Challenging the Status Quo: A Novel Approach to Assessing Criminal Drug Policy

Background and Purpose: The United States is inordinately burdened by the ill effects of widespread drug misuse and addiction, hosting the world’s highest prevalence of drug use disorders and opioid-related deaths. Meanwhile, national drug policy is notoriously severe. Retributive drug policy has defined the judicial landscape in the United States for over a century, maintaining itself in the face of changing public discourse and polarized debate. Since state environments and drug laws vary widely, it is difficult to estimate any consistent impact of policies on a national level, or to compare their effects between states. The difficulties of empirically evaluating drug policy impede the capacity to change it, as stakes are high and the topic is politically charged. Without evidence to indicate the impact of policy change, harms associated with substance misuse itself may be rhetorically conflated with the effects of policies designed to control or regulate use. Beyond hindering empirical evaluation of policy efficacy, a lack of data on drug policies across states acts as a barrier to reform. This study aims to assess variation in the severity of contemporary U.S. criminal opioid policy, and to provide tools for researchers who wish to measure the impact of these policies.

Methods: We conducted a primary extraction of historical legal penalties related to fines and terms of incarceration for opioid possession and distribution in all 50 states from 2012-2022, sourcing from Westlaw and HeinOnline’s historical session laws library, and blindly double-coding a subsample of 20% of state data. With the input of national topic and methodological experts, we also constructed a novel drug policy severity scoring tool based on criminal penalties for opioid possession and distribution, in order to assess policy severity and to facilitate the comparison of outcomes for possession versus distribution charges. We assigned each state and year in the study period severity scores based on the extracted legal data.

Results: Key findings indicated that opioid policy in many states exhibited minimal variation during the first half of the study, while more significant changes occurred during the last decade, largely due to the establishment of stricter penalties for specific “problem” drugs such as fentanyl. While some states lightened penalties for possession charges, most continue to meet distribution charges with increasing penalty severity.

Conclusions and Implications: The construction of a severity scoring scheme and sample database of state laws provides new and valuable tools for assessing the evolving landscape of drug policy and evaluating how changes in drug policy severity may impact a variety of social issues. Our extraction and scoring of 20 years’ worth of data can support researchers in empirically evaluating the impact of changes in drug policy. This is crucial for evidence-based policy advocacy that aims to improve health outcomes and reduce the unnecessary entry of individuals with opioid use disorders into the criminal legal system. By considering the real-world implications of criminal legislation, social workers can better determine our professional priorities in the effort to support and protect individuals and communities.