Racism in Local Drug Paraphernalia Laws: An Argument for Repeal

As many people are now aware, the modern “War on Drugs” is rooted in racism. Criminalization of people who use drugs is not a public health approach to ending drug-related harm; it certainly isn’t an effective one. Separating people who use drugs into those who use socially acceptable substances (caffeine, alcohol, melatonin) and those who use “illicit” ones (heroin, methamphetamine, rock or powder cocaine) is arbitrary and inhumane. As part of the effort to criminalize everything that has to do with people using drugs, the Drug Enforcement Administration (DEA) created the Model Drug Paraphernalia Act in the late 1970s. Most state paraphernalia laws that are still in existence nearly 50 years later were based on that model law. These laws criminalize objects and tools that are legally neutral — perfectly legal to have for most uses, but illegal to use with illegal drugs. This includes items we traditionally associate with drug use, such as syringes and pipes, as well as less obvious objects such as scales, spoons, and even balloons or duct tape.  

Many local jurisdictions also have their own drug paraphernalia laws. Some use the same language as their state’s law and the DEA model law. Others are steeped in stigma and discrimination against specific ways of using drugs. For example, some jurisdictions in North Carolina including Raleigh, Charlotte, Durham, and Greensboro, specifically prohibit the sale of “drug stems,” defined as “any object that facilitates the ingestion or inhalation of crack cocaine, crank methamphetamine or any other controlled substance.” Boston, Massachusetts is more explicit, prohibiting the sale and possession of “crack pipes.” These same jurisdictions do not specifically prohibit other items that may be used for less racialized drugs or less stigmatized drug intake methods.  

In the 1980s, the media  portrayed users of “crack” cocaine as Black people, despite the reality that “crack” users are more likely to be white. Disparities between the treatment of crack vs. powder cocaine in arrest, prosecution, and sentencing have resulted in disproportionate rates of incarceration for Black people.  Laws that punish the sale and possession of pipes for crack cocaine perpetuate these disparities.  

So, what should states and localities do to make their drug paraphernalia laws more just?  Repeal them in their entirety. It is possible — Minnesota did it on the state level in the summer of 2023 and Lansing, Michigan repealed its local paraphernalia law in 2021. Drug paraphernalia laws stand in the way of evidence-based, common-sense approaches that respect the dignity and autonomy of people who use drugs. They do not prevent overdose or increase access to treatment; they only increase racial disparities in incarceration and give law enforcement officers another tool to harass those who are already struggling. Criminalization of anyone, including people who use drugs, generally leads to worse health outcomes for the individual. Repeal would improve the lives of people who use drugs by reducing at least one threat of criminalization.  If fines or imprisonment worked to change behaviors and cure substance use disorders, the War on Drugs would have been won a long time ago. It’s time for every jurisdiction to repeal these harmful laws. 

This post was written by Ashleigh Dennis, Staff Attorney, Harm Reduction, Network for Public Health Law. 

Image courtesy of Smokeworks.

The Network promotes public health and health equity through non-partisan educational resources and technical assistance. These materials provided are provided solely for educational purposes and do not constitute legal advice. The Network’s provision of these materials does not create an attorney-client relationship with you or any other person and is subject to the Network’s Disclaimer. 

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.