The Role of Pressure Groups and Problem Definition in Crafting Legislative Solutions to the Opioid Crisis

Organized interest groups and federal administrative agencies have historically been influential in defining problem drug use during nationwide crisis. As such, the manner in which these pressure groups defined the problem may have influenced or, at least, provided support for legislators’ decisions to shy away from a criminal justice approach and towards acceptance of a more “health-oriented” — one that did not comprehensively address demand factors or demonstrate a commitment to reforming U.S. drug policy to meet international standards of best practice. In an effort to provide a snapshot of what such involvement may look like, this article explores the types of narratives used by pressure groups to define the opioid crisis in the congressional hearing discourse prior to the enactment of CARA. In order to do this, I analyzed 144 congressional hearing testimonies discussing the opioid crisis and identified the most common narratives used to explain the causes of the opioid crisis. I also identified the types of legislative proposals supported in these narratives

What Motivates Legislators to Act: Problem Definition & the Opioid Epidemic, A Case Study

This article explores why federal legislators may have been motivated to treat the current opioid crisis as a health issue, when past drug problems have been treated as a criminal justice issue. Using theories from political science, policy studies and sociology, this article summarizes leading theories of legislative behavior and applies them to the current opioid crisis, in an effort to better understand what motivates legislators to enact legislation to solve pressing social problems in a way that reframes the problem. Part II of this article provides an overview of the Comprehensive Addiction and Recovery Act, its significance, and how it evidences a congressional redefinition of the problem of drug overdose deaths. Part III reviews general theories of legislative behavior and combines the theories to suggest a model for what motivates legislators to act. Part IV analyzes each factor identified in the theoretical model in depth and provides evidence of each factor’s influence on the redefinition of overdose deaths as a health problem. Lastly, Part V discusses how this instance of reframing informs our understanding of what motivates legislators to reframe a policy issue in order to arrive at different types of policy solutions and how such an understanding can assist other fields in reframing issues that have become stagnated in the legislative process or have resulted in ineffective policy solutions

Why the DEA & Not the FDA? Revisiting the Regulation of Potentially Addictive Substances

In addressing the opioid overdose crisis, Congress has explicitly questioned its historic reliance on a criminal justice approach to problem drug use and has instead adopted a more health-oriented approach. Despite Congress\u27 rhetoric, the DEA, a criminal justice agency, continues to retain the power to make key decisions on the classification of potentially-addictive substances, thereby affecting their manufacture, distribution, and overall availability. While the DEA is statutorily required to defer to the Food and Drug Administration (“FDA”), a public health agency, at junctions of the decision-making process, the current “split enforcement” scheme laid out in the statutes has not actualized the legislative intent of balancing the medical and scientific considerations with those of law enforcement, tilting the weight of determinations instead to law enforcement criteria and a criminal justice approach to its regulation and enforcement. The current shift in legislative preference for a health-oriented approach begs the question: Why continue to give such regulatory powers to the DEA and not a public health agency like the FDA? While such transfer of regulatory powers may seem radical, it becomes less so after an analysis of some often-forgotten FDA history. For at least 20 years prior to the DEA’s creation, the FDA regulated and enforced the regulations of illicit sales of non-narcotic drugs, like barbiturates and amphetamines. In 1966, Congress formalized these enforcement powers by creating the Bureau of Drug Abuse Control (“BDAC”) within the FDA. However, the BDAC was transferred out of the FDA just two short years later. It was merged with the FBN and then moved to the DOJ. It later became the agency we now know as the DEA. To some, the BDAC’s short-lived existence might suggest that Congress perceived the FDA’s enforcement efforts as a failure. Others may correctly point out that FDA Commissioners were eager to get rid of the BDAC when given the opportunity to do so. Why should Congress consider transferring exclusive powers to regulate controlled substances to the FDA, if previous FDA Commissioners lobbied to rid the agency of these powers decades ago? Building a case for the transfer of regulatory powers from the DEA to the FDA is a subject worthy of a book-length manuscript, but an apt starting point is to gain a deeper understanding of how the DEA, instead of the FDA, ended up with the primary powers to regulate and enforce the regulations on potentially-addictive substances. While other scholars have described the circumstances surrounding this assignment of powers to the DEA, this article extends their research and makes new findings about the circumstances surrounding the transfer of the BDAC, and its power to regulate, to the DEA. Using oral history testimonies from FDA investigators and administrative officials, this Article adds to the historic literature on the allocation of regulatory and enforcement powers over potentially-addictive substances. In doing so, this Article provides evidence in support of a contemporary transfer of regulatory power from the DEA to the FDA. The primary contribution of this Article is that it demonstrates that the removal of the BDAC from the FDA was not due to the BDAC’s poor performance or its more regulatory approach to enforcement, but rather in large part due to FBN infiltration into the BDAC and the corruption and criminal justice approach that accompanied the FBN influence

MPHAEA & Marble Cake: Parity & the Forgotten Frame of Federalism

Federal parity laws, and their state equivalents, have been shown to increase access to substance use disorder (SUD) treatment, by decreasing the cost of SUD treatment borne by the insured, and has resulted in little increase in health plan costs. Despite these improvements, the effects of parity on access to SUD treatment have been lower than expected. Recent reports suggest that states have varied in their enforcement parity, failures which may explain why persons surveyed still report having inadequate insurance coverage for SUD treatment despite the parity legislation. While other articles have offered suggestions for improving parity, most have lumped mental health and substance use disorder treatment coverage together in their analysis and recommendations. This paper focuses exclusively on SUD treatment and its distinct institutional history. Aside from focusing exclusively on substance use disorder treatment, this paper contributes to the literature by analyzing parity implementation through the lens of theories of federalism. It argues that in order for parity implementation to be effective, it must account for the current ideological divisions that have characterized intergovernmental relationships for nearly a decade. This paper demonstrates how theories of federalism and intergovernmental relations are particularly useful in analyzing the implementation of health insurance parity reform because they suggest that some of the implementation issues that have arisen were due to the structure of the division of federal/state responsibilities. In doing so, this paper suggests alternate structures for dividing the responsibilities for enforcement

Carrots, Sticks and Problem Drug Use: The Law Enforcement Lobby\u27s Contribution to the Policy Discourse on Drug Use & the Opioid Crisis

Despite the growing support for the idea that problem drug use should be treated like a chronic medical disease, some law enforcement interest groups, including trial court judges associations, prosecuting attorneys associations, and police associations (“law enforcement groups” or “criminal justice actors”), continue to argue for the use of the criminal justice system to address the nation’s drug crises. The justification for the use of the criminal justice system to oversee the psychological and medical treatment of persons with substance use disorders (SUDs) is based on the belief that persons with SUDs are deviants, who cannot refrain from engaging in sinful behavior. Therefore, punishment, or the threat thereof, is needed to deter the deviants’ immoral conduct and to ensure that the deviants comply with treatment. The empirical evidence that supports the efficacy of coerced and compulsory treatment is underwhelming, at best, and ineffective, at worst. Furthermore, treatment outcomes for persons with SUDs enrolled in substance abuse treatment without the threat of incarceration are equal to, if not superior than, those under supervision of the criminal justice system. Despite the empirical literature, some law enforcement groups continue to make statements, underscored with assured certainty, that the threat of incarceration is a necessary tool to treat SUDs and to address the nation’s current opioid crisis. In this article, I explore how public law enforcement groups use narratives to define problem drug use as a criminal justice issue in the wake of the opioid crisis. In doing so, I explain the motivations behind law enforcement groups’ continued support for the criminal justice approach, despite the efforts to redefine problem drug use as a health issue. Using theories of interest group behavior, I argue that law enforcement groups’ support of the criminal justice approach is a result of their attempts to protect and further the interests of their members, attorneys, judges, and police personnel who rely heavily on state and federal budget allocations for survival. I will demonstrate that narratives supported by law enforcement groups in the discourse surrounding the opioid crisis position these criminal justice actors as “fixers” of the drug problem and, in doing so, encourage the allocation of funding and resources necessary to carry out their duties as problem fixers. I will further show how some law enforcement groups have justified their continued roles as fixers of problem drug use, but have done so on a spectrum, suggesting that at least some law enforcement groups have acknowledged the need to re-envision their perceived role in addressing problem drug use

Defining the Opioid Epidemic: Congress, Pressure Groups, and Problem Definition

The passage of the Comprehensive Addiction and Recovery Act of 2016 evidences a shift in federal legislative support from criminal justice oriented legislative alternatives to more health oriented legislative alternatives to addressing the ongoing Opioid Epidemic. Such a shift was preceded by a redefinition of problem drug use in the policy discourse from an issue of deviancy to a health issue. However, the redefinition of problem drug use as a health issue, has been dominated by policy narratives and causal stories that do not define problem drug use in a manner that aligns with a multi-modal public health oriented legislative solution, a solution type that has been shown to be successful in other developed nations across the world. In order to adopt such an approach in the U.S., pressure groups, including organized interest groups and administrative agencies, will need to utilize narrative techniques to strategically craft a narrative that defines problem drug use as a health issue affected by the social determinants of health. The purpose of this manuscript is to equip legal scholars, researchers, and all concerned citizens with a greater understanding of the legislative problem definition process and the role that pressure groups play in such a process. Through the utilization of examples from drug policy history, this manuscript demonstrates how pressure groups strategically used problem definitions to shape legislative discourse and pressure Congress into supporting policy solutions that aligned with their problem definitions—attributing addiction to disease at times and to deviancy at other times. By example, this manuscript outlines strategies that can be used by legal scholars, researchers, and concerned citizens to define problem drug use as a health issue caused by multiple sociological, psychological, economical and biological factors

MHPAEA & Marble Cake: Parity & the Forgotten Frame of Federalism

Federal parity laws, and their state equivalents, have been shown to increase access to substance use disorder (SUD) treatment, by decreasing the cost of SUD treatment borne by the insured, and has resulted in little increase in health plan costs. Despite these improvements, the effects of parity on access to SUD treatment have been lower than expected. Recent reports suggest that states have varied in their enforcement parity, failures which may explain why persons surveyed still report having inadequate insurance coverage for SUD treatment despite the parity legislation. While other articles have offered suggestions for improving parity, most have lumped mental health and substance use disorder treatment coverage together in their analysis and recommendations. This paper focuses exclusively on SUD treatment and its distinct institutional history. Aside from focusing exclusively on substance use disorder treatment, this paper contributes to the literature by analyzing parity implementation through the lens of theories of federalism. It argues that in order for parity implementation to be effective, it must account for the current ideological divisions that have characterized intergovernmental relationships for nearly a decade. This paper demonstrates how theories of federalism and intergovernmental relations are particularly useful in analyzing the implementation of health insurance parity reform because they suggest that some of the implementation issues that have arisen were due to the structure of the division of federal/state responsibilities. In doing so, this paper suggests alternate structures for dividing the responsibilities for enforcement

The Discounted Labor of BIPOC Students and Faculty

Black Law Students experienced a different COVID-19 pandemic than their majority counterparts due in part to the emotional and physical toll caused by the violent, public mistreatment of Black persons at the hands of law enforcement. While some law faculty at some institutions were proactive in identifying the struggles that their Black students were facing, most law faculty and administrators did nothing—prompting Black students to take time away from their studies to organize, draft letters, gather signatures, and have very uncomfortable conversations with university administrators and faculty about the need for change. Meanwhile, Black faculty and faculty of color, who were experiencing their own trials with pandemic teaching, childcare, increased service obligations and mental fatigue from the political and racial unrest, were often called upon to contribute substantial time to the design and implementation of the “diversity” or “anti-racism” initiatives necessary to increase diversity and to create inclusive environments for their BIPOC students and faculty. Most of this labor discounted, if acknowledged at all. We offer recommendations for how law schools can help shift some of these burdens