Breaking Down a Model Bill to Decriminalize All Drugs

    On August 6, the Drug Policy Alliance* released a detailed proposal to decriminalize all drugs at the federal level. The timing was intended to coincide with the 50th anniversary of President Nixon signing the Controlled Substances Act, which launched the modern War on Drugs.

    “The world we are proposing will significantly reduce the harm experienced by the most marginalized in our society and actually improve public and community health,” said Queen Adesuyi, a policy manager at DPA’s Office of National Affairs. “It will also reveal the truth—that the problem has never been drugs. After one of the largest political uprisings in history this year, maintaining the status quo is not as politically feasible as it might have been in the past.”

    “Across the country and within the halls of Congress, it is becoming more and more common to hear elected officials [say] that drug use should not be treated as a criminal issue.”

    Titled the Drug Policy Reform Act, the model bill’s many provisions including abolishing criminal penalties for drug possession, decarceration, expungement of drug criminal records, anti-discrimination measures, and reinvesting money into communities and drug-user health. It would give the power to categorize and regulate controlled substances, currently held by the Drug Enforcement Administration (DEA), to the National Institutes of Health (NIH) instead.

    “Across the country and within the halls of Congress, it is becoming more and more common to hear elected officials speaking directly to the fact that drug use should not be treated as a criminal issue, but instead a matter of public health—especially in the context of marijuana,” Adesuyi told Filter. “While the progress that has been made on marijuana reform has moved the needle, it goes nowhere near addressing the full scope of drug prohibition and the harms it has had on Black, Latinx, Indigenous and low-income people.”

    Under the proposal, all criminal penalties would be repealed for simple possession of drugs—and also for possession with intent to distribute a personal-use quantity. One key, therefore, is to define what constitutes a “personal-use” quantity. Is it one gram of heroin, or a kilogram? To address this, DPA’s bill would require the NIH to create a task force to determine the relevant quantities for all drugs. This would include experts in harm reduction and addiction treatment, as well as people who use drugs and communities with a history of high drug enforcement.

    Next, the bill would destroy the federal drug-war regime as we know it. It would abolish the DEA, the police agency responsible for enforcing the Controlled Substances Act. It would also abolish the Office of National Drug Control Strategy (ONDCP) and the Bureau of International Narcotics Control and Law Enforcement Affairs (INCLE). These agencies, which respectively report to the White House and the State Department, currently help develop and coordinate national and international drug law enforcement.

    But the bill goes further. It would also ban spending by other federal agencies on drug enforcement, including the Customs and Border Protection and US Coast Guard, which play key roles. And it would ban state governments from using federal funds to enforce and prosecute drug possession—including the purchase and use of military equipment for drug enforcement.

    Besides enforcement and policing, the bill addresses many of the harms that come from a criminal record for drugs. It mandates automatic and retroactive expungement of records for drug possession, and “immediate release, pending resentencing” for people currently in prison for these charges.

    No one with a drug conviction would, under the bill, be denied federal benefits like food stamps, education or housing assistance. Mandatory drug testing for people on welfare benefits, or on probation or parole, would be banned. Employers would be prohibited from asking job applicants about their criminal records, and no one would lose the right to vote in a federal election because of a drug conviction.

    How realistic is it? Encouragingly, the bill includes many policies that have already been implemented in parts of the United States.

    The bill doesn’t just abolish or ban bad things, however; it also creates new good things. Drug war money would be reinvested in a grant program under the Department of Health and Human Services (HHS). This would would fund social and health services, science-based addiction treatment, harm reduction programs like sterile syringes and safe consumption sites, non-police crisis interventions, and pre-arrest diversion programs. To decide where money would go, HHS would convene a special board, including drug users and communities harmed by drug enforcement.

    The bill additionally addresses the important area of education and information. It would ban the Department of Justice from funding any addiction prevention or drug education programs, handing that responsibility to HHS. The federal government would expand research on drug harm reduction and the effectiveness of non-prohibition policies. And all state and local governments would be required to provide uniform, real-time data on all drug enforcement, including demographics of people arrested and substances recovered by police.

    There’s much more to the Drug Policy Reform Act: It also addresses no-knock warrants, the so-called “crack house” statute, civil asset forfeiture, and the harms of drug enforcement to immigrants.

    How realistic is it? Encouragingly, the bill includes many policies that have already been implemented in parts of the United States. Just look at Ban the Box in New York City, expungement for marijuana convictions in Illinois, marijuana decriminalization in Virginia and restoration of voting rights for people with felonies in Kentucky, to name a few. Nothing DPA is proposing is without precedent of some kind.

     

    The Limits of Decriminalization

    But a decriminalization framework comes with its own problems. Because it does not legalize drugs, it means that people who use them still have to seek them from unregulated sources. This puts them at continued risk of overdose or other harms from drug contamination or mixing.

    And because drug selling and trafficking would still be criminalized, there would certainly continue to be arrests and incarceration for those offenses under the DPA bill. People who aren’t arrested would likely still face civil citations and fines. That’s certainly better than a night in jail, but amounts to a regressive tax on people who would struggle to pay it.

    As the record has shown us, marijuana decriminalizationand even legalization—have not ended all arrests, although they have reduced them. Nor have they prevented those arrests from continuing to fall overwhelmingly on Black and Brown people. 

    The Drug Policy Alliance acknowledges these shortcomings, and portrays its model bill as a move in the right direction, rather than the eventual goal. It perhaps reflects perceptions of what is realistic in Congress in the foreseeable future.

    “While all-drug decriminalization is a first step in ending the war on drugs and repairing the extensive damage it has done on communities of color and low-income communities, it is of course only thata first step,” said Theshia Naidoo, DPA’s managing director for criminal justice. “It will not fully repair our broken and oppressive criminal legal system or the harms of an unregulated drug market. To fully end the war on drugs, we do have to look at legal regulation and supply, which is something that DPA is conscientiously exploring.”

    The Drug Policy Reform Act is nonetheless a welcome outline for a better future. It will be interesting to see how it is received by both Republicans and Democrats.

     


    * The Drug Policy Alliance has previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship.

    Image from the US Marshall’s Service Office of Public Affairs via Flickr/Creative Commons 2.0.

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