The year 2022 saw the public return its attention to controversial public policy issues that grabbed our attention before the pandemic struck the United States from the winter of 2019 through 2021. One of those issues is illicit drug policy. Currently, misuse of analgesics—whether plant-based opioids like heroin or synthetic painkillers like fentanyl—is the principal focus of concern.REF In fact, the great and increasing number of overdose fatalities from the use of such drugs has led commentators to describe our current plight as an epidemic.REF
The question whether society should outlaw all or particular psychoactive drugs except under a licensed physician’s supervision has been the subject of intellectual debate for quite some time.REF As a matter of federal law, however, that issue has been settled for more than a half-century. The principal federal criminal law governing the subject of illegal drugs is the Controlled Substances Act of 1970 (CSA).REF The CSA incorporates the definition of the term “drug” from the Federal Food, Drug, and Cosmetic ActREF and defines the term “controlled substance” (with certain exceptions) as “a drug or other substance, or immediate precursor, included in Schedule I, II, III, IV, or V of part B of this title.”REF Schedule I lists drugs, such as heroin, that are illegal to manufacture, distribute, or possess for any reason because they have no accepted medical use and are dangerous.REF Schedules II through V may be prescribed by a licensed physician and distributed by pharmaceutical companies and drugstores, but they are subject to (decreasingly) strict regulations for public safety purposes. That scheduling system has been in place without any major change since the CSA became law in 1970.
Despite repeated calls to revise or repeal the CSA to legalize the distribution of some or all controlled substances, Congress has revisited that statute on numerous occasions over the past 50 years, and at no time has it eliminated the ban on the illegal distribution of drugs like heroin.REF On the contrary, Congress has passed a variety of statutes—such as the Comprehensive Methamphetamine Control Act of 1996REF and the Foreign Kingpin Designation Act of 1999REF—that continue to use the criminal law to halt the distribution of dangerous controlled substances and prevent the diversion of regulated drugs doses for illegal use. Atop that, since 1970, Congress also has implicitly reaffirmed the need for those acts every time it has appropriated funds for the Drug Enforcement Administration and the Department of Justice for their drug law-enforcement missions.REF
The bottom line is this: Whatever the merits of the Millsian position that the government should not interfere with an individual’s choice regarding what drugs to use, three points are clear:
- The statutes on the books prohibit the importation, cultivation or manufacture, and distribution of a series of controlled substances and deem those drugs contraband;
- Congress is not likely to repeal the CSA in the near future; and
- The President is obligated by Article II of the Constitution to see to the enforcement of those laws within the budget constraints set by congressional appropriations.REF
This Legal Memorandum is an introduction to a series of forthcoming Heritage Foundation publications on a variety of important drug policy issues. The goal of those papers is a simple one. They will discuss how we should treat drugs like fentanyl, methamphetamine, hallucinogens, cannabis, and what are called Novel Psychoactive Substances, as well as the problem of polydrug use. The hope is to educate readers about the often-forgotten costs of legalizing certain 21st century illicit drugs. The advocates of legalization have already made their case.REF We hope to add to the debate by mentioning the often-unmentioned costs that would follow in legalization’s wake.REF
Analgesics: Prescription Opioids, Heroin, and Fentanyl
Society has used opium as a medicine for thousands of years,REF and opioids are the best-known painkiller available today.REF Unfortunately, opioids can be quite addictive if overused, and recently they have been.
Over the past two decades, opioid-caused overdoses hit the nation in three successive “waves” of increasing severity.REF Wave 1 involved the overuse of prescription opioids, such as oxycodone.REF Once the federal and state governments limited opioid prescriptions to address opioid addiction, Wave 2 began.REF Opioid users turned to heroin, a highly addictive Schedule I controlled substanceREF that has ruined thousands of lives in AmericaREF but became easier and less expensive to obtain than prescription painkillers.REF Wave 3 is the current stage, and fentanyl is now the principal drug of concern.REF Fentanyl has been used for decades as a surgical analgesic or treatment for end-stage cancer pain, but illegally sold fentanyl is now responsible for an increasing number of fatal overdoses.REF In fact, the number of deaths has reached epic proportions.REF
Fentanyl is an extraordinarily potent analgesic. It is 50–100 times more powerful than morphine, the drug that serves as the baseline for measuring analgesic effectiveness.REF (For perspective, heroin is five times as powerful as morphine.) The result is that a small amount of fentanyl can be fatal. What is worse is that some analogues of fentanyl—such as carfentanil, which is used to tranquilize elephants—are ten thousand times as powerful as morphine.REF Only a few grains—grains, not even grams—of carfentanil are fatal to humans. Addressing illicit fentanyl is quite literally a matter of life and death.REF
Fentanyl, however, is not the only troubling drug used today. Other drugs also present us with their own set of troubling problems. Consider just two examples: methamphetamine and high-potency cannabis.
Methamphetamine, colloquially known simply as “meth,” is a stimulant. Originally, biker gangs were the chefs principally responsible for creating meth from chemicals such as the pseudoephedrine found in over-the-counter decongestant medications.REF Now the Mexican drug cartels produce considerable quantities of the drug and smuggle it across our Southwestern border.REF
We might soon witness a shift from opioid use to a greater use of stimulants like meth. The reason is that, historically, societal illicit drug use has moved in a cycle, with large-scale use of depressants like opioids replaced by stimulants like methamphetamines before depressants return to haunt our communities.REF Seen by opioid users as “a fentanyl substitute,” meth “kept withdrawal at bay,” leading drug users to believe meth was some kind of shield from fentanyl.REF It is, however, at best a porous shield. As author Sam Quinones put it, “You don’t generally overdose and die on meth, you decay,” perhaps hoping that death is nigh.REF Long-term users ultimately resemble the hungry ghosts in the Buddhist afterlifeREF or zombie travelers wandering about aimlessly in a post-apocalyptic world.REF
Another troubling drug is 21st century cannabis. Technically classified as Cannabis Sativa L. but colloquially known as marijuana, cannabis is an ancient nostrum. Archaeological evidence reveals that humans used agricultural cannabis more than 10 thousand years ago.REF The states outlawed its use for medical or recreational purposes during the first third of the 20th century,REF and the federal government followed suit by passing legislation in 1937 and 1970 that made the importation, cultivation, and distribution of cannabis a federal offense.REF The nation also entered into several international conventions that treat cannabis trafficking as a crime.REF
All that changed in 1996. Since that year, numerous states have amended their own laws to permit cannabis to be cultivated, distributed, and used for medical or recreational purposes. As of May 27, 2022, 37 states, four territories, and the District of Columbia permit the use of cannabis products for medical purposes, while 19 states, two territories, and the District of Columbia permit recreational-use cannabis.REF Federal law, however, remains as it has been for more than 50 years: Cannabis is contraband and cannot be used for any purpose, either recreational or medical.REF The Biden Administration recently reaffirmed the federal government’s position that cannabis remains contraband.REF
Unfortunately, “cannabis policy has raced ahead of cannabis science.”REF The states have revised their laws without giving adequate consideration to the facts that today’s cannabis not only lacks uniformity and purity in its ingredients and potency,REF but also is far more powerful than the version that grandpa smoked at Woodstock.REF
The principal psychoactive component of cannabis is delta9-tetrahydrocannabinol, commonly known as THC.REF The THC content of cannabis from the 1960s through the 1980s was approximately 3 percent–4 percent.REF Since then, the THC content of cannabis has increased logarithmically over time as growers have sought to create a more powerful drug to enhance their profits by giving it a greater “kick.”REF Today, however, the THC content can be 12 percent–20 percent in the plant form and 15 percent–65 percent in hash oil, an oil-based extract of hashish. Other formulations of cannabis can be in the 90-plus percent range. The result is that studies conducted on the “near beer” version of cannabis might not be relevant to the effect of today’s grain alcohol–quality cannabis.
The need to study the effects of today’s cannabis is not an excuse to find work for aspiring botanists or chemists pursuing their PhDs. In 2019, a former New York Times reporter, Alex Berenson, published a book—Tell Your Children: The Truth About Marijuana, Mental Illness, and Violence—that highlighted the problems noted in its title. More recently, commentators have noted that several of the parties responsible for recent mass shootings have been long-term or heavy cannabis users and have questioned whether such drug use is responsible for anomie, mental illness, and violence.REF Various studies have also noted that there appears to be a relationship between cannabis use and mental illness or violence, although there is no agreement as to whether that relationship is causal in nature.REF There now seems to be little doubt, however, that long-term, heavy cannabis use beginning when a person is a teenager (or even younger) can have adverse and severe neurological effects on the labile juvenile brain.REF
The Need for Open, Honest Debate
Controversial public policy proposals inevitably have upsides and downsides. No issue worth a legislature’s serious attention has outcomes that are all strawberries and cream. There are winners and losers on opposing sides of every contemporary public controversy, and nowadays their battles regularly resemble the no-holds-barred contests of Thunderdome.REF
Drug policy is no exception. For example, since the 1960s, there has been considerable debate over the question whether cannabis should still be outlawed by the state and federal governments or should be sold under a regulatory scheme similar to the ones currently used for alcohol or cigarettes.REF Giving into the temptation to fund projects with taxes imposed on previously illegal drugs, numerous state legislatures have revised their codes to permit cannabis to be sold for medical or recreational use.REF
Open, thoughtful, reasoned, and honest public debate on public policy issues is necessary in a democracy. Only informed members of the electorate can make educated choices about what path to follow. Debate therefore should be welcomed; no one should be subjected to a “heckler’s veto,” a boorish demonstration designed to prevent a speaker from even offering his or her views.REF That is our loss whenever it occurs. It should not be used to stifle debate on this subject.
The nation needs to conduct that investigation before taking any further steps to legalize potentially dangerous drugs. A 2018 New York Times article by Aaron Carroll called for a robust discussion of the benefits and risks resulting from cannabis legalization.REF The following year, Alex Berenson did just that in his book Tell Your Children: The Truth About Marijuana, Mental Illness, and Violence. Yet the reviews of his book principally ranged from ones that simply dismissed his theory to ones that ridiculed it.REF As Berenson admitted, he is not a scientist or a physician; he once was a journalist and now is a writer. Nonetheless, he posed numerous difficult questions that society should reexamine about cannabis, certainly before that drug is legalized by the federal government. Similar questions could be raised about other drugs that have been recommended for medical use, such as psilocybin or lysergic acid diethylamide, commonly known as LSD.REF More generally, Berenson’s book raised the issue of how we should answer drug policy questions such as which drugs should be outlawed altogether, which drugs should be dispensed only by a physician, which drugs should be manufactured only by a licensed pharmaceutical company, and which drugs should be lawfully sold but only if regulated (for example, to ensure purity) and restricted (for example, to prevent sales to minors). Those questions are worthy of everyone’s time, attention, and participation.
For more than a century, our nation has used a playbook to fend off the problems that follow in the wake of certain drugs such as heroin. The playbook contains more supply-side than demand-side ways of dealing with dangerous substances. Interdiction and criminal law enforcement have played prominent roles in our strategy. Over the next few decades, the public might throw out that playbook in favor of new approaches to our old problems.REF Some of those new approaches might succeed, but they also might fail and worsen our current situation.
The legalization of dangerous drugs would allow a small number of people to profit from the misery of others. To date, we have not allowed our fellow citizens to suffer that fate just to satisfy the greed of a few. But the allure of being able to tax new categories of what once had been deemed contraband—the prospect that legalization would produce an entirely new cache of funds that elected officials could dispense to their favorite constituents or use to fund their pet projects—might turn out to be too great a temptation for politicians to ignore. Of course, once tax receipts start to roll in, elected officials could become as addicted to their new source of revenue as street-level addicts are today to their drug of choice.
Still, politicians will attempt to justify their decisions to legalize such drugs by pointing to the new “goodies” they can dispense and dismissing the unfortunate victims of drug abuse as not being “my people.” They will find a way to justify with a straight face their willingness to cause misery and death to people they don’t know and about whom they don’t care. As a result, their decisions will cheapen or destroy the lives of whoever becomes physically dependent on or addicted to the drugs we formally legalize or the ones whose unlawful use we decide to willfully ignore. If that happens, the result will be disastrous to society and horrendous for the individuals involved, as well as for anyone who cares about them. We might have to ignore what we’ve done just to sleep at night.
But what we won’t be able to do is say that we weren’t warned.
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.