Overdose Deaths Are a Pandemic Catastrophe. Here’s How Biden Must Act.

This piece was co-authored with Morgan Godvin.

Photo by Mike Labrum on Unsplash

A former narcotics prosecutor and former heroin injector are unlikely allies. A slight tweak of circumstances and we could have been adversaries, playing out a tragic trope of the ‘War on Drugs’ in a court of law.

Fortunately, Morgan Godvin and I met in a safer space: Twitter. She has survived overdoses and served time in federal prison for providing a fatal dose of heroin to a friend. She is now a freelance writer, advocate and researcher.

Morgan and I do not agree on everything — for instance, broad decriminalization. We are, however, deeply aligned on the urgency of harm reduction, including the distribution of overdose-reversal drugs, syringe exchange programs, drug checking equipment and overdose prevention sites [“OPS”]. We have written this post together in the hopes of sparking more conversations and expanding common ground in a time of crisis.

The need is urgent. Overdoses have increased starkly during COVID. Preliminary data from the CDC hints at we all feared: 2020 will be the worst year on record for overdose, possibly exceeding 100,000 deaths. While debate on what is and what is not moral or legal rages, Americans die. Changes to federal law and regulation could be implemented overnight and begin saving lives just as swiftly.

There now is consensus on the need to distribute naloxone, and the AIDS epidemic proved the efficacy of syringe exchange programs. OPS programs, however, face higher hurdles. That’s why we are coming together to say this: get real. If you want to save lives, we have to be bold.

When the Third Circuit Court of Appeals struck down plans for a supervised injection site in Philadelphia January 12, 2021, the opinion sounded in regret. “[T]hough the opioid crisis may call for innovative solutions,” wrote Circuit Judge Stephanos Bibas, “local innovations may not break federal law.”

There are, indeed, significant legal obstacles to safe injection sites. It is a federal felony, thanks to a bill co-sponsored by Senator Joseph R. Biden, which was signed into law by President Ronald Reagan as the Anti- Drug Abuse Act of 1986. Even after its 1988 amendment, the key provision — known as the ‘crackhouse statute’ — “[m]akes it a Federal criminal offense to open, maintain, manage, or control any facility used for manufacturing, storing, distributing, or using a controlled substance.”

Without even broaching the failings and racial bias of the War on Drugs: there’s an argument that the “crackhouse” provision would not apply to safe injection sites. The sites are operated by trained personnel equipped to reverse overdoses and connect clients to other services; additionally, their purpose is not to trap users, but rather to allow everyone who injects to survive.

Former Deputy Attorney General Rod Rosenstein, who warned against safe injection sites in a 2018 New York Times Op-Ed, argued that, “Americans struggling with addiction need treatment and reduced access to deadly drugs.” This was a particularly rich claim to advance during the Trump presidency: while simultaneously opposing OPS, the Administration called for the repeal of the ACA, putting Medicaid coverage of substance use disorder at even greater risk.

As for reducing the influx of deadly fentanyl: it’s a laudable goal, but drug supply stubbornly parallels drug demand despite the United States’ best attempts at interdiction. In fact, increased interdiction efforts lead traffickers to prefer more highly concentrated substances that can be concealed more easily, hence our current crisis. Fentanyl-poisoned street drugs are more readily accessible than FDA approved medications for opioid use disorder, another point where urgent federal intervention is needed. We have to get real: expanding harm reduction is the only way to save lives and avoid unnecessary suffering.

And that’s where the moral outrage fails. “Injection sites do not help drug users overcome addiction,” Deputy AG Rosenstein warned, “Most visitors simply walk in, get high and stumble out.” The argument misses the point: if they’re coming back out, they’re alive.

While most people agree that drug use does not invalidate a human being’s worth, some people still publicly question whether people who use drugs deserve help to stay alive. It’s ironic: drug addiction doesn’t discriminate, but people continue to do so, at great cost.

Conspicuously absent from much of the debate around expanding harm reduction the debate is data — which seems to indicate that OPS programs save lives not just by avoiding overdoses, but also by reducing infections. Fortunately, we know that President Biden better understands the need for compassion and believes in science. Now it’s time to take a concrete step: President Biden can and should direct Congress to carve out specific authorization for OPS programs among his other harm reduction initiatives.

We cannot delay for the sake of a future, perfect debate on reorganizing our entire penal system. Our path forward as a nation towards healing, unity, and justice can be charted by swift and compassionate legal action to prevent more unnecessary death.

Author of “Bad Medicine: Catching New York’s Deadliest Pill Pusher,” former Manhattan ADA , Columbia Law School grad, occasional legal cartoonist.

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