April 8, 2005 - The Daily Record (MD) Rethinking The War On Drugs By Lawrence Hurley

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As the war on terror continues unabated three-and-a-half years after Sept. 11, 2001, questions are increasingly being raised about another policy-driven conflict now in its fourth decade: the war on drugs. And it's not just the usual suspects from the left of the political spectrum who are asking those questions.

Although the "war on drugs" reached its most intensive phase while Republican icon Ronald W. Reagan was president, there are many within conservative ranks who aren't so sure that long mandatory sentences and draconian criminal laws are such a good idea.

Among them is Donald E. Santarelli, a senior law enforcement official during the Nixon administration, who is one of several experts speaking at a symposium organized by conservative Baltimore-based think tank the Calvert Institute on Wednesday, April 13.

As administrator of Nixon's Law Enforcement Assistance Administration in 1973-1974, Santarelli advocated an approach to drug use that emphasized treatment over criminal sanctions - especially notable since it was Nixon who issued the formal declaration of war on drugs shortly after his first inauguration in 1969.

The nation, however, increasingly followed the lead of Gov. Nelson A. Rockefeller of New York, who gained national attention for enacting the harshest drug laws in the country in 1973.

Now, with mandatory sentences for many drug offenses putting thousands of low-level drug users in prison, at great cost to taxpayers, Santarelli believes the pendulum may gradually be swinging back in the other direction. "In the professional criminal justice community there is clearly a consensus on the treatment issue," Santarelli said in a recent telephone interview. "The enforcement model is necessary, but not at the expense of the treatment model."

Dr. Robert Schwartz, director of the drug treatment program at the left-leaning Open Society Institute in Baltimore, couldn't agree more. "The public is more sophisticated than they were before," he said. "Everyone agrees that we can't arrest our way out of the drug problem."

The National Picture

Santarelli, who is now an attorney at Bell, Boyd & Lloyd in Washington, blames members of Congress (most of whom he dismisses as demagogues) for the failure to implement a structured national program to fund treatment at the state and municipal level.

Desperate not to be labeled "soft on crime," national politicians have shied away from rejecting mandatory sentencing and embracing an overhaul of drug policy, Santarelli said.

He pointed to the rise in popularity of drug courts, which have been expanding rapidly in Maryland, as a symbol of the hypocrisy in Washington.

Santarelli said drug courts are "what courts used to be," in that judges are free to use their discretion in sentencing defendants, thereby circumventing the "onerous and almost malicious sentencing guidelines."

Even so, he is not holding out much hope that the climate in Washington is about to change. "The [Bush] administration is interested in everything at once so as not to offend anyone," he said. "In terms of a concrete effort I don't think they are giving it enough emphasis."

For Baltimore lawyer George W. Liebmann, who organized Wednesday's symposium, now is a timely moment to reappraise the war on drugs - in part because the Supreme Court is considering the federal government's right to pursue certain drug users on a nationwide basis.

The court heard oral arguments in Ashcroft v. Raich in November but has yet to issue a decision. Plaintiffs Angel McClary Raich and Diane Monson claimed the federal government had no authority to prosecute them because the marijuana they used for medicinal purposes was cultivated on their own land and never transported out of the state of California, where such use is legal.

The federal Controlled Substances Act exceeds Congress' power under the Commerce Clause to regulate interstate commerce, they argued. The 9th U.S. Circuit Court of Appeals agreed - as did Maryland's own attorney general, J. Joseph Curran Jr., in an amicus brief filed with the Supreme Court.

Liebmann said the case poses some interesting questions about drug policy.

If, for example, the Controlled Substances Act as it applies to the personal use of marijuana was struck down, it would theoretically open the door to a complete re-think of criminal drug laws. "The states would be free to determine whether to penalize marijuana possession," Liebmann noted. "There would be a lot of public policy opportunities."

Despite the questions raised by the case, Liebmann, for one, isn't expecting much.

He expects an "extremely narrow" ruling from the court.

"They will duck the constitutional issue, but it will provoke debate," he said.

Closer To Home

One prominent conservative who has attracted national attention for his attitude to drugs is none other than Maryland Gov. Robert L. Ehrlich Jr.

Two initiatives in particular catch the eye.

One was a new law reducing the punishment for marijuana possession if the defense convinces the court that it was for medicinal use.

Ehrlich endorsed the idea despite objections from the Bush White House.

His administration also has presided over the implementation of a new pilot program within the Department of Public Safety and Correctional Services that stresses drug treatment over incarceration for nonviolent offenders.

"He is the most progressive governor in the nation," Santarelli said.

The Open Society Institute's Schwartz also had warm words for the governor, although he stressed that a lot more resources need to be allocated to the issue.

"There is definitely recognition that drug treatment is effective," he said. "It's in short supply nationally and locally. Gov. Ehrlich's program is a good step."

Liebmann acknowledges the developments being made by politicians like Ehrlich, describing them as "liberalizing steps" that might eventually lead to politicians addressing the question of whether marijuana use should be prosecuted at all.

And, as Santarelli points out, he suggested a lower-key approach to marijuana when he worked for Nixon more than 30 years ago. Although decriminalization was out of the question at that time, he had argued that police should make enforcement action against marijuana users a low priority, he said.

Certainly, there are other problems that could benefit from a reallocation of resources.

In Baltimore, the oft-cited estimate that there are between 50,000 and 60,000 hard-drug addicts has held for at least a dozen years now (since the Mayor's Working Group on Drug Policy Reform in 1993), with heroin and crack cocaine the drugs of choice.

Schwartz, whose office at the Open Society Institute helps to fund drug treatment programs in the city, said treatment is not only an effective way to try and combat the root cause of crime, but also is more cost effective.

He said that the city's programs lead, on average, to a 40 percent to 50 percent reduction of drug use among participants at a cost of just $3,500 per person.

This compares with the $25,000 per person it costs to incarcerate someone for a year in state prison.

"Drug treatment is now a known quantity," Schwartz said.

Meanwhile at the state level, there also is a recognition that more needs to be done.

Alan R. Friedman, who advises Ehrlich on drug policy, said efforts are being made to analyze the needs of each jurisdiction so that drug treatment services can be funded accordingly. "What Baltimore City needs is different to what Calvert County or Washington County needs," he said. "That's what we are doing."

Another priority is to ensure that nonviolent offenders with drug problems are treated in prison and, when released, are linked with the services they need in order to help prevent them returning to their former way of life.

On some occasions, such offenders could even avoid going to prison altogether if they are eligible for diversion programs, which can be requested by both prosecutors and defense attorneys.

"Incarceration is very expensive," Friedman said. "If we can identify the right people who would be amenable to treatment, that's what we want to do."

Friedman also stressed that Republicans and Democrats have been united on the issue, a rarity in a bitterly divided General Assembly.

The drug wars may not be over, but a new phase could be beginning.

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