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The Road to Reform | The Nation

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The Road to Reform

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Nearly everyone seems to agree that the war on drugs has been a disaster, but little progress in ending it has been made. Many mainstream figures, including current drug czar (and retired four-star general) Barry McCaffrey and former drug czar (and New York City Police Commissioner) Lee Brown, have questioned the overreliance on incarceration. Yet more than 400,000 people are behind bars for drug offenses. The federal government has spent more than $110 billion fighting drugs since 1988, and the proposed budget for the next fiscal year is $17.8 billion. Treatment programs, meanwhile, are still unavailable for almost two-thirds of the people who want them (though treatment is always available for those who can pay outright or have insurance coverage).

About the Author

Carol A. Bergman
Carol A. Bergman served as the director of legislative affairs for the Office of National Drug Control Policy,...

Why has reform been so slow in coming?

One reason is that the opposition is not as organized or cohesive as it could be. The drug policy reform movement comprises a broad spectrum of advocacy groups whose objectives are often at odds. Some advocates of legalization, for instance, want to expand the right to privacy to protect drug use, while drug treatment providers emphasize abstinence. Some treatment providers, moreover, support drug courts as a means of sending offenders to treatment instead of prison, whereas criminal justice reform groups question whether these courts expand the net of the criminal justice system by bringing in defendants who wouldn't have been prosecuted in the first place.

Drug reform advocates don't have a single defining issue, in the way that desegregation helped focus the civil rights movement. Indeed, the drug issues that attract mainstream support are frequently viewed as unrelated to the drug policy debate. One example is the campaign, led by libertarians, for asset-forfeiture reform in Congress, which has attracted a broad coalition in large part because the seizure of assets can be framed as a property issue. And successful campaigns in six states to legalize the medical use of marijuana have appealed to the voters' compassion for sick and dying patients, not to their interest in drug policy.

For the most part, even when it has seemed that government agencies are on their side, reformers have been unable to overcome political opposition. In 1995, for example, the US Sentencing Commission--an independent, permanent agency established by Congress to develop a detailed system of sentencing guidelines for federal criminal offenses--released a report recommending an end to the racially discriminatory 100-to-1 disparity in sentencing between crack and powder cocaine. The 200-page report was full of evidence documenting the injustice of this disparity, and the proposed change was embraced by the Office of National Drug Control Policy, the Congressional Black Caucus and criminal justice and drug policy reform groups. Nonetheless, the White House submitted draft legislation to Congress to keep the disparity intact. For an Administration determined to take back the crime issue from the Republicans, the crack/powder debate was an opportunity to appear tough on crime. The Sentencing Commission did little to make its recommendations understood because it was not set up to engage in advocacy. The commissioners themselves acknowledged that they had failed to promote their findings effectively because they believed that "good government would carry the day."

At the federal level, most reform efforts are reactive, attacking one bad bill after another--in large part because many horrendous bills are introduced. Reformers have pushed for more dollars for treatment, but under the current budget arrangement drug treatment is forced to compete with other important health issues. In order to have an impact, reformers need a long-range strategy that addresses the political obstacles to reform and alters the very structure of the drug budget.

To pursue such a strategy activists must first abandon their fixation on the ten-year-old Office of National Drug Control Policy (ONDCP), which is essentially powerless to make meaningful changes in drug policy. Following Clinton's election in 1992, reformers debated a short list of possible candidates for drug czar, and it's still tempting to come up with a fantasy list of names and proposals. But it has become increasingly clear that no drug czar can do what's needed. Drug use should be redefined as a public health issue and removed from the criminal justice system. But it's not within the ONDCP's jurisdiction to do that. The mandatory sentencing laws that are at the heart of the criminal justice system's response to drug-related crimes should be repealed--but the ONDCP can't recommend that since criminal laws are under the Justice Department's jurisdiction. Drug budget priorities should be redirected and funds moved from law enforcement to treatment programs, but the ONDCP can't do that because Congress never gave the drug czar authority over a single integrated drug budget.

At best, the office is a bully pulpit and should be recognized as such, either dedicated to providing policy advice or invested with the autonomy of the Surgeon General. The ONDCP was set up by the Anti-Drug Abuse Act of 1988 to coordinate federal drug control efforts throughout the government and to establish national policy. But the emperor has no clothes: Without budget authority, the office has no real power. About the only way for the drug czar to assert authority or to advocate provocative policy changes is to step on the toes of another member of the Cabinet--not a welcome prospect for a presidential appointee. General McCaffrey's recent announcement of a new methadone policy--proposing a system of accreditation that would make the drug more widely accessible--is a welcome example of his willingness to challenge the status quo, albeit chosen carefully, as he can make this change without regard to budget priorities. Supporting federal funding for needle exchange, for example, would be far more controversial.

Such limitations are clear from the ONDCP's recent history. For example, the National Drug Control Strategies first issued by former drug czar Lee Brown under President Clinton actually called for treatment on demand. The Strategies did such a good job of advocating more treatment that the first two years of Congressional oversight hearings were filled with Republican rhetoric excoriating the Administration for focusing on treatment at the expense of law enforcement. The untold story, however, was that the budget never matched the strategy: The reality was that a greater percentage of the drug budget was actually going to law enforcement under Clinton than under Bush.

Critics who do appreciate the role of the budget in making policy often reach the conclusion that more funds should go to the "demand" side of counternarcotics efforts (i.e., to drug treatment and prevention programs) rather than to the "supply" side (i.e., prosecuting dealers). Recently, for example, a coalition of two dozen reform organizations drafted a report titled "The Effective National Drug Control Strategy," which proposes a sensible shift in federal funding priorities, away from enforcement and toward youth programs and treatment. Since there is no integrated drug budget, however, making this shift is not simple. The budget that the ONDCP submits to Congress each year to implement its National Drug Control Strategy is a composite of the drug-related budgets submitted by the twenty-seven federal agencies involved in counternarcotics work. (The largest item in the nation's drug budget, for example, is the Justice Department's spending on prisons and court costs.) No one official or agency has the authority to take funds from interdiction and move them into treatment. At the same time, no Congressional committee is actually responsible for examining the nation's overall drug budget. Instead, nine of the thirteen House and Senate appropriations subcommittees oversee the drug budget for the federal programs that fall within their jurisdiction. Given the way the federal budget is constructed, the only way to put increased funds into drug treatment programs is to move funds from another Department of Health and Human Services budget category (e.g., breast cancer or HIV) or challenge the way the drug budget is put together.

Changing the budgeting process will require leadership from Congress. There is ample evidence to support such change, but federal drug and crime policy is driven by fear--or at least what members of Congress perceive about their constituents' fear of crime--not by data and studies. Ever since the Willie Horton advertisements helped bring down the 1988 Dukakis presidential campaign, every legislative decision has had the potential to hurt a member's re-election effort. Fear of political consequences most likely explains the government's refusal to redress the federal sentencing disparity between crack and powder cocaine.

While the importance to politicians of appearing tough on crime cannot be overestimated, there are occasionally openings for less poll-driven, more independent decision-making. Whereas every member of the House is up for election every two years, only one-third of the Senate is running for re-election at any given time, which can liberate senators temporarily from campaign concerns. In addition, a small group of members come from "safe" districts and so can afford to vote their conscience.

In any case, a strategy that challenges current drug policy is doomed unless it offers something in its place. That's why the alternative omnibus crime bill introduced by former Representative Craig Washington and Representative John Conyers on behalf of the Congressional Black Caucus in 1993 was so powerful--it presented an alternative vision of what criminal justice reform groups wanted, rather than merely a list of what everyone was against. The bill was an amalgam of crime and drug policy legislation introduced over the past decade to assist state and local government in responding to crime--for example, by expanding community policing and police training and strengthening laws against police misconduct. To prevent crime, it also included grants for safe schools and midnight sports as well as comprehensive gun control measures. And it aimed to increase confidence in the criminal justice system by eliminating the racial disparity in the use of the death penalty and in crack/powder cocaine penalties, and enacting asset-forfeiture and habeas corpus reform. As a result, the bill was co-sponsored by the members of Congress responsible for individual amendments within the larger bill and attracted the support of a broad-based coalition spearheaded by the ACLU.

Members of Congress are more likely to defy the orthodoxy when their constituents advocate change--particularly those with special credibility such as law-and-order figures. Taking a lesson from the gun-control movement, drug reformers have found chiefs of police with successful needle-exchange programs in their communities to act as advocates on Capitol Hill, providing more political cover than any Washington-based advocacy group on needle exchange ever could. Many people in criminal justice and law enforcement have been radicalized by their day-to-day experience within the system, but they need to be encouraged to speak out. District court judges have begun to criticize crack sentences from the bench, including Judge Louis Oberdorfer (DC), Judge Clyde Cahill (Missouri), Judge Harold Greene (DC) and Judge Alan Nevas (Connecticut)--a Reagan appointee. Even Supreme Court Justice Anthony Kennedy has assailed in a Congressional hearing the mandatory minimums for possession of crack cocaine.

Overall, though, given the tough-on-crime climate in Washington, we shouldn't expect the most far-reaching and innovative policy changes to originate inside the Beltway. State-level attempts at reform often enjoy much better prospects. In Michigan, for example, Families Against Mandatory Minimums (FAMM) lobbied successfully last year to reform mandatory sentences for drug offenders. Before the change, the "650 Lifer" law required life in prison without parole for drug offenders convicted of intent to deliver 650 grams of cocaine or heroin; the reform made prisoners eligible for parole after serving fifteen to twenty years. Working closely with Republican State Representative Barbara Dobb, FAMM crafted a bill with safeguards to insure that the key players in the drug trade serve the longest sentences. The movement for this very modest reform legislation helped build a strong grassroots base capable of other lobbying efforts--such as the campaign FAMM has initiated to eliminate harsh presumptive mandatory sentences for lesser drug offenses and consecutive mandatory sentences.

In Connecticut, a lively grassroots movement for drug law reform, engaging individuals and organizations from across the political spectrum, has launched campaigns to reserve scarce prison space for violent offenders and prevent the spread of drug-related HIV. By the end of the 1999 legislative session, the state General Assembly had expanded the availability of needle exchange, broadened insurance coverage for substance abuse and increased parole eligibility for people convicted of nonviolent crimes who received mandatory-minimum sentences. (Despite the co-sponsorship of thirty state legislators, an amendment to eliminate the sentencing disparity between powder and crack cocaine never came to a vote.)

Yet at the state level, too, even the most promising reform movements face formidable obstacles. In New York, where the Rockefeller drug laws are among the most draconian in the nation--possession of four ounces (or selling two) of any illegal narcotic commands fifteen years to life--the campaign for reform seemed to pick up speed after Court of Appeals Chief Judge Judith Kaye criticized the laws during her annual State of the Judiciary address. The state's burgeoning prison population (almost one-third of the 70,000 in prison are drug offenders) has also helped create a climate for change. The drug laws are now under fire from a broad bipartisan coalition, under the leadership of former State Senator John Dunne, that includes some of the Republicans who enacted the laws in 1973 as well as the state's Roman Catholic bishops. The state legislature considered proposals to reduce the number of drug-law offenders in prison, shorten sentences for drug-law offenses and restore judicial discretion in sentencing. Yet Governor George Pataki refused to entertain a major overhaul of the Rockefeller laws, instead proposing his own package of minimal reforms, which in turn have come under fire by prominent Democrats.

Democratic resistance to drug law reform is not unusual and suggests that Democrats might not be the best agents of change in this area. Just as it required a staunch anti-Communist like Nixon to open the doors to "Red" China, it may well take a Republican with impeccable law-and-order credentials to bring sanity to the debate on crime and punishment. Once in office such a politician could permit a serious review of our nation's drug policies without fearing devastating political consequences. GOP front-runner George W. Bush certainly won't fill this role, as he boasts a record of some of the nation's most punitive drug law enforcement in Texas at the same time that he dodges questions about his partying days. A politician with nothing to hide--or one like New Mexico's Republican Governor Gary Johnson, willing to be honest about past drug use and advocate that drug policy be brought into line with reality--is more likely to challenge successfully the many injustices of our nation's war on drugs.

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