Decarcerating America

by Ernest Drucker

  11. See, e.g., Law Enforcement Assisted Diversion (LEAD) King County, http://leadkingcounty.org. See also LEAD Santa Fe, https://www.lead-santafe.org, and Paul Grondahl, “Albany Launches LEAD Diversion Program,” Albany (NY) Times Union, March 31, 2016.

  12. See, e.g., Baltimore City Health Department, “Substance Use and Misuse,” http://health.baltimorecity.gov/programs/substance-abuse; Lisa W. Foderaro, “Ithaca’s Anti-Heroin Plan: Open a Site to Shoot Heroin,” New York Times, March 22, 2016; David Gutman, “Seattle, King County Move to Open Nation’s First Safe Injection Sites for Drug Users,” Seattle Times, January 27, 2017.

  13. Mark Holden, “Criminal Justice Reform Is Ripe for Bipartisan Achievement” The Hill, January 17, 2017, http://thehill.com/blogs/congress-blog/judicial/312492-criminal-justice-reform-is-ripe-for-bipartisan-achievement. A prominent example of reform in action is the passage of the Fair Sentencing Act in 2010, a compromise law that reduced, but did not entirely fix, the unfair, racially biased, and unproductive disparity between sentences for crack and power cocaine. It is an example of drug policy and criminal justice reform advocates coming together, with bipartisan support, in a successful effort to reform injustice. For more analysis of the Fair Sentencing Act, see ACLU, “Fair Sentencing Act,” https://www.aclu.org/feature/fair-sentencing-act.

  14. I use “cannabis” throughout the text, rather than “marijuana.” The term “marijuana” has its origins in the racist history of prohibition in America; “cannabis” is drawn from the botanical term for the plant.

  15. Matt Ferner, “Man Who Was Serving More Than 13 Years over Two Joints’ Worth of Marijuana Gets Sentence Reduced,” Huffington Post, December 5, 2016.

  16. ProCon.org, “Medical Marijuana Laws,” http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881.

  17. Eight states (Connecticut, Delaware, Maryland, Mississippi, Nebraska, New York, Rhode Island, Vermont) consider simple possession of marijuana as an administrative or civil infraction. Four states (Minnesota, Missouri, North Carolina, Ohio) treat marijuana possession as a misdemeanor without jail time. And eight states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, Washington) plus Washington, D.C., have completely eliminated all penalties for personal possession of cannabis by adults. See NORML, www.norml.org.

  18. The eight states with full legalization are Colorado and Washington State (2012); Alaska, Oregon, and Washington, D.C. (2014); and California, Nevada, Maine, and Massachusetts (2016). See National Organization to Reform Marijuana Laws (NORML), “State Info,” http://norml.org/states.

  19. Art Swift, “Support for Legal Marijuana Use Up to 60% in U.S.,” Gallup, October 19, 2016, http://www.gallup.com/poll/196550/support-legal-marijuana.aspx.

  20. See, e.g., Leon Neyfakh, “Obama Wants to End Mass Incarceration: Can He?,” Slate, July 15, 2015.

  21. See, e.g., Ames Grawert, “Analysis: Sen. Jeff Sessions’s Record on Criminal Justice,” Brennan Center for Justice, January 6, 2017, https://www.brennancenter.org/analysis/analysis-sen-jeff-sessions-record-criminal-justice. See also Alice Miranda Ollstein, “Under Jeff Sessions, Drug Legalization and Sentencing Reforms Will Go Up in Smoke,” Think Progress, January 9, 2017.

  22. See, e.g., Matthew Rozsa, “Jeff Sessions Is Reviving the War on Drugs, and It’s Going to Hurt Minorities,” Salon, April 10, 2017.

  23. Justin McCarthy, “One in Eight U.S. Adults Say They Smoke Marijuana,” Gallup, August 8, 2016.

  24. FBI, Uniform Crime Report, “Crime in the United States 2013—Arrests,” November 2014, 2.

  25. Art Swift, “In U.S., 45% Say They Have Tried Marijuana,” Gallup poll, July 19, 2007. http://www.gallup.com/poll/214250/say-tried-marijuana.aspx. It is important to consider that for years when these surveys have been taken, the respondents who admitted to using marijuana were admitting to a criminal offense. For this reason, it is likely that these polls actually undercount the number of Americans who have ever tried marijuana or regularly use marijuana.

  26. Ernest Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America (New York: The New Press, 2011), 40–41. In a conversation between the author and Dr. Drucker about this insight from Plague of Prisons, Drucker noted, “If I was writing this now, I would add that the drug war has little to do with public safety, except to worsen it perpetuating illicit drug markets and increasing the profitability operating in those markets.”

  27. See Drug Policy Alliance, “Race and the Drug War,” http://www.drugpolicy.org/race-and-drug-war. See generally Alexander, The New Jim Crow; Brian Stauffer, “Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States,” Human Rights Watch, October 2016.

  28. See Radley Balko, Rise of the Warrior Cop: The Militarization of America’s Police Forces (New York: Public Affairs, 2013). See also ACLU, “War Comes Home: The Excessive Militarization of American Policing,” American Civil Liberties Union, June 2014, and Kevin Sack, “Door-Busting Drug Raids Leave a Trail of Blood,” New York Times, March 18, 2017.

  29. See Transform Drug Policy Foundation, “The War on Drugs: Threatening Public Health, Spreading Disease and Death,” http://www.countthecosts.org/sites/default/files/Health-briefing.pdf.

  30. Harry G. Levine and Craig Reinarman, “Alcohol Prohibition and Drug Prohibition: Lessons from Alcohol Policy for Drug Policy,” Centre for Drug Research, University of Amsterdam, 2004, http://www.cedro-uva.org/lib/levine.alcohol.html.

  31. For the proposition that it is a disease, see National Center on Addiction and Substance Abuse, “Addiction as a Disease,” https://www.centeronaddiction.org/what-addiction/addiction-disease. For an opposing position, see Marc Lewis, The Biology of Desire: Why Addiction Is Not a Disease (New York: Public Affairs, 2015).

  32. Maia Szalavitz, “Why We Should Decriminalize All Drugs,” Guardian, July 5, 2016.

  33. Peter J. Davidson et al., “Witnessing Heroin-Related Overdoses: The Experiences of Young Injectors in San Francisco,” Addiction 97, no. 12 (2002). Also K.C. Ochoa et al., “Overdosing Among Young Injection Drug Users in San Francisco,” Addictive Behaviors 26, no. 3 (2001); Robin A. Pollini et al., “Response to Overdose Among Injection Drug Users,” American Journal of Preventive Medicine 31, no. 3 (2006); M. Tracy et al., “Circumstances of Witnessed Drug Overdose in New York City: Implications for Intervention,” Drug and Alcohol Dependence 79, no. 2 (2005).

  34. Drug Policy Alliance, “911 Good Samaritan Laws: Preventing Overdose Deaths, Saving Lives,” February 2016.

  35. In 2014, voters in California made history by passing Prop 47, which reduced the penalties for simple drug possession, petty theft, shoplifting, forgery, writing a bad check, and receipt of stolen property, resulting in dramatic reductions to the state prison population and investments in drug and mental health treatment, school programs, and victims’ services. See My Prop 47, http://myprop47.org. In 2012, California voters had approved Prop 36, which required that a “third strike” be a serious or violent felony (previously, a “third strike” could be any felony). See Aaron Sankin, “California Prop 36, Measure Reforming State’s Three Strikes Law, Approved by Wide Majority of Voters,” Huffington Post, November 7, 2012.

  36. See Nick Wing, “Our Bail System Is Leaving Innocent People to Die in Jail Because They’re Poor,” Huffington Post, February 23, 2017.

  37. Stauffer, “Every 25 Seconds.”

  38. Report of the Global Commission on Drug Policy, “War on Drugs,” June 2011, 2.

  39. The Global Commission emerged from another commission. In 2009, the Latin American Commission on Drugs and Democracy—a body made up of political leaders (including ex-presidents) and intellectuals from Latin American countries—published a report calling upon states to “establish the laws, institutions and regulations enabling those who have become addicted to drugs to stop being buyers in an illegal market and to become patients of the health care system.” Statement by the Latin American Commission on Drugs and Democracy, “Drugs and Democracy: Towa
rd a Paradigm Shift,” 2009, http://www.ungassondrugs.org/images/stories/towards.pdf. The commission’s prestigious membership list is worth studying to appreciate the implications of such a call.

  40. “Reforming International Drug Policy,” Lancet 387, no. 10026 (April 2, 2016): 1347. “Drug policies intended to protect people, but based on prohibition and criminalisation, have had detrimental effects on public health in multiple ways and have undermined people’s right to health.”

  41. Ban Ki Moon, “Message on International Day Against Drug Abuse and Illicit Trafficking,” June 26, 2015, http://www.unis.unvienna.org/unis/en/pressrels/2015/unissgsm645.html.

  42. United Nations Office on Drugs and Crime, “Briefing Paper: Decriminalisation of Drug Use and Possession for Personal Consumption” (emphasis added), https://www.scribd.com/doc/285932597/UNODC-Briefing#fullscreen&from_embed. The paper was never officially released, and the draft itself was retracted and denounced by UN leadership after it was leaked to the public. But the mere fact that such a document was contemplated, then drafted and circulated within the UN, suggests that the evidence for decriminalization is so strong and so clear that even entities that are by design committed to the status quo have difficulty maintaining a position in favor of the drug war.

  43. Ari Rosmarin and Niamh Eastwood, “A Quiet Revolution: Drug Decriminalisation Policies in Practice Across the Globe,” Release (London), July 2012, https://www.opensocietyfoundations.org/sites/default/files/release-quiet-revolution-drug-decriminalisation-policies-20120709.pdf.

  44. See Tom McKay, “One Year After Uruguay Legalized Marijuana, Here’s What It’s Become,” Mic, December 9, 2014; David Reid, “Uruguay to Be First Country to Sell Cannabis in Drug Stores,” CNBC, April 7, 2017.

  45. Ian Austin, “Trudeau Unveils Bill Legalizing Recreational Marijuana in Canada,” New York Times, April 13, 2017.

  46. Special Session of the United Nations General Assembly on the World Drug Problem, “Achieving the 2019 Goals—A Better Tomorrow for the World’s Youth,” April 2016.

  47. United Nations General Assembly, “Resolution Adopted by the General Assembly on 19 April 2016: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem,” April 19, 2016. In March 2009, the United Nations Office on Drugs and Crime had issued “Political Declaration and Plan of Action on International Cooperation Towards an Integrated and Balanced Strategy to Counter the World Drug Problem,” committing to meet a particular set of goals by 2019. In the months prior to the 2016 UN General Assembly special session, global organizations that work on drug policy reform, criminal justice reform, and related fields engaged their national leaders, in an attempt to influence their stance on drug policy reform and related issues and to advance the goals set out in the 2009 report.

  48. “Public Health and International Drug Policy,” Lancet 387, no. 10026 (April 2, 2016): 1427–80.

  49. Sarah Boseley and Jessica Glenza, “Medical Experts Call for Global Drug Decriminalisation,” Guardian, March 24, 2016.

  50. It simply is not the case that the use of so-called hard drugs automatically leads to addiction. Though some drug users do become addicted, it is possible to use drugs recreationally and non-problematically. “Crack in itself doesn’t make people violent, . . . methamphetamine alone will not make you look like one of those grisly ‘after’ photos in the public service ads, and cocaine and heroin are not as addictive as is commonly believed.” Carl Hart, “Drug Myths Exposed.” http://drcarlhart.com/drug-myths-exposed. As noted above, decriminalization is not the same as legalization. While there is little disagreement in the drug policy reform movement about legalizing, taxing, and regulating cannabis, there is a vigorous debate about decriminalization vs. legalization of all drugs. A major factor in the legalization question is how regulated a drug would be once legal. Among the best resources available to learn more about decriminalization, legalization, and regulation is After the War on Drugs: Tools for the Debate, a handbook produced by the U.K.-based drug policy reform group Transform, http://www.tdpf.org.uk/sites/default/files/Tools-For-The-Debate.pdf. See also “The Case for Reform” on the group’s website, http://www.tdpf.org.uk/case-for-reform.

  51. Christina Mehta and Marianne Mollmann, Neither Justice nor Treatment: Drug Courts in the United States, Physicians for Human Rights, June 2017, http://physiciansforhumanrights.org/library/reports/neither-justice-nor-treatment.html?referrerhttps://medium.com/@PHR/how-drug-courts-are-falling-short-6b92e993cc3b.

  52. “Labels Like ‘Felon’ Are an Unfair Life Sentence,” New York Times, May 7, 2016. The Times editorial references Eddie Ellis and his “Language Letter”: http://prisoneducation.nyu.edu/wp-content/uploads/2015/05/CNUS-lang-ltr_regular.pdf. Ellis, a pioneering founder and leader of the growing role of formerly incarcerated people in the movement to end mass incarceration, challenged the reform field to consider the implication of using terms like “offender” and “felon.”

  53. We also need to redefine what we mean by “public safety.” “Public safety” has come to be synonymous, in common parlance, with “law enforcement.” But true public safety requires a commitment to investing in the community support networks and services that make violent crime less likely. This topic is beyond the scope of this chapter, and requires further research.

  54. Substance Abuse and Mental Health Services Administration, Center for Behavioral Health Statistics and Quality, “Treatment Episode Data Set (TEDS) 2002–2012: National Admissions to Substance Abuse Treatment Services,” July 2014.

  55. Ibid.

  56. Carl Hart, “Neuroscientist: Meth Is Virtually Identical to Adderall—This Is How I Found Out,” The Influence, http://theinfluence.org/neuroscientist-meth-is-virtually-identical-to-adderall-this-is-how-i-found-out.

  57. Maia Szalavitz, “Why the Myth of a Meth-Damaged Brain May Hinder Recovery,” Time Magazine, November 21, 2011. http://healthland.time.com/2011/11/21/why-the-myth-of-the-meth-damaged-brain-may-hinder-recovery.

  58. Carl L. Hart, Caroline B. Marvin, Rae Silver, and Edward E. Smith, “Is Cognitive Functioning Impaired in Methamphetamine Users? A Critical Review,” Neuropsychopharmacology 37 (2012): 586–608.

  59. See, e.g., Join Together Staff, “Opioid Addiction Being Treated with Medical Marijuana in Massachusetts,” Partnership for Drug-Free Kids, October 7, 2015.

  60. A great reading list for this purpose would include Drucker, Plague of Prisons; Hart, High Price; Maia Szalavitz, Unbroken Brain: A Revolutionary New Way of Understanding Addiction (New York: St. Martin’s, 2016).

  61. Marsha Rosenbaum, “From Nancy Reagan’s ‘Just Say No’ to Just Say ‘Know,’” USA Today, March 11, 2016.

  62. Harm Reduction Coalition, “Principles of Harm Reduction,” http://harm-reduction.org/about-us/principles-of-harm-reduction.

  63. NYS Department of Health AIDS Institute, “Comprehensive Harm Reduction Reverses the Trend in New HIV Infections,” March 2014, https://www.health.ny.gov/diseases/aids/providers/reports/docs/sep_report.pdf.

  64. Gay Men’s Health Crisis, “Syringe Exchange Programs around the World: The Global Context,” 2009, http://www.gmhc.org/files/editor/file/gmhc_intl_seps.pdf.

  65. David Gutman, “Seattle, King County Move to Open Nation’s First Safe Injection Sites for Drug Users,” Seattle Times, January 27, 2017. Lisa Foderaro, “Ithaca’s Anti-Heroin Plan: Open Site to Shoot Heroin,” New York Times, March 26, 2016.

  66. Hartsfield Jackson International Airport, “Airport Amenities: Smoking Lounges,” http://www.atl.com/about-atl/airport-amenities/#SmokingLounges.

  67. Centers for Disease Control, “Smoking and Tobacco Use: Fast Facts,” https://www.cdc.gov/tobacco/data_statistics/fact_sheets/fast_facts/index.htm#toll.

  68. Jeff Ward, Wayne Hall, and Richard Mattick, “Role of Maintenance Treatment in Opioid Dependence,” The Lancet 353 (1999): 221–226, http://www.sciencedirect.com/science/article/pii/S0140673698053562.

  69. German Lopez, “The Case for Prescription Heroin,” Vox, June 12,
2017, https://www.vox.com/policy-and-politics/2017/6/12/15301458/canada-prescription-heroin-opioid-addiction.

  70. John Strange, et. al, “Heroin on Trial: Systematic Review and Meta-Analysis of Randomised Trials of Diamorphine-Prescribing as Treatment for Refractory Heroin Addiction,” British Journal of Psychiatry 207 (2015): 5–14, http://bjp.rcpsych.org/content/207/1/5.

  71. Alex Stevens, Drugs, Crime, and Public Health: The Political Economy of Drug Policy (New York: Routledge, 2011), 128.

  72. Gillian White, “The U.S. Ranks 23rd out of 30 Developed Countries for Inequality,” The Atlantic, January 16, 2017, https://www.theatlantic.com/business/archive/2017/01/wef-davos-inequality/513185.

  73. Stevens, Drugs, Crime, and Public Health, 128.

  74. Chloe Cockburn, Daliah Heller, and gabriel sayegh, “Healthcare Not Handcuffs: Putting the Affordable Care Act to Work for Criminal Justice and Drug Policy Reform,” American Civil Liberties Union and Drug Policy Alliance, December 2013.

  75. A.E. Cuellar and J. Cheema, “Health Care Reform, Behavioral Health, and the Criminal Justice Population,” Journal of Behavioral Health Services & Research 41(2014): 447–459. K. Patel, A. Boutwell, B.W. Brockmann, and J.D. Rich, “Integrating Correctional and Community Health Care for Formerly Incarcerated People Who Are Eligible for Medicaid,” Health Affairs 33(2014): 468–473.

  76. T. A. Eberly, Y. Takahashi, M. Messina, and P.C. Friday, “Chronic Offender Study: Final Report,” Charlotte, NC: Mecklenburg County Sheriff’s Office, Research and Planning Unit, 2007. M.C. Ford, “Frequent Fliers: The High Demand User in Local Corrections,” Californian Journal of Health Promotion 3(2005): 61–71. A. B.Wilson, J. Draine, T. Hadley, S. Metraux, and A. Evans, “Examining the Impact of Mental Illness and Substance Use on Recidivism in a County Jail,” International Journal of Law and Psychiatry 34(2011): 264–268, doi:10.1016/j.ijlp.2011.07.004. R. MacDonald, F. Kaba, Z. Rosner, A. Vise, D. Weiss, M. Brittner, M. Skerker, N. Dickey, and H. Venters, “The Rikers Island Hot Spotters: Defining the Needs of the Most Frequently Incarcerated,” American Journal of Public Health 105, (2015):2262–2268.