Abstract

Excerpted From: Barbara Fedders, Opioid Policing, 94 Indiana Law Journal 389 (Spring, 2019) (448 Footnotes) (Full Document)

BarbaraFeddersPrescriptions for, addiction to, and death from opioids have risen dramatically in the past two decades. In this period, personal use of opioid painkillers went up nearly 500%. Though regulators have begun to crack down on over-prescription by doctors, illicit opioid use persists; heroin and fentanyl use are both on the rise. Over two million people currently meet the medical criteria for opioid use disorder. In 2017, 47,000 people died from opioid-related overdose deaths, a number higher than in the previous year. The number of drug overdose-related deaths exceeds American casualties at the peak of the AIDS crisis. Federal and state policymakers have begun to push for severe criminal penalties for people who sell or share opioids, including urging prosecutions under so-called “drug-induced homicide” statutes. Such statutes permit homicide prosecutions whenever a defendant delivers a controlled substance and someone dies from ingesting it; the only mens rea requirement is that the defendant knew she was delivering a controlled substance, as opposed to a standard of recklessness or negligence.

Notwithstanding this move to crack down on suspected opioid dealers, the dominant cultural narrative surrounding people who take opioids is sympathetic. In contrast to the negative rhetoric that characterized the crack cocaine crisis--most prominently the demonization of pregnant women of color who used crack heroin users in the 1950s and 1960s derided as “junkies,” today's opioid discourse tends to avoid excessively harsh judgment of users. Commentators instead highlight the genetic component of opioid misuse; advocates point to science showing that addiction is a disease, arguing that as a result people who misuse opioids deserve treatment instead of punishment. Elected officials stress the culpability of pharmaceutical companies for aggressive marketing, and physicians for profligate prescribing. Social scientists link opioid addiction to the high unemployment rate and personal isolation in areas where it is most widespread. They argue for more drug treatment and overdose prevention for users. Policymakers and journalists highlight the fact that opioid addiction affects white, young suburbanites. These references to race and class work to differentiate opioid addiction in the popular imagination from drug scourges from the last five decades, which instead primarily affected poor people of color, thereby justifying--however implicitly--the calls for a response to the opioid crisis that lies outside the criminal system.

Against this backdrop of a spike in fatal overdoses and a more compassionate attitude toward opioid users, a growing number of police departments have moved away from the use of arrest, detention, and initiation of criminal proceedings as the primary means for addressing violations of drug-possession statutes. Instead, these departments have adopted one of two distinct approaches, each of which incorporates public-health perspectives on drug use and addiction. The first is a pre-booking program through which officers refer low-level alleged offenders to community-based social services with an aim of diverting them from the criminal system. The second form allows individuals to walk into a precinct or approach an officer in the community, relinquish their illicit drugs, and request admission to a detoxification program--typically without fear of arrest or prosecution. While not explicitly confined to opioids, these new police approaches reflect and reinforce the comparatively sympathetic popular view of opioid users. This Article therefore refers to them, collectively, as “opioid policing.”

On the one hand, opioid policing seems like progress. Its use of social services programs to divert people from the criminal system renders it less costly and more humane than War on Drugs policing, which included elements of militarization and has been characterized by a heavy reliance on arrest. These tactics in turn led to long prison sentences that disproportionately affected Black people--all with no reduction in the availability of illicit drugs. In addition, opioid policing improves upon the specialized, treatment-oriented drug courts created with the putative aim of providing treatment to drug users to stop the cycle of criminal offending. Such courts, which have proliferated in the last three decades, historically have demanded abstinence from participants, consigning them to jail or prison if they relapse. Long-term outcomes for drug-court participants have been poor overall. By contrast, opioid policing programs do not necessarily terminate participation for, or consign to jail or prison, alleged offenders who relapse, or who do not stop using illicit drugs in the first instance. Instead, they adopt a harm-reduction philosophy that emphasizes attainment of housing, improvement of health, and avoidance of crime.

On the other hand, opioid policing retains troubling characteristics of each of these earlier state responses to illicit drug use. For one, the design and implementation of some opioid policing programs create incentives for law enforcement to expand, rather than reduce, surveillance of historically marginalized populations. In addition, opioid policing has the potential to create significant racial and socioeconomic disparities in terms of who benefits most. Indeed, careful analysis of opioid policing reveals the limitations of drug-reform efforts situated within law enforcement as well as the power and reach of the contemporary carceral state.

This Article is the first to analyze each version of opioid policing. It contributes to two separate yet related strands of criminal-law scholarship. It speaks first to the literature that explores how arrest and prosecution are tools not only for responding to crime but also for managing populations. Such work documents the harms of arrest and prosecution absent conviction--and argues that the contemporary criminal system is problematically functioning as a mechanism of social control that exacerbates distributional inequities and troubling power dynamics. The Article also interacts with scholarship that imagines a supportive state, outside the criminal apparatus, that can more effectively address, if not prevent outright, the wide variety of social ills currently within the purview of the criminal system.

The Article proceeds as follows. Part I lays out previous state responses to illicit drug use upon which opioid policing improves--War on Drugs policing and drug courts--and identifies the harms, costs, and limitations of each of these responses. After sketching the contours of the contemporary opioid crisis, Part II argues that a new theory of systemic discretion has emerged in the departments practicing opioid policing. It then considers each form of opioid policing in detail. Part III analyzes the promise of opioid policing. Part IV discusses its limitations.

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The foregoing analysis of two law enforcement innovations responding to the opioid epidemic has engaged questions that have long preoccupied legal scholars of how officers police, and to what end. Specifically, it has considered how police departments that seek to institutionalize nonarrest responses to alleged drug offenders define their goals--and whether they accomplish them. If local stakeholders perceive that these efforts are reducing the incidence of overdose and reducing crime, we might reasonably expect to see even more replication.

Yet replication attempts will confront practical and political obstacles. The first and most obvious such obstacle is that each of the opioid policing programs relies on an ability to access social services and drug treatment. LEAD participants make use of Medicaid to access the different services they are offered. The cities implementing LEAD are primarily in states that have expanded Medicaid, which is critical to the program's affordability. Where Medicaid is harder to obtain, so too are services. Yet the demand for treatment far outpaces its availability, even for drug users with Medicaid.

Secondly, both LEAD and the Angel Initiative are heavily dependent on grants from foundations and individuals. This fiscal situation is a microcosm of the fact that, as public health and addiction experts note, the federal government has committed but a fraction of the funding that is needed to address the widespread and growing harms from opioid misuse. Instead, the current presidential administration seems eager to re-up aspects of the War on Drugs. In addition, states across the country are heightening criminal penalties for the sale and distribution of heroin, fentanyl, carfentanil, and other controlled substances, in addition to passing drug-induced homicide statutes. Prosecutions under drug-induced homicide laws have increased by more than 300% in just six years, from 363 in 2011 to 1178 in 2016. Praised by legislators and prosecutors as sending a strong message to dealers, drug-induced homicide cases may instead create a chilling effect among drug users, deterring them from calling 911 during an overdose. Of those who have witnessed an overdose, more than half reported they are reluctant to dial 911, citing fear of legal consequences. Rather than prosecuting upper-echelon drug distributors, these cases often target friends and romantic partners of the overdose victim.

Even in the event of successful replication, the opioid policing approach does nothing about the social and economic factors underlying the epidemic, and it may in fact function to distract policymakers from addressing them. Opioids appear to be exacerbating cumulative disadvantage for working-class people without a college degree. In one small community besieged with opioid use, individuals “referenced the hopelessness of the area and its lack of opportunity as driving the use of heroin, with many explicitly suggesting the need for jobs and community reinvestment to reduce fatalities.” One study found that overdose death rates correlate with lack of social capital; scholars argue that this relationship likely exists through some combination of mechanisms, such as the ability of social capital to prevent the drug use, aid in recovery, and reduce the fatality rate of drug overdose. While opioid policing moves in welcome ways beyond the War on Drugs and the specialized drug courts, ultimately policymakers must address these larger structural factors.


Assistant Professor, UNC School of Law.