Everything Old Is New Again

The public rhetoric concerning drug use has softened markedly in recent years, which may prompt some to wonder whether the old War on Drugs is on the wane. Policymakers have replaced the punitive, carceral narratives of that old war—which by all measures has been an abysmal failure—with progressive, public health–oriented language. Driven by the devastating drug overdose crisis ravaging large swaths of rural, suburban, or otherwise predominantly white communities, a common refrain from both policymakers and law enforcement in our current reality has been that we cannot arrest our way out of this crisis.

People in power, in other words, are finally catching up to what public-health advocates have been saying for decades. This change in framing is due, at least in part, to the rampant whitewashing of prescription opioid misuse. Meanwhile, there have been at least some signals that a new approach to drug use has taken root in the United States. In rare agreement with a Biden administration initiative, President Trump endorsed cannabis rescheduling during his 2024 campaign, for example.

Yet our nation’s “new,” purportedly public health–centric approach to drug use is far from progressive. Our new drug war may be clothed in public health–promoting rhetoric, but it is largely an insidious retrenchment of the country’s longstanding, punitive approach to drug use. As a coauthor and I have written in depth elsewhere, this new war relies on three primary weapons: the increase in surveillance of certain drugs or those who use them; criminalization and civil punishment for the symptoms or behaviors related to drug use; and a decrease in access to treatment and harm reduction programs. Any fair assessment of these policies demonstrates that the drug was is not over. It has merely been retooled, recalibrated, and reframed.

Over the decades, federal, state, and local policymakers have long relied on drug war impulses to justify the creation of a highly intrusive surveillance state. Old drug war–provoked surveillance tools include, among other things, traditional wiretapping, GPS and geolocation tracking, infrared technology, aerial surveillance, and financial transaction monitoring. While such technology theoretically surveils everyone, it is primarily wielded by law enforcement to target subordinated and marginalized groups.

Likewise, one of the hallmarks of the new drug war has been the implementation and expansion of data-rich state prescription drug monitoring programs (PDMPs), which are electronic databases that track the prescribing and dispensing of controlled substances and other drugs of concern. These sophisticated software platforms, which were initially designed as law enforcement tools to combat prescription drug misuse, have dramatically expanded in scope and now monitor a wide range of substances, including non-controlled drugs. The information PDMPs collect for monitored drugs in all states is vast and can be deeply personal. The data inputs include the type of drug dispensed, quantity of drug dispensed, number of days a given quantity is supposed to last, date dispensed, prescriber and pharmacy identifiers, and patient identifiers, including name, address, zip code, and date of birth. An additional forty-seven states also collect and monitor the patient’s method of payment (e.g., cash, credit, insurance, etc.). It has also become increasingly popular for states to integrate into their PDMPs information from alternative sources, often unrelated to prescribing. Such data sources can include medical marijuana dispensations, mental health assessment tools, naloxone administrations, overdose information, criminal court information, and child welfare case information.

Modern PDMPs are powered by robust data analytics software platforms that deploy algorithms to continuously analyze and assess the myriad prescribing-related data the databases collect concerning prescribers, dispensers, and patients. PDMP software manufacturers identify specific prescription-related data points collected by the databases as proxies for drug misuse, diversion, and overdose risk. PDMP algorithms then weigh those proxies to generate various numerical drug misuse-related risk scores for each patient in the database.

PDMPs also deploy algorithms to evaluate and score prescriber-specific data to identify so-called problematic prescribing. In fact, most states have adopted PDMP software that automatically generates and periodically sends to prescribers evaluative “report cards” that, among other things, compare a provider’s prescribing behavior to that of their peers. In addition, several states have implemented PDMP platforms that automatically send similar reports concerning “high-risk” or purportedly problematic providers to law enforcement and state regulatory boards. Such practice can trigger a cascade of career-harming events for flagged providers, ranging from criminal investigation and prosecution to licensure suspension and revocation. The threat of being flagged by a PDMP can lead to the abandonment of patients in legitimate need of prescription drugs, as providers seek to avoid legal entanglements; this, in turn, instigates patients to seek solace in the dangerous, uncontrolled underground drug market.

Much like old drug war surveillance systems, PDMPs disproportionately target marginalized communities, including racial minorities and individuals with disabilities. PDMP algorithms are often steeped in racial and gender biases, leading to the over-surveillance and criminalization of certain groups. PDMPs’ use of criminal legal system and trauma history data as proxies for drug misuse risk disparately impacting women and racial minorities. Women are more likely to report and seek medical assistance for sexual abuse and trauma, and it goes without saying that racial minorities—who misuse drugs at virtually identical rates as their white counterparts—are much more likely to have criminal arrests and convictions. In addition, a 2021 study specifically found that “patients with higher pain severity or interference, those who were widowed, on leave, retired, or disabled, were most likely to have artificially elevated” PDMP risk scores.

This is particularly troubling given that prescription-drug surveillance is associated neither with decreases in the nonmedical use of controlled substances nor with reductions in drug-overdose mortality rates. Instead, several studies associate PDMPs with increased illicit drug overdose mortality and other negative health outcomes. For example, the implementation of state PDMPs has been associated with significant increases in prescription opioid and heroin-related treatment admissions in several jurisdictions. The validity of PDMP risk-scoring algorithms, which have been externally validated neither by peer review nor by the federal Food and Drug Administration, are also questionable. A health economist who created a PDMP risk-scoring algorithm and tested it on a commercially available insurance claims database found that the software platform generated false positives 89 percent of the time.

The new drug war also continues to adopt and expand on the old drug war’s favorite playbook: the use of severe criminal and civil punishment to deter drug use, possession, and distribution. The new drug war has also seen the proliferation of new laws that enhance criminal and civil punishment for drug-related activities.

One such example is the widespread adoption of drug-induced homicide (DIH) laws, which permit prosecutors to bring homicide charges against individuals who share or supply drugs that result in a fatal overdose. Nearly half of states, the federal government, and the District of Columbia now have a DIH (or drug delivery resulting in death) law on the books, and at least ten jurisdictions enacted new or expanded DIH laws between 2012 and 2019. In addition, DIH charges have escalated exponentially in response to the current overdose crisis. “Between 2012 and 2018 alone, the recorded number of DIH prosecutions jumped from 109 to 696,” which means that prosecutors increased their reliance on DIH laws by more than 500 percent in just six years.

DIH laws often create strict liability crimes because they do not require the state to prove any criminal intent (mens rea) to return a guilty verdict. As a result, they relieve prosecutors from their traditional duty to prove that the defendant delivered, sold, or distributed the drug that contributed to the overdose death with the criminal intent to cause that fatality. DIH laws are ineffective in reducing overdose deaths and may exacerbate drug overdose mortality by discouraging individuals from seeking help in the event of an overdose. It is not difficult to imagine that the fear of arrest and prosecution for homicide deters people from calling 911 or seeking medical assistance during a drug overdose episode, which can lead to additional preventable deaths. DIH laws not only disproportionately affect racial minorities, they increase stigma and barriers to accessing harm reduction services, medical services, and treatment for substance use disorders by contributing to the criminalization of people who use and sell drugs.

In addition to criminal penalties, the new drug war has done nothing to abate the dramatic civil collateral consequences that attend to individuals who use drugs, have a drug use disorder, or have a drug arrest or conviction. In 2021, for example, the Biden administration ignored a request to reconsider its enforcement of the federal law that denies public housing benefits to individuals who use cannabis and the family members with whom they reside. That draconian statute requires landlords to deny housing to—and terminate the tenancies of—eligible households if any individual in the household uses cannabis even if that person resides in a state that has legalized cannabis use.

Civil law also continues to create significant obstacles to evidence-based substance use disorder treatment for individuals who are pregnant or postpartum. Opioid agonist pharmacotherapy is the recommended treatment for pregnant individuals with opioid use disorder. Such medication therapy is, in fact, preferable to medically supervised withdrawal because withdrawal is associated with high relapse rates, which lead to worse health and pregnancy-related outcomes. People who are pregnant and seek evidence-based medication treatment, however, are often subject to harsh criminal and civil penalties.

Prosecutors also have a long history of deploying a panoply of criminal laws, including fetal harm statutes, to attack prenatal substance use and other pregnancy behaviors they view as fetal threats. As experts have documented, these laws disproportionately impact racial and ethnic minorities and people who are poor, who simultaneously lack access to prenatal health care and substance use treatment. And in the wake of the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, the threat of prosecution and punishment for pregnant people who use drugs is real.

Our current drug policy approaches continue to mimic and extend old drug war tactics insofar as they remain resistant to expanded access to effective treatment and harm reduction strategies. This is evidenced by the country’s ongoing low rates of access to gold-standard opioid use disorder (OUD) treatment, the shuttering or attempted shuttering of syringe service programs (SSPs), and the refusal to approve or fund the operation of overdose prevention centers (OPCs). Despite the proven effectiveness of these interventions in reducing drug-related harms, they continue to face significant opposition from policymakers and law enforcement agencies, much of it based on fear and stereotypes around drug use rather than science and research.

For example, the DEA attempted to roll back certain of the relaxed rules on telehealth and take-home supplies of OUD medications that were implemented during the COVID-19 pandemic. Research indicates that these reforms increased access to medication treatment for OUD and improved the health outcomes associated with OUD, but the DEA’s proposals to restrict them reflect the federal government’s continued preference for punitive control over compassionate care. In addition to being entirely devoid of evidentiary support, the DEA proposals were met with fierce hostility. The DEA received 38,369 comments from patients, patient advocates, health-care providers, and professional health organizations, many of which were strenuously opposed to the agency’s attempt to restrict access to OUD medications and other controlled substances that are prescribed to treat a panoply of complex, chronic conditions.

In the face of this intense resistance, the DEA repeatedly extended the COVID-era telemedicine flexibilities. More recently, in January 2025, the agency issued a final rule that, while improved from the initial proposal, remains more restrictive and onerous than the COVID-era telemedicine prescribing flexibilities. At the same time, the DEA proposed an additional rule that requires virtual practitioners to obtain special federal registrations and licenses in every state in which they practice. It further conditions access to OUD medications via telemedicine on acquiescence to nationwide PDMP surveillance. That proposals was quickly characterized by the American Telemedicine Association as a “major setback” for virtual care.

State and local policymakers have also taken aim at a different harm reduction strategy designed to improve drug use–related morbidity and mortality: syringe service programs, or SSPs, which are “community-based prevention programs that provide a range of social, medical, and mental health services—often including, but not limited to, the provision of sterile syringes, screening and treatment for infectious diseases and substance use disorders, and naloxone distribution—for individuals who inject drugs.” These programs have been studied for decades, and rigorous research demonstrates that SSPs are safe, cost-effective, and public-health-promoting.

SSPs have nonetheless been under attack across the United States. In 2021 West Virginia—a state that has high blood-borne infectious disease rates and even higher rates of overdose fatalities—enacted a law that severely restricts their operation and efficacy. Fueled by gentrification and the casino industry’s economic development concerns, officials in Atlantic City, New Jersey, enacted an ordinance in July 2021 outlawing SSPs with the intent to shut down its sole—and the state’s largest—provider, the South Jersey AIDS Alliance.

Perhaps most incredible, however, is what has occurred in Scott County, Indiana. In 2015 Scott County was experiencing one of the worst injection-drug-use-related HIV outbreaks in U.S. history. The southeastern Indiana county struggled to meaningfully respond to that public health emergency because Indiana law prohibited the operation of SSPs. As the problem intensified, however, state officials relented and passed a law to permit the county to temporarily stand up an SSP. In response, Scott County’s drug-related fatality rate reduced by 20 percent in 2019, and it reported just a single case of HIV transmission countywide in 2020. Consequently, the program became “a model for the rest of the country.” County officials nonetheless voted to end the county’s successful SSP in June 2021 due to concerns that the program was “enabl[ing] dangerous behavior.”

Policymakers have also vigorously opposed the operation and funding of a separate class of evidence-based, harm-reduction programs: OPCs. These are facilities where individuals who use drugs can do so safely under the supervision of medical professionals or other trained personnel. In addition to providing overdose prevention services, such as drug testing, sterile equipment, and naloxone administration, these programs often offer counseling, social services, legal services, housing, and health care treatment referral services.

OPCs have been extensively evaluated, and there is substantial evidence that they improve drug-use-related health outcomes and reduce overdose fatalities. OPCs also serve a public safety function in the areas where they are located because they are “associated with reduced public drug consumption, litter of drug consumption equipment, and crime.” The federal government, however, continues to criminalize the operation of OPCs under the CSA’s “crack house” prohibition and has repeatedly either sued to enjoin the operation of OPCs or threatened to do the same. This opposition has been bipartisan across the Trump and Biden administrations. Underlining this point, Trump’s U.S. attorney for Massachusetts recently reiterated the administration’s position that safe injection sites are “categorically illegal.”

Simply stated, our current drug policy approaches continue to mimic and extend old drug war tactics in that they remain resistant to expanded access to evidence-based treatment and proven-effective harm reduction strategies. Instead, criminalization, surveillance, and punishment remain the norm. In the face of this status quo, recent efforts to adopt a more health-oriented approach to drug policy in the United States fall woefully short; they amount to little more than window dressing that obscures the endurance of a paradigm that has been destructive through and through. When will enough be enough?

The failed drug war has claimed many lives, whether by encouraging the development of a volatile illicit drug supply—the unpredictable nature of which contributes to overdose deaths—or by facilitating the incarceration of generations of Black people and other people of color. Furthermore, as drug policy reformers have indicated, the carceral paradigm serves as a macro, upstream social determinant of health in that “it exacerbates many of the factors that negatively impact health and wellbeing, disproportionately affecting low-income communities and people of color who already experience structural challenges including discrimination, disinvestment, and racism.” This is because the drug war disrupts or undermines access to, among other things, affordable housing, education, health care, public benefits, and family support services, further entrenching the inequalities that drive chaotic drug use in the first place.

In other words, people and communities are experiencing death and illness at a higher rate as a result of these failures. After fifty-plus years of destruction, continuing down this path is madness. Unless we find the courage to win this war once and for all, the war will win over us. Millions of lives have already been lost. Changing course now could save millions more.

_{Image: Lewis Fagg / Unsplash}

Contributors

Jennifer Oliva Jennifer Oliva’s research and teaching interests include health law and policy, privacy law, evidence, torts, and complex litigation. Her scholarship has been published by or is forthcoming in the Virginia Law Review, California Law Review, Duke Law Journal, Northwestern University Law Review, UCLA Law Review, and online companions to the Yale Law Journal, University of Chicago Law Review, and New York University Law Review.

Topics

• Law & Policy

Tags

• criminalization
• drug scheduling
• war on drugs