Editor’s Note: Today’s post comes from contributing editor Brooks Hudson, a PhD student in history at Southern Illinois University.
Defunding the police triumphed at the polls, even if we do not call it that. And it was bipartisan. By defunding, I mean Washington D.C. voting to decriminalize psilocybin, Oregon voters approving two landmark reform measures—Measure 109, which legalized psilocybin therapies, and Measure 110, decriminalizing personal possession of all drugs–as well as the four states that legalize recreational cannabis (New Jersey, Arizona, South Dakota, and Montana, along with Mississippi which passed medical cannabis). These are significant reforms and reveal a couple of things.
First, the Oregon measure recognizes a fundamental reality in American life: drug use is already decriminalized and legal for wealthy people. Second, there is no separation between recreational and medical drug use, other than more affluent, whiter segments of the population receive prescriptions from doctors, and poor people do not. Finally, one interpretation is that voters are coming to understand arresting people for drug possession does not help individuals, improve public safety, or provide obvious benefits to anyone. Instead, it controls poor people in a society that, unlike its peer nations, fails to provide essential services, whether it is healthcare, housing, medical care, paid leave. The only service the poor receive comes through the criminal punishment system. Let’s touch on all these points.
Wealthier people already enjoy drug use without fear of criminal penalties. For instance, politicians, executives, entrepreneurs, and the most privileged enclaves of elite society (Wall Street, Silicon Valley, the Ivy League) consume drugs. It is not some hidden fact, but well-publicized in the country’s largest papers. Just like there is a two-tier justice system, there is also a two-tier drug-taking system. The way it works is through inaction. The DEA will never raid Facebook, Goldman Sachs, or Senate cloakrooms searching for drugs. Police will never set up a stop-and-frisk infrastructure targeting students from Harvard or Yale. As Chris Arnade, a former Wall Street alum who now documents the lives of the most impoverished, summed it up this way: “The wealthy make mistakes, the poor go to jail.”
Culturally, we accept wealthier people are entitled to self-medicate, to use drugs recreationally. When they take drugs “recreationally,” it is characterized as quirky, idiosyncratic, and justified as making them more productive. This is not allowed when the poor do it. When the poor use drugs, the media reinforces how filthy, vermin-like, and subhuman they are. If law enforcement were interested in crippling the drug trade, they would probably concentrate on dismantling how the largest financial institutions help to move cartel money, but they do not. An under-covered story missed because of the election was the release of FinCEN files, which showed big banks aiding criminal organizations, occasionally receiving modest fines in return.
Wyden is correct in saying that “we now have two systems of law enforcement and justice in the country,” and only the poor and powerless will be penalized under the system.
Class, of course, is one issue, but so is how we think about what constitutes medical and recreational use, which comes down to the difference between drugs and medicine. David Herzberg raises many of these questions in his excellent new book, White Market Drugs. He points out, “The distinction between “medicines” and “drugs” is central to the way Americans think about, regulate, sell, and use psychoactive substances. Both law and custom are designed to promote access to medicines while prohibiting use of drugs.” “In theory,” he writes “at least, the medical is simple to define: use that heals rather than harms.”
These artificial divisions create absurd distinctions like recreational versus medical cannabis, or “medical” alcohol during prohibition. This means white, upper-class segments of society can obtain a prescription for things like Oxycontin, Adderall, Klonopin, Ambien, Xanax for mental health. Everyone else is shut out. The New York Times provided a graph based on income bracket and prescriptions for “mental health” medications, which shows exactly that.
From a criminal justice perspective, these votes might suggest people are realizing arresting anyone for drug possession does not improve public health or safety, nor is it cost-effective. The most obvious evidence for why law enforcement and drug arrests are not about public health is obvious: jails and prisons are terrible for people’s health, not to mention people die from lack of medical treatment in carceral facilities. This is even more true during the COVID pandemic, where people charged with drug possession are dying.
The first prisoner to die during the pandemic was Patrick Estell Jones, serving twenty-seven years for selling half of an ounce of crack-cocaine—laws written by the current president-elect. Others included Fidel Torres, 62, who died while serving 18 years for marijuana charges. Atilano Dominguez, an 80-year-old man, was saved from death but against the federal government’s wishes, arguing his life sentence was just “one more way to perish in prison.”
The Oregon decriminalization measure allows people that violate the law to pay either a $100 fine or receive treatment. Most people that use drugs do not need treatment or punishment. And the people that need treatment do not find it in our current criminal punishment system, which is why people routinely die from a lack of medical treatment while incarcerated. Last year, the U.S. First Circuit Court in Boston ordered that a jail in rural Maine must provide an inmate with medication-assisted treatment; otherwise, it would constitute cruel and unusual punishment. Presently, most jails and prisons across the country forbid methadone and a newer medication, buprenorphine, even when prescribed.
There has been little pushback to these reforms. The only real opposition seems to come from Kevin Sabet, who runs an organization called Smart Approaches to Marijuana. Sabet claims he does not believe people should go to jail for drugs but believes in drug court—even though 95,000 people a year end up going to jail for failing to pay a fine or because they miss an appointment, break curfew, or use drugs and alcohol. This is a terrible solution. It allows judges rather than medical professionals to determine the course of an individual’s treatment. People in these programs must, as a matter of course, be brainwashed, adopt the ideas and values of the 12-steps program in most cases, and accept they “are an addict,” and if they do not, they are declared to be in “denial.” Oddly enough, while Sabet says his main concern is treatment, there is no indication he supports what would be the most logical way to do that: guaranteeing it to everyone, through a Medicare for All system, where treatment would be free at the point of service or nominal to everyone in the country.
Of course, none of these measures solve the lack of a robust social safety net. From the comment sections of an article Nicholas Kristof left readers by readers, they seem to be mad that drugs will no longer be a pretext to arrest people. There are plenty of angry comments about the Oregon vote will lead to homeless people shooting drugs. Nowhere do they suggest adopting programs like in Finland, providing housing for the unhoused unconditionally, connecting them to services like mental health, education, or other kinds of training.
The other concern people seem to have is so-called “hard drugs,” which is not really something that exists except in the public imagination. People cite meth or fentanyl. There is an answer to that. Set up something like the Swiss system where people can come in and take pharmaceutically pure morphine supervised by a physician; “methamphetamine” already exists, under the same Desoxyn, that could be prescribed as a substitute or a generic amphetamine. Those are all better alternatives but would require larger structure reform. Are larger structural reforms likely? Not at the national level. The incoming Biden administration believes anyone caught with drugs should face mandatory drug court. For the foreseeable future, statewide reforms may be the only game in town.
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