Why Decriminalization is Not Enough

Tom Houseman Decriminalization, Marijuana Legalization

There have long been two sets of de facto marijuana laws: one that punishes people of color in poor communities; and another, far more lenient — when they are enforced at all — for whites, mostly in the suburbs. This is largely because of discriminatory law enforcement.  Blacks and Latinos have long been at least three times more likely to be arrested for low-level marijuana possession.

Those who oppose legalizing marijuana for recreational use would have us believe that a half-measure, called decriminalization, would end this social injustice of the past 80 years. They want us to treat low-level marijuana possession like a civil, not a criminal, offense. This, they say, will solve the problem.

They also argue that decriminalization is the best way to protect public safety.  They are wrong on both counts.

Historical perspective is helpful here.

Anti-marijuana advocates opposed medical marijuana, now legal in 33 states, every step of the way.  Many, including Alex Berenson in his new book Tell Our Children, still do: “Marijuana is not medicine.” he writes.  Most opponents were also against decriminalization when it was first brought forward. Decriminalization is now is their new line in the sand. They are united in supporting it.

Why does decriminalization not eliminate the harmful effects of law enforcement primarily on minority communities? Civil offenses generally include a fine – up to $200 in Illinois. Fines can have a debilitating effect on lives at the margin.

The New York Times and National Public Radio have both thoroughly documented the impact that accumulating fines can have on those living paycheck to paycheck. The Federal Reserve Board has estimated that 40 percent of Americans don’t have enough money to cover an emergency expense of $400.

Decriminalization continues to provide law enforcement with an excuse to target poor communities of color. “In certain communities, some police just throw the book at people,” an activist commented recently. Until marijuana is legal, it will potentially continue to be an instrument of harassment.

Some people sell marijuana to support a substance use disorder or because they have no other means to subsist and, in some cases, feed their families.  Decriminalization does not address this issue. A legal, regulated market with a focus on social equity could provide opportunities for these people to seek treatment or jobs.  

Finally, marijuana arrests continue to be higher under decriminalization. This is because the amount of marijuana one can possess with legalization is higher, usually 30 grams, rather than 10 grams under decriminalization.  In Washington, marijuana convictions decreased by 76% from 2011 to 2015 and by 96% in Oregon between 2013 and 2016.

When it comes to public safety, opponents fail to recognize that decriminalization is still a form of prohibition. In fact, it is the same kind of prohibition that was disastrously applied to alcohol in the 1920’s.

Decriminalizing marijuana without legalizing it does not solve any of the problems associated with prohibition. It does not address the issues of the illicit, street corner, school yard, back alley markets and their myriad negative effects on both communities and drug users. Without a regulated market, any time individuals buy drugs they are doing so through the black market from an unlicensed dealer. They have no way of verifying what they are actually buying, and no recourse if something goes wrong.

Legalizing marijuana, and creating a taxed and regulated market, will solve these problems. A regulated retail market will make it safer for people to use marijuana, create jobs, and provide opportunities to revitalize neighborhoods trampled by the War on Drugs. These opportunities are just not possible – even as current injustices continue – under decriminalization.

In short, despite what opponents say, stopping short of full legalization does not ensure social justice nor does it adequately service public safety. Decriminalization is not enough.

Tom Houseman, Policy Director
Rev. Alexander E. Sharp, Executive Director

Marijuana Reform: Framing the Debate

Rev. Alexander E. Sharp Decriminalization, Marijuana Legalization

In theological terms that go back to Augustine and Aquinas, the War on Drugs is not a Just War.  First, it has no reasonable chance of success. Second, it has disproportionately harmed others, especially people of color. Third, reasonable alternatives exist, especially drug treatment rather than jail or prison for those struggling with substance use disorder.

As we head into 2019, thirty-three states have now legalized medical marijuana, 13 have decriminalized it, and 10 have approved legalization for recreational use. Policy debates are intensifying as opponents fear a new national approach to drug policy is taking hold.

Witness the just published book Tell Our Children by journalist and novelist Alex Berenson warning that marijuana can cause psychosis and other mental illness.  This is not a new concern. But as similar incomplete and partisan tracts appear, it is more important than ever before to examine the basic assumptions underlying the national marijuana debate.

The struggle is really between “prohibition” and “regulation.”  Is this too simple? I don’t think so. Those opposing legalization now make their stand at decriminalization. This is really a soft word for prohibition.  All production and distribution would remain with the illicit market. Low level users are given a civil citation, a small fine, like a traffic ticket. The same was true during alcohol prohibition in the 1920s: drinking liquor was legal, but selling it was not.

The best way to think about drug use and most other vices (defined as any activity that provides pleasure but also the possibility of harm) is set forth in the book Regulating Vice by James Leitzel, who teaches public policy and economics at the University of Chicago.  

Leitzel argues for regulations that protect youth, those in the throes of addiction and therefore unable to make rational decisions, and drug use that will likely harm others, such as driving while intoxicated.  None of this requires prohibition, which creates more harm than good.

As for legalization, I tell my clergy colleagues that is a misnomer: what they are really supporting is “regulation and taxation.”  I have heard opponents assert that we are encouraging marijuana use. In fact, we are merely acknowledging the reality of drugs in our society, including marijuana, and seeking the most effective ways to prevent abuse.  

The clearest evidence of the prohibition mindset is the federal classification of marijuana as a Schedule 1 drug under the Controlled Substances Act of 1970. According to this Schedule, marijuana is as dangerous as heroin and ecstasy, and has “no currently accepted medical use.” Federal agencies use this classification to block scientific studies even as they oppose drug policy reform citing a lack of research.  Most opponents of marijuana legalization try to defend this nonsensical classification.

Where does all this leave us?  On November 20, 2018, U.S. Rep. Joseph Kennedy III laid out a critical next step: “our federal policy on marijuana is badly broken… [Congress must] remove marijuana from the Controlled Substances Act (CSA)” and legalize it at the federal level.

After 47 years of a tragic War on Drugs that has cost our nation over $1 trillion dollars and destroyed innumerable lives, federal legalization will make it possible to continue to test regulation, starting with marijuana, at the state level.  Perhaps, at long last, we can end drug prohibition and achieve a national policy concerning drug use that best meets the needs of all our citizens.

Rev. Alexander E. Sharp, Executive Director

Harm Reduction: A Personal Journey

Rev. Alexander E. Sharp Harm Reduction

Many wage war against harm reduction, opposing clean needle exchanges, Naloxone, and other life-saving drugs. Some religious leaders, especially Evangelicals and Catholics, oppose harm reduction because they find all drug use to be immoral.

CNDP believes harm reduction to be profoundly moral and to reflect the deepest values of our religious faith. We advocate  a health not punishment response to drug use.

To understand harm reduction through first-hand experience, we approached Laura Fry, who directs patient and family services for Live4Lali, a Northern Illinois non-profit that works with individuals and families struggling with substance abuse.

In the following interview, CNDP Executive Director Rev. Alexander Sharp asked Laura to describe how she learned about harm reduction, what it is, and how she applies it in her work.

Al: What is harm reduction?

Laura: We all practice harm reduction every day. In my training sessions, when I ask, “Who practices harm reduction?” at first no hands go up. Then I ask, “Okay, who put a seat-belt on when they got in their car to come here?” Everybody’s hand goes up. We didn’t always have airbags or fluoride in our water. Harm reduction has evolved over the years. It’s anything we can learn or do that might prevent harm to people.

Al: So how does it apply to drug use, and how did you discover it?

Laura: My son was an IV heroin user. Seven years ago, when he was actively using, I would sack his room and throw out or break everything that I found, every pipe, every syringe. I even found his Naloxone [which revives people who have overdosed]. I had no idea what it was.

When I first heard about harm reduction, I didn’t know how I felt about giving drugs to drug users. But I learned that in places like San Francisco, where harm reduction was practiced, deaths dropped because of needle exchanges.

People who are addicted are going to use drugs. If someone with a substance use disorder finds a needle in a puddle, there is a good chance they will use it and even share it with others. When I was an emergency room nurse, a lot of IV drug users came in with abscesses because of reusing needles, sharing needles, not knowing how to inject properly. Those injuries could have been prevented.

Al: Drugs harm people. Why not simply say to drug users, “Look, you’ve got to stop. We’ve got 12-Step meetings that insist that you stop if you’re going to be part of those meetings.” What’s wrong with that?

Laura: Unfortunately, stopping doesn’t tend to stick with a chronic relapsing brain disease. That’s like saying to a person with diabetes, “you should try to produce enough insulin today.” It’s not possible.

People who don’t understand this reality wonder, “Why are you going in and out of rehab? Why are you going in and out of jail?” They think about drug use as an individual flaw. We have to look at the systems that are supporting this population and identify whether they are appropriately serving people in need. The emphasis on abstinence can set people up to fail.

Al: But isn’t abstinence the only way to recovery for some people?

Laura: Absolutely. But what data shows us is that treatment and recovery need to be individualized. A person who has three kids and a full-time job just cannot spend thirty days in an inpatient facility. For that person an evening outpatient program, treatment by an addiction specialist, and medication can be incredibly supportive.

There are definitely some people who need an inpatient program or who can only exist by total abstinence and going to four or five meetings a week. I respect that if that’s what works for you. But people are pretty complex and there are other areas that need to be addressed and other types of recovery programs available. Some people I know with opioid use disorder now use cannabis, medically or recreationally. If it helps you and you’re leading a productive life, and you’re alive, that’s a no-brainer.

Al: What you do for Live4Lali?

Laura: My title is director of patient and family services.  I oversee all  programming, whether in the community or in-house. We have multiple peer-to-peer recovery groups like SMART Recovery, a 25-year-old nonprofit organization that provides real life day-to-day tools for how to work your recovery. It uses cognitive behavior therapy and rational emotive behavior techniques.

Al: Are participants expected to go to meetings sometimes for the rest of their life, as often is the case with 12-Steps?

Laura: No. You graduate from SMART. One of the things that I say is, “I am not going to be sitting in this room 35 years from now with all of you all. People have come to me and said, ‘You know, I think I’ve gotten everything I can get out of this, and I want to discuss that with you.’”

Al: Can someone who’s going through the program continue to use drugs?

Laura: SMART Recovery encourages abstinence, but we make no judgment on that. Some people continue to use. We encourage any positive change. If I see someone who was an IV heroin user and now they’re smoking pot, that is a positive step. We encourage any positive change. It all comes down to: How are your behaviors? Are you an active member of society? Are you working? Are you functioning in your family? Do people like you again? Are you being responsible? Do you like yourself?

Al: What is medically-assisted treatment? Is that part of what you teach?

Laura: Well, I call it medication assisted recovery. We should think of it this way: if the pancreas doesn’t produce insulin, replacement insulin is needed. Medication-assisted recovery helps people who use opioids, alcohol, and tobacco in much the same way. People can be on these medications the rest of their lives. I have a dear friend whose son has been on methadone for nine years now. He’s a lawyer, he has two children, he’s married. Who cares? We don’t question this type of approach for any other chronic illness.

Al: Can you imagine a safe consumption facility? [SCFs are facilities that permit drug users to self-administer under medical supervision. Treatment capacity is available on site, but is not required. Over 60 such facilities exist in Europe and Australia. Only one exists in North America, none in the U.S.]

Laura: Oh, yes I can, but I don’t know if people are ready. People still believe that safe consumption sites are going to encourage people to use drugs.

Al: How do you answer that?

Laura: I’d like to take them to the trunk of my car and say, “I drive around with syringes all day. I’ve never been tempted to be an IV drug user.” Do you know what harm reduction enables? It enables health. Last summer when we started our mobile needle exchange, people were very hesitant to use the program but eventually could see that there’s no judgment, there’s no expectation. There is love. After a while, they said, “Talk to me about treatment.”

Obviously, the national response to addiction hasn’t been working. When I started out, 99 people were dying a day. Now it’s 192. So why not try love and compassion, especially when we know it works?

Al: What about treatment? I understand that in the U.S. we have treatment available for only one out of 10 who need it. You and I have talked about Portugal, where treatment is available for everyone. Would that be part of an answer?

Laura: Of course more treatment capacity would help. But not if it is just an intensive inpatient program that only teaches you one approach. Different levels of care are appropriate for different individuals, based on a validated diagnostic tool. Many treatment programs aren’t working with people on how to find a job or how to dress for an interview. Real life stuff. 

Housing is a great example. If we cannot find sustainable, supportive recovery housing for individuals leaving residential treatment, how does that bolster their resilience and motivation to stay with their recovery plan? What happens now is, people are often secluded for 30 days, which is necessary to break that cycle of use, but then they’re out and there’s no follow-up or connection. It’s really risky to rely on that model, especially without addressing harm reduction.

Al: It seems to me there are two parts to the war on drugs. We can support the use of the force of the state to try to cut down trafficking. Then there is the war against users. Where did the idea come from that we ought to be arresting people for using drugs?

Laura: Using punitive sanctions has been an American ideology that has proven to be ineffective. This is in essence controlling people’s behaviors through policy.  It comes from the myth that bad people use drugs. But we’re actively working to change that, and we’re seeing success.

Live4Lali has developed diversion programming and now we have a lot of law enforcement that want to help people. They’re starting programs where people can come into the police department with their drugs and their paraphernalia, drop it on the counter, and say, “I need help.” I’ve brought people into the police department five or six times. What we’ve seen is compassion. It just blows my mind. People in uniform hugging drug users and holding their hands and saying, “We’re going to help you.”

Al: Has all of your experience with drug use —in your personal life and your clinical work— given you any insight into how people change?

Laura: I lead meetings where I pass around a hand mirror and say, “I want each one of you to look in this mirror and tell yourself you love yourself and why. One thing about you … I don’t care what it is. You have nice eyelashes. I don’t care what it is.” I did this a couple of weeks ago, and I had people moved to tears. People say, “I never thought about myself like that.”

Al: How do they do that? It’s kind of hard to do.

Laura: Practice, practice. You’ve got to change those self-perceptions. I say, “I’m 58 years old. Don’t start this as late as I did. Start your path of discovery now, and learn to love yourself. If you don’t have it inside first, you can have the best job, all the money in the world, it won’t help.”

Al: Is love from other people part of this?

Laura: Absolutely. That’s one of the most important things about recovery.  And, then, turning around, giving back. Volunteer at a dog shelter, Meals on Wheels. Get out of your own head, help someone who might be a little less fortunate than you.

Al: You saw your son struggling with addiction. What do you say to parents who are experiencing the same things you did?

Laura: The first question I ask them: “What are you doing for yourself?” Then, I teach them first person language. Instead of saying, “You are going to kill yourself! How could you do this to me?” try saying “I am really afraid that something bad is going to happen, and that makes me feel anxious. I feel like I haven’t done my job right. I feel like I am not supporting you in the way I should.” The people who are stuck in this brain disease have more shame than we could ever give them. They don’t need us, as parents to say “You’re destroying our family.” You don’t think they know that? Compulsion in their brain is driving them to keep doing it.

I just see families out there, so many friends, who have lost their loved ones, who say now, “I wish I had known about harm reduction. If I had known about methadone, I know that it would’ve worked for my son.”

Civil Asset Forfeiture On Trial

Tom Houseman Ending Forfeiture Seizure

Civil asset forfeiture is one of the most controversial weapons in the arsenal of law enforcement. While some argue that it is crucial to the maintenance of “law and order,” critics on both sides of the aisle believe that it is an unconstitutional abuse of power that amounts to a trial without a jury. Now the Supreme Court has an opportunity to drastically curtail this power.

If there is truth in the adage “crime doesn’t pay,” it is because one of the goals of the criminal justice system is to ensure that people do not profit off of breaking the law. One crucial tool in this strategy is asset forfeiture, the ability of law enforcement to seize the ill-gotten gains of criminals, and to prevent them from committing further crimes. But while it is hard to argue against such a tool, the argument gets murkier concerning civil asset forfeiture.

In June we wrote about how civil asset forfeiture allows police to seize money and property from people under the pretense that it was used in connection with a crime, often without securing a conviction or even pressing charges. Stories abound of police pulling over drivers and seizing large sums of cash without even allegations of a crime having been committed.

However, civil asset forfeiture can also be used by law enforcement in the case of a conviction, if the goal is to circumvent restrictions on excessive fines. Recently, the United States Supreme Court heard arguments in Timbs v Indiana, a case that could limit the ability of state law enforcement to seize the property of their citizens in such cases.

In 2013, Tyson Timbs was arrested for selling heroin out of his car, and pled guilty to a crime that carries a maximum fine of $10,000. However, Timbs’ Land Rover is valued at $40,000, which exceeds the maximum fine, prohibiting law enforcement from seizing the vehicle through the criminal process. In search of a loophole, Indiana police seized the vehicle through the civil process, hoping that doing so would prevent Timbs from being able to challenge the seizure.

In dispute is whether or not civil asset forfeiture of this kind violates the eighth amendment protection against excessive fines. A state trial court sided with Timbs, but the Indiana State Supreme Court overruled this decision, stating that “the Excessive Fines Clause does not bar the State from forfeiting Defendant’s vehicle.” The case is now in the hands of the US Supreme Court.

Due in several months, the Supreme Court’s decision could have an enormous impact on the ability of states to seize property through the civil process. Since civil asset forfeiture involves, essentially, charging property with being involved in a crime, rather than the charging the person who committed the crime directly, the decision will rest on whether the Eighth Amendment applies to these cases. “We all agree that the Excessive Fines Clause is incorporated against the states,” stated Justice Gorsuch during arguments. “Whether this particular fine qualifies because it’s an in rem [property] forfeiture, another question.”

If the Court decides that the Eighth Amendment does apply to civil asset forfeiture, it may limit the ability of states to seize property without a conviction. If seizing property through the civil process is deemed an excessive fine, it could be argued that any civil asset forfeiture not connected to a criminal conviction could be considered excessive.

“So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari?” asked Justice Breyer. This argument, while obviously absurd, gets to the heart of why so many object to the way civil asset forfeiture is used around the country.

Ultimately, the Supreme Court is unlikely to make such a broad and sweeping ruling. Civil asset forfeiture continues to be a major problem around the country. On November 20th, the Nashville City Council in Tennessee voted 25-5 to renew its federal-state “equitable sharing” program, thereby circumventing a recently passed state restriction on seizures. Only six states, plus the District of Columbia, have banned equitable sharing.

There are still only three states that have completely banned civil asset forfeiture. Police around the country continue to abuse their power in the War on Drugs by seizing cash and property under the pretense of stopping drug trafficking. While the Supreme Court’s decision in Timbs v. Indiana could create an additional hurdle in this process, only abolishing civil asset forfeiture will ensure the end of these abuses.

Tom Houseman, Policy Director

The Midterm Elections: A Very Good Day

grygielny Decriminalization, Marijuana Legalization, Medical Marijuana

Let us be grateful for our U.S. federal system. In the face of a Washington bureaucracy mired in inertia and self-preservation, and a U.S. Congress reluctant to act, it is the individual states that will finally shut down our nation’s tragic and failed War on Drugs.

At the federal level, the Drug Enforcement Administration –ostrich-like – still labels marijuana a Schedule 1 drug with “no currently accepted medical use.” National policies are shamefully ambivalent about harm reduction measures such as clean needle exchanges, naloxone, and medically assisted treatment. Private prison expenditures are steadily growing under the Trump administration.  Civil asset forfeiture is still federal policy.

That’s why we must celebrate what happened in Michigan, Missouri, Utah, and Florida on November 6.

As our Drug Policy State Grading Map makes clear, each state has its own story to tell about where it ranks in the effort to end the War on Drugs and what it has just contributed to this goal.

Michigan became the first in the Midwest to approve marijuana for recreational use, joining nine from the East and West.  It raised its drug policy map grade for marijuana to an “A”, thereby achieving a composite grade across our entire agenda of B-, up from C+.  It falls short of a higher grade because of its punitive position on civil asset forfeiture and a limited Good Samaritan law.  

Voters in Utah approved a ballot initiative legalizing medical marijuana.  This is remarkable in a state where over 60% of the electorate is Mormon, that is, members of the Church of Jesus Christ of Latter- day Saints, a religion which counsels its members to avoid any substance that might be habit forming, including tobacco, coffee and tea.

Even after the ballot initiative, Utah’s grade on marijuana policy remains “C”.  It is unlikely any time soon to join the 30 states that have either decriminalized marijuana or legalized it for recreational use.  

Utah thus provides a significant precedent for those in other states trying to decide whether to move forward with medical marijuana.  I have just returned from recruiting clergy in South Carolina to support medical marijuana next year. When I point out that Mormons, even with their commitment to abstaining from all stimulants, can support marijuana as medicine because it brings healing, clergy get the point.

Missouri also approved medical marijuana, thus raising its marijuana laws to a “B”.  They have yet to decriminalize marijuana, that is, treating low-level possession as a civil offense, like a traffic ticket.

When it comes to “game changers”, perhaps the most remarkable event of November 6 was what happened it Florida.  Voters approved a state constitutional amendment to restore voting rights to felons who have served their sentences, including parole and probation.  This will change the status of 1.5 million individuals starting January 8.

Although this measure does not involve drug laws, it is part of our agenda. Why? Because it is the War on Drugs that has deprived so many people of the right to vote: over 6.1 million individuals are disenfranchised across the nation due to felony convictions.  Almost 50% of those in federal and 15% in state prisons currently are incarcerated for drug offenses.

Despite this dramatic step forward, Florida’s grade under this category increases only to a C+.  The state continues to limit access of convicted felons to supplemental assistance under the SNAP program and also operates private prisons. Both these policies harm large numbers of those convicted of low-level drug possession.  

With the state actions in Michigan, Utah, and Missouri on November 6, thirty-three states, encompassing at least 65% of the national population, will soon permit medical marijuana.  Ten have now voted to tax and regulate marijuana for recreational use. Florida has decided it will no longer deny 1.5 million citizens their constitutional rights.

All in all, it was a very good day.

Rev. Alexander E. Sharp, Executive Director