Just say ‘failure’

The second-floor offices of Sacramento’s Harm Reduction Services are marked by two bullet holes. Both from small-caliber weapons, the first took out a small ring of plastic from the accordion connecting the air-conditioning unit to the wall. The second went through the glass of a nearby window.

Located in the heart of Oak Park, on the corner of 12th Avenue and 40th Street in a somewhat rickety old wooden building that used to serve as the surgery center for a local doctor, Harm Reduction Services is, says 55-year-old executive director Peter Simpson somewhat matter-of-factly, on one of the most violent blocks in the city’s most violent zip code: 95817. In this part of the city, like in so many other impoverished communities nationwide, serious drug use, and the violence that accompanies the underground sale of narcotics, is epidemic. It remains epidemic despite decades of War-on-Drug policies and vast amounts of money spent in an attempt to curb the nation’s appetite for illicit substances.

The philosophy of harm reduction essentially takes it as a given that users are a part of life today. From there, it looks to work on solutions that reduce the impact of everyday drug use; in the ultimate analysis, harm reduction serves to limit the body count and reduce the fiscal cost to the taxpayer.

Simpson’s organization works with local users to try to mitigate the health consequences of their actions, providing AIDS testing, giving out educational materials and so on. Other harm-reduction advocates support maintaining heroin addicts with methadone or the newly developed buprenorphine. And some proponents now urge the distribution of Narcan and Naloxon, two drugs developed to counter the effects of heroin overdoses, to addicts, so they can intervene and save lives when users ingest impure drugs or simply put too much into their system.

Taking the theory a few steps further, some analysts also have begun looking at how best to neutralize violent gangs’ control over drug markets and distribution, perhaps through wholesale decriminalization and the creation of legal, regulated and taxable drug markets.

Still, others have begun seeking ways for states to restore access to welfare for drug felons—access cut off in the 1990s as federal politicians looked to shore up their tough-on-crime credentials—as a way to limit homelessness and minimize the spiral back into criminal activity.

The problem is all of this is intensely politically charged. In other words, while it may be good policy, it’s seen to be extremely poor politics. Not to mince words, people are scared to talk about these big-picture changes: County Supervisor Roger Dickinson waited a month to return calls for this article and then failed to follow through with scheduling a time to be interviewed. Former Assemblywoman Jackie Goldberg’s and Assemblyman Mark Leno’s offices didn’t make time for interviews, even though both politicians are known to favor reform of key drug-war policies. After a month of procrastination, spokespeople for the Department of Alcohol and Drug Programs decided not to comment.

During the election campaign, neither gubernatorial candidate acknowledged that a change in the state’s approach to drugs might be necessary to curb runaway prison growth—although, in the aftermath of the election, talk has accelerated about the creation of a sentencing commission to look at some of the prison terms handed down to criminal offenders. And it was likely because of the political risks involved in proposing radical reforms around the sanctions attached to drug usage that, in the run-up to the election, Governor Schwarzenegger vetoed a bill that would have restored Temporary Assistance for Needy Families benefits to ex-drug felons.

“The issue is we need to get people off of intravenous drugs, period,” says Sacramento Police Sgt. Jerry Camous, president of the city’s Police Officers Association. “That’s the hard part. Do whatever it takes to get them off, and quite frankly that’s often through punishment. You still have the underlying problem that people are chasing that high. Incarceration may be a key motivator, or the avoidance of incarceration may be a key motivator [for addicts] to seek that help. Addictive behavior has got to change.”

Toward harm reduction
Nevertheless, despite law enforcement’s reluctance to move away from punishment-based anti-drug strategies, the arguments moving municipal authorities, if not state and federal agencies, toward at least a partial harm-reduction approach are increasingly compelling. A decade ago, the city’s health department estimated that as many as 15,000 people a day in the greater Sacramento area were intravenous drug users. Since then, no large-scale studies have been conducted, so any newer numbers are largely guess work.

But Simpson, himself a one-time substance abuser—his drugs of choice were alcohol and meth—believes that if these numbers ever were updated, researchers would find even more users, of an ever-greater variety of substances, today than in 1996. In an era plagued by AIDS and rampant hepatitis-C infection rates, that raises a whole bunch of uncomfortable health-related questions for the region.

At least in part because of guestimates such as Simpson’s, in recent months the City Council has moved toward legalizing needle-exchange programs within city limits, formalizing a process that has gone on in the shadows for several years and, along with San Francisco, Berkeley, and San Luis Obispo, bringing the city to the fore of drug-policy reform in the state. Assuming it passes—and there is broad agreement that it will—within a few months groups such as Simpson’s will be permitted to set up exchange systems through which addicts may trade in dirty needles for an equivalent number of clean ones.

Complementing this, the council also has voted to opt into a statewide law, SB 1159—signed by Governor Schwarzenegger after being vetoed by governors Wilson and Davis—giving cities the right to allow pharmacies within their boundaries to sell needles over-the-counter.

“We’re trying to control some of the illnesses that come from [drug usage],” explains Councilwoman Sandy Sheedy, one of the most outspoken proponents of the changes. “I don’t know if you’re going to ever clean up drugs, but you can make it safer for the communities around the people using the drugs and their families.”

Absent needle-exchange programs, Sheedy fears increased levels of HIV/AIDS, higher rates of hepatitis-C and a greater prevalence of other blood-borne diseases. “With needle-exchange programs, at least we’re trying. The people who live in the communities where drugs are prevalent are the ones saying, ‘We have to do something about this.’ Needle exchange is part of a continuum. To take the needle and exchange it, at that point you’re able to talk. You’re able to communicate and to educate.”

Yet, while Sacramento’s police department kept silent during the policy debates around these changes—largely sitting on its reservations about the effectiveness of the program when it comes to getting dirty needles off the streets and thus essentially signaling tacit consent for the principles behind the reforms—according to Sheedy and others, the county sheriff’s department is still strongly opposed to such programs. (A spokesperson for the Sheriff’s Department declined to comment on the specific debate around needle exchange.)

And therein lies the rub: Lacking federal reform of Drug War policies that have failed to end America’s drug problem, many states have begun going out alone in pursuit of change. Yet, too many politicians at a state level fear appearing soft on crime, and so all-too-often they pass weak legislation allowing cities to create their own systems around, say, needle exchange, while not imposing uniformity statewide. As a result, a user in Sacramento soon might be able to buy or exchange needles within the city limits quite legally; yet, if they then drive back to their home outside the city limits, they could be arrested by sheriffs’ deputies on paraphernalia charges.

Moralistic, classist enforcement
For more than 30 years, state and federal governments have vied with each other to create an ever-more enforcement-oriented War on Drugs. From New York’s Governor Nelson Rockefeller pushing for lifetime mandatory sentences for certain categories of drug dealers in the early 1970s to federal-sentencing laws and the increasing amounts of money channeled into the prosecution and incarceration of drug offenders, strategies have essentially been based around the “Just Say No” rhetoric, combined with extreme punishment measures when people instead said “Yes.”

Instead of viewing drugs as a public-health issue, first and foremost they have been viewed as a moral scourge, their usage not just socially undesirable but sinful. And, from within this framing device, responses have been crafted accordingly.

“It’s not logic. It’s morals,” Harm Reduction Services’ Simpson argues. “It’s moralistic. ‘I’m going to tell other people what not to do.’ It’s the difference between morals and ethics. Ethics are internal and self-driven. It combines so many high-ticket emotional elements: ‘Protect our kids. The drug users are evil people piece of it. They’re robbing us and endangering us and are scary people.’ Then you have the moral issue: ‘It’s not OK to use drugs.’ And the classist bullshit that goes with it.

“It’s this mishmash of all these different, non-rational bullshits that people roll up together into this Nancy Reagan ‘Just Say No’ message,” Simpson continues. “It doesn’t work. It’s doomed to failure.”

In a sense, the country has spent a huge amount of time, energy and financial resources re-creating the worst collateral consequences that Prohibition generated in the 1920s and early 1930s: increasingly powerful, and vicious, criminal cartels; the siphoning of money into ineffective law enforcement; the creating of conditions in which political and law-enforcement-agency corruption would almost inevitably flourish; the nurturing of a public-health menace fueled by the street sales of impure or poisonous produce that has been manufactured with no regulatory oversight, hit the streets.

Arguably, however, the collateral effects of the War on Drugs are even worse than those accompanying Prohibition. At least in the 1920s, alcohol users weren’t, wholesale, arrested, given felony records and, often at immense cost, then incarcerated for years at a stretch. At least in the 1920s the country didn’t end up with millions of men and women behind bars and hundreds of thousands of children with parents incarcerated for nonviolent, arguably victimless crimes.

Look for explanations for the nation’s booming prison population, and drug policy always figures full-center. As the War on Drugs has developed, more Americans have been arrested for drug crimes, more are prosecuted, more are sentenced to prison and the prison terms themselves have become longer. At the back end, as more and more addicts return to their communities, they are prevented from accessing many jobs and most forms of welfare. All too often they are busted back into the criminal-justice system after submitting dirty urine to parole officers or drug-treatment providers.

“It’s a whole societal issue that people tend to put off on law enforcement,” says Sgt. Tim Curran, spokesman for the Sacramento County sheriff. “But we can’t solve or cure it on our own. Law enforcement is not going to solve the problem. It’s a Band-Aid. So we do need social programs that help prevent the problem.”

California’s prison system now holds more than 170,000 inmates. The state spends about $9 billion per year maintaining its correctional apparatus. Its prisons are filled to nearly twice their intended capacity. The governor recently declared a system-wide emergency and began shipping inmates out to private prisons in other states. And, in the coming months, there is a considerable likelihood that the courts are going to impose a population cap on the system because of the dangers of overcrowding.

Why? Well, in large part because, despite falling crime rates over much of the past 12 years, more and more people are being incarcerated because of drugs or drug-related crimes. Of the 65,000 people booked in Sacramento County’s main jail each year, Curran estimates that about 85 percent of them are drunk, high or otherwise under the influence when they are arrested.

Lacking a voice, drug users make an extremely easy political target. In the 1990s and early 2000s, governors Wilson and Davis both staunchly opposed relaxing the state’s no-nonsense penalties for drug-related crimes. More recently, former state Senator Charles Poochigian, defeated in his bid to become attorney general, even went so far as to propose further jacking-up the prison terms for drug criminals.

Nationally, the Center on Juvenile and Criminal Justice, using numbers generated by the Bureau of Justice Statistics, estimates that by the early years of the 21st century, more than 450,000 people were behind bars on drug charges. The Bureau itself reports that while 38,541 people were sent to prison for drug crimes in 1986, by 1996 that number had increased to 148,092. And the trajectory on this continues to be upward-pointing. By 2003, 37 percent of all charges filed in federal court were drug-related.

“The drug wars have been a giant crime-creation program,” argues Dale Gieringer, California coordinator of the National Organization for the Reform of Marijuana Laws. “Twenty-two percent of all arrests in California are for drug offenses that didn’t even exist in my grandparents’ generation.” (Up until the early 20th century, Gieringer explains, the sale of drugs in the United States was almost entirely unregulated, and hence many users were able to live relatively normal lives without repeatedly bouncing into the criminal justice system.)

By any rational measure, the War on Drugs has been one of America’s greatest domestic policy failures. It has singularly failed to stop the usage of traditional narcotics such as heroin and cocaine, in the same way as Prohibition utterly failed to curb alcohol consumption; to prevent the emergence of new epidemics around methamphetamine, OxyContin, ecstasy and other designer drugs; and to significantly reduce the numbers of young people willing to serve as drug mules and street dealers.

Meanwhile, its body count and cost—financially, with the country now spending tens of billions of dollars a year on coercive anti-drug efforts, and morally—puts it on a par with a failed, and increasingly bloody, military intervention overseas such as that currently playing out in Iraq.

“Despite the major efforts of the drug wars—the $80 billion a year—drug use has continued unabated,” says epidemiologist Rachel Anderson, executive director of the Sacramento-based Safer Alternatives thru Networking & Education. “Everyone knows someone who uses drugs.”

Decriminalization creates strange bedfellows
Recognizing this, in recent years an increasing number of commentators, public-health experts and even politicians have been willing to step outside the box on this issue and critique the underpinnings of the War on Drugs. Many critics are political progressives, children of the 1960s who themselves dabbled with drugs, or African-American spokespeople concerned about the racial impact the war has had. But a surprisingly large number of these individuals are from the right of the political spectrum: The critics now range from NORML all the way to the Committee To Regulate and Control Marijuana, a Republican-dominated group that sponsored the marijuana-legalization initiative in Nevada that got 44 percent of the vote in November.

The late monetarist economist Milton Friedman was on record supporting drug decriminalization. Ex-Secretary of State George Shultz favors a similar approach, as does one-time New Mexico Governor Gary Johnson, who concluded that wholesale decriminalization would remove a huge pool of money from organized crime and would significantly boost tax revenues for the state, allowing it to reinvest the money in tested anti-addiction and public-health programs. In California, Tom McClintock, a fiscal conservative with libertarian leanings, has shown some sympathy to these arguments, earning distinction as one of the only Republican legislators to vote in favor of medical marijuana.

Yet, the innovation policy-wise is not coming from the federal level, which remains stubbornly wedded to traditional search, seizure, prosecution and incarceration strategies, but rather from states and cities. States like New York, Michigan, Louisiana and Connecticut all have significantly modified their mandatory-sentencing laws. And electorates in cities such as Denver have urged their municipal authorities to stand down when it comes to enforcing anti-marijuana codes.

Where does California, the most heavily populated state in the union and historically one of the most schizophrenic when it comes to drug policy, fit into all of this? After all, some of the most liberal, but also some of the most conservative, drug- and criminal-justice policies originate here. In fact, despite much-touted reforms in recent years, such as the passage of Proposition 36, by many measures the state is one of the harshest in the country when it comes to the enforcing of anti-drug laws.

By 1999, 132 per hundred-thousand of the state’s residents were in prison on drug convictions, and over a quarter of a million Californians were being arrested annually on drug charges. According to an analysis of state numbers by the Center for Juvenile and Criminal Justice, before the treatment-oriented provisions of Proposition 36 kicked in more than half of the state’s drug prisoners were serving sentences for possession.

“In California,” says psychiatrist Dr. Peter Banys, one-time president of the California Society of Addiction Medicine and currently in charge of the San Francisco-based Methadone Access program, “there is a debate, not a particularly light-producing debate, but it produces a lot of smoke. It’s a debate between the incarceration industry and the treatment industry. The treaters don’t want to be seen as legalizers, and the criminal justice people, this is feeding their pipeline. When the majority of people arrested in the state are for drugs, you’ve got to keep your crops growing. It’s about crops and crop rotation. We now arrest more people for possession than for drug sales or manufacture.”

In other words, everybody who wants to be taken seriously prefaces their arguments by saying “of course drugs are bad and should remain illegal. … And here’s how we think our solution works better …” Few are willing to say something to the effect of, “The current system’s underpinnings no longer make sense. Why not let the market sort this one out? If drugs are bad, most people won’t take them—and those who do, well, they’ll take them whether they’re legal or not, so why not take the punishment component out of anti-drug policy and move toward a more aggressively treatment-based system?”

California has one of the most progressive medical-marijuana laws in the country, putting it at odds with the federal government and making it “head and shoulders above everyone else” on the issue, according to Ethan Nadelmann, executive director of the New York-based Drug Policy Alliance. But at the same time, it has a three-strikes law on the books that has put many prisoners away for life on third-strike drug-possession crimes that, in and of themselves, hardly merit attention.

Similarly, voters enacted Proposition 36, which channeled tens of thousands of drug criminals into treatment rather than prison. Yet at the same time sheriffs in conservative counties still arrest two-bit users on paraphernalia charges and district attorneys, supported by police associations, have launched a concerted effort to undermine Proposition 36.

“Prop. 36 basically made a mockery out of the criminal-justice system,” Sgt. Camous asserts. “People are arrested for various levels of controlled-substance possession and the DA’s office reduces [the charges] because of Prop. 36 and puts them into diversion. I don’t have the statistics, but I’d say most of the diversion efforts fail.”

In the same schizoid vein, the state has deprioritized pot possession, making it a ticketable misdemeanor offense. State Senator Gloria Romero’s SB 797, supported by other elected legislators like Goldberg and Leno, who have spoken out in favor of redefining drug policy as a public-health rather than criminal-justice issue, would have lowered it still further, to an infraction.

Still, young gangbangers can be arrested and processed into the system for smoking pot in public, the arrest giving law enforcement probable cause, or at least pretext, to search homes, persons and cars in pursuit of evidence of more serious crimes. (In other words, pot is a gateway drug, not, in this context, to harder drugs, but to law enforcement looking for evidence of more serious criminal activity.)

As a result, despite all the reforms in this arena, the Drug Policy Alliance estimates there are 60,000 marijuana arrests per year in the state, one-third of which involve African Americans. NORML has calculated that about 1,400 people in the state are actually serving prison terms on pot convictions, up from a mere 100 in 1980.

Cities and counties are allowed to opt into a law allowing pharmacies to sell needles over the counter, and they also are allowed to create their own mini needle-exchange programs. But there is no statewide policy on this, leading to a jurisdictional chaos. Similarly, individual schools can choose to use alternative anti-drug education systems to that of DARE. Some high schools in Oakland, for example, recently have brought in a non-coercive, peer-education-based program called UpFront. Yet, the default assumption remains that most drug education, like religious-based sex education, will be abstinence-based, firmly on the DARE model.

A more rational drug policy
For the harm-reduction advocates in town, their presence looming large in public-health circles but failing to impact significant numbers of legislators, the slowness of change is infinitely frustrating.

How would Simpson devise a more rational drug policy for the city and state? “I would acknowledge that most people who use drugs are going to keep doing it. Even if there was treatment on demand, most of those who are daily drug users today are still going to be users tomorrow because sobriety happens rarely. So, all of the policies have to be based on the fact we have a drug-using population that’s going to continue to use.”

Instead of mandating people behave in a certain way, Simpson believes a more effective strategy would be to ask the following question: “How can your life be more functional?”

Perhaps, ultimately, that’s the most sensible question that any drug-policy crafter can ask. Less utopian than the dream of absolute prohibition, but pragmatically more effective, the question leads to a host of policies and programs that, in a rational world, would shape policy in this arena over the coming decades.

That’s where Sacramento seems to be heading with needle exchange. It is where, ultimately, legislators in the Capitol ought to head as they continue to debate statewide reforms and continue to ponder how to deal with the problems plaguing the state’s oversized, underperforming prison system.

“I don’t know if we win the war on drugs,” Councilwoman Sheedy says, sitting in her fifth-floor office in City Hall. “But we must find a way to make sure public health is taken care of.”