“The right to swing my fist ends where the other man’s nose begins.” ― Oliver Wendell Holmes Jr.
The quote above has been attributed to historical figures including Oliver Wendell Holmes and Abraham Lincoln. While its origins are uncertain, it has links to prohibition. While in a contemporary lens, prohibition is viewed as an infringement of personal freedom, in late 19th and early 20th century America, prohibition was actually considered as a measure to free people from the binds of alcohol dependency. As this 2022 Washington Post article examines, in that era, heavy alcohol use and alcoholism were rampant and disruptive to society. “Prohibitionists, abolitionists and suffragists were all united in the belief that every individual has the right to be free from subjugation for profit.”
There are legitimate interests of government to regulate, restrict or sanction drug use. Drug use can interfere with a well-functioning society, yet getting the balance right between individual freedom and other considerations including public safety is a vexing challenge. To develop effective and just drug policy, we are best served by understanding these tensions and how they have played out over the course of our own history.
Their frame of reference 100 years ago was freedom from the societal harms of the drug alcohol. In our era, we weigh the freedom to use drugs as more important than the considerations of the harms of drug use to society. Human rights of body autonomy, personal freedom and the expression of these inherent freedoms are central to our form of government, but so is our collective wellbeing. We rarely get the balance right.
History shows us examples of drugs being used to exploit people while drug laws have also been improperly deployed to incarcerate large portions of our population. In a recent journal article, Addiction and autonomy: Why emotional dysregulation in addiction impairs autonomy and why it matters, it is argued that “emotional dysregulation is not only consistent with the possibility that many addicts take drugs “willingly,” it supports the hypothesis that they use drugs because they truly want to.” This reads as addiction being a choice and discounts what happens with addiction. These arguments discount the inherent risks to society of an impaired populace and the neurology of drug impairment on cognition. Both are vitally important considerations.
Solutions moving forward must account for both the risks to society and autonomy. We value human freedom but need to properly account for severe substance use disorders which impair free choice as cognition is impacted by use. While accounting for impaired free choice and the inherent risks of drug use to society from impaired persons, we must also consider how drugs and laws surrounding their use have been used over the course of our history to suppress marginalized communities. These are wounds that must be understood to heal. That drug policy has been used throughout our history in ways to oppress members of our society and creates profound challenges moving forward.
Legitimate societal interest in regulating the use of drugs and protecting people from harm
As noted by the Atlantic Monthly in 1784, Benjamin Rush, physician and signer of the US Declaration of Independence viewed alcohol as a threat to the newly birthed nation. The taxes on alcohol helped fill the treasury coffers. Money was being made by distillers at the expense of our common welfare. In that era, alcohol use was over three times our current consumption rate. It was eroding communities and presented a risk to public safety and productivity. As noted by Alan Taylor of the University of California, John Admas was mortified that we were the heaviest drinkers in the world. The least sober nation. People drank from dawn to dusk. Men started the day with a shot and could do nothing without alcohol. Taylor recounts that routinely, funerals and weddings occurred in which both the officiants and attendees were too drunk to stand. It is in this era and in this context that the roots of Prohibition sprouted. As we became an industrialized nation, it interfered with our economic security while reducing our life span and eroding our communities.
Our own era is replete with examples of the social and economic consequences of the prevalent use of substances. According to the Council of Economic Advisers’ 2019 report the opioid epidemic alone is costing us roughly 3.4 percent of our GDP. This does not consider the impact of other drug use on our GDP, including alcohol. Our collective life expectancy has decreased. A great deal of money is also being made in our nation and current era by both legal and illegal purveyors of drugs. While countries all over the world saw life expectancy rebound during the second year of the pandemic after the arrival of vaccines, the U.S. did not. This is in no small part due to alcohol and opioid related deaths. These costs in lives and to our society are not problems we can ignore addressing.
We are seeing higher rates of fatal accidents related to substance use. Fully one third of all fatal drug crashes in Philadelphia are related to Fentanyl. As noted by JAMA, the rate of cannabis-involved traffic injury ED visits per capita increased by 326.6% (from 0.13 in 2010 to 0.54 per 100 000 individuals in 2021), while alcohol-involved traffic injury ED visits per capita decreased by 18.9% (from 5.83 in 2010 to 4.73 per 100 000 individuals in 2021). According to research out of Harvard Medical we can anticipate a doubling of alcohol related liver disease over the next 20 years.
Regulation of Substance Use to Discriminate Against Marginalized Communities
We have failed to treat persons who use drugs justly under our laws. There is a clear historical record of drug laws being enacted in order to subjugate marginalized communities. Cannabis was depicted in early 20th century America as “Evil Mexican Plants that Drive You Insane,” or “MEXICAN FAMILY GO INSANE.; Five Said to Have Been Stricken by Eating Marihuana ” Headlines like these served to fuel moral panic and were supercharged with racists claims, as we can see by considering the statements of Harry Anslinger, the first director of the Federal Bureau of Narcotics:
“There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos, and entertainers. Their Satanic music, jazz and swing, results from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers, and others. (Solomon 2020)”
Media portraying cannabis as a demon drug that turned people insane and threatened white America lead to the passage of the Marihuana Tax Act (MTA) of 1937. Movies like Reefer Madness that depict cannabis as “public enemy number one” reinforced this messaging and led to a disconnect between the actual risks of the use of cannabis and public perceptions about the dangers of the drug and people who used it. There are many other historical examples, of moral panic, including the passage of legislation in California in the mid-19th century focused on opium use by Chinese Immigrants. It was fueled by discrimination against Asians, whipped up by the fear of foreigners using drugs.
A more contemporary example of a law with disparate was the Anti-Drug Abuse Act of 1986, it focused severe penalties for the use of crack cocaine and substantially increased the number of drug offences with mandatory sentencing. It had a disparate impact on Black Americans. It would be hard to overstate how devastating this law has been for Black America. The law created a massive disparity in the sentences imposed for crimes involving powder cocaine versus crack cocaine, in the ratio of 100 to 1. A drug crime involving 5 grams of crack cocaine resulted in a mandatory minimum sentence of 5 years in federal prison, while crimes involving 500 grams of powder cocaine received the same sentence. As the use of crack cocaine was prevalent in more highly policed Black communities, America experienced an unprecedented increase in our incarceration rate, with Black incarceration rates increasing from 600 per 100,000 people in 1970 to 1,808 in 2000. In the same time frame, the white incarceration rate grew from 103 per 100,000 people to 242.
Substance Use as a Tool of Exploitation of Marginalized Communities
Native Americans were generally alcohol naïve prior to European colonization. As noted in Slaying the Dragon by William White, some native Americans refrained from alcohol use as they saw it as degrading and others incorporated it into ritual use. Early traders quickly realized that plying indigenous communities with alcohol gave them an advantage. Colonists had higher tolerance to alcohol, which also led to negative stereotyping that reinforces stigma against native communities that exist through to our times. William White and Mark Sanders in their article Addiction and Recovery among African Americans before 1900 wrote about how slave owners restricted the use of alcohol for fear of insurrection. Frederick Douglass documented in his biography how during harvest time, cheap alcohol was supplied to slaves as means to exploit and degrade them.
A study from Johns Hopkins School of Public Health found that predominantly black, low-income neighborhoods in Baltimore were eight times more likely to have carry-out liquor stores than white or racially integrated neighborhoods raising similar concerns about exploitation as those that were occurring well over 100 years ago. A 2020 study on cannabis retailers in California found minority populations in California disproportionately exposed to unlicensed cannabis retailers, potentially exacerbating health disparities by selling unregulated products or selling to minors.
Where our noses end – what responsibilities do we have to a well-functioning society?
There are considerations of the impact of drug use at the societal level that need to be balanced against our values of individual freedom. From mores to laws, societies set boundaries to sanction dangerous actions to ensure:
- The ability to live in communities and raise children in conditions free from the ravages of unchecked drug use.
- Not being injured, killed, or have our property destroyed by an impaired person who present a risk to public safety.
- To have a society not overburdened with reduced productivity or skyrocketing medical and human service costs associated with the harmful use of drugs.
Failure to properly address the deteriorative effects of drug use can be existential for societies. Even countries like Portugal with very liberal drug policies have measures to compel people who are using drugs to get help. They do so as they recognize the costs of unchecked drug use are too high to bear for their society. But they are compassionate and legitimate desire to treat people who use drugs more humanly. We should also. There is perhaps no worse experience in our medical care system than being viewed as a drug addict. Addiction is a brain condition impacting cognition yet it is highly stigmatized. Solutions must be multifaceted and include diverse groups across government and marginalized communities in order to develop strategies that address the collective harms to our communities that have occurred historically. We must avoid the kinds of mistakes we have made in the past.
- There is one “solution” that history shows us we are prone to. We lock large swaths of our brothers and sisters away in prisons. Out of sight out of mind and devastating for whole communities across multiple generations, but quite tempting for policy makers. Getting tough on crime reads well politically. It creates conditions that lead to more problematic drug use over time, not less.
- The only direction that makes sense for persons with severe forms of substance use disorder getting more of us into long term, sustained recovery. The recovery paradigm is based on the recognition that 85% of the people who stay in recovery for five years remain in recovery for the rest of their lives. A thing we have not yet attempted to do on any real scale. Perhaps To do so, we would need to retool our systems by:
- Establishing tools to hold our care systems accountable when disparate, short-term care is provided to ensure that access and duration of services are consistent with applicable laws and regulations while changing these standards where they fall short of what is actually needed.
- Setting up longitudinal, whole person focused research that examines recovery over the long term to understand what works for whom and under what conditions and use these insights to improve care.
- Full inclusion of persons in recovery in the design, implementation, delivery, and evaluation of services to ensure that care meets the needs of those seeking help across the full spectrum of diverse persons seeking help.
Substance use has impacts across our entire society. We must more fully understand our own history and account for both individual freedoms and harms to society if we are to craft more effective policies moving forward. Policies that help people and communities heal. Prohibition did not work as hoped, the war on drugs did not work as hoped. Great harm has occurred across our society when we have pursued incomplete and limited plans that fail to account for the entire spectrum of harms associated with substance use, substance use conditions and their healing. Crafting multifaceted policy that addresses all of the complexities require a clear-eyed examination of our history and a whole lot of difficult conversations across all governmental and non-governmental stakeholder groups with particular sensitivity to the views and voices that have been historically discounted in these processes.
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