Is ‘Free Heroin’ the Answer to the Opioid Crisis?

Professor Josh Bowers of the University of Virginia School of Law has written a provocative new paper, informed by his past work, that offers an unexpected recommendation in light of the current opioid crisis: provide free, supervised drug use.

Bowers and UVA Law lecturer Daniel Abrahamson are co-authors of “Kicking the Habit: The Opioid Crisis, America’s Addiction to Punitive Prohibition, and the Promise of Free Heroin.”

Bowers is a criminal law expert and the F. D. G. Ribble Professor of Law at UVA. Abrahamson founded the Office of Legal Affairs of the Drug Policy Alliance and has been a lecturer at the Law School.

“Yes, the title is provocative — intentionally so,” Bowers said. “But it is also somewhat incomplete. By ‘free heroin,’ my co-author and I do not propose that the government distribute heroin willy-nilly to whomever wants it. We are proposing a prescription model, by which the government would establish medically supervised clinics to provide a maximally safe environment for drug use by opioid-dependent individuals for whom other forms of intervention have failed already, including other forms of medication-assisted treatment, like methadone.”

The opioid epidemic has hit home for millions of Americans. They or a loved one may have been prescribed the pharmaceutical-grade painkillers that have created a new class of addicts. As the government has tried to crack down on the problem, in part by reducing availability of the prescriptions, users have turned to less-safe, street-level alternatives.

Bowers said the paper’s proposal of “addiction maintenance,” which has been implemented in other countries, and in the United States earlier in its history, would be for true addicts who cannot complete rehabilitation-oriented programs. The contention is that they will experience greater suffering, possibly even death, if further punished and marginalized under the current criminal system.

“[The proposal] is a form of palliative care, grounded in the public-health philosophy of ‘harm reduction,’ as compared with our conventional ‘war on drugs,’ which is grounded in the criminal-legal philosophy of prohibition, coercion and draconian punishment,” he said. 

The authors’ approach would take the form of well-regulated medical facilities that keep patients “alive, socially integrated and out of trouble,” Bowers added.

He stressed that other interventions should be tried, such as methadone, before addiction maintenance, which would be a last resort that only a doctor could determine. 

In addition, the paper endorses other efforts and interventions: amnesty from arrest for individuals who report overdoses; pill-and-powder testing to allow users to determine the purity and quality of street drugs; and widely available naloxone. (Naloxone, called the “Lazarus” drug, has the capacity, when injected into the bloodstream, to reverse an overdose almost immediately.)

He acknowledged that, without a punitive approach, the number of addicts might possibly remain steady, or perhaps even rise. However, “For Dan and me, it seems clear that it is far more painful to watch families bury loved ones after overdose deaths from adulterated street heroin.” 

Bowers’ thinking on drug-addicted people is informed by his interactions with them. Early in his career, he was an attorney with the Bronx Defenders, a community-based public defender organization. The organization takes a holistic approach to the client, focusing on more than just the pressing legal dilemma the client faces.

By the early 2000s, the judiciary had begun offering drug courts, which facilitate an alternative to prison for clients who can complete the mandated program and stay clean. But Bowers found that they don’t always offer the benefits an advocate would want for his client. The client’s level of addiction is a factor.

“I remember one young client for whom a noncriminal disposition was critical,” he said. “I advised him to enter drug court. A colleague asked, ‘Does he have a real drug problem?’ To which I responded ironically, ‘I certainly hope not.’”

Bowers’ client would have jeopardized his immigration status if he had failed to complete the drug court program, and would have served a longer sentence than what could have been plea-bargained. Fortunately, in this instance, the client stayed clean. But the quandary led Bowers to write the paper “Contraindicated Drug Courts.” In the medical field, when a drug or technique is “contraindicated,” it’s not recommended because use is expected to do more harm than good.

“If the young man had been genuinely addicted, he was likelier to spend a long time in prison. If he wasn’t addicted, he was likelier to succeed,” Bowers said. “That’s what I meant by the article title: Drug courts tend to be ‘contraindicated’ for the very population they are intended to reach and help. 

Such contraindication is common in the criminal justice system, from his perspective.

“Contraindication is an entirely predictable outcome of what happens when harm-reduction initiatives are shoehorned into the conventional criminal legal system and made subject to its coercive instruments,” he said.

In that early paper, Bowers endorsed only the lesser-used diversion-based drug courts, in which defendants don’t have to plead guilty to take part.

Bowers and Abrahamson first met a few years ago when Abrahamson was a guest speaker of the UVA Program in Law and Public Service, which Bowers co-directed. It turned out that Abrahamson had read “Contraindicated,” and the two were like-minded. Abrahamson began teaching a short course at UVA.

“Shortly thereafter, the Ohio State Law Journal invited me to participate in and author an essay for a symposium on the opioid epidemic,” Bowers said. “I roped in Dan, and the rest is history.”

Bowers’ joined the law faculty in 2008. His primary teaching and research interests are in the areas of criminal law, criminal procedure, legal theory and constitutional law. He earned his J.D. from the New York University School of Law. After law school, he clerked for Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit. He also practiced law as an associate for Morvillo, Abramowitz, Grand, Iason & Silberberg, a boutique white-collar criminal defense firm. From 2006-08, he was a Bigelow Fellow at the University of Chicago Law School.

“Behind the Scholarship” is an occasional series that details the backstories of the faculty’s work.

Read More

• “Kicking the Habit: The Opioid Crisis, America’s Addiction to Punitive Prohibition, and the Promise of Free Heroin,” Ohio St. L.J., forthcoming
• “Contraindicated Drug Courts,” 55 UCLA L. Rev. 783 (2008)
• “The Case for Compassionate Policing” (Virginia Magazine)