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COVID-19 RESPONSE

   

The Issue:

COVID-19 has transformed life in the US and around the globe. This includes American policing and other elements of the criminal legal system. As calls mount for rapidly depopulating prisons, jails, and other detention settings as part of the pandemic response, frontline personnel in a growing number of jurisdictions are being instructed to limit arrests and other encounters with the public. Advocates had long urged shrinking the footprint of the policing and criminal legal system based on civil rights, racial justice, fiscal stewardship, and other considerations. Beyond a few notable exceptions, calls for reform had failed to gain real traction. In the age of COVID-19, however, public health and occupational safety concerns are rearranging this landscape.

 

Reorientation of carceral systems towards public health is far from guaranteed. In many jurisdictions, both policies and practices of the criminal legal system are exhibiting a stubborn resistance to change. At a time when there is an urgent imperative to rapidly remove individuals who have been arrested and sentenced to prevent disease transmission, most key decision-makers have continued to oppose these efforts. Rather than practicing “shelter in place” and social distancing policies they are preaching, police departments in many jurisdictions have continued to cling to enforcement of minor offenses. Community supervision systems are largely maintaining onerous and counterproductive requirements, such as frequent observed urinalysis. These failures to adapt to a new reality are impeding pandemic response, while putting frontline staff at risk of infection.

 

 

 

 

 

 

In addition, COVID-19—just like the overdose crisis and other public health challenges—sets the stage for the criminal legal system net-widening, rather than shrinking. It is no accident that the legal term for public health authority is “police power:” public health measures often take authoritarian, carceral, and disciplinary forms. Shelter-in-place ordinances, business closures, curfews, and other measures to facilitate social distancing carry criminal penalties of months or years of incarceration. Police officers are enforcing orders to “flatten the curve” with increasing intensity, adding the risk of COVID-19 infection to the existing set of negative health sequelae of law enforcement encounters. 

 

Invariably, these enforcement actions target the most visible and vulnerable members of the public, including racial and ethnic minorities, the unhoused, and economically marginalized people. Prosecutors are also criminalizing the spread of COVID-19 and seeking unprecedented powers to detain individuals for unlimited periods of time.

It is imperative to ensure that US policing and other elements of the criminal legal system
effectively respond to COVID-19. At the same time, we must challenge mounting carceral
responses to this crisis. Ultimately, our North Star should be to use the clarity afforded by
COVID-19 to facilitate positive system adjustments, encourage their sustainability, and to
reimagine our criminal legal approaches through a public health lens.

Burnout, stress, and vicarious trauma among first responders was already elevated before this crisis hit. In the current environment, mental health challenges among police, correctional and other frontline personnel in the criminal legal systems are reaching crisis levels.

What We Are Doing

KNOWLEDGE GENERATION

  • Gathering data on punitive measures and their implementation by systematically collecting related media stories;

  • Tracking changes in police policy and practices in response to COVID-19 among police departments;

  • Identifying and mapping emerging criminal legal measures to enforce social distancing and other COVID-related efforts.

TRANSLATION

  • Producing weekly COVID-19 Law and Policy Briefings 

  • Working with the Justice Collaborative to produce a series of memos that interpret public health evidence into actionable steps for criminal legal and other system responses to COVID-19

IMPLEMENTATION

  • Providing COVID-19 occupational safety training to law enforcement and other front-line personnel

  • Working with prosecutors around the US on operationalizing district attorney responses to COVID-19

Data Dashboard

Articles collected & coded by the Community Resource Hub

Geographical Distribution of Enforcement

Between March 17 and May 20, 2020, enforcement of COVID-19 "stay-at-home" orders spread across the states.

Data collection and coding methods 

Data from the COVID-19 Enforcement analysis was sourced via media links. The media links were collected from a combination of google alerts, google plain text, advanced searches, meltwater searches, social media and by looking at press releases on state AG and local police department sites. Media links were chosen by mention of individual incidences of COVID-19 related violations from 3/11 to 8/1. Media links are coded by the date of incident to prevent link duplication. Variables extracted and coded for were: municipality, age, race, gender, violation type, and enforcement type.

View Entire Tableau Data Dashboard here.

Resources
People Who Use Drugs, Patients on Opioids, and Policy Recommendations and Guidelines During COVID-19

 

The coronavirus lands at a time when there are numerous public health emergencies already underway in the U.S., many of which will be exacerbated by the ensuing health and economic shock due to the pandemic. Below is a list of resources related to health and policy information.

 

For people with substance use disorders, Yale’s Program in Addiction Medicine has a helpful guide about triggers, relapse, and treatment. 

 

The Harm Reduction Coalition has a guide for people currently using drugs to stay safe and healthy during the pandemic. 

 

Vital Strategies: Practicing Harm Reduction in the COVID-19 Outbreak 

 

Responses and Resources for Vulnerable Populations: The Justice Collaborative

 

The Network for Public Health Law: Resources
 

American Medical Association: Policy recommendations to help patients with an opioid use disorder, pain and harm reduction efforts

 

Substance Abuse and Mental Health Services Administration Coronavirus Resources and Information: Telemedicine, Virtual Recovery Resources 

 

National Institute on Drug Abuse: Implications for Individuals with Substance Use Disorders 

 

Digital recovery resources compiled by the New York Times.

 

National Suicide Hotline: 1-800-273-8255

Addiction Help Hotline: 1-800-662-4357

Sexual Assault Hotline: 1-800-656-4673

Trevor Project LGBTQ Hotline: 1-866-488-7386

Leo Beletsky, Brandon del Pozo, et al

Journal of Addiction Medicine, 2021

Leo Beletsky, Joseph Friedman, et al

Preventive Medicine, October 12, 2021

Leo Beletsky and Sterling Johnson

May 2020

Improving Cannabis

IMPROVING CANNABIS REFORM

The Issue:

 

The 21st century has seen rapid change in the legal landscape of cannabis prohibition, but reform has often proceeded through ballot measures or other means that do not consistently address criminal justice concerns.  The primary focal point for most new state cannabis laws has been the prospective regulation of cannabis production, distribution, and access. With a few exceptions, state cannabis reforms have not addressed individual and structural harms that have resulted from prohibitionist policies and their disproportionate burden on certain populations.  

 

The intersection of cannabis reform and equity concerns is starting to garner more attention. However, despite the vital importance and great interest in the intersection of cannabis reform and equity, social justice, and public health concerns, little has been done to collate information on how these considerations are being integrated into existing cannabis legislation or regulation. Even less is known about what works and what doesn’t when these mechanisms are implemented on the ground. Yet, information about best (and problematic) practices is vital to advance the work of a wide array of advocates, policymaker and other stakeholders who are -- or can be -- motivated to integrate successful approaches into future cannabis reform efforts. 

What We are Doing

KNOWLEDGE GENERATION

  • Identifying and mapping ways that existing cannabis reforms are designed to advance criminal justice reform, public health, and social/racial justice goals

 TRANSLATION

  • Assessing the impact of various cannabis reform laws and proposals

 IMPLEMENTATION

  • Recommending legal reforms and programmatic practices to enhance cannabis reform as a means and catalyst for equity and public health goals

Data Dashboard
DRUG POLICY

RETHINKING DRUG POLICY

The Controlled Substance 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 in 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.

csa@50 Infographic 2-20-20.png

Why Now

 

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. 

Operational Blueprint

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 services; 

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. 

Resources

Bold Steps Needed to Correct Course in U.S. Drug Policies
Leo Beletsky, David Lucas, et al
Harvard Law Bill of Health, 2021


Adapted from this brief

WORKPLACE DRUG TESTING

Access citations here.

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