The Case for the Decriminalization of Drugs

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Abstract

The United States incarcerates more of its citizens than any other country in the world.  Of those incarcerated, a shockingly disproportionate number are Black men.  Section I of this analysis explores how United States drug policy has evolved as a means to exercise racial control by mass incarceration under the guise of the so-called “war on drugs”.  The problem is explored from various ideological perspectives and within the ethical frameworks from which drug policy has developed.  Who gains and who loses from current policy is discussed as a means to understand how the policy persists.  Historical and symbolic racism are offered as root causes of the social problem.  In Section II of this analysis, current trends in drug policy are explored with particular emphasis on drug decriminalization and legalization.  Drug policy reforms in Portugal, Colorado, Washington, and Seattle, including use of harm reduction strategies, are offered as possible frameworks for social advocacy and reform.  A shift away from a criminal justice paradigm and towards a model of public health in drug policy is recommended.

(This article was completed in April 2014 and submitted by the Site Administrator in partial fulfillment of the Master of Science in Social Work at the Kent School of Social Work, University of Louisville)

TABLE OF CONTENTS

Section I – Social Problem Analysis
Causal Analysis
Ideological and Ethical Analysis
Gainers and Losers Analysis
Looking Ahead: Policy Considerations

Section II – Advocacy Action Plan
Trends in Current Policies and Programs
Moving Away from the Criminal Justice Paradigm
The Portuguese Case Study
Harm Reduction Strategies
The Legalization Debate
Considering Opposing Views
Moving Forward with Reform
Gathering Evidence for Evaluation and Advocacy
Conclusions and Recommendations

References

Section I – Social Problem Analysis

One of government’s most intrusive powers is its ability to deprive citizens of their liberty through imprisonment.  It should come as a great concern, therefore, that the United States incarcerates more of its citizens than any country in the world.  By the end of 2012, there were 2,228,400 persons incarcerated in jails and prisons in the United States (Glaze & Herberman, 2012) outpacing the more populous nation of China with 1.5 million of its citizens behind bars, and Russia with its 890,000 inmates (Pew Center on the States, 2008).  The U.S. is also the global leader in rate of incarceration ahead of nations like Iran and South Africa (Pew Center on the States, 2008).  With an estimated 1 in 108 adults in jail or prison in this country (Glaze & Herberman, 2012), the United States has caught the attention of a number of global humanitarian organizations including Human Rights Watch and the United Nations Human Rights Committee.  For reasons that will be detailed more fully herein, these organizations have issued statements condemning as a violation of human rights the overzealous use of incarceration in the United States.  Of even greater concern, however, is the fact that a shockingly disproportionate number of persons incarcerated in this country are Black men.  While an average of 1 in 30 males between the ages of 20 and 34 is in prison, for Black men the number rises to an alarming 1 in 9 (Pew Center on the States, 2008).  Blacks are 8 times more likely to go to prison as Whites (Forman, 2010) and 13 times more likely than White men to be incarcerated on drug charges (Moore & Elkavich, 2008).  In 10 states, the incarceration rates for Blacks are 26 to 57 times that of White men (Moore & Elkavich, 2008).  The purpose of Section I of this paper is to explore how, in the age of colorblindness, that Black men could be systematically targeted for control and denied their liberty under the guise of public protection. [BACK TO TOP]

Causal Analysis

The story of mass incarceration is best understood by examining the sociopolitical context of U.S. crime policy in general, and drug policy specifically, as it has emerged over the past 45 years.  Looking to escape the oppression of Jim Crow, African Americans emigrated from the South in huge numbers to the industrial centers of the Midwest and Northeast (1.5 million from 1910 through 1930, and another 3 million from 1940-1960).  Instead of freedom, however, they found restrictive covenants that forced them into what Wacquant (2000) describes as the ‘Black Belt’ “which quickly became overcrowded, underserved, and blighted by crime, disease, and dilapidation” (p. 381).  Beginning in the late 1960’s, a number of economic forces, including the shift from an urban industrial economy to a suburban service economy, rendered a large segment of the working class in the ‘Black Belt’ as unneeded (Wacquant, 2000).  Politicians characterized the ensuing breakdown of social order in the inner city as chief among social concerns which Wacquant (2000) describes as a “euphemism for the patent incapacity of the dark ghetto to contain a dishonored . . . population henceforth viewed as not only deviant . . . but downright dangerous in light of the violent urban upheavals of the 1960’s” (p. 384).  Compounding matters, as the baby boomers became adolescents there was a surge of young men into the population which occurred at the same time Black men were experiencing sharp increases in the rate of unemployment (Alexander, 2012).  Unfortunately, these demographic and economic factors were never given serious consideration in the public debate on crime.  Instead, those who fought against civil rights effectively shifted the focus of the debate from social reform to crime and punishment by capitalizing on public anxiety associated with ghetto revolts and racial disorder (Weaver, 2007).  According to Weaver (2007) what occurred in response to civil rights victories was a “frontlash” described by her as “the process by which formerly defeated groups may become dominant issue entrepreneurs in light of the development of a new issue campaign” (p. 230).  By effectively linking the issue of crime and racial discord, conservatives forced liberals to abandon efforts to deal with root causes and trapped them between appearing soft on crime or excusing riot-related violence (Weaver, 2007).  Along these lines, Alexander (2012) argues that racial inequality has been maintained in large part due to the ability of the conservative political elite to appeal to the racism and vulnerability of lower-class Whites.  In the context of the civil rights movement and frontlash theory, this is exemplified by the fact that Black men born after the passage of the Civil Rights Act of 1964 and the Voting Rights Act are more than twice as likely to go to prison as a Black man born in the 1940’s (Forman, 2010).

While it is true that in the early 1970’s America was confronted by rising rates in crime, this had been the case for more than a decade before the issue took center stage in American politics (Weaver, 2007).  Instead of adopting policies that addressed root causes, policy makers instead chose a “get tough” approach for a number of reasons including the politicization of the issue of crime (eg. Nixon’s 1968 appeal for “law and order”); the American culture of individualism (which makes it easier to conceptualize solutions that punish individuals); and a growing conservative political climate (Mauer, 2001).  It must be noted here that rising crime rates only partially explain increases in rates of incarceration especially considering that alternatives existed to the primarily punitive response that was chosen.  President Nixon left no doubt that the policy which emerged was far more about race than it ever was about crime.  Block & Obioha (2012) cite a New York Times article in which President Nixon is alleged to have said, “You have to face the fact that the whole problem is really the Blacks.  The key is to devise a system that recognizes this while not appearing to”.  It was within this context that Congress passed the Comprehensive Drug Abuse Prevention and Control Act (CDAPCA) in 1970 followed by President Nixon’s public declaration that drugs were “public enemy number one” in June 1971 (Block & Obioha, 2012).

With the shift in focus to crime, starting in the mid-1970’s, sentencing policy began to emphasize punishment, incapacitation, and general deterrence rather than rehabilitation (Weaver, 2007).  The new sentencing regime sought to reduce crime not by changing underlying behavior but by removing individuals from the community for longer periods of time (Weaver, 2007).  Previously, U.S. sentencing policy had been characterized by indeterminate sentencing with an emphasis on rehabilitation – an approach that was attacked by conservatives who thought that criminals should be treated more harshly, and coincidentally, by liberals as well who viewed broad judicial discretion in sentencing as an open invitation to discriminate on the basis of race (Mauer, 2001).  Ultimately, both sides endorsed determinate sentencing and between 1974 and 2005, the number of federal and state inmates increased from 216,000 to 1,525,924 (Weaver, 2007).  It should be noted that even though Nixon is rightly criticized for his views on race and crime, the CDAPCA which he signed into law was progressive in several respects.  The law abandoned mandatory minimum sentencing, reduced simple possession to a misdemeanor, and established five schedules for drugs based on potential for abuse and accepted medical use (Ferraiolo, 2007).  Though the budgets for law enforcement increased and remained the primary focus of drug control policy, so too did expenditures for prevention, treatment, and research during the Nixon, and ensuing Ford, and Carter administrations (Ferraiolo, 2007).  Nevertheless, the seeds of racism from which these policies had sprung were firmly planted – the political fruit of which would be harvested for many years to come.

President Reagan announced the current drug war in 1982 at a time when less than 2 percent of the population viewed drugs as a major problem and at a time when illicit drug use was actually on the decline (Alexander, 2012).  However, by 1989, 64% of those polled thought that drugs were the most significant problem in the United States (Alexander, 2012).  In essence, public concern about the drug problem was driven by the politicians in the White House and Congress rather than informing policy decisions.  And rather conveniently, getting tough on crime fit well within Reagan’s overall political agenda that targeted welfare recipients, immigrants, and other marginalized groups (Mauer, 2001).  It was therefore under intense public and political pressure, that Congress passed antidrug legislation shifting the focus towards law enforcement, interdiction, and punishment essentially reversing the progressive policies of the 1970’s.  These laws which were enacted successively in in 1984, 1986, and 1988, increased penalties for violating federal drug laws, reinstituted mandatory minimum sentencing, and expanded the government’s ability to seize property through forfeiture (Ferraiolo, 2007).  The partisan consensus that emerged in response to crime in the 1970’s culminated with these draconian drug law reforms “with the White House and members of Congress from both parties jockeying to have a leadership role on policy development . . . [and] avoid embarrassment on the issue as elections loomed” (Ferraiolo, 2007, p. 161).  According to Mauer & King (2007), the aim of the mandatory sentencing structure crafted in the 1980’s was to create the proper incentives for the Department of Justice to direct its most intense focus on major traffickers who were operating manufacturing or distribution networks, and for the federal government to bring its ample resources to bear on sophisticated drug selling enterprises. Notwithstanding these tenable intentions, the legislation had the effect of targeting low-level drug users.  Among powder cocaine defendants, one in three was categorized as a courier or mule, while only 1 in 13 was classified as a high-level dealer (Mauer & King, 2007).  Similarly, among crack cocaine defendants, 60% were street-level dealers or low-level assistants (Mauer & King, 2007).  The state prison system likewise houses many more low-level offenders than it does drug kingpins.  Among drug offenders in state prison, 58 percent had no history of violence or high-level drug activity, 21 percent were first time offenders, and 43 percent were serving time for simple drug possession (Human Rights Watch, 2008).  Between 1980 and 2006, arrests for drug offenses more than tripled from 581,000 in 1980 to 1,889,810 in 2006 (Human Rights Watch, 2008), while budgets for drug law enforcement grew from $855 million to more than $7.8 billion in 1993 (Ferraiolo, 2007).  Though limiting judicial discretion may have been intended by some as a means to reduce the impact race may have in the criminal justice process, mandatory sentencing increased punishments for a number of traits and behaviors that are strongly correlated with race such as living in public housing or possessing a weapon (Schlesinger, 2011).  As such, these laws actually served to increase racial disparities in incarceration through what were perceived as colorblind mechanisms.

During this time, cocaine emerged as the number-one law enforcement priority surpassing marijuana and heroin as primary concerns.  This occurred in part due to the high profile cocaine-related death of Boston Celtic draft pick, Len Bias, and media sensationalism associated with the emergence of crack cocaine in inner cities (Ferraiolo, 2007).  In 1985, in an effort to galvanize political support for the war on drugs, the Reagan administration hired staff to publicize the emergence of crack cocaine, and soon thereafter the media was awash with images of Black “crack whores”, “crack dealers” and “crack babies” (Alexander, 2012).  Racial bias in media coverage of crime is well documented with Blacks portrayed in disproportionate numbers as offenders, crime suspects, and law breakers (Green, Staerkle & Sears, 2006) leading to what Alexander (2012) refers to as the “criminalblackman” cognitive schema.  Furthermore, there is clear evidence that priming of media stereotypes can lead to stereotype application for dispositional attributes towards Blacks.  The effects include both interpersonal cognitive and affective responses with the effect of decreasing support for public policies that directly assist Black persons and increased support for punitive criminal policies (Johnson, Olivo, Gibson, Reed, & Ashburn-Nardo, 2009; Percival, 2010).  In light of the well-orchestrated media campaign, the choice to focus enforcement efforts against inner city crack dealers and crack users cannot be divorced from the fact that the drug is associated with urban Blacks (Human Rights Watch, 2008).  The Anti-Drug Abuse Act of 1986 and the Anti-Drug Abuse Act of 1988 required the imposition of a 5 year sentence for possession of as little as 5 grams of crack cocaine with every state following the lead of the federal government in adopting some form of harsh mandatory minimum sentencing (Mauer, 2001).  As a result, the prison population exploded.  Today there are nearly 500,000 persons in prison or jail for drug offenses (possession or trafficking) as compared to 41,100 in 1980 – an increase of 1,100 percent (Alexander, 2012).  This number grows considerably when it is considered that many crimes that are not characterized as drug offenses are nevertheless drug-related (such as thefts committed to support one’s drug habit or assaults committed while under the influence) (NIDA, 2012).  However, an analysis of drug-use patterns among racial and ethnic groups does not reveal disproportionalities that would justify the racial disparities in imprisonment.  According to Moore & Elkavich (2008), rates of illicit drug use are roughly the same among Whites (7.4%), Blacks (7.2%) and Latinos (6.4%).  Whites are more than 5 times as likely as Blacks to have used marijuana, and 3 times more likely than Blacks to have used crack cocaine (Moore & Elkavich, 2008).  Whites constitute 72% of illicit drug users as compared to 15% of Blacks, and among cocaine users, Blacks constitute 22 percent of current users, but they comprise 79 percent of arrests for cocaine possession (Human Rights Watch, 2008).  More generally, estimates suggest that 13 percent of Blacks may be drug offenders, but they constitute 35.1 percent of all drug arrests nationwide (Human Rights Watch, 2008).  According to Human Rights Watch (2008), Black men were five times more likely to go to jail for drug-related crimes as White men in the 1980’s.  These disparities continued under the Clinton administration whose policies resulted in the largest increases in federal and state inmates of any president in U.S. history (Alexander, 2012).  Indeed, every president since Nixon has continued and endorsed the U.S. war on drugs.

As previously discussed, at the inception of the drug war, blue-collar factory jobs had vanished from inner-city communities.  These areas were in economic collapse.  Nixon et al. (2008) argue that since the 1970s, “in neoliberal capitalism the carceral continuum between ghetto and prison has served to contain segments of the African American community that may never again be needed as cheap labor and therefore are devoid of economic utility and political pull” (p. 25).  Mauer (2001) notes that a strong correlation exists between widening income disparity in the United States and rates of incarceration which likewise coincides with the drying up of the manufacturing economies of the Midwest in the 1970’s.  In fact, when researchers control for joblessness, the differences in rates of violent crime between black and white men disappear (Alexander, 2012).  This relationship has been described as a “negative reward” for those who are not successful in a competitive social structure (Mauer, 2001).  The more stratified and divided a society, the easier it becomes for the powerful to impose punishment on those who are disadvantaged.  Due to patterns of housing and unemployment, many African American communities are spatially and otherwise segregated from society-at-large and are recipients of criminal punishments at shockingly disproportionate rates (Mauer, 2001).  According to Forman (2012), “[o]ur society creates criminogenic conditions in our sprawling urban ghettoes, and then acts out of rituals of punishment against them as some awful form of human sacrifice” (p. 997).  Unlike slavery, Jim Crow, and the ghetto of the mid-century, the current system of mass incarceration does not carry out what Wacquant (2000) describes as the “positive economic mission of recruitment and disciplining of the workforce” but serves an extra-penological purpose that seeks to warehouse apparently disposable elements of the Black underclass.

These minority neighborhoods remain the front in the war on drugs with proponents of the effort claiming that it is necessary to save these communities from the scourge of addiction and drug trafficking; and the accompanying violence, nuisance and disorder.  Most resources devoted to communities of color are targeted for law enforcement intervention rather than prevention and treatment, and the resulting resource deprivation leads to magnified negative effects of drug abuse and sales in these neighborhoods (Mauer & King, 2007).  As a practical matter, drug law enforcement is focused on low-income, minority neighborhoods because of the number of open air markets and the ease of “buy and bust” operations in these areas as opposed to the suburbs where such transactions usually take place behind closed doors. (Human Rights Watch, 2008).  However, the visibility of the drug trade in the inner city is not a valid indicator of drug use and dependency in these neighborhoods and contributes to the false ideas regarding race, drug use, and criminal behavior (Mauer & King, 2007).  Furthermore, the stepped up enforcement in these areas make it more likely that Black men will face sentencing enhancements because they are invariably situated near protected public spaces such as public schools or public housing (Schlesinger, 2011). Practical considerations aside, the principal reason drug laws are enforced in urban areas is because Blacks are more likely to live in cities than are Whites – U.S. Census figures indicate that 51.5% of blacks live in a metropolitan area compared to 21.1% of Whites (Human Rights Watch, 2008).

There are serious consequences to rounding up huge numbers of non-violent offenders, removing them from their families and communities, incarcerating them, and then returning them to their neighborhoods with few if any resources and support.  Many of these communities provide limited access to adequate education, training and employment, and are fraught by an unstable economic atmosphere that is often exacerbated by addiction (Mauer & King, 2007).  Publicly funded treatment facilities are scarce and often burdened by long waiting lists.  The lack of resources in this area increases the likelihood of substance use relapse and the attendant consequences (Mauer & King, 2007).  Imprisonment puts these individuals in the impossible situation in which they are neither able to provide for their families nor retain emotional ties with loved ones (Moore & Elkavich, 2008).  Children are left without parents, adolescents come to see prison as a normal part of growing up, and countless numbers of persons are deposited back into these communities needing employment and other support (Forman, 2010).  Because prisons are typically located a good distance from the cities where inmates are from, the cost of transportation and accommodations make visitation with friends and loved ones prohibitive.  As a result, families often break down and marriages do not often survive lengthy incarceration (Clear, 2007).  Ultimately, communities are deprived individuals who may otherwise contribute to the workforce and other elements of community life (Moore & Elkavich, 2008).

Once released from prison, individuals find it difficult if not impossible to reintegrate into society.  Anderson (2012) argues that the current system of mass incarceration depends not so much on prison time as it does on the prison label.  At yearend 2012, the combined U.S. correctional system supervised approximately 6,937,000 persons (Glaze & Herberman, 2012), and in major cities as many as 80 percent of young Black men have criminal records and are now subject to what Anderson (2012) refers to as “legalized discrimination”.  Once released, these persons are

barred from public housing by law, discriminated against by private landlords, ineligible for food stamps, forced to ‘check the box’ indicating a felony conviction on employment applications for nearly every job, and denied licenses for a wide range of professions, people whose only crime is drug addiction or possession of a small amount of drugs for recreational use find themselves locked out of the mainstream society and economy—permanently. (Anderson, 2012, p. 94)

Facing what Nixon (2008) describes as “civic death” comprised of poor employment prospects, homelessness, and social stigma, many find themselves re-incarcerated – some for new crimes, but many for technical violations of parole (such as missed curfew or failed drug screens).  Ravaged by the cycle re-imprisonment of valuable members of society, minority communities have reached a tipping point which Nixon (2008) describes as “the juncture at which state policies that cause mass incarceration incapacitate neighborhood social networks to the point where the people of these communities are seen as nothing more than imprison-able” (p. 25). [BACK TO TOP]

Ideological and Ethical Analysis

Percival (2010) observes that conservatives tend to view criminal behavior as a matter of personal choice and generally support policies which focus on deterrence and incapacitation – a position that is fueled by the need to control a marginalized underclass of citizens that threaten economic and political interests of the powerful elite.  He notes that after the civil rights movement, conservative Republicans effectively used crime and punishment as a means to build a coalition between wealthy fiscal conservative and middle to lower class white conservatives who otherwise had little else in common.  Conservatives appealed to racial hostility by linking street crime and other social ills to the “Black underclass” and enacted policies which garnered votes while ensuring that more Black Americans would be incarcerated (Percival, 2010).  On the other hand, liberals tend to view criminal behavior as arising from structural impediments and favor preventive policy initiatives.  However, the normal lines of political ideology are often blurred in the area of drug control policy.  For example, in 2004 Montana voters supported the re-election of George W. Bush while at the same time approving a medical marijuana initiative by 62 to 38 percent (Ferraiolo, 2007).  In addition, libertarians have broken with traditional conservatives on several issues related to crime and drug policy enforcement including the militarization of domestic policing.  Until the 1980’s, the use of SWAT teams and other paramilitary units were confined to volatile, high-risk situations such as bank robberies or hostage situations.  Now, however, they are used for the routine execution of drug warrants, even those related to simple marijuana possession (Balko, 2006).  The militarization of the civilian police force is problematic because the military and police have two traditionally different tasks.  The police are to protect and serve, keep the peace, and protect the rights of individuals as opposed to the military whose purpose is to seek out, overpower, and destroy the enemy (Balko, 2006).

Ultimately, utilitarian cost-benefit analyses may prove most influential in bridging the political and ideological divide.  Though some argue that reductions in rates of crime are proof that the “get tough” measures have worked, the question at this point in the debate is not whether prisons have a place in American society but whether it makes sense to expand the prison population indefinitely.  According to Warren (2007), overreliance on incarceration is of limited and diminishing effectiveness as a crime-control strategy.  On the other hand, research over the past 20 years demonstrates that treatment and rehabilitation reduces recidivism; that alternatives to imprisonment can be less expensive and more effective in reducing crime; and even in cases where recidivism is not reduced, it is not increased and provides a cost-effective alternative to imprisonment without compromise to public safety (Warren, 2007).  Studies have shown that a 10% increase in the rate of incarceration will only result in a 2%-4% reduction in the crime rate, and that the crime-avoidance benefit of incarceration actually reverses after a certain tipping point with higher incarceration rates resulting in higher crime rates (Warren, 2007).  One study revealed that the cost-benefit ratio for incarcerating drug offenders in Washington turned negative costing taxpayers more to continue to incarcerate than would be saved in averting victimization and other public costs associated with drug crime (Warren, 2007).  Furthermore, the war on drugs has done nothing to reduce demand for drugs.  In 1991-1993, an average of 5.8 percent of persons surveyed had used an illicit drug in the previous month (Human Rights Watch, 2008); in 2012, this number had grown to 9.2 percent (SAMHSA, 2013).  With these considerations in mind, even conservatives are beginning to reconsider whether funding more prisons to incarcerate an ever-growing number of low-level offenders makes sense particularly in light of exploding costs.  In 2008, spending on corrections topped $49 billion – up from $12 billion in 1987 with an annual average operating cost per state inmate of $22,650 (Pew Center on the States, 2008).   Lawmakers find themselves in the unenviable position of having to increase taxes or make cuts to programs like transportation, education, and healthcare.  As a result, many states have begun to implement policies that save money by diversifying sanctioning options while still protecting the public (Pew Center on the States, 2008).  While many of the current reforms have come in response to state budgets that are bursting at the seams, the racial ideology that gave rise to the problem in the first instance remains in place.  Simply put, an upturn in economic fortune or a rise in crime rates could quickly result in a return to punitive policies that target minorities in disproportionate numbers (Alexander, 2012).

But in the arena of criminal justice, cost-benefit analysis is but one element that drives policy.  For example, many believe that principles of vengeance and retribution should inform policymaking in this area (Mauer, 2001).  Conversely, principles of restorative justice which were once the province of religious-based reformers has made substantial headway in recent years.  Mauer (2001) argues that one need not favor victims or offenders to endorse its precepts, and therefore restorative justice may provide conservatives and others a way to endorse reforms without appearing “soft on crime”.  Invoking John Rawls’ theory of justice, others believe it is morally wrong to arrest, prosecute, and incarcerate politically powerless groups at grossly disproportionate rates (Forman, 2010).  This view is consistent with the primary mission of the social work profession which is to enhance human well-being and help meet the basic human needs of all people, with particular attention to the needs and empowerment of people who are vulnerable, oppressed, and living in poverty (NASW, 2013).  The NASW takes the position that the response to drug-related arrests is best dealt with from a public health-disease management approach (including psychosocial treatments, medications, alternatives to incarceration, and harm reduction)  as opposed to a strictly criminal justice response (NASW, 2013).  Nixon et al. (2008) argue that in many cases prison has come to replace state welfare and serves as a means to avoid managing such problems as homelessness, drug abuse, mental illness, illiteracy, and poverty.  Poverty compounds the challenges faced by adults who are arrested, incarcerated, and released and it is often the antecedent to educational failure, poor employment prospects, and inadequate family and social supports.  The NASW supports “ongoing advocacy to address issues surrounding and leading to disproportionate rates of incarceration for individuals of racial or ethnic minorities” (NASW, 2012, p. 324). [BACK TO TOP]

Gainers and Losers Analysis

The result of U.S. crime policy and drug enforcement is a system of mass incarceration that marginalizes large segments of the Black community, segregates them physically in jails and prisons, and then authorizes discrimination against them.  As it turns out, these injustices are fueled by policy which provides huge cash grants to local police departments so long as they make execution of the drug war a top priority.  Local policing was initially federalized through the Byrne Justice Assistance Grant Program and other federal law enforcement block grants.  States disburse these funds to local police departments based on the number of drug busts with each arrest netting the local police department an average of $153 in state and federal funding (Balko, 2006).  Additionally, liberal forfeiture laws have greatly influenced local police who were granted permission to keep for their own use cash and property seized in connection with drug policy enforcement (Alexander, 2012).  Federal asset forfeiture legislation allows the seizure of assets deemed “drug-related” which are often surrendered to local law enforcement even though the suspect may never be charged with a crime (Mauer & King, 2007).  This system creates an incentive for police to favor drug law enforcement over other forms of crime.  Law enforcement is not the only entity that stands to gain from maintenance of the status quo.  The prison industrial complex and the more than 700,000 prison and jail guards, administrators, and service workers represent a powerful political constituency that would stand to lose significantly and would likely oppose any scaling down of the system (Alexander, 2012). Additionally, drug dealers and other criminal entrepreneurs benefit from U.S. drug policy that creates vast black markets characterized by inflated prices and huge profits (Rolles, Murkin, Powell, Kushlick, & Slater, 2012).

While a number of entities share a pecuniary interest in the maintenance of the status quo, there are many others that face considerable losses.  As previously discussed, the current policy seriously burdens individuals, their families, and their communities in a number of ways.  While this discussion need not be repeated here, it is worth noting that society loses in a number of other significant ways:

  • By incarcerating large numbers of non-violent offenders, especially drug offenders, society is rendered less safe because these individuals become more dangerous after being exposed to violent offenders in prison (Forman, 2010).  Furthermore, the diversion of law enforcement resources to low-level offenders has resulted in less focus on more serious crimes and fewer arrests of serious offenders (Mauer & King, 2007).
  • The current system exacts an enormous toll on the legal system, and in particular, public defenders that are overwhelmed by enormous caseloads.  Blacks are more likely to be convicted because they often must rely on legal assistance from overworked and underpaid public defenders with few resources to mount much more than a minimal defense.  Persons with public defenders are more likely to be sentenced to a term of imprisonment (Human Rights Watch, 2008).
  • Judges are also losers in the legal context.  The most frequent complaint from state trial judges hearing felony cases include the high rates of recidivism, the ineffectiveness of current practices to reduce recidivism, the lack of sentencing alternatives, and restrictions on judicial discretion in sentencing which limit the ability to impose fair and proportionate sentences (Warren, 2007).  Complicating matters further is the fact that the U.S. Supreme Court has sharply curtailed the protections promised by the 4th Amendment against illegal searches and seizures (Alexander, 2012), and it has made challenging laws based on disparate racial impact virtually impossible (Schlesinger, 2011).
  • U.S. Census and other population surveys base their numbers on where one currently lives rather than where one ordinarily resides.  As such, population counts in rural areas where prisons are often located are artificially bloated whereas those numbers are shrinking in urban areas.  The result is a distorted census which has negative ramifications for cities in terms of allocation of resources and political redistricting (Moore & Elkavich, 2008).
  • Poor Whites are now finding themselves caught in the crossfire of the drug war.  The increase in the rate of incarceration of White drug offenders over the past decade is likely a reflection of stepped-up enforcement efforts of manufacturing and possession of methamphetamine.  In 1994, an estimated 3,825,000 people age 12 and older had used methamphetamine for nonmedical purposes during their lifetime.  By 2006, this number had soared to 14,206,000 including 1,889,000 who had used it in the past year.  Data indicate that Whites use methamphetamine at far greater rates than do Blacks (Human Rights Watch, 2008). [BACK TO TOP]

Looking Ahead: Policy Considerations

In 1973, the final report of the National Advisory Commission on Criminal Justice Standards and Goals recommended that “no new institutions for adults should be built . . . the prison, the reformatory, and the jail have achieved only a shocking record of failure” (Mauer, 2001, p. 10). (Mauer, 2001).  How is it then, more than 40 years after this finding, that we find ourselves in the midst of a human rights crisis?  While a number of causal factors have been presented in this analysis, the answer may ultimately lie in what is described as symbolic racism – a less flagrant though no less insidious form of racism which “manifests itself in beliefs that discrimination no longer poses a major problem, that Blacks have inferior work ethics, that they have had undeserved advantages, and that they are too demanding” (Green, 2006, p. 438).  Symbolic racism stems from both negative affect and the belief that Blacks violate traditional values of self-reliance, the Protestant work ethic, and respect for authority.  Blacks are perceived as “threatening a social order based on conformity to a broad value-consensus” (Green, 2006, p. 438).  Symbolic racism theory suggests that present day racism is expressed through lack of public support for policies that benefit disadvantaged groups (Johnson et al., 2009), and it is strongly associated with support for punitive criminal policies (which seek to exclude offenders from society) and opposition to preventative policies (Green, 2006).  Further bolstering the effect of symbolic racism are criminal justice policies that are race neutral on their face which allow Whites to believe in the fairness and equality of the system.  Thus, the disproportionate number of racial minorities who are incarcerated then reinforces the belief in the genetic or cultural criminality of Black people among dominant group members (Schlesinger, 2010).  The function of race neutral policies, as Schlesinger (2011) observes, is to foster self-blame among the minority groups themselves, and to legitimize and stabilize racial inequality.  Similarly, the public success of Blacks such as Oprah Winfrey and Barack Obama bolster the appearance of fairness.  Indeed, Alexander (2012) argues that mass incarceration depends on Black exceptionalism.  Nevertheless, in crafting policy and advocacy strategies to address this problem, some would argue it is unwise to place the issue of race in the forefront of the discussion.  As President Obama (2006) observed in Audacity of Hope

[r]ightly or wrongly, white guilt has largely exhausted itself in America; even the most fair-minded of whites . . . tend to push back against suggestions of racial victimization – or race-specific claims based on the history of race discrimination in this country. (p. 997)

On the other hand, Alexander (2012) warns that any reform efforts which ignore the root cause of racism will be unsuccessful because, as it has in the past with slavery, Jim Crow, and the urban ghettos, the system of control will re-emerge in a new form.  Nixon et al. (2008) concur with this sentiment noting that while prisoner re-entry programs have gained the growing support of conservative politicians, there is concern that these efforts may merely be an extension of current system of racial control disguised as meaningful reform.  Moving forward, the difficult question which must be resolved is whether to tinker with a system that is fundamentally flawed and deeply broken, or whether a broad coalition can be built to effect major reform and fundamental change. [BACK TO TOP]

Section II – Advocacy Action Plan

The so-called “war on drugs” and the resulting mass incarceration of Black men is a human rights crisis of mass proportion in the United States.  As social justice advocates plan how to move forward to address this issue, the obvious target of reform is drug policy.  In Section I, the social problem of mass incarceration was explicated by uncovering the covert objectives behind drug policy which are rooted in historic and symbolic racism and a desire to control Black men.  While it is important to understand how these policies have arisen, it may be difficult to build broad alliances by solely arguing for the cause of racial justice.  As previously noted, President Obama has warned that, for the most part, White guilt has been exhausted (Obama, 2006 ) and replaced by insidious, disguised forms of racism which depend on Black exceptionalism.  If this is true, though the goal of addressing racial disparities may be held in mind, it will be necessary to frame the debate in more politically palpable terms.  As such, the purpose of Section II this paper shall be to describe why shifting drug policy from one that relies on punishment and criminal enforcement to one of public health and treatment is in the best interest of society.  Exploration of current policies and programs will reveal trends away from a criminal justice paradigm.  Then, the merits of decriminalization and legalization of drugs as a possible framework for policy reform will be considered.  Opposing views will be addressed, and key stakeholders for building coalitions for reform will be identified.  Ultimately, recommendations for drug policy reform at national, statewide, and local levels will be set forth as a template for creating positive change. [BACK TO TOP]

Trends in Current Policies and Programs

In the face of exploding prison populations and the resulting budgetary pressures, many states have begun to enact sentencing reforms in an effort to save money.  For example, in the face of a 260 percent jump in prison population since 1985, the Kentucky General Assembly enacted the Public Safety and Offender Act in 2011.  Though this legislation has a number of key components, its main purpose is to divert low-level, non-violent offenders away from prison and into a system of community supervision (Pew Center on States, 2011).  Other programs such as drug courts and re-entry initiatives similarly provide intensive community supervision together with other services as a means to cut prison populations and reduce recidivism while addressing the problem of the rising costs of imprisonment.  At the national level, this policy trend is reflected in recent federal legislation reducing the 100 to 1 disparity in crack and powder cocaine mandatory sentencing to 18 to 1 (Baker, 2010).

However, for reasons which will be set forth more fully herein below, while these policies might save national and state governments the expense of mass incarceration, they are subject to the same racial bias that plagues drug policy in the first instance.  Nixon et al. (2008) observe that “[w]hen personal transformation is a disciplining or policing strategy, a required exercise, or a marketing tool, it can easily partake of the racism that created and is the effect of mass incarceration” (p. 30).  As such, though these policies and programs seem to be steps in the right direction at the surface level, in practice they likely will only establish a new, less costly, system of racial control.  Only policies which move away from the criminal justice paradigm currently in place can address the problems of historic and symbolic racism which have fueled mass incarceration.  Furthermore, as Alexander (2012) noted, the current system of racial control depends on the prison label not so much the prison time.  Given these factors, policies which adopt a framework of drug decriminalization or legalization make most sense.

There are a number of signs to indicate that both state and national policy is moving in the direction of decriminalization if not legalization of some illicit drugs.  In November 2012, Colorado and Washington became the first states to legalize marijuana for recreational use (Dennis, 2013).  The Colorado amendment won with 54.8% of the vote and the Washington amendment was approved by 55.7% of voters (Drug Policy Alliance, 2014a).  More recently, the District of Columbia joined 17 other states in decriminalizing the possession or use of marijuana in the privacy of one’s home.  The law will impose civil fines rather than jail time for most offenses (Davis, 2014).  Twenty other states have legalized marijuana for medicinal purposes (Dennis, 2013).  At the national level, in the wake of Colorado and Washington legalizing marijuana, the Justice Department issued a statement saying that it will not target individual users but will instead focus its efforts on preventing distribution of marijuana to minors, stopping the growing of marijuana on public land, keeping marijuana from falling into the hands of cartels and gangs, and preventing diversion of marijuana to other states (Dennis, 2013).  Furthermore, a bipartisan group of legislators have introduced a bill in Congress to end the federal prohibition on marijuana (Drug Policy Alliance, 2014a).  These legalization approaches are far superior to the stop-gap measures seen in Kentucky and other states because not only do they save the state money (and in some cases, generate tax revenue), but they largely eliminate the problem of application of policy along racial lines through the force of the criminal code. [BACK TO TOP]

Moving Away from the Criminal Justice Paradigm

The various options in the arena of drug policy can best be understood to exist along a continuum with pure prohibition at one end of the spectrum and legal regulation of an adult or free market at the other end.  Prohibition, which rests on the philosophical position of deterrence, emphasizes severe penalties for illicit drug possession, distribution, or production; and there is some research that supports its effectiveness (McBride, Terry-McElrath, Henrick, Inciardi, & Leukefield, 2009).  However, as previously described in Part I, the costs (including the mass incarceration of Black men) of pure prohibition far outweigh the benefits   Moving along the continuum of policy options, decriminalization is a form of low-severity prohibition in which criminal penalties are removed for low-level drug law violations and transferred to an administrative process where civil sanctions, such as fines, remain available to government authorities (Greenwald, 2008).  Legalization, on the other hand, means that it would no longer be illegal in any manner to use, buy, sell, manufacture, or distribute drugs (Block & Obioha, 2012).  Emerging state policy reveals that while some states are willing to take regulatory and harm reduction approaches to some drugs, such as marijuana, there remain a highly prohibitive and deterrent approaches to specific drugs (such as cocaine and methamphetamine) (McBride et al., 2009).

From an ethical perspective, those who take a strictly deontological approach in this debate will give particular weight to certain factors above all others.  Libertarians, for example, might argue that personal freedom is the primary concern, whereas religious conservatives might argue for unequivocal condemnation of drug intoxication.  For those who are more utilitarian, or consequentialist, the debate is more difficult and subject to ongoing estimates of empirical evidence and the nature of the harms to be considered.  With that being said, in considering costs and benefits, legal regulation does allow for much finer targeting of specific harms than does prohibition.  In addition, history is an important consideration when developing policy in this area.  The success of a control regime depends in part on the nation’s history in consuming and controlling the drug in question.  As such, it is unwise to formulate drug policy in the abstract from behind Rawls’ veil of ignorance without historical constraints.  Ultimately, there is greater diversity of options for drug control and regulation (based on such factors as dependency potential) than is usually recognized by those at the extreme of the arguments. [BACK TO TOP]

The Portuguese case study.  Roughly two dozen countries and a number of cities and states have taken steps toward decriminalization of drug use and possession (Drug Policy Alliance, 2014b).  Perhaps the best way to understand what a framework of full decriminalization entails is to consider the example of Portugal – the only country in the world to have decriminalized all drugs.

In 2001, a nationwide law took effect in Portugal which decriminalized the purchase, possession, and consumptions of all drugs for personal use.  Greenwald (2009) provides a detailed description of the Portuguese policy reforms which are briefly summarized herein.  “Personal use” is defined as the average individual quantity sufficient for 10 days usage for one person.  The policy applies to all drugs without distinction and applies to both public and private spheres.  Drug usage and possession remain prohibited, but infractions have been removed from the criminal justice system to the administrative/civil context.  The law establishes Commissions for the Dissuasion of Drug Addiction which is the administrative body solely responsible for adjudicating drug offenses and imposing any sanctions.  Police officers may not arrest individuals who violate drug laws, but instead issue them a citation requiring their appearance before the Commission within 72 hours.

Greenwald (2009) states that the Commissions are not empowered to require treatment for addicted persons, though proceedings and sanctions may be suspended conditioned on the individual obtaining treatment.  Available sanctions include fines, suspension of professional license, ban on visiting high-risk locales (such as bars or nightclubs), ban on associating with specific people, requiring periodic meetings with the Commission to monitor addiction, prohibitions on travel abroad, termination of public benefits, or an oral warning.  Factors to be considered in imposing a sanction include the seriousness of the offense, the type of drug involved, whether the offense occurred in public or private, and whether usage is occasional or habitual.  Furnishing drugs to a minor or a person with mental illness remains a criminal offense punishable by 4 to 12 years imprisonment.  According to Greenwald (2009), the overriding goal of the administrative process before the Commissions is to avoid the stigma that arises from criminal proceedings.  Rather than focusing on determinations of guilt or innocence, administrative proceedings are concerned with health and treatment.  Commissioners avoid appearing like judges and the setting does not resemble a traditional courtroom.

After more than 10 years since installation of the decriminalization regime, independent analysis reveals that the policy has reaped a number of important benefits for Portuguese society.  There are lower rates of problematic and adolescent drug use, fewer people arrested and incarcerated on drug charges, reduced incidence of HIV/AIDS, and reduced opiate-related deaths (Greenwald, 2009).  Other major impacts are the reduced burden and cost born by the criminal justice system which no longer must deal with low-level drug offenders, and the reduced intrusiveness of the criminal process in response to addiction (Hughes & Stevens, 2010).  Following decriminalizing, there has been a substantial reduction in the number of drug offenders being arrested and sent into the criminal justice system, and the number of people detected under the new law has remained fairly constant suggesting there has been no net-widening effect (Hughes & Stevens, 2010).  The proportion of drug-related offenders in Portuguese prisons has dropped from 44 percent in 1999 to 21 percent in 2008 (Hughes & Stevens, 2010).  Though drug arrests have dropped, there have been increases in the amount of drugs seized by police (Hughes & Stevens, 2010).  Finally, prior to decriminalization, a significant barrier to providing treatment were individual fears that drug use would lead to arrest and incarceration.  Thus, a related rationale for decriminalization is the removal of the stigma of drug abuse and criminal prosecution which further operated as a barrier to treatment.  Since decriminalization, the number of people seeking treatment has increased dramatically (eg. 147% increase in substitution treatments from 1999 to 2003) (Greenwald, 2009).  Perhaps most telling is the fact that there has never been nor is there currently any meaningful political push to return to pre-reform policies of punishment and prohibition in Portugal. [BACK TO TOP]

Harm reduction strategies.  Prohibitionist frameworks affect patterns of drug use in ways that threaten public health and individual safety.  The clandestine life of the injecting addict leads to several patterns of behavior known to increase HIV and Hepatitis transmission including sharing of needles and sex work to get money for drugs (Drucker, 2013).  In addition, stigmatizing and marginalizing these users acts as a barrier to their obtaining medical and social services, and prevents their accessing drug treatment that might ameliorate many of the problems associated with their addiction (Drucker, 2013).  As such, consistent with the shift towards a public health approach to drug policy, decriminalization works best when the demand reduction strategy is comprehensive and includes harm reduction approaches.  Within the framework of decriminalization, Portugal also expanded its treatment and harm reduction services to include needle exchange programs, opioid maintenance and replacement therapies, and other medication-assisted treatments (Greenwald, 2009).

Harm reduction is an umbrella term that generally refers to interventions that aim to reduce the problematic effects of addictive behaviors.  Harm reduction incorporates prevention, promotion of safe practices to reduce the harm to those who continue to use drugs, and providing substance abuse treatment in lieu of incarceration (McBride et al, 2009).  Though once perceived as controversial, harm reduction approaches have become common in Europe with opioid substitution therapy and needle exchange programs found in nearly all of the EU member states (Greenwald, 2009).  Several studies have demonstrated that opioid replacement therapy is effective in reducing illicit opioid use, HIV risk behaviors, criminal activity, and opioid-related death (Logan & Marlatt, 2010).  Though far less common, several countries provide injecting sites where drug users can inject in a relatively safe environment with clean equipment under the supervision of medical professionals.  Numerous studies demonstrate benefits of such facilities including reduction in needle sharing and reuse, fewer overdoses, and reduced discarding of needles in public places (Logan & Marlatt, 2010).

With that being said, the impact of harm reduction has thus far been minimal in the United States because these practices are in ideological opposition to the policies associated with the war on drugs which view such strategies as tolerant of drug use, a threat to zero tolerance drug laws, and inconsistent with the criminalization of drug use and mass incarceration of drug users (Drucker, 2013).  The principal argument against harm reduction approaches generally is that it “sends the wrong message to society” by undermining the social signal of prohibition.  Nevertheless, in moving forward, it will be important to continue to advocate for inclusion of harm reduction approaches in policy reform if the full benefits of decriminalization are to be realized. [BACK TO TOP]

The legalization debate.  Some advocates argue that while decriminalization is a step in the right direction towards justice, it does not go far enough.  They argue that decriminalization leaves open a number of concerns including high levels of crime, corruption and violence, illicit markets, and harmful health consequences of drugs produced without regulatory oversight.  In their view, only a policy of full legalization addresses these lingering concerns.  To be clear (though some libertarians might disagree), legalization does not entail relaxing drugs laws to the point that all illicit substances would be freely available and regulated only for purity, quality, or safety.  For example, no one believes that children should be able to pick up a pouch of cocaine at the local convenience store.

With that being said, according to economist Robert Barro, prohibition of recreational drugs “drives up prices, stimulates illegal activity, have only a moderate negative effect on consumption, impose unacceptable costs in terms of high crime, [and] expansion of prison populations” (Thornton, 2007, p. 422).  Mary Cleveland observes that the drug war makes black markets “very dangerous and therefore very attractive to troubled young people with limited opportunities and a high risk of becoming problem users of hard drugs” (Thornton, 2007, p. 422).  It is arguable that half-way measures such as medicalization and decriminalization will never reach full potential because they leave in place black markets and retain incentives to trade in illegal drugs.  In this view, the only way to truly eliminate the problems associated with underground markets is to legalize drugs.  Furthermore, these half-way measures are highly unstable and may result in a push back for tougher drug laws and claims that decriminalization has been tried and failed (Thornton, 2007).  On the issue of whether legalization should be approached in phases with marijuana first and harder drugs to follow, Block & Obioha (2012) argue that “gradualism in theory is perpetuity in practice” (p. 109).  Further, on deontological grounds, if a practice is wrong, the sooner it is eliminated the better.

There are number of potential positive outcomes for minority communities if drugs were legalized.  Block & Obioha (2012) assert that

[I]n this new black community, young black men, much less likely to wind up in prison cells or caskets, would be a constant presence and thus stay in the lives of their children. The black male community would no longer include a massive segment of under skilled, drug-addicted ex-cons churning in and out by the thousands year after year, and thus black boys growing up in these communities would not see this life as a norm. They would grow up to get jobs, period.  And something else these boys would not grow up with is a bone-deep sense of the police and thus whites as an enemy.  Because there would be no reason for the police to prowl through his neighborhood. (p. 115)

Economically deprived communities could further benefit from the increased revenue from legalization.  The legalization of all illicit drugs would save $41.3 billion per year in government spending on law enforcement and would generate $46.7 billion in tax revenue (Block & Obioha, 2012).  Thornton (2007) argues that by shifting to a demand-side strategy resources will be freed in such a way to allow urban policy to focus on the problem of economic growth and development

As previously noted, in the United States, there is a current trend towards legalization of marijuana.  Under most proposals, the legal sale of marijuana would be subject to regulations similar to those applied to alcohol.  Marijuana sales would be subject to tax, age limits, licensing requirements for vendors, quality controls, and other regulatory restrictions (Drug Policy Alliance, 2014a).  The trend toward legalization of marijuana bears considerably on the problem of mass incarceration of Black men.  Between 2001 and 2010 there were approximately 8 million arrests for marijuana in the United States; and even though marijuana use is roughly equal between Blacks and Whites, Blacks are nearly 4 times as likely to be arrested for marijuana possession (Hentoff, 2013).  After re-classifying marijuana possession as an administrative infraction in 2011, California saw misdemeanor marijuana arrests fall from 54,849 in 2010 to 7,764 in 2011 (Drug Policy Alliance, 2014a).  Given these numbers, it is apparent that legalization of marijuana will be an effective means to eliminate racial disparities in imprisonment at least associated with this particular drug.

Finally, it appears that the trend towards the legalization of marijuana may continue.  For the first time since Gallup began asking the question, a majority of Americans (58%) now favor the legalization of marijuana – when the question was first asked in 1969, only 12% favored legalization (Swift, 2013).  The jump in support over the past decade has come primarily from persons who identify as independents.  Sixty-two percent of persons who identify as independent now favor legalization of marijuana; and while 65% of Democrats favor legalization the same number of Republicans opposes it (Swift, 2013).  The only age group to oppose legalization of marijuana is Americans age 65 and older while 67% of those aged 18 to 29 favor legalization (Swift, 2013).  Of course, even though there is a trend towards legalization of marijuana in this country, there is no indication that there is any political will to legalize harder drugs like heroin or cocaine. [BACK TO TOP]

Considering Opposing Views

Opponents of decriminalization and legalization argue that such policies would increase drug use, lead to more drug use experimentation amongst teens, and exacerbate the already deleterious effects drug abuse has on society (Drug Enforcement Administration, 2010; Hartnett, 2005; Sher, 2003; Stimson, 2010).  However, most of these arguments are based more on speculation than any real evidence.

Before the Harrison Act of 1917, there is no evidence that Americans were drugging themselves excessively even as cocaine and opium were sold in the free market (Block & Obioha, 2012).  In fact, most studies on decriminalization reveal that there is no increase or only a slight increase in drug use, while others have made the point that it is difficult to make any definitive statements regarding drug use in the wake of decriminalization because of the absence of adequate comparators (Hughes & Stevens, 2010).  In some cases, the extent of increased use appears to be tied primarily to commercialization.  For example, in the Netherlands there was not a rise in marijuana use following decriminalization until coffee shops opened and began to publicly promote its use (Hughes & Stevens, 2010).

Since decriminalization in Portugal, lifetime prevalence rates of drug usage have decreased for the age groups of 13-15 and 16-18 years old (Greenwald, 2009).  These age groups are important in assessing drug policy because trends in these categories are the most potent indicators of things to come (Greenwald, 2009).  Even though lifetime prevalence rates have increased slightly to mildly in other categories since decriminalization, in virtually every category of significance, Portugal outperforms both EU and non-EU states (such as the United  States, Canada, and Australia) that adhere to criminalization regimes (Greenwald, 2009).  In fact, the majority of EU states have rates that are double and triple the rate in Portugal.  With that being said, usage rates in the EU continue to fall below that found in the United States and other countries with more criminalized, punitive approaches (Greenwald, 2009).  The fact is that countries that have adopted less punitive policies have not experienced any significant increases in drug use, drug-related harms, or drug related crime as compared to countries that continue to impose harsh penalties (Drug Policy Alliance, 2014b).  According to the World Health Organization, the United States has the highest lifetime drug use rates in the world by a large margin notwithstanding its punitive policies (Drug Policy Alliance, 2014b).

Further, when analyzing the impact of policy on drug use, it is informative to consider Alabama and Mississippi – states that share many similarities, however, each has much different drug policies dealing with marijuana.  Mississippi effectively decriminalized marijuana in 1976.  There, possession of marijuana results in a small fine of $100 to $250 and there is rarely an arrest.  In Alabama, on the other hand, possession of marijuana is punishable by up to a year in jail and a fine of up to $6,000.  However, decriminalization has not resulted in higher rates of teen drug use in Mississippi.  In 2012, survey data revealed that teen usage in both states was just over 6% (SAMHSA, 2013).  Interestingly, both states are below the national average which suggests that usage has more to do with cultural and geographic factors than it does with policy.  This comparison holds true for other states that share geographic and cultural similarities.

Another common misconception is that legalization or decriminalization is unnecessary in light of current trends in policy and programs which funnel offenders into drug courts and other forms of criminal justice supervision.  Make no mistake, drug courts do help some people – there is no doubt about this – but whether the proliferation of drug courts and other similar programs is the best policy response to the problem of mass incarceration is a separate issue.

First, drug courts operate on contradictory, paradoxical models.  The disease model assumes that addicted persons use drugs compulsively in spite of negative consequences, while the rational actor model assumes that people will weigh the risks and benefits before taking a course of action (Drug Policy Alliance, 2011).  These dueling models result in people being treated as though they have a medical condition, but punished through force of the criminal code for the symptoms of their condition (mainly their inability to remain abstinent).  The most serious cases – and the persons needing the most help – under this model are doomed to failure.

Furthermore, drug courts may actually contribute to the disproportionate rates of incarceration of Black men.  Through the phenomenon of net-widening, drug courts have fueled more drug arrests resulting in more people of color being brought into the criminal justice system (Drug Policy Alliance, 2011).  Those who do not meet drug court admission criteria end up in jails and prisons.  More problematic is the fact that Blacks are 30 percent more likely to be expelled from drug courts due to lack of culturally appropriate treatment interventions, few counselors of color in some programs, and other socioeconomic factors (Drug Policy Alliance, 2011).  Additionally, people in drug court are often given much longer sentences as a component of plea negotiation, and therefore those who are terminated from the program often end up serving more time than had they simply refused drug court in the first instance (Drug Policy Alliance, 2011).  Simply put, in a health-centered approach, drug use or the need for treatment is never a reason to enter the criminal justice system, and the criminal justice system should never be the primary path through which such treatment is received. [BACK TO TOP]

Moving Forward with Reform

It is difficult to draw clear ideological lines when assessing support for policies of decriminalization and legalization.  Advocates for legalization can be found at the extremes of the political spectrum, from liberals like Jesse Jackson to libertarians like Ron Paul (Block & Obioha, 2012).  Texas Governor and conservative Republican Rick Perry recently stated that he believes states should be permitted to experiment locally with drug policy, including allowing decriminalization (Sullivan, 2014).  On the other hand, liberal Congressman Charles Rangel vehemently opposes legalization (Hartnett, 2005).

Opposition is sometimes found in surprising quarters.  It was only in 2011 that the NAACP finally passed a resolution calling for an end to the war on drugs (NAACP, 2011).  Mann (2013) details Black America’s surprising 40-year support for the drug war while Block and Obioha (2012) criticize black leaders and organizations like the NAACP, the Congressional Black Caucus, and The National Urban League for being asleep at the switch and on the wrong side of this debate for too many years.  As such, one cannot assume when building coalitions for advocacy on this issue that racial minorities will automatically support a move away from prohibition.  The truth is that hierarchies of power exist even in poor neighborhoods.  Some community members feel rather ambivalent about imprisonment and actually support harsh punishments for people they feel are making communities unsafe (Clear, 2007).  Some would argue that mass incarceration exists in part because communities have appealed to police to impose control they apparently could not.

On the other hand, though unexpected opposition might be encountered from some in the Black community, there are surprising sources of support for policies of decriminalization and legalization.  Legalization is supported by the likes of Milton Friedman and Gary Becker who have each been awarded the Nobel Prize in economics (Thornton, 2007).  In a survey of 117 randomly selected economists, 58 percent favored a change in public policy towards decriminalization and less than 2 percent endorsed even stronger policies of prohibition (such as longer prison sentences and increased enforcement budgets) (Thornton, 2007).  The Global Commission on Drug Policy, which has recommended that policies of criminalization and punishment be replaced by offers of health and treatment services to those who need them, includes President Reagan’s former Secretary of State, George P. Shultz, former chair of the Federal Reserve, Paul Volcker, and former U.N. Secretary General, Kofi Annan (Global Commission on Drug Policy, 2011).  Even though they have arguably gained the most from existing drug policy, there exists a growing number in law enforcement who support reform in the direction of decriminalization and legalization.  Law Enforcement Against Prohibition (LEAP) is an international nonprofit educational organization created “to give voice to all the current and former members of law enforcement who believe the war on drugs is a failed policy” (Cole, 2009, p. 1).  The advisory board is made up of a U.S. Governor, four sitting federal district court judges, a sheriff, five former chiefs of police, a Canadian Senator who is retired from the Royal Canadian mounted police, the former Attorney Generals of Colombia, and a former Chief Constable from the United Kingdom (Cole, 2009).

While it is possible to build national and statewide coalitions on this issue, given the intractability of politics at these levels, perhaps most promising are local reform efforts to effect decriminalization.  Take the city of Seattle for example.  At one point, it had one of the worst records of any city in the country for racial disparities in drug arrests.  One study found that in 2006, Blacks were more than 21 more likely to be arrested for drug crimes than Whites even though Whites constituted the majority of drug sellers and users in Seattle (Drug Policy Alliance, 2014c).  Litigation filed as a result of these injustices gave rise to a dialogue between the Seattle Police Department and key stakeholders in the community.  As a result, in 2011, Seattle instituted Law Enforcement Assisted Diversion (LEAD) which was the first pre-booking diversionary program in the United States (Drug Policy Alliance, 2014c).  Rather than arresting and booking people for low-level drug offenses, law enforcement directs individuals to appropriate services including housing and treatment.  LEAD is based on a harm reduction approach which does not require participant abstinence nor does it utilize criminal sanctions for relapse.  Every police officer must now go through specialized harm reduction training.  As a collaborative efforts involving the King County Attorney, Seattle County Attorney, Seattle Police Department, King County Sheriff, King County Executive, Seattle Mayor, the Department of Corrections, Public Defenders, and the ACLU, LEAD serves as an example of how policy can be crafted at the local level even when support for decriminalization and harm reduction strategies might not exist at the state level or nationally (Drug Policy Alliance, 2014c).  The program is widely supported by local law enforcement that see the program as an opportunity to use a variety of options to improve public safety, and as a means to address the re-cycling of individuals through the criminal justice system.  Since implementation, drug arrests have fallen 30% from 2010 to 2011 and local jail populations are likewise declining (Drug Policy Alliance, 2014c).  According to the Drug Policy Alliance (2014c), LEAD currently operates on private funding in two Seattle neighborhoods, but with success it is possible that public funds might be used to allow it to scale locally and throughout the state.  Other communities such as Baltimore, Oakland, San Francisco, New Orleans, and Atlanta have shown interest in implementing similar programs; and in 2013, Sante Fe, New Mexico became the second city to adopt a program similar to LEAD (Drug Policy Alliance, 2014c). [BACK TO TOP]

Gathering Evidence for Evaluation and Advocacy

Because the Obama administration is permitting local jurisdictions to experiment with drug control policy, even though federal law remains expressly prohibitionist, there is now an opportunity to gather important information to build support for wide scale reforms.  In jurisdictions such as Colorado and Washington, and in cities such as Seattle, it will be important to accurately assess trends in drug use, particularly amongst teens, in order to determine to what extent, if any, increases in drug use can be attributed to legalization.  Furthermore, assessing the price of marijuana and other drugs in the aftermath of legalization will be important.  One study found that legalization was associated with a 10 to 26 percent decrease in the price of high-quality marijuana suggesting that the supply-side response to legalization is greater than the demand-side (Anderson & Rees, 2013).  Opponents of legalization argue that there will be an increase in the number of drug-related illnesses, accidents, and fatalities and therefore data will need to be gathered to monitor these issues as well.  Because legalization is designed to eliminate the black market, it will be important to monitor crime rates.  Obviously, data on drug arrests and local jail and prison populations will be crucial in analyzing the impact of reforms on racial disparities in incarceration.

In addition to the sort of data and other information usually gathered to craft drug policy, proponents of decriminalization and legalization will be interested in applying different measures to determine to assess individual health outcomes.  Too often, the criminal justice system fails to consider that relapse is a common component of addiction as it is in many different conditions including hypertension, heart disease, and diabetes.  While abstinence has stood as the sole benchmark of success for many programs such as drug court, health-centered approaches utilize a number of different measures in determining outcomes including personal health, employment status, social relationships, and overall wellbeing.  Evaluation of Seattle’s LEAD will likewise take into account a number of measures including reductions in drug-related harms, overall drug use, and recidivism; improvements in health, psychosocial functioning, employment, and family/community involvement; cost-savings; impacts on the community; and racial disparities in drug law enforcement (Drug Policy Alliance, 2014c). [BACK TO TOP]

Conclusion and Recommendations

Putting aside for a moment the covert objectives described in Part I, drug policy was initially conceived and implemented with the hope of achieving certain outcomes – less crime, better health, and economic and social development.  However, through the years, policy has become focused on processes – the number of arrests, the amount of drug and property seizures, and the harshness of punishments.  While process-oriented policy might tell us how tough we are being, it misses the mark in terms of measuring relevant outcomes associated with the health and well-being of humankind.  In addition, current policy is driven by ideology and is based on several erroneous assumptions including that all people who use drugs are immoral addicts and that anyone involved in the drug trade is a criminal mastermind.  To a great extent, the lack of progress in this policy area is rooted in policymakers’ understanding of public opinion on many of these issues.

For the reasons set forth herein, the time has come for a major shift in U.S. drug policy away from the criminal justice paradigm and toward one of public health.  As such, the following recommendations are offered as a guide for moving forward as advocates for social justice:

  • In the absence of decriminalization, possession should be reduced to a misdemeanor offense;
  • The U.S. should move to a policy of decriminalization of all illicit drugs adopting the Portuguese framework as a working model;
  • Threshold limits for personal use should be set to realistic levels to avoid net-widening effects;
  • Administrative penalties should not unduly interfere with civil rights and should be monitored for racial bias in application;
  • Decriminalization should be accompanied by expansion of treatment and harm reduction strategies;
  • The federal government should continue to permit state and local governments to experiment with legalization and implement pre-arrest diversionary programs like LEAD;
  • States should enact felony expungement statutes to ameliorate the harms imposed upon individuals who have been convicted of non-violent felony drug charges; and
  • An honest debate should be opened about regulatory alternatives to prohibition including legalization. [BACK TO TOP]
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