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THE Evolution OF DRUG POLICY

The United States is at a fork in the road in its journey to confront drug use. Since the days of President Woodrow Wilson, the U.S. has relied primarily upon an enforcement approach to control drug use. The effort to stop alcohol consumption through prohibition enforcement beginning in 1919 and its abandonment in 1932 is history well-known to all Americans. Then, for four decades, from the 1970s, through the first decade of the 21st Century, with the strong encouragement of Presidents Richard M. Nixon, Ronald Reagan, George H.W. Bush and Bill Clinton, the nation’s anti-drug laws were toughened, and enormous sums of money – approximately one trillion dollars – have been spent fighting a "war on drugs."

Our national drug policy goals have been to protect young people from using drugs, to save lives from the risks of drug overdose, to reduce the suffering from addiction, and to reduce crime and violence. These goals are the right goals, but the means to achieve them have been flawed and often counterproductive, and thus the goals are not being achieved.

Since President Reagan commenced the current “offensive” of the “war on drugs” after he was elected in 1980, the number of persons who are incarcerated for drug offenses in the U.S. skyrocketed from 40,900 in 1980 to more than 450,000 in 2017.

And consider that the number of deaths from drug overdoses since 1980 has risen almost ten-fold and by 2018 exceeded 70,000 – more deaths than from firearms or motor vehicle crashes. That one-year number exceeded all American deaths in the Vietnam War.

The greatest effort in the “war on drugs” has been against marijuana use. For decades drug abuse officials insisted that marijuana was the gateway to addiction and overdose deaths – despite evidence that the claim was false. And every year for decades, arrests for marijuana, primarily for possession, have exceeded all arrests for all violent crimes combined. Tens of millions of Americans have been arrested for marijuana since the late 1960s.

That our national approach to drug control is changing is most dramatically seen in the change of marijuana laws. Since 1996, state after state has loosened its marijuana law. First, states provided protection to patients who use marijuana medically and to their physicians, and then, to those who dispensed medical marijuana. By August 2019, 33 states and the District of Columbia allowed medical patients to possess and use whole, unprocessed marijuana for medical purposes. And second, beginning in 2012, states began to legalize marijuana for recreational purposes by adults by legalizing possession, cultivation, processing and distribution. As of July, 2019, 11 states (Colorado, Washington, Oregon, Alaska, California, Nevada, Massachusetts, Maine, Vermont, Michigan, and Illinois) and the District of Columbia have legalized recreational marijuana and in most cases licensed businesses to produce and sell marijuana (D.C. does not license businesses or allow sales). Yet, Congress has not changed Federal law that outlaws all uses of marijuana. The U.S. Justice Department, by memoranda issued during the Obama Administration, began to tolerate state marijuana regimes, and reduce the number of federal marijuana prosecutions. Congress tip-toed into reform by enacting temporary restrictions in federal funding legislation barring the DEA from interfering in state marijuana programs. At last by 2019, marijuana legalization legislation is being introduced by legislative leaders in the House and the Senate.

But in recent years the entire nation has become acutely aware of the suffering that addictive drugs can cause. The nation is truly in the grip of an epidemic of drug misuse and death. There has been a dramatic increase in opioid overdose deaths — and that has, not surprisingly, overshadowed the some 30,000 deaths from other drugs such as cocaine, methamphetamine, and benzodiazepines (11,537 benzodiazepine deaths in 2017 (in combination with other drugs), up from 1,135 deaths in 1999). The effects of the epidemic vary by region, time period and the specific drugs that are being used vary. The damage from opioids has been widespread and indiscriminate.

Many cities and regions lived through an epidemic of smokable cocaine in the late 1980s and early 1990s. Later, methamphetamine addiction was found in some cities but not in others. Now, for a decade, addiction to prescription opioids such as oxycodone has been widespread in many states, and overdose deaths from these drugs increased 500% in 5 years. Deaths from oxycodone (e.g., Oxycontin®) and hydrocodone are especially intense in the Appalachian region, New Hampshire, and Florida. By 2016, addiction to, and death from, the variety of opioids (legal prescription pain medications, illegal heroin, and illegal fentanyl) had become widespread. Nationally, by 2017, the number of deaths from overdoses and drug-related poisonings was estimated to be greater than 70,000, according to the Centers for Disease Control and Prevention. As of August 2019, the 2018 national data has not been released.

In recent years, the nation’s response to the opioid addiction crisis has differed profoundly from the reaction to the crack cocaine addiction crisis which emphasized the role of law enforcement to crack down on sales with long prison sentences. In the 1980s and 1990s, other than terrorists and child molesters, “traffickers” in crack cocaine were the premiere criminal monsters stalking American families. In 1994, Congress authorized the death penalty for larger quantity drug traffickers, 18 U.S.C. 3591(b), (as part of a continuing criminal enterprise), including marijuana growers. A significant example of this change was the August 2017 interim report from the President's Commission on Combating Drug Addiction and the Opioid Crisis which called for harm reduction measures, not more law enforcement. CJPF believes that the primary reason for this change is that drug abuse treatment professionals, policy makers and the general public have concluded that the enforcement-focused effort has been a failure.

In addition, the current opioid addiction crisis has dramatically afflicted rural and suburban regions, and smaller cities. Unlike the situation in the 1960s, 70s, 80s and 90s, “drug abuse” is no longer being characterized as primarily as a heroin or crack problem primarily afflicting people of color in American cities that always threatened to escape to the suburbs. Most historians of drug abuse have noted the century-long identification of drug abuse with "outsiders" -- people who, in their turn, were primarily Chinese, African American, Hispanic, or "undesirable" whites such as “hippies” or gay men. In 2004, Eric E. Sterling wrote about the role of the “war on drugs” in maintaining white privilege.

Through the activism of the public health community, there has been growth in the philosophy and practice of “harm reduction,” and such measures are saving lives. Sterile syringe distribution programs to prevent the spread of HIV, Hepatitis C and other infections survived the strong resistance of drug warriors in the 1990s and become increasingly wide-spread. In the spring of 2015, once a heroin-related HIV outbreak was identified in Scott County in southeastern Indiana, conservative Indiana Governor Mike Pence (R) embraced a sterile syringe distribution program within two months.

The distribution of naloxone (Narcan ®), a drug that can quickly reverse opioid overdoses has become widespread. States have changed regulations to permit the purchase of naloxone without a physician's prescription. Thousands of lives are being saved nationwide.  Yet in some places, such as Butler County, Ohio, Sheriff Richard K. Jones announced his deputies won't carry naloxone so they will not be able to administer it to a person who is found in an overdose condition, knowing that naloxone is likely to save their life.  Elsewhere in Ohio, in Middletown, a city council member proposed in 2017, that if a person has been revived from an overdose twice, if they suffer an overdose again, they will not be administered with naloxone by the city EMTs -- it's too expensive, he said. 

In many states and jurisdictions, a common harm reduction legal policy is to exempt persons from prosecution for drug possession who call 9-1-1 for an emergency response for persons who are in an overdose. This is known as a "Good Samaritan 9-1-1" law. 

On the other hand, in a different response to the increase in overdose deaths, some prosecutors are seeking the death penalty for the distributor of opioids if someone dies from using the drugs received directly or indirectly from the distributor. (Most street distributors have no way to know what contaminants, if any, are in the drugs they distributing.) Some prosecutors use the threat of the death penalty to coerce a person to plead guilty and take a life sentence. In May 2017, then-Attorney General Jeff Sessions, returned to the old language of enforcement, revising federal charging policies adopted by former Attorney General Eric Holder, directing federal prosecutors to seek the longest sentences that could be imposed for federal drug suspects.

Notwithstanding the law enforcement rhetoric, when public health measures associated with drugs have been applied, they have been successful. Addiction to tobacco is going down. Driving while intoxicated by alcohol is going down. In states with regulated marijuana markets, teenage use is not increasing.

To repeat, we are at a fork in the road. Will our national priority remain enforcement, punishment, and the language of deterrence – with the result of high rates of death and suffering? Do we maintain the ham-fisted approach of enforcement and punishment that has consumed the police, prosecutors and courts for much of the past half century? Waging our “war on drugs” we have spent one trillion dollars to intensify border security, increase arrests, lengthen sentences, and strip the rights of drug users who get caught. To deter drug use we introduced drug testing in our nation's schools and workplaces. These measures have cost hundreds of thousands of persons their jobs and education. In addition, we provided  scores of billions of dollars to other nations for a variety of anti-drug police and military operations. With that money, we have seen over the decades the authorities inflict countless human rights abuses against farmers, couriers, distributors, users, and those rumored to be so. These tragedies have played out over and over in Bolivia, the Bahamas, Cuba, Colombia, Mexico, Thailand, Afghanistan, and lately the Philippines. Extrajudicial killing, death squads, extortion, gang violence, and widespread corruption have resulted. And countries that do not receive U.S. aid — Russia, China, Malaysia, Iran — execute or torture drug users and drug sellers.

The American public knows that these policies are not saving lives, not reducing drug use, not protecting youth and not reducing crime. Thus, can government agencies be redirected and reorganized to act on our top priority to save as many lives as we can and secondarily, to reduce and minimize the suffering of drug users, reduce adolescent use, and reduce crime and the enrichment of criminal organizations?

Our friends in Europe have reduced overdose, reduced the spread of HIV and Hepatitis, reduced crime, reduced homelessness, and reduced the number of addicts without focusing on imprisonment and punishment. Heroin maintenance has been legalized in Switzerland and is carried out in Britain and the Netherlands. Portugal decriminalized the possession and use of drugs coupled with public health interventions achieving dramatic declines in HIV infection, death and numbers of persons addicted. 

Yet in the United States the availability and purity of street drugs have steadily increased, hundreds of thousands of Americans remain ensnared in addiction, additional hundreds of thousands are imprisoned, and too many people wanting help to become sober cannot get appropriate treatment when they are ready.

Increasingly, the American people are recognizing that by attempting to control the drug market through force, prohibition and incarceration, our policies have created a more efficient drug trade and a hugely profitable drug market. 

Every comprehensive conversation about our domestic problems -- gun violence, poverty, racial tension, health, educational achievement and opportunity, community development, civil liberties and terrorism, even the environment -- recognizes the significant aggravation of the problem by the illegal drug market and the consequences of enforcement. 

Thus, increasing numbers of Americans are rethinking our drug goals and contemplating a new strategy. 

To support a well-designed change of direction, on this website we provide specific policy-related information on each of the following drugs: marijuana (including medical marijuana), heroin and other opiatescrack cocaine and alcohol.

We also discuss areas of the criminal justice system tightly linked to drug policy that are in great need of reform: mandatory minimumsprosecutorial overreachcivil asset forfeiture and clemency.