Drug Control Policy

  • June 11, 2010
    Guest Post

    By Alex Kreit, assistant professor of law and director of the Center for Law and Social Justice at the Thomas Jefferson School of Law in San Diego, Calif. Kreit is author of an ACS Issue Brief, "Toward a Public Health Approach to Drug Policy."
    With the recent release of the Obama administration's National Drug Control Strategy, and drug policy increasingly making headlines with California's marijuana legalization measure set to appear on the ballot in the fall, now is a useful time to take a quick look at where our nation's drug policy appears to be heading. Director of the Office of National Drug Control Policy (ONDCP) Gil Kerlikowske assumed his job a little over a year ago on a promising note by saying that the time had come to discard the outdated and unhelpful terminology of a "war on drugs."

    Since that time, the Obama administration has made a number of noteworthy policy shifts. The administration announced that they will no longer arrest and prosecute medical marijuana patients and caregivers in compliance with state medical marijuana laws (though it bears mentioning that some local offices may not always be faithfully abiding by this policy). Obama's Justice Department has worked to reduce the "100-to-1" sentencing disparity between powder and crack cocaine. It has also lifted the ban on federal funding of syringe exchange programs.

    In announcing its new drug control strategy last month, the administration emphasized the importance of shifting away from the "war on drugs" mentality and treating drug abuse primarily as a public health issue. Kerlikowske (pictured) told The Associated Press, for example, that "[i]n the grand scheme, [the current strategy] has not been successful" and that forty years after Nixon began the drug war "the concern about drugs and the drug problem is, if anything, magnified, intensified."

    Unfortunately, at least for the time being, the strategy does not quite match the administration's vision and continues to fund many of the very same programs that have "not been successful" at the same or greater levels as in previous years. As Ethan Nadelmann, head of the Drug Policy Alliance, has pointed out, contrary to the administration's effort to paint the strategy as a major step toward treatment and away from incarceration-oriented policies, 64 percent of the $15.5 billion federal drug control budget will be spent on interdiction and law enforcement while only 36 percent will go to treatment and prevention. This is virtually the same supply-and-demand allocation as under President Bush's final drug control strategy. And, if we go back further, we find that the percentage of President Obama's budget earmarked for demand reduction is actually less than in recent past. In 2002, 46 percent of the total drug control budget was spent on demand reduction efforts, a full 12 percent higher than under Obama's budget.

  • May 24, 2010
    The Obama administration's recently released drug control strategy has drawn some plaudits for shifting from prior administrations' policies of focusing almost exclusively on punishing suppliers.

    Although Harold Pollack in an article for The New Republic says the policy, released last week, still focuses too much on the supply-side, he maintained, "America's drug policies just got a whole lot better." Pollack says the policy released by the Office of National Drug Control Policy (ONDCP) still continues to "spend billions on operations against drug suppliers which have little demonstrated value."

    But, in his TNR article, Pollack says ONDCP head Gil Kerlikowske (pictured with President Obama) should be credited with limiting the "traditional blunderbuss rhetoric of American drug policy." Pollack continues, "This change is matched by Kerlikowske's personal inclusiveness and civility, traits that his Republican predecessor John Walters - who is known for alienating liberals and conservatives alike with his ecumenical disregards for opposing views - certainly did not possess.

    Even before the release of the ONDCP's 2010 National Drug Strategy, Newsweek reported on a leaked version of it.

    In a post for The Reality-Based Community blog, Professor Mark Kleiman discussed the leak, but also noted that the "new strategy can't completely avoid the trap of bowing in the direction of existing programs to get past agency review, and it has its share of pointless quantitative goals (some of them mandated by law). For example, there's no reason to think that the federal government has the capacity to reduce prevalence of drug use by 15%, or that raising the fraction of drugs seized on their way to the U.S. is either feasible or useful."

    Kleiman, professor of Public Policy and Director of the Drug Policy Analysis Program at the UCLA School of Public Affairs, however, said the strategy provides a list of positives. He writes:

    But the strategy offers a fairly impressive list of innovations to set off against those disappointments. Of course the ones that matter most to me testing-and-sanctions programs for drug-involved offenders (which the "formidable" Bennett and McCaffrey never dared to endorse) and David Kennedy's Drug Market Intervention program designed to eliminate problematic drug markets without mass arrests. Together, those two programs alone would radically reduce the links between drugs and crime, and yet because they're neither "supply" or "demand" programs and have no visceral appeal to either side of the culture wars, they've struggled to get attention.

    Rather than just promising to pump more money into the existing drug-treatment machinery, the strategy focuses on the contribution the mainstream health-care effort could make toward dealing with substance abuse, in particular screening, brief intervention, and referral to treatment (SBIRT). The money potentially available for his purpose under the health care bill, and in particular through the community clinic system, dwarfs the formal treatment system. The strategy aims to make sure that potential gets used; if it does, the effective balance between "supply" and "demand" spending would shift radically in fact, though it wouldn't change on paper.

  • April 5, 2010

    While signs indicate that Congress may significantly decrease the crack/powder setencing disparity for cocaine possession, federal judges are not waiting for a legislative solution.

    U.S. District Judge Leonard Davis became the latest to effectively negate the disparity by exercising judicial discretion in sentencing. Davis' opinion in the case of U.S. v. Greer is the first in the Eastern District of Texas to announce that, from this point forward, at least one judge there will treat possession of crack and powder cocaine as criminally equivalent.

    Under the federal sentencing guidelines currently in place, a sentence for possessing crack cocaine is treated 100 times more severely than possession of the same amount of powder cocaine. The disparity has been widely panned for its disproportionate impact on people of color.

    In discarding the sentencing guidelines, Judge Davis relied upon Kimbrough v. U.S. and Spears v. U.S., two recent Supreme Court decisions that, taken cumulatively, expressly invite federal judges to reject the disparity.

  • October 26, 2009
    Guest Post

    By Mark A.R. Kleiman. Mr. Kleiman is professor of public policy at UCLA, editor of the Journal of Drug Policy Analysis, and the author of When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton). His previous books include Marijuana: Costs of Abuse, Costs of Control and Against Excess: Drug Policy for Results. He served as a drug policy analyst in the Criminal Division of the U.S. Department of Justice from 1979-1983. Mr. Kleiman blogs at The Reality-Based Community.

    Abusable drugs are regulated by federal law pursuant to treaty obligations. Since pharmaceuticals are sold in interstate commerce, their regulation is also a federal matter. But the practice of medicine is regulated by the states.

    Cannabis is an abusable drug with therapeutic properties. (Sativex, an extract containing all the active agents in whole cannabis, is now an approved drug in Canada.)

    Cannabis can easily be produced locally, with no interstate commerce involved.

    Several states have laws designed to make cannabis, despite its status as a Schedule I controlled substance under Federal law, available to patients whose physicians want them to have it for therapeutic purposes. California has gone the farthest down this road, with more many hundreds of "dispensaries" -- in effect, retail outlets -- now in operation, and physicians allowed to "recommend" cannabis for any condition or symptom, even something as unspecific as "anxiety."

    The California system has become an open joke, with physicians advertising themselves as "herbal recommendationists" and promising that if a visit doesn't lead to a recommendation there will be no fee. As a result, the "medical" market now makes up a substantial fraction of the total cannabis market in California, with revenues estimated in the hundreds of millions of dollars per year.

    The precise shares of the "medical" cannabis market made up by (1) truly sick people with conditions cannabis might help - MS patients with spasm, HIV patients in search of appetite enhancement, chemotherapy patients fighting nausea - (2) chronic users in effect getting maintenance doses for their cannabis dependency, and (3) frankly non-medical users remains unknown, but few believe that the first category accounts for as much as 10 percent of the (massive) volume of the "medical" cannabis industry.

    Those efforts have, naturally, led to conflict between state and federal governments. The Supreme Court struck down a DEA effort to strip physicians of the federal licenses they need to prescribe controlled drugs as punishment for recommending that their patients use cannabis. But it later ruled in Gonzales v. Raich that the California statute did not protect either providers or recipients of cannabis from federal prosecution.

  • August 20, 2009
    Guest Post

    By Alex Kreit, professor of law and director of the Center for Law and Social Justice at Thomas Jefferson School of Law, San Diego, Calif.

    We're only three months into Gil Kerlikowske's tenure as head of the Office of National Drug Control Policy-a position commonly referred to as "drug czar"-but already there have been a number of steps toward reforming some of drug policies that I highlighted as most in need of change in my ACS Issue Brief, which is now available in the new issue of Advance: The Journal of the ACS Issue Groups.

    Since President Obama took office, we've seen positive developments in the areas of sentencing reform, needle exchange funding, medical marijuana, and overseas crop eradication programs, just to name a few. With respect to sentencing reform, the Fairness in Cocaine Sentencing Act, which would eliminate the 100-to-1 disparity between crack and powder cocaine penalties, and the Ramos-Compean Justice Act, which would allow courts to sentence below the mandatory minimum sentence in some circumstances, have both made read progress through committees in Congress. A few weeks ago, the House of Representatives voted 218-211 to lift the ban on federal needle exchange funding. Attorney General Eric Holder has repeatedly said he will discontinue the Bush Administration's medical marijuana raids (while the DEA executed paramilitary-style raids of two dispensaries in Los Angeles just last week, reportedly allegations of tax evasion are being used to try and distinguish them from previous dispensary raids.) And, the U.S, envoy for Afghanistan, Richard Holbrooke, has announced an end to the failed poppy eradication program, calling eradication "a waste of money" that had "just helped the Taliban."

    Perhaps even more encouraging than developments with respect to any specific policy, however, was the Senate's confirmation two weeks ago of addiction expert A. Thomas McLellan for the post of Deputy Director of National Drug Control Policy. This is because the nomination of McLellan, previously a professor at the University of Pennsylvania School of Medicine, to such an important position is a hopeful indication that the Administration may be interested in exploring making broader changes to our drug abuse strategy and pursuing a public health approach to the problem.

    McLellan is committed to the view that addiction is a medical problem, not a criminal or moral problem, and has spoken out strongly in favor of the use of methadone to treat opiate addiction. To get a sense of why McLellan's confirmation is such a positive sign for those of us who believe that treatment and prevention, not mass incarceration, is the most effective strategy for reducing drug demand, this interview he gave to Bill Moyers in the late 1990's is worth a look.