The War on Drugs Is Burning Out

The conservative wave of 2014 featured an unlikely, progressive undercurrent: In two states, plus the nation’s capital, Americans voted convincingly to pull the plug on marijuana prohibition. Even more striking were the results in California, where voters overwhelmingly passed one of the broadest sentencing reforms in the nation, de-felonizing possession of hard drugs. One week later, New York Mayor Bill de Blasio and the NYPD announced an end to arrests for marijuana possession. It’s all part of the most significant story in American drug policy since the passage of the 21st Amendment legalized alcohol in 1933: The people of this country are leading a dramatic de-escalation in the War on Drugs. 

November’s election results have teed up pot prohibition as a potent campaign issue for 2016. Notwithstanding the House GOP’s contested effort to preserve pot prohibition in D.C., the flowering of the marijuana-legalization movement is creating space for a more rational and humane approach to adjudicating users of harder drugs, both on the state level and federally. “The door is open to reconsidering all of our drug laws,” says Alison Holcomb, who led the pot-legalization push in Washington state in 2012, and has been tapped to direct the ACLU’s new campaign against mass incarceration.

On the federal stage, the Justice Department continues to provide what Ethan Nadelmann, director of the Drug Policy Alliance, calls “a discreet form of leadership” on state experiments in drug reform – giving tax-and-regulate marijuana laws broad latitude, and even declaring that Native American tribal governments can also experiment with marijuana law, opening a path for recreational pot on reservations in, potentially, dozens of states. Congress, in the same legislation that sought to derail D.C. legalization, carved out historic protections from federal prosecution for state-legal medical-marijuana operations. And in November, in a signature reform for outgoing Attorney General Eric Holder, the Obama administration lightened prison sentences for federal drug offenders. This reform, modest on its face, nonetheless marks a striking- departure from three decades of ever-harsher federal enforcement. For the first time since Ronald Reagan took office, the federal prison population is shrinking. “We are witnessing a historic sea change,” Holder said in a speech this fall, “in the way our nation approaches these issues.”

The trajectory of the citizen-led drawdown of the Drug War is clearest in California – where four years ago the pot-legalization movement’s biggest stumble, ironically, helped clear a path for one of the anti-Drug War movement’s most transformational successes this past November. 

Pushing the envelope back in 2010, California activists qualified a ballot initiative to legalize recreational marijuana. At the time, Holder warned the Justice Department would “vigorously enforce” federal marijuana prohibition in California. Eager to pre-empt a constitutional crisis over fully legal weed, then-governor Arnold Schwarzenegger steered passage of a half-measure – an October 2010 law decriminalizing marijuana use.

The Governator’s gambit worked. Decriminalization helped take the wind out of the sails of the legalization campaign, which failed at the ballot box. But having spurred the legislature to action, pot activists indirectly scored a huge victory for criminal and racial justice. Possession of up to an ounce of marijuana became an infraction, like a parking ticket, with a maximum $100 fine. And the California law applied to users of any age – not just tokers 21 and over.

The impact of this tweak has been remarkable: By removing low-level youth pot offenses from the criminal-justice system, overall youth crime has plummeted by nearly 30 percent in California – to levels not seen since the Eisenhower administration. And decriminalization didn’t lead to any of the harms foretold by prohibitionists. Quite the opposite: Since the law passed in 2010, the rate of both high school dropouts and youth drug overdoses are down by 20 percent, according to a new research report from the Center on Juvenile and Criminal Justice. Non–marijuana drug arrests for California youth, meanwhile, are also down 23 percent – fully debunking the gateway theory.

Decriminalization in California, the report concludes, has reduced the harms of prohibition for thousands of California teens. “Fewer young people,” its authors write, “are suffering the damages and costs of criminal arrest, prosecution, incarceration, fines, loss of federal aid and other punishments.” Perhaps most important, the Darren Wilsons of California have one less pretext to disrupt the lives of the state’s Michael Browns. 

In November – building on the success of decriminalization and on public disgust at the state’s criminally overcrowded and ruinously expensive prison system – California voters took an even bolder leap with Proposition 47, which reduced possession of hard drugs including cocaine, heroin and meth from a felony to a misdemeanor. (Prop 47 also de-felonized nonviolent theft of less than $950.)

In a year of record-low voter turnout, Prop 47 passed with 59 percent support, thanks in part to endorsements from nationally prominent Republicans like Rand Paul and Newt Gingrich. The new law is expected to affect 24,000 drug convictions a year. And the reduction in the ranks of the incarcerated will create savings, the state estimates, in the “low hundreds of millions of dollars annually.” Innovatively, Prop 47 captures those savings and steers them into community programs. “This is the first voter initiative to literally take money out of the prison budget and put it into prevention and treatment,” says Lenore Anderson, executive director of Californians for Safety and Justice, which spearheaded the campaign for Proposition 47.

The new law also allows current convicts to petition to get their sentences- reduced retroactively. In the cases of some convicts under California’s notorious “Three Strikes” laws, this will mean the difference between a continued life sentence and freedom. Additionally, as many as 1 million Californians will qualify to have felony records expunged – removing what Anderson calls the “Scarlet- F” from their chests – opening doors to fuller integration in society, with fewer obstacles to getting a job, finding an apartment or enrolling in public assistance. 

“We’re not only stopping overincarceration,” Anderson says. “We’re also going to clean up its legacy.”