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Lethal and Illegal: The Ethics and Effects of Drug Decriminalization 

Since the 19th century, America has faced an ongoing battle against harmful opioid use. As a society, we have allowed this problem to continue and progress into harming our populations. For instance, research has shown that over 10 million Americans misuse opioids each year and there were 50,000 opioid related deaths in 2019. Due to the danger and prevalence of this issue, many professionals have begun to speculate on the quality of current treatment options for opioid use disorders and the effectiveness of criminalizing individuals for illicit opioid use. In March of 2020, the Oregon government decided to embrace a new strategy for combating this issue: decriminalization. In my paper, I studied the ethical implications of decriminalizing typically illicit drugs in order to facilitate treatment opportunities. 


Table of Contents

  • Abstract

  • Introduction

  • Background Information

  • Opioid Use Disorder Treatment Today 

  • Decriminalization

  • Ethical Analysis

  • Conclusion


Introduction

In America, when an individual commits a crime, they receive a punishment. When an individual experiences an illness, they receive care. But what happens when these two circumstances intersect? Is there ever a time where an individual should be punished for their illness? Although this may seem as if it is a hypothetical situation, the criminal justice system in America punishes many citizens for one particular illness everyday. This illness is substance use disorder, or more commonly labeled as “drug addiction.” This is a disease that affects a person’s brain and behavior and leads to an inability to control the use of a legal or illegal drug or medicine.


In 2022, 46.8 million Americans struggled from a substance use disorder, with one of the most common addictions being to opioids. Synthesized by a German pharmacist in the early 1800s, opioids are a class of drugs that derive from, or mimic, natural substances found in the opium poppy plant. They work in the brain to produce a variety of effets, including pain relief. However, many people become addicted to opioids primarily because of the euphoria, or “high”, that they can produce (Hopkins Medicine). Research has shown that 10 million Americans misuse drugs every year and there were 50,000 overdose deaths involving opioids in 2019 (National Center for Drug Abuse Statistics). Despite its lethal impacts, illicit opioid usage continues and remains a prevalent problem in American society today. As these studies have revealed the alarming nature of opioid use, questions regarding the quality of America's approach to combating this crisis have been illuminated. Specifically, the practice of criminalizing illicit drug use has been under scrutiny. Some have begun to wonder if it would be better for us to shift to a more humane approach, such as decriminalization. 


This paper will address the ethics of drug decriminalization in relation to opioid use disorder by examining the ethical implications of Measure 110 in Oregon, through the lens of safety, compassion, and consequentialism. It will begin with an examination of the historical context of the opioid epidemic in America, then a study of current treatment and criminalization of opioids, and culminate in an ethical analysis of decriminalization of drugs in Oregon. 


Background Information

First, I would like to summarize the history of the opioid crisis, as it is essential to understand how this problem began and the reasons for its escalation. Knowledge of the history of this prevalent issue will provide us with a sense of how we got to where we are today.  


In the early 1800s, a German pharmacist named Friedrich Serturner conducted research on the opium poppy plant in order to isolate its most valuable component, the alkaloid, which provides pain relief and a euphoric feeling. Eventually, Serturner successfully extracted the alkaloid from the poppy plant and called this newfound drug, “morphine.” Several years later, during the Civil War, the United States began to import mass amounts of morphine, to act as a pain controlling drug. It is estimated that nearly 10 million opium pills were provided to the Union soldiers alone, as the expectation was that each soldier would be treated with morphine, no matter the severity of their pain. During this era, many women also became addicted to opioids. As morphine’s popularity escalated, numerous doctors began to raise concerns regarding its harmful impacts and by the end of the 19th century, various US states introduced laws to limit opioid use. For instance, some states limited the over-the-counter sale of opioids (Olsen, 137). 


Nonetheless, doctors kept prescribing morphine and by the early 20th century, tens of thousands of Americans were addicted to narcotics. In 1906, during Theodore Roosevelt's presidency, the Pure Food and Drug Act was passed, requiring medication manufacturers to list several key ingredients, including opioids, on the labels of their products. As the Pure Food and Drug Act proved to be successful in combating opioid use, President Theodore Roosevelt appointed Dr. Hamilton Wright as the first opioid crisis commissioner. In one interview, Dr. Hamilton Wright told the New York Times that “the habit has this nation in its grip to an astonishing extent…our prisons and our hospitals are full of victims of it, it has robbed ten thousand businessmen of moral sense and made them beasts who prey upon their fellows…it has become one of the most fertile causes of unhappiness and sin in the United States” (Olsen, 137). 


 Several years later, in 1914, the Harrison Act was passed and introduced a new and revised plan to combat the opioid crisis. The Act included plans for the taxation of opioids, specific prescription opioid guidelines, and the registration of all opioids. Following the law, many physicians were prosecuted for the misprescription of opioids and there were increased enforcement efforts against heroin and other illicit opioids. For example, Congress passed the Narcotic Control Act in 1956, which included the first required minimum sentences for a first conviction of possession and the death penalty for drug trafficking. However, throughout the 1960s, underground opioid use remained consistent among young adults in major cities and heroin overdose was the leading cause of death among those between the age of 15 and 35 during this time. One historian, David Musto, estimated that the number of heroin users increased from 50,000 to 500,000 from 1960 to 1970 (CNN Health). 


President Nixon declared the official War on Drugs on June 17, 1971 in a message to Congress, in which he outlined a series of actions to address both the supply of and demand for illicit drugs. In addition to his efforts to block drug imports and impose greater penalties on drug sellers, he also integrated a network of clinics that offered treatment for those with opioid use disorders. The 1986 Anti-Drug Abuse Act provided more funding for policing and criminalization at the federal level for minor drug offenses. Consequently, these laws directly increased the population of the nation's jails and prisons, filled disproportionately with urban residents and racial and ethnic minorities. On top of these restricting policies, the public attitude towards opioids began to shift as patient advocacy groups and physicians started to advocate for an increase in prescription opioids. Their beliefs were validated after the publication of the letter titled “Addiction Rare in Patients Treated with Narcotics” in the New England Journal of Medicine in January 1980. The letter falsely claimed that patients with no history of addiction issues were not at risk of addiction to painkillers and as national surveys began to show a rise in pain, many Americans claimed that opioids must be used to combat this increase (CNN Health). Purdue Pharma motivated these ideas as they introduced their new pain management drug, Oxycontin, to the market.

The company conducted a large marketing campaign in which they sold the drug's convenience and low danger of addiction. As a result of their successful campaign, sales of Oxycontin grew to more than $1 billion annually within 5 years, with more than 6.2 million prescriptions written in 2002. The pain management drug impacted every facet of the medical industry, where the norm again was to prescribe opioids to the majority of patients. In 2011, the Institute of Medicine published a report declaring pain a public health crisis in the nation and suggesting that opioids remained underutilized. However, in the same year, the most commonly prescribed medication in the United States was opioid hydrocodone, at about 130 million prescriptions each year. Moreover, the United States was consuming about 80% of the world's supply of prescription opioids (PBS). The last decade in America has brought a continuation of this lethal issue, as data has revealed an extreme increase in opioid-related deaths in this past year. This alarming history that continues to plague our country emphasizes the pressing need for change to successfully combat this issue. 


The CDC defines opioid use disorder, otherwise known as OUD, as a problematic pattern of opioid use leading to clinically significant impairment or distress. Opioids are narcotic, pain killing drugs produced from opium or made synthetically. OUDs are extremely dangerous and can have serious, life altering impacts on those suffering from them. However, opioids can also offer many medical related benefits, such as treating moderate to severe pain (National Institute on Drug Abuse). This paper will focus primarily on OUDs and not medical usage of opioids. 


To expand on the description of opioid use, it is essential to understand that it remains impossible to predict whether someone will develop an OUD, but there are certain influences which can increase an individual's likelihood of developing one. For instance, children with parents who have, or had, substance use disorders are eight times more likely to develop an addiction (Orlando Recovery Center). One doctor, Dr. Robert Morse, states that, “research has shown conclusively that family history of alcoholism or drug addiction is in part genetic and not just the result of the family environment…millions of Americans are living proof”. Nonetheless, a person's genetics can not necessarily predict their future. For instance, there are also social and mental influences which can impact an individual's development of an OUD. Events such as peer pressure, physical and sexual abuse, early exposure to drugs, stress, and parental guidance can all lead an individual to acquire an unhealthy dependence on drugs (American Addiction Center).

 

The opioid crisis remains a severe threat to American society and poses a danger to all Americans. In the next section, I will provide an examination of the current strategies to fix this problem and help those struggling in our society. 


Opioid Use Disorder Treatment Today

The fatal danger presented by OUDs has led to the formation of treatment centers throughout America, with many government-sponsored options offering specific treatment steps. Below, I will discuss the standard treatment offered by most government-funded facilities, which primarily consist of three factors; medication, counseling, and other support areas which tailor to a person's specific needs. 


One of the most critical aspects of treatment is the offering of medication for opioid use disorder (MOUD). The FDA has approved three types of MOUD; methadone, buprenorphine, and naltrexone, and each of these drugs is a type of opioid itself. These drugs present a variety of benefits and have proved effective in reducing opioid use, as data has revealed that use of MOUDs decreases overdose risk by over 50%. Created in the twentieth century, methadone is a type of opioid that is taken orally. One dose typically lasts 24-36 hours and does not cause euphoria in users. However, for those without OUDs, methadone can cause euphoria and pose a risk of overdose. Buprenorphine is another effective MOUD that helps to reduce side effects of withdrawal symptoms and cravings.

Lastly, naltrexone is another non-addictive MOUD that poses no risk of withdrawal symptoms or euphoria in users. This drug works by preventing the euphoric and sedative effects of opioids and works to reduce drug tolerance (Substance Abuse and Mental Health Services Administration). The invention of these drugs represents a huge milestone in treatment for OUDs, as they increase the ease for those in recovery. 

 

Another crucial aspect of OUD treatment is counseling. Federal regulation 42 CFR 8.12 requires that all OUD treatment programs provide counseling services to patients (Cornell Law School). Counseling to help treat OUDs can assist patients in altering attitudes and behaviors related to drug use, construct healthy habits, and remain consistent with other forms of treatment. There are numerous counseling options for OUD, two of the most common are cognitive-behavioral therapy and motivational enhancement therapy (NIH). Cognitive behavioral therapy treatment works to change behavioral patterns by helping patients confront fear, prepare for difficult situations with others, and practice ways to calm one's mind and relax one's body. This form of treatment focuses on assisting patients in developing healthy strategies that will help them to combat their own negative thinking, problematic emotions, and behavior (APA). Similarly, motivational enhancement therapy emphasizes increasing motivation, setting goals, planning for change, and building internal motivation (Columbia University Irving Medical Center). 


Furthermore, to strive for successful treatment outcomes, patients in recovery generate goals that will help them to improve their life. Generalized and frequent goals for patients in OUD recovery are to stay alive, reduce opioid use, and work to build an improved life. However, more specific goals for patients may be to “substantially reduce the treated individuals' use of illicit drugs or…end it altogether,'' or to “change the treated individuals personal values to approximate more closely mainstream commitments regarding work, family, and law.” (NIH). Mainstream commitments refer to conventional, or common, goals of individuals in society. Goals vary based on an individual's financial situation, social status, relationships, and a multitude of other aspects of their life. 


Although the treatment options described above are offered in America, the opioid problem has continued to persist. Specifically, while the three medications listed above have proven to be effective in reducing opioid cravings, low utilization of them has restricted their public health impact and allowed for dangerous OUD patterns to continue. For example, “as of 2019, 86.6 percent of people with OUD were not receiving medications for opioid use disorder” (NIH). One barrier to treatment is cost, with average Methadone treatment being $6,552.00 per year, Buprenorphine as $5,980.00 per year, and Naltrexone as $14,112.00 per year (NYU Langone Health). 


Another reason for the shortcomings of the system today could be criminalization and its consequences. In places where drugs are criminalized, possession, use, or distribution of illicit drugs is prohibited by federal law. Possible punishments include time in jail or federal prison, heavy fines, community service, probation, and other forms of confinement (American Addiction Centers). Criminalization may prevent individuals from seeking help due to fear of punishment, therefore allowing the continuation of the issue. Another possible motivator of the opioid crisis could be overprescription by doctors. However, all things considered, it is extremely difficult to identify a primary driver of the opioid epidemic, which is why attempts to decriminalize drugs have been welcomed as a possible measure to reduce the prevalence of OUDs. 


Decriminalization

Author: Stock by Getty Images
Author: Stock by Getty Images

As mentioned above, the practice of decriminalizing possession of small amounts of illicit drugs has been implemented in Oregon in efforts to combat the rising rates of OUDs. Decriminalization is “the removal of criminal penalties for drug law violations” and presents a unique and modern approach to fighting a centuries lasting issue (Drug Policy Alliance). 



The Oregon law is called Measure 110, also known as the Drug Addiction Treatment and Recovery Act, and it made Oregon the first state to decriminalize possession of small amounts of various drugs, such as heroin, cocaine, and methamphetamine. Measure 110, which was passed in March 2020, altered the penalty for most possession of a controlled substance (PCS) offenses, changing the offense from a felony or misdemeanor to a new Class E violation, punishable with a $100 maximum fine or a completed health assessment (Oregon Judicial Department). Additionally, Measure 110 established Behavioral Health Resource Networks in each Oregon county and Tribal area. A BHRN is “an entity or group of entities working together to provide comprehensive, community-based services and support to people with substance use disorders or harmful substance use.” The BHRNs are also required to bill an individual's insurance, thereby increasing accessibility and reducing costs for many (Oregon.gov). Oregon passed this law in an attempt to address and fix the steadily increasing OUD rates in its state, in the belief that this new act would provide necessary alternative options for those struggling with OUDs. 


In the following section, I will share my ethical analysis of this new and innovative policy. 


Ethical Analysis

Author: Pixabay
Author: Pixabay

To fully consider and understand the impacts of decriminalization, specifically Measure 110, I will present my ethical considerations. I utilized various values and one framework to reach my conclusions regarding the ethicality of Measure 110. 


Before I present my ethical considerations, I would first like to present a hypothetical case study that will assist in understanding my analysis. Consider a hypothetical about an individual from Oregon named Isabella. Isabella was an extremely successful athlete throughout her childhood and went on to play division 1 collegiate lacrosse. In her senior year of college, Isabella suffered a traumatic injury and had to undergo various surgeries. After these procedures, Isabella was prescribed oxycodone, an opioid meant to treat severe, acute pain. In the painful months following her injury, Isabella remained on the drug and developed a reliance on it. When her final prescription ran out, Isabella’s doctor rejected her request for another prescription. He felt that her pain had reached a manageable level and wanted to avoid overprescription and addiction, but the damage had already been done. Isabella experienced withdrawal symptoms, such as irritability and nausea, when she stopped taking oxycodone and her suffering continued for weeks. She began to get involved in the illicit drug market and began to purchase illicit opioids to relieve her pain and cravings. In this scenario, Isabella is one year out of college, living alone, and has developed an opioid use disorder. Now I will present my ethical considerations, while simultaneously relating my ideas to the case study to further understanding. 


The first ethical value that I will use to discuss the ethics of Measure 110 is safety. The definition of safety that I will be using in this analysis is, “a state in which hazards and conditions leading to physical, psychological or material harm are controlled in order to preserve the health and well-being of individuals and the community.” (World Health Organization). 


Decriminalization has the potential to increase safety for those with OUDs as it lowers their chances of jail time for illicit drug possession and usage. In states where drugs are criminalized, those found in possession of controlled substances face severe punishments. For instance, in Washington, if an individual is found to be manufacturing, delivering, or possessing a controlled substance, they may be imprisoned for up to ten years or fined up to twenty-five thousands dollars (Washington State Legislature). Ten years is an extremely long time to spend in any contained facility, but this punishment is worse when the quality of these facilities is inadequate. Jails and prisons are often overcrowded, understaffed, and violent, leading them to be dangerous places for many. Additionally, while jails ideally force those with OUDs into treatment, a recent report revealed that more than 80% of prisoners suffering from SUDs are released from prison without receiving treatment. Among Oregon's twelve state prisons, only four have intensive addiction treatment programs. A primary point of these treatment programs is anti-addiction medication, which is considered extremely effective at reducing cravings and withdrawal symptoms from opioid use disorder, and has the potential to assist many prisoners if they access it. Furthermore, statistics reveal that more than half of the prisoners released will be arrested again within three years (The Lunder Report). If individuals with OUDs, like Isabella, are put into these prisons, there is no guarantee that their safety will be improved because they will most likely still not receive treatment. By punishing those suffering from a severe illness and then forcing them into a place where they are not guaranteed a fair chance to get better, our current system creates an extremely dangerous cycle for those with OUDs. Additionally, we must consider the impact on morale that prison time can have. Inmates lose their right to vote, privacy, autonomy, and physical freedom. Is this the way we should treat those suffering from an illness? Of course there are scenarios in which individuals are punished for the actions that they performed while under the influence of drugs. How do we consider the impacts of someone's illness on their decision making capacity? In this scenario, their violent actions are impacted by the mental control of the drug. Let's say Isabella is high on opioids one day and decides to go out in public. While she is in a store in her town, she decides to steal some items and is faced with jail time as a punishment for possession of an illicit substance and shoplifting. Is jail time the right punishment for Isabella if she most likely won’t receive treatment for her addiction in jail and there is a high likelihood that she will repeat these harmful behaviors once she is released? What if, when she was confronted by law enforcement after committing the shoplifting crime, she had been very violent and resisted arrest? Should that change her punishment? Although I will not necessarily be going into each aspect of the criminalization system in this paper, it is an important consideration when studying this problem.   


An additional stakeholder to consider in this analysis is the general public, or Oregon citizens who do not have substance use disorders, but are impacted in different ways by Measure 110. Principally, many Oregon citizens have shared concerns over public safety in the wake of this policy.  However, there has been no evidence that decriminalization has led to an increase in violence towards sober Oregonians. In fact, from 2021 to 2022, there was a -8.8% decrease in crime (Oregon Criminal Justice Commision). Nonetheless, some of their concerns involving safety and wellness of the general public cannot be understood through statistics. It remains important to recognize the abnormality of public drug usage, as users are able to use drugs in public spaces, such as town squares and on the streets in Oregon. This is different than in places where drugs are criminalized, where users typically do not use drugs in public due to the consequences they will face. To contrast, in Oregon after Measure 110, those seen using drugs in public spaces are given a fee that can be waived if they undergo a health screening, as mentioned above. It is unsafe for non drug users to be exposed to these potentially harmful behaviors and situations, risking their well being. To illustrate this scenario, consider a hypothetical where a young boy, around age 10, is casually walking down the streets of Portland, Oregon with his mother. On their walk, they encounter Isabella under the influence of opioids, but she has already been given a citation by a police officer and is not causing direct harm to anyone else. Isabella is inserting drugs into herself and a glance at her belongings reveals that she has a bag full of needles, used and unused. Despite the mother’s attempt to shield her child from the situation, the boy has already been exposed to an image of drug consumption. This exposure to drug use could lead the boy to consider drug use as common or normalized behavior. Additionally, he might accept this behavior and perhaps try to replicate it. However, this exposure also provides an opportunity for the boy's mother to warn him against drug use and instill the fear of homelessness as a way to encourage him to stay away from illicit drug use.


After careful analysis through the safety value, I believe that the positive aspects of Measure 110 are more important than the negative impacts that Measure 110 has on safety. A primary priority when combatting this problem needs to be access to MOUD and criminalization goes against the access which must be given. 


The second value which I will be utilizing in my analysis is compassion. I will be using this definition: “compassion is not simply a feeling state but a complex emotional attitude toward another, characteristically involving imaginative dwelling on the condition of the other person, an active regard for his good, a view of him as a fellow human being, and emotional responses of a certain degree of intensity.” (BMJ Journal of Medical Ethics). 


Measure 110 embodies compassion as the absence of a drug-related criminal offense on an individual's record will assist them in returning to an improved life after their treatment is completed. For example, using the case study above, Measure 110 could assist Isabella in getting a job after her treatment, as there will be no PCS charge on her application. This offense could have impacted her ability to become employed and acquire housing. But instead, the compassion displayed by this measure could enable her to not be held back by her past actions and lead an improved life post recovery. I believe that it is extremely beneficial for drug related offenses, like PCS charges, to not be on an individual's background. In a society that often imposes judgements on those who previously had OUDs, it is beneficial for those who have overcome their disorder to be given the chance to have a strong future. 


Lastly, to complete my ethical analysis, I will employ the consequentialist framework to identify the ethical implications of Measure 110. Consequentialism is a theory that claims “whether an act is right or wrong depends only on the non-moral value of relevant consequences, either the consequences of the act itself (direct consequentialism) or the consequences of something related to that act (indirect consequentialism), such as the social acceptance of moral rules that require or prohibit that act.” (SMU).


The establishment of Behavioral Health Resources Networks in Oregon, which were called for by Measure 110, have worked to improve services related to OUD treatment. For example, BHRNs offer screenings for health and social services needs, harm reduction services, housing supports, and low-barrier substance use disorder treatments. These services are covered by insurance, if the individual has it, and are delivering high quality resources to a large audience of people (Oregon.GOV). BHRNs are an extremely important and beneficial consequence of Measure 110 and the care they offer can help to save many people. 


However, decriminalization has not effectively decreased opioid-related deaths; rather, an increase has occurred. In 2021, the year after Measure 110 went into effect, Oregon saw a 41% increase in fentanyl-related overdose deaths, a deviation from the national average of 16% increase. These deaths are a combination of Oregon citizens and individuals from nearby states who travel to Oregon to use drugs due to the lack of severe punishment. Additionally, it has been difficult for Oregonians to identify whether this increase is solely due to the decriminalization policy. This rise could also be a result of the underbuilt system of shelters, treatments, and staffing for BHRNs. This increase has proven to be a substantially negative consequence of the policy. 


The negative consequences of Measure 110, such as increased OUD related deaths, reveal the harmful effects of this law and its inability to solve a critical issue of society today, especially in Oregon. Through the consequentialist lens, I determine that Measure 110 is unsuccessful in this context as the high death rates are extremely harmful to Oregon. 


Conclusion

After using the illuminating values of safety and compassion, alongside a consequentialist framework to study Measure 110, I have reached my own conclusion that this policy is not ethical. The harmful impacts of higher death rates outweigh the other benefits that have been illuminated. However, I do believe that a new policy similar to Measure 110 could be beneficial if it ensures that each aspect of the healthcare system has been prepared for the influx of OUD patients and also enforces a harsher punishment on those who use drugs. 


The Oregon governor recently came to a similar conclusion to mine, and in March, the Oregon legislature repealed critical components of this policy. Now, after almost four years, all possession of hard drugs has become illegal again and is punishable through the criminal justice system in Oregon. Despite some crucial benefits, the significant shortcomings of Measure 110 make it a failure as a policy. A policy that initially had the potential to bring Oregon into a new era of culture and health, was prevented from doing so for various reasons. In the end, it is becoming increasingly evident that America must work together to fight the opioid epidemic on a united front and terminate this harmful pattern, whether through government intervention or another strategy. 


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