Last month the Drug Policy Alliance, joined by two other organizations, filed a petition for a ballot initiative in Oregon that, if approved by the voters in November 2020, would decriminalize drug possession. It would mandate treatment rather than arrests as the first response to drug use. Those possessing any drug—including heroin and cocaine – would be charged with a civil rather than a criminal offense. They would be subject to a citation, much like a traffic ticket. Drug trafficking would remain illegal. The ballot measure would require the state to provide $57 million in the first year for the treatment of drug addiction. It would establish addiction recovery centers across the state with funds obtained from revenue from marijuana sales and from reduced prosecution and incarceration costs. Whether the proposed measure—called the Drug Addiction Treatment and Recovery Act—will actually be on the ballot is far from certain. It would require 112,000 signatures and will face strong opposition from law enforcement and community groups. The sponsors will decide in the next few weeks whether to move forward. Yet even the filing of this petition is hugely significant. It is difficult to imagine any single step that, if broadly imitated in other states, could do more to end our failed War on Drugs. Clergy for a New Drug Policy has long advocated for drug decriminalization of the kind now being proposed in Oregon. We have pointed out that Portugal adopted this model almost 20 years ago. Drug arrests have declined, drug use has not increased significantly, and hundreds of thousands of individuals have received treatment.
In her superb new book Until We Reckon: Violence, Mass Incarceration, and A Road To Repair, Danielle Sered makes the case that lengthy sentences for violent criminals are misguided. Sered is a pioneer in applying concepts of restorative justice to violent, not just non-violent offenders. In order to truly end mass incarceration, she argues, we have to focus not just on drastically reducing the sentences of people charged with violent crime, but on creating “a justice system that is not just smaller, but is truly transformed into the vehicle for accountability, safety, and justice that everybody deserves.” Sered’s arguments are equally applicable to people who sell drugs. In recent years there has been a change in how politicians discuss people with substance use disorders. The narrative has shifted from a criminal justice to a public health issue. If people have an illness, they should not be punished, but instead offered a chance to heal. Yet this shift has heightened a dichotomy that mirrors the distinction between “non-violent” and “violent” criminals: people who use drugs and people who sell drugs. With one hand legislators and law enforcement offer help to those who use drugs, while with the other they punish those who sell them. Almost a year ago we wrote about Kristen’s Law, a Rhode Island law (named after a woman who died of a fentanyl overdose) that allows prosecutors to charge dealers who sell heroin laced with fentanyl with first degree murder. Similar laws have recently been passed in Florida, North Carolina, and Connecticut. There has even been talk at the national level of ceding control over fentanyl sentencing to the DEA. The arguments for long prison sentences generally include punishing the guilty, protecting the public, deterring crime, and helping victims heal from the harm done to them. Yet as Sered explains, our current systems of law enforcement and incarceration are woefully ineffective at producing any of those outcomes. Long mandatory minimum sentences for both violent and drug selling crimes are shockingly ineffective deterrents. Sered points to studies showing that a swift and consistent punishment is far more effective than a longer punishment handed out inconsistently. This applies particularly to people who sell drugs at the “street level,” usually in small quantities to regular customers. Because they have no hand in the production of these drugs, they usually don’t even know if their drugs contain fentanyl. It is impossible for them to know the likelihood that the person they are selling to will overdose. Another argument in favor of long punishments is that locking up wrongdoers will reduce drug selling. However, targeting low-level dealers does nothing to reduce supply because they are so easily replaced. Police officers refer to the task of locking up low-level dealers as “playing whack-a-mole” because of how quickly a new dealer will pop up. Increasing punishments for “causing” a drug overdose death makes drug use less safe. If somebody overdoses, their survival is dependent on how quickly they receive medical care. One tool most states use to increase emergency medical care for people overdosing is “Good Samaritan Laws.” These laws ensure that somebody who calls for medical help in the event of an overdose will not be prosecuted for a drug violation. The hope is that knowing they will be protected by the law will make people more likely to call emergency medical services. Laws targeting drug sellers will have the opposite effect. Often drug users will share drugs, which could categorize somebody as a “dealer.” Aggressively prosecuting people who sell or provide drugs makes those people less likely to seek medical help in the event of a drug overdose. If the goals are fewer people selling drugs and fewer drug overdose deaths, there are solutions that we know will be successful. Safe consumption facilities around the world, including several in Canada, help people use drugs safely. In the United States such facilities are illegal, but there are other harm reduction tools that can be provided to drug users. When people have access to Naloxone, an opioid antagonist that reverses the effects of an overdose, they are able to save not just their own lives, but the lives of people around them. To stop people from selling drugs, Sered believes that “the solution lies in developing more tools, not in eliminating the person we fear.” If people sell drugs to survive, providing economic resources, whether it is education and job training or assisted housing, will create opportunities to financial stability. Putting people in prison only takes those opportunities away, labeling people as criminals for the rest of their lives. Sered notes one study found that “those who received a formal label [such as convict or felon] were more likely to recidivate than those who did not.” Locking a person up for as long as possible will accomplish nothing besides destroying that one life as punishment for accidentally being party to another person’s death. Sadly, there is no way to heal the damage done to somebody who dies of a drug overdose. But the wounds caused by violence go beyond the victim themselves. When somebody dies it impacts their family and their communities. A prison sentence makes it impossible to heal the damage done to a community, by taking away “the very power people should be obligated to use to make things right, thus rendering the possibility of repair nearly impossible.” Instead, it often doubles the harm initially caused. People who sell drugs also have families who rely on them, and children who will grow up with a parent in prison. We cannot think of prison or the War on Drugs as tools for, in Sered’s words, “managing monsters.” The goal must be, above all, safety, and creating communities and spaces where people can make safe choices. While it may be politically popular to demonize people who sell drugs, or even to argue that they receive the death penalty, these policies destroy lives, including the lives of people they are designed to protect. Until We Reckon lays bare the contradictions and hypocrisies of these policy and provides a roadmap to undoing their damage. Hopefully, that reckoning will begin soon, and we can find a better, safer path forward. Tom Houseman, Policy Director
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 DirectorRev. Alexander E. Sharp, Executive Director
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
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