America Still Lacks the Political Will to Change Its Failed Drug Policy

By Tim Dickinson, Rolling Stone

06 May 16

 

After 45 years, more than $1 trillion wasted, and the creation of the world's largest prison system, America still lacks the political will to change its failed drug policy

n March, the commander in chief of the War on Drugs stood in front of a crowd of policymakers, advocates and recovering addicts to declare that America has been doing it wrong.

Speaking at the National Prescription Drug Abuse and Heroin Summit in Atlanta – focused on an overdose epidemic now killing some 30,000 Americans a year – President Barack Obama declared, "For too long we have viewed the problem of drug abuse ... through the lens of the criminal justice system," creating grave costs: "We end up with jails full of folks who can't function when they get out. We end up with people's lives being shattered."

Touting a plan to increase drug-treatment spending by more than $1 billion – the capstone to the administration's effort to double the federal drug-treatment budget – Obama insisted, "This is a straightforward proposition: How do we save lives once people are addicted, so that they have a chance to recover? It doesn't do us much good to talk about recovery after folks are dead."

Obama's speech underscored tactical and rhetorical shifts in the prosecution of the War on Drugs – the first durable course corrections in this failed 45-year war. The administration has enshrined three crucial policy reforms. First, health insurers must now cover drug treatment as a requirement of Obamacare. Second, draconian drug sentences have been scaled back, helping to reduce the number of federal drug prisoners by more than 15 percent. Third, over the screams of prohibitionists in its ranks, the White House is allowing marijuana's march out of the black market, with legalization expected to reach California and beyond in November.

The administration's change in rhetoric has been even more sweeping: Responding to opioid deaths, Obama appointed a new drug czar, Michael Botticelli, who previously ran point on drug treatment in Massachusetts. Botticelli has condemned the "failed policies and failed practices" of past drug czars, and refers not to heroin "junkies" or "addicts" but to Americans with "opioid-abuse disorders."

"One of the biggest reasons why people don't seek care is shame and stigma," Botticelli told reporters last year. "What we've been trying to do is change the language."

Despite strides toward a more sane national drug policy, the deeper infrastructure of the War on Drugs remains fundamentally unaltered under Obama. Work focused on public health has not replaced paramilitary anti-trafficking efforts, known as interdiction, at home or abroad. Rather – much like an "all of the above" energy strategy that embraces solar while continuing to remove mountaintops in pursuit of coal – the new policies supplement the old.

As a result, the Drug War is costing taxpayers more than ever. Obama's 2017 drug budget seeks $31 billion, an increase of 25 percent from when he took office. This year, the federal government is spending more than $1,100 per person to combat the habit of America's 27 million illicit-drug users, and 22 million of them use marijuana.

Watch "The War on Drugs: By the Numbers."

The blinkered drug-warrior culture in the ranks of the departments of Justice, State and Defense remains similarly entrenched. The acting chief of the Drug Enforcement Agency calls medical marijuana "a joke." The State Department's top drug official insists, "Our objective remains ... eliminating the use of marijuana in the United States." With pot, such knee-jerk commitment to prohibition might be amusing. With harder drugs, it has deadly ramifications. At home, the administration's early crackdown on prescription opioids helped drive the current spike in heroin deaths. South of the border, cartel violence rages unabated, despite the recapture of Mexico's most notorious drug lord; the country's homicide rate in February spiked to 55 murders a day.

The futility of the greater Drug War was laid bare in recent Senate testimony by top admirals charged with combating global narcotraffic. They confessed they had no solution to halt the flow of heroin from Mexico; admitted global drug suppliers would invariably service U.S. demand; and pressed the government to steel itself for a 30-year nation-building effort in drug-ravaged Mexico and Central America.

Sen. Bill Nelson (D-Florida), the senior member of the Armed Services Committee, sought to put a rosy spin on proceedings. "At least we got El Chapo," he said. "So that was a step in the right direction."

Forty-five years on, America is still grappling with the dark origins of the Drug War, launched in 1971 by President Richard Nixon – for political purposes.

Nixon's domestic-policy adviser, John Ehrlichman, in an interview published posthumously in Harper's this year, revealed the true aim of the Drug War was to criminalize the administration's "two enemies: the anti-war left and black people." As Ehrlichman explained, "We could arrest their leaders, raid their homes, break up their meetings and vilify them night after night on the evening news."

Nixon himself wove anti-Semitism into the mix. "Every one of the bastards that are out for legalizing marijuana is Jewish," Nixon groused to his chief of staff, Bob Haldeman, in a conversation recorded in the Oval Office in May 1971. "What the Christ is the matter with the Jews, Bob?" Nixon asked. "By God, we are going to hit the marijuana thing, and I want to hit it right square in the puss."

More than $1 trillion later, Nixon's war has hollowed out urban black communities, visited death upon downtrodden whites in rural America and unleashed horrific violence from Bogotá to Ciudad Juarez. In Mexico, since 2007, as many as 80,000 civilians have been murdered in drug violence. Despite the carnage, prohibitionist policies enforced through military interdiction and domestic incarceration have done little to curb the American drug habit – which fuels $64 billion a year in cartel profits, according to an estimate by the Treasury Department.

America remains the world's top consumer of illicit drugs. The government's National Survey on Drug Use and Health from 2015 found nearly one in 10 Americans over the age of 12 had used an illicit drug in the previous month. The surge in Drug War spending notwithstanding, American drug use is up modestly – the highest since 2002.

By the government's own metrics, the Drug War is failing. In December, the Government Accountability Office published a report titled "Office of National Drug Control Policy: Lack of Progress on Achieving National Strategy Goals." GAO found that "none of the goals" of the Obama drug strategy have been met, and significant progress can be seen only in a slight reduction in drug use among teens. 

Obama's Drug War leadership has been uneven, an evaluation shared by drug warriors and reformers alike. Beyond big-picture objectives – softening mandatory-minimums, ensuring drug treatment and avoiding a firestorm over marijuana – the first six-plus years of the administration were marked by the president's lack of interest in the nuts and bolts of the Drug War. "I don't think it's controversial by any stretch of the imagination to say that drug policy was not a priority," says Kevin Sabet, a senior adviser in Obama's ONDCP from 2009 to 2011.

The administration's previous drug czar, gruff former Seattle police chief Gil Kerlikowske, reported to Vice President Joe Biden, who had made his bones as one of the Senate's top drug warriors. Obama did not even introduce the National Drug Strategy in 2010. "This was the 'president's drug strategy,'" laments one of its drafters, "and there just wasn't interest."

As a result, much of the Drug War continued on a glide path. Obama even carried over George W. Bush's DEA chief, Michele Leonhart, who would refuse to admit, under House grilling in 2012, that marijuana is a less dangerous drug than crack cocaine.

Obama's inattention also sparked infighting among reformers and hard-liners in the policy ranks – explaining the whipsaw treatment of medical marijuana during Obama's first term. A 2009 Justice Department memo, interpreted in the states as a green light for commercial-scale medical marijuana, was unceremoniously revoked in 2011 – after rearguard action by career drug warriors, including Sabet: "I pushed very hard behind the scenes to get a clarifying memo in 2011, saying, 'Oh, wait a minute, you guys took it the wrong way.'" The new directive sparked a resurgence of marijuana prosecutions, above all in California.

Even the historic decision to condone pot legalization in Colorado and Washington in 2013, insiders say, reflected a White House desire to sidestep a political fight, rather than to provide bold leadership. Sabet calls the legalization decision "Obama's 'don't ask, don't tell'" – a reference to the clumsy compromise under President Clinton to allow gays to serve in the military, provided they stayed in the closet.

Only recently, confronted by a deadly spike in heroin overdoses nationwide, has Obama taken a hands-on approach to drug policy. Kerlikowske took a new position as the head of customs enforcement, and was replaced at ONDCP by his deputy Botticelli.

A study in contrasts from his cop predecessor, Botticelli is the first drug czar with experience in recovery: He's an alcoholic 27 years sober. And as the former head of treatment services in Massachusetts, he pioneered the deployment of overdose-reversal drugs to police on the front lines of the opioid crisis.

"There's a reason why my drug czar is somebody who came not from the criminal justice side but came really from the treatment side," Obama told the crowd at the Atlanta heroin summit. "The only way that we reduce demand is if we're ... thinking about this as a public-health problem.

"It is so much more expensive," Obama said, "for us not to ... do the right thing on the front end."

That is a lesson the White House learned at high cost. The administration's first effort to crack down on opioids – focusing on Rx pills – contributed to the deadliness of today's epidemic.

During the George W. Bush presidency, the death toll from prescription-opioid abuse, driven by easy access to drugs like OxyContin, tripled – approaching 15,000 in 2008. As Kerlikowske took the reins at ONDCP in 2009, he was determined to reduce the supply of painkillers available for abuse. "People were dying from OxyContin. We had to do something," Sabet recalls, to stop "the carnage."

The crackdown included a DEA campaign to shutter pill mills in states like Florida, where unscrupulous doctors liberally supplied opioids to addicted patients. The feds ratcheted up prescription monitoring to stop patients from stockpiling pills from multiple providers. The administration also forced drug companies to introduce abuse-resistant reformulations of drugs like OxyContin and Opana so they couldn't be crushed and snorted.

These reforms showed early promise – slowing the rise in prescription-overdose deaths. But the administration failed to plan for the unintended consequences of restricting the prescription-drug supply: Americans desperate for a fix would turn to heroin instead. "No one considered the fact that these people aren't going to go away," says Theodore J. Cicero, a top academic opioid researcher at Washington University in St. Louis. "You make their drug harder to get, they don't just stop taking drugs. That's a very naive assumption. They switch to something else. Heroin has turned out to be a very inexpensive, readily accessible alternative."

The consequences of that switch turned out to be deadly. And the overdose epidemic is now deadlier still because dealers often cut heroin with fentanyl, a fast-acting synthetic drug up to 40 times as powerful as heroin itself. "From a public-health perspective, we've gone in a reverse direction," says Cicero. "We've generated a big problem from opiate-overdose deaths because we're shifting people into heroin." Today, about 75 percent of heroin users are former prescription-drug users.

The data tells the story: Heroin-overdose deaths surged, more than tripling from 2009, rising to 10,500 in 2014, driving an "epidemic," according to the Centers for Disease Control and Prevention. "More persons died from drug overdoses in the United States in 2014," the agency reports, "than during any previous year on record." After a short plateau, prescription ODs have also spiked again, to nearly 19,000. The 30,000 combined opioid deaths now rival the carnage from car crashes (33,804) and gunshots (33,636).

Drug stats in America skew by race. But unlike arrests and incarceration, overdose deaths hit whites at nearly twice the rate of black Americans and three times the rate of Hispanics. Obama is now using this fact to push for a culture shift. "I'm going to be blunt," he said in Atlanta. "Part of what has made it previously difficult to emphasize treatment over the criminal justice system has to do with the fact that the populations affected in the past were ... stereotypically identified as poor, minority, and as a consequence, the thinking was it is often a character flaw in those individuals ... and it's not our problem they're just being locked up. And I think that one of the things that's changed in this opioid debate is a recognition that this reaches everybody."

The severity of the epidemic has worn down historic Republican resistance to public-health-driven drug policy. In the 2016 federal budget, Republicans lifted a decades-long prohibition on most of the federal funding for needle exchanges.

On a conference call with reporters in March, Botticelli praised such programs as being "a great intervention point for out-of-treatment injection-drug users." Answering a question from Rolling Stone, Botticelli even expressed openness to safe-injection sites – now being considered in cities from San Francisco to Ithaca, New York – where opioid users can shoot up under medical supervision, often with prescription-grade heroin.

"We haven't taken a formal position on safe-injection sites," Botticelli says. This is a startling about-face from past ONDCP pronouncements. Bush drug czar John Walters blasted safe injection as "state-sponsored suicide"; Kerlikowske has called these programs "a failure."

Botticelli continued: "Taking a close look at these programs becomes very important for us – not only in terms of reducing overdose and infectious disease, but also how these programs might or might not [be] an entryway into treatment. It will be very interesting to see how these programs develop over the years."

The administration's increasingly enlightened approach to opioid addiction stands at odds with its confounding approach to a drug at the other end of the harm spectrum, marijuana.

Pot is far and away America's illicit drug of choice, with 22.2 million users. (Texas, by comparison, has 27 million residents.) Marijuana use is increasing modestly – driven by a surge of adult use during the Obama years.

The administration's hands-off approach to state legalization has broken the Berlin Wall of prohibition. Recreational pot is now legal in Alaska, Washington, Oregon, Colorado and the District of Columbia. And, not surprisingly, marijuana is a boom business: Colorado pot sales topped $1 billion last year, producing $135 million in tax revenue, including $35 million for school construction. The research firms Arcview and New Frontier project that the national legal market (recreational and medicinal) will be $7.1 billion in 2016.

The American public has never been more pro-cannabis: According to an AP poll, a supermajority 61 percent favor legalization – including 47 percent of Republicans. And legalization is expected to advance on the 2016 ballot. In California, the campaign for the Adult Use of Marijuana Act is funded by Facebook billionaire Sean Parker and backed by Lt. Gov. Gavin Newsom, who says the Drug War is an "abject – and expensive – failure." Legalization proponents also point to promising November ballot initiatives in Nevada and Arizona.

Vermont may move sooner to become the first state to legalize through the legislative process. "The War on Drugs has failed when it comes to marijuana prohibition," Gov. Peter Shumlin told lawmakers in January, promoting a bill to tax and regulate recreational pot. "Vermont can take a smarter approach."

Prohibition took another blow this year when Prime Minister Justin Trudeau took power in Canada after campaigning in part on a legalization platform. According to a lawmaker close to the effort, Canada is likely to implement a regime for legal marijuana by 2017.

In the face of this progress, however, federal policymakers are redoubling prohibition efforts. In March, assistant secretary of state for drugs and law enforcement William Brownfield declared, "Our objective remains that of limiting and eventually eliminating the use of marijuana in the United States of America because of its harm and its dangers."

Although he touts "evidence-based" drug policy, Botticelli cites risks to young users to advocate for pot prohibition. This is a phantom menace. State legalization is not creating a generation of underage potheads: Marijuana use is flat among 12- to 17-year-olds, nationally, and there has been no spike in teen usage in legal states.

Michele Leonhart, the holdover DEA administrator, was finally pushed out in 2015 in the wake of a sex scandal in her ranks. (An inspector general discovered that DEA agents attended cartel-affiliated sex parties with prostitutes in Colombia, but had received no more than 10 days suspension.) The acting director, Chuck Rosenberg, is no reformer. A former senior FBI official tapped by Attorney General Loretta Lynch, Rosenberg insists pot is "bad" and "dangerous" and told reporters in November, "Don't call it medicine – that is a joke."

Now legal in 24 states and Washington, D.C., medical marijuana is scientifically effective as a treatment for nausea and nerve pain, and for symptoms of multiple sclerosis, epilepsy, Crohn's disease and PTSD. It has also shown potential against diseases as serious as diabetes and cancer. On the House floor, Rep. Earl Blumenauer (D-Oregon) blasted Rosenberg as "an example of the inept, misinformed zealot who has mismanaged America's failed policy of marijuana prohibition." A paper by the Brookings Institution called out the administration for having "paralyzed science and threatened the integrity of research freedom" on medical marijuana.

There are hints, however, that the DEA is not fully impervious to the shifting reality on pot. In a first, the agency's acting chief acknowledged that "heroin is clearly more dangerous than marijuana." The DEA has also said it hopes to produce, by July, the results of a five-year review to determine whether pot should remain with heroin on the most restrictive drug schedule.

Federal enforcement for marijuana is also shifting: In 2010, the DEA seized nearly 726,000 kilograms of pot in domestic raids. By 2014, the latest data available, that fell to just 74,000. Domestic DEA pot arrests are also down sharply – from nearly 7,000 in 2010 to around 4,000 in 2014 – "due in part," the agency explains, "to state-approved marijuana measures."

The drop in federal busts is sharper, in fact, than the decline in marijuana arrests by local cops. According to the latest FBI figures, the feds arrested almost 620,000 Americans for pot possession in 2014 – down from a 2007 high of 775,000, but still comprising 40 percent of all drug arrests, and five percent of total arrests. Yet treating marijuana possession as a crime continues to disrupt lives and drain city budgets. As recently as 2010, states spent $3.6 billion enforcing marijuana laws.

The unequal enforcement of pot laws also lays bare the racism latent in the American justice system. Despite roughly equal use rates, blacks are 3.7 times more likely to be arrested than whites. This pattern persists even in legalization states: Marijuana arrests have fallen 90 percent in pot-legal Washington, but blacks are still busted at twice the rate of whites.

On any given day in America, nearly 470,000 people are behind bars for drug offenses. That represents a fifth of the total incarcerated population of 2.2 million and the equivalent of every man, woman and child in Kansas City, Missouri. The United States remains the world's largest jailer by a wide margin.

But the mass incarceration of drug users may have finally peaked. At the federal level, historic – though far from sweeping – drug-sentencing reforms have significantly reduced the population of drug prisoners. The Fair Sentencing Act, passed by Democrats in 2010, eliminated the federal mandatory minimum for crack possession and reduced the unjustifiable sentencing disparity for possessing powder versus crack cocaine – shaving an average of 2.5 years off sentences for more than 7,500 crack offenders.

Obama's first attorney general, Eric Holder, championed a pair of similar measures to reduce drug sentences. In 2013, Holder instructed U.S. attorneys to not specify drug quantity in the prosecution of nonviolent offenders if doing so would trigger a mandatory minimum. Holder also embraced a reform called "drugs minus two," which lowered the sentencing guidelines judges use for drug crimes by two degrees of severity across the board. Made retroactive in 2014, this reform spurred the early release of nearly 6,000 drug inmates at the end of 2015.

From a peak of 101,000 in 2012, the number of federal drug prisoners has dropped to 85,000 in March, according to data obtained from the Federal Bureau of Prisons. Despite this progress, the federal government imprisons as many drug offenders as it did in 2003, during Bush's first term. And drug cases continue to clog the courts: 32 percent of the district-court caseload, with marijuana accounting for more than one in four drug cases.

States – red and blue alike – are also reducing their drug incarceration numbers, emboldened by low crime and the strapped budgets of the Great Recession. Forty states eased drug-sentencing laws between 2009 and 2013, according to Pew Research. Cumulatively, such reforms have driven a 20 percent reduction in drug imprisonment. From 2004 to 2014, the number of drug inmates held by states decreased by 60,000, according to the Bureau of Justice Statistics, to 208,000. Of these, more than 160,000 are locked up for trafficking and other drug offenses, while more than 47,000 serve time for possession.

The third, and likely largest, population of American drug offenders is in jail – city and county lockups where people serve short sentences or await trial. Nearly a quarter of the roughly 744,000 Americans now in jail – 184,000, according to the Sentencing Project – are locked up for drugs.

Of all states, California is taking the most aggressive lead on jail reform. Prop 47, passed by voters in 2014, downgraded most personal-use offenses to misdemeanors. Rather than being jailed to await trial, drug users are now typically cited and released. According to research by the Public Policy Institute of California, jail bookings for possession charges have fallen by 68 percent.

For taxpayers, the Drug War imposes huge costs: nearly $55 billion a year. Harvard economist Jeffrey Miron, in a study published by CATO in 2010, found state enforcement of drug prohibition – accounting for cops, judges, jails and prisons – costs more than $25 billion a year, with more than $5 billion spent fighting pot.

Federal Drug War spending has now topped $30 billion. ONDCP divides its spending in two buckets: one for "supply reduction" (global interdiction and law enforcement) and the other for "demand reduction" (prevention and treatment). When Obama took office, 60 percent of Drug War spending targeted supply. In 2016, the administration touts that "for the first time" the drug czar's office is seeking "more funding for demand-reduction efforts than those focused on supply reduction."

But this increase in demand-reduction spending has not come at the expense of the draconian supply side, which has held steady. Instead, the Obama administration ballooned the Drug War budget by more than a quarter.

On the supply-reduction side, there has been reorganization. International funding has been slashed from $2.5 billion in Obama's first budget to $1.6 billion in the current request. These cuts have downsized the role of the State Department and the Department of Defense in combating the international drug trade – reducing funding for drug eradication and military equipment in countries like Afghanistan, Colombia and Mexico. The DEA's international footprint, in contrast, has grown slightly and now accounts for about one-sixth of the agency's $2.8 billion budget.

The Drug War budget has grown by billions on the demand-reduction side, from $9.1 billion to $15.8 billion. Prevention funding is actually down; the administration killed a feckless $300 million education grant to the states in 2010. But the drug-treatment budget has nearly doubled – from $7.2 billion to $14.2 billion in the latest request. The biggest driver of this spending is Obamacare, which mandates drug-treatment coverage under both private insurance and government programs.

The transformation of Medicaid from its traditional focus on poor mothers and children to a broad-based health program covering low-income Americans is making drug treatment available to millions for the first time. In several states, expanding Medicaid has doubled the population of people with substance-abuse disorders now able to seek treatment. Studies going back decades demonstrate that treatment spending saves money in the long run, with every $1 spent on treatment saving as much as $7 in social costs. "Dollar for dollar, best thing they could do," says Ethan Nadelmann, executive director of the Drug Policy Alliance.

Still, Obama insists that treatment remains "grossly under-resourced" because Republican leaders in 19 states have blocked Medicaid expansion – denying health coverage to millions. As a workaround, the president's latest ONDCP budget has added nearly $1 billion in targeted treatment funding, including for states that haven't expanded Medicaid, but are being hit hard by the opioid epidemic. "We've got to make sure," Obama said, that people "can get the treatment when they need it."

The changes to the War on Drugs under Obama are historic, and many appear irreversible, but the hard-line ideology of the Drug War is not everywhere in retreat. In many states, the conflict is being waged as though Nixon were still in power. Maine's Republican governor, Paul LePage, said in January that his strategy to curb the opioid crisis is to toughen penalties for out-of-state traffickers. Recalling the worst rhetoric of the Drug War's past, LePage vilified dealers as "guys with the name D-Money, Smoothie, Shifty." LePage has endorsed Donald Trump, who paints Mexicans as drug dealers and rapists. Trump promises to curb the heroin epidemic by walling off the border with Mexico. "You have a tremendous problem with heroin and drugs," he told voters in New Hampshire. "We're gonna have borders again and ... help you solve that very big problem."

The trouble with Trump's proposal is the problem at the root of the War on Drugs itself: A wall is no more a barrier to addiction than a war is an effective treatment.

In fact, Trump's wall would be of no value against heroin traffickers, who cross the most fortified parts of the Mexican border every day. Take it from Adm. Bill Gortney, head of U.S. Northern Command. In Senate testimony in March, Gortney told the Senate Armed Services Committee that "a wall will not solve the immense problems" of narcotraffic.

The most dangerous drugs, the admiral told senators, are not entering the United States through the open desert, as in years past. "Heroin and fentanyl are coming through ... the legal entry-control points across our border," he said. The drugs are smuggled in "very, very small shipments, which is very, very difficult for our partners to be able to detect." The best U.S. counternarcotics strategies and technology, Gortney testified, have been "circumvented by a very adaptable enemy."

In its full scope, the admiral's testimony underscored the futility of the war effort – a lesson that should not have taken the world's leading capitalist society 45 years and more than $1 trillion to learn: Military might is no match for market economics.

"If there's a demand" for drugs, Sen. John McCain posed to the admiral, "there's going to be a supply."

Gortney responded, "That's absolutely correct, sir."