Testimony by Bill Piper on a New Bottom Line for U.S. Drug Policy

Mr. Chairman, I want to thank you for convening this summit on crime policy and for your tireless support for justice and public safety. Our executive director, Ethan Nadelmann, wishes he could be here; but we have a board meeting in New York today.

As you know, it is impossible to talk about federal crime policy without talking about the war on drugs. More than half of all people incarcerated in federal prison are there for drug law violations; and through various law enforcement grant programs the federal government encourages the mass incarceration of nonviolent drug offenders at the local and state level as well. Police make more than 1.8 million drug arrests in the U.S. every year (nearly 700,000 for nothing more than marijuana possession). Those arrested are separated from their loved ones, branded criminals, denied jobs, and in many cases prohibited from accessing public assistance for life. The United States incarcerates more of its citizens for drug violations than all of Western Europe incarcerates for all crimes (and Western Europe has 100 million more people).

Yet, despite spending hundreds of billions of dollars and arresting millions of Americans, illegal drugs remain cheap, potent and widely available in every community; and the harms associated with them continue to mount. Meanwhile, the war on drugs is creating problems of its own - broken families, racial disparities, and the erosion of civil liberties. Congress’s 30 year social experiment in trying to solve a health problem through the criminal justice system is a clear failure. It’s time for a change.

Congress should pass legislation setting a new bottom line for U.S. drug policy.  It might take the form of requiring the Office of National Drug Control Policy (ONDCP) to report annually on the impact of federal policies on the number of people in prison, HIV transmission rates, and overdose fatalities; and to commission independent cost-benefit analyses of federal drug policy expenditures. Or requiring federal agencies to provide annual reports on how many people are penalized by federal drug policies, such as the number of people denied student loans, housing, food stamps, and the right to vote because of a drug conviction.

If you would like to be bold, pass legislation requiring federal agencies to set short- and long-term goals for reducing the problems associated with both drugs and punitive drug policies. ONDCP is already statutorily required to set national goals for reducing drug use and drug availability. Why not also require the agency to set goals for reducing overdose deaths, the spread of HIV/AIDS from injection drug use, racial disparities in the criminal justice system, the number of Americans who cannot vote because of a felony conviction, etc.

The bottom line is that our country needs a new set of criteria for evaluating the success or failure of federal drug policies, something that goes beyond just looking at drug use rates.   Ups and downs in how many people say they used marijuana last year, for instance, are far less important than ups and downs in overdose fatalities, or new HIV infections, or the level of expenditures on the incarceration of non-violent drug offenders who might better be treated outside prison walls. 

Congress should also institutionalize a new bottom line in drug law enforcement. One that moves beyond grading agencies, taskforces, and individual officers on such Vietnam-like “body count” statistics as the number of people arrested and the amount of drugs seized. There is ample evidence that arrests and seizures have little if any impact on drug availability or the problems associated with substance abuse. And the pressure to meet arrest and seizure quotas is spurring civil rights abuses as some officers fabricate informants, raid homes on false evidence, lie to judges, and plant evidence. Anything to increase the “body count”. This pressure to boost the numbers is at the heart of drug war tragedies, including the Tulia, Texas scandal, the Dallas sheetrock scandal and the recent shooting death of Katheryn Johnston in Atlanta.

Even when police officers play by the book, which is most of the time, grading them by arrests and seizures is a recipe for failure.  The easiest way for agencies to boost their numbers is to arrest a bunch of low-level offenders – from people smoking marijuana on the street corner to drug mules and the homeless. These arrests do much to pad the official reports and fill our prisons, but do nothing to stop major traffickers or reduce the problems associated with substance abuse.

A recent book put out by the American Enterprise Institute, entitled An Analytic Assessment of U.S. Drug Policy, points to a better way. The authors write:

“Retail-level drug enforcement should focus on what it can accomplish (reducing the negative side effects of illicit markets) and not on what it can’t achieve (substantially raising drug prices). Thus, instead of aiming to arrest drug dealers and seize drugs – the mechanisms by which enforcement seeks to raise prices – retail drug enforcement should target individual dealers and organizations that engage in flagrant dealing, violence, and the recruitment of juveniles. Arrests and seizures should not be operational goals, but rather tools employed, with restraint, in the service of public safety.” (from the February 2005 AEI book, An Analytic Assessment of U.S. Drug Policy)

Congress should take a look at Texas, where a series of scandals has spurred massive change. State narcotics officers are now graded less by arrests and more on how well they disrupt and dismantle dangerous crime organizations. Gathering intelligence, building connections, and working up a crime network’s ladder takes precedent over arresting low-level offenders. Drug arrests have fallen by more than 40% in the last year, but drug seizures have more than doubled.

This innovative harm-reduction approach to drug law enforcement would be unquestionably difficult to institutionalize nationally, but there are steps the Judiciary Committee could take. Raise the threshold amount of drugs it takes to trigger federal mandatory minimum sentences to encourage the Justice Department to prosecute high-level traffickers. Set clear statutory goals for the disruption of major crime syndicates, and require federal agencies to report on their progress toward these goals, including resources wasted on low-level drug offenses. Reform federal funding streams so that regional narcotics taskforces receive money based on a broader set of criteria than just how many people they arrested the previous year.

There are other reforms that Congress should enact, including ensuring uninterrupted access to methadone and buprenorphine in the criminal justice system and requiring law enforcement agencies receiving federal funding to document their arrests, seizures, and searches by race and ethnicity. But, the bottom line is that Congress should institutionalize a new approach to drugs; one that seeks to reduce the problems associated with both drug abuse and the war on drugs.

Thank you, Chairman Scott, for holding this important crime summit and devoting so much time to it.