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Promising Practices and Models for Changing Drug Control Policies

The final panel of the workshop focused on ideas for changing drug control policies and laws. Of particular interest was the issue of harm reduction strategies as a promising practice for working with substance users.

HARM REDUCTION

Dennis Raymond, of the Harm Reduction Coalition, explained that the mission of the organization is to “create spaces for dialogue and action to help heal the harms of racialized drug policies.” In his view, harm reduction is a strategy for reducing the harms of drug use. Further, drug policies are a major driver of these harms. Raymond said, “Racial inequities are a social harm that is caused by racialized drug policies.” Harm reduction is an evidence-based public health strategy to reduce the health and social consequences of substance use.

Using syringe exchange programs as a case study, Raymond said it is an example of how harm reduction, health equity, and substance use are intertwined. In the 1980s, the spread of HIV was “spinning out of control,” he said. The research established that a primary method of transmission is injection drug use, in particular, the sharing of hypodermic syringes among users. From a public health perspective, establishing syringe exchange programs made sense as an HIV prevention strategy.

At the same time, states moved to make the possession of drug paraphernalia a criminal offense. This had the effect of a scarcity of syringes, as

people could no longer legally possess them or purchase them. Between the spread of HIV and lack of access to clean syringes, a perfect storm was created, Raymond said. This led to the creation of syringe exchange programs.

From a law enforcement perspective, however, syringes—no matter how they were attained—were still paraphernalia and therefore an individual who was frisked or searched by a law enforcement official could still be arrested. Raymond reported that the majority of substance users who visit syringe exchange programs still have police contact. This leads, unfortunately, to less frequent use of syringe exchange programs.

Syringe exchange programs also play an important role in engaging substance users and other marginalized populations. Staff at these programs do not make judgments about substance use. This makes it easier to reach out to individuals visiting the program. Raymond noted that it takes a great deal of courage to visit a syringe exchange program. “Harm reduction programs,” he said, provide “a platform where they could feel some dignity, some sense of respect, and an opportunity for candor about their behavior and aspirations.” The opportunity for engagement means learning about the legacies of trauma, intergenerational poverty, and adverse childhood events.

Syringe exchange programs are successful. Raymond notes that the establishment of these programs led to a 70 percent reduction in new HIV infections attributable to shared syringes for injection drug use. Unfortunately, however, there is a resurgence of heroin use and methamphetamine use in some regions of the country, with a concomitant increase in syringe use. Those regions also contain clusters of new HIV infections linked to injection drug use.

Even in light of the reduction in HIV cases, there are major racial inequities in who benefits most. New HIV infection rates are much higher for African American men and women who inject drugs compared to White men and women who inject drugs.

Raymond concluded his remarks by offering harm reduction programs as an alternative to the criminalization of drug use. Harm reduction programs provide the opportunity to move upstream to reduce the negative effects of the criminal justice system by intervening before the individual using drugs enters that system.

LEGALIZING CANNABIS

Beau Kilmer of the Drug Policy Research Center at RAND spoke about cannabis legalization, the economics of legalization, and its implications for law enforcement. His research is based on working with different jurisdictions that have either been considering legalizing cannabis or already have legalized it. Among the jurisdictions he worked with are

the states of New York, Vermont, and Washington, as well as Canada and Uruguay (Caulkins et al., 2015).

Considering the economics of legalization, price is very important. Many different outcomes are related to the after-tax price, including the size of the illicit market, consumption, tax revenue, wealth generation, and employment options.

Kilmer noted that after legalization takes place, production and distribution costs will plummet for multiple reasons: It reduces the risk of arrest and incarceration for suppliers and the subsequent inefficiencies associated with operating in an illegal market; there will be increasing returns to scale if large operations are allowed, and it makes it easier for suppliers to leverage changes in technology.

One of the most useful outcomes of legalization, Kilmer said, is that it generates a lot of data. For example, in Washington State, there is a seed-to-scale tracking system that allows regulators and researchers to follow a single plant from planting to where it was sold to THC levels. The Washington State data shows that prices have declined.

Because cannabis is prohibited at the federal level, this creates challenges for cannabis companies in states that have legalization, ranging from tax deductions to banking. However, argues Kilmer, the federal prohibition does provide some benefits for the industry. If cannabis could be produced anywhere in the United States and legally transported across state lines, the market could consolidate into a few rural counties or a few dozen farms. And depending on the federal approach, it is also possible that imports could be allowed, which could have large effects on domestic producers.

The tax revenue is a major issue, Kilmer said, adding that Colorado and Washington each generated about $300 million per year since 2018. If cannabis is legalized at the federal level, that raises questions about the retailers. For example, what if Amazon decides to join the retail side of cannabis? The federal government, Kilmer cautioned, might not want to allow a company the size of Amazon to distribute legal cannabis.

Jurisdictions considering alternatives to prohibiting cannabis supply have many options. Kilmer discussed the state-store model that is being implemented in some jurisdictions in Canada. He also noted that Canada is collecting new data before legalization occurs so there can be rigorous evaluations.

Kilmer also believes that much of the discussion about legalizing cannabis relies upon a false dichotomy of strictly prohibiting cannabis sales versus legalizing it and treating it in the same way as legalized alcohol. Another option would be to simply have the government set the prices. Uruguay, which legalized cannabis in 2013, only allows four different strains to be sold, and the government sets the price.

Levying taxes on the purchase of cannabis is another option for increasing the retail price. Kilmer explained that most jurisdictions so far

have levied an ad valorem tax, meaning that the tax is a function of price. Washington State, for example, uses a 37 percent rate at the retail level; in Oregon, it is 17 to 20 percent (depending on the local jurisdiction). The drawback to this approach is that if retail sales decline, so will tax revenue unless there is a large increase in consumption.

Another option is to tax cannabis as a function of its potency, similar to how the federal government taxes liquor. Canada implemented a THC tax for concentrates and edibles.¹ If cannabis is taxed as a function of the amount of THC, it is possible to create a structure that could “nudge people towards lower potency products,” Kilmer said.

Yet another strategy for considering legalization is to limit the number of producers and thereby reduce competition. This is the strategy followed by Uruguay, which initially allowed only two different producers.

Health Consequences

The health consequences of legalizing cannabis must also be a part of the conversation, said Kilmer. Unfortunately, however, much of the research on the health consequences of cannabis was based on products consumed in the 1980s and 1990s, when consumable cannabis was of lower potency as compared to today (Bidwell et al., 2021). Other issues include titration,² which has had very little research.

Cannabis Legalization and Law Enforcement

Kilmer noted that it needs to be said explicitly that although legalization will reduce cannabis-related law enforcement encounters, they will not be eliminated. For example, in most localities cannabis use will still not be legal for individuals under 21 years old.

Another issue is impaired driving. Kilmer said “The research suggests that driving drunk is worse than driving stoned, and the bulk of the research also suggests that driving stoned is worse than driving sober [not under the influence].” A major question is whether legalization will lead to cannabis being a substitute or complement for alcohol. There is also evidence to suggest that those who are under the influence of both alcohol and cannabis are at increased risk of a crash. How does legalization affect these outcomes?

While legalization has led to overall decreases in cannabis possession arrests, there is still potential for racial and ethnic disparities in arrest rates (Males and Buchen, 2014). Kilmer noted that he was pleased

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¹ THC is the main psychoactive compound in cannabis that produces the sensation of being “high.”

² Titration is finding the right amount of cannabis that works for that individual.

with how discussions about cannabis legalization and social equity have become more prominent and detailed over the past decade.

In considering alternatives to prohibiting cannabis sales, one decision is how quickly to get rid of the illegal market. If the goal is to get rid of illegal markets quickly, a licensing system can be created to regulate legal sales, and anyone who is not complying with that system will be arrested. A postlegalization intensification of enforcement against the illegal market, however, has typically not been done in most jurisdictions in the United States. Kilmer noted these arrests could have important implications for equity. For example, what will the penalties be for unlicensed sales? Will it be a fine, or will it be jail time? Traditionally, the individuals selling cannabis are more harshly punished than those who only possess cannabis but are not selling. Will this then lead to more incarceration for people of color?

A related issue is how to treat the public consumption of cannabis. Most jurisdictions are not permitting public consumption. Will this lead to a misdemeanor or a citation? California is allowing counties and cities to make their own decisions about public consumption via cannabis lounges.

Research Recommendations

Kilmer ended his presentation by focusing on research needs. First, he said, researchers need to look beyond simple measures of prevalence such as “days of use in the past month.” Kilmer noted that “amount used per session” and “what products were used” are probably more useful measures from a public health perspective. Colorado, he said, began asking these questions prior to legalization, adding, “It’s going to take some serious science to figure out the right way of doing this.”

Related to this recommendation, Kilmer explained that the National Survey on Drug Use and Health, administered every year to about 70,000 people, has not been validated since 2000. At a cost of about $50 million a year, these data are used to evaluate any number of policies relating to drug use. Around 2000, the survey was validated by asking the questions about drug use and then having the respondents submit to a drug test to see if their responses were honest. However, with the legalization of cannabis, some of the stigma involved in drug use is lessened and people may be more likely to be more honest about their consumption, Kilmer explained. He believes that the survey should be validated regularly, perhaps every couple of years. The current version, he said, underestimates the number of people who use drugs in the United States.

A second recommendation by Kilmer is the need to revive the ADAM, a survey of individuals in jail who were asked about their substance use and drug market activities, which was then followed up with a drug test.

Participation in ADAM was irrelevant to their legal cases, but it provided a great deal of information about drug use patterns and the economics of drug markets. Unfortunately, the program, which was run by the National Institute for Justice and then the Office of National Drug Control Policy, was shut down after 2013 and these data are no longer collected. Kilmer explained that this is a population with many serious needs, so such a survey could include a wide variety of questions on other issues such as dental health and mental health.

Kilmer’s final recommendation was that simply collecting data about arrests and arrest rates are inadequate. For example, it is typical that police officers have several informal contacts with individuals using illegal substances. It is important to know more about these informal interactions so a better understanding of the existing racial and ethnic inequities can be addressed.

STIGMA AND CRIMINALIZATION

Queen Adesuyi, policy coordinator for the Drug Policy Alliance DC, opened her comments by “holding space for the countless lives that we’ve lost to overdoses and the relentless war on drugs, especially for black and brown and indigenous lives.” She stated that it is clear that the war on drugs has caused tremendous harm to people and communities of color.

Adesuyi explained that she grew up in federally assisted housing in the Bronx and then attended Georgetown University, which is an environment of wealth. Drug sales and drug usage were present in both environments, she said; unfortunately, there were clear differences in the life and health prospects of those from her community when compared to those from the Georgetown community. It is disparate enforcement, she explained, that leads to these disparate outcomes.

She noted that the majority of people who are substance users use drugs in a functional way. It is only a minority of people who use drugs in ways that are harmful to themselves or others. Further, she said, drugs themselves are not inherently harmful; rather, it is the prohibition of their use and the social controls over drug use that causes the most harm. There is a societal stigma associated with substance use, and the criminalization of drug use is what disrupts lives. Adesuyi explained that race and class influence both stigma and criminalization for drug sellers and drug users.

In the 1960s, Adesuyi continued, the face of the typical drug user was a Black person addicted to heroin. During that period, African Americans were not provided with clean syringes or drug diversion programs. Instead, they received mandatory minimum sentences, leading to mass incarceration, which in turn led to collateral damage to individuals and their families. She emphasized, however, that there is no evidence that

the criminalization of drug use reduces rates of drug use or encourages abstinence or accessing treatment.

An opportunity exists today, however, because of the changing face of drug users. Drug overdoses now touch suburban families and both middle and upper-class families. Adesuyi said that policy makers are considering policies that are good for their constituents, and communities of color are still able to access those resources.

She concluded her presentation by outlining several policy recommendations. First, she said, marijuana should be legalized. Cannabis use is roughly split between Black and White individuals in the United States. However, Black people are arrested at four times the rate compared to White people for simple possession charges. Additionally, drug sentences are more than 13 times longer for Black men as compared to White men.

Little is known about the effect of criminalization of substance use in Latino communities, Adesuyi said, because of how arrest data are collected. Latino men are likely identified as White men. However, possession of marijuana is the fourth leading cause of deportation for noncitizens.

The legalization of cannabis would not solve everything, she said, but it would end the criminalization of low-level offenses such as possession. These low-level offenses disproportionately affect minority communities.

Adesuyi noted that public opinion about cannabis legalization is now at 68 percent of voters supporting legalization. Even more importantly, 73 percent of voters support the sealing of marijuana offenses in individual criminal records. She also believes that drug testing for public assistance or employment should end. If cannabis were legalized, revenue from the industry could then be used to fund resources and services such as job training, youth outreach programs, and community health clinics.

Adesuyi’s second recommendation is that all drug use be decriminalized. This would dramatically reduce the number of people arrested and incarcerated. Decriminalization, she stated, would create a climate where people using drugs in a problematic fashion might have an incentive to seek treatment. However, as she stated earlier, not everyone who uses drugs has a problem with drugs. Most people who die from drug use die accidentally, she said.

Her final recommendation focused on harm reduction. Harm reduction should be considered a lifesaving philosophy, Adesuyi explained. The goal is to save lives and make those lives less chaotic. However, a harm reduction approach is based on removing the stigma on drug use and focusing on what the individual drug user needs to move towards stability and functionality. Harm reduction also aims to stop or slow high-risk drug behaviors.

Adesuyi ended by stating that there should be “strong encouragement to consider how stigma, prohibition, and criminalization play a

role in worsening the effects of problematic drug use.” Rather, the focus should be on keeping people alive and helping them to get on their feet.

DISCUSSION

The discussion opened with a question about youth and harm reduction in this population. It was noted that the National Academies had released a report that recommended that the age limit for tobacco use increase from 18 years to 21 years (NASEM, 2015). How does one create successful messages targeting youth? How are programs developed that address youth prevention? In response, Raymond noted that harm reduction strategies are more effective than coercive and punitive policies.

A question was asked about harm reduction, specifically that traditional harm reduction practitioners may have negative feelings about law enforcement. Raymond noted that for every syringe exchange program in the United States, there are 10 drug courts. He said, “The ethos of harm reduction has always been about common ground,” even though harm reduction practitioners may have an interest in activism. “We’re figuring it out,” Raymond added.

Francisco Garcia, the session moderator, described how harm reduction takes place in his home county, calling it an “interesting laboratory.” The county’s health services offer syringe exchange, which is a service that is a felony. This has led, he said, to having “very specific conversations with our law enforcement partners.”

Kilmer, as the economist on the panel, was asked how harmful behaviors can be quantified in terms of capturing the economic costs. He was asked, is it possible that reinvestment of resources into communities most affected by the war on drugs is a stronger economic argument? Kilmer responded that the costs must include effects on the user’s family. He explained that these costs typically do not get calculated at all when considering the consequences of substance use. Kilmer also added that wealth-building opportunities in those communities disproportionately affected by law enforcement practices are considerably lower. This is, he said, the heart of the social equity question. Changes in drug control policies or cannabis policies could be used to increase wealth opportunities in affected communities.

Eric Sterling from the Criminal Justice Policy Foundation asked if any of the existing state cannabis programs (legal or medical) have features that stand out. This is important, he said, because the country is at such a preliminary stage of understanding how the industry and regulatory processes are evolving. Kilmer responded that Vermont is interesting because it legalized cannabis through the normal legislative process. The law removes criminal penalties for adults and allows only for growing at home. The can-

nabis can be given away but not sold. The District of Columbia has a similar law in place, where home growing is allowed but not sales of cannabis.

From the perspective of medical cannabis use, California first legalized this in 1996. Kilmer commented that the early states such as California were “a little bit more liberal in terms of how easy it was to get a recommendation [from a physician] to [use] dispensaries.” States that came later to the process ended up being more restrictive. He emphasized, however, that the United States is still new to these models so there is much still left to learn.

Another topic that arose during the discussion about cannabis is that there are very few people of color who work in the industry. It seems logical to ensure that previous marijuana-related offenses not affect the ability of people of color to work at a dispensary. California is one such state that has tried to incorporate criminal justice measures into the cannabis regulation process.

One attendee commented on the importance of including people who are intravenous drug users to share lived experiences in conferences and conversations such as those raised in the workshop and noted that it is important when organizing such events to set aside funds for their participation. Kilmer noted that one way to encourage their attendance at such conferences is to also cover their conference registration fees.

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