Disturbing Report Makes Compelling Case For Decriminalizing Drug Possession

A reminder that the drug war is an ongoing catastrophe.

 Ryan J. Reilly & Nick Wing

WASHINGTON ― Criminalizing the personal use and possession of drugs results in “devastating harm,” and states and the federal government need to decriminalize such low-level offenses, according to a new report released Wednesday by Human Rights Watch and the American Civil Liberties Union.

Police are making more arrests for drug possession than any other crime, the report said. With more than 1.25 million such arrests each year, someone gets busted for drug possession in the U.S. every 25 seconds. For every person arrested for selling drugs in 2015, four were arrested for possessing or using drugs. Nearly half of all of these arrests are for marijuana alone, and last year, police booked more people for small-time weed charges than for murder, non-negligent manslaughter, rape, robbery and aggravated assault combined.

This enforcement strategy isn’t paying off, the report finds. Rates of drug use across the U.S. have not decreased in decades, despite widespread criminalization. To address this problem, the report recommends that policymakers instead focus on prevention, education and harm reduction.

Tess Borden, the principal author of the report, spent a year visiting with people jailed on drug possession charges, as well as prosecutors and other key players in the system. She focused on the states of Louisiana, Texas, Florida and New York. 

“We’re seeing on the one hand the heavy hand of the law coming down aggressively on drug possession, and on the other side of the scales of justice, these sometimes literally weightless amounts of drugs,” Borden said in an interview. “I was really shocked by that, the wastefulness of it all.”

As The Huffington Post has been reporting, hundreds of people die in jail each year, including dozens who were being held pretrial on drug possession charges alone. 

One broke and bedridden stroke victim, charged with smoking marijuana in his own home, died after a month in jail because he couldn’t come up with about $100 for a bail bond. As of last month, a jail in Norfolk, Virginia, was holding 86 people on marijuana possession alone, which would work out to a cost of roughly $1.84 million per year just in that city.

The report explores a number of disturbing practices employed at all levels of the criminal justice system. These tactics begin with police, who often face arrest quotas or are otherwise incentivized to make as many arrests as possible, leading them to prioritize minor drug arrests, which are easier to obtain than targeting other crimes.

The report documents numerous examples of police resorting to questionable searches and seizures, using threats and intimidation, taking advantage of suspects who don’t know their rights, or simply violating people’s rights during interactions. These enforcement efforts tend to be disproportionately centered on communities of color, causing significant damage to public trust and community relations.

The report also details the aggressive tactics many prosecutors employ to extract lengthy prison sentences for simple drug possession. These include a coercive plea bargaining process, in which prosecutors will charge defendants as harshly as possible in hopes that they’ll plead guilty to lesser charges. This keeps prosecutors from having to litigate cases, but it also ends up sending people to prison for tiny amount of drugs ― sometimes as little as fractions of a gram. In other cases, it can lead to wrongful convictions.

Then, there’s the sheer weight of criminal justice debt piled onto people guilty of nothing more than possessing drugs for personal use. This includes the cost of making bail, court-imposed fines, fees and other legal costs. 

Drug charges often lead to loss of employment or further job opportunities, as well the stripping of public benefits or the destruction of family ties. Alternatives to incarceration like probation also come with extreme conditions ― like frequent meetings at far-off locations during work hours ― leaving many defendants to feel that they’re set up to fail and may be better off serving jail time.

Borden said one of the interviews that stuck with her the most was her discussion with a woman who was locked up because she was allegedly found with 0.01 grams of heroin residue inside of an empty baggie.

“She was talking to me about how it was going to make sense for her to plead guilty, because she needed to go home to her little kids,” Borden said. “But this would be her first felony conviction, and even aside from the punishment of being incarcerated for a handful of months after pleading, the punishment would follow her for the rest of her life.”  

The woman was going to school and getting a degree in business administration, but would have to drop out because she would no longer get financial aid. She would no longer qualify for food stamps. She could no longer have her name on a lease. It would be tough for her to get a job with a felony on her record.

Borden said that while decriminalizing all personal drug possession may strike some as too big of a change, it’s the only way to get off of the path the United States has been on for the past several decades.

“There’s a fear that decriminalization would encourage drug use,” Borden said. “To be quite clear, our call for decriminalization is not encouraging or condoning drug use. We’re very explicitly saying that decriminalization needs to be paired with stronger investment in public health.”

Borden said authorities would still have a variety of ways to regulate use of public space, just as they do with alcohol. “We’re not saying that people who harm others and people who put others at risk cannot be prosecuted as appropriate by the state,” Borden said. If someone drives under the influence or puts their children in danger, for example, there are other laws that can be used, she said. 

But right now, she said, incarceration for personal drug possession is something that has become far too normalized in United States, with little thought to the long-term impact it can have on individuals and their families.

“We’re all, unfortunately, really used to the idea of incarceration,” she said. “But even after the period of incarceration is completed, the fact that people are feeling punished for the rest of their lives, it’s really terrible and it’s really disproportionate.”