programs that insert law enforcement into partnerships with peer coaches and treatment providers. Indeed, some of those programs can only be accessed by showing up at a police station and subjecting yourself to a search and a warrant check that may well get you arrested.
The new administration can and must change the Department’s priorities and budget allocations, righting the course of a massive agency that has the power to address a crisis it helped to engender.
Practice Restraint to Avoid Further Harm
Just as the Department has the power to choose what to ask for in its discretionary funding requests, the DOJ can set internal policy to encourage the wise use of discretion in selecting cases for investigation and what charges to bring (if any). Until recently, DOJ policy had been to pursue the harshest possible charges and penalties for which convictions could be readily obtained. While rescinding the memo (issued under former President Trump’s first Attorney General, Jeff Sessions) codifying this pernicious policy is a start, it is a marginal change that does not address the structural dysfunction of the DOJ’s response to overdose and addiction.
Other actions are more urgent.
First, the DOJ should stop harmful “drug-induced” homicide prosecutions. In allowing flawed deterrence theory to guide its policy, the DOJ gave life to a seldom-used sentence enhancement that dates back to the 1980s. Passed as part of the Anti-Drug Abuse Act in 1986 the Drug Delivery Resulting in Death (DDRD) provision allows for severe penalties, including life sentences, for people who distribute or sell drugs that result in an overdose death. The DOJ has set the national tone, prompting two dozen states to pass similar statutes and directly funding some local prosecutors’ offices to bring DDRD, or “drug-induced” homicide. cases. In many cases, federal prosecutors use the threat of a federal DDRD prosecution to coerce people charged in state court into signing pleas for involuntary manslaughter, imposing lengthy sentences.
Drug-induced homicide cases are designed to engender public support for law enforcement’s role in addressing overdose. But research indicates that prosecutions are dangerously counterproductive and typically target people suffering addiction or people at the street-level of the market, not major traffickers. In many cases, it is someone who survives after people use drugs together—often a loved one of the person who died—who is then prosecuted and sent to prison. These prosecutions map onto other examples of the criminal legal system’s disproportionate impact on BIPOC. Mathematical modeling further suggests that these prosecutions have led to tens of thousands of excess overdose deaths. This is possibly because prosecutions discourage people from calling 911 if an overdose occurs (out of fear of legal consequences) and encourage people to use alone (with no one to help in the event 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 prison after sharing heroin with a friend who overdosed and died in 2014. But in a 2-1 decision, the Third Circuit Court of Appeals vacated Semler’s conviction, explaining that “the definition of ‘distribute’ under the Controlled Substances Act does not cover individuals who jointly and simultaneously acquire possession of a small amount of a controlled substance solely for their personal use.” Adopting the prosecution’s view, the majority said, would divert “punishment from traffickers to addicts, who contribute to the drug trade only as end users and who already suffer disproportionally from its dangerous effects.” Moreover, “the threat of harsh penalties in any joint-use situation could jeopardize addicts’ safety even more by deterring them from using together specifically so that one can intervene if another overdoses.” This may be the first time a court has recognized how DDRD prosecutions of fellow users do not address traffickers and instead increase overdose risk.
The new administration should embrace its power of discretion by stopping these prosecutions altogether.
But DDRD prosecutions are just one egregious illustration of the mismanagement of prosecutorial resources characteristic of the DOJ’s response to the overdose crisis. Throughout the last several decades there have been countless examples of DOJ interventions that blocked harm reduction efforts that could have saved lives. The way to stop people from dying of drug poisonings is not through the fool’s errand of attacking supply. One alternative is to clear the way for cities, states, tribes, and other entities to pursue proven life-saving solutions regardless of whether they arguably violate federal law.
Take drug checking. At least two million Americans suffer from opioid use disorder and far more use illicit opioids; all of them are at risk of accidental overdose due to fentanyl tainting the drug supply and its inconsistent, unregulated titration. If you believe in treatment and recovery, you have to keep people alive. Drug testing strips or mass spectrometer technology can detect the presence of fentanyl, yet federal law criminalizes the possession of “drug paraphernalia” with a prison sentence of up to three years. The DOJ should embrace the CDC’s recent, historic recommendation that harm reduction agencies create drug checking programs as a tool to combat overdose. Ask Congress to change the law. Refuse to enforce it in the meantime. Encourage states not to enforce their paraphernalia laws against drug testing. This approach wouldn’t be “enabling” drug use; it would be enabling survival.
As an artifact of stigma baked into policy, the DOJ has jurisdiction over the regulation of medications that are vital for overdose prevention and addiction treatment, including buprenorphine (Suboxone). Despite being lauded as the gold standard in treatment for opioid addiction, the DEA responded to the early opioid crisis by up-scheduling it from Schedule V to Schedule III in the Controlled Substances list and making it hard to prescribe. A surgeon general report estimates that this essential medication only reaches about one-tenth of the people who need it, and it is far easier to buy fentanyl than it is to get the medicine to stop using fentanyl.
This has created a market for unprescribed, “diverted” medications. Whether obtained in or out of a medical setting, the medication is known to be incredibly effective at treating withdrawal and opioid use disorder. This medication carries an incredibly low overdose risk. Rather than continuing to treat it as the criminal kin of heroin or fentanyl, the DEA could amend its regulatory stance to increase access to this life-saving medicine, and the DOJ should pursue de facto decriminalization through a policy of not arresting or prosecuting diversion or possession, a policy that has saved lives in several municipalities. The DOJ should advance, rather than discourage, both de jure and de facto decriminalization efforts on federal, state, and local levels.
But suboxone is not the only medication whose life-saving potential is unduly restricted by DOJ regulation. Methadone maintenance therapy is burdened with enormous red tape and regulatory barriers, including a DEA moratorium on mobile programs. In the vein of liberating life-saving medications, a related area of innovative harm reduction is in the provision of “safe supply.” This involves prescribing pharmaceutical-grade medications to people who are currently relying on street analogues of these medications. In Canada and other jurisdictions that have successfully deployed the safe supply framework, heroin, amphetamines, benzodiazepines, and other drugs form a fuller spectrum of options to stop the harm of adulterated illicit supplies. Above and beyond simply using restraint in squashing such efforts, the DOJ has the authority to help advance safe supply initiatives through a number of channels, as we discuss below.
Likewise, the DOJ can support or at least not hinder the movement to open supervised consumption sites (also known as overdose prevention sites). These have been proposed in more than a dozen U.S. cities. Despite the clear evidence that these facilities prevent overdose mortality, connect people to services, do not increase crime, and do not serve to “recruit” people into using injection drugs, all have been met with DOJ threats of legal action including prosecution. Safehouse in Philadelphia was scheduled to be the first to open, but the DOJ brought it to court, claiming that to open the facility would violate the so-called “Crack House” provision of the Controlled Substances Act. The DOJ just won yet another ruling in federal court in the case. Far better would be if the DOJ just got out of the way.
Abolish the DEA
Change in function requires change in structure. As we have written elsewhere, despite investing hundreds of billions of taxpayer dollars and the earnest efforts of thousands of employees throughout the years, the DEA has an abysmal track record. Domestic and international enforcement strategies have failed to produce intended reductions in illicit drug markets. Pharmaceutical markets for controlled substances can hardly be said to be well regulated, and the DEA has woefully failed in its health care and research management tasks. Both at home and abroad, its operations have been a source of countless harms, including human rights abuses, political instability, environmental degradation, and cascades of other toxic outcomes.
It is long past time to abolish this failed, expensive agency. That would require congressional approval, as would abolishing any of its component parts or legislated missions. Through executive action alone, the administration could thoroughly overhaul the agency through resource allocation decisions and policy changes. This would require choosing leadership that will rely on evidence to reduce overdose deaths rather than posturing in order to preserve turf.
A commitment to evidence and a willingness to scrap counterproductive programs would be a start. A sober review of the DEA’s programs using meaningful metrics should be a top priority for this reorganization. An agency dedicated to regulating both licit and illicit drug markets should be held to account for the reality that, in the United States, both formal and informal supply chains for psychoactive drugs are anything but regulated. Instead of the circular reasoning anchored to operational metrics like numbers of arrests and volume of drugs seized, the guiding benchmarks of “drug control” should focus on how agency actions impact drug-related harms, like overdose deaths.
In approaching this reorganization, the DOJ must avoid the “sunk costs” fallacy. Yes, it invested trillions of dollars into a policy that was ultimately unsuccessful in achieving its aim, but continuing to throw money into the War on Drugs instead of cutting our losses will only leave us deeper in both debt and deaths. A panicked public clamored for the government to “do something” and the government responded in kind; doing something is not the same as doing something effective.
From Prosecutorial Restraint to Science-Based Priorities
In addition to things DOJ must stop doing, there are key actions it must start doing much more aggressively. Prosecutorial tools, once mostly reserved for imprisoning people who use drugs, can combat rampant consumer abuse in the rehab industrial complex. They can address discrimination in the health care system targeting people affected by addiction. They can attack restrictive zoning and other government policies that infringe on the rights of people who use drugs. They can even be used to address the root social and economic drivers of problematic opioid use and overdose.
Cannabis reform illustrates the DOJ’s ability to step back as local jurisdictions chart their own path. Only six states now have parity with federal law and hold cannabis to be fully illegal with no medicinal uses. All other states have broken from federal law in part or in whole. The cannabis industry that has arisen from state reforms is a direct result of federal discretion. The same mechanisms of discretion could be expanded to include post-conviction and clemency review for the thousands of people who have federal cannabis convictions. Criminal legal sanctions cascade into a lifetime of consequences in education, housing, employment, immigration, family, and other spheres. These tendrils must be mapped and addressed in all areas of federal law and special efforts must be made for people who were deported for cannabis possession.
The DOJ can also promote public health efforts to address overdose and addiction. For instance, it can advance access to lifesaving medications like naloxone, buprenorphine, and methadone. There is already work to reduce medication barriers in institutional settings like jails, group facilities, and nursing homes. More can be done to combat price gouging, unfair collusion, and other commercial practices that put these medications out of reach. Compulsory licensing and other mechanisms to expand access can be considered. The actual cost of these medications is often a small fraction of the commercial prices. Extraordinary times require extraordinary measures.
More must be done to improve patient access to providers who can prescribe and dispense life-saving medications to treat opioid use disorder. In the short term, the Department should work to fully abolish the “X waiver,” a rule that made it harder for doctors to prescribe buprenorphine, and stand down in its aggressive monitoring and prosecution of prescribers of MAT. This is especially critical in correctional institutions. The BOP must reform its policies to offer medication treatment in all federal carceral settings. It must mandate overdose prevention and naloxone distribution in all carceral settings that receive DOJ money. This work should also acknowledge and address fatal re-entry. Instruct institutions to induce medications for opioid use disorder and facilitate connection to community providers. To further improve health care in carceral settings, the DOJ should facilitate eliminating the inmate exception by supporting legislation and regulatory efforts now underway.
In service to its information mission, the DOJ should also work with its sister agencies to facilitate the production and dissemination of accurate information about drugs and their risks. It must embrace science-based policy by investing resources in understanding where enforcement strategies have been and continue to be counterproductive—or iatrogenic. It can invest in identifying public health metrics that are tied to public safety goals, and demand changes among DOJ entities as well as its grantees.
Conclusion: Redouble DOJ’s Commitment to Bending the Overdose Curve
The Department should demobilize its counterproductive efforts to address the drug supply. Reassigning its own agents and stopping throwing good grant resources after bad would go a long way in reducing iatrogenic harms of these past actions. At the same time, allowing local innovation and harm reduction measures to proceed will open the door to broader deployment of proven public health tools to address overdose. Resulting redundancies can be invested in any number of science-based priorities. This includes consumer protection, eliminating fraud and abuse in the rehab industrial sector, ensuring parity for mental health and substance use care in medical settings. It should also contemplate making key medications to address overdose and addiction more accessible and affordable. Overall, the DOJ’s justice mission should focus on protecting people against powerful interests that create the environment that makes people vulnerable to addiction and overdose.
If this administration is serious about ending the overdose crisis, it will need to redeploy the tools of the DOJ in true service to public health. Change can’t come soon enough.