What Healthcare Reform Could Mean for Drug Policy and Mass Incarceration

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December 18, 2013 - By gabriel sayegh

What does the Affordable Care Act (ACA) mean for drug policy? The impact could be transformative, if reformers seize the moment. A new issue brief — From Handcuffs to Healthcare — published by DPA and the ACLU outlines how the ACA could help our country end the war on drugs and move toward a health-based approach to drug policy.

In 1971, President Nixon introduced an enduring and catastrophic approach for addressing drug use and addiction: the war on drugs. Under this paradigm, criminalization became the official policy for managing all aspects of drug use: from addiction itself to the possession, use, and sharing of certain drugs between certain consenting adults. Complete abstinence and zero tolerance became the only acceptable condition for some people and particular drugs. Nixon was going to get tough, and he did.

Less than two years later, New York Governor Nelson Rockefeller, in his own bid to get tough, passed the harshest drug laws in America – the Rockefeller Drug Laws. Rockefeller, who had long supported drug treatment and other supportive human services, now turned against them, declaring a “lock ‘em up” approach was necessary to address the “drug problem.” His laws required long, mandatory minimum prison sentences of 15 years-to-life for even first-time drug law violations, garnering national attention. Other states quickly followed suit, enacting their own versions of the Rockefeller Drug Laws. The draconian laws changed the way America approached sentencing and became infamous worldwide for their severity and shocking racial disparities. The very term “Rockefeller Drug Laws” has become a euphemism for the war on drugs and mass incarceration.

Under Reagan, Bush, Clinton and Bush II, the war on drugs and the criminalization paradigm took root and flourished. By the time President Obama took office, drug war rhetoric was beginning to fall out of fashion, but drug war  policies were firmly and deeply entrenched. Criminalization had become normalized – especially for Blacks and Latinos.

During this period, the U.S. incarcerated population exploded from nearly 500,000 people in 1970 to over 2.3 million people today. Nearly a half-million are incarcerated for drug offenses alone. The number of people under correctional control – incarcerated, on parole or probation – is now seven million. The war on drugs drove this unprecedented race to incarcerate, and the associated racial disparities are now so severe and so institutionally entrenched that it’s known as the New Jim Crow.

Today, the drug war is widely recognized as one of the country’s greatest failures; the ACA suggests a way out. Under the ACA, addiction has been declared a health issue – not a crime --  treated  like any other chronic health problem. When the ACA comes online in 2014, public and private insurance plans must provide healthcare services for addiction, just as they would for diabetes or cancer, impacting an estimated 60 million people. For the first time, the nation will approach addiction as a health issue.

This seismic shift in healthcare creates a unique opportunity for drug policy and criminal justice advocates to reframe the debate and advance reform. Instead of using the criminal justice system to address drug use and addiction, we can provide care to people in the community and bypass the “lock ‘em up” approach altogether.  The new issue brief,  From Handcuffs to Healthcare, summarizes key healthcare changes relevant to drug policy and criminal justice, and outlines action steps to put the ACA to work for broader reform. The ACA is not a panacea for the drug war and mass incarceration, but it can be leveraged for efforts to end the drug war and mass incarceration. In short, it’s an opportunity we should not pass up.

gabriel sayegh is the New York state director of the Drug Policy Alliance.

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