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November 14, 2008 -- Drug War Chronicle (US)

Looking Forward: The Prospects for Drug Reform in Obama's Washington

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The political landscape in Washington, DC, is undergoing a dramatic shift as the Democratic tide rolls in, and, after eight years of drug war status quo under the Republicans, drug reformers are now hoping the change in administrations will lead to positive changes in federal drug policies. As with every other aspect of federal policy, groups interested in criminal justice and drug policy reform are coming out of the woodwork with their own recommendations for Obama and the Democratic Congress. This week, we will look at some of those proposals and attempt to assess the prospects for real change.

One of the most comprehensive criminal justice reform proposals, of which drug-related reform is only a small part, comes from a nonpartisan consortium of organizations and individuals coordinated by the Constitution Project, including groups such as the Sentencing Project, Families Against Mandatory Minimums (FAMM), and the Open Society Policy Center. The set of proposals, Smart on Crime: Recommendations for the Next Administration and Congress, includes the following recommendations:

Mandatory Minimum Reforms:

  • Eliminate the crack cocaine sentencing disparity
  • Improve and expand the federal "safety valve"
  • Create a sunset provision on existing and new mandatory minimums
  • Clarify that the 924(c) recidivism provisions apply only to true repeat offenders

Alternatives to Incarceration:

  • Expand alternatives to incarceration in federal sentencing guidelines
  • Enact a deferred adjudication statute
  • Support alternatives to incarceration through expansion of federal drug and other problem solving courts.

Incentives and Sentencing Management

  • Expand the Residential Drug Abuse Program (RDAP)
  • Clarify good time credit
  • Expand the amount of good time conduct credit prisoners may receive and ways they can receive it
  • Enhance sentence reductions for extraordinary and compelling circumstances
  • Expand elderly prisoners release program
  • Revive executive clemency

Promoting Fairness and Addressing Disparity:

  • Support racial impact statements as a means of reducing unwarranted sentencing disparities
  • Support analysis of racial and ethnic disparity in the federal justice system
  • Add a federal public defender as an ex officio member of the United States Sentencing Commission

The American Civil Liberties Union (ACLU) has also issued a set of recommendations, Actions for Restoring America: How to Begin Repairing the Damage to Freedom in America Under Bush, which include some drug reform provisions:

  • Crack/Powder Sentencing: The attorney general should revise the US Attorneys' Manual to require that crack offenses are charged as "cocaine" and not "cocaine base," effectively resulting in elimination of the disparity.
  • Medical Marijuana: Halt the use of Justice Department funds to arrest and prosecute medical marijuana users in states with current laws permitting access to physician-supervised medical marijuana. In particular, the US Attorney general should update the US Attorneys' Manual to de-prioritize the arrest and prosecution of medical marijuana users in medical marijuana states. There is currently no regulation in place to be amended or repealed; there is, of course, a federal statutory scheme that prohibits marijuana use unless pursuant to approved research. But US Attorneys have broad charging discretion in determining what types of cases to prosecute, and with drugs, what threshold amounts that will trigger prosecution. The US Attorneys' Manual contains guidelines promulgated by the Attorney general and followed by US Attorneys and their assistants.
  • The DEA Administrator should grant Lyle Craker's application for a Schedule I license to produce research-grade medical marijuana for use in DEA- and FDA-approved studies. This would only require DEA to approve the current recommendation of its own Administrative Law Judge.
  • All relevant agencies should stop denying the existence of medical uses of marijuana -- as nearly one-third of states have done by enacting laws -- and therefore, under existing legal criteria, reclassify marijuana from Schedule I to Schedule V.
  • Issue an executive order stating that, "No veteran shall be denied care solely on the basis of using marijuana for medical purposes in compliance with state law." Although there are many known instances of veterans being denied care as a result of medical marijuana use, we have not been able to identify a specific regulation that mandates or authorizes this policy.
  • Federal Racial Profiling: Issue an executive order prohibiting racial profiling by federal officers and banning law enforcement practices that disproportionately target people for investigation and enforcement based on race, ethnicity, national origin, sex or religion. Include in the order a mandate that federal agencies collect data on hit rates for stops and searches, and that such data be disaggregated by group. DOJ should issue guidelines regarding the use of race by federal law enforcement agencies. The new guidelines should clarify that federal law enforcement officials may not use race, ethnicity, religion, national origin, or sex to any degree, except that officers may rely on these factors in a specific suspect description as they would any noticeable characteristic of a subject.

Looking to the south, the Latin America Working Group, a coalition of nonprofit groups, has issued a petition urging Obama "to build a just policy towards Latin America and the Caribbean that unites us with our neighbors." Included in its proposals are:

  • Actively work for peace in Colombia. In a war that threatens to go on indefinitely, the immense suffering of the civilian population demands that the United States takes risks to achieve peace. If the United States is to actively support peace, it must stop endlessly bankrolling war and help bring an end to the hemisphere's worst humanitarian crisis.
  • Get serious -- and smart -- about drug policy. Our current drug policy isn't only expensive and ineffective, it's also inhumane. Instead of continuing a failed approach that brings soldiers into Latin America's streets and fields, we must invest in alternative development projects in the Andes and drug treatment and prevention here at home.

The National Organization for the Reform of Marijuana Laws (NORML) has some suggestions as well. As NORML's Paul Armentano wrote last week on Alternet:

  • President Obama must uphold his campaign promise to cease the federal arrest and prosecution of (state) law-abiding medical cannabis patients and dispensaries by appointing leaders at the US Drug Enforcement Administration, the US Department of Justice, and the US Attorney General's office who will respect the will of the voters in the thirteen states that have legalized the physician-supervised use of medicinal marijuana.
  • President Obama should use the power of the bully pulpit to reframe the drug policy debate from one of criminal policy to one of public health. Obama can stimulate this change by appointing directors to the Office of National Drug Control Policy who possess professional backgrounds in public health, addiction, and treatment rather than in law enforcement.
  • President Obama should follow up on statements he made earlier in his career in favor of marijuana decriminalization by establishing a bi-partisan presidential commission to review the budgetary, social, and health costs associated with federal marijuana prohibition, and to make progressive recommendations for future policy changes.

Clearly, the drug reform community and its allies see the change of administrations as an opportunity to advance the cause. The question is how receptive will the Obama administration and the Democratic Congress be to drug reform efforts.

"We've examined Obama's record and his statements, and 90% of it is good," said David Borden, executive director of (publisher of this newsletter). "But we don't know what he intends to do in office. There is an enormous amount of good he can do," Borden said, mentioning opening up funding for needle exchange programs, US Attorney appointments, and stopping DEA raids on medical marijuana providers. "Will Obama make some attempt to actualize the progressive drug reform positions he has taken? He has a lot on his plate, and drug policy reform has tended to be the first thing dropped by left-leaning politicians."

There will be some early indicators of administration interest in drug reform, said Bill Piper, national affairs director for the Drug Policy Alliance. "We will be watching to see if he issues an executive order stopping the DEA raids; that would be a huge sign," he said. "He could also repeal the needle exchange funding ban. The congressional ban would still be in place, but that would show some great leadership. If they started taking on drug policy issues in the first 100 days, that would be a great sign, but I don't think people should expect that. There are many other issues, and it's going to take awhile just to clean up Bush's mess. I'm optimistic, but I don't expect big changes to come quickly."

"We are hoping to see a new direction," said Nkechi Taifa, senior policy analyst for civil and criminal justice reform for the Open Society Policy Center. "We couldn't have a better scenario with the incoming vice president having sponsored the one-to-one crack/powder bill in the Senate and the incoming president being a sponsor. And we have a situation in Congress, and particularly in the Senate, where there is bipartisan interest in sentencing reform. Both sides of the aisle want some sort of movement on this, it's been studied and vetted, and now Congress needs to do the right thing. It's time to get smart on crime, and this is not a radical agenda. As far as I'm concerned, fixing the crack/powder disparity is the compromise, and elimination of mandatory minimums is what really needs to be on the agenda."

"With the Smart on Crime proposals, we tried to focus on what was feasible," said the Sentencing Project's Kara Gotsch. "These are items where we think we are likely to get support, where the community has demonstrated support, or where there has been legislation proposed to deal with these issues. It prioritizes the issues we think are most likely to move, and crack sentencing reform is on that list."

The marijuana reform groups are more narrowly focused, of course, but they, too are looking for positive change. "Obama has made it very clear on the campaign trail that he disagrees with the use of federal agencies to undo medical marijuana laws in states that have passed them," said Dan Bernath, a spokesman for the Marijuana Policy Project. "He has vowed to stop that. Obama seems to be someone who values facts and reasoned decision-making. If he applies that to marijuana policy, that could be a good thing.

While the list of possible drug reforms is long and varied, it is also notable for what has not been included. Only NORML even mentions marijuana decriminalization, and no one is talking about ending the drug war -- only making it a bit kinder and gentler. The L-word remains unutterable.

"While we're optimistic about reducing the harms of prohibition, legalization is not something that I think they will take on," said Piper. "But any movement toward drug reform is good. If we can begin to shift to a more health-oriented approach, that will change how Americans think about this issue and create a space where regulation can be discussed in a a rational manner. Now, because of our moralist criminal justice framework, it is difficult to have a sane discussion about legalization."

"We didn't talk that much about legalization," said Gotsch in reference to the Smart on Crime proposals. "A lot of organizations involved have more ambitious goals, but that wouldn't get the kind of reaction we want. There just isn't the political support yet for legalization, even of marijuana."

"We should be talking about legalization, yes," said's Borden, "but should we be talking about it in communications to the new president who has shown no sign of supporting it? Not necessarily. We must push the envelope, but if we push it too far in lobbying communications to national leadership, we risk losing their attention."

"I do think it would be a mistake to blend that kind of caution into ideological caution over what we are willing to talk about at all," Borden continued. "I think we should be talking about legalization, it's just a question of when and where," he argued.

Talking legalization is premature, said Eric Sterling, formerly counsel to the US House Judiciary Committee and now president of the Criminal Justice Policy Foundation. "What we are not yet doing as a movement is building upon our successes," he said. "We just saw medical marijuana win overwhelmingly in Michigan and decriminalization in Massachusetts, but the nation's commentariat has not picked up on it, and our movement has not been sufficiently aggressive in getting those votes translated into the political discourse. We haven't broken out of the making fun phase of marijuana policy yet."

Sterling pointed in particular to the medical marijuana issue. "Everyone recognizes that the state-federal conflict on medical marijuana is a major impediment, and we have 26 senators representing medical marijuana states, but not a single senator has introduced a medical marijuana bill," he said. "It's an obvious area for legislative activity in the Senate, but it hasn't happened. This suggests that we as a movement still lack the political muscle even on something as uncontroversial as the medical use of marijuana."

Even the apparent obvious targets for reform, such as the crack/powder sentencing disparity, are going to require a lot of work, said Sterling. "It will continue to be a struggle," he said. "The best crack bill was Biden's, cosponsored by Obama and Clinton, but I'm not sure who is going to pick that up this year. The sentencing reform community continues to struggle to frame the issue as effective law enforcement, and I think it's only on those terms that we can win."

Reformers also face the reality that the politics of crime continues to be a sensitive issue for the majority Democrats, Sterling said. "Crime is an issue members are frightened about, and it's an area where Republicans traditionally feel they have the upper ground. The Democrats are going to be reluctant to open themselves up to attack in areas where there is not a strong political upside. On many issues, Congress acts when there is a clear universe of allies who will benefit and who are pushing for action. I don't know if we are there yet."

Change is the mantra of the Obama administration, and change is what the drug reform community is hoping for. Now, the community must act to ensure that change happens, and that the right changes happen.

November 14, 2008 -- Drug War Chronicle (US)

Looking Forward -- Who Should Be the Next Drug Czar?


If there is one man who symbolizes and epitomizes the federal war on drugs, it is the head of the White House Office of National Drug Control Policy (ONDCP), colloquially known as the drug czar's office. For the last eight years, that man has been John Walters, a protege of conservative moralist Bill Bennett, the first ONDCP drug czar. With his anti-marijuana media campaigns, his innumerable press releases, and his interference in various state-level initiatives, Walters has been drug reform's bete noire.

Now, Walters and his boss, President Bush, are preparing to exit stage right, and the Obama administration will have to choose his successor. Given the foreign wars and failing economy facing the incoming administration, filling the drug czar position doesn't appear to be a high priority for the new resident at the White House. Only one name has been publicly mentioned, Los Angeles police chief William Bratton, and he has said he's not interested. A US News & World Report list of potential White House appointments doesn't even list any names for consideration as drug czar.

But for people interested in undoing some of the harms of the Bush era drug war, ONDCP is very important. As ONDCP explains on its home page:

"The principal purpose of ONDCP is to establish policies, priorities, and objectives for the Nation's drug control program. The goals of the program are to reduce illicit drug use, manufacturing, and trafficking, drug-related crime and violence, and drug-related health consequences. To achieve these goals, the Director of ONDCP is charged with producing the National Drug Control Strategy. The Strategy directs the Nation's anti-drug efforts and establishes a program, a budget, and guidelines for cooperation among Federal, State, and local entities.

"By law, the director of ONDCP also evaluates, coordinates, and oversees both the international and domestic anti-drug efforts of executive branch agencies and ensures that such efforts sustain and complement State and local anti-drug activities. The Director advises the President regarding changes in the organization, management, budgeting, and personnel of Federal Agencies that could affect the Nation's anti-drug efforts; and regarding Federal agency compliance with their obligations under the Strategy."

So, who is it going to be? Drug reformers and others consulted this week by the Chronicle had few actual suggestions -- some worried that anyone suggested or supported by the reform movement would be doomed -- but plenty of ideas about what type of person should replace Walters. And some even speculated about the possibility of just doing away with the drug czar's office altogether.

"The reform community needs to be looking at someone who has a comprehensive public health orientation or who has an evidence-based focus," said Eric Sterling, former counsel to the House Judiciary Committee and currently president of the Criminal Justice Policy Foundation. "This would be someone who says goal number one is treatment of people with hard-core addiction problems and number two is to make sure our prevention programs are effective and well-grounded."

Sterling mentioned a couple of possibilities. "I don't think it's realistic to think we can get a reform sympathizer in there. It's not going to be Ethan Nadelmann. It needs to be someone who has administrative experience in some capacity. One possibility would be Chris Fichtner, the former head of mental health for the state of Illinois," Sterling suggested.

Fichtner is an associate professor of psychiatry at the University of Chicago who has worked with drug reformers in Illinois. He testified in favor of medical marijuana bills in Illinois and Wisconsin.

"Another possibility, someone I know the reform community had a lot of respect for before he went into government is Westley Clark, head of the federal Center for Substance Abuse Services," Sterling continued. "He's African-American, been at the federal level for a long time, has experience managing a federal agency, and a lot of experience in the field."

"If we had our druthers," said National Organization for the Reform of Marijuana Laws (NORML) executive director Allen St. Pierre, "it would be somebody like Ethan Nadelmann, with a comprehensive understanding of drugs, but that's a wet dream." Instead, he said, one name being kicked around was Mark Kleiman, a professor of Public Policy at the UCLA School of Public Affairs who has written extensively on drug policy and whose innovative ideas sometimes raise as many hackles in the reform community as they do among drug warriors.

St. Pierre mentioned one other possible candidate. "Another name we're hearing is Bud Schuster, a former head of NIDA in the 1980s," he said. "That would be someone coming at it at least from a NIDA point of view, and we need someone like that, not someone just coming at it from a criminal justice perspective."

"I'd almost be happy with any drug czar who doesn't constantly say stupid things," said David Borden, executive director of (publisher of this newsletter). "We would like to see someone who will approach it from a public health standpoint, who will work to contain the criminal justice system in ways that protect the public health objectives of drug policy."

Borden pointed to a trio of what he called "moderate academics" as possibilities. "People like Kleiman or Peter Reuter and Robert MacCoun [coauthors of 'Drug War Heresies'] are not drug war hawks and they are thinking people. We need some logical thought at the White House drug office."

"We're as anxious to see what names pop up as anybody," said Dan Bernath, a spokesman for the Marijuana Policy Project. "We think John Walters set the bar pretty low. If there has to be a drug czar, we want to see someone who bases policy on facts and science, not ideology."

"Former Baltimore Mayor Kurt Schmoke once said we need a surgeon general, not a military general, and I think that's a good starting point," said Drug Policy Alliance national affairs director Bill Piper. "At a minimum, we want someone coming from public health or medicine, as opposed to law enforcement or the conservative punditry. Drug reformers and harm reductionists and treatment providers have been in the wilderness for 20 years; now it's time for someone who understands addiction and supports evidence-based programs."

"If we're going to have a drug czar, we need one who insists on accuracy, honesty, transparency, and who is is willing to consider alternatives to the drug war including harm reduction approaches as well as modifications of the drug war such as increased funding for treatment and prevention," said Matthew Robinson, professor of criminal justice at Appalachian State University and co-author of "Lies, Damned Lies, and Drug War Statistics: A Critical Analysis of Claims Made by the Office of National Drug Control Policy."

But, said Robinson, we don't really need a drug czar. "We don't need an ONDCP or a drug war, so therefore we don't need a drug czar," he argued. "Yet, we do need an accurate, honest, transparent agency to evaluate drug abuse control policy (just like with other government policies). It can be ONDCP or some other agency, but if it is ONDCP, it must be removed from the White House since there it is merely a political office whose aim is to further drug war ideology."

Former ONDCP Public Affairs Director (during the Clinton years) Robert Weiner was as critical of Walters and the Bush administration as anybody, but for different reasons. Weiner complained of the systematic weakening of the office in the Bush years.

"This administration has been a disaster in shrinking the power of the drug czar," Weiner said. "They dropped the drug czar's budget from $19 million to $13 million, they took away oversight power over some programs, they've cut the media program, they tried to move out the High Intensity Drug Trafficking Area (HIDTA) program and the Justice Department community grants program. I've shed many tears as I watched the power of the drug czar deflate by his own lack of initiative."

It didn't have to be that way, Weiner said. "When Bush was selecting a drug czar, there were eight or 10 treatment honchos they were looking at, but he chose a partisan hack. It was as if there were no drug czar. His job was to press the drug issue as a national security and domestic health issue, and he didn't do enough of it."

Weiner is less concerned with the field from which the next drug czar emerges than his ability to advance the office's charge. "The most important thing is that he be a forceful, aggressive, forceful advocate," he said. "No matter what side of the fence you're on, everyone is in favor of drug treatment, and drug court is very good. We need someone who will push the concept of treatment not imprisonment for nonviolent offenders," he said.

But while Weiner would like to see a strengthened drug czar, many drug reformers would be glad to see no drug czar at all. "Patients Out of Time sent a letter to Obama transition co-chair Valerie Jarrett on the 9th," reported the group's Al Byrne. "We recommended the drug czar position be abandoned but... if that was somehow not politically feasible then the position be staffed by a health care professional, specifically a MD or RN who is not an academic/political professional."

"Ideally, ONDCP should be sunsetted," said St. Pierre. "I think many reformers could agree with that, but it doesn't appear to be on the table. If we're going to be burdened with a drug czar's office, we need a break from the two principal models -- the political hacks, like Walters and Bennett, and the law enforcement/military types, like McCaffrey and Lee Brown. If we're going to have a drug czar, make him an MD or someone in the public health realm."

"The nation and the government don't need a drug czar," said Sterling. "One of the important warnings of the 1973 Shafer Commission was about the institutionalization of the anti-drug effort, the creation of self-sustaining bureaucracies. The ONDCP is the prime example of that problem. Because of its prominence, it has the greatest capacity for mischief and gets the most attention for its falsehoods and PR-driven policies," he said.

The federal drug apparatus could be reorganized, he argued. "It may be the case that a reorganization of federal drug agencies is called for, probably with coordination under the Department of Health and Human Services," he posited. "There doesn't need to be a DEA with its SWAT mentality, and the effective management of a drug control program doesn't require White House supervision, either."

The agency comes up for reauthorization in 2010. That could prove an opportunity to try to kill it or, more likely, to try to restructure it. While going for the kill would be sweet, that appears unlikely to happen at this point.

It is "not realistic" to think an effort to sunset ONDCP in 2010 will bear immediate fruit, said Sterling. "The effective drug control movement has not developed a campaign and a political imperative, a drug control organizational paradigm that is a clear alternative to the existing one," he pointed out. "Therefore, there is no campaign in the Congress or in the news media."

Nor is there any evidence that the Obama administration is eyeing ONDCP for the axe. "The only way there would be any drive in the administration to do away with ONDCP would be if there is an analysis from the new cabinet secretaries deciding collectively that ONDCP is a big enough problem that they would want to abolish it," said Sterling.

Another obstacle is that incoming vice-president Joe Biden crafted the legislation that created ONDCP 20 years ago. "Any proposal to do away with the drug czar would get into that history with Biden. It would have to reject Biden's approach, or he would have to change his mind. If Biden were to say ONDCP was now unneeded, that would be one thing, but I haven't seen any sign of that."

With the prospect of killing ONDCP apparently off the table for now, some reformers are concentrating on making the best ONDCP possible. That may be the best to hope for in the near- and medium-term.

"If we could change this office so its responsibility is reducing the harms of both substance abuse and drug prohibition, then it would be very useful," said Piper. "There are very clearly problems with both drug abuse and the war on drugs. Even if the drug war ended tomorrow, there would still be a drug problem and a need for national leadership around harm reduction and treatment, including alcohol and tobacco. Reauthorization in 2010 is a real chance to change what ONDCP is all about. If that's possible it's worth keeping the agency."

Now the waiting game begins. Given the Obama administration's priorities and the full plate of problems it faces, we could be waiting awhile for a new drug czar.

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