A pair of House Democrats introduced legislation on Tuesday that would decriminalize possession of all drugs at the federal level for personal use and begin the process of prioritizing a public health approach to drug use over punishment and policing. These are the necessary first steps, advocates say, for ending the war on drugs 50 years after it was first declared by President Richard Nixon.
Representatives Cori Bush (D-Missouri) and Bonnie Watson Coleman (D-New Jersey) introduced the Drug Policy Reform Act, which would eliminate federal criminal penalties for possession of any drug for personal use, including marijuana, cocaine, opioids, various psychedelics and other drugs banned under the Controlled Substances Act. The bill aims to begin repairing some of the damage to communities and the lives of individuals caused by the drug war, which has contributed heavily to mass incarceration and other forms of state violence that have fallen hardest on low-income communities and people of color.
“The economic stability of our carceral state depends on this misguided and racist policy, and we are here to say, no more, it’s time that we end this destruction,” Bush told reporters on Tuesday, adding that, as a nurse in St. Louis, she saw how criminalization and stigma harms people who use drugs. “Imagine what we could do if we built systems of care that treated and supported people…that is the world we should build.”
The legislation calls on Congress to “refocus its strategies” for addressing drug use toward an approach that is “health-focused, evidence-based and respectful of self-determination.” The bill would shift regulatory authority over the Controlled Substances Act from the Department of Justice and its Drug Enforcement Agency (DEA) to the Department of Health and Human Services (HHS), signaling a seismic shift in terms of future policy that could reframe drug use as a health issue rather than a criminal offense, at least for the federal government.
The Controlled Substances Act forms the legal backbone for the drug war at the federal level by “scheduling” drugs, which makes certain drugs only available by prescription or illegal altogether. For example, marijuana is listed on Schedule I alongside peyote, MDMA and several other drugs. Schedule I drugs remain federally illegal for any purpose, despite changes in state law, such as the widespread legalization of medical marijuana.
Currently, changing federal drug scheduling requires an act of Congress or action by the DEA, the federal drug war agency that has refused to reschedule marijuana. In theory, shifting regulatory authority over the Controlled Substances Act from law enforcement to HHS, a federal public health agency, would allow the government to begin the process of regulating drugs based on science and public health concerns, rather than regulating drugs in order to criminalize and punish people who use them. Supporters say the change would also be symbolic of the government’s shifting priorities.
The bill comes as new polling shows that more than 80 percent of Democrats, Republicans and independents agree the drug war is a policy failure. Two-thirds of voters say criminal penalties should be removed for all drugs, not just marijuana, so the money spent on drug enforcement can be reinvested into addiction treatment and mental health services. Other polls show that public opinion about drugs and prohibition continues to shift, but the bill still faces a steep uphill climb in Congress.
Last year, House Democrats passed legislation that would remove marijuana from Schedule I of the Controlled Substances Act, effectively decriminalizing cannabis at the federal level. However, the legislation went nowhere in the Senate. Democrats now hold the slimmest majority in the Senate, but the Biden administration has signaled that marijuana reform is far from a priority, if not off the table entirely. President Biden is wary of marijuana legalization, and reports suggest Vice President Kamala Harris — the tie-breaking vote for Democrats in the Senate — may have flip-flopped after campaigning on the issue. If Democratic leadership has little appetite for marijuana reform, which is overwhelmingly supported by voters, then decriminalizing all drugs is a legislative longshot.
Like other drug decriminalization initiatives at home and abroad, the Drug Policy Reform Act would not eliminate all federal criminal penalties for drugs. Federal courts could still issue fines for drug possession, although a judge could waive a fine if the defendant is unable to pay. Selling large amounts of drugs would remain illegal, and the bill would create a commission of experts tasked with determining what amounts of specific drugs would be decriminalized for personal consumption. The commission would also make recommendations for preventing the prosecution of people who sell or distribute small amounts drugs to support their own drug use or meet other immediate needs, making room for the decriminalization of low-level drug sales.
Morgan Godvin, a research associate at the Health in Justice Action Lab who has served time in federal prison on trumped-up drug charges, said the bill is a conversation starter. Few people are caged in federal prison for drug possession charges alone, but the federal criminal legal system has proved much more intractable to reform than state and local systems. Removing the Controlled Substances Act from the DEA’s purview could allow federal health officials to disassemble the drug prohibition law, Godvin said, and media coverage of the bill could push lawmakers across the political spectrum to take a position.
“It’s getting increasingly difficult to defend criminalization as response to our crises … we are experiencing record-breaking overdose deaths year after year, and endemic untreated substance use in our people,” Godvin said in an interview. “I can’t wait to see conservatives contort themselves into pretzels trying to defend the criminalization scheme as effective; if that is supposed to keep people from doing drugs, then they failed.”
Rather than ending the drug war altogether, the bill appears to provide a path forward for federal reform and a template for changes in state law. For example, federal courts would be required to expunge federal drug possession convictions that would be decriminalized under the bill, and people held in federal prison on possession charges could have their sentences reviewed and vacated.
“The war on drugs was never about helping people, it was about criminalizing them, and that is what we are trying to correct today,” Coleman told reporters on Tuesday.
The bill would also make it illegal to deny people access to federal benefits such as food assistance or a driver’s license based on prior drug possession convictions, which advocates say would help people harmed by the drug war to move on with their lives. Cities and states that continue to criminalize people who possess drugs for personal use would not be eligible for certain federal grant programs that fund police. The bill would deal a significant blow to the DEA and begin to refocus federal resources on harm reduction, addiction treatment and evidence-based drug education, but it would not totally eliminate federal drug policing.
Queen Adesuyi, a policy manager at the Drug Policy Alliance, a group that helped write the legislation and a similar statewide initiative that decriminalized drugs in Oregon, said the drug war has caused “mass devastation” in Black, Indigenous, Latinx and low-income communities. The new legislation, she said, provides a glimpse of what an end to the war on drugs could look like.
“We will not be subjugated any longer by an offensive that was created solely with the purpose of ‘disrupting’ our communities,” Adesuyi said in a statement. “This bill gives us a way out — a chance to reimagine what the next 50 years can be. It allows us to offer people support instead of punishment.”
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