The War on Drugs Is Burning Out

Leading at the ballot box from Alaska to Washington, D.C., Americans are charting a path to a saner national drug policy

Americans are finally charting a path to a saner national drug policy. Credit: Illustration by Victor Juhasz

The conservative wave of 2014 featured an unlikely, progressive undercurrent: In two states, plus the nation's capital, Americans voted convincingly to pull the plug on marijuana prohibition. Even more striking were the results in California, where voters overwhelmingly passed one of the broadest sentencing reforms in the nation, de-felonizing possession of hard drugs. One week later, New York Mayor Bill de Blasio and the NYPD announced an end to arrests for marijuana possession. It's all part of the most significant story in American drug policy since the passage of the 21st Amendment legalized alcohol in 1933: The people of this country are leading a dramatic de-escalation in the War on Drugs. 

November's election results have teed up pot prohibition as a potent campaign issue for 2016. Notwithstanding the House GOP's contested effort to preserve pot prohibition in D.C., the flowering of the marijuana-legalization movement is creating space for a more rational and humane approach to adjudicating users of harder drugs, both on the state level and federally. "The door is open to reconsidering all of our drug laws," says Alison Holcomb, who led the pot-legalization push in Washington state in 2012, and has been tapped to direct the ACLU's new campaign against mass incarceration.

On the federal stage, the Justice Department continues to provide what Ethan Nadelmann, director of the Drug Policy Alliance, calls "a discreet form of leadership" on state experiments in drug reform – giving tax-and-regulate marijuana laws broad latitude, and even declaring that Native American tribal governments can also experiment with marijuana law, opening a path for recreational pot on reservations in, potentially, dozens of states. Congress, in the same legislation that sought to derail D.C. legalization, carved out historic protections from federal prosecution for state-legal medical-marijuana operations. And in November, in a signature reform for outgoing Attorney General Eric Holder, the Obama administration lightened prison sentences for federal drug offenders. This reform, modest on its face, nonetheless marks a striking- departure from three decades of ever-harsher federal enforcement. For the first time since Ronald Reagan took office, the federal prison population is shrinking. "We are witnessing a historic sea change," Holder said in a speech this fall, "in the way our nation approaches these issues."

The trajectory of the citizen-led drawdown of the Drug War is clearest in California – where four years ago the pot-legalization movement's biggest stumble, ironically, helped clear a path for one of the anti-Drug War movement's most transformational successes this past November. 

Pushing the envelope back in 2010, California activists qualified a ballot initiative to legalize recreational marijuana. At the time, Holder warned the Justice Department would "vigorously enforce" federal marijuana prohibition in California. Eager to pre-empt a constitutional crisis over fully legal weed, then-governor Arnold Schwarzenegger steered passage of a half-measure – an October 2010 law decriminalizing marijuana use.

The Governator's gambit worked. Decriminalization helped take the wind out of the sails of the legalization campaign, which failed at the ballot box. But having spurred the legislature to action, pot activists indirectly scored a huge victory for criminal and racial justice. Possession of up to an ounce of marijuana became an infraction, like a parking ticket, with a maximum $100 fine. And the California law applied to users of any age – not just tokers 21 and over.

The impact of this tweak has been remarkable: By removing low-level youth pot offenses from the criminal-justice system, overall youth crime has plummeted by nearly 30 percent in California – to levels not seen since the Eisenhower administration. And decriminalization didn't lead to any of the harms foretold by prohibitionists. Quite the opposite: Since the law passed in 2010, the rate of both high school dropouts and youth drug overdoses are down by 20 percent, according to a new research report from the Center on Juvenile and Criminal Justice. Non--marijuana drug arrests for California youth, meanwhile, are also down 23 percent – fully debunking the gateway theory.

Decriminalization in California, the report concludes, has reduced the harms of prohibition for thousands of California teens. "Fewer young people," its authors write, "are suffering the damages and costs of criminal arrest, prosecution, incarceration, fines, loss of federal aid and other punishments." Perhaps most important, the Darren Wilsons of California have one less pretext to disrupt the lives of the state's Michael Browns. 

In November – building on the success of decriminalization and on public disgust at the state's criminally overcrowded and ruinously expensive prison system – California voters took an even bolder leap with Proposition 47, which reduced possession of hard drugs including cocaine, heroin and meth from a felony to a misdemeanor. (Prop 47 also de-felonized nonviolent theft of less than $950.)

In a year of record-low voter turnout, Prop 47 passed with 59 percent support, thanks in part to endorsements from nationally prominent Republicans like Rand Paul and Newt Gingrich. The new law is expected to affect 24,000 drug convictions a year. And the reduction in the ranks of the incarcerated will create savings, the state estimates, in the "low hundreds of millions of dollars annually." Innovatively, Prop 47 captures those savings and steers them into community programs. "This is the first voter initiative to literally take money out of the prison budget and put it into prevention and treatment," says Lenore Anderson, executive director of Californians for Safety and Justice, which spearheaded the campaign for Proposition 47.

The new law also allows current convicts to petition to get their sentences- reduced retroactively. In the cases of some convicts under California's notorious "Three Strikes" laws, this will mean the difference between a continued life sentence and freedom. Additionally, as many as 1 million Californians will qualify to have felony records expunged – removing what Anderson calls the "Scarlet- F" from their chests – opening doors to fuller integration in society, with fewer obstacles to getting a job, finding an apartment or enrolling in public assistance. 

"We're not only stopping overincarceration," Anderson says. "We're also going to clean up its legacy."

As California moves dramatically, the federal government is taking more modest steps to stem a tide that has swollen the number of federal inmates imprisoned for drug crimes by more than 2,000 percent since 1980. In 2013, 100,026 inmates – roughly the population of Boulder, Colorado – languished in federal prison for drug crimes, accounting for half the federal prison population.

Under federal law, sentences are doled out according to a complex formula in which a given quantity of a trafficked drug is punishable at one of 38 levels of increasing severity. Under sentencing reforms that took effect in November, Holder's Justice Department has stepped down those sentences by two degrees. Someone convicted for trafficking five grams of meth, for example, will now be sentenced at level 24 instead of 26 – a maximum of 63 months, instead of the previous 78 – knocking more than a year off the sentence.

The Justice Department is also making these sentencing guidelines retroactive. Beginning in November 2015, more than 46,000 federal inmates can appeal to shorten their prison terms, with the average beneficiary receiving a two-year reduction. The move is expected to save taxpayers more than $2 billion.

Federal drug sentencing remains draconian: Locking a person in a cage for five years for possessing five grams of an intoxicant is not a rational policy. But the Holder reforms may signal that the flood of Drug War incarceration has reached its high-water mark. For the first time in 34 years, the federal inmate population is falling, down 4,800 in the past year. By 2016, a drop of 12,200 is projected – equivalent to more than six federal prisons filled to capacity.

Holder, who will be leaving office upon the confirmation of his successor, views this as a legacy issue. "For far too long," he said in a September speech focused on the harms created by the Drug War, "our system has perpetuated a destructive cycle of poverty, criminality and incarceration that has trapped countless people and weakened entire communities – particularly communities of color. . . . We are bringing about a paradigm shift."

In fact, the federal government is moving into political space created by voters, most recently in November's election. Top drug reformers had been wary about putting marijuana initiatives on midterm election ballots – worried that younger, pot-friendly voters might stay home, dealing the anti-Drug War movement a costly setback. "The midterm electorate in 2014 represented a wave of anti-progressive, pro-conservative voters," says the ACLU's Holcomb. Voters under 30 comprised just 12 percent of the national electorate, while voters over 60 – seniors are the one demographic that strongly opposes legalization – made up a whopping 37 percent. Nonetheless, each legalization measure passed, easily. In red-state Alaska, 53 percent endorsed legal pot. In Oregon, the tally was 56 percent – 35,000 more votes than any statewide elected official received. In Washington, D.C., legalization romped with 65 percent of the vote, carrying 142 out of the city's 143 precincts. 

In substance and salesmanship, Alaska's pot proposal, Measure 2, was much like Colorado's – seeking to "regulate marijuana like alcohol." The campaign's backers led with a pot-is-safer message because alcoholism looms large as a destructive force in Alaskan life, particularly among the state's tribal populations.

Measure 2 faced opposition from political heavyweights like former Republican senator and governor Frank Murkowski. But the "no" campaign stumbled when a spokesperson conceded in a debate that pot is, indeed, less harmful than booze – a point the "yes" campaign seized on, plastering stickers reading our opponents agree! on billboards touting cannabis as safer than wine, beer or whiskey.

Beginning in mid-February, it will become legal for anyone over 21 to possess, transport or give away up to an ounce of pot in Alaska. Measure 2 expands the oversight powers of the Alcoholic Beverage Control Board to regulate marijuana from seed to store, but the law gives ample lead time to state authorities to license pot shops, and commercial sales aren't expected until mid-2016.

Pot in Alaska will be taxed at $50 an ounce, at the wholesale level, padding the state's general fund. By the time the market matures, Alaska expects to reap about $24 million a year in pot revenue.

In Oregon, meanwhile, taxation and regulation were marketed with a stronger criminal-justice bent. Proponents highlighted not only the wasted law enforcement resources of arresting and citing 12,000 people a year for marijuana – a bust every 39 minutes – but also the racial inequities in a state where people of color make up less than a quarter of the population but are twice as likely to be arrested for pot.

"There are lots of good arguments for [pot] legalization," Says Burnett. "But the argument that enforcement is racially biased is undeniable."

Oregon's new law is more far-reaching- than other states, and Nadelmann has lauded it as "the new gold standard." Beginning in July, Oregon residents can legally possess up to eight ounces – that's right, half a pound – of marijuana. Oregonians can grow at home; commercial sales will be overseen by the same state agency that regulates liquor sales, and retail outlets are expected to open in 2016. In an overture to more conservative communities in eastern Oregon, the measure also legalized hemp as a new cash crop.

Aiming to compete with the black market on price alone, taxes in Oregon will be significantly lower than across the Columbia River in Washington. That state taxes pot at 25 percent three different times – at wholesale, at distribution and at retail. Oregon will charge a single tax of $35 an ounce, levied on producers. Forty percent of this new weed revenue goes to schools, 25 percent to abuse prevention and treatment, with the remaining 35 percent funding state, county and local law enforcement. Localities can vote to ban marijuana commerce, but at the cost of cutting themselves off from this new revenue stream. The measure is expected to raise close to $40 million a year.

D.C.'s campaign took a strikingly different approach. By law, the initiative process couldn't be used to create a new tax regime there. Without new revenues to tout, the capital's campaigners almost exclusively emphasized the racial disparities of marijuana enforcement, with the slogan "Legalization Ends Discrimination."

A 2013 ACLU report showed that D.C. was second only to Iowa in the racial disparity of marijuana enforcement – with blacks eight times more likely than whites to be arrested for pot; this in a city where blacks make up half the population. In March 2014, the D.C. city council responded by passing a sweeping decriminalization bill, making up to an ounce of pot punishable by just a $25 fine. But it quickly became apparent that, even so, racial bias persisted, with black residents accounting for nearly two-thirds of those cited. 

"There are lots of good arguments for legalization," says Dr. Malik Burnett, a top organizer of D.C.'s legalization campaign. "You can argue that it's safer than alcohol, or that regulation helps keep it out of the hands of kids. But the argument that enforcement is racially biased? That's undeniable!"

In no small irony, the greatest resistance to legalization was centered in the black community itself – where conservative elements, in particular churches, remained wary of condoning pot use. But working through African-American religious leaders and community groups, legalization campaigners swung support in the black community from just 33 percent in early polling to 63 percent at the ballot box. On Election Day, the racial and criminal-justice argument cut across color lines. "Both blacks and whites, when asked why they voted for the initiative, said the racial-justice argument was the number one reason they voted in favor," says Nadelmann.

In December, the House GOP attempted to block D.C.'s legalization through the appropriations process, denying funding to the district to "enact" marijuana legislation at odds with federal law. But anti-prohibition forces believe this legislative language still provides a path forward – on legalization that they argue was already enacted by voters. The spending bill "does not block D.C. from 'carrying out' enacted marijuana policies," said Eleanor Holmes Norton, D.C.'s congresswoman. District lawmakers are now blocked from creating new laws to tax and regulate commercial pot, as they had intended. But it may yet become legal, in the coming months, to stroll down Pennsylvania Avenue with two ounces of marijuana in your pocket, or to grow up to six plants in an apartment a stone's throw from the drug czar's office.

Citizen-led criminal-justice reform is already having an effect outside of the states where voters put the issue on the ballot. California's de-felonization model is taking root in the West – even in deep-red strongholds. In the days after the November election, Utah unveiled a proposal to reclassify most drug-possession felonies as misdemeanors, and to try small-fry dealers, particularly those selling drugs to support their own habits, under lesser felonies. "We are not in any way going soft on crime," said state Rep. Eric Hutchings, a Republican member of the justice commission that recommended the reform. "We are going smart on crime."

And in New York, Mayor de Blasio has finally followed through on his campaign commitment to stop arresting residents for pot possession. Pilloried for statistics showing marijuana busts had actually increased under his tenure, de Blasio announced in November that public marijuana possession will now be punished with a court summons and a $100 fine.

That's a dramatic improvement in a city where 28,000 residents were arrested for weed last year – 86 percent of them black or Hispanic – wasting nearly $75 million in taxpayer funds to adjudicate. But top drug reformers warn that New York's system is far from fixed. Unlike an open-container violation, a ticket for pot possession can't be resolved by paying a fine by mail. Violations require a court appearance – and historically, about 25 percent of residents don't show up for their court dates, resulting in a bench warrant for their arrest. Worse, police do not collect racial data when issuing citations, making future disparities harder to track. "There's still a sneaky, insidious aspect to the de Blasio reform," says Nadelmann.

For opponents of the Drug War, prospects are bright for 2016. Any rational examination of the experiments in Washington and Colorado leads to one conclusion, says Holcomb of the ACLU: "The sky didn't fall." In Colorado, legal pot has brought in close to $19 million in tax revenue – and few other discernible changes. Harvard professor Jeffrey Miron, the director of economic studies at the Cato Institute, released a working paper in October revealing that essentially none of the harms opponents claimed would accompany legalization have materialized. Even pot use itself in Colorado has hardly budged.

Assuming the rollout of commercial cannabis is similarly banal elsewhere, 2016, with its younger, more progressive electorate, could produce a wave of legalization victories. The Marijuana Policy Project is targeting ballot measures in five states: California, Maine, Massachusetts, Arizona and Nevada. Nadelmann, whose Drug Policy Alliance provides funding and legal support for state initiatives, suggests that even Missouri could be on the table. "What I tell the activists is: Show me 55 percent in favor and a significant edge of those who feel strongly about this issue," he says, "and I'll look at any state."

The biggest story for 2016 is shaping up to be California – where full legalization of marijuana now has an air of destiny. The state's next-generation leadership is already moving out in front of the issue. Lt. Gov. Gavin Newsom has come out forcefully – "It's time to legalize, it's time to tax, it's time to regulate marijuana for adults in California," he has said – as a step toward ending the War on Drugs, which he describes as "a war on people of color, and a war on poor people." Even the state's Attorney General, Kamala Harris, admitted in November that she does not oppose pot legalization and sees it as "inevitable." 

A successful legalization vote in California, advocates believe, would force a national reckoning on marijuana law – and a cultural tipping point similar to what we've seen in the acceptance of gay marriage. "When California goes in 2016, that will be the determinative moment," says Holcomb. "I don't think Congress can ignore the issue." In the December spending bill, Congress took the historic step of blocking the Justice Department from busting state-level medical-marijuana operations. Similar protections, Holcomb says, could be extended to state-legal commercial pot.

Legal weed on the West Coast, from Calexico to Kodiak Island, would also give cover to governments in states without ballot initiatives – places like Rhode Island, Vermont and Hawaii – to begin passing tax-and-regulate through the normal legislative process.

California remains a challenge, in part because the current quasi-legality of pot robs the issue of urgency for some consumers, while the state's larger medical-marijuana business may fight reforms that would bring an influx of commercial competition. For longtime activists, the biggest danger is that a sense of inevitability – 75 percent of Americans believe weed will be legalized nationally – may translate to complacency. "One of my greatest challenges is to guard against overconfidence," says Nadelmann. "This is not yet a lock."

Democrats would do well to get as many states as possible on the legalization bandwagon. This past November, marijuana provided a strong updraft for blue candidates: In Oregon, pro-pot voters went three-to-one in favor of incumbent Democratic Sen. Jeff Merkley, who beat his Republican challenger – a charismatic pediatric neurosurgeon – with a comfortable 56 percent of the vote. Merkley became the first senator to vote, himself, for legal marijuana, telling reporters his decision was based on justice reform: "We spend a lot of money on our criminal-justice system in the wrong places," he said.

In Alaska, the marijuana initiative appeared to give Democratic Sen. Mark Begich a fighting chance in what might otherwise have been a red-state rout. Pro-pot votes swung for Begich 71 to 29. He didn't win, but Begich kept the margin close enough that his concession speech didn't come until 13 days after election night. The Alaskan waged a much closer battle than blue-state Senate candidates in places like North Carolina. Had pot been on the ballot in the Tar Heel State in 2014, Kay Hagan might still be a U.S. senator.

The issue of pot could prove more complicated on the presidential stage in 2016, where the big question, says Holcomb, is: "Will Democrats grab the issue as strongly as Rand Paul?"

Among likely 2016 contenders, of either party, the Kentucky senator is the most progressive on marijuana. He's sponsored legislation to make medical marijuana fully legal in states that have adopted it. In the last election, Paul championed the right of D.C. voters to decide on legalization for themselves. Paul has also been a vocal advocate for decriminalization, decrying the practice of booking kids for cannabis. "I don't want to encourage people to do it," he has said. "I think even marijuana is a bad thing to do. But I also don't want to put people in jail who make a mistake."

If Paul were to face off in a contest with Hillary Clinton, pot could emerge as an unlikely wedge issue for the Republican – particularly in libertarian-leaning swing states like Arizona and Nevada, where legalization initiatives are expected. That's because Clinton has continued to talk like a 1990s drug warrior, recently fretting over the dangers of marijuana edibles to children in Colorado, and even declaring that "the feds should be attuned to the way that marijuana is still used as a gateway drug."

The political logic here is not mysterious. White male independents – those most open to a Paul candidacy – are firmly in the legalization camp. (In Oregon, this slice of the electorate voted 65 percent to tax and regulate.) Female voters, Clinton's base, are generally more hesitant. A 2014 CBS poll found that majority support for legalization nationally had a strong gender gap, with just 46 percent of women saying they support commercial pot.

Regardless of the final presidential matchup, pot initiatives in battleground states will make it impossible for the 2016 candidates to ignore, or to simply laugh off, the marijuana issue as they've done so often in the past, says Tom Angell, chairman of the advocacy group Marijuana Majority. "The road to the White House," he says, "travels through legal-marijuana territory."