It's Time For The U.S. To Decriminalize Drug Use And Possession
It’s Time for theU.S. toDecriminalizeDrug Useand Possession
We are the Drug Policy Allianceand we envision new drug policiesgrounded in science, compassion,health and human rights.Please join us.Copyright July 2017Drug Policy AllianceAll rights reservedPrinted in theUnited States of AmericaThis report is alsoavailable in PDF formaton the Drug PolicyAlliance website:drugpolicy.org/decriminalizeNo dedicated funds wereor will be received from anyindividual, foundation orcorporation in the writing ofthis report.
Table of Contents2Executive Summary444What is Decriminalization?DefinitionWhat Does Decriminalization Look Like in Practice?6677788101011Why is Criminalization a Problem?Mass CriminalizationMass IncarcerationMass Supervision and SurveillanceCostsUnjust Racial and Ethnic Discrimination and DisparitiesThe Impact of Criminalization on Individual and Public HealthImmigration ConsequencesAdditional ConsequencesDrug Courts Are Not The Answer131313Why is Decriminalization the Solution?The Benefits of DecriminalizationAddressing Four Important Questions About Decriminalization1818181920Stepping Stones to Decriminalization:Efforts to Reduce Drug Penalties in the U.S.“Defelonizing” Drug PossessionDecriminalizing Marijuana PossessionLaw Enforcement Assisted Diversion (LEAD)911 Good Samaritan Laws222226Other Countries’ Experiences with DecriminalizationPortugalA Snapshot of Other Experiences with Drug Decriminalization27Appendix I: Growing National and International Support forDecriminalizing Drug Use and Possession31Endnotes
Executive SummaryBy any measure and every metric, the U.S. waron drugs – a constellation of laws and policiesthat seeks to prevent and control the use andsale of drugs primarily through punishment andcoercion – has been a colossal failure with tragicresults. Indeed, federal and state policies thatare designed to be “tough” on people who useand sell drugs have helped over-fill our jails andprisons, permanently branded millions of peopleas “criminals”, and exacerbated drug-relateddeath, disease and suffering – all while failingat their stated goal of reducing problematicdrug use.This report offers a roadmap for how to begin to unwindour failed drug war. It focuses on one practical step thatcan and should be taken to avoid many of the harms thatflow from punitive prohibitionist drug laws and to promoteproven, effective health-based interventions.Drug decriminalization is a critical next step towardachieving a rational drug policy that puts science and publichealth before punishment and incarceration. Decades ofevidence has clearly demonstrated that decriminalizationis a sensible path forward that would reap vast human andfiscal benefits, while protecting families and communities.Drug decriminalization is defined here as the eliminationof criminal penalties for drug use and possession, as well asthe elimination of criminal penalties for the possession ofequipment used for the purpose of introducing drugs intothe human body, such as syringes. Throughout this report,we will use the phrase “drug possession” to include drugpossession, drug use, and possession of paraphernalia usedfor the purpose of introducing drugs into the human body.Ideally, drug decriminalization entails the elimination of allpunitive, abstinence-based, coercive approaches to drug use;however, for purposes of this report, the term encompassesa spectrum of efforts to eliminate criminal penalties, even ifsuch efforts do not eliminate all forms of coercion entirely.Drug decriminalization also ideally entails the removal ofcriminal penalties for low-level sales, given that the linebetween seller and user is often blurred (this subject and thebroader issue of people who sell drugs will be addressed in asubsequent DPA report).2This report is the product of a comprehensive review of thepublic health and criminology literature, an analysis of drugpolicies in the U.S. and abroad, and input from experts inthe fields of drug policy and criminal justice. By highlightingthe benefits of eliminating criminal penalties for drug use andpossession, we seek to provide policymakers, community leadersand advocates with evidence-based options for a new approach.Most countries’ drug laws exist on a spectrum betweencriminalization and decriminalization. Some have eliminatedpenalties for possession of all drugs, while some countries(and U.S. states) have eliminated penalties only for marijuanapossession. Still other countries and states have taken stepsin the right direction by reducing criminal penalties, withouteliminating them entirely.The problems that result from the criminalization of smallamounts of drugs are detailed in the body of this report but canbe summarized as follows: The criminalization of drug possession is a major driver ofarrests and pretrial detention in the United States. Eachyear, U.S. law enforcement makes nearly 1.5 million drugarrests – more arrests than for all violent crimes combined.The overwhelming majority – more than 80 percent – arefor possession only and involve no violent offense. Each yearhundreds of thousands of people are held in jail for drugpossession, most of them pretrial. Hundreds of thousands of people remain under some form ofcorrectional supervision (probation, parole, or other post-prisonsupervision) for drug possession offenses. Discriminatory enforcement of drug possession laws hasproduced profound racial and ethnic disparities at all levelsof the criminal justice system. For noncitizens, including legal permanent residents (manyof whom have been in the U.S. for decades and have jobs andfamilies) possession of any amount of any drug (except firsttime possession of less than 30 grams of marijuana) can triggerautomatic detention and deportation – often without thepossibility of return. People convicted of drug law violations face a host of additionalconsequences, including the loss of federal financial aid,eviction from public housing, disqualification from a widerange of occupational licenses, loss of the right to vote, anddenial of public assistance.It’s Time for the U.S. to DecriminalizeDrug Use and Possession
By contrast, a policy of drug decriminalization: Reduces the number of people arrested, incarcerated, orotherwise swept into the justice system, thereby allowingpeople, their families and communities to avoid the manyharms that flow from drug arrests, incarceration, and thelifelong burden of a criminal record; Alleviates racial, ethnic and income-based disparities inthe criminal justice system; Improves the cost-effectiveness of limited publichealth resources; Revises the current law enforcement incentive structureand redirects resources to prevent serious and violent crime; Creates a climate in which people who are using drugsproblematically have an incentive to seek treatment; Improves treatment outcomes (when treatment iscalled for); Removes barriers to the implementation of evidencebased practices to reduce the potential harms of drug use,such as drug checking (to test for adulterants in illicitsubstances); and Improves relationships between law enforcement agenciesand the communities they have sworn to protect and serve.Many of the concerns often raised in opposition to drugdecriminalization are not supported by evidence. Availableempirical evidence from the U.S. and around the worldstrongly suggests that eliminating criminal penalties forpossession of some or all drugs would not significantlyincrease rates of drug use. As with drug use rates, crimerates do not appear to correlate to the severity of criminalpenalties. Use of the criminal justice system to get peopleinto treatment is not necessary for the majority of peoplewho use drugs problematically. And though many peoplebelieve that so-called “hard drugs” like cocaine, heroin,and methamphetamine are more addictive than othersubstances, the data suggests that most people who usethese drugs never become addicted. But for those who do,community-based treatment outside of the criminal justicesystem is the most effective way to keep them safe.There have been many steps toward decriminalizationthat have reduced drug penalties in the U.S., and most ofthem have been successful at reducing rates of addictionwithout increasing crime. Some of these efforts include“defelonizing” drug possession by reducing it to amisdemeanor, decriminalizing or legalizing marijuanapossession, establishing pre-arrest diversion programs suchas Law Enforcement Assisted Diversion (LEAD), andwww.drugpolicy.orgenacting 911 Good Samaritan laws, which allow for limiteddecriminalization of drug use and possession at the sceneof an overdose for those who are witnesses and call foremergency medical assistance. But more ambitious efforts areneeded in the U.S.Several other countries have experience with decriminalization,most notably Portugal. The Portuguese policy emergedin reaction to an escalation of problematic drug use – inparticular unsafe injection drug use and its impact on publicsafety and health. While overall prevalence rates of drug useand drug-related illness in Portugal have always been on thelower end of the European average, in 1999 Portugal had thehighest rate of drug-related AIDS in the European Unionand the second highest prevalence of HIV among peoplewho inject drugs, and drug-related deaths were increasingdramatically.In 2001, Portuguese legislators enacted a comprehensive formof decriminalization – eliminating criminal penalties for lowlevel possession and consumption of all drugs and reclassifyingthese activities as administrative violations. Today in Portugal,no one is arrested or incarcerated for drug possession, manymore people are receiving treatment, and there is a reducedincidence of HIV/AIDS and drug overdose – all without anysignificant increases in rates of crime or drug use.This report makes the following recommendations forlocal, state and federal policymakers in the U.S.: Congress and U.S. states should eliminate federal and statecriminal penalties and collateral sanctions for drug use, drugpossession for personal use, and possession of paraphernaliaintended for consuming drugs. Congress should amend federal law to de-schedule marijuanaand remove it from the federal Controlled Substances Act. Administrative penalties – such as civil asset forfeiture,administrative detention, driver’s license suspension (absentimpairment), excessive fines, and parental termination orchild welfare interventions (absent harm to children) – runcounter to the intent of a decriminalization policy and shouldnot be imposed. Decriminalization policies – like other drug policies –generally function far more effectively when accompanied byrobust and diverse harm reduction and treatment-on-demandprograms, including medication-assisted treatment. Local and state governments should adopt pre-bookingdiversion and 911 Good Samaritan policies to prioritize publichealth over punishment and incarceration.3
What is Decriminalization?DefinitionThis report defines drug decriminalization as theelimination of criminal penalties for drug use andpossession, as well as criminal penalties for the possessionof equipment used for the purpose of introducing drugsinto the human body. Ideally, drug decriminalization entailsthe elimination of all punitive, abstinence-based, coerciveapproaches to drug use; however, for the purposes of thisreport, the term encompasses a spectrum of efforts toeliminate criminal penalties, even if such efforts to do noteliminate all forms of coercion entirely. Throughout thisreport, we will use the phrase “drug possession” to includedrug possession, drug use, and possession of equipmentused for the purpose of introducing drugs into thehuman body.Under such a legal and policy regime, drug possession isnot a criminal offense, while drug production, trafficking,and distribution, driving under the influence, or otherconduct that goes beyond simple possession or use –particularly conduct that harms or poses an unreasonablethreat of harm to others – remain criminal offenses.1 Drugdecriminalization does not affect existing criminal lawsother than those specifically addressing use and possession.Decriminalization not only means eliminating traditionalcriminal penalties for drug possession, but also movingbeyond court, prosecutor or police-centered responses toproblematic drug use, such as court-ordered and probationsupervised treatment.As we demonstrate throughout this report,decriminalization is a sound, effective solution to some ofthe myriad fiscal, public health, social, and public safetyissues caused by the criminalization of drug possession.Decriminalization meansthat people are no longerarrested or incarceratedmerely for possessing orusing a drug.4Legalization refers not only to the elimination of criminalpenalties for possession but also to the regulation and controlof legal production and sales to adults without a prescription– including limits on use and sales, licensing requirements,quality controls, consumer protections, taxation and/oradvertising restrictions. Legalization today typically refers tothe approaches society tends to take with regard to alcohol,tobacco, and, increasingly, marijuana. This report addresses –and endorses – a policy of drug decriminalization; it does notexamine or discuss the legalization of drugs.What Does Decriminalization Look Like in Practice?Most countries’ drug laws exist on a spectrum betweencriminalization and decriminalization. Some have eliminatedpenalties for possession of all drugs, while some countries(and U.S. states) have eliminated penalties only for marijuanapossession. Still other countries and states have taken stepsin the right direction by reducing criminal penalties withouteliminating them entirely.Decriminalization models differ widely in terms of: the threshold drug quantities chosen to distinguishbetween personal use and sales or trafficking offenses; the institutions or actors (health professionals, judges,prosecutors, police, etc.) that decide what separates merepossession from sales or trafficking, if no formal thresholdlimits are established; the type and severity of administrative sanctions that canbe imposed; the role of the health system; the extent to which decriminalization is accompanied by anexpansion of treatment, harm reduction, health and socialsupport services; and the degree to which the decriminalization law isfaithfully implemented.Some countries have decriminalized by enacting legislation; inothers, courts have decriminalized drug possession by issuinga judicial decision. Other countries, like the Netherlands,have effectively decriminalized in practice without formallychanging their drug laws – sometimes called de facto (asopposed to de jure) decriminalization. The Netherlandsmodel relies on changes in administrative or law enforcementpractices that are not formally codified.It’s Time for the U.S. to DecriminalizeDrug Use and Possession
The decriminalization of drug use needs to beconsidered as a core element in any publichealth strategy.- Organization of American States, 2013The question of whether to establish drug quantity cut-offpoints (“thresholds”) to distinguish between personal drugpossession and drug distribution or intent to distribute ispivotal to the form a decriminalization regime will take.2Jurisdictions often set thresholds unrealistically low, whichcan result in large numbers of people who possess drugsfor their own use being wrongly arrested and prosecutedfor drug trafficking and facing lengthy prison sentences.To avoid this pitfall, it is critical to understand how and inwhat quantities each type of drug typically is made availablefor purchase on the illicit market, and set thresholds with awide enough margin to ensure that all people with no intentto sell drugs are protected from arrest and prosecution.While clearly defined threshold limits are the norm amongcountries with decriminalization laws on their books, other,potentially more efficacious options exist. Many Europeancountries have experimented with threshold amounts, andsome impose no legal threshold, instead allowing judgesto make determinations about whether someone may havebeen trafficking on a case-by-case basis.3 The bottom lineis that thresholds may be appropriate if they are set at highenough levels; as usual, the devil is in the details.Because laws punishing the use or possession of drugs in“public view” are subject to discretionary abuses by lawenforcement, the best decriminalization policies eliminatecriminal penalties for possession in public as well as inprivate (even if they retain some penalties for use in public,as is commonly the case with alcohol). New York State’sexperience with decriminalizing marijuana provides acautionary tale regarding public view and drug enforcementpractices. In 1977, New York State decriminalizedpossession of less than one ounce of marijuana in private,while possession in public view remains a criminal offense.Because of the widespread use of “stop and frisk” policetactics in New York City, many people, the overwhelmingwww.drugpolicy.orgmajority of them Black or Latino, are stopped by thepolice without suspicion and forced to reveal the contentsof their pockets or bags in public. If they are carryingmarijuana, they are then arrested for having less than anounce of marijuana in public view. Under stop and frisk,marijuana arrests skyrocketed (between 2002 and 2013,stops and interrogations increased 448 percent).4 The NewYork example is demonstrative of two equally importantpoints: (1) legislatures seeking to decriminalize need todecriminalize both private possession and public possession;and (2) de jure decriminalization is often not enough –changes in law enforcement practices are needed as well.When putting decriminalization policies into place that donot go as far as full decriminalization, it is important thatany punishment that remains in place not be worsened. Forexample, it would be inappropriate to decrease a crime froma felony to a misdemeanor while simultaneously increasingthe punishment that may be imposed. It would also beinappropriate to decrease a crime from a misdemeanor to aninfraction while simultaneously increasing the administrativepenalties that may be imposed.In summary, for decriminalization policies to be effective,jurisdictions should: Carefully calibrate drug quantity thresholds to ensure thatpeople who merely possess drugs for personal use are notensnared; Eliminate criminal penalties for possession in public as wellas in private; Consider forms of de facto decriminalization by changingadministrative and law enforcement practices (for example,the Law Enforcement Assisted Diversion (LEAD) program,discussed later).5
Why is Criminalization a Problem?Mass CriminalizationU.S. Drug Arrests, 2015The criminalization of drug possession is a major driverof arrests in the United States. Each year, U.S. lawenforcement makes nearly 1.5 million drug arrests –more arrests than for all violent crimes combined.The overwhelming majority – more than 80 percent –are for possession only and involve no violent offense.5In 2015, nearly 40 percent of drug arrests (more than570,000 people) were for marijuana possession, and45 percent (over 674,000 people) were for possession ofdrugs other than marijuana.6 Just 16 percent of all drugarrests were for sale or manufacture of any drug.7 Whenpeople are arrested for possession of small amounts ofdrugs, they are sucked into the quicksand of the criminaljustice system, whether or not a prosecution is pursued, aconviction is obtained, or jail time is served.It is worth noting that the brunt of this is bornedisproportionately by poor people. Wealthy peopletypically have the resources to address problematicdrug use voluntarily and privately; it is primarily poorpeople whose problematic drug use ensnares them inthe criminal justice system.Possession: OtherSales or Manufacturing(all drugs)Possession:MarijuanaPossession:Heroin or CocainePossession: Synthetic orManufactured DrugsSource: Federal Bureau of Investigation, 2015.8U.S. Drug Arrests, rce: Federal Bureau of Investigation, Uniform Crime Reports.96It’s Time for the U.S. to DecriminalizeDrug Use and 1996199419921990198819861984198219800
Mass IncarcerationAs of 2015, approximately 87,000 people were held in jail fordrug possession on any given day, and most of them (63,000)were held pretrial.10 People incarcerated on a pretrial basis havenot been convicted of any crime, meaning they are legallyinnocent. Incarcerating a legally innocent person for drug useor possession is unfair,11 unnecessary,12 and expensive.13A person convicted of drug use or possession may also beincarcerated in state prison or local jails. Or they may berequired or encouraged to enter a court-supervised programthat relies on coerced treatment or places them undercorrectional or judicial supervision for several months oryears. Although most people who are arrested for drugpossession do not end up in prison, a disturbing numberof people do.Approximately 46,000 people were locked up in a stateprison for drug possession on any given day, as of 2015.14In addition, in criminal cases that do not involve drugpossession, prior drug possession convictions are often usedto enhance jail and prison sentences.Although most peoplewho are arrested for drugpossession do not endup in prison, a disturbingnumber of people do.Mass Supervision and SurveillanceIn 2015, there were approximately 3.8 million peopleon probation and 870,000 on parole in the U.S., andapproximately one in 53 Americans was under some form ofcorrectional supervision (probation, parole, or other postprison supervision).15 Available data do not specify how manypeople are under supervision for drug possession (as opposedto other drug offenses), yet evidence suggests that possessionoffenses comprise a substantial portion numbering in thehundreds of thousands.16 In 2015, one quarter of all peopleon probation in the U.S. – or nearly one million (947,450) –and almost one-third of those on parole (269,855 people)had a drug law violation as their most serious offense.17www.drugpolicy.orgProbation and parole revocations are key drivers of masscriminalization and incarceration.18 There are unknownthousands of people who are on probation and parole for drugand non-drug offenses but who are re-incarcerated for a minordrug possession offense or for failing a court-mandated drugtest. Precise data do not exist, but the few studies that havebeen conducted on this population reveal that minor drug useor possession is a primary reason that people on probation orparole are incarcerated or re-incarcerated.19 To get a sense ofthe potential scope of this problem, consider that 29.1 percentof those on probation (1,283,000 people) and 23 percent ofpeople on parole (334,000 people) reported using an illicitdrug in the past month, mostly marijuana.20 Dependingon their state, most of these people could, at any time, bedrug tested, produce a positive test result and face additionalpenalties, including a new prison or jail sentence or increasedterm of supervision.Probation terms can be lengthy – it is not unheard of forpeople to be on probation for up to twenty-five years.21 Andwhile serving time under supervision is better than beingbehind bars, supervision can involve onerous conditions,including GPS monitoring, which amounts to placingpeople under constant surveillance.22 The onerousness ofthese conditions should not be underestimated. People undersupervision are subjected to almost constant surveillance and,especially given recent advances in technology, are undernearly constant oversight by criminal justice officials.CostsThe total costs of criminalizing drug possession are difficultto calculate, but we know that they are exorbitant.Criminalizing drug possession and placing people in prison,jail or on probation or parole is an enormous waste ofcriminal justice resources that comes with a staggering pricetag for U.S. taxpayers. In a 2010 report published by theCato Institute, Harvard economist Jeffrey Miron estimatedthat the cost of policing low-level drug possession offensesexceeds 4.28 billion annually – and this does not includethe massive additional costs of incarceration, supervisionand court processing.23 Miron also provides a state-by-statebreakdown of drug-related taxpayer expenditures – Californiaspends over a billion dollars; Florida and Georgia eachspend hundreds of millions.7
Why is Criminalization a Problem?continuedAt an average annual cost of approximately 31,000 perperson, the price tag for incarcerating people in state prisonsfor possession is likely well over 1 billon,24 with even largersums spent at the local level.25 In contrast, the average cost toobtain a GED is 120.26The criminalization of drugpossession is a costly affair,and decriminalization wouldlikely save U.S. taxpayersbillions of dollars.Unjust Racial and Ethnic Discriminationand DisparitiesAlthough rates of reported drug use do not differsubstantially among people of different races and ethnicities,Black people are far more likely to be criminalized for drugpossession and use than white people.27 African Americansexperience discrimination at every stage of the criminaljustice system and are more likely to be stopped, searched,arrested, convicted, harshly sentenced and saddled with acriminal record for mere possession. These dynamics haveclear outcomes. Black people comprise 13 percent of theU.S. population.28 But Black people comprise 29 percent ofthose arrested for drug law violations,29 nearly 35 percentof those incarcerated in state or federal prison for any druglaw violations,30 and roughly 35 percent of those incarceratedin state prison for possession only.31Discriminatory enforcementof drug possession lawshas produced profoundracial and ethnic disparitiesat all levels of the criminaljustice system.8National-level data on arrests of Latinos are incomplete(what data are available are often inaccurate, because Latinosare routinely undercounted in national criminal justicestatistics, or are categorized as white).32 Yet among drugarrest incidents in 2015 for which ethnicity was reported,more than 20 percent of those arrested were Latino.33Where available, state and local level data also show thatLatinos are disproportionately arrested and incarcerated fordrug possession violations.34 Disparities are less stark forLatinos than for Black people, but they clearly exist.And it has been demonstrated that likelihood of arrest isassociated with skin tone.35, 36The Impact of Criminalization on Individual andPublic HealthThough some individuals may access helpful services ortreatment through the criminal justice system, availableevidence suggests that using the criminal justice agencies toaddress problematic drug use overall causes more harm thangood, and positive health outcomes do not usually resultfrom criminal justice involvement.The criminalization of people who use drugs dramaticallyheightens risks to individual and public health.Criminalization contributes to the marginalization ofpeople who use drugs, making it more difficult to engagethem in treatment, health care and other vital services thatare proven to transform and save lives.37 Aggressive lawenforcement practices and harsh criminal penalties for drugpossession drive many people into environments whererisks of contracting or transmitting HIV and hepatitis Care greatly elevated, and away from testing, prevention,treatment and other effective public health services.38Of course, the most appropriate and effective way for peopleto access services and treatment related to drug use is throughthe healthcare system. To truly address problematic drug useefficiently and effectively, health services – including substanceabuse and mental health services – must be accessible.Fear of arrest is also the most common reason that witnessesdo not immediately call 911 in the event of an overdose.39Overdose has now surpassed motor vehicle accidents asthe leading cause of injury-related death in the U.S.It’s Time for the U.S. to DecriminalizeDrug Use and Possession
Racial and Ethnic Disparities in Drug Possession Enforcement80%70%60%50%40%30%20%*10%0%US Population (2015)WhiteBlackIllicit drug use in past month,age 18 (2015)People arrested fordrug possession (2015)LatinoSources: United States Census Bureau, Substance Abuse and Mental Health Services Administration,Results from the 2015 National Survey on Drug Use and Health, Federal Bureau of Investigation, 2015 Crime in the United States.* Exact numbers are difficult to report as Latinos are routinely undercounted in criminal justice statistics or are categorized as white.According to the Centers for Disease Control and Prevention,52,404 people – an average of 143 people a day – died from adrug overdose in 2015.40 Overdose risk is significantly greaterfollowing an extended period of abstinence or reduced use– such as after spending time in a rehabilitation facility orbehind bars.41Criminal penalties for druguse and possession haveincreased the dangers thatproblematic drug use canpose to individuals andcommunities.www.drugpolicy.orgCriminalization promotes and reinforces stigma against peoplewho use drugs and who struggle with drug misuse.42 In turn,stigma makes it easier for government officials to furthercriminalize people who use drugs.43 It is often argued thatstigma for drug users is good thing, either because drug use isinherently immoral or because stigma provides an incentiveto avoid drug use. But in fact, stigma can be a formidablebarrier to a wide range of opportunities and rights with oftendevastating consequences.People who are stigmatized for their drug involvementcan endure social rejection, labe
approaches to drug use; however, for the purposes of this report, the term encompasses a spectrum of efforts to eliminate criminal penalties, even if such efforts to do not eliminate all forms of coercion entirely. Throughout this report, we will use the phrase "drug possession" to include drug possession, drug use, and possession of equipment
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