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While some lawmakers explore a public health approach to drug use, others continue to pursue “tough on crime” sentencing laws.

There is increasing momentum in states and cities for a smarter, effective, and more compassionate approach to people who use drugs—one that is grounded in evidence of effectiveness.Kara Dansky, “Jail Doesn't Help Addicts. Let's Stop Sending Them There.,” ACLU, October 17, 2014.

A range of public health strategies exist that move away from traditional, abstinence-based approaches—and those that criminalize drug use—toward incorporating principles of harm reduction.Harm Reduction Coalition, “Principles of Harm Reduction,” Justice-system stakeholders have adopted such strategies at all stages of the criminal justice process—from prior to arrest through reentry. These include law enforcement-assisted diversion (LEAD) programs, medication-assisted treatment, distribution of naloxone, and syringe exchange programs.Leah Pope, Chelsea Davis, David Cloud, and Ayesha Delany-Brumsey, A New Normal: Addressing Opioid Use through the Criminal Justice System (New York: Vera Institute of Justice, 2017).  In 2017, five more cities were set to launch LEAD-based programs, and nearly 50 additional locations were developing or exploring programs.LEAD National Support Bureau, “LEAD: Advancing Criminal Justice Reform In 2017,” State lawmakers have expanded naloxone access laws and Good Samaritan laws.The Network for Public Health Law, Legal Interventions to Reduce Overdose Mortality (2017). Many of these same states, however, have also passed “tough on crime” laws to increase penalties for even low-level drug trafficking.German Lopez, “The New War on Drugs: Not Every State is Responding to the Opioid Epidemic with Just Public Health Policies,” Vox, September 13, 2017. In 2017, 16 states passed legislation that increased mandatory minimum sentences for heroin offenses, added fentanyl and comparable synthetic opioids to the list of drug schedules, and established new penalties for the manufacture, delivery, transport, and distribution of fentanyl.Florida HB 477 (2017); Illinois SB 639 (2017)Indiana HB 1406 (2017)Iowa SB 332 (2017)Kentucky HB 333 (2017)Maine LD 1246 (2017)Maryland SB 0539 (2017)Mississippi SB 2194 (2017)North Carolina HB 464 (2017)Rhode Island HB 5738 (2017)HB 5517A (2017)South Dakota HB 1041 (2017)Texas HB 2671 (2017)HB 1178 (2017)Utah HB 110 (2017); and Vermont HB 503 (2017). Louisiana’s criminal reform package passed in 2017 added a one-year minimum sentence for prescription opioids and rolled other minimums back to 2014 levels rather than independently re-examining them, effectively reinstating Louisiana SB 87 (2014).West Virginia passed three bills: HB 2329 (2017)SB 219 (2017)SB 220 (2017), and See also Lopez, “The New War on Drugs” (2017). Twenty states, including Colorado, Florida, Illinois, Kansas, Oklahoma, and Vermont, as well as the federal government, have already passed drug-induced homicide laws, allowing prosecutors to charge the person who provided drugs that resulted in an overdose death.Drug Policy Alliance, An Overdose Death Is Not Murder: Why Drug-Induced Homicide Laws Are Counterproductive and Inhumane, (New York: Drug Policy Alliance, 2017), 8 & appendix A. These new laws add to an already existing body of harsh drug laws that remain on the books. Such laws have the potential to continue the criminalization of drug use, perpetuate racial disparities in the criminal justice system, and increase the harms associated with drug misuse.