A University of Pennsylvania seminar on Racial Justice in National Drug Policy opened with a nod to Michelle Alexander, JD, author of the book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, and a quote about racialized drug policy attributed to John Ehrlichman, former White House Counsel and Assistant to the President for Domestic Affairs in the Nixon Administration.

As she opened the panel discussion, moderator Eugenia South, MD, MSHP, LDI Senior Fellow, and Faculty Director of the Penn Urban Health Lab, explained: “When we think about what fueled mass incarceration, what laws and policies were created that led to both the ballooning of the prison population and the racial disproportionality of who is there, the War on Drugs is really front and center.”

South then read the controversial Ehrlichman quote that appeared in the April 2016 issue of Harper’s magazine in an article about the failure of the “War on Drugs” originally launched by President Nixon in 1971:

“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and Black people,” Ehrlichman said. “You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

Structural Racism

Leading up to the first question to a panelist, South emphasized: “In this discussion, I really want to explicitly name mass incarceration and the War on Drugs for what it is: a stark example of structural racism.”

The event was co-hosted by the Leonard Davis Institute of Health Economics (LDI) and Bold Solutions, a Penn initiative aimed at addressing the effects of interpersonal, structural, and institutional racism on health, and co-sponsored by the Urban Health Lab.

The three panelists were Michael Botticelli, MEd, former Director of the Office of National Drug Control Policy (ONDCP) during the Obama Administration; Kassandra Frederique, MSW, Executive Director of the Drug Policy Alliance; and Helena Hansen, MD, PhD, Professor and Chair, Research Theme in Translational Social Science and Health Equity, and Associate Director of the Center for Social Medicine at the UCLA David Geffen School of Medicine.

Criminal or Patients?

A major theme throughout the discussion was how the issues of equity and anti-racism were, or were not, part of the federal government’s drug policies in the 1980s and 90s versus the today’s raging opioid epidemic. The panel agreed that the earlier War on Drugs criminalized drug use for Black and Latino communities while the current opioid epidemic policy has veered dramatically toward a public health approach to the problem.

Panelist Helena Hansen, who has been studying racialized aspects of U.S. drug policy for a decade, noted that “the opioid crisis came to be seen as white.”

“The popular press and politicians have been circulating images of Black, brown and even Asian people as addicted and dangerous for over 100 years and these racialized images built political support for prohibitionist criminalizing drug policies,” Hansen continued. “Back in 1914, newspapers like the New York Times were reporting that cocaine-crazed Negroes were attacking their white supervisors and raping white women. A couple of decades later in the 1930s, newspapers had stories of ‘Mexican marijuana madness’ and Mexican workers sleeping on the job under the influence of marijuana. These images led to more and more stringent narcotics laws and enforcement policies in Black and Brown communities which live with us even today.”

“All the while, middle-class white people throughout the past century have enjoyed full access to medical narcotics prescribed by private doctors in such large volumes that, by the 1940s and 50s, white Americans were dying from barbiturate overdose rates that rival today’s opioid overdose rates,” said Hansen.

From Oxycodone to Heroin

In the 1990s, corporate marketing campaigns flooded Oxycodone and other prescription opioids through the health care system, addicting large numbers of white middle-class people in suburbia and rural regions. When new controls such as drug monitoring laws, tightened prescribing, and tamper-resistant drug formulations were put in place, white drug users were cut off from their prescription pharmaceuticals and began turning to street heroin as a substitute—and overdosing in ever-larger numbers, creating the current crisis.

“This put heroin in a really unprecedented position,” said Hansen. “It was not a popular political response to criminalize white, middle-class opioid users. The surprising new face of addiction was reported in the media with lots of humanizing stories of college athletes, housewives, and schoolteachers who were unwittingly addicted to pills, and ultimately heroin. This publicity built support for local decriminalization of heroin and other opioids in white, largely affluent neighborhoods whose empowered residents collaborate with local law enforcement and district attorneys to divert people arrested on low-level drug charges to sentencing in treatment and, in some cases, peer support.”

Selective Racialized Decriminalization

“So,” Hansen continued, “we get Good Samaritan laws protecting people who call 911 in case of an overdose. Out of this moment of selective racialized decriminalization, we get bipartisan national support for the medicalization of heroin as well as opioid addiction by clinically maintaining patients on the opioid Buprenorphine. White patients with opioid use disorder are three to four times as likely as Black patients with opioid use disorder to get Buprenorphine. And those white patients who get it are most likely to pay out of pocket for very expensive patented medication or with private insurance.”

“We’re talking about a middle-class and affluent market for Buprenorphine and, therefore, middle-class, white, and affluent constituency for selective medicalization of addiction,” said Hansen. “None of this disparity was accidental in any way. It was deliberate. The medicalized alternative response to an emerging white heroin problem was crafted to handle the anomaly of the racial crossover of heroin and the image of heroin after a century of drug policy that separated illegal Black and Brown drug use and drug use from legal white medications.”

Methadone vs. Buprenorphine

Michael Botticelli pointed to the difference between policies related to methadone and buprenorphine. “One of the things that came out of the Nixon administration was a tremendous expansion in the use of methadone,” he said. “In keeping with those policies, it’s no surprise that methadone is probably one of the most highly restricted medications to ever exist. It’s highly regulated and highly stigmatized. Many, including myself, have talked about the racial underpinnings of those methadone regulations. And I think at the federal level, it’s one of the things we could really focus on. Methadone regulations haven’t been updated in close to 60 years and it’s really a time for an overhaul of those regulations, because it could have an immediate impact.”

Kassandra Frederique, who has been with the Drug Policy Alliance (DPA) for 11 years, works to create coalitions focused on changing various drug policies. But a big issue in the current opioid epidemic is that communities of color have difficulty engaging in drug policy discussions or getting their issues recognized.

“Let’s be really clear,” said Frederique, “the overdose crisis is being exacerbated by structural issues of economic immobility and other barriers. There’s a lot of unlearning that has to happen when we’re doing advocacy around policymaking and the opioid crisis. Some people who are impacted now are saying, ‘look, what happened in the past is hard and terrible but we’re here now. Let’s move forward.’ They’re coming with their pain and their trauma. But communities of color are asked to to come in as if we’re in an equitable place—but we’re not. What’s being ignored is that we have that long trauma.”

Opioid Court Settlements

A major rising issue in drug policy is the class-action court settlements with opioid manufacturers, distributors, and pharmacies that will send money into the states for uses related to drug addiction and treatment.

“I am often in places where people are talking about the opioid settlement, and the advocacy around it is white,” said Frederique. “The conversation is that the communities with the most need are white ones. They say, ‘opioid impacted us most, we are the ones most hurt and we deserve the money.’ So, we’re in this moment when some think that only white families lost people to overdoses. At the same time, because of the historical inaccuracies and stigma, it makes it hard for families of color to say ‘but I lost my kids to overdose, too’ because they don’t get the same compassion back. It’s a different level of scrutiny on that family of color than on white, upper middle-class suburban families.”

Hansen pointed out: “The current opioid class action lawsuits really do use a logic of reparation. Predominantly white, suburban and rural residents were hard hit early on in the opioid epidemic, but we know the demographics are changing. We know Black people have the fastest rising overdose rate in the country right now. And there are several states actually in which they have a higher absolute overdose rate than white Americans.”

A Logic of Reparations

“Nevertheless, the impression that the opioid overdose crisis was a white one continues to lead to a logic of reparations for white communities,” Hansen said. And that’s what flows out of the discourse around Depths of Despair—the fact that people are overdosing because they are largely in white communities that have been abandoned by manufacturing, mining companies, and other industries. Left out of that logic are Black and Brown people who have long suffered from all kinds of repressive narcotics policies, and so I do think if we’re going to take on a logic of reparations, we actually have to look at the history of who has been very much harmed by drug policies as well as pharmaceutical marketing, and apply that logic in a way that’s very conscious of racial justice. That is exactly what has been missing from that discourse in the class action opioid lawsuits: a racial justice frame. We would have to insert that and look at investing not only in classical treatment and medications, but actually in all of the social structural drivers of overdose and the individual and community harms of opioid and narcotics use.”

Another major focus for Frederique and the DPA, a non-profit that works to ground national drug policy around evidence, compassion, justice, and health, is the decriminalization of drug use and an end to using prisons and jails as major addiction treatment facilities.

Prisons as Health Care Systems

“The change we need to move forward,” Frederique said, “is to reduce the role of criminalization when it comes to issues of health,” Frederique said. “We are pushing back on the concept that the criminal justice system is an appropriate vector for health care. Some of the largest facilities for either mental health or drugs are local jails and prisons. That is a failure, not an innovation.”

Providing a historical inside-policymaking view, former ONDCP Director Botticelli remembered that the Obama administration effort “was to move away from a War on Drugs approach and really focus on drug policy as a health-related issue and not as a criminal justice issue. It really was the implementation of the Affordable Care Act and its mandate to include substance use disorder treatment as an essential benefit, where we really saw, and even tried to approximate, parity between demand-reduction approaches, public health strategies, and law enforcement supply-reduction strategies.”

Botticelli said he also recently “went back and looked through our drug control strategies to see if there was particular mention in terms of equity-based or anti-racist strategy and there wasn’t. Certainly, there was an acknowledgement of policies that had a disproportionate impact on people of color. But really, unfortunately, it didn’t include specific goals and specific strategies that dealt squarely with this issue. That’s regrettable for me.”