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Making Drug Policy Reform Work for Meaningful Decarceration
GABRIEL SAYEGH
The U.S. war on drugs and the brutal system of mass incarceration are inextricably linked.1 The movements working to end the war on drugs and mass incarceration have for decades also been linked. Yet the recent successes of both these movements, along with a changing political landscape, are raising fundamental questions about the ongoing viability of this linkage. For one, ending the war on drugs alone will not end mass incarceration. While the politics are complex, the data are clear: the majority of people in U.S. jails and prisons are not incarcerated or otherwise detained as a result of drug charges.2 Yet the data also show that ending mass incarceration is not possible without ending the war on drugs.3 In other words, ending the war on drugs is necessary but not sufficient for ending mass incarceration. To end mass incarceration, we will need both to end the war on drugs and to advance other reforms, including those related to violent offenses.4
This means that participants in both the movement to end the war on drugs and the movement to end mass incarceration have an investment in finding enough common ground to ensure that there is a pathway forward where reform efforts in both movements are mutually reinforcing and can work for meaningful decarceration.
Finding Common Ground
For the last twenty-five years, finding common ground between these two movements has been relatively natural because the connections between the war on drugs and mass incarceration are, in many ways, self-evident. The drug war preceded the advent of mass incarceration and has long been understood as a major driver of mass incarceration (despite not being the sole cause). When the war on drugs was launched in 1971 by President Richard M. Nixon, there were approximately 350,000 people in prisons and jails in the United States.5 At that time, the incarceration rate in the United States was similar to that of other industrialized Western democracies. Today, there are 2.3 million people in prisons and jails in the United States—which means that a country with 5 percent of the world’s population holds nearly 25 percent of all the people in cages on the planet. Roughly 480,000 people—more than the population of Atlanta, Georgia—are incarcerated in jails and prisons for drug offenses alone.6 The United States, through a range of policies including the war on drugs, criminalizes and locks up a huge proportion of its population, predominantly poor people and people of color, with disastrous results for public safety, public health, and human rights.7
More and more people are chronicling the connections between the war on drugs and mass incarceration, generating greater awareness among the general public of the problems at hand. Some of the most potent contributions in this area include books such as Michelle Alexander’s The New Jim Crow, Carl Hart’s High Price, Johann Hari’s Chasing the Stream, and Todd Clear’s The Punishment Imperative; films including Ava Duvernay’s 13th and Eugene Jarecki’s The House I Live In; numerous reports issued by a wide array of organizations and institutions with diverse political perspectives, such as Growth of Incarceration in the United States: Exploring Causes and Consequences from the National Academy of Sciences, How Many Americans Are Unnecessarily Incarcerated? from the Brennan Center for Justice, and Four Decades and Counting: The Continued Failure of the War on Drugs from the Cato Institute; and countless articles and stories in a variety of print and digital media.8
Without question, the movements to end the war on drugs and end mass incarceration have made tremendous progress over the last twenty-five years. Made up of a diverse array of stakeholders—including formerly incarcerated people, active and former drug users, people in recovery, organizers, advocates, researchers, and more—these movements have won policy and electoral victories small and large and have succeeded in disrupting the political consensus underlying the war on drugs and mass incarceration. Even a cursory review generates an impressive list of major victories, as reform measures are now regularly advancing in state legislatures and at the ballot box in every region of the country. New York State rolled back the Rockefeller drug laws.9 California completely overhauled its sentencing system to reduce its incarceration rate by tens of thousands through Proposition 47.10 States from Alabama to Colorado to Michigan have enacted a range of reforms that reduce sentences, expand alternatives, and promote reentry. Cities across the country, driven by local advocacy, are taking up reforms with their police departments, and a growing number of police departments are increasingly working with community leaders to establish diversion programs to keep people out of jail.11 More innovative public health interventions to reduce accidental overdose fatalities are being considered in cities of all sizes.12 There have even been some important, albeit limited, reforms in Congress in recent years as political leaders on the left, on the right, and in the center have been forced by these movements to admit that the war on drugs has failed and that the nation’s criminalization binge has gone too far.13
These movements are now larger, better funded, and more successful than ever, and they are still growing. They are arguably now mainstream. This is perhaps most evident in relation to cannabis (marijuana) policy.14 The drug war is particularly focused on cannabis—nearly half of all drug arrests in the United States every year are for cannabis, and some states still harshly punish people for mere possession. For instance, in Louisiana, possession of even two joints can lead to years in prison.15 Yet the drug policy reform movement has made miraculous progress over the last twenty years in its effort to fix the nation’s cannabis laws; today a majority of states in every region of the country have enacted some type of reform to their cannabis laws. Twenty-nine states plus Washington, D.C., have enacted medical marijuana laws, where only medical patients with certain qualifying conditions can, with a physician’s recommendation, purchase cannabis from approved vendors, or sometimes even grow their own.16 Twenty states and Washington, D.C., have decriminalized possession of small amounts of cannabis, where criminal penalties for possession of relatively small amounts are reduced or eliminated (but the production and sale of the drug remain illegal).17 And eight states have enacted full legalization, where cannabis production, sale, and use by adults is legal, taxed and regulated by the government, while Washington, D.C., now permits adults to grow, consume, and share cannabis but does not allow for commercial production or sales.18 More than sixty million Americans now live in states where cannabis is legal for recreational use by adults—it is taxed, and regulated, like alcohol.
Tellingly, most of these cannabis reform victories have come thorough voter initiatives. Of the eight states with full legalization, all were enacted through voter initiatives. It’s not surprising that voters, when given the option, enact reform—polling data show that 60 percent of Americans support legalizing cannabis, up from 12 percent in 1969.19
This mainstreaming creates its own challenges for defining a path to finally ending the war on drugs and mass incarceration. Tremendous growth in both movements means there are more and more people involved and an increasing number of new organizations. This naturally leads to more movement conflicts and debates over leadership and goals. Groups compete for limited resources from donors and foundations, fight for the spotlight, and fracture over disagreements about strategies and tactics. As both movements expand, there is a growing debate and divide between organizations about how to proceed, and about what “winning” means. The very success of these movements has brought them to a crossroads.
Finding a way forward has been made all the more complicated in the wake of the 2016 presidential election. While President Barack Obama talked openly of mass incarceration and called for an end to the war on drugs,20 Donald J. Trump asserted himself as the “law and order” candidate, won the presidency, and appointed an attorney general, Jeff Sessions, who not just is hostile to reform but has a record of supporting mass incarceration.21 Sessions, upon becoming attorney general, swiftly called for expanding the war on drugs.22 The retrograde drug policy and criminal justice positions of the Trump administr
ation, coupled with the profound political realignment still underway in the wake of the election, create even more challenges for social movements and policy reformers to find common ground to advance efforts to end the drug war and mass incarceration, let alone for these different movements to work together in complementary ways.
Here, I propose five guidelines to aid advocates in both movements. For drug policy reformers, these guidelines can help in developing and advancing drug policy reforms that will serve the interest of meaningful decarceration. For those working to end mass incarceration, these guidelines may prove useful in finding ways to make drug policy reform work for criminal justice reform more broadly.
Advancing Decriminalization
Decriminalization must form the basis for a sensible, health-based drug policy. This means decriminalizing possession and use of all drugs. It also means being careful not to advance or promote efforts that rely on explicit or implicit criminalization.
The drug war plays a unique role in criminalizing people, for mere possession and use of certain psychoactive substances. Consider that in 2013, 38 percent of Americans (more than 120 million people) had tried cannabis at least once.23 That same year, nearly 1.5 million people were arrested in the United States on drug offenses, the vast majority for simple possession—and almost half those arrests were for cannabis alone.24 In 2017, 45 percent of Americans (over 140 million people) said they had tried cannabis at least once, and 12 percent of Americans (nearly 40 million people) said they were currently using it.25
But the drug war has gone much farther than just expanding criminalization and feeding mass incarceration. In A Plague of Prisons, epidemiologist Ernest Drucker makes a public health analysis of mass incarceration. He writes:
Incarceration—punishment by imprisonment—is based on a set of laws established by any state or nation to assure public safety by the separation and isolation of criminals from society. By contrast, mass incarceration results from policies that support the large-scale use of imprisonment on a sustained basis for political or social purposes that have little to do with law enforcement.26
Since its formal launch in 1971, the drug war has further stigmatized and marginalized people for having the health problem of addiction. The drug war has exacerbated and institutionalized racial disparities.27 It has militarized the police and significantly expanded police powers while undermining constitutional rights.28 It has limited access to proven public health interventions such as syringe exchange programs and proven drug treatment modalities such as opioid agonist treatment (methadone, buprenorphine), consequently contributing to the spread of bloodborne illness, increased prevalence of infectious disease, and untimely, preventable deaths.29
The war on drugs is rooted in punitive prohibition, wherein criminalization takes center stage.30 Criminalization turns otherwise law-abiding citizens who use illicit drugs into criminals; and for those people who develop a problem in their use of illicit drugs, criminalization makes those problems (addiction, overdose, etc.) into a criminal context that diminishes their chance to get help. There is some debate in the scientific community about whether drug addiction is a disease or a disorder,31 but there is no debate that drug addiction is a health issue. And herein lies the rub. If addiction is a health issue, why do we criminalize people for experiencing the health problem of addiction? As journalist and writer Maia Szalavitz writes:
To argue that “addiction is a disease” while criminalizing possession of the drug involved in the addiction is, then, to make an impossible case. You are saying “I think your addiction is shameful and users of the drugs you take should be caged,” while also claiming “You have an illness that should be treated like any other disease.” Neither cancer patients, nor people with diabetes nor those with depression are put into this double bind: no actual disease is seen this way.32
The implications of such an approach are seen in the current opioid overdose crisis. More than half a million people have died in the United States of drug overdoses since 2000. Most opioid overdose deaths are preventable—if emergency intervention is applied in time, death can often be avoided. And many (but not all) people who die of a fatal overdose are using drugs with other people when they overdose33—which means, in theory, that people could call for help if the person they’re with overdoses.
But most people are afraid of calling 911 because they fear that if they call emergency services, they’re more likely to get a ride in the back of cop car than the back of an ambulance.34 And they’re right. In a country that has so vigorously prosecuted the war on drugs and created the thing we now call “mass incarceration,” such a fear is logical. Because our policies are rooted in the criminalization approach, we’ve succeeded in scaring people away from calling for help when they need it, dramatically increasing the likelihood of preventable deaths.
Some may be quick to argue that decriminalization is “too radical” or, in the era of Trump and Sessions, impossible. But such assertions ignore history and the current local, national, and international debate around drug policy. While the drug war dominated the political landscape in the 1980s and early 1990s, by the late 1990s attitudes began to shift. Over the past two decades, when given the option through initiatives, voters regularly choose to roll back the drug war in favor of more sensible approaches—passing medical cannabis laws and legalizing cannabis, enacting substantive sentencing reforms,35 curtailing the corrupt bail bond industry (which exposes so many poor defendants who can’t make bail to long periods of brutality in our violent jails),36 and more. In October 2016, a major report released by Human Rights Watch and the ACLU concluded that decriminalization should be a primary goal of drug policy reform in the United States.37
And it’s not just in the United States that the political alignments and opinions related to drug control are changing. The debate at the global level is surpassing that in the United States, as the call to decriminalize possession and personal use of all drugs is no longer taboo or even controversial among knowledgeable actors. In 2011, the Global Commission on Drug Policy, building on the work of the Latin American Commission, issued its first report, recommending an end to “the criminalization, marginalization and stigmatization of people who use drugs but who do no harm to others.”38 The commission draws its members from the elite around the world—former heads of state, business leaders, and political leaders, including George Shultz, former secretary of state under Ronald Reagan; Kofi Annan, former secretary-general of the United Nations; Richard Branson, head of Virgin; and Paul Volcker, former head of the U.S. Federal Reserve, among many others.39 Subsequent reports published by the commission have not only echoed this call for decriminalization but expanded on it.40
In 2015, then UN secretary-general Ban Ki-moon said, “We must consider alternatives to criminalization and incarceration of people who use drugs and focus criminal justice efforts on those involved in supply. We should increase the focus on public health, prevention, treatment, and care, as well as on economic, social, and cultural strategies.”41 Perhaps even more telling, in October 2015 a paper calling for decriminalization was leaked from the UN Office of Drugs and Crime. The paper’s unnamed authors wrote that “decriminalising drug use and possession for personal consumption is consistent with international drug control conventions and may be required to meet obligations under international human rights law.”42
In Europe, Portugal, the Czech Republic, and Estonia have all decriminalized personal possession for all drugs.43 In 2013, Uruguay became the first country to legalize cannabis, and in 2017 it will begin selling it in drugstores.44 Canada is on track to legalize cannabis nationally within the next year.45 In early 2016, at the urging of Latin American political leaders, whose countries are suffering the violence of horrific drug wars, the UN General Assembly held a special session on drugs.46 It was the first time in twenty years the UN had taken up the question of drug control policy, with many political leaders calling openly for an end to the drug war.47
In March 2016, the prestigious medical journal Lancet, in collaboration with one of the top medical schools in the world, Johns Hopkins University, convened a commission of dozens of the world’s leading health scholars and scientists to study drug control policy and make recommendations.48 The commission concluded that it was time to decriminalize drugs, writing: “Countries such as Portugal and the Czech Republic decriminalised minor drug offences years ago, with significant financial savings, less incarceration, significant public health benefits, and no significant increase in drug use.”49 These developments demonstrate that there is a growing national and international challenge to the drug war consensus, creating a new, broad foundation upon which to make more strident, bold, honest political demands regarding drug policy.
For drug policy reform to serve decarceration, it must seek to reduce criminalization at every opportunity, beginning with decriminalization—eliminating criminal sanctions associated with drug possession and use of all drugs.50
The criminal legal system is not designed or equipped to respond effectively to problem drug use or addiction and should not have the responsibility to respond to it. It should not be the avenue through which people get the medical attention they need if they have a drug problem. And, absent harm to others, the criminal legal system should not be responsible for determining what substances consenting adults choose to put into their own bodies.
For advocates working to end mass incarceration, it is imperative to avoid the trap of using criminalization as a tool to solve real or perceived drug problems. This is particularly evident when reformers call for “treatment instead of incarceration” and promote drug courts as the model to meet this important demand. Drug courts expand the scope of criminalization, reinforce false notions that drug use equals addiction, and have questionable outcomes. A 2017 report by Physicians for Human Rights put it this way: “People with substance use disorders who get treatment through the criminal justice system are still treated as criminals, and the symptoms of their illness punished as if the illness itself were a crime.”51 The best way to address a health issue is in a healthcare setting, not in a court or jail. Drug courts, therefore, are not the solution.
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