Opioids: The Crisis in 2022 and Beyond

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After years of tragic deaths and through a global pandemic, some experts contend that the opioid epidemic has only gotten worse.  

Three noted voices in the field provide their thoughts and opinions on the opioid crisis, how it began, why it persists, and how it finally can be solved.

Featuring:

  • Trevor Burrus, Research Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute 
  • Joseph Grogan, Founder, Fire Arrow Consulting, and Former Director, United States Domestic Policy Council
  • Paul Larkin, Senior Legal Research Fellow, the Center for Legal and Judicial Studies, The Heritage Foundation
  • Moderator: Mike Hurst, Partner, Phelps Dunbar LLP and Former U.S. Attorney for the Southern District of Mississippi 

 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

[Music]

 

Guy DeSanctis:  Welcome to The Federalist Society’s webinar call. Today, August 10, we discuss “Opioids: The Crisis in 2022 and Beyond.” My name is Guy DeSanctis, and I’m Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we are fortunate to have with us our moderator Mike Hurst, partner at Phelps Dunbar and former U.S. Attorney for the Southern District of Mississippi. Throughout the panel if you have any questions please submit them through the question and answer features that our speakers will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today. Mike, the floor is yours.

 

Mike Hurst:  Thank you, Guy, and good morning, everyone. Welcome to an expert panel discussion hosted by the Criminal Law and Procedure Practice Group of The Federalist Society entitled “Opioids: The Crisis in 2022 and Beyond.” As Guy mentioned, my name is Mike Hurst. I’m a partner at Phelps Dunbar in Jackson, Mississippi, and the former United States Attorney for the Southern District of Mississippi where I witnessed firsthand this worsening crisis and the effect that it had on our communities.

 

Unfortunately, this topic is more relevant today than even just a few years ago. The U.S. Department of Health and Human Services has declared that the nation is in the midst of an unprecedented opioid epidemic with drug overdose deaths having quadrupled since 1999. According to the CDC there were an estimated 107,000 drug overdose deaths in the United States in 2021 with approximately 75 percent of those deaths, or about 80,000, coming just from opioids. That is a rate of almost 220 people dying each and every day from opioids.

 

Today, we have an incredible panel of experts who has looked at this issue in depth and will discuss what has happened, how we got to where we are today, and what we can do hopefully to dig ourselves out of this crisis. So let me introduce our panel first. We have Paul Larkin who is the Rumpel Senior Legal Research Fellow at the Heritage Foundation. He writes on a variety of legal issues, including drug policy. He received his law degree from Stanford Law School. He’s held numerous positions in the federal government, among them being assistant to the Solicitor General at the U.S. Department of Justice and counsel to the Senate Judiciary Committee under then chairman Senator Orrin Hatch.

 

Next, we have Joe Grogan who is currently serving as a senior fellow at the Leonard D. Schaeffer Center for Health Policy and Economics at the University of Southern California. Prior to that, Joe served as domestic policy advisor in the White House. And before that he was associate director for health policy at the Office of Management and Budget. He also served on the White House’s COVID-19 task force during the first critical months of the pandemic. He’s also worked in the healthcare industry and served in significant healthcare positions in the administration of then president George W. Bush. Joe holds a bachelor’s degree from State University of New York at Albany and a law degree from the College of William and Mary.

 

And last and certainly not least we have Trevor Burrus who is a research fellow in the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor in chief of the Cato Supreme Court Review. Thank you, gentlemen, for being here today and joining us in this important discussion. Each panelist will have five minutes to make an opening statement or otherwise introductory remarks. Paul, we’ll start with you. The floor is yours.

 

Paul Larkin:  Thank you very much. And I want to thank The Federalist Society for holding this event and for inviting me to be a part of it. I’m honored to be here on the panel to talk about this very important public policy issue.

 

In my five minutes I’d like to make just two points. The first is this. Debates like this at an intellectual level are extremely valuable. We should decide what the law should be on drug policy based on debates over what the law best does in this area, whether it’s on the supply side or the demand side. But the problem we’re facing right now is a matter of life and death.

 

As you heard, thousands and thousands of people are dying from fentin. And most of the fentanyl that comes into the United States comes from Mexico. Regardless of what you think about the immigration laws, they are on the books, and they are not being enforced because the President doesn’t want to offend the Trotskyite wing of the Democratic Party. The result is people are dying from fentanyl that is being smuggled over the border.

 

Regardless of what you think about the immigration laws, regardless of what you think about the drug laws, these laws are on the books, and they should be enforced. It is truly as you heard and as I said a matter of life and death. And he’s just not doing it. And there’s no good reason for that. Some people will be saved if he enforced the law at the border.

 

And that’s worthwhile. The President has never said how many people have to die before he addresses this problem, and I personally would like to hear him answering that question. But he’s not going to because he doesn’t want to offend people in his party. And that’s a tragedy. It leads not only to deaths; it leads to cynicism about government as a whole.

 

Now, what else is the problem of what we’re doing right now? It’s a question of hypocrisy. If a private company were importing from Mexico or anywhere else for that matter a drug or some product that killed 100,000 people, the federal government would sue them civilly, and prosecute them criminally. If the governor of one of the four states on our southwest border decided just to wave everybody in the way the President has done, the federal government would either civilly sue the state or the governor or other people in the administration or, in extreme cases, even bring a criminal prosecution for this.

 

But the federal government won’t do this because it’s the federal government that is responsible. What you have is a case of hypocrisy. If somebody else did it, the federal government would go to court to use whatever remedies are available to stop it. But it won’t do it because it’s happening by federal officials. That is hypocrisy in a classic example. Thank you.

 

Mike Hurst:  Joe.

 

Joseph Grogan:  Thanks, Mike. So I’ll just give a little bit of historical context and where we are now. When Nixon declared the War on Drugs in 1971 there were about 7,000 Americans dying of overdoses as compared as you mentioned to the 107,000 that we’ve got now. That was a rate in 1971 of about 3.3. per 100,000 Americans. We’re now at around 28 per 100,000 Americans.

 

During the Trump administration when he declared a public health emergency in 2017 we were at 68,000 deaths. What you saw with his declaration and an all of government approach, a crackdown on the border, a weekly meeting with the heads of law enforcement agencies and immigration agencies as well as public health agencies was a turning of the tide. And we saw a drop in overdose deaths in 2018 and 2019.

 

But then COVID hit us. Of course all that attention was diverted, but more importantly the economy shut down and critically enhanced unemployment benefits kicked in from the federal government. And some people were being paid to sit at home. And the COVID epidemic exacerbated a mental health and addiction crisis in the United States.

 

And again, the trim line went almost parabolic. Again, we’re at 107,000 for last year, and it’s probably accelerating. Could be wrong about that. Maybe it’s moderating. But some of the anecdotes that I hear from state health officials are very troubling. So both Nixon and Trump had success in devoting resources to this, focusing on law and order, getting public health officials focused on it, and making it a big public issue.

 

Now, one other very disturbing trend that’s occurred in the past few years is the crossing over of the disproportionate amount of deaths from white Americans to the minority community. So there’s a perception I think still out there because the overdose epidemic was driven by prescription opioids in the last 20 years, beginning at the end of the Bush administration/beginning of the Obama administration that this was, quote/unquote, a disproportional working class and problem for white Americans. And that was true in the beginning because it was driven by prescriptions.

 

But then when the Trump administration clamped down through Medicare prescribing rules, law enforcement crackdowns, and encouraged pharmacists and insurance companies to clamp down on prescription opioid abuse, we see it being driven into the illicit market. And now you’ve got a disproportionate number of minorities dying principally driven by fentanyl.

 

Now, there could be a couple reasons for this. Historically—and the data on this is very well documented—African Americans are disconnected from the healthcare system, and their pain is not taken seriously by physicians. So they were not given as many prescription opioids. And then once it was clamped down on and you saw more fentanyl coming on the market through Mexico as Paul said, many of the incipient ingredients from China, you now have this flooding of American cities with very cheap substances that are extremely powerful and are killing large numbers of Americans.

 

Finally, I’d just say we’re at a real crisis, and I would suggest we’re failing across the board. The way we intervene on treatment is a disaster. The way we are intervening with law and order or frankly abandoning law and order in this environment is a disaster. And as Paul said, the border is a disaster. We need a fundamental rethinking of what we’re doing here, and it does not involve frankly walking away from any attempt to try and limit the number of people overdosing or experimenting or using illegal substances. Thank you.

 

Mike Hurst:  Thanks, Joe. Trevor.

 

Trevor Burrus:  Well, thank you, Mike. Thank you, Joseph and Paul, for the conversation. And thank you to FedSoc. I might expectedly have a different view on this subject. The federal drug war, but for the commencing of slavery, is the most evil thing that the federal government has ever done.

 

Let me be very clear. This is not an overdose crisis that is caused just by the presence of these drugs. It is caused by drug prohibition. The fentanyl crisis which has spiked, as Joseph pointed out, especially in the last ten years is a direct product of prohibition.

 

Why is it a direct product of prohibition? Because, well, I’m sure none of the upstanding people watching this have ever tried to smuggle alcohol into a football game, but I bet if you did, you would not choose a 12 pack of beer. You would choose a flask of alcohol. And of course we saw this during alcohol prohibition. When alcohol prohibition came in, beer and wine essentially disappeared from the shelves, and they went up about 700 percent in price. And everyone was drinking hard alcohol.

 

Now, this would be bad alcohol policy. We would not want this for alcohol. And that’s sort of the stunning thing; right? We know alcohol prohibition didn’t work. And I’m of course the radical here saying there should be no federal drug war. It is, one, unconstitutional. Two, it’s a bad idea. All drugs should be legal in some way. And what we should be doing is treating are fellow human beings who use opioids in different ways for pain management or even recreationally as human beings, and we should treat them like we treat alcoholics.

 

No one thinks that alcohol is the best thing you should be drinking. We know that 20 percent of users of alcohol are problematic users who have severe health complications from it. But we also know that people enjoy alcohol. We do not go back to prohibiting alcohol in the name of the 20 percent of people who are problematic users of alcohol. We are literally killing people with our drug war. And there is no way to enforce our way out of it.

 

I sometimes get in a strange kind of just eternal recurrence Groundhog Day situation here when we have people talking about more prohibition being the solution. And conservatives and libertarians are prone to say how many time does socialism have to fail before someone says, hey, look at all the ways it failed. Drug prohibition does not work. It does not work in any possible way. It especially does not work when the manufacturers will beat the law enforcement agencies.

 

And with fentanyl whose potency is about 50 to 100 times more than heroin -- and again, as I said the reason it’s fentanyl is because the smugglers, they prefer higher potency versions of a drug when enforcement goes up. And there is no way to stop this. There are not enough law enforcement officers on the planet. There is no way to stop the amount of fentanyl you can put in an envelope and send across the border.

 

What we have to do is treat these people like human beings. And what that means is it is possible, just like being an alcoholic. We treat alcoholics like human beings. It is possible to say we’re not going to make sure you have tainted goods. We’re going to make sure you know what’s on the label, whether you’re drinking whiskey or Everclear or beer. And if you need help, we’re going to be there to find it, and we’re not going to try to stop your alcohol use, which might be very harmful to your health, via prohibition regime.

 

That we realized with alcohol is good. That we haven’t realized that with the drug war and we’re still having the same conversation like we’re back in the Reagan era is frankly stunning. What we have to do is reconceptualize how we think of our fellow human beings who might use opioids recreationally, much less the pain patients -- and we can get into the pain patients and the crisis of cracking down on doctors for overprescribing.

 

When we treat them like human beings, we say, look, you have a substance that you are chemically addicted to. You use it for various reasons. You probably shouldn’t be doing that, but before you decide you’re going to get off that substance, we are going to make sure that you’re not going to die of tainted goods.

 

And it is entirely possible for people to take heroin for very long periods of time, to take fentanyl for very long periods of time and to not be endangered by it. You can take fentanyl safely. It’s prescribed thousands of times a day in hospitals throughout the country. You can absolutely take it safely if you know what’s in it, if you know how much you’re taking.

 

What is killing people is that they’re supplementing fentanyl into the heroin unbeknownst sometimes to the low level dealer and definitely to the user who uses the same amount that they usually use, but it’s 10 percent fentanyl. And they’re dead.

 

But the first thing is to stop 100,000 people from dying. And if we legalize in some way -- and I say legalize we can define what that means. You can have a prescription to compulsive users. We can talk about some sort of access. If we legalized it in some way, we would save 50,000 people next year, bar none. And then we can talk about how we can get people off of these drugs. But the first thing is to stop people from dying and to stop our policies from killing them. Thank you.

 

Mike Hurst:  Thank you, Trevor. And thank you, gentlemen. The first question I was going to pose to the panel is really how we got to where we are today with 107,000 people dying from drug overdoses overall. You guys have laid out I think pretty well how we’ve got to where we are today.

 

So let me jump to the next question which is kind of where are we going? Joe, you alluded to this and Paul as well. I mean, it doesn’t look like it’s getting any better. It doesn’t look like it’s moderating at all. So where do you think our nation is going? Where do you think the opioid crisis is going? Do you think we will have more deaths in the coming years?

 

Joseph Grogan:  Well, I’ll go first. I mean, yeah, I don’t see it moderating. I think the way Trevor laid it out -- it was very compelling to me at one point in my career to be honest with you, this idea -- I had strong libertarian instincts. But the problem is you see a mass, a wave of human degradation, chaotic cities, overdose and addiction and mental health crisis in this country. And it is an incontrovertible fact that the overdose and addiction crisis got worse with the promulgation of powerful prescription opioids, lose prescribing habits, and frankly subsidized opioids through the Part D program.

 

So he can talk about legalization, but in many parts of the country it’s effectively legal anyway. And there are people doing -- the law’s not being enforced. People are doing drugs without overdosing in parks all over the place. And the question is how long are the American people going to put up with it.

 

I imagine what’s going to happen is the same thing that happened after the counterculture revolution and the first big bump up in overdoses which sparked Nixon in the first place. It’s a law and order crack down. And the country’s setting up for that because I don’t think the country is really fired up to see the border like this or America’s city parks like this and these homeless encampments ad infinitum. And that’s where we are right now.

 

Paul Larkin:  Let me just make two points.

 

Trevor Burrus:  I -- go ahead, Paul.

 

Paul Larkin:  Oh, I was going to say allowing people to use addictive and potentially fatal drugs without any restraints whatsoever is like saying we should allow people to play Russian roulette because they have five chances out of six of surviving. We’re going to have a known number of people who get addicted. And it is not small because we’ve seen this with heroin. Yes, there are chippers, people who can use it now and then. It’s a very small number.

 

And as far as the argument that legalizing a drug is going to prevent a black market from growing, just look at the evidence we have from California. Once you legalize a drug people in the legislature are going to tax it like crazy because they see it as being a new source of free money. And once you do that, the black market is always going to be able to underprice any legitimate market.

 

That’s what’s happening in California which legalized recreational cannabis a long time ago. They’ve had to go back to the legislature and ask for relief from regulations and taxes because they can’t compete with the black market. So as an overall matter, what we have to do is look at it not just as whether we should prohibit anything or permit anything.

 

We have to look at the costs and benefits but at the margin. Okay. You don’t look at it just in terms of we can’t stop it, and therefore it’s not worth trying. We have to look at it what it would be if we didn’t try to stop it through the criminal law. And if we didn’t try to use the criminal law to try to stop it, we would be in a far worse situation.

 

Trevor Burrus:  I’d like to add a few points. One to Joseph’s point that it is absolutely controvertible that whether or not the prescription overprescribing, which again has no actual definition and no doctor or even CDC can define -- but it’s absolutely not true that that is the sort of main cause of the opioid crisis, which again is also a misnomer. It’s not an opioid crisis. We don’t know how many opioids should be used.

 

And the federal government pretends it does now. The DEA tries to put caps on how many opioids should be used. This is one of the most medically useful drugs on the planet. And there are many, many people who use it, yes, recreationally in the same way people use Xanax. They use it in a harmful way. They use it casually.

 

Unlike Paul’s point, it is absolutely just true that most people who use heroin the 80/20 rule applies, heroin or other opioids. Twenty percent of the users are problematic users, and 80 percent of the users are not necessarily problematic users. That applies to alcohol too.

 

And so the question here is whether or not we’re going to do the same thing that we don’t do with alcohol and take 20 percent of the problematic users and try and stop 80 percent of the people who are not problematic users in a sort of quixotic attempt through law enforcement to enforce people from doing something that helps them in certain ways that they perceive. Now, of course we do this with alcohol. And the question I posed to my fellow panelists is why do we treat alcoholics differently than opioid users, even compulsive recreational opioid users, aside from pain patients?

 

Different question, why should we? Are we going to get back to alcohol prohibition? Do we need to get back on the prohibiting alcohol? Because as Paul said, on the margins drinking did go down during prohibition. We know this from cirrhosis data. People were affected by law enforcement. And just saying whether or not that’s an unalloyed good thing as opposed to all the harmful effects of prohibition.

 

And on another point that Paul made, just being addicted to something is not a per se wrong. This is a very important point because we understand this with cigarettes. We think you should get off cigarettes. We don’t think you should be addicted to these things. If that’s the kind of choice you want to make, and definitely with alcohol and many other things -- people who take Xanax every day are chemically dependent upon Xanax after a few months. And it’s very hard to get off.

 

So being addicted is not a per se wrong that therefore needs law enforcement. What it needs is care and attention in making sure that we’re not killing them by tainting the supply. Being addicted to cigarettes, yes, there’s a crackdown. There’s a silly crack down on vaping. But we’re not putting tainted cigarettes out there and saying we’re going to stop you from being addicted via these tainted cigarettes. That’s not how you help people at all.

 

And clearly, look, prohibition, drug deaths, I mean these have kind of moved in parallel with each other. And there are things we can talk about where on the margins what should we do for -- how should we make these legal? How should we supply access for people who are compulsive users of heroin or fentanyl? How can we do that, and what sort of regulations should exist around that?

 

But I’m not the radical here. The radicals are the people who think that we can do this in a different and better way. At 100,000 deaths, is it time to think differently? And of course, yes, libertarians have been saying this for years. But when is it time to think differently? And to Mike’s question where is this going, well, after I think the mental health crisis with COVID and everything we will hit 150,000 overdose deaths before 2030. And I predicted 100,000 in 2019 and I missed it by a year. It’s not going to stop, and law enforcement can’t stop it.

 

Mike Hurst:  Thank you. Let me ask this. You guys have all been kind of beating around the bush, addressing this next question to some degree. But I want to get straight to this question which is how do we fix it? 107,000 overdose deaths, 80,000 related directly to opioids, how do we fix this and prevent any more deaths occurring from opioids and drugs? Trevor, you are passionate about this. I’m going to let you go first with this one.

 

Trevor Burrus:  It has to include some sort of safe access. When we first started the drug war -- and it wasn’t Nixon. It was the Harris Narcotics Act of 1914 which went into effect in 1915. Opioids were available on the shelves, and there were many, many people who were addicts who were compulsive users. But they had a supply.

 

And whether they wanted to get off -- when we shut down that supply via the Treasury Department, we created the heroin market. We created the cartels. And we’ve now created the fentanyl market.

 

Decriminalization is not enough. It has to feature a save supply. How that works -- one of the big things with the Harris Narcotic Act was whether or not a doctor could prescribe fentanyl or heroin or some other opioid to a compulsive users in order to mitigate the effects of their compulsive use, whether that was a valid medical purpose. That’s a good place to start.

 

Heroin should be as legal as fentanyl; right? That’s an important point. Heroin’s a Schedule 1 drug; fentanyl is a Schedule 2 drug. It’s prescribed all the time. Heroin and fentanyl and other opioids should be prescribable, very bare minimum. This is a form of legalization -- by doctors to compulsive users who go to doctors and say I can’t get off this, but I need a safe supply. Safe supply has to be part of it. Prohibition doesn’t work.

 

Mike Hurst:  Paul or Joe? Paul, you’re muted. Paul.

 

Paul Larkin:  My mistake. In terms of safe supply, you can get a safe supply of methadone. You can get a safe supply of buprenorphine. Those deal with the problems of physical withdrawal.

 

And by the way, there’s a difference between being physically dependent on a drug and being addicted to it. If you’re physically dependent, you’re going to go through withdrawal when you cease its use. If you are addicted to it, your entire life is focused on obtaining that drug.

 

You’ll commit crimes. You’ll do whatever, disgrace yourself in the process to get the drug. And society has for years tried to help people, and when they can’t be helped, use the criminal law to address it.

 

I mean, alcohol has been socially accepted since the time of Noah who was the first vintner. And it’s just as a matter of history impossible to prevent people in the United States from using it. We tried. It hasn’t worked. You don’t have the same social acceptability of heroin or of illicit fentanyl and other chemical analgesics. So you can’t just automatically say we allow alcohol and therefore we should allow everything.

 

I think we need to approach it from every possible perspective, supply and demand. On the demand side, we need to educate people. We need to educate them not to use some of the drugs they’re buying because they are tainted with fentanyl. Interestingly, fentanyl is oftentimes a supply driven problem rather than a demand driven problem.

 

Yes, there are people who want fentanyl because it gives them a better kick. But a large number of people are dying from fentanyl because it is put in because the people who are manufacturing the packages aren’t using the same sanitary and safe procedures as the normal pharmaceutical companies. So what you have is people who are unwittingly buying it.

 

Okay. Educate them. Get them off of these other drugs. Provide more treatment to help them get off of these drugs. For the people at the bottom who are either addicted or physically dependent, we should try to help them. We should exhibit charity. But for the people who are at the upper end who are profiting off the misery of others, the criminal justice system is the way to address that.

 

Trevor Burrus:  Paul, I’m addicted to nicotine, and I have this. And I have these things, and I have committed any crimes or any ability to try to get them. So that’s a really strange definition of addiction.

 

Paul Larkin:  Well, in Italy they did try just outlawing cigarettes back in I think the 50s or 60s when they didn’t have either the right hand or your left hand devices. And they found out that people were robbing trains that had cigarettes on them. Read John Kaplan’s book, The Hardest Drug: Heroin and Public Policy. He talks about this.

 

So I understand, yeah. People will do whatever they can to get them. And there are ways of trying to treat these people. But fentanyl doesn’t permit any mistakes. It’s a drug with fangs. You have a little too much of it and you’re history. We need to stop that from happening.

 

Trevor Burrus:  That sounds like a really good argument for legalization. Joseph.

 

Joseph Grogan:  So some of the data shows that as many as 70 percent of the people who want addiction treatment can’t get adequate addiction treatment. I don’t know how many people you know, your family or friends, who have had somebody that they love and either tried to go through treatment themselves or tried to get somebody into treatment, it is extremely difficult to figure out what is a good treatment center, where it is, how to pay for it, what are their measures of success. Are they good for me? Are they in the type of addiction that I have? And we are spending billions and billions of dollars on treatment in this country.

 

Couple that and the fact that we have a lack of adequate treatment facilities in large part due to the fact that treatment facilities are set up in such a way as dictated by federal resources and state resources and are not flexible enough, don’t innovate enough, and are not frankly meeting the needs of those people who need services, you also had the deinstitutionalization for mental illness and addiction in the 1960s. So there are some people for which institutionalization, maybe even for a brief period of time and stabilization, is necessary.

 

We looked at institutions for those with mental disease in the 60s. And a coalition of liberals and libertarians said this is not humane. We’ve got to get these people out of these institutions. And the problem was we didn’t replace them with anything. We just pushed people onto the streets.

 

That is what is inhumane. And we should repeal the prohibition on using Medicaid dollars for those who are suffering from serious mental disease to get people stabilized for a period of time. Those people who need inpatient addiction services, regardless of income, should be able to get the resources they need to get stabilized and sober. And then we should go to a voucher system frankly to allow people to find addiction services that they need to get sober.

 

That’s the biggest problem frankly. We’ll be having this discussion about prohibition or not ad infinitum. And you will have, as Trevor showed with the vaping product -- you will innovation where it’s allowed to go. I would argue that those companies develop the innovation as an alternative to cigarettes because of the increased taxes on cigarettes and the cultural shift that occurred about cigarettes and the emerging science on it.

 

Unfortunately now we are in an arms race against illegal drug traffickers who are innovating nonstop and bringing new drugs and other competitors to fentanyl on the street and finding its way into drugs. And the legal system, the legal drug and pharmaceutical industry is being, one, sued as they were when they developed in the aftermath of opioids, and, two, they have to go through the Food and Drug Administration, which takes far too long. So we’re going to need to figure out how we’re going to get more non-addictive painkillers and more powerful overdose reversal agents out onto the street if we’re going to turn this tide. But I agree with Trevor. I think this if anything it’s accelerating, and we’re going to hit 150 before we know it -- 150,000 overdose deaths.

 

Trevor Burrus:  Excuse me for a second. I have to put in my -- there’s 4 milligrams. It says exactly what’s on it, so for my addiction to nicotine. Now, Paul, I remember you telling me -- did you tell me once that you had smoked cigarettes at one point?

 

Paul Larkin:  Yes, I had.

 

Trevor Burrus:  Well, that’s the interesting thing is that you are right, and Joseph is correct. Methadone and buprenorphine, we need to expand access. There’s many, many reforms on the mental health side. Joseph pointed out many, many good things.

 

But you remember getting off cigarettes where there are different ways that help different people. Patches maybe work for some. Gum worked for other people. This that I’m using a lozenge kind of a thing for getting off of cigarettes and vaping. With those ability to have those products available to you because everyone’s different.

 

And what we know from Western Europe and many other countries like Switzerland and increasingly in Canada one of those options that would be useful to compulsive users is heroin assisted treatment for example, which would be a form of legalized heroin as I pointed out, that maybe a user who has a pretty severe chemical dependence would need safe access to heroin for part of their trip out of the kind of dark hole of being a compulsive user. And that dark hole is also created by prohibition.

 

And I also want to second what Joseph said that, yes, cigarette taxes, they have an effect. Cigarettes are $40 a pack in Australia, which is crazy. But they have an effect on smoking rates. But what also we need to do -- what did more for smoking was the social change about smoking. And we need to do the same thing for users of opioids.

 

We had a social change about alcoholics. They are people who need help, not cages. We had a social change about marijuana which was that the Cheech and Chong movies did more to legalize marijuana than any policy paper ever written by the Cato Institute because we no longer thought of them as psychopaths.

 

We need to think about people who use opioids categorically different because right now we think about them in an inhuman way on a societal level. We think about them as junkies. We think about them as people who are living in the gutter and not living productive lives. And because of that, we want to punish them for that. We want to make it even harder for them to live productive lives and ask why are you using this drug? Why are you compulsively using this drug? What is happening in your life, and how can we help you out?

 

Joseph Grogan:  Trevor, I’m all for that. That’s totally untrue that I want to dehumanize addicts.

 

Trevor Burrus:  Oh, no, no. I wasn’t -- I said society -- societally. No, I think you said very good things. I mean societally we do dehumanize them. No, I think you said very good things. But we have to think differently about how we treat these people.

 

Joseph Grogan:  Well, I would agree with that. I mean, I hope that we could agree that non addiction is better than addiction and that addiction frequently inhibits the ability of human beings to flourish. And there is a connection between homelessness and overdose and chaotic personal lives and addiction.

 

Now, you can go through different gradients of that. I’m not particularly offended by the fact that you’re addicted to nicotine. It doesn’t really bother me. It would irritate me if you’re sitting next to me in a restaurant smoking a cigarette. It irritates me when I’m walking down the street and there’s an incredible smell of marijuana in the streets of any major city now or even driving down the street.

 

I mean, that offends me, and frequently I’m starting to get -- it’s going to be just a matter of time before people start complaining about nausea and headaches from the constant smell of these things. But it is an invasion of other people’s space, and frankly it is degrading to people. And it’s degrading even to the people that are using to have our cities have their public parks taken over by addicts and those people suffering from mental illness right now, like we have.

 

And frankly this idea about prohibition or non-prohibition, these people aren’t getting arrested now. You have a flourishing market taking place for drugs in the United States. And there are very sophisticated purchasers out there getting high constantly. In many ways the illegal drug trade is a freer market than if you’re having to put a drug through the Food and Drug Administration and seek reimbursement from either CMS or an insurance company. So this idea about prohibition or non-prohibition, I find it to be somewhat ironic when you can walk into any major city and buy drugs in open air markets now.

 

Trevor Burrus:  We don’t have safe supply.

 

Paul Larkin:  Well, let me respond to that.

 

Mike Hurst:  Go ahead, Paul.

 

Paul Larkin:  You said we shouldn’t be noted that opioid addicts or others are living in squalor in the gutter. They are. There’s a lot of people who spend their lives in those circumstances.

 

Look also at the homeless camps that have grown up in places like Seattle and Portland which enable drug use. You have people who are using meth and are slowly wasting away and becoming like the walking dead. That’s not good for them, and it’s not good for the rest of society.

 

Why should the rest of society have to give up large portions of some of the nation’s metropolises just so that people can be homeless on the streets in business communities or rural areas or whatever? It’s not as if they’re doing this in the privacy of their home. They’re doing this out in public, and they are either physically dependent or addicted to it. And society’s entitled to say we’ve had enough of that.

 

[CROSSTALK]

 

Mike Hurst:  Let me follow up on a question that Joe brought up in his answer which was the regulatory regime. Is the bureaucracy, is the federal government regulatory machine causing the opioid crisis? Is it contributing to the opioid crisis? Is it averting or helping to diminish the opioid crisis? What effect is our regulatory environment having on the crisis?

 

Trevor Burrus:  Well, Joseph’s correct. Well, first of all we still have a regime of prohibition. Even though he’s correct that it can be de facto decriminalization in many cities, there’s no safe supply, which is why the first thing has to be the safe supply.

 

But we have bad regulatory policy on addiction recovery as Joseph pointed out. We have the X rule for buprenorphine. We have the -- getting methadone as a compulsive user requires going to a special clinic. Normal doctors can’t prescribe this. This has worked in other countries. All these things have to change absolutely.

 

And to Paul’s point, yes, there are absolutely people in the gutter. And all those things are the kind of thing we treat other policies other than prohibition; right? I agree with everyone. Like we talked about drinking in parks, and we talked about where you can smoke. And things that we are not prohibiting would have other policies with them.

 

We can do things to say get out of the park. Go over there and get your safe supply. We can make our cities safer and make these people safer from the tainted drugs in their supply. I agree. I am not supporting drug use, especially opioid use, at all. I’m just saying that people will do it, and the first rule is to make sure they’re not dying from tainted opioids as they easily can do.

 

Paul Larkin:  I’d just like to respond to the safe supply point. There are two responses to that. One is that essentially you’re never going to get rid of a black market. Look at what happened in California. Once you legalize a drug you’re going to have politicians regulate it and tax it. And there are always going to be people who can undermine the legal price because they’re not regulated and they’re not being taxed. So you can’t get rid of the black market.

 

Plus, there are always going to be some people that don’t want to out themselves as using a previously illegal drug by going to a cannabis dispensary or a meth warehouse or whatever you want to call it and thereby make it publicly known that they’re using that drug. So they will buy it on the black market. There will always be a black market if there is a rationale for people to go to it. And there will always be reasons for people to go to it because it’s cheaper and it’s private.

 

Joseph Grogan:  Mike, on the regulatory tie in I do think the data’s pretty clear that the creation of the Medicare Part D program and subsidizing prescriptions helped drive some of this. FDA approved some powerful opioids in the 2000s and prescribing habits changed. And CMS, the regulatory agency for Medicare and Medicaid, started to adopt pain management as one of its quality measures and allowed patients to complain about hospitals if their pain needs were not getting met.

 

All of these individually helped drive the prescription opioid overdose epidemic. And then when we came in in the Trump administration and clamped down on that—I think Trevor makes a really good point—there were people that were addicted that then saw -- and couldn’t get them anymore, and they sought illegal avenues to continue to feed their habits. Also during that time, there were innovators occurring, and we were getting a lot of stuff directly from China. But then we started to get progress, and we were shutting down the border as those incipient materials were getting created in Mexico. But we’ve abandoned all that in the Biden administration, and that’s why we’re in hyperdrive right now.

 

Mike Hurst:  Let me ask one or two more questions before we get to questions from the audience. One question is the CDC reported that some states have seen massive increase in overdose deaths, particularly Alaska that saw a 75 percent jump in 2021, while some other states have actually seen decreases in opioid deaths or drug overdose deaths, excuse me. Hawaii saw a decrease of almost 2 percent. I know some of you mentioned having looked at or spoken with state officials. Do you see different solutions occurring in our states? Are there any lessons we can learn or even pitfalls we should avoid from our states?

 

Trevor Burrus:  There is a wide variety of states, and some of those varieties occur with prescription drug moderating programs like Joseph is entirely correct in terms of how much those are being cracked down on. Because if you are a compulsive user of opioids, you would much rather have a medically approved OxyContin pill for most people than unknown heroin purchase in the street. And so some of those policies have changed that in terms of overdose deaths.

 

But I think a bigger point—Alaska’s a really good example—one of the reasons that I’m so for legalization is kind of on the opposite of Paul’s point is that Alaska’s a dreary place with a lot of isolation. And those are often bad situations that put people into bad use of substance situations. And one of the things that legalization can do is it can help people come out of these bad situations and say, well, you don’t have the felony convictions, so you can get a job. You don’t have to be embarrassed so much about this because there’s all these possibilities for getting safe supply.

 

So we have variances. In some of these highly rural states we see higher rates. In some of these places where other things that President Trump talked about like job loss, those are all bad things. But prohibition, adding another conviction or the inability to get drugs doesn’t help these people in these sort of hardened places that are experiencing difficulties.

 

Mike Hurst:  Paul?

 

Paul Larkin:  I’m not sure how legalizing methamphetamine and heroin, which are very addictive for the vast majority of people, is going to help those people overcome the problems they have finding jobs. Let’s face it. People aren’t going to hire meth or heroin addicts. So where are they going to get their income to buy the drugs? I just don’t see that legalizing drugs that are addictive and devastating like those is going to help the people you’re talking about.

 

Mike Hurst:  Paul, have you seen anything in the states that have worked?

 

Paul Larkin:  I have not. But I haven’t gone and done a vast -- I should do a complete survey of what the states have going out there. One thing that the states have done that has been greatly helpful is allow for naloxone, Narcan to be widely used. In fact the state of Virginia has an equivalent of the U.S. Surgeon General, and that person authorized anybody to go into a pharmacy and purchase Narcan so that he or she would have it if they came across somebody.

 

Now, this was in the pre-COVID era. I don’t know—we’ve had a change in government in Virginia—whether there’s a new person in that position and whether Virginia has changed its policy. But at the time, that was a rather useful way of trying to deal with the problem after it happened and when it became most acute because someone was overdosing. That’s very helpful.

 

At the front end I think we just have to try different matters. And at the intermediate end where what you’re talking about is treatment, here’s the problem there. Treatment is going to fail far more often than it works, and you’re not going to get very many politicians who are willing to go to the floor of the Senate or the House or state legislatures and say we should spend millions or billions of dollars on a policy that is going to fail more often than it’s effective. You’re not going to get people to do that. That’s a shame because we need to spend money to enhance the opportunity for people to get treatment, even though it’s going to take them multiple times in order to succeed.

 

Mike Hurst:  Joe?

 

Joseph Grogan:  Yeah, I would -- I mean, look, the government funds failures constantly, so maybe we just need to message it better. I mean, we can’t leave these people to their addiction. And the fact that we’ve got such terrible success rates -- and as I said 70 percent of people who want treatment services can’t get them. It’s a tragedy. We have to make a commitment to these Americans who need help and don’t want to be addicted anymore.

 

And frankly, we need to make a commitment to those who want to be able to use our parks again and want to be able to walk down the street and not be accosted by somebody who’s having some type of meth induced psychotic episode. And you can have -- of course it is intertwined with our mental health problems in this country and the fact that we don’t have adequate treatment for that. I mean, Trevor’s exactly right. A lot of these people are self-medicating.

 

But the answer to that in my opinion is not to self-medicate themselves into numbness unless they’re in extreme pain and need that for a short period of time. The answer to that is to get them stabilized and get them moving in a positive direction for human flourishing. I hate to sound like I’ve been listening to Deepak Chopra every morning, but we should not aspire to watch our fellow citizens be wasted. Some level of alcohol use or substance use could be tolerated, but being perpetually wasted or addicted should not be an acceptable state for our family members, our friends, or our fellow Americans.

 

Mike Hurst:  All right. Last question before we get to the Q&A part. Trevor, just assume prohibition is going to stay in place, or, Paul, just assume prohibition is done away with and we have the black market. Either way, we still have this problem of China and other countries who are going to import illicit fentanyl and other illicit opioids that are going to kill our citizens. So what do we do about international actors who are sending this stuff whether still prohibited or on the black market into our country and killing our people?

 

 

Trevor Burrus:  Well, not to sound like a broken record we’ll assume prohibition’s in place and since fentanyl is Schedule 2 it’s prohibited in some ways; right? It’s not available without a prescription. But we can’t stop China from doing this. There’s not enough DEA agents on the planet. It can’t be stopped, so we have to say minimize the black market.

 

Paul’s right. There will always be a black market, but of course the black market during alcohol prohibition was a very different kind of thing than the people selling alcohol out of the car now who are doing moonshining. We can minimize the effects of the black market. And since China’s feeding the black market, we have to minimize the effects of it even within a realm of prohibition. So allow safe supply. Not to sound like a broken record, it has to be part of something on the table to allow safe supply in order to shut down that harmful black market.

 

Mike Hurst:  Paul?

 

Paul Larkin:  I think there are several things we could do. And I have to say we may in fact be doing some of them. One of the steps we can take is to increase our ability to find out where precursor chemicals for fentanyl come from and go into Mexico.

 

We now know that most of the fentanyl coming into the U.S. comes across the border from Mexico. What’s happening is, as the DEA has told me, the cartels are building massive labs in Mexico to manufacture fentanyl from the precursor chemicals. So what we need to do first is find out in whatever way we can what precursor chemicals are being shipped from China or India or other places to Mexico and what happens to them once they arrive at the port. There’s a major port on the west coast of Mexico, the Pacific Coast. I can’t remember the name of it, but that’s where most of it comes through, although there are plenty of other places too. We need greater intelligence work to find out what is happening, where it’s coming in, etc.

 

But as I mentioned earlier, we have to change our border policy. If it’s coming across the border, we have to make that more difficult, and we have to do our best to try to stop it. At a minimum we need to do that in order to educate the public that we’re trying to do something. Maybe there’s something we’re doing right now, but it sure doesn’t look like it.

 

Mike Hurst:  Joe?

 

Joseph Grogan:  It needs to be a priority for the President and the State Department and those who represent our country overseas to hold these guys accountable. It was on the agenda for Trump when he met with Xi that we got a problem with your fentanyl coming in this country. Now, Xi would say, look, we’ve got a death penalty for fentanyl production in our country.

 

But Trump put him a report on it, and actually a lot of fentanyl started to flow to Mexico to be produced there because the Chinese didn’t want to send it directly to the United States anymore and deal with Trump pounding the table. But he made it a priority. Mike Esper has a portion of his book in which he very mockingly says that Trump brought up bombing meth and fentanyl labs in Mexico. Well, great. Ha ha, Esper, you made the President look stupid in this little passage.

 

But why isn’t it a huge priority for the United States when we meet with Mexico? We send them hundreds of millions of dollars in aid. We’ve opened our border, and we allow tons of manufacturing in Mexico and tons of products to flow across the Mexican border.

 

Paul’s right. I don’t understand why the Biden administration, which devoted frankly six to ten times as much space in its most recent budget to climate change as it did to the opioid epidemic -- I don’t understand why they don’t call up the Mexican government and say this needs to stop, and we’re going to work together to stop it. We’re going to close down the border or at control it far more aggressively and patrol it far more aggressively. But you’ve got to have a president who cares, and you’ve got to have a secretary of state who cares. And all our diplomats and professionals need to make it a priority.

 

[CROSSTALK]

 

Trevor Burrus:  You do -- I heard what Paul -- Joe is absolutely right. Either what Paul or Joseph said, and cartels just switched to car fentanyl which is 100 times more potent than fentanyl to make their smuggling operations more clandestine and kill more people.

 

Paul Larkin:  The policy of the Mexican president of hugs not bullets just ain’t working. It’s certainly not working for us, and it’s not even working for people in Mexico. You read the most recent issue of the Economist that says there’s still thousands of people who are among the category of disappeared ones that people no longer hear from and they have no idea where they went. It’s not working, and we need to tell Mexico everything that Joseph just said.

 

Make this a priority. Right now, we spend more time on climate change or woke subjects than we do on a matter that has killed thousands and thousands of Americans. There’s no good excuse for it. I’d like to hear Joe Biden say what number of people have to die before he’s going to do something about it.

 

Mike Hurst:  Let me go to some of our questions. Tom Palmer says he thinks where there is demand, there will be supply that no one can prevent. Isn’t the solution to illegal drugs to put users and potential users in charge of ceasing to seek and to use drugs? So I guess the question to the panel is shouldn’t the government just allow people to take drugs, choose to take drugs or not take drugs and not have any say so or any interest in the well-being of people?

 

Trevor Burrus:  That’s a little bit weird way of putting it. The short answer is yes but not any say so in the well-being, letting them get supply but then changing how we do addiction treatment. Again, how we treat alcoholics -- the federal government and other government are not at all doing that. They’re just not doing it through prohibition, which what a novel idea that’s worth trying.

 

Paul Larkin:  The answer to your question, Mike, is no. We shouldn’t just sort of give up, I think. I mean, look at all the secondary problems. People are going to use psychoactive drugs. They’re going to get behind the wheel of a car. They’re going to cause a crash, and people are going to be maimed or killed. They didn’t choose to be maimed or killed. It’s done by somebody else. There are all sorts of costs like that that come with the increased legalization of drugs, and we’ve only talked about some of them here.

 

Mike Hurst:  Joe?

 

Joseph Grogan:  Yeah. I mean, look, I’m a free market guy. I believe in markets. Where you’re going to have demand, you’re going to have a market or people trying to meet the market. But the price could go up with enforcement for those selling it or those dealing it and frankly for those using it.

 

We could make it cheaper for people to get treatment services. We don’t suspend the laws of economics in supply and demand in this market. And we are not enforcing the drug laws, so drugs are extremely cheap. And I’ve said before when we put additional unemployment benefits in people’s pockets during COVID, that extra 600 bucks, you can see at one point Trump stopped it. He was in a fight with Congress, and then it got restarted again in August 2020. And boom. You started to see it tick up again. You had people idle, and then they had extra cash in their pockets. And they were using more drugs.

 

So this is not a static environment where people are only -- the only thing that they are purchasing is drugs and the only thing they’re doing is thinking about drugs. They can get pushed in one direction or another. As Trevor said, there are other substances they could choose to use or not. But it would be great if we could have an honest discussion in this country that we would like our parks back. We would like our law enforcement to be able to pursue crimes when they are committed, including violent crimes often by those who are using drugs or pursuing money to purchase or deal drugs. But we’re abandoning law and order, and we’re abandoning our cities.

 

Mike Hurst:  Well, look, this has been an incredible discussion. I apologize to the audience. We had some really great questions we couldn’t get to, but I want to thank our panelists, Joe, Paul, Trevor. You guys all did an outstanding job. We can agree to disagree, but we can do it professionally. And we can do it honorably. And you have shown that. And I want to give one shout out to Dean Mazzone who also put this panel together. Thank you, Dean, if you’re listening, and thank you to The Federalist Society for hosting this event. Guy.

 

 

Guy DeSanctis:  Thank you. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming events. Thank you all for joining us today. We are adjourned.