“Government, Not Gangsters, Should Control the Drug Market”: But Will That Stop Mass Incarceration?

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“Everyone knows the War on Drugs was a real failure,” pronounced Fernando Henrique Cardoso, the former president of Brazil. Now the chair of the Global Commission on Drug Policy, Cardoso was in New York City in September for the release of “Taking Control: Pathways to Drug Polices That Work,” the commission’s new report.

The commission, which includes former presidents (such as Brazil’s Cardoso, Mexico’s Ernesto Zedillo, Switzerland’s Ruth Dreifuss, and Portugal’s Jorge Sampaio) as well as former and current United Nations officials (including Louise Arbour, the former UN High Commissioner of Human Rights and Michel Kazatchnkine, current secretary general special envoy on HIV/AIDS), evaluates drug policies in various countries and develops recommendations for drug policy reform. Its 2011 report, titled “War on Drugs” opened with the pronouncement, “The global war on drugs has failed, with devastating consequences for individuals and societies around the world.”

The commission sees the 2016 United Nations General Assembly Special Session on the World Drug Problem (UNGASS) as an opportunity to review and re-approach drug policies around the world. “Our goal is not to concentrate on the United Nations,” Cardoso clarified. “We have to ask people to reflect on drugs and reach out to society to debate the use of drugs.”

“We need to distinguish the harm of drug use from the harm of the conditions under which drug use takes place,” stated Ruth Dreifuss, former president of Switzerland and minister of home affairs. “Both abstinence-based and substitution treatment are most effective when they are free of coercion and decided by the patient and medical provider,” she continued. “But neither is possible in a world where constraint treatment is still the rule. It is time to stop the mass incarceration and harassing of drug users.”

The commission is advocating an end to this constraint treatment, as well as the criminalization of and incarceration for drugs. “Taking Control” recommends five pathways to changing drug policy worldwide:

  1. Place people’s health and safety first;
  2. Ensure access to essential medicines and pain control;
  3. End the criminalization and incarceration of people who use drugs;
  4. Refocus enforcement responses to drug trafficking and organized crime;
  5. Allow and encourage regulating drug markets to put governments in control.

“Regulation is about taking control so governments, not criminals, are in control,” explained Ernesto Zedillo, former president of Mexico, at the Global Commission’s press conference. “The choice is between control in the hands of criminals or of regulated control by governments.”

During Zedillo’s term in office, however, he was unsuccessful in changing drug policy, he told Truthout. “We faced a lot of resistance from our partners, namely the United States and [others in] the international community.” In the years that followed his presidency, as reported in teleSUR English, Mexico adapted the Merida Initiative in 2008, resulting in an explosion of violence and killings while making little difference in drug trafficking.

“Ending the Drug War doesn’t end racism.”

Other countries have tried different tactics to address drug use and associated harms. Portugal, for instance, removed all criminal penalties for the personal possession of all drugs in 2001. It also implemented a more health-centered approach that includes harm-reduction measures. Commission member Jorge Sampaio was president during that time. He noted that, 10 years after its implementation, the number of drug users decreased while the number of people voluntarily entering drug treatment increased. At the same time, Portugal saw decreases in the number of newly-reported cases of HIV among drug users and the number of drug-related deaths.

In 2008, Ecuador pardoned nearly 2,000 people who had been imprisoned for drug-related offenses, although it continues to uphold Law 108, which established undifferentiated sentences for mules (people who are paid small amounts to transport drugs across borders inside their bodies), small-scale dealers and large-scale traffickers. In 2009, the Czech Republic removed criminal penalties for personal drug possession, as well. In 2013, Uruguay went a step further, becoming the first country to establish a legal, regulated market for non-medical marijuana.

In the United States, Colorado and Washington have established legally regulated markets for non-medical marijuana in 2012. This past January, Vermont governor Peter Shumlin focused his State of the Union address on urging legislators to address what he called the state’s “full-blown heroin crisis” as a public health problem. Six months later, in June 2014, Shumlin signed into law a program that allows people caught possessing heroin or other opiates to enter drug treatment instead of serving prison time.

But are these measures and recommendations enough? Will they stem the tide of mass incarceration and the racial profiling of black and brown people?

Harm Reduction and Public Health

Lorenzo Jones is the executive director of A Better Way Foundation. Based in Connecticut, the foundation works directly with people directly impacted by the War on Drugs and mass incarceration to advocate for an end to the Drug War’s punitive approach to drugs. The foundation has successfully campaigned for parity in health-care access, including having the state of Connecticut pay for drug treatment. It also succeeded in ending Connecticut’s sentencing disparities between crack and powder cocaine, becoming the first state to do so in 2005. (Five years later, the Fair Sentencing Act reduced federal sentencing disparities from 100:1 to 18:1.)

“The core of our work is harm reduction and public health,” Jones explained to Truthout. “We believe that public safety work should look like drug policy reform.” The commission’s recommendation for government regulation of the drug market strikes him as a good starting point. But, he cautions, drug policy reform has its limits. “Ending the Drug War doesn’t end racism, just like electing President Obama didn’t end racism. But,” he added, “working on Obama’s campaign or working to end the War on Drugs is not the end goal. We use the campaign to build people’s analysis more broadly. At the core [of racism and racist laws] is fear. People become less afraid when you build their confidence through advocacy.”

Jones points to the foundation’s organizing campaign around medical marijuana, which was approved in 2012. The foundation brought together white people from Connecticut’s suburbs with black and Puerto Rican people from more urban areas. “It was a campaign around an issue they agreed upon,” he recalled, “but it also built confidence, gave people vehicles to make systemic change and reduced fear [around race].”

Dr. Carl Hart, a neuroscientist and associate professor at Columbia University, has studied drugs and human behavior and been an outspoken critic on drug policies. He disagrees with the commission’s assertion that the Drug War has been a failure. “It’s been successful for a group of people who have been in power,” he noted. “But,” he added, “I’m really happy that the Global Commission is trying to take a stand and reflect the reality of what drugs are.”

For Hart, the commission’s recommendation to legalize drugs is incredible and important to moving the discussion forward. “The next step is getting a commitment from their friends who are currently in power to support the legalization of drugs,” noted Hart. “As long as these ideas are being seen as promoted by people who are [politically] irrelevant, we’re not going to get far. We need similar statements by the people in power now.” But Hart also recognizes that legalization will not end the long histories of racism, racial profiling and discriminatory policing and prosecution that fuel mass incarceration.

“Drugs can be used safely if we educate people about them.”

“When we think about places with progressive drug policies, like Portugal, Switzerland, the Czech Republic, they have homogenous populations,” Hart told Truthout. “They see people that they’d be going after as members of their society – their brothers, sisters, sons, daughters, aunts, uncles.” Similarly, the states advocating drug policy reforms, such as Vermont, or that have legalized marijuana, like Colorado and Washington, are predominantly white. “In places with homogenous societies, you can have these [reformed] drug policies and not worry about criminalizing people for other behaviors. But in less than homogenous places, there’s still an undertone of racial animosity that we don’t deal with very well or very honestly. We have to deal with it honestly.”

According to the Center on Criminal and Juvenile Justice, although they make up only 6.5 percent of California’s population, African Americans are four times more likely to be arrested for marijuana, 12 times more likely to be imprisoned for a marijuana felony arrest, and three times more likely to be imprisoned for marijuana possession.

Even the latest report from the Bureau of Justice Statistics demonstrates the racial disparity. Over 200,000, or 16 percent of the 1.3 million people were in state prison for drug-related offenses at the end of 2012. Of those, 79,300 were black, 64,800 were white and 31,300 were Latino. At the end of 2013, nearly 3 percent of black male US residents of all ages were imprisoned (2,805 people per 100,000 black male US residents) compared with 0.5 percent of white males (466 per 100,000).

The Global Commission acknowledges the racism in drug law enforcement, noting that, although African Americans make up 13 percent of the US population, they make up 33.6 percent of drug arrests and 38 percent in state prison for drug charges. The United Kingdom, Canada and Australia have similar disparities.

Possibilities and Next Steps

“Drugs can be used safely if we educate people about them,” Hart noted. “That part is usually missing from these discussions.”

In its report, the commission urges governments to focus on goals such as reducing drug-related harms, such as overdoses and diseases, as well as prohibition-related consequences, such as violence, corruption, human rights violations, and the displacement of communities. Its first recommendation – to place people’s health and safety first – includes harm reduction as one of its strategies.

Harm-reduction initiatives have already been put into place, in some cases with governmental approval and funding. In 2011, Jones was invited to Budapest to a meeting of the Pompidou Group, an intergovernmental body in Europe originally formed to examine drug misuse and trafficking. There, he learned about Germany’s safe injection facilities and heroin maintenance programs operated by NGOs and funded by the government. “There was a public park [in Berlin] where people would go and self-medicate,” he recalled. “So the program basically took the park, moved it inside and placed it under medical supervision.” The harm reduction approach also allowed heroin users to access treatment for Hepatitis C. HIV rates also decreased.

However, race still affects how these programs are described. Jones noted that, although people from northern Africa also utilized these programs, they did not appear in any of the pictures shown as part of the presentation. But, despite the invisibility of users of color, the possibility of government-funded harm reduction has demonstrated possibilities that can be adopted in the United States. “We can do state-funded safe injection and heroin maintenance facilities in the US,” he said. Pointing to the needle exchange programs of the 1990s, he noted, “The work is already happening. It’s underfunded, in the shadows, taboo, but it’s there. The question should be, ‘Why aren’t we funding this?’ “

Closer to home, Canada has also taken steps to utilize a harm-reduction approach to drug use. In 2011, the Supreme Court of Canada ruled that supervised drug injection sites are important for health and security. In 2013, Quebec financed four supervised injection sites where users can shoot up using clean needles and under medical supervision. In September 2014, Montreal mayor Denis Coderre announced that the city will open three sites within its territory.

In the United States, however, shifting the focus to a public health approach may still take time and effort. At a conference titled “Shifting Law Enforcement Priorities to Reduce Mass Incarceration,” drug decriminalization was not mentioned by any of the prosecutors, police chiefs or other speakers. Instead, drug use was still characterized as a threat to public safety. “In rural America, access to treatment services is so much worse than in urban areas,” noted Timothy Purdon, the US Attorney in North Dakota. “We have dangerous folks coming home to small-town America and struggling to access treatment.”

Despite these challenges, Jones remains optimistic that he’ll see an end to the drug war in his lifetime. “We’ve got Washington and Colorado,” he said. “We’d like to see a fully-operated heroin maintenance program or diversion programs that fully utilize the Affordable Care Act. It’s going to happen the way a building falls – not all at once, but over time.”

But he also cautions that ending the drug war will not end racism or mass incarceration. “The work in America will just be starting – from zero tolerance in schools to army tanks in Ferguson,” he stated. “We’ll still face dangers like the militarization of the police, like we see in Ferguson, and community policing, where we see George Zimmerman [shooting Trayvon Martin] or [Michael Dunn killing Jordan Davis over] loud music at a gas station. All of this happens under the guise of community policing. Ending the Drug War is not going to end these types of policies.”

Hart agrees. “These will always happen until we deal with race. But I’m not asking drug policy to address all of these. I’m asking drug policy to take away drugs as a tool to further marginalize people.”