In the Face of the Drug War’s Total Failure, Can California’s Legalization Battle Kick-Start a Movement for Change?

Drug prohibition is remarkably ineffective, costly and counter-productive — it has cost people their lives, and put millions behind bars. Is the tide turning?

September 5, 2010  |  Prohibition has failed — again. Drug prohibition has proven remarkably ineffective, costly and counter-productive. 500,000 people are behind bars today for violating a drug law – and hundreds of thousands more are incarcerated for other prohibition-related violations. There is a smarter approach usually called harm reduction. Reducing the number of people who use drugs is not nearly as important as reducing the death, disease, crime, and suffering associated with both drug misuse and failed policies of prohibition.

Ethan Nadelmann is the founder and executive director of the DRUG POLICY ALLIANCE, the leading organizations in the United States promoting alternatives to the war on drugs, grounded in science, compassion, health and human rights. He received his BA, JD, and PhD from Harvard, and a Master’s degree in international relations from the London School of Economics. He authored COPS ACROSS BORDERS and co-authored POLICING THE GLOBE: Criminalization and Crime Control in International Relations.

McNally: How did drug policy reform become your life’s work?

Nadelmann: It had something to do with my growing up in a fairly traditional Jewish family, going off to college, smoking marijuana, enjoying it, and wondering why people were getting arrested for it. I was reading John Stuart Mill’s On Liberty at the time, and I wondered why we were criminalizing something so much less dangerous than alcohol. In graduate school, I ended up writing a dissertation on the internationalization of crime and law enforcement. Then at the peak of drug war hysteria In the late 80’s, I wrote a piece in Foreign Policy magazine, saying that most of what we identified as part and parcel of the drug problem were the results of a failed prohibitionist policy. Shortly thereafter the Mayor of Baltimore, Kurt Schmoke, said much the same thing, and we got a lot of media play. One thing led to another, and finally to my running the Drug Policy Alliance, and becoming deeply involved in efforts to change drug laws both in the US and around the world.

McNally: You’ve said that this is a multi-generational campaign. Why do you say that?

Nadelmann: I was one of those weird kids who if you asked me what I wanted to be when I grew up, I’d say a history professor. I became a professor of politics, but very interested in the history of social movements. Although sometimes things happen far more rapidly than one could ever believe — the repeal of alcohol prohibition or the fall of the Soviet Union — a lot of the biggest changes take multiple generations.

My role models are the movements for gay rights, civil rights, women’s rights, even the abolition of slavery in the early 19th century. Every one of these has been multi-generational. Every one of them started with people asserting what sounded like quixotic principles — about the fundamental equality of people no matter the color of their skin, the fundamental equality of men and women, the fundamental equality of people regardless of their sexual identification. Our core principle is that people should not be discriminated against or punished solely for what they put into their bodies, absent harm to others. And I believe this principle will ultimately prevail just as other once radical principles of freedom and equality ultimately triumphed.
I’ve been involved for close to a generation now, and I increasingly see myself mentoring and handing off the baton to a new generations of activists. I see this movement morphing and having the same sorts of internal struggles that other movements have had; it’s an inevitable part of the process. But I feel a sense of momentum right now. Those other movements ultimately succeeded far more than they failed. To the extent that I have an optimistic view of historical evolution, I think the same thing is going to be true with the drug policy reform movement.

McNally: The Drug Policy Alliance has recently co-hosted a series of conferences around the country. The one in Los Angeles was entitled New Directions: A Public Health and Safety Approach to Drug Policy. What are they about?

Nadelmann: We’ve done three of these New Directions conferences. They’re about shifting the paradigm of drug control from one in which criminal justice approaches are dominant to one in which health approaches are dominant. So much of drug policy takes place on the ground, and so much involves both governmental and non-governmental agencies and workers — cops, prosecutors, housing, public welfare, health, you name it. We’re just trying to come up with pragmatic solutions.

We did a conference in New York in early 2009 together with the New York Academy of Medicine. In June we did one in Washington DC with the National Association of Social Workers. Last month we did one in Los Angeles with the California Society of Addiction Medicine. Those were our key partners, and we have a whole host of others from health, civil liberties and sometimes law enforcement co-hosting with us.
These events push in a new direction: To reduce our reliance on a criminal justice and punitive approach in dealing with drugs, and to elevate the role of health in dealing with people who are addicted; To focus criminal justice resources on the harms that people do to one another, rather than simply arresting people for drugs; To move toward decriminalization of drug possession, both for those who are addicted and want help and for those who don’t have a drug problem and should essentially be left alone.

McNally: What are you hoping to achieve?

Nadelmann: First, we want to empower people who deal with drug addiction to become more independent and to be sensitive to all of the risks and dangers of doing drug treatment within the criminal justice system. More and more of the drug treatment industry has become “co-dependent” on the criminal justice system, relying on the courts to send them patients and keep them there, even if the assigned treatment is inappropriate or ineffective. The result is less emphasis on helping people get their lives together and an obsession with abstinence-only approaches in which the key criteria of success or failure in drug treatment is the purity of one’s urine.

Second, we want people of color — African Americans, Latinos — to become more deeply engaged. From the traditional Baptist and Evangelical churches within those communities, you sometimes see a kind of heavy moralism that is very resistant to a pragmatic approach to dealing with drugs. Conversations are now beginning to take place within those communities that are leading things in a new direction.

Third, people who deal with the problems of drug addiction in the cities oftentimes feel very removed from the whole debate around marijuana. We want discussions around how you deal with methamphetamine, cocaine and heroin addiction and how to deal with marijuana — which can be addictive, but for a much smaller number of people and with less serious consequences… to happen in the same rooms.

Finally, when you bring people together like this, law enforcement still holds back. One of our major challenges is to attract law enforcement in greater numbers.

McNally: I was especially interested in officials from Vancouver explaining how things are working since they shifted to more of a public health approach.

Nadelmann: One of my principle objectives when I started this organization, as it is now, is to inform Americans about approaches outside the US that are proving effective with less incarceration and less taxpayer dollars down the drain — and with better results in terms of helping people lead safe and healthy lives. Vancouver is an outpost of European sensibility on drug policy in North America, and leapfrogged San Francisco about a decade ago. Vancouverites and other people in British Columbia moved on things like needle exchange programs more quickly and effectively than in most places in the US. Then they went a step further.

In the 1990s, Europeans had initiated projects where heroin addicts who had tried methadone, tried drug-free, been to jail, tried everything, and they couldn’t quit, could go to a clinic and get pharmaceutical grade heroin up to three times a day. Programs in Europe proved remarkably successful — reducing crime, reducing addiction, helping people get their lives together and saving taxpayers money. Montreal and Vancouver did their own very successful projects, and earlier this year the New England Journal of Medicine published a highly positive review of these things.

Vancouver also provides “safe injection sites”, where people who come to get a clean needle are allowed to bring their illegal drugs with them and use them in a place with a nurse present. These too have proven remarkably successful in enabling people to stabilize their lives by reducing overdose fatalities, injection-related risks, and public nuisance. There continues to be reluctance and resistance to such things in the U.S., especially from the federal government.

McNally: Somehow our oceans isolate us from other folks who are trying new things and succeeding…

Nadelmann: Can’t blame it on the oceans, because places like Australia are being innovative. We’re such a big nation that when we look for alternative approaches, we tend to look only within. People might say, “I heard there’s a really innovative approach to probation in Kansas, let’s look at that” or “Let’s see what Texas did or New York did…” But the notion of looking at what Switzerland or Portugal or Australia or even Canada is doing, that’s less the American mindset.

McNally: You’ve said you’re looking for the next generation on this issue. Do you see one emerging?

Nadelmann: Students for Sensible Drug Policy – SSDP – was created about ten years ago. It organizes college students to advocate as DPA does for alternatives to the war on drugs. They mobilized initially because of the ridiculous Congressional statute that prohibited student loans from being given to anybody who’d ever had a conviction of a drug offense, including marijuana possession. If you’d been convicted of rape or murder or grand larceny, you were still eligible, but not for possession of a joint. They’ve also gotten very involved in trying to change campus policy, for example, to get marijuana and alcohol treated the same. It’s an innovative, dynamic organization that works very closely with us, and is really growing.

I’m beginning to see and hear about more youth organizations elsewhere around the country, some focused on young people of color. In the black community you see more and more mobilization around prison reform and reducing incarceration, and folks putting their toes in the water on broader drug policy reform. The drug issue stands out as one where young people are more mobilized than on most others.

McNally: I’m glad to hear that, because, when you point to other reforms — civil rights, gay rights, even ending the Vietnam War — young people played a big role in those movements, and it seems to me that’s going to be needed here.

Nadelmann: I’ve met with faculty on a few campuses who say they haven’t seen any activism in a very long time to compare with what SSDP is doing.

McNally: If people get involved and experience some success, there’s hope that they transfer that energy to other issues. Talk about Firedog Lake and SSDP uniting on Just Say Now…

Nadelmann: A little take off on Nancy Reagan’s “Just Say No”. Huffington Post put it at the top of the front page, and it got tens of thousands of hits. They’re initiating their campaign with support for Prop 19, the ballot initiative in California to allow counties and cities to choose to end the penalties for possession of marijuana, basically a legalization initiative, one of the most exciting things taking place right now. It was prompted by a leading medical marijuana entrepreneur, Richard Lee, the unofficial “mayor of Oaksterdam.” He plowed back the money he was making into getting this initiative on the ballot. Drug Policy Alliance helped a bit on the drafting, and I’m doing everything I can to help raise funds and other support.

McNally: The polls seem to be all over the map, but one released July 28 by Public Policy Polling, has support for Prop 19 at 52%, 36% opposed, 12% undecided.

Nadelmann: You can see another with almost the opposite result some months before, and a Field poll showing 48 for, 44 against. My best guess is that it’s roughly 50/50, and normally it’s hard to win a ballot initiative when the public’s split 50/50 a few months before the election. When you get down to the wire, people get nervous, they may like an idea in principle but they’re worried about the details…

McNally: If they’re soft, they’ll peel off to “No.”

Nadelmann: Exactly. I think it’s going to be tough to win, but it has a shot. If we can raise the funds to take the campaign to the next level, who knows? And maybe young people will surprise everyone by voting in much greater numbers than they usually do, especially in a non-presidential election year.

I’ll tell you this, if it doesn’t win this year, we’re going to win this sometime in the coming years. Right now the momentum is on our side, and I’m inspired. Every time I start to despair, something new happens to give me hope: a new poll; or a new labor union comes out in favor — whoever heard of labor unions endorsing marijuana legalization? Or members of Congress like Barbara Lee in Oakland or George Miller in northern California or Pete Stark saying “I’ll vote for it.”

More people know about this initiative in California than about any other initiative on the ballot. Already by mid-summer something like 70% of all likely voters said they had heard about Prop 19 and knew it’s about legalizing marijuana. It’s generating the types of media conversations and debates which are an essential part of the broader dynamic that’s needed to ultimately end marijuana prohibition in America.

McNally: Can you say a bit about Prop 5 in 2008? It was leading in the polls but fell apart in the last few weeks.

Nadelmann: Prop 5 was a very different kettle of fish. It proposed a major reform of the criminal justice system, the prison system and of drug policy. If it had passed, it would have resulted in a reduction in incarceration in California’s overcrowded prisons of 25 to 30,000 non-violent drug offenders over the next few years. It would have resulted in the transfer of a billion dollars a year from prison and parole to treatment and rehabilitation, and would have reorganized the entire corrections system to hold them accountable to a new set of standards. It would have been the biggest reform of drug policy and sentencing in the US since the repeal of alcohol Prohibition, and the polling initially was in favor by a two to one margin. Even with the additional monies allocated, it would have saved taxpayers money.

The prison industrial complex mobilized against this like I’ve never seen, with Jerry Brown and Dianne Feinstein becoming the face of their ads. At the last moment, the prison guards union put in two million bucks of their own money, and raised another two million to run dishonest ads scaring people. People were freaked out about the economy, and we were not successful in getting out the fact that this was going to save money — in part because Attorney General Jerry Brown mandated that the ballot language obscure the savings to taxpayers.

McNally: He placed the direct costs up front in the ballot language, but the net savings, which were much greater, at the bottom.

Nadelmann: Ten years ago, Prop 36, which mandated treatment instead of incarceration for non-violent drug possession offenders with drug problems, won with 61% of the vote even though virtually the entire political, media and criminal justice establishment came out against it. The last lines of that initiative said that it would allocate $120 million a year for 5 ½ years, and would produce a net savings of roughly a billion and a half dollars over that time. With Prop 5, Jerry Brown ruled that the direct costs had to placed in the top line of the initiative, and that any net savings would have to go in the bottom line. Our initiative was the only one on the ballot that actually had a net savings, but people don’t tend to read to the bottom line.

McNally: Brown, an Attorney General with aspirations for Governor, put the support of those unions over fully informing the public.

Nadelmann: Meg Whitman spent a quarter million dollars of her own money against Prop 5, so I want to be clear I’m not taking any partisan position for or against either candidate in the current election in California.

McNally: As of mid-August, Prop 19 has out-fundraised the organized opposition. Do we assume that’s going to change as it did in Prop 5?

Nadelmann: If the opposition had not put money in to run those ads against Prop 5, odds are it would have won. But, with the polling at 50/50 on Prop 19, they’re probably figuring it doesn’t have much of a shot.

I’m basically saying to major donors — all of whom get no personal benefit from this — if Prop 19 wins, it’s going to be an historical breakthrough; it’s an uphill battle but it does have a shot. When I raised the money back in 1996 for Prop 215, California’s medical marijuana initiative, and then in subsequent years for other medical marijuana initiatives around the country, and for Prop 36 and other treatment initiatives, and for the asset forfeiture reform initiatives in Oregon and Utah, I was always able to say to major donors: we have 60-plus percent of the public in favor right now; if we have the money on our side and there’s no major money on the other side, we win; if the other side comes in, it’s going to be touch and go; and, if they come in big, we’ll probably lose. With Prop 19, I’m encouraging major donors to take a chance on this, but they tend to think if it doesn’t have a better than 50/50 chance of winning, they don’t want to get in. I’m doing everything I can to persuade them. We’ll see.

McNally: I thought it was quite groundbreaking when the NAACP of California came out in favor of Prop 19…

Nadelmann: That was fantastic. Although it was a cutting edge civil rights organization in decades past and they have a dynamic new leader in Ben Jealous from San Francisco, the NAACP had become a more socially conservative organization in recent decades and was often wary of getting involved in criminal justice and especially drug policy reform. But they do have a new direction, and their California director, Alice Huffman, has stepped out boldly on this.

The Drug Policy Alliance released a report authored by a professor in New York, Harry Levine, which says that in every county in California blacks are disproportionately arrested for marijuana — even though they’re no more likely to use or sell marijuana than are white people. People can find that report at the Drug Policy Alliance website. Alice Huffman properly identifies this as a civil rights issue.

McNally: Depending on the county, Blacks are arrested for marijuana possession at typically double, triple or even quadruple the rates of Whites.

Nadelmann: Yes, that’s right. In her book, The New Jim Crow, Michele Alexander writes that, as an African American, ten years ago when she would hear people like me or Ira Glasser, the former head of ACLU, talk about the war on drugs as “the new Jim Crow,” she’d roll her eyes. But the more she’s looked at it, the more she’s come to believe that’s exactly what it is.

By looking at the enormous extension of our criminal justice system; at the fact that in many parts of America 50% of young black men have at least one mark of a criminal record, and that marijuana and other drugs are oftentimes responsible for that; at the ways in which law enforcement resources are disproportionately targeted at young black and brown men in both minority and non-minority communities, and at the consequences in terms of higher levels of arrest and incarceration — this book makes an enormously powerful case that the war on drugs, including the war on marijuana, is the new Jim Crow.

Marijuana accounts for 40% of all drug arrests in the US, and about 50% in the west. Only 10-15% of Americans support legalizing heroin, cocaine or methamphetamine, but over 40% of Americans already think we should take marijuana out of the criminal justice system. If we do so, we could significantly reduce arrests and incarceration especially of young men of color.

McNally: I’m going to read a couple of lines from Alice Huffman and the California NAACP’s endorsement of Prop 19: “Instead of wasting money on marijuana law enforcement Prop 19 will generate tax revenues we can use to improve the education and employment outcomes of our youth, our youth want and deserve a future. Let’s invest in people not prisons, it is time to end the failed war on drugs by decriminalizing and regulating marijuana to save our communities.”

Wire service reports estimate that Mexico’s drug lords employ over 100,000 “soldiers,” and that the cartels’ wealth, intimidation and influence extend to the highest echelons of law enforcement and government. The US office of National Drug Control Policy says that more than 60% of the profits reaped by Mexican drug lords are derived from the exportation and sale of cannabis to the American market, only about 28% from the distribution of cocaine, less than 1% from methamphetamine. Your thoughts?

Nadelmann: What’s happening in significant parts of Mexico right now seems like Chicago during the days of alcohol Prohibition and Al Capone times 50 or 100. They estimate almost 30,000 people have been murdered for reasons involving drug trafficking and the drug war since President Felipe Calderon came to power about three years ago. Most of those killed are in the business, but significant numbers are also passers-by, innocents, people who wouldn’t take a bribe, you name it.

Former Mexican President Vicente Fox has been saying we need to put legalization on the agenda, that in the long term it’s the only pragmatic answer. I was very pleasantly surprised to see President Calderon recently acknowledge that it’s time for a serious debate on legalization. And that seemed to prompt President Fox to speak out even more forcefully than before for legalization. But In Mexico support for ending prohibition, even marijuana prohibition, is lower than in the US.

There’s no simple easy way to jump from where we are today to a world in which marijuana is legally regulated and taxed in the US and Mexico and much of the rest of the world. It’s going to be a messy political process, with inconsistencies in laws and enforcement and different forms of decriminalization and people exploiting that, but it’s ultimately the only solution that can really reduce the violence and murder and mayhem. We really have no choice but to head down this road, negotiating the twists and bumps along the way, until both the US and Mexico, and other countries as well, are ready to embrace a more rational and orderly system of marijuana regulation.

McNally: On July 27 the House unanimously passed HR5143, which, if enacted, creates a bipartisan commission to conduct a top to bottom review of the entire criminal justice system, and offer concrete recommendations for reform within 18 months. This is the companion bill to Senator Jim Webb’s S714, already approved by the Senate Judiciary committee. According to Senator Webb, legalization should be on the table for discussion.

Nadelmann: Senator Webb’s bill is now back in the Senate and, apart from the somewhat irrational opposition of Senator Coburn from Oklahoma, a clear majority supports it. It’s just a matter now of getting it to a vote.

Also exciting was the recent reform of the federal crack/powder law that had punished the sale of five grams of crack cocaine with the same harsh penalty as sale of 500 grams of powder cocaine. The vast majority of people arrested and prosecuted for crack offenses are blacks even though they only make up a minority of users and sellers. Obama came in to office saying he wanted to end this disparity, and a lot of Democratic leadership said the same thing along with us, the ACLU, the Sentencing Project, the folks at OSI, the NAACP, Families Against Mandatory Minimums and a whole range of others. We all fought tooth and nail to eliminate the disparity, and I’ve got to give credit to Obama’s Justice Department, who pushed hard with us.

In the end, when Republicans and some conservative Democrats opposed fully eliminating the disparity, a compromise cut the disparity to 18 to one. People held their noses at the compromise, because there’s something offensive about retaining a legal discrimination that has such racially disproportionate consequences. But thousands of people are going to spend less time behind bars and it’s going to save taxpayers lots of money. And it’s quite likely that a better bill would not have gotten through for many years to come.

With the exception of Lamar Smith of Texas, you had more Republicans vocally supporting this than opposing. Prominent conservatives from Grover Norquist in DC to Ward Connerly in California supported the major reform. In an era when almost nothing in Washington happens on a bipartisan basis, this bill — where people were potentially vulnerable to being accused of being soft on crime — went through with a voice vote and a very strong majority.

McNally: And there’s the Vienna Declaration, the official conference statement authored by experts in the International AIDS Society, the National Center for Science and Drug Policy, and the British Columbia Center for Excellence in HIV/AIDS. You were at that conference, what does that declaration mean?

Nadelmann: It’s probably the most significant global communications effort to mobilize opposition to the war on drugs since 1998, when I and others orchestrated a public letter to UN Secretary General Kofi Annan on the occasion of the UN General Assembly Special Session on Drugs in New York. The International AIDS Conference happens every two years. The recent gathering in Vienna focused to a much greater extent than ever before on the ways in which the global war on drugs undermines efforts to reduce HIV/AIDS in much of the world.

Heavy reliance on criminalization and resistance to public health approaches means that HIV continues to spread among people who use and inject drugs as well as their lovers, their children and others. Outside southern Africa, injection drug use is often the number one or two cause of the spread of HIV/AIDS. It’s not injection drug use per se because that doesn’t cause AIDS – it’s injection drug use in an environment where you don’t have needle exchange and other pragmatic harm reduction policies, etc. This started as an effort among scientists and physicians, and they lined up a lot of other signatories including former presidents. The list of signatories is going to continue to grow. Google “Vienna Declaration” and you can sign your own name to it.

McNally: Let me read a quote from Dr. Evan Wood, the founder of the International Center for Science and Drug Policy, about the Vienna Declaration: “There is no positive spin you can put on the war on drugs. You have a $320 billion illegal market, the enrichment of organized crime, violence, the spread of infectious disease. This declaration coming from the scientific community is long overdue; the community has not been meeting its ethical obligations in terms of speaking up about the harms of the war on drugs.”

The International Center for Science and Drug Policy did a review of 300 international studies and found that in 87% of the cases dating back 20 years, intensifying drug law enforcement resulted in increased rates of drug market violence. When it was pointed out to Obama’s drug czar, Gil Kerlikowske, that Mexican drug lords make 60% of their profits from marijuana, and he was asked if maybe marijuana legalization would be a good idea, he said, “I don’t know of any reason that legalizing something that essentially is bad for you would make it better from a fiscal standpoint or a public health standpoint or a public safety standpoint.” A quick comment on the Obama administration’s efforts.

Nadelmann: Obama made a number of commitments: that they would stop medical marijuana raids and acknowledge marijuana has a legitimate medical use; that they would allow federal funding of needle exchanges; and that they would do what they could to repeal the crack powder penalties. In all three of those areas the Obama administration more or less made good on its commitments. They announced last fall that they would no longer go after medical marijuana in the states that had made it legal, and they’ve mostly kept to that; although they didn’t push for federal funding of needle exchange, they allowed it to happen; and, as we already discussed, the crack/powder disparities were decreased. They’re also pushing for more of a public health emphasis. Unfortunately, if you look at the allocation of the money, it’s still two to one in favor of law enforcement.

Kerlikowske was the police chief of Seattle, the city that hosts Hempfest, the largest –marijuana-focused gathering in the world where almost nobody gets arrested. He’s a smart, thoughtful, reasonable guy, and he’s moved things in a good new direction. But for some reason he seems to feel compelled to keep talking nonsense about marijuana and marijuana policy; he won’t use the phrase “harm reduction” even as US government representatives increasingly embrace it in international health forums; there’s no willingness to move forward on heroin maintenance, supervised injection facilities and other harm reduction innovations that have proven so successful abroad; and he seems to have not the slightest idea how to respond to the growing calls from Mexico and South America to “break the taboo” on considering all drug policy options, including legalization. It all adds up to incremental reforms in the right direction with no real vision or intellectual coherence regarding the future of drug control policy.–

McNally: — “No fiscal good…” That’s clearly wrong.

Nadelmann: Why don’t they just stick to saying things that are true and accurate? Obama made another commitment when he was running for office – that he would no longer allow science to be trumped by politics. But in the drug area, they continue to let it happen.

McNally: Finally, why do you think the US with its claims to individual liberties has been and continues to be against substances that alter or expand consciousness? What’s going on in American culture that fears altering consciousness in ways that indigenous cultures, for example, have practiced for millennia?

Nadelmann: It’s a funny thing, we look at alcohol prohibition in America now and think that was some historical fluke from 1919 to 1933 when the country went sort of crazy. But, in fact, that was the outcome of a multi-generational effort that began with reasonable calls for temperance in the consumption of alcohol and ultimately evolved into radical calls for prohibition and total abstinence. There’s a deep seated belief in America — I think it’s wrapped up with different strands of Protestant Christianity — that my body is not just my body, it’s God’s vessel, and that I have an obligation to my Lord and Maker to keep this body free of polluting or mind altering substances. So there’s something almost fearful in our consciousness. We’re not totally unique in this regard, but we do seem to take it further than most others.

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