The Prospects for Drug Reform in Obama's Washington

By Phillip S. Smith, Drug War Chronicle. Posted November 18, 2008.

After eight years of drug war status quo under the GOP, drug reformers are now
hoping for positive changes in federal drug policies.

The political landscape in Washington, DC, is undergoing a dramatic shift as the
Democratic tide rolls in, and, after eight years of drug war status quo under the
Republicans, drug reformers are now hoping the change in administrations will lead
to positive changes in federal drug policies. As with every other aspect of federal
policy, groups interested in criminal justice and drug policy reform are coming out of
the woodwork with their own recommendations for Obama and the Democratic
Congress. This week, we will look at some of those proposals and attempt to assess
the prospects for real change.

One of the most comprehensive criminal justice reform proposals, of which drug-
related reform is only a small part, comes from a nonpartisan consortium of
organizations and individuals coordinated by the Constitution Project, including
groups such as the Sentencing Project, Families Against Mandatory Minimums
(FAMM), and the Open Society Policy Center. The set of proposals, Smart on Crime:
Recommendations for the Next Administration and Congress, includes the following
recommendations:

    * Mandatory Minimum Reforms:
      Eliminate the crack cocaine sentencing disparity
      Improve and expand the federal "safety valve"
      Create a sunset provision on existing and new mandatory minimums
      Clarify that the 924(c) recidivism provisions apply only to true repeat offenders
    * Alternatives to Incarceration:
      Expand alternatives to incarceration in federal sentencing guidelines
      Enact a deferred adjudication statute
      Support alternatives to incarceration through expansion of federal drug and
other problem solving courts.
    * Incentives and Sentencing Management
      Expand the Residential Drug Abuse Program (RDAP)
      Clarify good time credit
      Expand the amount of good time conduct credit prisoners may receive and ways
they can receive it
      Enhance sentence reductions for extraordinary and compelling circumstances
      Expand elderly prisoners release program
      Revive executive clemency
    * Promoting Fairness and Addressing Disparity:
      Support racial impact statements as a means of reducing unwarranted
sentencing disparities
      Support analysis of racial and ethnic disparity in the federal justice system
      Add a federal public defender as an ex officio member of the United States
Sentencing Commission

The American Civil Liberties Union (ACLU) has also issued a set of recommendations,
Actions for Restoring America: How to Begin Repairing the Damage to Freedom in
America Under Bush, which include some drug reform provisions:

    * Crack/Powder Sentencing: The attorney general should revise the US Attorneys'
Manual to require that crack offenses are charged as "cocaine" and not "cocaine
base," effectively resulting in elimination of the disparity.
    * Medical Marijuana: Halt the use of Justice Department funds to arrest and
prosecute medical marijuana users in states with current laws permitting access to
physician-supervised medical marijuana. In particular, the US Attorney general
should update the US Attorneys' Manual to de-prioritize the arrest and prosecution of
medical marijuana users in medical marijuana states. There is currently no regulation
in place to be amended or repealed; there is, of course, a federal statutory scheme
that prohibits marijuana use unless pursuant to approved research. But US Attorneys
have broad charging discretion in determining what types of cases to prosecute, and
with drugs, what threshold amounts that will trigger prosecution. The US Attorneys'
Manual contains guidelines promulgated by the Attorney general and followed by US
Attorneys and their assistants.
    * The DEA Administrator should grant Lyle Craker's application for a Schedule I
license to produce research-grade medical marijuana for use in DEA- and FDA-
approved studies. This would only require DEA to approve the current
recommendation of its own Administrative Law Judge.
    * All relevant agencies should stop denying the existence of medical uses of
marijuana -- as nearly one-third of states have done by enacting laws -- and
therefore, under existing legal criteria, reclassify marijuana from Schedule I to
Schedule V.
    * Issue an executive order stating that, "No veteran shall be denied care solely on
the basis of using marijuana for medical purposes in compliance with state law."
Although there are many known instances of veterans being denied care as a result
of medical marijuana use, we have not been able to identify a specific regulation that
mandates or authorizes this policy.
    * Federal Racial Profiling: Issue an executive order prohibiting racial profiling by
federal officers and banning law enforcement practices that disproportionately target
people for investigation and enforcement based on race, ethnicity, national origin,
sex or religion. Include in the order a mandate that federal agencies collect data on
hit rates for stops and searches, and that such data be disaggregated by group. DOJ
should issue guidelines regarding the use of race by federal law enforcement
agencies. The new guidelines should clarify that federal law enforcement officials
may not use race, ethnicity, religion, national origin, or sex to any degree, except
that officers may rely on these factors in a specific suspect description as they would
any noticeable characteristic of a subject.

Looking to the south, the Latin America Working Group, a coalition of nonprofit
groups, has issued a petition urging Obama "to build a just policy towards Latin
America and the Caribbean that unites us with our neighbors." Included in its
proposals are:

    * Actively work for peace in Colombia. In a war that threatens to go on
indefinitely, the immense suffering of the civilian population demands that the United
States takes risks to achieve peace. If the United States is to actively support peace, it
must stop endlessly bankrolling war and help bring an end to the hemisphere's worst
humanitarian crisis.
    * Get serious -- and smart -- about drug policy. Our current drug policy isn't only
expensive and ineffective, it's also inhumane. Instead of continuing a failed approach
that brings soldiers into Latin America's streets and fields, we must invest in
alternative development projects in the Andes and drug treatment and prevention
here at home.

The National Organization for the Reform of Marijuana Laws (NORML) has some
suggestions as well. As NORML's Paul Armentano wrote last week on Alternet:

    * President Obama must uphold his campaign promise to cease the federal arrest
and prosecution of (state) law-abiding medical cannabis patients and dispensaries by
appointing leaders at the US Drug Enforcement Administration, the US Department
of Justice, and the US Attorney General's office who will respect the will of the voters
in the thirteen states that have legalized the physician-supervised use of medicinal
marijuana.
    * President Obama should use the power of the bully pulpit to reframe the drug
policy debate from one of criminal policy to one of public health. Obama can
stimulate this change by appointing directors to the Office of National Drug Control
Policy who possess professional backgrounds in public health, addiction, and
treatment rather than in law enforcement.
    * President Obama should follow up on statements he made earlier in his career in
favor of marijuana decriminalization by establishing a bi-partisan presidential
commission to review the budgetary, social, and health costs associated with federal
marijuana prohibition, and to make progressive recommendations for future policy
changes.

Clearly, the drug reform community and its allies see the change of administrations
as an opportunity to advance the cause. The question is how receptive will the
Obama administration and the Democratic Congress be to drug reform efforts.

"We've examined Obama's record and his statements, and 90% of it is good," said
David Borden, executive director of StoptheDrugWar.org (publisher of this
newsletter). "But we don't know what he intends to do in office. There is an
enormous amount of good he can do," Borden said, mentioning opening up funding
for needle exchange programs, US Attorney appointments, and stopping DEA raids
on medical marijuana providers. "Will Obama make some attempt to actualize the
progressive drug reform positions he has taken? He has a lot on his plate, and drug
policy reform has tended to be the first thing dropped by left-leaning politicians."

There will be some early indicators of administration interest in drug reform, said Bill
Piper, national affairs director for the Drug Policy Alliance. "We will be watching to
see if he issues an executive order stopping the DEA raids; that would be a huge
sign," he said. "He could also repeal the needle exchange funding ban. The
congressional ban would still be in place, but that would show some great leadership.
If they started taking on drug policy issues in the first 100 days, that would be a
great sign, but I don't think people should expect that. There are many other issues,
and it's going to take awhile just to clean up Bush's mess. I'm optimistic, but I don't
expect big changes to come quickly."

"We are hoping to see a new direction," said Nkechi Taifa, senior policy analyst for
civil and criminal justice reform for the Open Society Policy Center. "We couldn't have
a better scenario with the incoming vice president having sponsored the one-to-one
crack/powder bill in the Senate and the incoming president being a sponsor. And we
have a situation in Congress, and particularly in the Senate, where there is bipartisan
interest in sentencing reform. Both sides of the aisle want some sort of movement on
this, it's been studied and vetted, and now Congress needs to do the right thing. It's
time to get smart on crime, and this is not a radical agenda. As far as I'm concerned,
fixing the crack/powder disparity is the compromise, and elimination of mandatory
minimums is what really needs to be on the agenda."

"With the Smart on Crime proposals, we tried to focus on what was feasible," said the
Sentencing Project's Kara Gotsch. "These are items where we think we are likely to
get support, where the community has demonstrated support, or where there has
been legislation proposed to deal with these issues. It prioritizes the issues we think
are most likely to move, and crack sentencing reform is on that list."

The marijuana reform groups are more narrowly focused, of course, but they, too
are looking for positive change. "Obama has made it very clear on the campaign trail
that he disagrees with the use of federal agencies to undo medical marijuana laws in
states that have passed them," said Dan Bernath, a spokesman for the Marijuana
Policy Project. "He has vowed to stop that. Obama seems to be someone who values
facts and reasoned decision-making. If he applies that to marijuana policy, that could
be a good thing".

While the list of possible drug reforms is long and varied, it is also notable for what
has not been included. Only NORML even mentions marijuana decriminalization, and
no one is talking about ending the drug war -- only making it a bit kinder and
gentler. The L-word remains unutterable.

"While we're optimistic about reducing the harms of prohibition, legalization is not
something that I think they will take on," said Piper. "But any movement toward drug
reform is good. If we can begin to shift to a more health-oriented approach, that will
change how Americans think about this issue and create a space where regulation
can be discussed in a a rational manner. Now, because of our moralist criminal
justice framework, it is difficult to have a sane discussion about legalization."

"We didn't talk that much about legalization," said Gotsch in reference to the Smart
on Crime proposals. "A lot of organizations involved have more ambitious goals, but
that wouldn't get the kind of reaction we want. There just isn't the political support
yet for legalization, even of marijuana."

"We should be talking about legalization, yes," said StoptheDrugWar.org's Borden,
"but should we be talking about it in communications to the new president who has
shown no sign of supporting it? Not necessarily. We must push the envelope, but if
we push it too far in lobbying communications to national leadership, we risk losing
their attention."

"I do think it would be a mistake to blend that kind of caution into ideological caution
over what we are willing to talk about at all," Borden continued. "I think we should
be talking about legalization, it's just a question of when and where," he argued.

Talking legalization is premature, said Eric Sterling, formerly counsel to the US House
Judiciary Committee and now president of the Criminal Justice Policy Foundation.
"What we are not yet doing as a movement is building upon our successes," he said.
"We just saw medical marijuana win overwhelmingly in Michigan and
decriminalization in Massachusetts, but the nation's commentariat has not picked up
on it, and our movement has not been sufficiently aggressive in getting those votes
translated into the political discourse. We haven't broken out of the making fun phase
of marijuana policy yet."

Sterling pointed in particular to the medical marijuana issue. "Everyone recognizes
that the state-federal conflict on medical marijuana is a major impediment, and we
have 26 senators representing medical marijuana states, but not a single senator has
introduced a medical marijuana bill," he said. "It's an obvious area for legislative
activity in the Senate, but it hasn't happened. This suggests that we as a movement
still lack the political muscle even on something as uncontroversial as the medical use
of marijuana."

Even the apparent obvious targets for reform, such as the crack/powder sentencing
disparity, are going to require a lot of work, said Sterling. "It will continue to be a
struggle," he said. "The best crack bill was Biden's, cosponsored by Obama and
Clinton, but I'm not sure who is going to pick that up this year. The sentencing
reform community continues to struggle to frame the issue as effective law
enforcement, and I think it's only on those terms that we can win."

Reformers also face the reality that the politics of crime continues to be a sensitive
issue for the majority Democrats, Sterling said. "Crime is an issue members are
frightened about, and it's an area where Republicans traditionally feel they have the
upper ground. The Democrats are going to be reluctant to open themselves up to
attack in areas where there is not a strong political upside. On many issues, Congress
acts when there is a clear universe of allies who will benefit and who are pushing for
action. I don't know if we are there yet."

Change is the mantra of the Obama administration, and change is what the drug
reform community is hoping for. Now, the community must act to ensure that
change happens, and that the right changes happen.