It’s Time for the US to Decriminalize Drug Use and Possession

An unprecedented and wide-ranging coalition of powerful stakeholders is calling for an end to the widespread practice of arresting people solely for drug use or possession. The release of a new Drug Policy Alliance report, endorsed by over 30 organizations, that lays out a roadmap for how U.S. jurisdictions can move toward ending the criminalization of people who use drugs.

Ending criminal penalties for drug possession, often referred to as decriminalization, means nobody gets arrested, goes to jail or prison, or faces criminal punishment simply for possessing a small amount of a drug for personal use.

The emerging consensus for decriminalization comes at a pivotal moment, with the federal government ramping up the drug war in the face of bipartisan opposition and widespread public support for health-based responses to increasing opioid addiction and overdose deaths.

Polls of presidential primary voters last year found that substantial majorities support ending arrests for drug use and possession in Maine (64%), New Hampshire (66%) and even South Carolina (59%).  In 2016, the first state-level decriminalization bill was introduced in Maryland and a similar version was reintroduced in 2017. The Hawaii legislature, meanwhile, overwhelmingly approved a bill last year creating a commission to study decriminalization.

Just last month, the United Nations and World Health Organization released a joint statement calling for repeal of laws that criminalize drug use and possession. They join an impressive group of national and international organizations who have endorsed drug decriminalization that includes the International Red Cross, Organization of American States, Movement for Black Lives, NAACP, and American Public Health Association, among many others.

“Removing criminal penalties for drug use and possession will increase opportunities for people to get help,” said Emily Kaltenbach, senior director of national criminal justice strategy at the Drug Policy Alliance. “Today, people who need drug treatment or medical assistance may avoid it in order to hide their drug use.  If we decriminalize drugs, people can come out of the shadows and get the help they need.”

The criminalization of drug possession is a major driver of mass incarceration and mass criminalization in the United States. Each year, U.S. law enforcement makes at least 1.2 million arrests simply for drug possession. On any given night, there are at least 133,000 people behind bars in U.S. prisons and jails for drug possession – and 63,000 of them are held pre-trial.

“Our current laws have branded tens of millions of people with a lifelong criminal record that makes it hard to get a job or an apartment,” said Art Way, senior director of national criminal justice strategy at the Drug Policy Alliance. “The experience of the last few decades shows that criminalization has been utterly ineffective in reducing problematic drug use.”

Discriminatory enforcement of drug possession laws has produced profound racial and ethnic disparities at all levels of the criminal justice system. Black people comprise just 13 percent of the U.S. population – but they comprise 29 percent of those arrested for drug law violations, nearly 35 percent of those incarcerated in state or federal prison for a drug law violation, and roughly 35 percent of those incarcerated in state prison for drug possession.

“Decriminalizing drug use would be a huge step toward eliminating racial disparities in law enforcement,” added Way.

Drug criminalization also fuels mass detentions and deportations.  For noncitizens, including legal permanent residents – many of whom have been in the U.S. for decades and have jobs and families – possession of any amount of any drug (except first-time possession of less than 30 grams of marijuana) can trigger automatic detention and deportation, often without the possibility of return. From 2007 to 2012, more than 100,000 people were deported simply for drug possession.

Many jurisdictions in the U.S. have already made successful steps toward decriminalization by reducing criminal penalties for drug possession. Some of these efforts include “de-felonizing” drug possession by reducing it from a felony to a misdemeanor (which the Oregon legislature just approved last week), decriminalizing or legalizing marijuana possession, establishing pre-arrest diversion programs such as Law Enforcement Assisted Diversion (LEAD), and enacting 911 Good Samaritan laws, which allow for limited decriminalization at the scene of an overdose for people who are witnesses and call for emergency medical assistance. But more ambitious efforts are needed.

Several countries have successful experience with decriminalization, most notably Portugal.  In 2001, Portugal enacted one of the most extensive drug law reforms in the world when it decriminalized low-level possession and use of all illegal drugs.  Today in Portugal, no one is arrested or incarcerated for drug possession, many more people are receiving treatment, and HIV/AIDS and drug overdose have drastically decreased – all without any significant increases in rates of crime or drug use. The Portuguese experience demonstrates that ending drug criminalization – alongside a serious investment in treatment and harm reduction services – can significantly improve public safety and health.

Next week in Chicago, DPA will host an invitation-only two-day convening of several dozen leading criminal justice and public health stakeholders to strategize next steps in building support for drug decriminalization.

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