Veronica Rhoten
Edited by Clara Tupitza (Senior Editor) and Nicole Lasko (Junior Editor)
Abstract:
This essay explores the harm reduction approach as a way of addressing the addiction and public health crises and emphasizing human dignity in the criminal system. It utilized an evidence-based approach to contrast the medical standard around addiction and harm reduction policies adopted in European nations with the conservative stance taken by the United States. The essay examines the complexity of addiction in the United States, taking into account the racialized nature of drug criminalization and its historical roots. It advocates for a shift towards harm reduction policies, following the lead of some states in the Pacific Northwest and making drug sentencing equitable.
Harm reduction is a pragmatic approach to treating the drug addiction crisis that prioritizes public health safety and the dignity of human life in line with scientific and social evidence regarding the most effective ways to treat substance use. Several developed nations have adopted policies that align with harm reduction such as the United Kingdom, the Netherlands, and Portugal, among others. However, the United States, despite making strides towards treating the illness of racism, an inherent facet of the drug criminalization system, has taken a much more conservative legal approach towards substance use and healthcare than many of its European allies, to the detriment of its citizens. This essay argues that the racialization seen in American drug law and sentencing serves as both a symptom as well as a point of origin for the state’s refusal to adhere to harm reductive health policies grounded in neurobiology.
While the policies that are commonly linked with harm reduction are famously associated with the Netherlands, the harm reduction movement began in Liverpool. This is due in large part to the UK’s legal allowance of a maintenance prescription, a medical practice wherein doctors prescribe a stable, regular dosage of patients’ preferred drugs as a form of treatment. The movement’s progression was significantly enhanced by the HIV and injection drug crisis of the late 1980s in Edinburgh. As a result of the massive economic depression, people were turning to substance use in droves at increasingly younger ages. To counter this, local authorities and pharmacists refused to sell needles to suspected drug users. Concurrently, the singular local methadone program closed, leaving people to return to street drugs. People quickly resorted to needle sharing and using street drugs which spread blood-borne illnesses rapidly and led to babies being born HIV-positive. The result of this was Edinburgh being labeled the “Aids Capital of Europe” by 1987, highlighting just how ineffective this type of policing is in managing public health. In many ways, the harm reduction movement was launched because of the fear of AIDS in both the United States as well as the United Kingdom.
Addiction is pathologized because it is an involved, multi-system disease, but possession is criminalized because American society has moralized drug dependence to stigmatize minority populations. Today, while the U.S. has come much further in its perception of people struggling with addiction, the policy approach toward the drug crisis has remained largely unmoved. The criminalization of drugs began in the early 20th century with the Harrison Act, which outlawed the nonmedical use of cocaine, morphine, and opium outright as well as heroin—though this was added in a later amendment. Although the current model for addiction treatment reeks of American puritanical values given the highly religious subtext of popular programs like Alcoholics Anonymous, this perspective towards drug abuse is relatively recent, starting only in the 20th century with the influx of immigrant workers.
American social engineering is to blame for much of the modern attitude towards addiction and psychoactive substance use, significantly influencing sentencing. This can be seen in the disparity in sentencing between crack cocaine and powder cocaine, one is associated with poor Black Americans and the other with upper class white people due to propaganda surrounding the war on drugs. One case that exemplifies this is Whitner v. South Carolina (1997). In this case, Cornelia Whitner pled guilty to charges of child abuse and child endangerment for ingesting cocaine while pregnant. After serving 18 months, her sentence was vacated in November of 1993 and later sought post conviction relief (PCR) arguing that the circuit court lacked subject jurisdiction and she had ineffective counsel which was granted on both grounds. The South Carolina Attorney General appealed this decision, and the state Supreme Court ultimately ruled 3-2 the South Carolina Children’s code did include viable fetuses, extending rights to fetuses in a highly contested judicial ruling. This ruling poses a clear threat to reproductive rights’ and bodily autonomy. This judicial overreach grants fetuses rights equivalent to living children in child abuse and neglect cases. However, the case itself concerned alleged prenatal drug abuse and was merely the crowning achievement of Attorney General Charlie Condon’s war on drugs that he had been waging against addicted Black mothers since 1989. Preceding this case, he had instituted the Interagency Policy on Cocaine Abuse in Pregnancy (Interagency Policy) through collaboration with the Medical University of South Carolina (MUSC) and one Nurse Shirley Brown. This policy mandated the noncensual drug testing of pregnant patients, reporting results to the police, and subsequent arrest for drug and child abuse charges as punishment or intimidation. Condon used this to wage a crusade against addicted Black mothers and build a political platform for himself. His policy resulted in the arrests of 42 patients all but one of whom were Black. Women who were arrested while pregnant spent the duration of their pregnancies in jail and were forced to deliver their children in handcuffs. Detractors of these brutal policies, like Dorothy Roberts, have argued that this was a modern tragedy comparable to enslaved women delivering their children under bondage. He used this campaign to launch himself in the public sphere and win the attorney general position that he would later use to force an appeal and overturn Whitner’s PCR. Condon elevated himself through the abuse of the American justice system to target poor, addicted, Black pregnant women and mothers. He had a narrow focus in this endeavor, prosecuting cases of crack cocaine abuse exclusively, despite the program producing positive drug tests in white women for other substances. Condon’s prosecutorial conduct is a gross miscarriage of justice, but his successful utilization of his record and the ruling in Whitner v. South Carolina exemplifies the racialized American attitude around drug addiction, even amidst the backdrop of growing concern over the eventual opioid epidemic in the late 1990s.
Unfortunately, no politician has been willing to be seen breaking over a century of tradition, even manufactured tradition, of being ‘tough on drugs and crime,’ and thus are unwilling to truly aid all of their constituents. As seen in the careers of Attorney General Condon and Ronald Reagan, more often than not politicians have used anti-drug sentiments to bolster their careers. While many people envision drug decriminalization as the major end goal of harm reduction, it is only one policy under a large umbrella that encompasses multiple avenues to treat a public health crisis and infrastructure issue that impacts everyone. The counterargument of decriminalization and harm reduction has historically been that it promotes the use of illicit substances. However, this perspective is not based in realism. Drug abuse is inevitable, so the method that is healthiest for the greatest number of people is to offer safety and security, provide resources for treatment, and prevent wider health crises like HIV. Addiction is classified in the DSM-V as Substance Use Disorder (SUDS), with diagnoses being specific to the substance upon which the patient is physiologically dependent. Substance Use Disorder is a cluster of cognitive, behavioral, and physiological symptoms, specific to the dependent drug, that indicate continued use of the substance despite its use being uncontrollable or causing significant dysfunction or distress within the patient’s life. Many people find themselves struggling to empathize with addicts because of the paradoxical nature of the illness and this illusion of choice. Chronic non-medical use of psychoactive substances like opiates or amphetamines alters the wiring of the brain and body. A great deal of the populace has internalized the dehumanizing messaging around people struggling with addiction and lack understanding of the neurobiological and physiological changes that accompany addiction that directly contradict the common myth of choice.
While evidence against this can be easily sourced in the success of these policies abroad, the argument itself illustrates a larger issue that must be tackled alongside this fight. People must first believe that the value of human lives is greater than the perception of strict adherence to a moral principle, particularly lives belonging to those who they have dehumanized. Sentencing guidelines on drug possession must be changed to begin to ameliorate the issues of racial bias within the criminal system. Already there have been strides made in states such as Oregon and Washington, where low-level drug possession has been decriminalized. Other states should follow suit and implement the ‘cautioning’ model they adopted from British policy where public safety officials divert those caught with illegal substances to social services at least twice before arrest and prosecution. A model like this relieves some of the burden on our prison system but also takes into account the neurobiological reality of addiction. It is a major departure from the antiquated way of thinking which dictates that addicts can “just say no” or quit if they possess enough willpower. Additionally, state sanctioned police violence highlights that law enforcement is ill equipped to handle sensitive matters pertaining to drug use, mental health, or non-emergent de-escalation, so the redirection to social workers rather than criminalization may prove safer and more orderly for American society long term. The law and policy must respect scientific reality as it pertains to human physiology, otherwise we possess little footing to legislate on medical issues. It is crucial to acknowledge that we do not federally criminalize other forms of disease. The arms of the law cannot be brandished against those who make choices that sects of our society disagree with on a moral basis, nor can we afford to sacrifice nonviolent individuals to the prison industrial complex in the name of order.
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