Controlled Substances: Federal Polices and Enforcement

After decades of “tough on crime” policies, there is growing recognition in the US that governments need to undertake meaningful criminal justice reform and that the “war on drugs” has failed.[20] There has been a national effort to take on parts of the problem—addressing police abuse, long sentences, and reclassification of certain drugs.[21] Each of these steps is critical and I will address some of them further herein. However, these steps are simply not enough—it is time to have a real, honest and critical discussion about the criminalization of drug use and what steps must be taken to rethink reform.[22] What is needed, particularly in this historic moment where we have come face to face with issues of racial and economic disparities, is a comprehensive approach to ending the failed policies of the war on drugs and addressing the economic, social, and health needs of communities, disproportionately impacted by them, largely Black and brown.

Racial Disparities in Drug Arrests and Sentencing

Communities of color and low-income people are disproportionately impacted by drug arrests and the unintended consequences of those arrests.[23] The criminalization of drug possession has served as an excuse over the last several decades for authorities to significantly increase the presence of police in these communities and enforce laws on simple drug possession in racially discriminatory ways.[24]

Data analyzed by Human Rights Watch shows that, over the course of their lives, white people are more likely than Black people to use illicit drugs in general, as well as marijuana, cocaine, heroin, methamphetamines, and prescription drugs (for non-medical purposes) specifically.[25] Data has consistently shown that Black and white adults use illicit drugs and marijuana at similar rates.[26] Yet, in the US, Black adults are three times as likely as white adults to be arrested for simple drug possession.[27] Human Rights Watch also found stark racial disparities in arrest rates for drug possession even in the same state or city.[28] In Manhattan, for example, we found that Black people were eleven times as likely as white people to be arrested for simple drug possession.[29] The sheer magnitude of drug possession arrests means that they are a defining feature of the way certain communities experience and interact with police in the United States.[30]

More broadly, because Black communities have been the principal targets in the “war on drugs,” the burden of drug arrests and incarceration falls disproportionately on Black people, their families, and neighborhoods.[31] It is actually more than just the burden of drug arrests. It is the burden of increased police presence and surveillance which equals not just more drug arrests but more arrests in total, in addition to the other non-quantifiable damage that comes from living under police scrutiny.

Racial disparities in drug arrests reflect a history of complex political, criminal justice, and socio-economic dynamics, each individually and cumulatively affected by racial concerns and tensions.[32] A fresh and evidence-based rethinking of the drug war paradigm that includes moving away from criminalization of simple drug possession is needed.[33] Any solutions should also include a focus on communities and the needs identified by community members themselves and not simply those identified by politicians and outside stakeholders.

The Collateral Consequences of Drug Convictions

The impact of a drug conviction can, and often does, impact multiple facets of an individual’s life beyond the experience of incarceration. In addition to excessive sentences, including lengthy probation terms, frequently with onerous conditions,[34] there is massive criminal justice debt and restrictions that impact one’s ability to function within their families and communities. The costs of these arrests and incarcerations extend far beyond individual experiences in the formal criminal justice system. The cost to those incarcerated, their families and communities, is devastating.[35] Criminalizing simple drug possession has caused dramatic and unnecessary harms around the country, both for individuals and for communities that are subject to discriminatory enforcement.[36]

A drug conviction also keeps many people from getting a job, renting a home, and accessing benefits and other programs they may need to support themselves and their families. Federal law allows states to lock people out of welfare assistance and public housing for years and sometimes even for life based on a drug conviction.[37] People convicted of simple drug possession may no longer qualify for educational loans; they may be forced to rely on public transport because their driver’s license is automatically suspended; they may be banned from juries and they may face deportation if they are not US citizens, no matter how long they have lived in the US or how many family members live in the country.[38] In addition, they bear the stigma associated with the labels of “drug” offender” the state has stamped on them, subjecting them to private discrimination in their daily interactions with landlords, employers, and peers.[39]

In 2021, the nation experienced a national election with record-breaking numbers of voters engaged in the electoral process, yet “5.2 million Americans were forbidden to vote because of felony disenfranchisement, or laws restricting voting rights for those convicted of felony-level crimes.”[40] Many of these individuals have a drug conviction that prevents them from enjoying full civic participation. These limitations amount to individuals taking on the moniker of “second class citizens.”

Decriminalization as a Policy Solution

Laws criminalizing the possession of drugs for personal use are inconsistent with respect for human autonomy, which is at the heart of the right to privacy, and contravene the human rights principle of proportionality in punishment.[41] In practice, criminalizing drug use also violates the right to health of those who use drugs.[42] The harms experienced by people who use drugs, and their families and broader communities, as a result of the enforcement of these laws, may constitute additional, separate human rights violations.[43]

At the time of the Human Rights Watch/ACLU report in 2016, all US states and the federal government criminalized possession of certain categories of drugs for personal use.[44] Last year, Oregon took an important step, with a majority of voters approving a ballot initiative that shifts the state away from criminalization and toward a health-centered approach to drug use, investing in voluntary treatment, services, and support for people who are struggling with problematic drug use. Nonetheless, other states across the country criminalize drug possession and enforce those laws with high numbers of arrests—as of 2019, more than 86 percent of drug arrests were for simple possession.[45]

Criminalization has yielded few, if any, benefits.[46] Criminalizing drugs is not an effective public safety policy. Human Rights Watch is not aware of any empirical evidence that low-level drug possession defendants would otherwise go on to commit violent crimes.[47]

Criminalization is also a counterproductive public health strategy.[48] Rates of drug use across drug types in the US have not decreased over the past decades, despite widespread criminalization.[49] For people who struggle with substance use disorder, criminalization often means cycling in and out of jail or prison, with little to no access to voluntary treatment.[50] Criminalization undermines the right to health, as fear of law enforcement can drive people who use drugs underground, deterring them from accessing health services and emergency medicine and leading to illness and sometimes fatal overdose.[51]

It is time to rethink the criminalization paradigm. Although the amount cannot be quantified, the enormous resources spent to identify, arrest, prosecute, sentence, incarcerate, and supervise people whose only offense has been possession of drugs is hardly money well spent, and it has caused far more harm than good.[52] Fortunately, there are alternatives to criminalization.[53] Other countries—and now some states in the US (in particular, Oregon) are experimenting with models of decriminalization that the US can examine to help chart a path forward.[54], [55]

Ending the criminalization of simple drug possession does not mean turning a blind eye to the misery that substance use disorder can cause in the lives of those who struggle with it and their families.[56] On the contrary, it requires a more direct focus on effective measures to reduce the harms associated with problematic drug use, and providing voluntary access to treatment and support for those who struggle with it.[57] Ultimately, the criminal law does not achieve these important ends, and causes additional harm and loss instead.[58]

Ending Excessive Sentences

Almost 30 years of harsh sentencing laws have left the US with over 2.2 million people behind bars.[59] In the 1980s state and federal legislators began to adopt “tough on crime” laws in response to rising crime rates, racial tensions, the emergence of crack cocaine, supposed threats to “traditional values” from counterculture movements, and fears of perceived increases in the numbers of immigrant and youth offenders.[60] These attitudes were a follow-up to the Nixon Administration’s push to wage a war against Black people–a plan that was well-known and documented.[61] Specifically, for most of the past century,[62] Congress and state legislatures simultaneously adopted harsher sentencing laws, including mandatory minimums and habitual offender statutes.[63]

The plan was flawed. The nation should not have experienced a “war on drugs” – drug use is a personal choice and the “war” was started as a political tool with racist intentions. It was an abject failure of a policy that violated human rights at its onset.

Specifically, at the federal level, the implementation of mandatory minimums, along with harsh sentencing guidelines, has severely lengthened federal prison sentences and contributed to an over 500 percent increase in the current prison population since 1980.[64] While the First Step Act, signed into law by the previous administration in 2018, took some steps to address the issue of over-incarceration, bolder and larger steps are needed.

Lawmakers should ensure that criminal laws permit judges to impose proportionate sentences, that consider individualized circumstances and allow appropriate leniency.[65] Reforming or eliminating mandatory minimum sentences is a recommendation that has been on the table and supported by criminal justice reform advocates for years, but we have yet to achieve this goal. These sentences are “criminal penalties that limit judicial discretion and require judges to impose a specified minimum term of imprisonment upon conviction.”[66] Nearly two-thirds of all federal drug sentences are subject to mandatory minimums.[67] The prospective sentencing reforms incorporated in the First Step Act, including reduced sentencing enhancements for prior drug offenses, clarification that the 25-year mandatory minimum for certain firearm offenses is reserved for true recidivists, and expanded safety valve relief for certain nonviolent drug offenses, will help to limit excessive sentences in the future.

Unfortunately, these changes are not retroactive, and it is estimated at least four thousand people in federal prison today serving sentences under now-reformed statutes will not benefit, including many people who will die in prison without retroactivity.[68]

Recommendations for Reform

Congress has an opportunity to make transformative changes to drug policies that finally provide an equitable, compassionate, and sound solution to addressing the numerous concerns laid out in this testimony. This is a moment to recognize and address the harms that harsh, disparate policies that have focused more on punishment than supporting healthy individuals, families and communities have had on the people, particularly those who are Black and low-income.

Congress should follow in Oregon’s footsteps by prioritizing an effort to end the criminalization of possession of drugs for personal use, and shift resources from the policing of drug use toward access to evidence-based treatment and other voluntary supports for people who struggle with substance use disorder.

Additional legislative proposals that can contribute to reducing the excessive punishment brought on by the “war on drugs,” which Congress should undertake and pass, include:

• The Justice Safety Valve Act of 2019 which would allow courts to impose a sentence below a mandatory minimum if the court finds that it is necessary to do so in order to impose a sentence that is not greater than necessary to comply with the statutory purpose of sentencing laid out in 18 U.S.C. 3553(a).[69]
• The Mandatory Minimum Reform Act of 2020 would eliminate mandatory minimum sentences for drug offenses.[70]
• Include in any sentencing reform legislation provisions that ensure the new law will be applied retroactively to individuals who have already been sentenced.[71]
• Avoid delay in passing legislation making the sentencing reforms enacted in the First Step Act of 2018 retroactive.[72]
• The Second Look Act would allow any individual who has served at least 10 years in federal prison to petition a court to take a “second look” at their sentence before a judge and determine whether they are eligible for a sentence reduction or release.[73]
• The MORE Act removes marijuana from the Controlled Substances Act and begins to repair the harm marijuana prohibition has caused to millions of people, particularly people of color, by establishing a fund for social equity programs to reinvest in affected communities. It also creates a process by which people with federal marijuana convictions can have their records for these convictions expunged, in some cases automatically, or can be resentenced.[74]

Thank you for the opportunity to submit this testimony.