Democrats Are Racing to Look Progressive on Drugs

High Wire is Maia Szalavitz's reported opinion column on drugs and drug policy.

If I’d somehow time-traveled from the late 1980s to find myself tuned in to the Democratic presidential debates this summer—setting aside the bewilderment I’d experience upon learning that Donald Trump is president—I’d still think I was in bizarro world.

One candidate says we should pay formerly incarcerated people to stay out of prison; others argue that we need to reduce mass incarceration and treat people who use drugs rather than lock them up, and all but one wants to completely legalize marijuana.

It’s hard to imagine how much of a mirror image the recent debates are for those of us who came of age back then. But the change reflects an enormous shift in public sentiment that bodes well for drug policy in 2020 and beyond.

“It’s close to a 180 on drug policy in terms of change from the 1990s, most dramatically so in response to marijuana, where nobody even contemplated talking about decriminalization or medical marijuana and now you have almost all the candidates supporting full legalization of adult use and sale,” said Ethan Nadelmann, founder of the Drug Policy Alliance and its executive director from 2000 to 2017.

“It used to be that looking soft on drugs was the third rail of politics and now the polarity of that rail has shifted,” said Sanho Tree, director of drug policy at the Institute for Policy Studies and also a long-term observer of the field.

“It’s a time when people have had enough of failed policies,” added Queen Adesuyi, policy coordinator for Drug Policy Action.

In 1992, Bill Clinton felt he had to play down his own marijuana use (“I didn’t inhale”) in order to make clear he stood firm against drugs, including the devil weed. And Joe Biden—the only candidate who doesn’t favor complete legalization—was an enthusiastic anti-drug general for decades, not merely a compliant recruit.

Take his 1989 reaction to President George H.W. Bush’s special White House address calling for an intensification of the law enforcement assault on crack cocaine.

“Quite frankly, the president’s plan is not tough enough,” Biden said, giving the Democrats’ official response to Bush on the issue, adding “The president said he wants to wage a war on drugs. But if that’s true, what we need is another D-Day, not another Vietnam; not another limited war fought on the cheap and destined for stalemate and human tragedy.”

In other words, the problem with the Republicans’ drug policy wasn’t that it was locking up too many people—but too few.

In those days, Democrats and Republicans literally competed by amping up drug sentences and other penalties like property forfeiture and student loan, housing, and welfare benefit limits. Even at the time, the absurdity was obvious. Describing the 1986 crime bill that resulted from a bipartisan frenzy of one-upmanship on lengthening sentences and building prisons, Democratic Rep. Dave McCurdy of Oklahoma said that the bill was “out of control, but of course, I’m for it.”

Rep. Barney Frank (D-MA) was even more scathing, calling it the legislative equivalent of the drug it was intended to stop: “It yields a short-term high but does long-term damage to the system. And it’s expensive, to boot.” (These two quotes can be found in Dan Baum’s still-indispensable history of the drug war, Smoke and Mirrors).

Biden probably still can’t imagine why he’s being attacked now for what he did back then, which went far beyond words and into legislation like the 1986 crime bill and the several successors he also supported that helped spur mass incarceration. But two of his opponents—Elizabeth Warren and Bernie Sanders—have just announced their support for overdose prevention sites, which are essentially safe havens for people to take drugs under medical supervision in order to avoid fatalities and reduce harm.

A law Biden wrote—the so-called “crackhouse” statute—is being used by Trump’s attorney general in an attempt to bar such facilities. This 1986 legislation, which was intended to give police and prosecutors a way to criminalize landlords who allowed open drug use and sales, makes it a federal crime to “knowingly open, lease, rent, use or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing or using any controlled substance.”

In February, U.S. Attorney William McSwain sued Safehouse—a Philadelphia nonprofit seeking to establish an overdose prevention site, with the backing of local health officials and politicians—in order to stop it from opening. McSwain’s argument relied on the language of the crackhouse law—despite the fact that it focused on drug dealers creating a public hazard rather than public health officials trying to save lives.

Indeed, similar sites now operate in at least 66 cities in countries including Switzerland, Canada, Australia, Germany, Luxembourg, the Netherlands, Spain, Denmark, Norway, and France. A review of 75 published studies found that they not only reduce death rates from overdoses and disease, but also decrease public injecting and improperly discarded needles. They don’t reduce treatment admissions—in fact, they increase the likelihood that people will seek help for addiction. Most strikingly, even though millions of injections have taken place at these sites, there have been zero reported deaths.

A hearing in August allowed Philadelphia advocates and experts to present some of this data as well as to explain the practicalities of the program they intend to operate.

Safehouse has precedent in its favor. During the 1990s, dozens of cases against people who ran illegal needle exchange programs in states that criminalized syringe possession relied on a public health “necessity” defense. The defendants—who overwhelmingly won these cases—argued that in a public health emergency, saving lives must take precedence over criminal law.

The current political response to overdose prevention sites is a sharp contrast to that which faced needle exchange. In 1989, Senator Jesse Helms won passage of a law that banned funding for these programs unless they could be proven to not to increase drug use while they prevented AIDS. Although such proof existed by 1998 and President Clinton had said he would lift the ban, at the last minute, he chickened out, after being warned by his drug czar that he would look soft on drugs.

Now, however, we have two of the leading Democratic candidates expressing their support for overdose prevention sites (which always include syringe distribution as well) and at least five cities and one state fighting to be the first to open one.

“What we are seeing is the results of relentless and dedicated advocacy and organizing efforts,” said Adesuyi, noting that one factor in the change was the recent shift to seeing addiction as a “white” problem, not just one affecting people of color.

“That’s changed the tune that elected officials are willing to dance to,” she said, “Because they feel more accountable to those communities. As advocates, our job is to leverage current momentum to ensure that all people impacted by overdose have safe access to resources that will help keep them alive.”

Experts agree that in the current political climate, favoring kinder, more practical drug policy is not a liability. “It really helps to have people like AOC and the Squad float these issues and show that they won’t be struck by lightning,” Tree said.

“Politicians tend to be herd animals,” he adds, “The herd is now on the move and stragglers tend to get eaten. They may not want to be the first mover, but it’s in their interest to move with the herd.”

Nadelmann agrees, but notes that times when people see drug issues as health problems tend to be short-lived—in contrast with the political usefulness of generating fear about drugs and crime.

We have gotten to a point where the public is aware that drug laws have been made for racist reasons and used for political gain—and where these facts were even mentioned by Cory Booker on live television during the debates. But we need to keep the pressure on whoever becomes the Democratic nominee to ensure a future of healthier and more humane policy.

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