The Nation Magazine - August 18, 2003 issue

The Drug War Goes Up in Smoke

by Sasha Abramsky

The war on terror may be too new to declare victory or defeat. But this nation has been fighting a war on drugs for more than a quarter-century, ever since New York Governor Nelson Rockefeller mandated harsh drug sentencing in 1973 -- and it may be time to announce that this is one war we've lost. More than a million people are serving time in our prisons and jails for nonviolent offenses, most drug-related, at a cost to the public of some $9.4 billion a year. Many billions more are spent by the states and the federal government on drug interdiction, drug-law enforcement and drug prosecutions. Harsh laws that require lengthy minimum sentences for the possession of even small amounts of drugs have created a boom in the incarceration of women, tearing mothers away from their children. Much of the country's costly foreign-policy commitments -- especially in Latin America and the Caribbean -- are determined by drug-war priorities. And yet drug use has actually soared, with twice as many teenagers reporting illegal drug use in 2000 as in 1992.

The idea of putting more and more Americans in prison, a great number of them for crimes related to drug addiction, grew out of "broken windows" social theories developed by criminologists such as James Q. Wilson in the 1970s. Wilson and his acolytes believed that unless police and the courts aggressively cracked down on crime, the social compact would degenerate into anarchy. They argued that even nonviolent offenses, such as breaking windows or possessing small amounts of marijuana, contributed to an anything-goes climate in which more serious crimes would proliferate. By the 1980s, these theories had entered the political mainstream, allowing Presidents Reagan, Bush, Clinton and now George W. Bush to score political points by denouncing addicts and appearing tough on crime all at the same time. Though politicians may have embraced this framework because it sold well to voters, its implications for the nation's health have been extreme. The drug war exiled addiction from the realm of public health, placing it almost exclusively in the hands of law enforcement and the courts.

At the philosophical core of this war on drugs, as fought by the likes of Bush Sr.'s drug czar, Bill Bennett, are twin ideas: Drug use is a moral wrong in itself, and drug use makes people more likely to commit a host of other crimes, from prostitution to burglary to murder. To fight drugs, the drug warriors have insisted, it isn't enough to go after the narco-kingpins; government agencies and courts must disrupt the drug supply-and-demand by prosecuting, and imprisoning, increasing numbers of low-level street dealers, even users themselves.

In the past few years, however, these policies have come under attack from surprising quarters. Opponents range from public health activists to libertarian-minded political figures such as former Secretary of State George Shultz. On the one hand, the critics have argued, these policies have failed to make progress toward a drug-free America. On the other, the war has proved to be too expensive to sustain. In an era of shrinking state resources, legislators have come to understand that budgets cannot be balanced, and needed social programs cannot be maintained, unless the country's bloated prison system is shrunk back down to a more realistic size. These two concerns have converged to create a window of opportunity for drug-policy reformers to push their case where it matters most: in the states.

Winter is hesitatingly giving way to spring, and New Mexico's former Governor Gary Johnson is tending to a broken leg in preparation for an expedition to climb Mount Everest. His daredevil athleticism is a marker of the same temperament that allowed Johnson, a Republican, to become the only governor ever to publicly support drug legalization while in office. The significant progress he made on drug-policy reform during his eight-year tenure helped to turn the tide for state reform movements across the country. "Johnson was a huge advocate," says Jerry Montoya, who runs a county needle-exchange program in the state, "ahead of federal policy in terms of thinking, in terms of philosophy."

In 2002, the last year of Johnson's tenure, state legislators voted to limit the ability of state police to seize the assets of those accused of drug-related crimes; to return a certain degree of case-by-case discretion to judges trying nonviolent drug cases; and to waive the federal ban on welfare benefits for former drug offenders who have completed their sentences.

During his tenure, Johnson, a fiscal conservative, made enemies of liberals through his hostility to tax-and-spend policies and his fondness for privatizing government functions -- including prisons. He frequently vetoed the creation of new government programs, using, in his words, "an iron fist" on the state budget. But he made enemies of conservatives as well, primarily over his outspoken views on drug policy. He combatively declared the war on drugs "a miserable failure" and ambitiously investigated alternatives, including legalization.

Although he abstains now even from caffeine, sugar and alcohol, Johnson admits that he once inhaled--quite often. "I didn't hide it," he says. "Growing up [in the 1960s], I smoked marijuana regularly in college and a little bit after college. And I experimented with other drugs." This experience, combined with a strong libertarian streak, allowed him to be an iconoclastic thinker on drug policy. "If we legalized all drugs tomorrow, we'd be better than we are now regarding death, disease and crime reduction," he says. "There'd be more money into education; and more money into treatment for those who want or need treatment. At present rates, I'm going to see, in my life, 80 million Americans arrested for illegal drugs. The human cost of what we're doing is untold."

Johnson concluded that policies such as distributing clean needles to addicts and opening up regulated heroin-maintenance programs would do more to manage addiction than simply sending the police out to round up addicts; he also concluded that legalizing some categories of drugs and carefully regulating their sale would remove a huge pool of money from organized-crime cartels, boost government tax revenues and free up large amounts of money to be invested in drug education and health centers.

Retired Judge Woody Smith, who served on the bench in Albuquerque in the 1980s and '90s before joining a Johnson task force on drug law reform, says, "He believes our approach [to the war on drugs] was wrong, from a personal liberty standpoint and a pragmatic standpoint." Smith, too, was eventually persuaded that the country's approach to drugs needs to be drastically overhauled. "Legalization and regulation are the only answer," he says now. "It's not a perfect solution, but it's a hell of a lot better than what we're doing now."

This evolution of thinking in New Mexico has spread across the country in recent years. Increasingly impatient with the costly combination of policing and prosecution, voters, along with a growing number of state and local elected officials, have abandoned their support for incarceration-based anti-drug strategies and have forced significant policy shifts. From conservative states like Louisiana to traditionally progressive states like Michigan, from small states like New Mexico and Kansas to large states like California, all the big questions are up for debate: Should marijuana be decriminalized, at least for those with pressing medical needs? Should mandatory minimum sentences for low-level drug offenders be abandoned? Should prison terms for crimes of addiction be replaced by mandated treatment? Should governments fund needle exchanges and other harm-reduction programs for drug users as a way of controlling epidemics? Increasingly, at the local level, the answers are yes, yes, yes and yes.

In 1996 voters in Arizona passed Proposition 200, transferring thousands of drug offenders into treatment programs. In California, a similar initiative passed in 2000, Proposition 36, channeled tens of thousands of addicts into treatment -- and reduced the number of inmates imprisoned on drug-possession charges from almost 20,000 at the time of the law's passage to just over 15,000 in June 2002.

In 1998 Michigan repealed its notorious "650-lifer" laws, which decreed a mandatory life sentence for those caught in possession of more than 650 grams of certain narcotics. Then, last Christmas, Governor John Engler signed legislation rolling back the state's tough mandatory-minimum drug sentences and its equally tough "lifetime probation," which had been imposed on many drug offenders following their release from prison.

Early this year North Dakota repealed its one-year mandatory-minimum sentence for those convicted on a first-time drug-possession charge, as did Connecticut in 2001. Indiana and Louisiana have repealed some of their statutory sentences, and Louisiana has restored parole and probation options for inmates convicted of a host of nonviolent offenses.

In Kansas a sentencing commission has proposed major reforms of the state's mandatory sentencing codes coupled with an expansion of treatment provisions. Despite opposition from conservative legislators, these recommendations were accepted in late March. "It's definitely a change of philosophy regarding how you deal with drug offenders," says Barbara Tombs, executive director of the Kansas Sentencing Commission. "With the state budget cuts and [many] drug treatment programs in prisons being eliminated, there is an urgent need to look at alternatives to incarceration for drug prisoners."

At the same time, a clutch of states, including California, Washington, Oregon, Hawaii, Alaska and Nevada, have adopted medical marijuana legislation, legalizing the drug's use for specific medical conditions such as AIDS wasting, and a similar measure in Colorado was invalidated on a technicality.

Taken as a whole, these reforms represent the biggest change to state drug policies in more than a generation.

But while state legislatures have opened up the financial and moral debates about drug policy at the local level, the federal government is having none of it. The most recent Bureau of Justice Statistics data show that the number of people charged with drug offenses in federal courts rose sharply, from 11,854 in 1984 to 29,306 in 1999. During roughly the same period, the amount of time a federal drug prisoner could expect to serve in prison more than doubled, from thirty months to sixty-six months.

On many issues, from gun ownership to environmental regulation, the Bush team has backed the conservative cause of states' rights. But the Administration has blocked even mild attempts at state drug-law reform and has challenged state reformers over issues such as medical marijuana and needle exchange. The Justice Department has fought medical marijuana laws in court and launched a massive PR campaign against pot use. It has even pursued federal prosecution of those who legally distribute medical marijuana under state laws. Attorney General John Ashcroft is "willing to push even the smallest cases," says David Fratello, political director of the Campaign for New Drug Policies. "We're seeing a new level of pettiness and aggression."

Clinton's drug czar, Gen. Barry McCaffrey, was criticized by drug policy reformers for his refusal to discuss legalization initiatives and his zeal for militarizing the drug wars overseas. But these advocates find Bush's czar, John Walters, to be even worse. Under Walters's reign, the Office of National Drug Control Policy (ONDCP) has encouraged state prosecutors to go after medical marijuana providers, especially in California, and has driven underground virtually every medical-marijuana buyers' club in the country. It has held press conferences against citizens' reform initiatives. And it has sponsored extravagant advertising campaigns in state and local papers and on television stations--with $180 million earmarked for anti-marijuana ads alone -- that demonize teen drug use by linking it to terrorism.

Walters has also put pressure on state legislators, declaring that many drug-law reforms would contravene federal laws. In the fall 2002 elections, he traversed the country, stopping in Arizona, Michigan, Nevada and Ohio, campaigning against medical marijuana efforts and meeting with newspaper editors to push his case. The House version of the ONDCP Reauthorization Act originally included a provision that would have brought such politicking to a new level, allowing the White House to spend almost $1 billion in public money on ads attacking state and local ballot measures that promote drug-law reform. Interestingly, a Republican-led House committee removed that provision before approving the bill.

Yet in many ways Walters may be fighting yesterday's war on drugs. States like California, with its extensive system of medical-marijuana buyers' clubs, and New Mexico, with its public support for needle exchange, are beginning to shape up as the vanguard of a whole new approach to drug addiction.

In the poorest barrios of Albuquerque, teams of workers with Youth Development, Inc. (YDI) take their vans from one addict-client to another. Late into the night, they visit shooting galleries, ordinary private homes and the cardboard shelters constructed in alleyways by some of the city's homeless. At each, they reclaim dirty needles, fill in forms identifying the numbers returned, give out an equivalent number of clean needles, provide bottles of needle-cleaning solutions and also offer their clients HIV tests.

This was once a fairly underground operation. But now groups like YDI operate across the state with strong support and funding from New Mexico's Department of Health. All told, they distribute hundreds of thousands of clean needles per month to almost 7,000 card-carrying clients -- and retrieve hundreds of thousands of dirty needles.

New Mexico's harm-reduction approach seems to be bearing fruit. A study from 1997 found that while the majority of the state's injection-drug users had been exposed to hepatitis C -- suggesting that considerable needle-sharing was taking place -- less than 1 percent of injection-drug users tested positive for HIV. Health experts saw a brief window of opportunity in which to create workable needle-exchange programs that could prevent HIV from spreading, as hepatitis C already had. So far, the programs appear to have worked: In a state with one of the largest per capita injection-drug-using populations in the country (New Mexico recorded 11.6 heroin deaths per 100,000 between 1993 and 1995, compared with a national average of 5.4 deaths per 100,000), the needle-exchange program has kept HIV to a bare minimum within the close-knit community of users. Department of Health experts estimate that even today, that number is around 11 percent--a low rate, compared with data from the federal Centers for Disease Control and Prevention showing that 27 percent of injection-drug users are HIV-positive in cities like Boston, Miami and Washington.

"My whole attitude about drugs and drug users has changed," says Rosie Clifford, a nurse who works in a public health center in the hardscrabble community of Los Lunas, twenty miles south of Albuquerque. "I used to be very conservative, very law and order. But even if you're really conservative, and you look at needle exchange, you ought to see it as a good way to stop the further spread of HIV and hepatitis and any blood-borne disease."

Danny, a twenty-something heroin addict, has been a client of YDI since 1999 and speaks with gratitude about the group's services. "I don't have to worry about used needles, about diseases," he says. "There was a time if I needed a new syringe I'd have to buy it for five bucks, and you don't know if it's new or not." YDI has provided Danny with health information, and, if he needs it, the group will arrange for a doctor to visit him at home.

Elsewhere in the state, in Rio Arriba County, near the nuclear laboratories of Los Alamos, public health workers are distributing not only needles but Narcan, an injected medication that can reverse the effects of a heroin overdose. So far, they believe they have saved about a dozen lives by training addicts in its use.

Many of the communities in this beautiful mountainous region are desperately poor. Often the roads are dusty and unpaved, dotted with impromptu altars set up in memory of those killed in car accidents -- or murdered in battles over drugs and drug money. Heroin and methamphetamine addiction is so widespread here that in some houses, three generations of users share drugs with one another. Yet, while the police in many parts of the country routinely arrest users--and even level paraphernalia charges against addicts bringing dirty needles into exchange programs -- in the town of Española, police chief Richard Guillen allows harm-reduction coordinators into his jail and encourages his officers to coax addicts to seek treatment.

Guillen believes that the old approach to drug addiction has failed: "All we're doing is interdiction at the federal level," he says, "and we haven't been successful in reducing demand." By contrast, he says, his local police have recognized that "an addiction to drugs is just like any other illness. Let's try to get them treatment, counseling. Without treatment, all we have is a revolving door."

In the 1980s and early '90s, faced with a growing crack epidemic and the attendant media reports of out-of-control drug gangs and waves of violent crime, the public threw its support behind extremely coercive anti-drug policies. Then the crime rates began falling and, gradually, public attitudes began to soften. High-profile research projections and a growing cadre of advocacy groups -- many, like the Lindesmith Center and the Drug Policy Foundation, funded by billionaire philanthropist George Soros -- encouraged this shift in attitudes by suggesting that treatment was more effective than prison at lowering both addiction and crime. The advocacy groups drafted model reform legislation and promoted ballot initiatives like those that have diverted nonviolent drug offenders away from prisons in Arizona and California. The researchers produced numerous studies showing that it costs far less to place an addict in treatment than in prison--and that treatment has a higher success rate in breaking the addiction cycle. A survey conducted by the Pew Research Center in 2001 found that fully 73 percent of Americans favored permitting medical marijuana prescriptions; 47 percent favored rolling back mandatory-minimum sentences for nonviolent drug offenders; and 52 percent believed drug use should be treated as a disease rather than a crime. Faced with this grassroots shift, local elected officials, too, began to re-examine the beliefs and theories underlying America's anti-drug strategy.

Ever since recession hit two years ago, these changes in thinking have been bolstered by fiscal realities. While the Bush Administration may think it can fight a war on terror and run an occupation of Iraq while also cutting taxes and continuing the drug-war imprisonment boom, states are dealing with a more bitter reality. The Administration may want to devote resources to shutting down medical-marijuana buyers' clubs set up legally under new state laws, but states are no longer so enthusiastic. They are realizing that their budgets, buffeted by declining tax revenues, simply can't support major domestic-security spending and, at the same time, continued high expenditures on drug-war policing and mass incarceration. With drug treatment cheaper than incarceration and increasingly viable in the court of public opinion, drug-law reform is gaining ground despite federal intransigence. More and more elected officials are beginning to conclude that it's time to bring home the troops in the war on drugs as we know it. "Treatment instead of incarceration across the whole country has become a political safe ground," former Governor Johnson says. "It could not have been said safely prior to three years ago. Now it's totally safe."