Can Anyone on Earth Come Up with a Good Reason to Jail People Who Take Drugs?

A draft United Nations briefing paper expressing support for the decriminalization of personal possession of drugs was leaked Monday by Virgin Airlines founder Sir Richard Branson, a drug reform advocate. Days earlier, the New York Times had apparently asked President Obama's "drug czar" about the same document. Within a few hours of being made public, the paper was withdrawn and the UN Office on Drugs and Crime (UNODC) distanced itself from the document, suggesting that there had been an "unfortunate misunderstanding."

But the drama is actually just a sign that the foundations on which international drug policy sit are shifting—and that even the old guard at the United Nations is flirting with ending the global war on drugs.

As recently as five years ago, you'd have to be tripping sack to suggest such a document could be even considered by the hardcore drug warriors at the UN drug czar's office. Even now, the UNODC is still funding the drug control efforts of oppressive regimes like Iran, where nonviolent drug offenders get executed by the hundreds every year. But it's increasingly tricky to make a coherent argument for arresting and incarcerating people whose only crime is possession of drugs. And even if the case for legalizing sales of all currently illegal drugs is still on the fringes, the argument for ending criminal penalties for possession is more mainstream than ever.

For example, when I interviewed Nora Volkow, the head of the US government's National Institute on Drug Abuse, for my forthcoming book, she told me that while she does not support legalizing sales, she opposes criminal penalties for drug users. "I don't believe in criminalizing the addict. I don't. Absolutely not," she said. And even Kevin Sabet, one of America's most vocal opponents of marijuana legalization, says that he believes people caught in possession of that drug should get treatment, not jail.

These days, it's awfully easy to find politicians making statements that at least sound like they support decriminalization—and harder than ever to find anyone explicitly supporting penalties for possession. Last month, Hillary Clinton wrote an op-ed about heroin aimed at New Hampshire primary voters, summing up her strategy as aiming to "prioritize treatment over prison for low-level and nonviolent drug offenders, so we can end the era of mass incarceration." And here's Carly Fiorina in May: "Drug addiction shouldn't be criminalized… We need to treat it appropriately." Tellingly, neither presidential candidate—one from each party—seemed to limit her opposition to criminal penalties to mere marijuana offenses.

The UN draft document concisely lays out the arguments against arresting and incarcerating any type of drug user for possession. For one, it notes that fear of arrest has been "widely shown" to reduce access to clean needles and other health measures, "fueling HIV and hepatitis C epidemics among people who use drugs, and contributing to preventable deaths from those blood borne viruses and drug overdose." Incarcerating drug users also increases risk by concentrating high-risk people together.

Secondly, arrest and punishment obviously serves to stigmatize drug users, contributing to the shame that might make it more difficult for them to quit. As the briefing put it, the "heavy emphasis on criminalization has fueled high levels of discrimination against people who use drugs, including exclusion from workplace, from education, from child custody and from health care." It goes on to note that this often results in discrimination against racial minorities and also "fuels poverty and social exclusion, as having a criminal record can negatively affect access to future employment, education, housing, and child custody and also exercising civil rights such as voting."

Critically, criminal penalties for possession don't decrease rates of drug use. The US government spent more than $121 billion (€106 billion) just to arrest and incarcerate nonviolent drug offenders between the time President Nixon first officially declared war on drugs in 1971 and 2010, nabbing some 37 million people during that period.

During the same period, while incarceration rates spiraled out of control and drug war spending was multiplied by a factor of 31 (even after adjusting for inflation), drug use and addiction rates did not fall in correlation with them.

For example, the percent of high school seniors who reported taking any illegal drug at least once was 55 percent in 1975, rose to 66 percent by 1981, and is now 49 percent. As the most worrying type of drug habits—daily use—this has only ever reached reliably measurable proportions (1 percent or higher) in 12th graders when it came to marijuana, and was 6 percent in 1975. It was 5.8 percent in the most recent statistics from the government's 2014 Monitoring the Future study.

Meanwhile, research that looks directly at the impact of incarceration on people with addiction does not find it be particularly helpful. In fact, two studies that examined the correlation between incarceration and recovery found that being locked up recently was linked with reduced odds of getting better, in both cases, by about half.

As the UN draft document concludes, "imposing criminal sanctions for drug use and possession for personal consumption is neither necessary nor proportionate. On the contrary, punishment aggravates the behavioral, health and social conditions of the affected people." Indeed, the UNODC's own scientific advisory council, which includes NIDA's Volkow as a member, concluded last year that "criminal sanctions are not beneficial" when it came to fighting addiction.

Given the overwhelming data against criminalization, and the fact other arms of the UN—including the World Health Organization and the Office of the High Commissioner on Human Rights—have already come out in favor of decriminalization, what really seems strange here is that the document was withdrawn so decisively.

"I don't think anyone knows what really happened," says Jag Davies, director of communications strategy for the Drug Policy Alliance, who is following the story and wrote about it for the Huffington Post.

However, there are clearly some lessons here. For one, while even politicians now recognize that current policy is failing, they are unsure of how to frame politically acceptable alternatives. Vague statements like "end the drug war" or "reduce mass incarceration" or "replace punishment with treatment" all sound like endorsements of ending mass arrests of drug users for simple possession, but they haven't changed the fact that some 1.6 million Americans are arrested annually for drugs—83 percent of them for possession, not sales.

Moreover, it's much easier to support decriminalizing marijuana possession and even sales because most people are personally familiar with the drug and know that it's use will not result in widespread doom. But the public is still very frightened of heroin, cocaine, and methamphetamine—so the idea of "legalizing" personal possession of these drugs is much more terrifying, even when they can see that arresting people for them isn't working.

Portugal threaded this needle successfully in 2001, decriminalizing personal possession of all drugs and having police focus their efforts on fighting violent crime and dealing. Under this policy, if someone does come to the attention of the cops and has a small amount of drugs, he or she is taken to a "dissuasion committee." This group that evaluates whether the person is a recreational or addicted user and recommends—but does not force—treatment if it is needed. Civil sanctions like losing drivers' licenses are sometimes imposed, but mostly, people are given options rather than punished.

The results have been the opposite of the orgy of drug-fueled chaos opponents predicted. Teen drug use has followed the trends seen elsewhere in Europe and remains low. As of 2010, for example, 13 percent of Portuguese 15-16 year olds reported marijuana use; the figure for the US that year was 32 percent for high school sophomores.

Overdose death, however, has been cut dramatically in Portugal: the rate is now 3 per million citizens, compared to the European Union average of 17.3. HIV rates have dropped, too, with new cases in IV drug users falling from 1,575 annually in 2000 to 78 in 2013. The number of people in rehab rose 41 percent, and the number of people in prison for drug charges fell from 44 percent in 1999 to 24 percent in 2013.

So how can we get from where the US is now to there? Talking about "decriminalizing drug possession" or "legalizing" small amounts of drugs still scares some (mostly older) people. Instead, we need to emphasize that jail and prison neither deter drug use nor treat addiction—and that the recovery movement and mental health goal of "destigmatizing addiction" is incompatible with incarcerating people for having symptoms of it.

If addicted people are really just sick, and not evil, arresting them reinforces the moral perspective, not the medical one. If the goal is public health, the strategy can't be one that is known to spread disease. If jailing people for marijuana use doesn't prevent addiction, why would jailing them for heroin or cocaine help?

Leaving aside for now all the issues that surround dealing, if anyone can make a data-based case for continuing to arrest and incarcerate millions of people for simple possession, I'd like to hear it.

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