Decriminalize ‘minor’ drug offenses? Is there such a thing?

By Carina Storrs

Special to CNN

Overdose deaths from prescription opioids such as OxyContin have quadrupled in the United States since 1999, leading the Food and Drug Administration to announce this week that these short-acting painkillers will be required to carry a “black box” warning.

In another grim statistic related to opioid use, 135 people were infected with HIV last year in rural Indiana, an outbreak linked to injecting the prescription drug Opana. Experts have worried that communities in the states of Kentucky and West Virginia could also be at risk of an HIV outbreak because of high rates of opioid abuse.

These two trends have spurred a “great deal” of interest in drug policy in the United States, said Dr. Chris Beyrer, director of the Johns Hopkins Center for Public Health & Human Rights and president of the International AIDS Society. In a new report, experts are urging sweeping changes to drug policy, including decriminalizing minor drug offenses and reducing aggressive policing.

In a report published Thursday in The Lancet medical journal, Beyrer and an international team of researchers assessed the growing body of evidence for the public health impacts of programs such as opioid substitution therapy and needle exchange programs. In addition to criminal justice changes, the researchers made specific recommendations for policy makers to improve access to services that can reduce the spread of HIV and hepatitis C virus, also known as HCV.

“We think there is the first opportunity in a generation to have meaningful drug reform,” said Beyrer, who led the research for the report , which was commissioned by The Lancet and Johns Hopkins University.

The report comes weeks before the United Nations General Assembly Special Session convenes on April 19 to discuss drug policy for the first time since 1998.

“There is pressure from a number of countries who feel the war on drugs has failed them, particularly Central and South America, where there is some of the worst drug-related violence,” Beyrer said. “We sought to review all the scientific evidence so it would be available to the U.N. member states when this is being debated.”

According to the report, injection drug use has led to increases in new HIV and HCV infections. Unsafe injection practices, such as sharing needles, are linked to about 30% of HIV transmission outside of sub-Saharan Africa. HCV transmission is also high among people who inject drugs, and a study in the United States found that more than half of people got infected in the first year they were injecting.

The report pointed to two main reasons for the high rates of infection among injection drug users: high rates of incarceration and the inability of people with HIV and HCV to access services that provide antiretroviral therapy (in the case of HIV), needle exchange programs, which provide drug users sterile syringes, and opioid substitution therapy, which involves oral drugs such as methadone that are not injected.

“We have the evidence to show these things work” to reduce HIV and HCV infection, Beyrer said. “We should not hold off programs in order to do more research, we should be implementing the programs and rigorously evaluating them.”

Although needle exchange programs and opioid substitution therapy services are available in some parts of the United States, it varies a lot by geographical region, Beyrer said.

There is at least one indication that access to needle exchange programs could be expanded, as the report recommends. In January, the long-standing ban on federal funding for these programs was lifted through legislation suggested by Sen. Mitch McConnell and Rep. Hal Rogers, both Republicans from Kentucky. A statement from McConnell’s office said that injection heroin and the opioid epidemic and rising HIV and HCV rates were having a “devastating effect” in Kentucky and throughout the United States.

The report also recommends improving access to naloxone, which can prevent death from opioid overdose and reverse other harmful effects. “Community distribution of naloxone works, this is not psychoactive drug, there’s no opportunity for diversion,” Beyrer said. “Drug users and family members can be trained to administer [naloxene], lives can be saved.”

There is good evidence that the public health approaches the United States is taking to address drug use and drug-related harms are effective, even though these approaches, such as needle exchange programs, need to be scaled up so more people can use them, said Hannah Cooper, associate professor of behavioral sciences and health education at the Rollins School of Public Health at Emory University. Cooper was not involved in creating the new report.

However the opposite is true for the criminal justice approaches that are part of the U.S. drug policy, including aggressive policing that puts emphasis on arresting people for minor offenses and stop-and-frisk. There is strong evidence these approaches are actually harmful, Cooper said.

Aggressive policing and mass incarceration are a product of the war on drugs that Richard Nixon declared and Ronald Reagan funded and implemented, Cooper said. But rather than being a war on drugs, these policies were really a war on racial equality.

“The timing of Nixon declaring the war on drugs was not that long after the fall of Jim Crow [laws that enforced segregation], and I would say that people in the white power structure were trying to find ways to maintain hierarchy and the war on drugs was a perfect way to do that, and it was highly successful,” said Cooper, who studies the effects of socioeconomic status and incarceration on health and drug use.

A top Nixon aide told a reporter that the war on drugs was a strategy to target “blacks and hippies” and “disrupt those communities,” in a 22-year-old interview that was recently published in Harper’s Magazine.

The report by Beyrer and his colleagues highlighted evidence of racial discrimination in incarceration rates for nonviolent drug offenses. For example, one in 13 black men between the ages of 30 and 34 were in prison in 2011 compared with one in 36 Hispanic and one in 90 white males, despite the fact there was similar prevalence of drug use between these three groups.

There are a number of ways that “excessive use of incarceration,” as the report stated, can have public health harms. For one, the rates of HIV, HCV, hepatitis B virus and tuberculosis are between two and 10 times higher in prisons than in the community, and these diseases can spread between prisoners, for example through injection drug use, which can occur despite restrictions.

When people go to prison, it can have public health effects on the community they come from. “One implication of removing a lot of men from the community is that you destabilize the sexual relationships [which can lead to] concurrent partnerships and high-risk partnerships,” Cooper said.

One of the key recommendations of the new report is to decriminalize minor, nonviolent drug offenses, which includes use, possession and petty sale. The report points to evidence from European countries. After decriminalizing minor drug offenses and scaling up HIV prevention services, Portugal reduced its rates of incarceration and HIV and did not see an increase in rates of drug use.

There is already some evidence decriminalization is at least possible in the United States.

There are four states that have decriminalized possession of cannabis, Beyrer said , and in these states, the rates of young people — and disproportionately black and Latino youth — going to jail and getting a criminal record will probably decrease.

“As so often happens in the U.S., it is harder to do things at a federal policy level particularly in areas where there is social and political controversy, and the states are often the innovators,” he added.

The recommendations in the report are “basically long overdue,” said Dr. Don Des Jarlais, professor of psychiatry and preventive medicine at the Icahn School of Medicine at Mount Sinai, who was not involved in the new report.

“We should not criminalize personal drug use and put users in prison. We’ve known that for quite a while, there is mounting evidence, that it is not a protective policy for dealing with individual drug users…it is not a cure and creates many social problems,” Des Jarlais said.

Although it would represent a big shift in the criminal justice system, Des Jarlais thinks it is possible to decriminalize minor drug offenses and it would save money and allow law enforcement to focus on much more serious crimes.

Even without a change at the federal level, it could still be possible to reduce the number of arrests for minor drug offenses.

“Officers have a tremendous amount of discretion in terms of how they choose to enforce laws on the book so police departments can deprioritize enforcing drug laws or to prioritize collaborating with drug treatment programs so instead of arresting people, they make sure that people who use illegal drugs are connected to public health programs and services,” Cooper said. These changes come from above, from shifts in policy at the police commissioner and local government levels, she added.

The report could have a number of effects on drug policy, including increasing awareness in the public, among voters and among social movements, including Black Lives Matter, Cooper said.

Although the United States, and in particular the current Congress, is “relatively impervious to international guidelines,” the report comes at an important time, before the U.N. General Assembly Special Session.

“I think the U.N. General Assembly can have a very powerful effect in terms of setting standards and providing guidance for member states,” Cooper said.