THE ROAD TO REFORM

Activists Need Fresh Strategies To Win

Nearly everyone seems to agree that the war on drugs has been a
disaster, but little progress in ending it has been made. Many
mainstream figures, including current drug czar (and retired four-star
general) Barry McCaffrey and former drug czar (and New York City
Police Commissioner) Lee Brown, have questioned the overreliance on
incarceration. Yet more than 400,000 people are behind bars for drug
offenses. The federal government has spent more than $110 billion
fighting drugs since 1988, and the proposed budget for the next fiscal
year is $17.8 billion. Treatment programs, meanwhile, are still
unavailable for almost two-thirds of the people who want them (though
treatment is always available for those who can pay outright or have
insurance coverage).

Why has reform been so slow in coming?

One reason is that the opposition is not as organized or cohesive as
it could be. The drug policy reform movement comprises a broad
spectrum of advocacy groups whose objectives are often at odds. Some
advocates of legalization, for instance, want to expand the right to
privacy to protect drug use, while drug treatment providers emphasize
abstinence. Some treatment providers, moreover, support drug courts as
a means of sending offenders to treatment instead of prison, whereas
criminal justice reform groups question whether these courts expand
the net of the criminal justice system by bringing in defendants who
wouldn't have been prosecuted in the first place.

Drug reform advocates don't have a single defining issue, in the way
that desegregation helped focus the civil rights movement. Indeed, the
drug issues that attract mainstream support are frequently viewed as
unrelated to the drug policy debate. One example is the campaign, led
by libertarians, for asset-forfeiture reform in Congress, which has
attracted a broad coalition in large part because the seizure of
assets can be framed as a property issue. And successful campaigns in
six states to legalize the medical use of marijuana have appealed to
the voters' compassion for sick and dying patients, not to their
interest in drug policy.

For the most part, even when it has seemed that government agencies
are on their side, reformers have been unable to overcome political
opposition. In 1995, for example, the US Sentencing Commission--an
independent, permanent agency established by Congress to develop a
detailed system of sentencing guidelines for federal criminal
offenses--released a report recommending an end to the racially
discriminatory 100-to-1 disparity in sentencing between crack and
powder cocaine. The 200-page report was full of evidence documenting
the injustice of this disparity, and the proposed change was embraced
by the Office of National Drug Control Policy, the Congressional Black
Caucus and criminal justice and drug policy reform groups.
Nonetheless, the White House submitted draft legislation to Congress
to keep the disparity intact. For an Administration determined to take
back the crime issue from the Republicans, the crack/powder debate was
an opportunity to appear tough on crime. The Sentencing Commission did
little to make its recommendations understood because it was not set
up to engage in advocacy. The commissioners themselves acknowledged
that they had failed to promote their findings effectively because
they believed that "good government would carry the day."

At the federal level, most reform efforts are reactive, attacking one
bad bill after another--in large part because many horrendous bills
are introduced. Reformers have pushed for more dollars for treatment,
but under the current budget arrangement drug treatment is forced to
compete with other important health issues. In order to have an
impact, reformers need a long-range strategy that addresses the
political obstacles to reform and alters the very structure of the
drug budget.

To pursue such a strategy activists must first abandon their fixation
on the ten-year-old Office of National Drug Control Policy (ONDCP),
which is essentially powerless to make meaningful changes in drug
policy. Following Clinton's election in 1992, reformers debated a
short list of possible candidates for drug czar, and it's still
tempting to come up with a fantasy list of names and proposals. But it
has become increasingly clear that no drug czar can do what's needed.
Drug use should be redefined as a public health issue and removed from
the criminal justice system. But it's not within the ONDCP's
jurisdiction to do that. The mandatory sentencing laws that are at the
heart of the criminal justice system's response to drug-related crimes
should be repealed--but the ONDCP can't recommend that since criminal
laws are under the Justice Department's jurisdiction. Drug budget
priorities should be redirected and funds moved from law enforcement
to treatment programs, but the ONDCP can't do that because Congress
never gave the drug czar authority over a single integrated drug budget.

At best, the office is a bully pulpit and should be recognized as
such, either dedicated to providing policy advice or invested with the
autonomy of the Surgeon General. The ONDCP was set up by the Anti-Drug
Abuse Act of 1988 to coordinate federal drug control efforts
throughout the government and to establish national policy. But the
emperor has no clothes: Without budget authority, the office has no
real power. About the only way for the drug czar to assert authority
or to advocate provocative policy changes is to step on the toes of
another member of the Cabinet--not a welcome prospect for a
presidential appointee. General McCaffrey's recent announcement of a
new methadone policy--proposing a system of accreditation that would
make the drug more widely accessible--is a welcome example of his
willingness to challenge the status quo, albeit chosen carefully, as
he can make this change without regard to budget priorities.
Supporting federal funding for needle exchange, for example, would be
far more controversial.

Such limitations are clear from the ONDCP's recent history. For
example, the National Drug Control Strategies first issued by former
drug czar Lee Brown under President Clinton actually called for
treatment on demand. The Strategies did such a good job of advocating
more treatment that the first two years of Congressional oversight
hearings were filled with Republican rhetoric excoriating the
Administration for focusing on treatment at the expense of law
enforcement. The untold story, however, was that the budget never
matched the strategy: The reality was that a greater percentage of the
drug budget was actually going to law enforcement under Clinton than
under Bush.

Critics who do appreciate the role of the budget in making policy
often reach the conclusion that more funds should go to the "demand"
side of counternarcotics efforts (i.e., to drug treatment and
prevention programs) rather than to the "supply" side (i.e.,
prosecuting dealers). Recently, for example, a coalition of two dozen
reform organizations drafted a report titled "The Effective National
Drug Control Strategy," which proposes a sensible shift in federal
funding priorities, away from enforcement and toward youth programs
and treatment. Since there is no integrated drug budget, however,
making this shift is not simple. The budget that the ONDCP submits to
Congress each year to implement its National Drug Control Strategy is
a composite of the drug-related budgets submitted by the twenty-seven
federal agencies involved in counternarcotics work. (The largest item
in the nation's drug budget, for example, is the Justice Department's
spending on prisons and court costs.) No one official or agency has
the authority to take funds from interdiction and move them into
treatment. At the same time, no Congressional committee is actually
responsible for examining the nation's overall drug budget. Instead,
nine of the thirteen House and Senate appropriations subcommittees
oversee the drug budget for the federal programs that fall within
their jurisdiction. Given the way the federal budget is constructed,
the only way to put increased funds into drug treatment programs is to
move funds from another Department of Health and Human Services budget
category (e.g., breast cancer or HIV) or challenge the way the drug
budget is put together.

Changing the budgeting process will require leadership from Congress.
There is ample evidence to support such change, but federal drug and
crime policy is driven by fear--or at least what members of Congress
perceive about their constituents' fear of crime--not by data and
studies. Ever since the Willie Horton advertisements helped bring down
the 1988 Dukakis presidential campaign, every legislative decision has
had the potential to hurt a member's re-election effort. Fear of
political consequences most likely explains the government's refusal
to redress the federal sentencing disparity between crack and powder
cocaine.

While the importance to politicians of appearing tough on crime cannot
be overestimated, there are occasionally openings for less
poll-driven, more independent decision-making. Whereas every member of
the House is up for election every two years, only one-third of the
Senate is running for re-election at any given time, which can
liberate senators temporarily from campaign concerns. In addition, a
small group of members come from "safe" districts and so can afford to
vote their conscience.

In any case, a strategy that challenges current drug policy is doomed
unless it offers something in its place. That's why the alternative
omnibus crime bill introduced by former Representative Craig
Washington and Representative John Conyers on behalf of the
Congressional Black Caucus in 1993 was so powerful--it presented an
alternative vision of what criminal justice reform groups wanted,
rather than merely a list of what everyone was against. The bill was
an amalgam of crime and drug policy legislation introduced over the
past decade to assist state and local government in responding to
crime--for example, by expanding community policing and police
training and strengthening laws against police misconduct. To prevent
crime, it also included grants for safe schools and midnight sports as
well as comprehensive gun control measures. And it aimed to increase
confidence in the criminal justice system by eliminating the racial
disparity in the use of the death penalty and in crack/powder cocaine
penalties, and enacting asset-forfeiture and habeas corpus reform. As
a result, the bill was co-sponsored by the members of Congress
responsible for individual amendments within the larger bill and
attracted the support of a broad-based coalition spearheaded by the
ACLU.

Members of Congress are more likely to defy the orthodoxy when their
constituents advocate change--particularly those with special
credibility such as law-and-order figures. Taking a lesson from the
gun-control movement, drug reformers have found chiefs of police with
successful needle-exchange programs in their communities to act as
advocates on Capitol Hill, providing more political cover than any
Washington-based advocacy group on needle exchange ever could. Many
people in criminal justice and law enforcement have been radicalized
by their day-to-day experience within the system, but they need to be
encouraged to speak out. District court judges have begun to criticize
crack sentences from the bench, including Judge Louis Oberdorfer (DC),
Judge Clyde Cahill (Missouri), Judge Harold Greene (DC) and Judge Alan
Nevas (Connecticut)--a Reagan appointee. Even Supreme Court Justice
Anthony Kennedy has assailed in a Congressional hearing the mandatory
minimums for possession of crack cocaine.

Overall, though, given the tough-on-crime climate in Washington, we
shouldn't expect the most far-reaching and innovative policy changes
to originate inside the Beltway. State-level attempts at reform often
enjoy much better prospects. In Michigan, for example, Families
Against Mandatory Minimums (FAMM) lobbied successfully last year to
reform mandatory sentences for drug offenders. Before the change, the
"650 Lifer" law required life in prison without parole for drug
offenders convicted of intent to deliver 650 grams of cocaine or
heroin; the reform made prisoners eligible for parole after serving
fifteen to twenty years. Working closely with Republican State
Representative Barbara Dobb, FAMM crafted a bill with safeguards to
insure that the key players in the drug trade serve the longest
sentences. The movement for this very modest reform legislation helped
build a strong grassroots base capable of other lobbying efforts--such
as the campaign FAMM has initiated to eliminate harsh presumptive
mandatory sentences for lesser drug offenses and consecutive mandatory
sentences.

In Connecticut, a lively grassroots movement for drug law reform,
engaging individuals and organizations from across the political
spectrum, has launched campaigns to reserve scarce prison space for
violent offenders and prevent the spread of drug-related HIV. By the
end of the 1999 legislative session, the state General Assembly had
expanded the availability of needle exchange, broadened insurance
coverage for substance abuse and increased parole eligibility for
people convicted of nonviolent crimes who received mandatory-minimum
sentences. (Despite the co-sponsorship of thirty state legislators, an
amendment to eliminate the sentencing disparity between powder and
crack cocaine never came to a vote.)

Yet at the state level, too, even the most promising reform movements
face formidable obstacles. In New York, where the Rockefeller drug
laws are among the most draconian in the nation--possession of four
ounces (or selling two) of any illegal narcotic commands fifteen years
to life--the campaign for reform seemed to pick up speed after Court
of Appeals Chief Judge Judith Kaye criticized the laws during her
annual State of the Judiciary address. The state's burgeoning prison
population (almost one-third of the 70,000 in prison are drug
offenders) has also helped create a climate for change. The drug laws
are now under fire from a broad bipartisan coalition, under the
leadership of former State Senator John Dunne, that includes some of
the Republicans who enacted the laws in 1973 as well as the state's
Roman Catholic bishops. The state legislature considered proposals to
reduce the number of drug-law offenders in prison, shorten sentences
for drug-law offenses and restore judicial discretion in sentencing.
Yet Governor George Pataki refused to entertain a major overhaul of
the Rockefeller laws, instead proposing his own package of minimal
reforms, which in turn have come under fire by prominent Democrats.

Democratic resistance to drug law reform is not unusual and suggests
that Democrats might not be the best agents of change in this area.
Just as it required a staunch anti-Communist like Nixon to open the
doors to "Red" China, it may well take a Republican with impeccable
law-and-order credentials to bring sanity to the debate on crime and
punishment. Once in office such a politician could permit a serious
review of our nation's drug policies without fearing devastating
political consequences. GOP front-runner George W. Bush certainly
won't fill this role, as he boasts a record of some of the nation's
most punitive drug law enforcement in Texas at the same time that he
dodges questions about his partying days. A politician with nothing to
hide--or one like New Mexico's Republican Governor Gary Johnson,
willing to be honest about past drug use and advocate that drug policy
be brought into line with reality--is more likely to challenge
successfully the many injustices of our nation's war on drugs.

Note:
Carol A. Bergman served as the director of legislative affairs for the
Office of National Drug Control Policy, Executive Office of the
President (1994-97) and as associate counsel to the Committee on
Government Operations, US House of Representatives (1989-94) for
Representative John Conyers. Currently she is the director of
legislative affairs for the Research and Policy Reform Center, Inc.