The American Constitution Society for Law and Policy is pleased to announce the release of Harvard Law & Policy Review (HLPR) Volume 11.2: Beyond the War on Drugs. Published twice annually, HLPR is the official law review of ACS and provides a forum for substantive debate between progressive legal scholars, policymakers and practitioners, with a focus on promoting scholarship with practical application to societal challenge.
See descriptions and links to the articles in the latest issue of HLPR below.
Senator Sheldon Whitehouse
Forty-five years after President Richard Nixon declared a war on drugs and identified drug use as “public enemy number one,” the policies and priorities associated with that war stand at a crossroads. In the Foreword to this edition, Senator Whitehouse describes the history of the war on drugs and the opportunities lost with approaches focused too narrowly on incarceration as a solution to the nation’s drug crises, articulating his hope that Congress and the states will continue to lead the way to commonsense, evidence-based drug policy.
Beyond the War: The Evolving Nature of the U.S. Approach to Drugs
Don Stemen chronicles federal and state responses to drug use and drug offenses preceding, during, and following the inception of the war on drugs. Stemen further contends that structure and determinacy, along with mandatory minimums, returned to drug-related sentencing after the late 1970s. The author concludes by looking at the short- and long-term effects of evolving views on specific drugs such as legal marijuana and opioids.
It’s Time to Rein in Employer Drug Testing
Stacy Hickox argues that current drug testing policies prioritize employers’ interests above employee privacy infringements. To rectify what she terms an “ad hoc approach,” Hickox advocates for a common approach in which testing would be limited to employees who are reasonably suspected of being impaired or in situations in which their impairment would cause substantial harm.
The Opioid Epidemic: Fixing a Broken Pharmaceutical Market
Ameet Sarpatwari, Michael S. Sinha, and Aaron S. Kesselheim
Ameet Sarpatwari, Michael S. Sinha, and Aaron S. Kesselheim explore the causes underlying the rising opioid epidemic. They argue that practices within the pharmaceutical market helped create and sustain the current epidemic of opioid over- and misuse, primarily through weak patenting standards, fraudulent advertising, and anticompetitive business practices. While the article focuses primarily on the opioid crisis in the United States, the authors argue that the challenges associated with prescription opioids reflect an overall failure of the pharmaceutical market.
Engaging Health Insurers in the War on Prescription Painkillers
Valarie Blake argues that the federal government must work harder to engage health insurance companies as partners in the war on prescription opioid abuse. The current regulatory system, according to Blake, focuses on physicians and pharmacies and fails to address the role played by insurers in the prescription opioid abuse epidemic.
Marijuana Appellations: The Case for Cannabicultural Designations of Origin
Ryan B. Stoa
Ryan B. Stoa argues that the legalization and regulation of marijuana does not necessarily compel a “Big Marijuana” commoditization narrative. The article concludes by exploring the benefits that the ACA model provides and its potential interaction with the parallel hemp market.
Forfeitures and the Eighth Amendment: A Practical Approach to the Excessive Fines Clause as a Check on Government Seizures
David Pimentel argues that civil forfeiture procedure has in some cases led to abuse and overreach by law enforcement. He outlines a formula that could be adopted to guide courts in the application of the Excessive Fines Clause in these cases. He argues that by drawing on the Sentencing Guidelines, a court can determine the seriousness of the offense, and then do a mathematical calculation to generate a ratio by which the excessiveness of a fine can objectively be assessed.
There’s No Place Like Home: Reshaping Community Interventions and Policies to Eliminate Environmental Hazards and Improve Population Health for Low-Income and Minority Communities
Emily A. Benfer and Allyson E. Gold
Emily Benfer and Allyson Gold analyze the relationship between policies governing healthy communities and housing and health outcomes for residents. They examine current federal, state, and local approaches to healthy housing policy, including interventions directed at individual housing units as well as the community at-large. They then offer recommendations to improve health outcomes for individuals and communities.
The Dangers of Zivotofsky II: A Blueprint for Category III Action in National Security and War Powers
Esam Ibrahim examines the effects of Zivotofsky II on executive national security and war powers. He argues that the unique features of Zivotofsky II combine to create dangerous precedent in the hands of a determined administration. He explores how the executive branch may use the decision in the future, arguing that the executive should resist the temptation to use the decision to expand its power and advocates strategies to defend against such use.
Emerging Adults in the Federal System: A Case for Implementing the Federal Youth Corrections Act
Emily Graham details the history of juvenile sentencing and argues that while the Supreme Court has demonstrated the importance of developmental neuroscience in cases like Graham v. Florida and Miller v. Alabama, Congress has failed to follow suit. Congress, she argues, should use developmental neuroscience as a tool to help devise a juvenile sentencing structure that is more just and more effective.