The Iron Law of Prohibition

Seventy-two thousand overdose deaths in the US is the latest Centers for Disease Control Prevention estimate for 2017. It’s a huge number: more deaths than AIDS took in any single year. Beyond referring vaguely to increasing support for a “public health” response, a recent New York Times story largely blamed substances more than policies for this painful failure.

But drug war opponents do blame policies — those of the criminal justice system. It’s called the iron law of prohibition: the greater the intensity of law enforcement, the higher the potency of the drug targeted. A former director of NORML, Richard Cowan, summed it up this way: “the harder the enforcement, the harder the drugs.”

When alcohol was prohibited, beer and wine disappeared and the bootleggers made booze often described with gallows humor as “bathtub gin” — industrial alcohol mixed with flavoring in a tub that on occasion poisoned the drinkers.

Today the poison is fentanyl ordered on the Internet from China and delivered in packages like the thousands of other items. The kick this drug adds to heroin and, most recently, to stimulants like methamphetamine and cocaine is an example of the iron law. None of these drugs is made with any protections for the consumer.

Different policies could produce different results.

In 2015, the European Monitoring Center for Drugs and Drug Addiction published comparative statistics on overdose fatalities. Portugal, which decriminalized all drug use in 2001 — meaning drug users and their street-level suppliers no longer fear arrest or police intrusions — had three overdose deaths for every million citizens. The second lowest rate. Clearly decriminalization has not caused the disasters — increased use, the endangering of children — that the prohibitionists warn will happen if police are replaced by public health officials.

The European average overdose deaths per million was 17.3. The United Kingdom was way above average at 44.6, while for the Dutch it was 10.2

In the United States, using a different statistical base employed by the United Nations Office of Drug Control, in 2015 the death rate was 245.8 per million people between the ages of 15 and 64.

August 31 is International Drug Overdose Awareness Day, and the United States, while pledging to increase treatment and access to overdose prevention medicines, is also stepping up police enforcement. No less than Deputy Attorney General Rod Rosenstein, writing in the New York Times this week, is condemning safer consumption spaces where users can legally take drugs under the watchful eye of health professionals, who may be able to connect them with treatment options.

The iron law of prohibition suggests that increasing the intensity of law enforcement and implementing tolerant public health measures will conflict and likely create worse public health problems.

The current problem in the US can usefully be examined using this lens. In 2000, when doctor prescriptions for pharmaceutical opioids were high and before warnings spread that OxyContin caused addiction, the pills were easily diverted from their prescribed use. But 20-20 hindsight today reveals that opioid-related overdoses remained relatively low during this era. As restrictions on pharmaceutical supplies increased, overdose deaths started to spike.

The overdose deaths examined in 2000 were traced to pharmaceutical pills; by 2010, pharmaceuticals were a declining cause while heroin was on its way up. People who formerly depended on pills had become injecting heroin users. In 2000, deaths from fentanyl were virtually non-existent. By 2017, it was the major problem — and what’s worse, fentanyl is now mixed with meth and cocaine, making these stimulants surprise killers.

This is the paradox of the iron law, when pharmaceutical pills were easily found, there were overdoses, but historical trends make clear that the level of overdoses deaths were low and public health measures could have kept this number down without police involvement.

Today, the drug war is renewed by alarm over overdose deaths.

Sheila Vakharia, PhD, a policy expert at the Drug Policy Alliance, reports that stimulants are a growing cause of overdose deaths. In an email, she wrote that the CDC’s latest national overdose data — for the period between December 2015 and December 2017 — show that “cocaine-involved overdose deaths went from 6,841 to 14,058 (over doubled) and methamphetamine-involved deaths went from 5,777 to 10,523 (80+-percent increase).”

In New York State over the same period, she continued, “cocaine-involved overdose deaths went from 354 to 690 (almost double — 95 percent increase) and methamphetamine went from 36 to 133 (269 percent increase!!).”

This problem is not going away.

What should have been done in 2000 — when it was discovered that pharmaceuticals were being used by drug users — was an intensive education campaign about how to recover from overdoses and instruction on how to minimize harm from using the pills. A long-range strategy would also have looked at why these pills were becoming attractive to users while regulators attacked the false advertising of Purdue Pharma. One reason for the increase in addiction is that users thought the pills were safer than injecting heroin.

That perception was correct, but it was easy for the government to control the supply of these pills and as they became more scarce, users started injecting heroin. In time, dealers began cutting heroin with fentanyl and then we really saw deaths explode — eventually reaching the 72,000 figure we saw last year.

Criminalizing a person’s intimate habits is a bad idea. It can even be fatal.

Let me conclude with a great leap of faith. Opposing the prosecution of users and their dealers is something conventional politicians like Andrew Cuomo support only reluctantly, while less practiced politicians like Cynthia Nixon and Zephyr Teachout are proving to be open-minded about how to address drug use in society. Their inexperience might well be an asset. Let’s hope others learn from them.