May 5, 2008

III. Background: The War on Drugs and theUS Criminal Justice System

Since the early 1980s, when the Reagan administration launched the "war on drugs," federal and state measures to battle the use and sale of drugs have emphasized arrest and incarceration rather than prevention and treatment.[15] The impact on the criminal justice system has been dramatic. Between 1980 and 2006, arrests for drug offenses more than tripled, rising from 581,000 arrests in 1980 to 1,889,810 in

2006.[16]

Fig.1: Drug Abuse Violation Arrests

Source: Federal Bureau of Investigation (FBI), Uniform Crime Reports, Crime in the United States, annual. [17]

In some states, the growth in drug arrests has been even more dramatic. For example, drug arrests in Illinois quintupled between the mid-1980s and 2000,[18] and quadrupled in Minnesota between 1985 and 2005.[19]

The war on drugs was part of a larger "tough on crime" policy approach whose advocates believed harsh mandatory punishments were needed to restore law and order to America. Many factors beyond drug use and abuse encouraged politicians and public officials to embrace tough mandatory sentences for drug crimes, including the deterioration of inner cities, racial tensions, fear of crime, an unwillingness to tackle social inequalities, the willingness to use crime as a partisan issue, and intense media pressures-what a group of leading criminologists have called a "'perfect storm' that drove the imprisonment binge."[20] New laws increased the likelihood of a prison sentence even for low-level offenses, increased the length of prison sentences, and required prisoners to serve a greater proportion of their sentences. This occurred for drug offenses as well as crimes of violence. In particular, laws establishing mandatory minimum sentences for drug law violations were enacted that replaced judicial discretion with fixed sentences determined by one or two factors (for example, the quantity and type of drugs involved in the offense).[21]

One result of the new drug laws[22] was a soaring prison population, as greater proportions of drug offenders received prison sentences and the length of incarceration increased. Between 1980 and 1998 the total number of new admissions of drug offenders to state and federal prison exceeded 1.5 million.[23] Between 1980 and 2003 the number of drug offenders in state prisons grew twelvefold.[24] In 2006 an estimated 248,547 men and women were serving time in state prisons for drug offenses, constituting 19.5 percent of all state prisoners.[25]

In some states, the increase was even greater. For example, the number of drug offenders sentenced to prison in Illinois was 14 times greater in 2002 than 20 years earlier.[26] In 1990, prison admissions for drug crimes constituted 27 percent of Illinois prison admissions; by 2000, they constituted 40 percent.[27]

Countrywide, in 2002 the maximum prison sentence for a person convicted of a felony drug offense in state court was 48 months; for possession alone, the maximum sentence was 35 months.[28]

Few of the men and women who enter prison because of drug offenses are kingpins or major traffickers. The overwhelming preponderance are low-level non-violent offenders, primarily street-level dealers, couriers, and other bit players in the drug trade. In New York State, for example, 63 percent of the men and women sent to prison for drug offenses in 1998 had been convicted of the lowest level of drug offense; one in four were convicted of simple possession.[29] A federal survey of state prisoners nationwide revealed that among drug offenders, 58 percent had no history of violence or high-level drug activity; 35 percent had criminal histories limited to drug offenses; 21 percent were serving a sentence for a first-time offense; and 43 percent were convicted of drug possession. Half of the drug offenders who were surveyed reported their drug activity consisted of selling or helping to sell drugs to others for their use, and less than a third (28.5 percent) reported activity that might constitute a higher-level role (for example, distributing or helping distribute drugs to dealers).[30]

More than two decades of incarcerating drug offenders has apparently had little impact on the demand for illicit drugs. In surveys carried out during the years 1991-1993, an average of 5.8 percent of persons surveyed reported using an illicit drug during the previous month.[31] In the same survey carried out in 2006, 8.3 percent of persons said they had used an illicit drug in the previous month.[32] During 2002-2006, an estimated 500,000 men and women entered prison on drug charges.[33] Yet during that period, the proportion of persons age 12 and older who used illicit drugs remained essentially unchanged.[34] Even the use of crack, so highly targeted by law enforcement since the mid-1980s, remains surprisingly prevalent: in 2006 an estimated 702,000 people were using it.[35] As currently carried out-that is, with an emphasis on law enforcement rather than substance abuse treatment-punitive anti-drug policies may be as futile as they are unfair.

They are also expensive. The average annual operating cost per inmate in state prison is $22,650.[36] Substance abuse treatment is far less expensive-prison costs five to six times more than non-residential drug treatment.[37] It is also more effective at reducing addiction and associated crime. As the director of the National Institute on Drug Abuse recently pointed out, "Comprehensive drug treatment works. It not only reduces drug use but also curtails criminal behavior and recidivism."[38] According to the National Institute on Drug Abuse, every dollar invested in addiction treatment programs yields a return of four to seven dollars in reduced costs of drug-related crimes.[39] The Justice Policy Institute has calculated that California may have saved more than $350 million in the five years after it legislated the use of drug treatment instead of prison for non-violent offenders convicted of simple possession.[40]

[15] In the late 1960s and early 1970s, the national response to drug abuse was primarily one of treatment. Since then the focus has been primarily on law enforcement. About two-thirds of the federal drug budget is allocated to interdiction, law enforcement, and supply reduction efforts; one-third is allocated for prevention, treatment, and other demand reduction strategies. These proportions have not varied significantly in recent years. The White House, "National Drug Control Strategy," February 2008, Appendix B, p. 71, http://www.whitehousedrugpolicy.gov/publications/policy/ndcs08/2008ndcs.pdf (accessed April 16, 2008).

[16] Federal Bureau of Investigation (FBI), "Crime in the United States, 2006," September 2007, Table 29, http://www.fbi.gov/ucr/cius2006/data/table_29.html (accessed April 16, 2008).

[17] Drug arrest data for 1980 to 2004 is made available by the BJS, "Drug and Crime Facts: Drug Law Violations- Enforcement," http://www.ojp.usdoj.gov/bjs/dcf/tables/arrtot.htm (accessed April 16, 2008). 2005 and 2006 arrest data is made available by the FBI, "Crime in the United States, 2005," http://www.fbi.gov/ucr/05cius/data/table_29.html, "Crime in the United States, 2006,"http://www.fbi.gov/ucr/cius2006/data/table_29.html (both accessed April 16, 2008).

[18] Drug arrests rose from 10,000 in the mid-1980s to 50,000 in 2000. Tim Whitney, Illinois Criminal Justice Information Authority and TASC, "Disproportionate Sentencing of Minority Drug Offenders in Illinois," November 17, 2005, http://www.icjia.state.il.us/public/pdf/ResearchReports/Disproportionate%20Sentencing%20Report.pdf (accessed April 16, 2008).

[19] Drug arrests rose from 5,372 in 1985 to 20,015 in 2005. Council on Crime and Justice, "Justice, Where Art Thou," p. 15.

[20] James Austin, The JFA Institute, "Unlocking America: Why and How to Reduce America's Prison Population," November 2007, p. 6, http://www.jfa-associates.com/publications/srs/UnlockingAmerica.pdf (accessed April 16, 2008).

[21]  Human Rights Watch, Cruel and Usual: Disproportionate Sentences for New York Drug Offenders, vol. 9, no. 2(B), March 1997, http://hrw.org/reports/1997/usny/.

[22] Among the 50 states, statutory penalties for violating sale and possession provisions for drugs "vary greatly by substance, by the quantity of the substance sold or possessed, and by the type of offense (i.e., sale or possession). For example, the maximum statutory penalty for the sale of a standard retail amount of cocaine, methamphetamine, or ecstasy ranges from one year of imprisonment to life in prison." ImpactTeen Illicit Drug Team, AndrewsUniversity and the RAND Corporation, "Illicit Drug Policies: Selected laws from the 50 States," January 2002, p. 11, http://www.rwjf.org/files/publications/other/DrugPoliciesReport.pdf (accessed April 16, 2008).

[23]Human Rights Watch, Punishment and Prejudice, p. 14, fig. 5.

[24] The number of drug offenders in state prison rose from 19,000 to 250,900. Mauer and King, "25-Year Quagmire," fig. 2.

[25] William J. Sabol, Ph.D., BJS, "Prisoners in 2006," December 2007, Table 11, pp. 8-9, http://www.ojp.usdoj.gov/bjs/pub/pdf/p06.pdf (accessed April 16, 2008). There are currently 93,751 federal prisoners doing time for drug offenses. Ibid., Table 12. The number of drug offenders held in local jails also increased dramatically: in 1983, 9.3 percent of jail inmates were drug offenders. By 2002 the figure was 24.7 percent. BJS, "Sourcebook of Criminal Justice Statistics 2003," Table 6.19, http://www.albany.edu/sourcebook/pdf/t619.pdf (accessed April 16, 2008).

[26] Whitney, "Disproportionate Sentencing of Minority Drug Offenders in Illinois," p. 3.

[27] Arthur J. Lurigio, Ph.D., LoyolaUniversity and TASC, "The Disproportionate Incarceration of African Americans for Drug Crimes: The Illinois Perspective," November 2000, p. 6, http://www.icjia.state.il.us/public/pdf/ResearchReports/Disproportionate%20Incarceration%20of%20African%20Americans%20for%20Drug%20Crimes.pdf (accessed April 16, 2008).

[28] The sentence lengths provided are the mean for maximum sentences. Matthew R. Durose and Patrick A. Langan, Ph.D., BJS, "Felony Sentences in State Courts, 2002," December 2004, Table 3, p. 4, http://www.ojp.usdoj.gov/bjs/pub/pdf/fssc02.pdf (accessed April 16, 2008).

[29]Human Rights Watch, "Who Goes to Prison for Drug Offenses? A Rebuttal to the New York State District Attorney's Association," 1999, http://www.hrw.org/campaigns/drugs/ny-drugs.htm; "Official Data Reveal Most New York Drug Offenders are Nonviolent," Human Rights Watch news release, January 7, 1999, http://hrw.org/english/docs/1999/01/07/usdom793.htm, revealing that 80 percent of the drug offenders who received prison sentences for drug offenses had never been convicted of a violent crime.

[30] These figures were developed by The Sentencing Project from data in the 1997 Survey of Inmates conducted by the Bureau of Justice Statistics (BJS). Ryan S. King and Marc Mauer, The Sentencing Project, "Distorted Priorities: Drug Offenders in State Prisons," September 2002, pp. 2, 4, and 7, http://www.sentencingproject.org/Admin%5CDocuments%5Cpublications%5Cdp_distortedpriorities.pdf (accessed April 16, 2008). Federal drug offenders are also predominantly low-level: 61.5 percent of federal crack cocaine offenders and 53.1 percent of federal powder cocaine offenders are street-level dealers, couriers, lookouts, or perform other low-level functions, for example. USSC, "Report to Congress: Cocaine and Federal Sentencing Policy," May 2007, figs. 2-4, p. 19, http://www.ussc.gov/r_congress/cocaine2007.pdf (accessed April 16, 2008).

[31] SAMHSA, "Substance Abuse in States and Metropolitan Areas: Model Based Estimates from the 1991-1993 National Household Surveys on Drug Abuse," September 1996, Exhibits 3.1-3.4, http://www.oas.samhsa.gov/96state/ch3.htm#Ch3.2 (accessed April 16, 2008).

[32] The persons surveyed were age 12 or older. SAMHSA, "Results from the 2006 National Survey," Appendix G, Selected Prevalence Tables, Table G.6.

[33] Since 1990 state drug admissions have averaged 100,000 and upwards a year. Human Rights Watch, Punishment and Prejudice, fig. 5. In 2003 there were 168,000 drug admissions in 34 NCRP reporting states.

[34] SAMHSA, "Results from the 2006 National Survey," Appendix G: Selected Prevalence Tables, Table G.2 (lifetime), Table G.4 (past year), and Table G.6 (prior month). These tables provide percentages of the population age 12 or older using selected drugs for the years 2002 through 2006.

[35] This figure is an increase from the 567,000 estimated users in 2002. Ibid., Table G.5.

[36] James J. Stephen, BJS, "State Prison Expenditures," June 2004, p. 1, http://www.ojp.usdoj.gov/bjs/pub/pdf/spe01.pdf, (accessed February 25, 2008). These figures do not count capital outlays. In 2001, the total operating costs and capital outlays for state adult correctional facilities amounted to $29.5 billion.

[37]  The average daily cost per inmate in a state prison is $62.05. Ibid. The mean cost per client day for outpatient drug treatment was $10.32 (methadone) and $9.17 (non-methadone). SAMHSA, "The ADSS Cost Study: Costs of Substance Abuse Treatment in the Specialty Sector," 2003, Table 4.2, p. 21, http://www.oas.samhsa.gov/ADSS/ADSSCostStudy.pdf (accessed February 25, 2008).

[38] Nora D. Volkow, "Treat the Addict, Cut the Crime Rate," The Washington Post, August 19, 2006. Volkow cites SAMHSA reports that substance abuse treatment can dramatically cut drug abuse and reduce criminal activity.

[39] US Department of Health and Human Services, National Institute on Drug Abuse (NIDA), "NIDA InfoFacts: Treatment Approaches for Drug Addiction," August 2006, http://www.nida.nih.gov/PDF/InfoFacts/Treatment06.pdf (accessed April 16, 2008). The Washington State Institute for Public Policy concluded that a dollar spent on community-based drug treatment yields an estimated $18.52 in benefits. Steve Aos, Washington State Institute for Public Policy, "The Criminal Justice System in WashingtonState: Incarceration Rates, Taxpayer Costs, Crime Rates and Prison Economics," January 2003, http://www.wsipp.wa.gov/rptfiles/SentReport2002.pdf (accessed April 16, 2008). These and other examples of the cost-effectiveness of substance abuse treatment are presented in Justice Policy Institute, "Substance Abuse Treatment and Public Safety," January 2008, http://www.justicepolicy.org/images/upload/08_01_REP_DrugTx_AC-PS.pdf (accessed April 16, 2008).

[40] In 2001 the Substance Abuse and Crime Prevention Act of 2000, or Proposition 36, went into effect in California, requiring drug treatment as an alternative to incarceration for non-violent adult offenders convicted of simple drug possession. In the following five years, the rate of incarceration for drug possession in the state dropped by 34.3 percent. Scott Ehlers and Jason Ziedenberg, Justice Policy Institute, "Proposition 36: Five years later," April 2006, http://www.justicepolicy.org/images/upload/06-04_REP_CAProp36FiveYearsLater_DP-AC.pdf (accessed April 16, 2008).