A NEW VISION FOR U.S. DRUG POLICY
THE CONTROLLED SUBSTANCES ACT AT 50
As we mark the 50th Anniversary of the passage of the Controlled Substances Act (CSA), it is fitting to reflect on the role of this landmark statute as the key instrument for regulating psychoactive substances in the United States. By bringing together various strands of federal regulation under one organizing framework, this legislation was designed to facilitate a major expansion in the scope and intensity of the federal government’s War on Drugs.
Among the Act’s wide-reaching provisions, its principal elements were:
A. Authorization of the Drug Enforcement Administration;
B. Establishment of the controlled substances schedule that purports to classify drugs according to their addiction potential and approved medical use;
C. Articulation of a closed system to manage the production, distribution, and dispensing of controlled substances; and
D. Enumeration of administrative, criminal, and civil law tools to maintain that closed system.
The national implementing legislation for the Single Convention on Narcotic Drugs, the CSA’s ostensible goal was to balance scientific and medical access to certain psychoactive substances with the imperative to control access so as to reduce diversion, addiction, and their collateral impact. The Convention and the Act were promulgated—and has continued to expand—under the banner of protecting the public from harms of addictive, dangerous drugs. But they have categorically skirted the regulation of tobacco and alcohol; these two drugs are the undisputed engines of drug-related harms in the United States and worldwide.
CLARITY AFFORDED BY TODAY'S OVERDOSE CRISIS
Vigorous critiques of the CSA’s structure and function are as old as the Act itself. But the present overdose crisis is the latest—and perhaps the most vivid—illustration of this statute’s abject failure. Specifically, the crisis has demonstrated that the architecture of the CSA does not enable functional regulation of the pharmaceutical market for psychoactive medications, while also making abundantly clear its ineffectiveness in reducing access to illicit opioid production and trafficking.
Under the systems created by the Act, the Drug Enforcement Administration tracks and exerts active authority over controlled substance manufacturing and prescribing. Yet, this Agency was poorly configured to discern and effectively respond to mounting over-production and over-utilization of opioid analgesics, benzodiazepines, and other pharmaceutical products implicated in the current crisis. Once the country was flooded with these medications, CSA design enabled measures to rapidly suppress access, without appropriate guardrails to protect the public against foreseeable collateral harms.
A massive transition from pharmaceutical to street supplies followed, delivering scores of new customers into the illicit drug market that the CSA has never been able to consistently control. Overdose morbidity and mortality skyrocketed as a result, reinvigorating hyper-punitive criminal justice responses enshrined in the CSA. All the while, access to harm reduction supplies and treatment medications that are vital to avert overdose and facilitate recovery remains shockingly low, thanks in part to CSA’s legal bottlenecks and DEA’s administrative intransigence. Rather than the alleged regulator capture, it was the fundamental legal and regulatory design that proved to be especially inept in preventing and addressing this national emergency. Drawing on the maxim that “no crisis should go to waste,” the overdose emergency is a singular opportunity to rethink the current regulatory architecture for psychoactive substances in U.S.
There are broader reasons to reconsider the CSA. Revelations exposed the CSA to have been a tool of the culture wars, and racist, xenophobic panics as a legal instrument to advance national health and safety. In the years since CSA’s enactment, the availability and purity of illicit substances on the American illicit markets have only increased, while their prices have fallen. The Act and its progeny have instead fueled corruption, drug-related violence, human rights abuses, erosion of civil liberties, environmental damage, and the various health harms. Both domestically and internationally, punitive approaches codified in this statute have resulted in tragic loss of life and contributed to racialized mass incarceration, all the while wasting trillions in taxpayer resources.
But today, the domestic and international drug policy landscape is shifting. Regulation of cannabis is undergoing rapid transformation. After decades of stonewalling by the CSA’s legal and administrative barriers, scientific research into the medical uses of psychedelic drugs like MDMA, LSD and psilocybin is quickly gathering momentum. Increased attention to the continued social and health harms of tobacco and alcohol has highlighted the paradox of their exclusion from the controlled substances regulatory regime. More broadly, with increasing calls to abandon a culture of mass incarceration in favor of a “public health approach” to addiction and substance use, an opportunity to re-envision the CSA has never been more urgent.
DRUG POLICY ARCHITECTURE FOR THE 21ST CENTURY:
A CONCEPTUAL FRAMEWORK
It is clear that the CSA is a faulty foundation that has rendered the entire edifice of U.S. drug policy structurally unsound. So what could a new of U.S. drug policy look like in the 21st Century? This blueprint proposes a three-pillar vision:
1. Life: Use evidence-informed policymaking to promote health benefits, while minimizing harms from psychoactive substances. This implies a focus on health promotion, investment in prevention, and a view of public safety as a population health principle. It also implies the rejection of the current arbitrary approaches (e.g. the rigid scheduling system), in favor of empirically risk-based principles to craft policy.
2. Liberty: Deploy the least restrictive means and narrowly-tailored regulation to accomplish public health and public safety goals. This implies a far more limited role for criminal law and a much smaller footprint of the carceral systems.
3. Pursuit of Happiness: Embrace and harness the social, cultural, emotional, and other benefits of substance use outside of health care contexts. This implies building systems for recreational substance use that can repair past harms of oppressive drug policy, instead promoting harm reduction, support, inclusion, and joy.
Operationalizing this vision would include the revision of both the legal and regulatory instruments, as well as rebuilding institutional architecture to implement policies. This will be a process of considerable complexity that would go beyond the CSA, including the following:
1. Federal law reform:
a. Revamp the scheduling system, using risk-based principles and increased flexibility to classify substances according to empirically-documented health benefits and harms;
b. Substantially minimize or eliminate individual-level criminal penalties;
c. Deregulate opioid agonist therapy, removing access barriers;
d. Integrate alcohol, tobacco, nicotine, psychedelics, and other recreational drugs under new consumer protection, taxation, and corporate design framework intended to promote the public’s interest and repair past oppression.
2. Institutional architecture:
a. Dissolve the DEA, reorganizing health-related regulatory functions to the states or to relevant Health and Human Services entities, while returning jurisdiction over the curtailed criminal enforcement elsewhere in the Department of Justice;
b. Dissolve the Substance Abuse and Mental Health Services Administration, harmonizing oversight, siting, and funding of treatment with other health serices;
c. Reorganize the National Institutes on Drug Abuse to conduct syndromic, behavioral, and sentinel surveillance for substance use and more directly focus on generating objective evidence to guide policymaking, drug development, and health promotion.
3. Other law reform:
a. Revise the Single Convention on Narcotic Drugs and other international instruments to enable necessary legal and institutional reform.
b. Revise state-level controlled substances laws to align with federal reforms.