We May Be on the Cusp of Substantive Drug Policy Reform

by Samuel Murray, columnist

The 2020 election has brought high levels of anxiety, longer than normal vote counts, and a massive voter turnout. Both candidates have received more votes than any other presidential candidate in United States’ history, beating former President Obama’s record in 2008.

One benefit that may come out of this election cycle, is the way it has forced the nation to concentrate intensely on electoral politics, even temporarily. The everyday voter is largely ignorant to the inner workings of the political system and may often miss major issues at play. This should come as no shock, since while balancing work and personal life few people outside the political profession seek to engage in researching major policy topics. But this year, the long, excruciating wait for the final ballot counts in the presidential election was an opportunity to focus on recent ballot initiatives and state referendums, particularly involving drug policy reform. 

While receiving minimal national attention compared to energetic partisanship between former Vice President Joe Biden and President Donald Trump, several states have passed referendums that involved major shifts in drug decriminalization and legalization.  

In this election, South Dakota, Arizona, and Montana fully legalized marijuana for recreational use. New Jersey also confronted the issue, though it was framed as a public ballot question, thus authorizing the state legislature to tackle the legalization process. Regardless, this added to the growing list of states that have approved a full recreational legalization of marijuana, which, pending legislative action in New Jersey, will amount to 16 including the District of Columbia. Only 7 states remain as outliers in maintaining marijuana as a fully illegal drug; 43 states and the District of Columbia have at least some combination of medicinal legalization or decriminalization provisions. However, at the federal level marijuana is still a schedule one drug, putting it in the same category as heroin. The Biden campaign has promised to seek substantive  reform in an all-but-federal-legalization-esque tone. This would include a combination of decriminalization, keeping legalization up to the states, and expunging all drug charges for marijuana. The legalization of marijuana could eliminate thousands of yearly convictions, which disproportionately impact Black and Latino communities.

Oregon is the most interesting case this election, presenting the most substantive drug policy reform in the United States: the decriminalization of all petty hard drug possession. The state of Oregon has been a champion in drug reform for decades, being the first to decriminalize marijuana in 1973. But this initiative is very different and may pave the way to easily pass marijuana legalization nationwide, while also acting as a test case for how decriminalizing other hard drugs plays out in the U.S.

This new policy, fully taking effect on February 1, 2021, seeks to focus heavily on providing treatment for individuals using drugs. Under the new rule, those caught by police with petty possession of hard drugs would have the option to choose a $100 fine or attend an addiction recovery center. The is in stark opposition to current policies toward petty possession of hard drugs, which can land offenders in prison for years and often provide no treatment options. Oregon’s policy seeks to diminish reoffenders, by focusing on the root cause of drug use and abuse: addiction. Focusing on addiction not through the lens of criminalization but instead as a medical condition can allow the state to institute programs as alternatives to fines or jail-time and can lead to a better reintegration for that individual into society. 

Again, this policy is an incredibly important step. It will make the goal of the criminal justice system more just by focusing on rehabilitation and reintegration into society, instead of continuing to put those addicted to drugs out of sight, out of mind in jail, only to encounter them again on the street when the root cause of their addiction was never addressed. Targeting the war on drugs and seeking its demise is a smart and more equitable policy platform.

The war on drugs was a series of devastating policy decisions made largely beginning during the Nixon administration and greatly expanded during the Reagan administration. The fundamental belief of the war on drugs is that drug use should be treated as a criminal act. This has justified the “supply-side” targeting of the drug trade, which involves the criminalization of petty possession and distribution, reducing the overall supply in the market and raising the cost of the drugs (Falco 1996, 122). The counterpoint to this failed “supply-side” policy intervention is a “demand-side” approach, which closely resembles what Oregon is attempting to do – prioritize treatment and lessen the desire or necessity for the consumption of drugs in the first place.

The most problematic legacy of the war on drugs is the creation of a system of mass incarceration that disproportionately impacts the African American and Latino population. Not only is this a policy system that perpetuates institutional racism, but these drug policies have an even greater impact on minority communities due to the unfair profiling and hyper policing the war on drugs has encouraged. In addition, prison sentences for drug crimes, which are incredibly harsh and require even minimal possession to qualify for a felony change, can disenfranchise individuals from voting. Felony disenfranchisement is a systemic problem, silencing millions of voices even after their prison sentence has been served. In the 2020 election, it has been estimated that 5.2 million Americans have been forbidden from voting due to a felony conviction. 

Any form of voter suppression in this country should not be tolerated; it is not a representative democracy if all eligible voters are not permitted to vote. Only Maine, Vermont, and recently this year D.C. will never disenfranchise an individual from voting if they are imprisoned. A majority of states eliminate the right to vote for individuals in prison or on a post-release parole but will reinstitute the right to vote after they serve their prison time or complete their parole. 

In comparative politics, we can look to other examples of drug reforms on a large scale – such as drug decriminalization in Portugal. Portugal decriminalized all drugs in 2001, with the aim of reducing drug use and combating the spread of HIV/AIDS and Hepatitis B and C. It was found that drug use did not increase as a result of these policies, but rather decreased among younger users and diminished overall disease transmission via injection needles.

The changes in drug policies that state referendums have passed this election are greatly important for the future of how drugs are criminalized, or not, in this country. When the federal system is quite rigid in resisting change, it’s valuable to pay attention to these shifts at the state and local level. As pressure continues to build among states passing marijuana legalization, perhaps it will reach a point where the federal government will have to act. When it acts, it must be comprehensive; legalization that additionally expunges all past convictions involving the drug. It would be unfair to the communities and individuals hurt by the war on drugs, hyper-policing, and racial profiling to not have their records wiped. 

Perhaps Oregon is beginning down the best path to a safer future, with drug addiction not treated as a crime punished by harsh policing and unfair practices, but a condition that can be treated with improved healthcare and access to resources. 

With the announcement of President-elect Joe Biden and Vice President-elect Kamala Harris, it is important to also remember to watch how these new drug reform policies play out across the country in the coming years. Perhaps this new administration can usher in a new era of expanding social services and addiction resources, paired with the eventual abolition of the war on drugs. 

References:

Falco, Mathea. 1996. “U. S. Drug Policy: Addicted to Failure.” Foreign Policy (102): 120. Nadelmann, Ethan A. 1998. “Commonsense Drug Policy.” Council on Foreign Relations 77(1): 111–26. 

Featured image: Photo by Jeff W on Unsplash

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