Twenty-First Century Illicit Drugs and Their Discontents: Finis

Legal Memo Crime and Justice

Twenty-First Century Illicit Drugs and Their Discontents: Finis

May 20, 2024 29 min read Download Report
Paul Larkin
Rumpel Senior Legal Research Fellow
Paul is a Senior Legal Research Fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation.


A bleak future awaits us unless we commit both to seriously and honestly debating how to address the nation’s illicit drug problems and to changing our policies now. This will require raising awareness of our drug policy problems and generating a commitment to rectifying them. Even baby steps will eventually get us where we want to go as long as those steps are in the right direction. The situation is dire, and there is no time to waste.

Key Takeaways

The criminal justice system is necessary to ensure an orderly society and should be used regardless of the race or religion of offenders or the causes they espouse.

We should always punish severely drug traffickers who use violence to profit from someone else’s misery.

At the same time, we also need to reconsider some of our drug policies—to ratchet some down and others up while ditching some entirely.

This is the tenth and last paper in The Heritage Foundation’s series on Twenty-First Century Illicit Drugs and Their Discontents.REF At the end of each prior paper, I have offered several policy proposals that I hoped would alleviate some of the problems that certain particular drugs pose for contemporary Americans. Accordingly, there is no need for a lengthy list of “dos” and “don’ts” in this conclusion. A few final observations, however, are in order.

Where Are We?

Hopefully, at our destination—which was not intended to be a medical school–like textbook on the pharmacology or history of illicit substances. Numerous medical and scientific publications have offered a comprehensive treatment of those features of illicit controlled substances.REF They performed that chore far better than I could, so I did not intend to repeat it in this series. Instead, I designed it to offer the public policy reader a concise description of the manifold problems posed by the most serious illicit drugs that America faces today and to offer various responses to reduce the horrific effect that those drugs have wreaked on Americans and will continue to wreak on us unless we change our response. Among those drugs are the synthetic opioids fentanyl and nitazene along with the synthetic stimulant methamphetamine. The first two put a user at risk of crossing the River Styx in a go-fast boat; the last one takes a user there aboard a slow-moving tramp steamer. In either case, the ride is not a pleasant one, and the destination leaves much to be desired. We need to reconsider some of our drug policies—to ratchet some down and others up while ditching some entirely—to help our brothers and sisters avoid winding up on the real-life Titanic or the fictional Botany Bay from Star Trek.

Public Policy Remedies

I have tried to discuss various plusses and minuses in the approaches that we have taken in trying to stem or minimize the harms resulting from drugs that are abused. By and large, we have employed the heavy artillery of the criminal justice system, particularly imprisonment, to stop people from manufacturing, smuggling, distributing, possessing, and using dangerous drugs. That is a necessity in the United States. America is a socially and culturally heterogenous society in which the ordinary restraints on behavior—such as community norms and religious conventions—play a far smaller role in corralling independent-minded people toward acceptable behavior than was the case centuries ago in the days of the Pilgrims or is the case now in homogeneous societies where widely shared customs restrain centrifugal social forces. A large number of contemporary Americans—and virtually all of the nation’s corporate television and social media outlets, including Hollywood—also belittle the value of self-sacrifice while extoling self-satisfaction as the ne plus ultra in life. The combination of those 20th-century developments forces society to use the criminal justice system as the first line of defense against antisocial conduct rather than as the last.

People who bemoan our resort to arrests, prosecution, and imprisonment as means of enforcing the controlled substances laws to maintain communal order and safety offer no alternative strategy for avoiding chaos or surrendering our neighborhoods to disorder and violence. For proof, just compare the relative safety and order on colleges campuses in Florida and Texas, where university presidents and governors made it clear that vandalism and disruption would not be tolerated, in the spring of 2024 with what we have seen at schools like Columbia University, George Washington University, and UCLA, where classes have been disrupted, school buildings have been damaged, statues defaced, university-wide graduations cancelled, and Jewish students intimidated if not assaulted.REF Appeasing, let alone surrendering to, parties who wish to destroy safe and orderly communal life only encourages more of that conduct.

We should always punish severely drug traffickers who use violence to profit from someone else’s misery. We should always imprison senior-level traffickers and violent offenders for the widespread suffering that they cause users and communities. That should go without saying. Yet recent events have made its reiteration a necessity. So I will repeat it: The criminal justice system is a necessary mechanism for ensuring an orderly society and should be used regardless of the race or religion of offenders or the causes that they espouse.

At the same time, we should be more discriminating as to how we use that hammer. A lengthy term of imprisonment is not necessary for every drug offender, particularly every user or small-scale dealer.REF We have better uses for our prisons than simply housing every such person in an endless supply of them, not all of whom should effectively be thrown away. We should reconsider the length of mandatory minimum sentences for small-scale dealers just looking to make a buck to “score” drugs for their own needs. We did so in a small way in the First Step Act of 2018, which gave federal district court judges some additional leeway to sentence below a mandatory minimum in drug cases.REF Drug courts have also been a valuable, remedial alternative to the traditional criminal prosecution of drug offenders.REF There are other, kindred approaches to drug courts, ones that also do not demand putting the hammer down on every drug offender. The Hawaii Opportunity Probation with Enforcement and 24/7 Sobriety Programs are two of them.REF Perhaps additional, nonpunitive approaches might be successful. We should consider upping our game.

We also need non-legal approaches to drug problems, including short-term and long-term antidotes to the range of dangerous drugs that people consume. Naloxone is a short-term treatment for an opioid overdose, while methadone and buprenorphine are long-term substitutes for opiates. But we do not have comparable “off switches” for methamphetamine or many of the numerous varieties of synthetic drugs that pop up like mushrooms after a period of heavy rain. We can use the savings from a lower incarnation rate to fund the research necessary to devise those safety valves.

In addition, we must find better ways to educate and dissuade minors and young adults from starting down the path toward addiction by taking illicit drugs even on an experimental basis. Robert DuPont, a former White House drug policy advisor and former Director of the National Institute on Drug Abuse, has found that minors who do not experiment with tobacco, alcohol, or cannabis before reaching age 21 are unlikely later to succumb to the allure of illegal drugs.REF We need to promote that message, particularly on social media, both because that is where people in their 20s and 30s learn their news and because those individuals are the primary clientele for drug traffickers.REF Widespread, consistent, cultural disapproval of cigarette smoking and drunk driving has saved thousands of lives.REF Perhaps it could also work for drug use and drug-impaired driving. The presence of fentanyl in other illicit drugs, such as cocaine, and in counterfeit pills made to resemble Adderall puts every experimental drug user or final examination–crasher at risk of meeting St. Peter or Cerberus.REF Because no one knows how much fentanyl is in cocaine powder or counterfeit pills bought over the Internet, “using them is like playing Russian Roulette with more than one round in the chamber.”REF

To make an education strategy effective, we need someone—a President, another influential elected or appointed official, a professional athlete, a movie star, a popular singer—to become the champion of a policy that would save lives and that no one would publicly oppose. So far, however, no one has stepped forward to be that leader. Perhaps that is due to a fear of being seen as illiberal on a policy issue—legalized cannabis use—favored by voters or fans who are less than 40 years old. Perhaps some other motivation, such as the feared public disclosure of past drug use, is responsible. But it is critical to reach the audience of adolescents and young adults who are at extreme risk of making a dumb mistake that can ruin their livesREF or end them in the blink of an eye.REF So far, no one has volunteered, but hope springs eternal.

A Conservative Approach to Our Drug Problem

I understand that some readers would have in mind the following response to what I have argued in this series: “You have correctly identified some serious national drug problems, and I agree that we must address them. I also agree that we should commit to re-evaluating the steps that we have taken over the past 50-plus years. Where I disagree, however, is with your refusal to admit defeat and legalize drugs, as well as with your specific policy proposals. Each one comes at the problem from a conservative bent, which isn’t my cup of tea. So my question to you is this: Why should I consider your suggestions? Besides, legalization is inevitable. Refusing to accept that reality is foolish.”

There has always been a vocal debate over the success, merit, and desirability of the respective drug policy strategies of criminalization and legalization.REF The literature on the two sides of this debate almost outnumbers the stars in the heavens, and it shows no sign of letting up.REF I do not believe that we will solve America’s illicit drug problem by endorsing the Millsian strategy of allowing, and maybe even enabling, drug users to continue down the path toward oblivion.REF As the late Professor John Kaplan observed, no modern society has endorsed a purely laissez faire or libertarian approach to drug policy, and no modern welfare state would be able to maintain that scheme for long—particularly a state that serves as the principal guardian of the freedoms that contemporary Western civilization holds dear.REF Legalization poses the serious risk of making a mistake that we cannot remedy by recriminalizing the conduct that we once outlawed. We could wind up creating a critical mass of people who are physically dependent on or addicted to dangerous drugs, a number that overtaxes our medical and welfare systems to the point of causing an economy-crushing demand for taxpayer-funded services that could have been avoided and cannot be undone without placing extraordinary stress on government enforcement mechanisms and informal social structures.REF We should not take that chance.

If you want proof that drug legalization can go extraordinarily badly, look at Oregon’s recent experience with legalization. In 2020, Oregon decided to legalize possession of small amounts of any illicit drug.REF The four years that have passed since then have witnessed dystopian images ordinarily seen only in movies but this time played out in real life in homeless encampments.REF In 2024, Oregon was willing and able to learn from and recognize its mistake, recriminalizing what it had legalized four years ago.REF It is far from clear that the nation could have done an about-face and recriminalized drugs if Congress had done for the nation what Oregon did for the Beaver State. If not, a decision to legalize drug possession and use could become a permanent and even more widespread feature of American life, regardless of its adverse consequences.

Not every enhancement of human freedom is a net plus for individuals and society. Addictive drugs have the short-term effect of offering a user a euphoria that people seek but cannot find in their Thoreauvian “lives of quiet desperation.” But this comes at a price in the form of a lost ability to live a life without the “fix” necessary to stave off the physical and psychological suffering that addiction brings. Even Mills would not allow people to sell themselves into slavery. If so, why is a heroin or methamphetamine addiction different? Overcoming the agony of unassisted, cold-turkey withdrawal is a price that most people cannot pay. We can delude ourselves that legalization is yet another victory for human freedom or civil rights, but delusions are not reality and are not desirable.REF

Finally, to the objection that my proposals address these problems from a conservative perspective, my answer is, “Guilty as charged.” I confess to a disbelief in the power of reason always and everywhere to undermine the merit of a long-standing, steadfastly held policy, even when it shows some gray around the temples. William F. Buckley once defined a conservative as “someone who stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.” Conservatism does not always require us to take that stance, but I do think that a long-standing policy should not be abandoned or changed unless there is a powerful case for doing so. From my perspective, none of the advocates favoring unrestricted access to dangerous illicit drugs has made that case.

To be sure, it is possible that someone might be able to devise a new argument supporting unrestricted adult drug use, but that’s not likely. John Stuart Mill published his famous essay On Liberty 165 years ago; “for all its flaws,” that essay remains “‘the clearest, most candid, most persuasive and most moving exposition of the point of view of those who desire an open and tolerant society,’” including parties who desire to see legalization of adult substance use;REF and libertarians have been trying to buttress Mill’s case ever since.REF The odds are slim that someone can devise an entirely new argument for drug legalization.

A Final Thought on Cannabis

Before we end, some of you may be wondering: “Why did I include cannabis in this series?”

Every reasonable person would understand the dangerous nature of drugs like fentanyl and synthetic drugs that have popped up like weeds over past decades. Their use can lead to a life resembling the one that Thomas Hobbes described in the state of nature: a life that is “solitary, poore, nasty, brutish, and short.”REF In the case of fentanyl, death is “just a shot away.”REF Methamphetamine is different. If fentanyl is the express train, meth is the local. But it can take a user to the same destination by slowly corroding one’s physical abilities and mental faculties, leaving a user searching for gratification like the ever-hungry ghouls in the Buddhist afterlife.REF So no one is likely to be wonder why I discussed those drugs in this series.

Some people might well ask, however, why I included cannabis. “After all,” they might say, “cannabis is legal for medical or recreational use in more than half of the states, and states would not legalize a dangerous drug.”

I did not include cannabis in this series because I believe that it is as dangerous as the other drugs I discussed; it is not. Millions of people have experimented with cannabis and not only have lived to tell that tale, but have thrived. Some have even gone on to become President of the United States. So I cannot slot cannabis into the same category as fentanyl and methamphetamine.

But cannabis certainly can injure its users physically and mentally. It is not the terror that the 1936 movie Reefer Madness made it out to be, as the supporters of cannabis legalization have told us endlessly. But cannabis is far more dangerous than the popcorn that anyone ate while watching that film. As Dr. Nora Volkow, Director of the National Institute on Drug Abuse (NIDA), once wrote, “[m]arijuana is not a benign drug” and “has significant adverse health effects and consequences associated with its use.”REF Those harms go double for anyone who initiates heavy, long-term cannabis use with today’s drug.REF Those harms go triple if someone begins heavy or long-term use during adolescence.REF The possible harms quadruple when you count the potential damage to the child of a mother who uses cannabis while pregnant or nursing.REF Yet, even so, cannabis cannot go toe-to-toe in a match with fentanyl or meth.

No, I included cannabis because we have been lied to for decades about its supposedly benign effects. New studies have identified a variety of harms from its use that advocates for cannabis reform are not wont to acknowledge.REF Perhaps the lies that cannabis’s reformers told to state legislators to dupe the latter into passing medical and recreational cannabis régimes were the reformers’ payback for the long-ago, over-the-top scare campaigns used to outlaw cannabis nationwide from 1937, when Congress passed the Marijuana Tax Act, until California launched the first medical cannabis program in 1996. Turnabout is fair play, I suppose, even when lying is the currency used to make a point. If so, we have reaped what we sowed; shame on us.

But it is hardly cricket to penalize other, innocent people today for our past mistakes, and punishment is what evasion, silence, and deceit regarding cannabis’s harms will accomplish. There is a certainty that cannabis legalization will ruin the lives of some users as well as kill some innocent third parties—such as people who are drivers, passengers, or pedestrians unlucky enough to be hit by someone driving under the influence of cannabis.REF “Today there is a wealth of evidence that marijuana is an impairing substance that affects skills necessary for safe driving.”REF In 2010, Gil Kerlikowski, the “Drug Czar” under President Barack Obama, concluded that drug-impaired driving was as troublesome as the universally condemned problem of alcohol-impaired driving.REF In 2021, Kerlikowski joined three other past Office of National Drug Control Policy Directors—Barry McCaffrey, Bob DuPont, and Jim Carroll—at a Heritage Foundation event that I moderated on the subject of drug-impaired driving.REF Each former Drug Czar—two who served in Democratic Administrations and two in Republican ones—agreed that drug-impaired driving is a serious national problem.REF For the people already killed by drug-impaired drivers and the ones whom it will later kill, this problem truly justifies the label “existential” that Washington, D.C., politicians and media observers bandy about these days. At a minimum, it deserves far more attention from our elected officials than it has received to date.

The elected and appointed officials who bought the half-truths and lies that reformers sold are even more culpable than the reformers themselves. Government officials take an oath to serve the body politic, not particular interest groups and certainly not themselves. Ignoring the harms that they know will follow from their votes and actions is a violation of their oath to serve the public. The legislators who traded their votes for campaign contributions, interest group endorsements, or political support and who closed their eyes and ears to this problem and legalized cannabis use under state law without making any effort to halt drug-impaired driving have blood on their hands.

Perhaps we need a better quality of politicians—which is one of the changes that we can make to improve our drug policies. There is a reason why we elect politicians for only limited terms. Dishonesty is as good a reason as any for showing politicians the door, and it is a better reason than most. Besides, the Latin maxim Falsus in uno, falsus in omnibus—which means “False in one thing, false in everything”—is instructive in this regard. While that precept is not as universal as the law of gravity, it certainly pays to keep it in mind when dealing with any politician. If we know that they are dishonest about any one subject, we should be suspicious about their veracity when they discuss other ones, particularly the ones about which the average person knows nothing.REF Anyone who believes that a decision to “Throw the bums out!” is an extreme reaction should keep that advice in mind.


As a legal scholar at The Heritage Foundation, all I can do to alleviate the drug-related misfortunes that the different illicit drugs discussed in this series pose for others is to identify problems, analyze them to the best of my abilities, and offer proposals for the public to mull over. I will consider this series a success if readers come away from it with the belief that we are in deep kimchi today, that an even bleaker future awaits us unless we commit both to seriously and honestly debating how to address the nation’s illicit drug problems and to changing our policies now. This will require raising awareness of our drug policy problems and generating a commitment to rectifying them. Even baby steps will eventually get us where we want to go as long as those steps are in the right direction. The situation is dire, and there is no time to waste.

Paul J. Larkin is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. I would like to thank John G. Malcolm and Bill Poole for valuable comments on an earlier iteration of this Legal Memorandum. Any errors are mine alone.


Paul Larkin
Paul Larkin

Rumpel Senior Legal Research Fellow