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As Decriminalization Becomes Less Taboo,U.S. Rethinks Its Decades-Old Drug Policy

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The Obama administration’s decision in October to relax the federal government’s approach toward medical marijuana not only distanced it from the previous administration, it also distanced it from decades of drug policies anchored in the prohibition mindset.

And despite the expected attacks from the “tough on crime” crowd, Obama’s decision was not made in a bubble.

Governments across the globe are establishing -— or exploring — new policies that change the way societies handle drug use. Generally speaking, the policies swap jail time for drug treatment and drug therapy. Proponents argue — and some studies suggest — that these decriminalization efforts are a cheaper, safer and more effective way of dealing with drug use (none of these measures, however, allow the production, transport or sale of illicit drugs, which is still forbidden by all countries).

Today, 14 U.S. states have decriminalized medical marijuana and more are expected to follow suit. Meanwhile, Massachusetts has officially decriminalized the possession of small amounts of marijuana, and state lawmakers in California are holding hearings on the potential effects of legalizing, taxing and regulating marijuana.

Perhaps the most significant shift in this direction is happening on Capitol Hill, where Sen. Jim Webb (D-Va.) is pushing Congress to re-examine drug laws as part of his broader push to reform America’s criminal justice system. With roughly 2.3 million people behind bars, the United States has more people incarcerated that any other country in the world.

Together, the efforts suggest the nation — and the world — may be shifting away from the prohibition-driven policies that littered politics in the 1980s, and moving toward a greater recognition of the demand side that helps fuel this multibillion-dollar industry, targeting more efforts on treatments and education to reduce that demand.

The timing makes sense, says Tim Lynch of the Cato Institute, citing the fact that more people than ever are familiar with drugs. One survey suggests as many as 23 million Americans have smoked pot. Even Obama has openly admitted his previous drug use.

“I think the drug policy is shifting in the United States,” Lynch, director of Cato’s Project on Criminal Justice, told The Washington Diplomat. “One thing that is accumulating is the personal experience of many, many people. If people haven’t tried things like marijuana themselves, they have friends or relatives that have tried them.”

He added: “More and more people are reaching the conclusion that it is not as big a deal as previous generations feared.”

Personal Use In Portugal A prime example of this philosophical shift is found in Portugal, where a Cato report found that decriminalization efforts have successfully curbed the country’s drug use and shown that criminalization only exacerbates the problem.

In 2001, the government of Portugal became the first European country to wipe away all criminal penalties for personal possession of drugs, including marijuana, cocaine and heroin. Under the law, those caught with drugs for personal use (does not apply to drug-traffickers) are subject to fines, but are not thrown in jail and do not face criminal prosecution. And if offenders seek treatment, their fines are often waived.

“Instead of more policy, and stiffer penalties, they struck out in a different direction,” Lynch said. “They did it so they could devote more health resources to the issue, instead of pouring more money into the law enforcement side. And they thought it would be a better approach to stop driving users underground.”

He concluded: “There is really no question that the policy has success.”

Before the law was enacted, opponents insisted the change would make Portugal a major hub for “drug tourism.” “There will be planeloads of students heading for [Portugal] to smoke marijuana and take a lot worse, knowing we won’t put them in jail,” Paulo Portas, leader of the conservative party, warned. “We promise sun, beaches and any drug you want.”

But the Cato report, released in April, says that “such fears turned out to be completely unfounded” and that about 95 percent of the people cited for drug use since have been Portuguese.

Portuguese drug officials told Cato that the approach has helped remove the stigma, fear and “guilt” associated with drug use and related prosecution, thereby increasing the number of addicts willing to take advantage of drug treatment.

Since the law was established, the number of people who have sought treatment has more than doubled. Meanwhile, new HIV infections in drugs users fell by 17 percent between 1999 and 2003 and the number of people who died because of heroin or similar drugs was cut by more than half. Also, the number of people who have consumed drugs over the course of a lifetime has dropped among teens. For 13- to 15-year-olds, the rate dropped from 14.1 percent in 2001 to 10.6 percent in 2006. For 16- to 18-year-olds, the rate dropped from 27.6 percent to 21.6 percent.

“In fact, for those two critical age groups of youth … prevalence rates have declined for virtually every substance since decriminalization,” including marijuana, cocaine and heroin, the Cato report says.

“None of the parade of horrors that decriminalization opponents in Portugal predicted, and that decriminalization opponents around the world typically invoke, has come to pass,” the report added. “In many cases, precisely the opposite has happened, as usage has declined in many key categories and drug-related social ills have been far more contained in a decriminalized regime.”

While many EU countries still emphasize criminalization, the Cato report suggests there is a clear trend whereby “many states are increasingly moving toward a health-cased approach” and, in a de facto fashion, moving away from criminalizing marijuana.

But that should not be misread as softening their stance against drugs, the report warns. “Even where there is a strong de-emphasis on incarceration and other criminal sanctions for drug use, the aim in most EU countries is merely to formulate more efficient and proportionate sanctions — not legalize drug use.”

Disjointed Views On Drug War Similar decriminalization efforts are gaining traction in pockets of South and Central America, where leaders are increasingly dissatisfied with the U.S.-sponsored war on drugs and the violent atmosphere they believe it has created.

In February, the Latin American Commission on Drugs and Democracy, co-chaired by the former presidents of Brazil, Colombia and Mexico, called the drug war a “failure” and recommended some decriminalization. “Current drug-repression policies are firmly rooted in prejudices, fears and ideological visions,” the commission’s report charged.

In August, Argentina’s supreme court all but legalized the private use of small amounts of marijuana, while Mexico decriminalized possession and the use of small amounts of marijuana, cocaine, heroin and other drugs.

Now, anyone caught south of the Rio Grande with five grams of marijuana — about three joints — or half a gram of cocaine — about four lines — are no longer arrested, fined or thrown in jail. Instead, they are encouraged to go to rehab to get clean.

While some people are worried this might undercut the U.S.-Mexican fight against drug traffickers, which has led to thousands of deaths and continues to spill over the American border, Washington’s relative silence over the issue spoke volumes. When the Mexico Congress in 2006 approved a similar decriminalization plan, the Bush administration pressured Mexican President Vicente Fox not to sign the bill. He didn’t.

When the law passed earlier this year, Obama’s drug czar, Gil Kerlikowske, simply said he will take a “wait and see” approach to Mexico’s decriminalization effort.

Medical Marijuana Relaxation The administration’s response to Mexico’s decriminalization push and the Justice Department’s stance on medical marijuana dispensaries are encouraging signs for advocates who hope elected officials continue to move away from the prohibition policies that have dominated U.S. policy for decades.

Graham Boyd, director of the American Civil Liberties Union’s California-based Drug Law Reform Project, applauded U.S. Attorney General Eric Holder for ending federal raids on medical marijuana dispensaries in states where it is legal, saying it was a step in the right direction.

“It will serve the benefit of patients, and also law enforcement,” Boyd told The Diplomat. “This was long overdue and it was a mistake for the previous administration to use federal resources to go after patients, caregivers or dispensaries.”

Boyd believes the recent federal shift will encourage states to tweak or strengthen their laws regarding medical marijuana. He points to previous efforts in Rhode Island and New Mexico that became bogged down by the fear that administrators of such programs would be arrested for distributing medical marijuana.

At the same time, the decision could push California to do a better job of regulating its “chaotic system” that, by some accounts, is so lax that almost anyone can get their hands on “medical” marijuana.

More important, Boyd said the moves reflect another trend playing out on the state level.

“The trend I see right now most powerfully is moving away from incarceration — especially for non-violent offenders,” he explained. “Over half of the states have actually changed their laws for non-violent, low-level offenders. The charges are less harsh and more treatment is available. That has saved money and also increased community safety. It’s another one of these sensible win-win propositions. The only thing that stands in the way of this is the old way of being ‘tough on crime’ rather than being smart of crime.”

Breaking Through The Politics of Prisons That trend is also visible on Capitol Hill, where Webb, Virginia’s Democratic senator, is pushing legislation that would task a blue-ribbon National Criminal Justice Commission with exploring the failures of a system that Webb calls a “national disgrace.”

As part of the 18-month review, Webb says everything should be on table, including prisoner re-entry programs, life behind bars and, likely the most controversial, the nation’s drug laws. It’s a unique effort. Historically, politicians have shied away from such efforts, afraid of being labeled “weak on crime” — a charge that could end a political career. In fact, the last government study group to look at drug policy, the 1972 Shafer Commission, recommended that President Richard Nixon decriminalize marijuana. He didn’t act on the advice.

Webb is well aware of the “weak on crime” charge that pollutes such debates and that the perception has a tendency of trumping reality on Capitol Hill. He has headed off these charges by controlling the narrative, challenging people to look inward and ask: How can the United States have only 5 percent of the world’s population, but 25 percent of the world’s prisoners?

“With so many of our citizens in prison compared with the rest of the world, there are only two possibilities: Either we are home to the most evil people on earth or we are doing something different — and vastly counterproductive,” Webb wrote earlier this year in a Parade Magazine piece. “Obviously, the answer is the latter.”

Statistics also show the United States has increasingly imprisoned people for non-violent crimes and low-level drug use. In fact, some 60 percent of offenders are arrested for non-violent crimes, many driven by drug addiction or mental illness. Webb also notes that between 1984 and 2002, those incarcerated for drug offenses spiked from 10 percent to 33 percent. “Experts estimate that this increase accounts for about half of the dramatic escalation in the total number imprisoned over that period,” he said.

Webb argues that “while heavily focused on non-violent offenders, law enforcement has been distracted from pursuing the approximately one million gang members and drug cartels besieging our cities, often engaging in unprecedented levels of violence,” he wrote online in the Huffington Post. “Gangs in some areas commit 80 percent of the crimes and are heavily involved in drug distribution and other violent activities. This disturbing trend affects every community in the United States.”

Furthermore, Webb cites Justice Department statistics showing that 47.5 percent of all the drugs arrests in the United States in 2007 were for marijuana offenses. He also points out that three-quarters of the drug offenders in our state prisons were there for nonviolent or purely drug offenses.

“Yet locking up more of these offenders has done nothing to break up the power of the multibillion-dollar illegal drug trade,” Webb wrote. “Nor has it brought about a reduction in the amounts of the more dangerous drugs — such as cocaine, heroin, and methamphetamines — that are reaching our citizens.”

About the Author

Seth McLaughlin is a contributing writer for The Washington Diplomat.

Last Edited on July 2, 2014