The trend of slow but real progress away from absolute criminalization of drugs in America is in serious trouble.
During the Obama years, a surprisingly bipartisan consensus on drug policy began to take shape, rejecting first the rhetoric and then key components of the actual drug war of the 80s and 90s. Politicians and even police chiefs began to accept that harsh mandatory minimums fill prisons rather than fighting drugs. Across the country and the political divide, many took to repeating the mantra that there's no way to " arrest our way out of" drug problems.
Increased access to medication treatment for opioids is actually one of the few potential bright spots for drug policy in the near future
In recent years, at least 32 states have passed Good Samaritan laws to protect people who save the lives of overdose victims from prosecution for minor drug crimes. The federal ban on funding for needle exchange finally toppled, and state, local and federal efforts have dramatically increased the availability of the overdose reversal drug, naloxone.
At least 21 cities or other localities are setting up or actually running programs to stop arresting low-level drug suspects and offer them voluntary access to services like housing and treatment. And this year, the Drug Enforcement Administration (DEA), which has never previously backed off on efforts to ban substances, did so (at least temporarily) in the face of intense opposition to its attempt to prohibit kratom, an herb that many people take for pain or to treat opioid addiction.
Meanwhile, 28 states have now legalized medical marijuana and eight states and DC have legalized recreational use, with the feds taking a hands-off approach even though the drug remains schedule I. Indeed, starting with California's landmark medical marijuana initiative in 1996, the US has seemed to be on a slow but clear path to more realistic and humane ways of dealing with drug issues for two decades now.
Last week, the Surgeon General released what was intended to be a landmark report on addiction, calling for a public health approach that emphasizes treatment and even harm reduction programs. Although in my view, it didn't go nearly far enough— a true public health approach cannot involve criminalization of any drug possession and requires radical reform to drug treatment—it may now stand as a sad reminder of where America was once headed.
Tom McLellan, board chair of the Treatment Research Institute and former deputy drug czar in the Obama administration, was a science editor of that report. He says it offers sound guidance for the next president. "Of the issues that are facing the US, one that is serious and agreed on by both parties is substance use disorders, and so I cannot imagine any responsible administration failing to address it," he tells me.
Sarah Wakeman, MD, medical director for substance use disorders at Massachusetts General hospital, adds, "The best thing about this report is how it addresses head-on the false notion that treating opioid use disorder with methadone or buprenorphine is a substitution or that treated individuals are 'addicted' to methadone. More broadly, the report's focus on evidence-based treatment and how it presents the information using research rather than opinion or belief is crucial."
Increased access to medication treatment for opioids is actually one of the few potential bright spots for drug policy in the near future. Trump has said he supports better access to maintenance drugs and wants to lift the cap that allows doctors to see only 275 patients for such treatment with buprenorphine. Here, he may be guided by his buddy Newt Gingrich, who, along with Patrick Kennedy and Van Jones, has started an organization to promote increased use of medication treatment.
Unfortunately, Trump's reported nomination of Alabama's Jeff Sessions to be attorney general bodes ill for evidence-based drug policy on other fronts. One of the many reasons Sessions was rejected by the Senate for a judgeship in 1986 was his "joke" that he thought the KKK was OK until he learned some of its members smoke marijuana. He said as recently as this past April that "good people don't smoke marijuana," and has been one of the biggest obstacles to bipartisan efforts to reduce harsh federal sentences for nonviolent drug offenders.
Check out our Daily VICE segment on the military vets guarding legal weed (and the cash it produces) in Colorado.
While Trump has said he will respect states' rights and continue to allow those that have legalized both medical and recreational use of the drug in spite of federal law to do so, Sessions could undo these efforts with the stroke of a pen. "One can imagine he might try to more aggressively enforce federal law even in states that have legalized, and he has the authority to do it," says Jeffrey Miron, an economist at Harvard and at the conservative Cato Institute.
"Sessions is a drug warrior," adds Mark Kleiman, professor of public policy at New York University. "They could shut down the non-medical parts of the legal industry just by getting injunctions. They can't do that to the medical folks because of the appropriations rider," a past congressional move that bans use of federal money for such enforcement.
"The end results are the same. We are fucked." —Carl Hart
Other experts think a total reversal is unlikely, at least when it comes to weed policy at the state level. Carl Hart, who chairs the psychology department at Columbia University (and, full disclosure, with whom I worked on a book project several years ago), suspects that the marijuana states will be left alone. "Sessions isn't going to go after marijuana states because of all the state's rights rhetoric," Hart says. "He isn't stupid, nor is Trump. Too many well placed white folks care deeply about marijuana."
But new reforms now seem to be in limbo. Trump's "law and order" rhetoric and Sessions' support for draconian drug sentences make further federal movement on mandatory minimum sentencing tougher to envision. I, for one, had hoped America's growing rejection of incarceration as a way to deal with marijuana use would lead to reconsideration of locking people up for any type of drug possession. I had also hoped that the more treatment and harm-reduction focused policies that have emerged in response to the opioid epidemic might be allowed to grow. (A request for comment from President-elect Trump's transition team was not returned prior to publication.)
For now, those of us who care about helping people with addiction and using science to guide more humane approaches to drugs should be bracing for a tough fight ahead. As Hart puts it, "I predict that drug policy will continue to be used as a tool to further marginalize the poor and specific racial groups (e.g. blacks). This quietly happened during the Obama years, but under Trump it will be explicit, loud and celebrated. The end results are the same. We are fucked."
I hope he's wrong, but fear he's right.
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