Decriminalizing Hard Drugs: Revolution or Ruin?

The first result upon googling “fentanyl crisis” is this: “Chance Stovall, 17, was a junior at Wylie East High School when he died in early February.”¹ Tomorrow, the name, age, and location of the victim will have changed. But, the problem remains. Many say that desperate times call for desperate measures, which leads society to believe that it is inevitably time to consider the implications of legalizing harder drugs on the fentanyl crisis.

However, legalizing hard drugs, as a response to the fentanyl crisis, poses significant risks and challenges, ultimately leading to societal ruin rather than revolution. Through an examination of current legislation, budgetary implications, and empirical evidence, support is provided against the legalization of hard drugs, and emphasis is provided for alternative approaches that prioritize prevention, treatment, and systemic reform.

Legalization appears to be an oxymoron. Making hard drugs more available makes them exactly that: more available. But quite unlike Prohibition in 1917, a complex issue needs to be considered in the limelight of a more complex solution. The world has frankly become a more intricate place, and legislation has become more complicated too. We know that making harder drugs illegal will not stop consumption and distribution, so it is safe to say that legalizing harder drugs will not necessarily increase consumption and distribution, either.²

To start an analysis, exploring the U.S.’s current legislation with regards to substances can be useful: the Controlled Substances Act of 1970. This act places all substances into five schedules. Notably, schedule categorization is dependent on “actual or relative potential for abuse” and “what risk there is to the public health” among other factors.³ For reference, in Touby v.s. The United States, the Supreme Court confirmed that enforcement of this act is carried out by the Attorney General who often instates the Drug Enforcement Agency.⁴

It is important to note that fentanyl can be classified as the most powerful of all substances. Fentanyl is 50 times stronger than heroin and 100 times stronger than morphine.⁵ The debate surrounds legalizing the drugs with middle tier classifications, like the heroins and morphines, not fentanyl itself.

The meaning of “potential for abuse,” and how much risk is enough to reclassify a drug is convoluted. Either way, hard drugs appear to be both risky and abusive. So, why consider legalizing drugs of similar or slightly lower class to fentanyl?

For context, the government channels a staggering $46 billion, annually, towards battling the drug epidemic, ranging from law enforcement to justice programs.⁶ Ideally, legalizing hard drugs saves government funds, and these funds can be funneled into socioeconomic condition improvement and infrastructure.

However, the true challenge lies with reallocation of funds. While it might seem like an easy task to take money from rehabilitation and funnel them into infrastructure, this is a process that the bureaucracy cannot handle. To make matters worse, drug legalization reallocation would be in a race with decay. An imaginary story can be utilized to illustrate the process:

The tortoise and the hare are in a race. The tortoise–the United States government– has 5 main obstacles when it comes to racing.

Red tape: The tortoise has to be reviewed and looked up and down 100 times before he can get out onto the racetrack
Conflict: The tortoise eats up time arguing with its coaches and even his subordinates about the strategies he should be using while on the track
Duplication: Two or three members on the tortoise’s team spend time and money on the same coaching method without talking to one another
Imperialism: The tortoise has to deal with inner corruption. The power dynamic between the coaches escalates and has to be dealt with.
Waste: The tortoise’s team buys equipment that it never ends up using.⁷

The hare, on the other hand, has no obstacles. In fact, it has a head start. The legalization of middle tier drugs can make fentanyl and higher class drugs cheaper.⁸

Heroin is a relevant example. Heroin and its counterparts, prescription opioids, have similar effects. Heroin is illegal, while opioid consumption is legal, but highly regulated.⁹ Notably, “in a recent survey of people in treatment for opioid addiction, almost all—94 percent—said they chose to use heroin because prescription opioids were “far more expensive and harder to obtain.”¹⁰ Like a stepping stone, if heroin is legalized, it will become “far more expensive and harder to obtain,” bringing an added appeal to fentanyl.¹¹

A surface level analysis of legalizing softer drugs unveils that legalizing a softer drug can potentially prevent deaths from use of the harder drug.¹² Diving deeper unveils that this correlation is not a causal relationship. There are too many confounding factors, like socioeconomic condition, drug type, and now in recent times COVID-19 that can compound this theory.

It is not plausible to spend time to tweak and edit a solution with regards to legalizing hard drugs and systematically include/exclude confounding variables because drug abuse is not a victimless crime. This is not a fable, but rather an imminent problem with lives that will not be properly addressed “slowly and steadily.” The hare wins. It is improper to address such an imminent issue with this long dragging process.

The slow nature of the reallocation of funds, or even the ineffectiveness of legalization at curbing drug use are not the only concerns with legalizing illegal drugs. There is also the matter of the directness of the reallocation. If the government takes money from any of its other goals or programs that have been well thought out, through red tape, we are left with what could be a crisis that is just as dangerous. One notable example of the United States reallocating funds poorly is the case of Brown v. Plata (2011). In this case, the Supreme Court ruled that California’s prison system was unconstitutionally overcrowded, leading to inadequate medical and mental health care for inmates. As a remedy, the court ordered California to reduce its prison population to alleviate the overcrowding issue. However, California’s response to this order involved a controversial reallocation of funds. Rather than investing in rehabilitation programs or alternative sentencing options, California chose to transfer thousands of inmates to out-of-state prisons and local jails within the state.¹³ Some may argue this approach merely shifted the problem without addressing the underlying issues of rehabilitation and recidivism.

So, there is not just a life cost with the fentanyl crisis, but an opportunity cost of reallocating funds.

Not to mention, there is a crucial gap in the timeline. Taking money from rehabilitation to funnel towards building infrastructure would make sense, if the timing was right. In other words, infrastructure has to be built before the need for rehabilitation decreases, but the money would not have come in yet.

Oregon is a great case study for this timing pitfall. After decriminalizing possession of hard drugs, they realized that they did not have the resources to reallocate their funds. They turned to Portugal for an example, as they were some of the first to decriminalize hard drugs. They noticed that “Portugal took more than two years to transition carefully to a new system and replace judges, jails and lawyers with doctors, social workers and addiction specialists. “So we put the cart before the horse”¹⁴

So, while legalizing harder drugs in cities can save billions in government spending, the spending will not be properly applied to the decay that the legalization will cause, nor at the proper time which can worsen the situation. In this scenario, government money is not being properly allocated to infrastructure, but it has been removed from funding efforts against the drug epidemic.

Thus far, evidence has been provided to back up how government money needs to be properly allocated to infrastructure, and that without proper reallocation, there could be ruin. It is important to define the ruin in question. It has already been addressed that harder drugs become cheaper, more accessible, and more appealing, but the ruin extends further than this.

There is evidence to support that legalizing harder drugs not only is fruitless in curbing the fentanyl crisis, but could also potentially increase violent crime.¹⁵ Drug use and violent crime have always been linked. In fact, “more than 26% of respondents who reported using alcohol, cannabis, and cocaine in a 12-month period, also reported committing a violent crime within the same time frame.”¹⁶ Contrary to the correlation between softer drugs being legalized and harder drugs causing death, this correlation has substance that alienates confounding variables. Studies have scrutinized timelines, and found that “opiate-positive cases had higher rates of offending than test-negative controls, both prior to, and post, opiate initiation.”¹⁷ It is no mere coincidence that drug use and crime happen on the same timeline, which might seem self-explanatory, but it is important to evaluate why this may be.

Standardly, there are two reasons that someone involved with hard drugs could be involved with crime.

Drug trafficking: competition for consumers in the illicit drug market, conflict, and location of trafficking can be fuel for violent crime¹⁸
Hormonal and motivational change: As someone consumes more drugs, they find themselves burdened with addiction, and are extremely motivated to fuel their addiction, which often causes them to resort to crime.¹⁹

Legalizing harder drugs would eliminate violent crime due to the illegal drug market in a simple world. However, there will always be an illegal drug market, even if more drugs become legal, that does not decrease the violence of the remaining illegal drug market. On the other hand, an increase in legal drugs increases the second variable, character and social change. As someone consumes more drugs, their character is subject to change more, and motivational drug crime might increase.

Finally, in Gonzales v. Raich, the Court held that under the Commerce Clause of the U.S. Constitution, Congress had the power to regulate the production and use of marijuana, including instances where it was grown and consumed solely within a single state. The decision effectively upheld federal drug laws over conflicting state laws legalizing medical marijuana. So, state by state legalization may not even have the power that it advertises.²⁰

Going forward, we must face the fact that there is no black and white cure to the substance abuse problem in the United States, and quit the agenda that legalizing hard drugs will help. Once we rid ourselves of this idea, we can determine more reasonable options from there.

It is imperative to prevent another idea as radically appealing as legalizing hard drugs. Psychologically, humans are trained to think that desperate times call for desperate measures. The idea to turn to something radical when things are going poorly is extremely popular. For instance, when Germany was struggling socioeconomically, the people turned to a radical leader who promised big change.²¹ We, as a society, need to break down the idea that big and terrible change can coincide. The issue of the substance abuse crisis is often approached with instant solutions in mind. Instead of clawing for answers, society needs to step back and reevaluate the desperation that is fostered during that clawing.

A careful transition and an emphasis on building as opposed to nitpicking budget allocation and tearing things down is necessary. Building up does not have to start from scratch, either. The Office of the Surgeon General has found that “embedding prevention, treatment, and recovery services into the larger health care system will increase access to care, improve quality of services, and produce improved outcomes for countless Americans.²² Continuing to use what works, even if it might be slower and less drastic, can be a great alternative.

Coming full circle to the Controlled Substances Act of 1970, one of the ways that drugs are classified is by “the scope, duration, and significance of abuse.”²³ The scope, duration and significance of legalizing harder drugs has the potential to be worse than the danger of the drugs themselves.

We might not know exactly what works, but we know what does not. From the slow process of legalization to the gapped timeline to the increase in violent crime, there are too many serious consequences to continuing down this path. Losing the government game against drugs means loss of life in many different directions. The Revolution of legalizing hard drugs is a ruin, in and of itself.

Edited by Annie Cayer and Emma Morgan

About the Author

Alex Vihlen is a senior at Northeastern University majoring in Economics and Philosophy with minors in Chinese and Law & Public Policy. He serves as Editor-in-Chief of the Northeastern University Undergraduate Law Review, where he oversees the publication’s editorial process and the development of its print and digital editions, and has also previously served as Executive Editor, Managing Editor, and Staff Writer. As a Staff Writer, Alex co-wrote a note titled Navigating the AI Topography: Establishing an AI Specialty Court for Judicial Efficacy that argued for the creation of an Article I specialty court to adjudicate AI-related litigation.

Alex’s legal interests include financial-sector regulation, transactional law, corporate governance, and the intersection of economics and legal theory. He previously completed a legal co-op with the Private Investments Legal team at Wellington Management, as well as with the Legal team at Amundi Asset Management.

Outside of his academic work, you can catch Alex running or at the gym, exploring new coffee shops in Boston, and hanging out with his cat, a British Longhair named Benny.

Decriminalizing Hard Drugs: Revolution or Ruin?

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