A Drug War Truce?

Obama's new drug czar says the administration won't legalize pot — but pressure for real reform is growing

Illustration by Victor Juhasz
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Looking at the headlines, you might get the impression that America is approaching a cease-fire in the War on Drugs. After four decades of mindless prohibition and draconian prison sentences for addicts and casual users, the first four months of the Obama era have seen a rapid turn toward rationality. The administration has announced that it will no longer bust clinics that legally dispense medical marijuana, and incoming drug czar Gil Kerlikowske declared flatly in May that he had "ended the War on Drugs." Prominent politicians from Virginia to California — including Sen. Jim Webb and Gov. Arnold Schwarzenegger — have begun to discuss the merits of legalizing and taxing marijuana. And most striking of all, New York — the state that pioneered the use of prison cells for drug addicts — has repealed its repressive Rockefeller drug laws, replacing the nation's harshest sentences with a progressive approach to treatment. "We put a stop to 35 years of bad policy," Gov. David Paterson tells Rolling Stone.

The Case for Obama

The pace of change has shocked even the most optimistic drug-reform advocates. "I could never have predicted the way things have opened up in the last four months," says Ethan Nadelmann, the founder and executive director of the Drug Policy Alliance. "We haven't had an open and honest conversation about drugs like this on a national level since the 1970s."

This article appeared in the June 25, 2009 issue of Rolling Stone. The issue is available in the online archive.

But while states like California and New York are challenging the fundamentals of prohibition and punishment that have governed America's drug policy since the Nixon era, the Obama administration is largely staying the course. The president, who has blasted the drug war as an "utter failure," has nonetheless delegated oversight of drug policy to one of the chief architects of that failure: Vice President Joe Biden, who coined the term "drug czar" and steered the passage of the nation's harsh drug sentences as the ranking Democrat on the Senate Judiciary Committee. Far from scaling back funding for drug interdiction and law enforcement, the administration's 2010 budget increases the levels established under George W. Bush. And despite the growing bipartisan discussion among state leaders about decriminalizing marijuana, Kerlikowske tells Rolling Stone that legalization is not up for debate "under any circumstances."

Just Say Now

"There's an urgent need to end this mistaken drug war," says Kevin Zeese, head of Common Sense for Drug Policy. "This is just an example of an administration that says one thing and does another."

Political pressure to end the War on Drugs is building in surprising quarters. In recent months, three distinct rationales have converged to convince a growing number of politicians — including many on the center-right — to seriously consider the benefits of legalizing marijuana.

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For Webb, a Democrat from Virginia who served as secretary of the Navy under President Reagan, it's a crisis of incarceration. "Incarcerated drug offenders have soared 1,200 percent since 1980," the senator says. "Yet the illegal-drug industry and the flow of drugs have remained undiminished." For Schwarzenegger, who says it is "time for a debate" about legalization, it's a crisis of cost: A bill in the California legislature to legalize and tax cannabis — the state's largest cash crop — would provide more than $1 billion annually to balance the state's busted budget. And for Terry Goddard, the attorney general of Arizona, it's a crisis of violence: With Baghdad levels of bloodshed raging in Tijuana and other border towns, legalization would deprive Mexican cartels of as much as 65 percent of their illegal income. "Much of the carnage in Mexico is financed because of profits from marijuana," Goddard told reporters in April. Last month, a Zogby poll that presented all three rationales found, for the first time ever, that a majority of Americans — 52 percent — say they support decriminalizing marijuana.

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Legalization is also backed by a growing number of veteran drug warriors. "The War on Drugs is a constantly expanding and self-perpetuating policy disaster," says Jack Cole, a former undercover narcotics agent who now serves as president of a group called Law Enforcement Against Prohibition, which includes hundreds of former drug agents, police officers and judges. "If all drugs were legal and regulated we could have exactly the same demand for drugs in the U.S., but there wouldn't be any killings. Mexico's 7,500 deaths since the beginning of last year — all those murders just wouldn't exist."

Barack Obama, for his part, entered the presidency as the most outspoken advocate for drug reform since Jimmy Carter, who campaigned for marijuana legalization in 1976. As recently as 2004, Obama declared that it was time to "rethink and decriminalize our marijuana laws." On a personal level, the president has admitted not only to enjoying cannabis ("When I was a kid, I inhaled," he joked on the campaign trail. "Frequently. That was the point") but also to partaking in "blow" when he could afford it. Once in office, Obama moved swiftly to soften the tenor of the War on Drugs. Attorney General Eric Holder, during his first major press conference, announced that the Drug Enforcement Administration will no longer raid medical marijuana dispensaries that comply with state law.

"There were two striking things about that," says Mark Kleiman, who directs the study of drug policy at UCLA. "One was that the administration thought that they could get away with it. And the other is that they did! There was no outcry, or even an attempt at an outcry. The administration clearly thinks that being 'soft on drugs' is no longer a political vulnerability. And it looks like they're right."

Yet despite this sudden outbreak of sanity, rumors of the drug war's death are greatly exaggerated. Visitors to the drug czar's office in Washington — formally known as the Office of National Drug Control Policy — are greeted by the visage of Uncle Sam on a poster declaring, WE ARE AT WAR. ARE YOU DOING ALL YOU CAN?

The ONDCP occupies a warren of offices on the eighth floor of a soulless commercial office complex above a McDonald's, just up the street from the Eisenhower Executive Office Building. The offices themselves look as though Dwight Schrute spent an afternoon trying to dress up the Scranton branch of Dunder Mifflin to approximate CIA headquarters: In the secure waiting room, under a low-drop ceiling and the hum of fluorescent lights, a presidential seal the size of a dinner plate has been tacked to the wall above a forlorn plastic plant.

Gil Kerlikowske's appointment as drug czar has cheered reform advocates. As the police chief of Seattle, Kerlikowske honored a city law that called for possession of marijuana to be the lowest possible priority for law enforcement — even going so far as to permit partygoers at the city's annual "Hempfest" to smoke up with impunity. "When we talk about medical marijuana, needle exchange and harm reduction, we're not talking an alien language to him," says Nadelmann.

Kerlikowske — whose previous Washington experience includes a stint in the Justice Department as director of "community-oriented policing" under Bill Clinton — is a gruff man with an outsize head and a five o'clock shadow that gives even his broadest smiles the undercurrent of a snarl. When it comes to the impact of drug policy at the neighborhood level, he speaks with the easy, streetwise authority of a cop who spent 36 years in law enforcement. Yet when faced with questions about national drug policy, he can turn as evasive as Sarah Palin without a teleprompter. Does the tripling of marijuana arrests since 1990 represent good policy? He'd like to look at the issue more closely. Would the feds respect the laws of states that vote to legalize marijuana consumption for adults? A great question, he says — but one he won't venture to answer. Does the U.S. experience with Plan Colombia provide a template for dealing with the violent cartels in Mexico? He just doesn't know. "After three weeks, I'm still finding my way around the office," he says with a laugh.

Despite his short tenure, Kerlikowske is clear on one thing. Any discussion of legalization of marijuana is off the table. "It's not in the president's agenda under any circumstances," he says. "It's certainly not in mine."

When I press Kerlikowske on his recent statements about "ending" the drug war, he tells me that he was referring to the rhetoric. "It's hard for people to understand that it's a war on product and not on people," he says. The war metaphor, he adds, also discourages people from thinking about alternative solutions to America's appetite for illegal drugs. "If we continue to use 'war' after 40 years, it limits our tools to deal with it," he says. "Most people see the only effective tool in a 'war' is force."

His plan, Kerlikowske says, is to incorporate cost-effective programs for prevention and treatment of drug abuse to create a balanced, scientifically rigorous, economically sane approach to reducing American drug consumption and global drug traffic. "The next set of programs needs to be comprehensive — breaking down the silos that exist between treatment programs, prevention programs and the criminal-justice system," he says.

But even Bob Barr, the former GOP anti-drug hard-liner who now opposes the War on Drugs, questions whether the administration's "change in rhetoric is really going to have some meaning where the rubber meets the road — that is, with a reallocation of monies for the drug effort." An examination of the president's budget for 2010 suggests that the answer is no. Fulfilling a pair of campaign promises, Obama's budget more than doubles funding for drug courts that divert nonviolent offenders from prison into treatment, and provides $30 million to treat drug-addicted offenders who return to their communities. But taken together these two programs account for barely one half of one percent of ONDCP's $15 billion budget.

Overall, Obama's drug-control budget looks like the previous Bush budget on cruise control: Interdiction scores a bigger boost in funding than treatment. Funding for education and outreach programs designed to prevent the use of drugs, meanwhile, actually decreases. "It's more of the same," says Nadelmann. Despite Obama's campaign promise to allow federal funding for needle-exchange programs that prevent HIV transmission among heroin addicts, his budget continues to bar it. According to Kerlikowske, the president wants to "work through the Congress to gather support for the program."

Kerlikowske would not comment on funding priorities going forward, citing the ongoing development of the president's drug strategy. But he emphasizes that any new funding for treatment will not detract from the long-standing approach of cracking down on those who sell and use drugs. "If additional programs are created in the treatment and prevention area, it will not be at the expense of source-country eradication or law enforcement," he says. "This isn't an either-or proposition." The shift to less bellicose language, meanwhile, will have no impact on the Justice Department. "We're going to enforce the laws on the books," says Assistant Attorney General Lanny Breuer, who heads the DOJ's criminal division. "I don't really care if we call it a war or not a war."

The disconnect between the administration's rhetoric and its funding priorities is less surprising when you consider whom Obama has put in charge of America's drug strategy. Under Bush, the drug czar was a Cabinet official with a direct line to the president. But under Obama, Kerlikowske and the ONDCP are overseen by the vice president's office. Kerlikowske tells me that it was Biden who tapped him for the post. And it was Biden who appeared with Kerlikowske in front of reporters announcing his nomination. The drug czar feels confident that he has "the president's ear" — although he concedes that he has had only one, brief meeting with the president. But he knows who's running the show: "The person who has the most intimate, detailed knowledge on this issue — who authored the legislation and has stayed on top of this — is clearly the vice president."

Since the early years of Ronald Reagan, Biden has been the Democratic Party's most committed drug warrior. "If there's anything you don't like about the drug war, it probably goes back to Joe Biden," says Zeese, the reform advocate. As the top Democrat on the Senate Judiciary Committee in the 1980s, Biden steered passage of laws requiring "mandatory minimum" prison sentences for drug crimes — including the wildly disparate sentencing for crimes that mandate harsher sentences for crack use than for cocaine in its powdered form. Biden was also a pivotal force in creating the Office of National Drug Control Policy and sponsored the notorious RAVE Act, which levels criminal sanctions against concert venues for the drug use of their patrons.

While Biden's oversight at ONDCP appears likely to forestall true reform of the War on Drugs, the vice president at least appears committed to reversing one of the worst excesses he helped create: the 100-to-1 sentencing disparity for drug users caught with crack versus powder cocaine. Under current federal law, possessing five grams of crack with a street value of $350 is subject to a minimum sentence of five years — the same penalty that applies to carrying a half-kilo of powder worth $37,000. More than 80 percent of crack offenders behind bars are black. Testifying before Congress in May, Assistant Attorney General Breuer urged lawmakers to make prison sentences for crack use the same as those for cocaine, saying the racial disparity "deteriorates public confidence in our justice system."

Sen. Jim Webb has proposed going even further, calling for a federal commission to conduct a top-to-bottom review of the nation's sentencing laws. Drug-policy reformers see the commission — which has attracted bipartisan support with its broad, politically palatable focus on criminal justice — as a means for truly ending the War on Drugs. "The steep increase of people in prison is driven by changes in drug policy and tougher sentencing, and not necessarily an increase in crime," Webb says. "We need to treat drug addiction — and to separate drug addiction from prison environments to the extent that we can."

New York has taken the lead in sentencing reform, rolling back the Rockefeller drug laws that helped launch the nation's prison boom. Passed in 1973 following a rash of property crime during New York's heroin epidemic, the Rockefeller laws shifted the approach to addiction from public health to punishment, mandating sentences for possession of small quantities of drugs that rivaled those for second-degree murder: 15 years to life. Under the new reforms, judges now have leeway to steer even repeat offenders into rehab rather than prison. The state is also using federal-stimulus money to establish a system of drug courts and treatment programs — an investment that New York authorities believe will save the state $250 million a year in incarceration costs. "We're replacing incarceration with treatment," says Gov. Paterson.

The governor, who has rarely spoken publicly about his personal views on drug use, says he believes that marijuana causes less harm than alcohol. "You can really document what the excesses of alcohol have done on the roadways of our country, and you can't really do that with marijuana," he says. But asked whether he could support legalization of the drug, Paterson backs off a little. "I don't know if I would want to support the legalization of marijuana," he says. "But I'd certainly be open to a conversation on the subject."

That's a stunning admission by a sitting governor — one that indicates just how far the debate over drug policy has shifted in recent months. "It's time, obviously, to force the conversation," says Tom Ammiano, the California-assembly member who introduced a state measure this spring to tax and legalize pot. The bill has drawn support from some on the right, who believe that decriminalizing marijuana will actually increase the state's control over who has access to the drug. "It's easier for children to get marijuana than alcohol," says Jim Gray, a retired Republican-appointed judge from conservative Orange County. "Why? Because alcohol is controlled by the government, and marijuana is controlled by illegal drug dealers who don't ask for ID. We've got this huge, colossal bureaucracy to fight the War on Drugs — to keep drugs away from our children — and it is absolutely having the opposite effect."

Far from ignoring the issue, Gov. Schwarzenegger has encouraged an active debate on the proposal, calling for a major study to examine the benefits of legalization. In the end, he conceded recently, the issue will likely be decided at the ballot box. "It could very well go on an initiative one day and ask voters directly," Schwarzenegger said. And then he said something extraordinary. Something no politician, let alone a Republican, could have gotten away with a year ago.

"If voters make that decision," the governor said, "that's fine."

From The Archives Issue 1081: June 25, 2009
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