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A New Era for U.S. Drug Policy?

This story was written by Ken Millstone as part of a special report on the evolving debate over marijuana legalization in the U.S. Click here for more of the series, Marijuana Nation: The New War Over Weed.

Ethan Nadelmann is feeling good. Really good.

As the founder and executive director of the Drug Policy Alliance, Nadelmann has long advocated for the liberalization of U.S. drug laws -- specifically, making marijuana legal, regulated and taxed and ending criminal penalties on the possession and use of all other drugs.

For most of that time the Alliance has been relegated to the fringe of serious policy discussions, a space long occupied - or so the stereotype goes - by radical libertarians and readers of the marijuana enthusiast magazine High Times.

But things are changing. The last few months are "the first time I've ever felt that the wind is at my back and not in my face," Nadelmann said. "There's a tremendous amount of momentum across the board."

Consider the developments of the last year. In March, Virginia Sen. Jim Webb introduced a bill calling for a wholesale overhaul of the criminal justice system in the United States. Our system is cripplingly large, he argued, and marred by wrongful incarcerations, poor rehabilitative treatment and mental health care and a price tag of $44 billion a year on prisons alone.

Webb called the situation a "national disgrace," and said the elephant in the room is sky-high incarceration rates for drug users due to the U.S.'s 40-year-old War on Drugs.

California, the first state to make marijuana legal for medical use, is considering a bill to legalize and tax marijuana for all residents; it had its first hearing in the state assembly last week. Massachusetts voted to decriminalize small amounts of marijuana. The attorney general of Arizona has said that legal marijuana might be an answer to the Mexican drug cartel violence spilling over into his state.

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And a Gallup poll released last month shows that support for national marijuana legalization has climbed steadily since the early 1980s, recently hitting an all-time high of 44 percent.

"That is the most extraordinary poll result as I have seen in all my years working in this," Nadelmann said. "We haven't changed our position, but we are basically more and more part of the mainstream discussion." He likens the situation to movements like gay rights and civil rights that made rapid strides in relatively short periods.

"We're getting awfully close to something that looks a lot like a tipping point," he said. Special Report: Marijuana Nation

The recent reform push hasn't been limited to the United States, either. In August, Mexico, with little fanfare, passed a bill decriminalizing the possession and use of small amounts of all narcotics, including marijuana, cocaine, heroin and methamphetamines. The U.S. - in what drug reform advocates see as a promising sign - made no criticism of the change. (The George W. Bush administration persuaded then Mexican President Vicente Fox not to sign an identical measure in 2006.) Argentina has passed its own decriminalization bill and Brazil and Ecuador are considering similar measures.

None of this means that liberalizing drug laws in the United States is going to be easy for Nadelmann and his allies. Webb's bill, which is being heard Thursday in the Senate Judiciary Committee, has amassed 34 Senate co-sponsors - including Republicans Lindsey Graham and Olympia Snowe - and drawn broad support from justice advocacy groups.

But according to Webb spokeswoman Jessica Smith, "Twenty-one amendments have been filed in Judiciary that speak to our bill. They're largely from the Republicans [and] I imagine a large amount of them are going to be about drug policy. ... They don't want to go home and say 'I'm legalizing drugs.'"

Charles Grassley, R-Iowa, offered an amendment explicitly forbidding any recommendations that even discuss drug decriminalization or legalization.

To be clear, Webb's bill does not call for drug legalization or even focus on drug policy exclusively. Instead, it would appoint a bipartisan, blue-ribbon commission to make recommendations on reforming the criminal justice system as a whole.

"We have 5 percent of the world's population. We have 25 percent of the world's known prison population," Webb said when he introduced the bill. "We have an incarceration rate in the United States - the world's greatest democracy - that is five times as high as the incarceration rate of the rest of the world."

"There's only two possibilities here," he continued. "Either we have the most evil people on earth living in the United States or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice."

Webb's bill calls for a hard look at drug policy with all options on the table. He has talked about "overincarceration" and the "criminalization" of drugs - phrases that have been taboo until now in mainstream drug policy discussions. One talking point: the United States had 41,000 drug offenders in prison in 1980. Now the number is more than half a million - a 1,200 percent increase. And many of those are non-violent offenders jailed only for possession.

"We can't have a debate about our criminal justice system if we just ignore the drug part of it," Smith said and the goal of the bill is to dispassionately consider all options for reform. "States across the country - their budgets are being completely eaten up by incarceration. ... Is it effective? Is it cost effective? Are we doing the right thing here when we lock people up?"

Left: Webb

In the early 1970s, Richard Nixon appointed a former Republican governor, Raymond Shafer, to lead a similar commission to examine marijuana. The commission's report recommended the decriminalization of personal use and questioned the constitutionality of harshly criminal marijuana policy generally.

Nixon repudiated the recommendations, but the commission's findings were no aberration, according to Nadelmann.

"The same thing happens almost every time," he said. "If you actually set up a commission that is truly independent ... inevitably they come up with recommendations that favor significant reform."

Portugal: A Case Study

In 2001, Portugal decriminalized not just marijuana but all drugs - heroin, cocaine, methamphetamine. Drug use has held steady overall, but declined in several key demographics, including teenagers. Drug-related crime plummeted. So did overdoses and HIV from needle use.

Last year, the libertarian-leaning Cato Institute sent the writer Glenn Greenwald to Portugal to report on the country's experience in the nearly eight years since decriminalization.

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Greenwald, a former attorney who blogs at, is best known for his liberal positions on civil liberties, torture, and the Bush administration. He said he has never written about drug policy before and went to gather empirical evidence on Portugal's outcomes. (Greenwald lives in Brazil and speaks fluent Portuguese.) The result was a strongly positive 30-page report published by Cato in April.

"In the 1990s they probably had the single worst problem with drug abuse and related pathologies of any country in Europe. Crime was through the roof," Greenwald said in an interview in September. "They felt like they had a huge crisis on their hands ... The more they criminalized the worse it got."Portugal - focusing only on drug policy - did essentially what Webb is proposing: it assembled a non-partisan commission of experts to make recommendations on alleviating the rampant drug problem. The only option not considered - because Portugal concluded it would violate treaty obligations - was full-scale drug legalization. The result was complete drug decriminalization.

Here's the difference. Drug use and possession are still against the law in Portugal, but they do not carry criminal penalties. They are considered administrative offenses - like parking tickets - and are punishable by fines or mandatory treatment. Even those penalties are rarely handed out. Police who catch drug users issue them citations calling them before a three-person "dissuasion commission," which usually consists of a health worker, a judge or lawyer, and one other official. The commission considers whether the subject is a first-time or frequent user and offers treatment options. (In 2005, 83 percent cases ended with a suspension of proceedings - no penalty imposed.)

The whole process takes place outside the realm of criminal law - no arrests, courts, probation or criminal records. Drug trafficking - as well as furnishing drugs to a minor - remain criminal offenses. Greenwald reports:

Since decriminalization, lifetime prevalence rates (which measure how many people have consumed a particular drug or drugs over the course of their lifetime) in Portugal have decreased for various age groups. For students in the 7th-9th grades (13-15 years old), the rate decreased from 14.1 percent in 2001 to 10.6 percent in 2006. For those in the 10th-12th grades (16-18 years old), the lifetime prevalence rate, which increased from 14.1 percent in 1995 to 27.6 percent in 2001, the year of decriminalization, has decreased subsequent to decriminalization, to 21.6 percent in 2006.
Other age groups saw increases: lifetime prevalence among 20- to 24-year olds rose about 9 percent.

The Other Side

Calvina Fay, executive director of the Drug Free America Foundation calls the Portugal evidence misleading.

"Everything always starts off that American drug policy is a failed policy," she said. "It's a false premise. ... If you look at the drug trends since 2001, we have reduced in this country illicit drug use in all categories by 25 percent. That's not a failure."

Fay pointed to Monitoring the Future a government-backed study of U.S. 8th-, 10th- and 12th-graders showing that youth drug use has fallen further in the U.S. than in Portugal since Portugal's decriminalization.

Drug use and HIV rates have also fallen worldwide since Portugal's decriminalization, she said, raising the question, "Would they have had a bigger drop in those things had they not decriminalized drugs?"

Fay added that for nearly 40 years, youth drug use in the U.S. has correlated closely to perception of harm.

"Part of the perception of harm is tied in to the fact that they are illegal," she said. "When a government says, 'We're going to decriminalize it. We're going to it normal. People can use it,' kids get the idea that well this might not be so harmful."

Joseph Califano, who heads the National Center on Addiction and Substance Abuse at Columbia University, agrees that children and teenagers are the most important demographic when it comes to curbing drug abuse. But he says that drug war has indeed failed, mainly because it hasn't focused on keeping kids away from drugs before they become users.

When Nixon coined the term "War on Drugs" in 1969, "60 percent of the money was spent for prevention and treatment and 40 percent for interdiction," Califano said. "We've totally flipped that. I think the emphasis we've had on the use of these funds is wrong. There's no question in my mind that we should be spending more money on prevention and more money on treatment."

That approach tracks with Webb's bill - and with Portugal's emphasis on harm reduction. But Califano says it doesn't mean decriminalizing.

"We have two legal drugs in the United States of America" - alcohol and tobacco - "and the use of those drugs among kids dwarfs the use of any other drugs," he said. "I think just opening the door and legalizing drugs is just going to create more drug use."

As for marijuana, Califano says that teenagers in the U.S. are typically confronted by police 9 to 15 times before facing any consequences - a situation that Portugal's lenient approach does little to address.

Heroin was the crux of Portugal's drug crisis in the 1990s and drug decriminalization has helped move addicts into treatments like methadone while reducing HIV and AIDS rates. Marijuana use appears to have increased modestly, but remains low compared to other countries.

For the period from 2001-2005, the proportion of the general population (age 15-24) in Portugal who had ever used marijuana was the lowest among E.U. nations - about 9 percent. Denmark, the U.K, and France had the highest rates - 25 to 30 percent. The Netherlands, with its famously liberal drug policies, was in the middle of the pack.

Greenwald stresses that Portugal's approach has been purely utilitarian - not some grand ideological experiment.

"Portugal is a very socially conservative society. The Catholic church exerts enormous influence. They are very conservative on issues like abortion and gay rights." he said. "Decriminalization wasn't based on ideological notion that people should be able to use drugs."

Nadelmann points out that Portugal's experience provides evidence for a broad trend, documented in Peter Reuter and Robert J. MacCoun's 2001 book Drug War Heresies - that, in Nadelmann's words "fluctuations in the rate of drug use by and large have no correlation to how harsh the drug policies are." There are countries with harsh laws and high drug use and those with liberal laws and low drug use. In the Netherlands, the rate of marijuana use has risen and fallen pretty much in tandem with the rate in Europe as a whole - a rate far lower than in the United States.

That suggests that whatever one's ideological views on drugs, the public policy question is one of resource allocation. Tight budgets mean state and local law enforcement agencies have to choose between aggressive enforcement (and imprisonment) and harm reduction approaches like Portugal's. (Nadelmann points out that it was budget constraints that sealed the demise of New York's harsh Rockefeller drug laws.)

"The tougher we get with regard to marijuana prosecution ... the softer we get with the prosecution of everything else," said retired Orange County, California judge Jim Gray in testimony on the California legalization bill. "We simply have so many resources and if we're spending them in prosecutions of marijuana, we are not spending them for prosecutions of rape, homicide et cetera."

Coming Up Thursday and Friday on Read a point-counterpoint on marijuana legalization featuring retired judge and author Jim Gray and the Drug Free America Foundation's David Evans.

The Bottom Line

Despite some evidence that harsh criminalization of drug use hasn't worked, most conversations about liberalizing drug laws are over before they begin.

Portugal's case is important, Greenwald says, because it provides hard evidence that removes the debate from the realm of speculation.

"If you're the first state to do it, there's really no way you can point to evidence of what will or will not happen. ... It's just theory and it's very abstract," he said. "The more examples that arise and the more that you can prove that the sky doesn't fall in," he said, the more politically feasible drug liberalization will become in the U.S.

So far, Portugal has largely flown under the radar, even in drug policy circles. But Greenwald says that, six months after his paper was released, he's getting more invitations than ever to present it. In August, New York Times columnist Nick Kristof cited it in a column praising Webb's reform push.

"There's no political upside except that I think one could argue that it's a ripe opportunity to do it," Smith, Webb's spokeswoman, said. "People, I think, get it that we're spending so much money on criminal justice and they don't feel safer."

Webb is "not doing this for political reasons. There's definitely a risk involved," she said. "He knows that there are gambles."

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