As COVID-19 dominates the news, the opioid crisis rages on unabated. The governmental response has been largely incoherent, as a wide-ranging host of criminal and civil initiatives pepper the national landscape. This Article discusses the current state of play in addressing the opioid epidemic, identifying the pros and cons of each approach, and concluding with recommendations for the best path forward. This Article also places this debate in the context of disability rights theory, an important yet heretofore ignored perspective, as well as therapeutic jurisprudence.
The COVID-19 crisis gripping our nation dominated the news cycle throughout the spring and summer months of 2020. In response to the public’s unwavering interest in this topic, cable news outlets scrambled to meet the demand for coronavirus updates as huge numbers of home-bound consumers tune in regularly for updates. The social justice protests occurring across the country following the death of George Floyd in Minneapolis, Minnesota, occupied much of the remaining bandwidth, relegating other potentially newsworthy stories to the sidelines.
The opioid crisis was among the casualties of the media domination of the COVID-19/social justice protest juggernaut. Before early 2020, coverage of the meteoric rise in opioid-related deaths was widespread. The fact that we hear less about opioids today might suggest to some that the crisis has abated. Sadly, nothing could be further from the truth. Deaths from opioid overdose have not only continued throughout 2020—they appear to be rising. The federal Overdose Detection Mapping Application Program reported a year-to-year increase in suspected overdose deaths in 2020, with 18% in March, 29% in April, and 42% in May, with some jurisdictions skewing even higher. Experts attribute the rise to the stress and isolation associated with the pandemic and the resultant depression that can collectively drive vulnerable individuals to drug or alcohol abuse.
As the opioid epidemic rages on, state, local, and federal governments struggle to identify the best path forward in addressing the crisis. A patchwork of programs and initiatives have emerged nationwide that vary in participants, procedures, and underlying philosophy. This Article explores this divergent programmatic response to the opioid crisis, discussing the advantages and disadvantages of each option. Part I describes where the opioid epidemic currently stands in the era of COVID. Part II defines opioid use disorder. Part III addresses the prevailing criminal justice approach to managing opioid abuse, which is currently administered mostly through the nation’s drug courts. Part IV explores alternatives to the drug court model, focusing on mental health courts and involuntary psychiatric commitment, with a discussion from the perspective of disability rights, which is a connection that has received little attention from legal scholars thus far. Part V introduces laudable initiatives presently underway across the country that vindicate “restorative justice” by addressing concerns about coercion, stigma, and dignity in response to opioid abuse. Part VI offers recommendations for best practices going forward, both to save the lives of persons addicted to opioids and to foster long-term recovery for those caught in the grip of this pernicious, debilitating disease.