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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.

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