By Phillip Smith
As Drug War Chronicle marks the publication of its 1,000th issue (with yours truly having authored 863 of them going back to 2000), we reflect on what has changed and what hasn’t in the past couple of decades. This piece recounts our domestic drug policy evolution in the US; a companion piece looks at the international picture.
A lot has happened. We’ve broken the back of marijuana prohibition, even if we haven’t killed it dead yet; we’ve seen medical marijuana gain near universal public acceptance, we’ve seen harm reduction begin to take hold, we’ve fought long and hard battles for sentencing reform — and even won some of them.
But it hasn’t all been good. Since the Chronicle began life as The Week Online With DRCNet back in 1997, more than 30 million people have been arrested for drugs, with all the deleterious consequences a drug bust can bring, and despite all the advances, the drug war keeps on rolling. There’s been serious progress made, but there’s plenty of work left to do.
Here are the biggest big picture drug stories and trends of the past 20 years:
1. Medical Marijuana
It was November, 1996, when California became the first state to legalize medical marijuana, five years after San Francisco became the first city in the country to pass a medical marijuana measure, thanks in large part to the efforts of activists who mobilized to make its use possible for AIDS patients. Two years later, Alaska, Oregon, and Washington came on board, and three years after that, Hawaii became the first state to allow it though the legislative process. Now, 29 states, the District of Columbia, Guam, and Puerto Rico allow for the use of medical marijuana, and public support for medical marijuana reaches stratospheric levels in polls.
But the battle isn’t over. The federal government still refuses to officially recognize medical marijuana, potentially endangering the progress made so far, especially under the current administration, efforts to reschedule marijuana to reflect its medical uses remain thwarted, some of the more recent states to legalize medical marijuana have become perversely more restrictive, and in some of the more conservative states, lawmakers attempt to appease demands for medical marijuana legalization by passing extremely limited CBD-only laws.
2. Marijuana Legalization: In the War on Weed, Weed is Winning
Twenty years ago, pot wasn’t legal anywhere, and Gallup had public support for legalization at a measly 25%. A lot has changed since then. It took repeated tries, but beginning in 2012, states started voting to free the weed, with Colorado and Washington leading the way, Alaska and DC coming on board in 2014, and California, Maine, Massachusetts, and Nevada joining the ranks last year. Now, about a fifth of the country has legalized weed, with more states lining up to do so next year, including most likely contenders Delaware, Michigan, New Jersey, and Vermont.
Now, Gallup has support for legalization at 64% nationwide, with even a slight majority (51%) of Republicans on board. The only demographic group still opposed to pot legalization is seniors, and they will be leaving the scene soon enough. Again, the battle is by no means over. Marijuana remains illegal under federal law, and congressional efforts to change that have gone nowhere so far. But it seems like marijuana has won the cultural war, and the rest is just cleaning up what’s left of the pot prohibition mess.
3. Marijuana, Inc.: The Rise of an Industry
State-legal marijuana is already a $10 billion dollar a year industry, and that’s before California goes on line next month. It’s gone from outlaws and hippie farmers in the redwoods to sharp-eyed business hustlers, circling venture capitalists, would-be monopolists, and assorted hangers on, from accountants, lawyers, and publicists to security and systems mavens, market analysts, and the ever-expanding industry press.
These people all have direct pecuniary interests in legal marijuana, and, thanks to profits from the golden weed, the means to protect them. Marijuana money is starting to flow into political campaigns and marijuana business interests organize to make sure they will continue to be able to profit from pot.
Having a legal industry with the wherewithal to throw its weight around a bit is generally — but not entirely — a good thing. To the degree that the marijuana industry is able to act like a normal industry, it will act like a normal industry, and that means sometimes the interests of industry sectors may diverge from the interests of marijuana consumers. The industry or some parts of it may complain, for instance, of the regulatory burden of contaminant testing, while consumers have an interest in knowing the pot they smoke isn’t poisoned.
And getting rich off weed is a long way from the justice-based demand that people not be harassed, arrested, and imprisoned for using it. Cannabis as capitalist commodity loses some of that outlaw cachet, some ineffable sense of hipster cool. But, hey, you’re not going to jail for it anymore (at least in those legal states).
4. The Power of the People: The Key Role of the Initiative Process
The initiative and referendum process, which lets activists bypass state legislatures and put issues to a direct popular vote, has been criticized as anti-democratic because it allows special interests to use an apathetic public to advance their interests, as both car insurers and tobacco companies have attempted in California. It also gets criticized for writing laws without legislative input.
But like any political tool, it can be used for good or ill, and when it comes to drug reform, it has been absolutely critical. When legislatures refuse to lead — or even follow — as has been the case with many aspects of drug policy, the initiative process becomes the only effective recourse for making the political change we want. It was through the initiative process that California and other early states approved medical marijuana; it was five years later that Hawaii became the first state where the legislature acted. Similarly with recreational marijuana legalization, every state that has legalized it so far has done it through the initiative process; in no state has it yet made its way through the legislature, although we’re hoping that will change next year.
And it’s not just marijuana. The initiative process has also been used successfully to pass sentencing reforms in California, and now activists are opening the next frontier, with initiatives being bruited in California and Oregon that would legalize psychedelic mushrooms.
The bad news: Only 24 states have the initiative process. The good news: The ones that do lead the way, setting an example for the others.
5. The Glaring Centrality of Race
It took Michelle Alexander’s 2010 publication of The New Jim Crow: Mass Incarceration in the Age of Colorblindness to put a fine point on it, but the centrality of race in the prosecution of the war on drugs has been painfully evident since at least the crack hysteria of the 1980s, if not going back even further to the Nixonian law-and-order demagoguery of the late 1960s and early 1970s.
We’ve heard the numbers often enough: Blacks make up about 13% of the population and about 13% of drug users, but 29% of all drug arrests and 35% of those doing state prison time for drugs. And this racial disparity in drug law enforcement doesn’t seem to be going away.
Neither is the horrendous impact racially-biased drug law enforcement has on communities of color. Each father or mother behind bars leaves a family exploded and usually impoverished, and each heavy-handed police action leaves a bitter aftertaste.
The drug war conveyor belt, feeding an endless number of black men and women into the half-life of prison, is clearly a key part of a system of racially oppressive policing that has led to eruptions from Ferguson to Baltimore. If we are going to begin to try to fix race relations in this country, the war on drugs is one of the key battlefronts. Thanks in part to Alexander’s bestseller, civil rights organizations from the traditional to newer movements like Black Lives Matter have devoted increasing focus to criminal justice, including drug policy reform.
6. Harm Reduction Takes Hold
We don’t think teenagers should be having sex, but we know they’re going to, anyway, so we make condoms available to them so they won’t get pregnant or STDs. That’s harm reduction. So is providing clean needles to injection drug users to avoid the spread of disease, making opioid overdose drugs like naloxone widely available so a dosing error doesn’t turn fatal, passing 911 Good Samaritan laws to encourage and OD victims’ friends to call for help instead of run away, and providing a clean, well-lit place where drug users can shoot or smoke or snort their drugs under medical supervision and with access to social service referrals.
Two decades ago, the only harm reduction work going on was a handful of pioneering needle exchanges, thanks to folks like Dave Purchase at the North American Syringe Exchange Network (founded in 1988), and early activists faced harassment and persecution from local authorities. But it was the creation of the Harm Reduction Coalition in 1993 that really began to put the movement on the map.
In this century, harm reduction practices have gained ground steadily. Now, 33 states and DC allow needle exchange programs to operate, 40 states and DC have some form of 911 Good Samaritan laws, and every state in the county has now modified its laws to allow greater access to naloxone.
The next frontier for American drug war harm reduction is safe injection sites, and on the far horizon, opiate-assisted maintenance. There is not yet a single officially sanctioned operating safe injection in the country, but we are coming close in cities such as Seattle and San Francisco. And let’s not forget drug decriminalization as a form of harm reduction. It should be the first step, but that’s not the world we live in — yet.
7. Sentencing Fever Breaks
Beginning in the Reagan years and continuing for decades, the number of prisoners in America rose sharply and steadily, driven in large part by the war on drugs. The phenomenon gained America infamy as the world’s biggest jailer, whether in raw numbers or per capita.
But by early in the century, the fever had broken. After gradually slowing rates of increases for several years, the number of state and federal prisoners peaked around 2007 and 2008 at just over 1.6 million. At the end of 2015, the last year for which data is available, the number of prisoners was 1.527 million, down 2% from the previous year. And even the federal prison system, which had continued to increase in size, saw a 14% decline in population that year.
But most drug war prisoners are state prisoners, and that’s where sentencing reform have really begun to make a difference. States from California to Minnesota to Texas, among others, enacted a variety of measures to cut the prison population, in some cases because of more enlightened attitudes, but in other cases because it just cost too damned much money for fiscal conservatives.
Current US Attorney General Jeff Sessions would like very much to reverse this trend and is in a position to do some damage, for instance, by instructing federal prosecutors to pursue tough sentences and mandatory minimums in drug cases. But he is hampered by federal sentencing reforms passed in the Obama era. Sessions may be able to bump up the number of people behind bars only slightly; the greater danger is that his policies serve as an inspiration for similarly inclined conservatives in the states to try to roll back reforms there.
8. The Rise (and Fall) of the Opioids
In 1996, Purdue Pharma introduced Oxycontin to the market. The powerful new pain reliever was pitched to doctors as not highly addictive by a high pressure company sales force and became a tremendous market success, generating billions for the Sackler family, the owners of the company. Opioid prescriptions became more common.
For many patients, that was a good thing. Purdue Pharma’s marketing push coincided with a push by chronic pain advocates — patients, doctors and others — to ease prescribing restrictions that had kept many patients in feasibly treatable pain. And which in many cases still do: A 2011 report by the Institute of Medicine found that while “opioid prescriptions for chronic noncancer pain [in the US] have increased sharply . . . [tlwenty-nine percent of primary care physicians and 16 percent of pain specialists report they prescribe opioids less often than they think appropriate because of concerns about regulatory repercussions.” As the report noted, having more opioid prescriptions doesn’t necessarily mean that “patients who really need opioids [are] able to get them.”
While it’s popular to blame doctors and Big Pharma for getting a bunch of pain patients addicted to opioids, that explanation is a bit too facile. Many of the people strung out today were never patients, but instead obtained their pain pills on the black market. Through a perverse system of incentives, people on Medicaid could obtain the pills by prescription for next to nothing, then resell them for $40 or $60 apiece to people who wanted them. Some pain management practices were on the cutting edge of relieving pain for patients who needed the help. But others were little more than shady pill mills, popping up in places like Ohio, Kentucky, and Florida — places that would become the epicenter of an opioid epidemic within a few years.
When the inevitable crackdowns on pain pill prescribing came, legitimate prescribers of course got caught in the crossfire sometimes, especially those who served the poor or the patients who in the worst chronic pain. Their being targeted, or others reining in their prescribing practices, left many patients in the lurch again. And the closure of pill mills left addicted people in the lurch. But there was plenty of heroin to make up for the missing pills the addicted used to take. Mexican farmers have been happy to grow opium poppies for the American market for decades, and Mexican drug trafficking organizations know how to get it to market.
The whole thing has been worsened by the arrival of fentanyl, a synthetic opioid dozens of times stronger than pure heroin, which seems to be coming mostly from rogue Chinese pharmaceutical labs (although the Mexicans appear to be getting in on the act now, too).
And now we have a drug overdose crisis like the country has never seen before, with around 60,000 people estimated to die from overdoses this year, most of them from opioids (by themselves or in combination with alcohol and/or other drugs). The crisis is inspiring both admirable harm reduction efforts and an execrable turn to harsher punishments, while making things harder again for many pain patients. While many argue that the gentle side of the response to this epidemic is because the victims are mainly white, I would suggest that argument pays short shrift to all the years of hard work advocates and activists of all ethnicities have put in to creating more enlightened drug policies.
9. Policing for Profit: The Never Ending Fight to Rein in Asset Forfeiture
Twenty years ago, pressure was mounting in Washington over abuses of the federal civil asset forfeiture program, just as it is now. Back then, passage of the Civil Asset Forfeiture Reform Act (CAFRA) of 2000 marked an important early victory in the fight to rein in what has tartly described as “policing for profit.” It was shepherded though the house by then Judiciary Committee Chairman Rep. Henry Hyde, an Illinois Republican.
How times have changed. Now, with federal agents seizing billions of dollars each year though civil forfeiture proceedings and scandalous abuse after scandalous abuse pumping up the pressure for federal reform, the Republican attorney general is calling for more asset forfeiture. And Jeff Sessions isn’t just calling for it; he has undone late Obama administration reforms aimed at reining in one of the sleaziest aspects of federal forfeiture, the Equitable Sharing program, although he is having problems getting Congress to go along.
In the years since CAFRA, a number of states have passed similar laws restricting civil asset forfeiture and directing that seized funds go into the general fund or other designated funds, such as education, but state and local police have been able to evade those laws via Equitable Sharing. Under that program, instead of seizing money under state law, they instead turn it over to the federal government, which then returns 80% of it to the law enforcement agency — not the general fund and not the schools.
This current setup, with its perverse incentives for police to evade state laws and pursue cash over crime, makes asset forfeiture reform a continuing battlefield at both the state and the federal levels. A number of reform bills are alive in the Congress, and year by year, more and more states pass laws limiting civil asset forfeiture or, even better, eliminating it and requiring a criminal conviction before forfeiture can proceed. Fourteen states have now done that, with the most recent being Connecticut, New Mexico and Nebraska. That leaves 36 to go.
10. Despite Everything, the Drug War Grinds On
We have seen tremendous progress in drug policy in the past 20 years, from the advent of the age of legal marijuana to the breaking of sentencing fever to the spread of harm reduction and the kinder, gentler treatment of the current wave of opioid users, but still, the drug war grinds on.
Pot may be legal in eight states, but that means it isn’t in 42 others, and more than 600,000 people got arrested for it last year — down from a peak of nearly 800,000 in 2007, but still up by 75,000 or 12% over 2015.
It’s the same story with overall drug arrests: While total drug arrest numbers peaked at just under 1.9 million a year in 2006 and 2007 — just ahead of the peak in prison population — and had been trending downward ever since, they bumped up again last year to 1.57 million, a 5.6% increase over 2015.
There are more options for treatment or diversion out of jail or prison, but people are still getting arrested. Sentencing reforms mean some people won’t do as much time as they did in the past, but people are still getting arrested. And the drug war industrial complex, with all its institutional inertia and self-interest, rolls on. If we want to actually end the drug war, we’re going to have to stop arresting people for drugs. That would be a real paradigm shift.