Eric Blumenson, Professor, Suffolk University Law School; J.D. 1972, Harvard Law School. Copyright 2002 by Eric Blumenson.As part of a continuing project on drug laws and policy, this article reflects the counsel and contributions of many over several years. Aspects addressing forfeiture derive in part from research conducted in collaboration with Eva Nilsen which was funded by a fellowship from the Open Society Institute and published as "Policing for Profit: The Drug War's Hidden Economic Agenda," 65 U. CHI. L. REV. 35 (1998). Some portions of the article also reflect the knowledge and wisdom of many drug policy reformers with whom I worked to enact versions the model law suggested herein, including Michael Cutler, Dick Evans, David Fratello, Ethan Nadelmann, Martin Rosenthal, Steve Saloom, Rob Stewart, Carl Valvo, Sam Vagenas, and Bill Zimmerman. I am grateful to Paige Ormond for expert research assistance.
Any serious examination of the drug war is likely to be a dispiriting affair. Thirty years after drug policy became a national priority, both drug abuse and the drug war continue unabated, each leaving a trail of ruined lives and devastated communities in its wake. We spend ever greater sums each year on the drug war, incarcerate massive numbers of drug offenders, and now arrest 1,200,000 people for drug possession annually - all without any appreciable reduction in drug availability,1 overdose admissions and deaths, 2 or diseases Page 226 resulting from drug use.3 Yet despite this prolonged policy failure, American drug policy remains just where it was three decades ago-fixated on police and military solutions-except on a larger scale. Our drug warriors seem among the few practitioners of Timothy Leary's old adage, "If you're having a bad trip, double the dosage."
Nevertheless, our government cannot evade the lessons of experience forever, and when the tide turns, it will probably be in the direction of the "harm reduction" approach. Harm reduction seeks to minimize the individual and societal damage produced by both the use and control of drugs.4 It largely sidesteps the legalization/prohibition debate by acknowledging that whatever our intentions and policies, there will always be a substantial drug-taking population. Given this inevitability, one key goal should be to minimize the risks these people face from their drug habits. Thus harm reducers welcome policies that result in a reduction in use or in safer, less abusive use or in a shift in consumption from hard to soft drugs, and abhor the current all-or-nothing policies that have proven to exacerbate the risks of drug use. For example, approximately one-third of AIDS cases in the United States are estimated to derive from HIV-infected syringes.5 The drug war has not stanched this AIDS Page 227 epidemic among addicts, but rather helped produce it by attaching criminal penalties to syringe possession6 and then blocking a national clean-needle- exchange program. A World Health Organization study of HIV infection rates in 81 cities found an average annual HIV increase of 5.9% in those without clean needle programs for addicts, compared to a decrease of 5.8% in those with such programs.7Harm reducers also tend to support programs providing universally-available drug treatment, methodone maintenance,8 health and drug education, psychological counseling, and HIV and STD screening. They favor more humane sanctions for drug users, and a general shift away from our over- reliance on law enforcement and towards a public health approach.9 There is no single harm reduction model, but the chasm between this evolving reform movement and present policy is clear: harm reducers measure the success of Page 228 drug policies in terms of quality of life and health, not merely in terms of levels of drug use.10In this article, I explore what I believe to be one of the more effective harm reduction measures available at present. I describe a model law that would significantly change the orientation of our drug policy, and a method for enacting it that has already proven achievable.11 The model law can be summarized by the phrase "drug profits for drug treatment." It (1) mandates drug treatment instead of incarceration for low-level drug offenders, (2) finances treatment by redirecting assets seized and forfeited from drug offenders into a Treatment Trust Fund, and (3) repeals laws that currently channel these assets into the police forces that seized them and thereby make the agencies dependent on drug enforcement to maintain their budgets. I believe this law offers one hopeful road to recovery-recovery from both drug abuse for those who need it, and from the drug war itself-for reasons that I elaborate below. First, however, I address the inevitable practical question: is this measure politically viable when politicians seem unable to turn away from their fixation on punitive and military solutions to drug problems?
The solution most suited to the current political landscape is to bypass politicians and instead utilize the machinery of direct democracy, available in many states under laws authorizing voters to legislate via the ballot box. On drug policy, voters seem to be far more open to new approaches than most government officials. A poll undertaken in January 2001 showed that although most Americans believe that dealers should go to prison, only one quarter believe that users or buyers should always be incarcerated, and sixty-two percent believe that fewer non-violent offenses should be punishable by prison.12 These Page 229 latest figures are not surprising. Over the past six years voters in many states have approved drug reform ballot initiatives, including initiatives to legalize marijuana when used for medical purposes,13 to substitute drug treatment for incarceration of users,14 and to curtail forfeiture abuse.15 Almost all have been successful, often by substantial majorities. Even highly conservative states like Arizona and Utah - where the 63% Mormon population is religiously compelled to reject alcohol, drugs, and even caffeinated hot drinks16 - have passed progressive drug policy reforms by large margins. In 1996, two-thirds of Arizona voters passed Proposition 200, requiring that first and second-time offenders convicted of drug possession or use be placed on probation and afforded drug treatment.17 (California voters passed a similar initiative in November, 2000 by a margin of 61%.)18 The Utah initiative was one of three placed on state ballots in the 2000 election designed to end the forfeiture reward scheme and earmark seized assets for treatment or education instead. Two Page 230 passed by large margins, in Utah and Oregon;19 a Massachusetts effort failed, probably because it also sought to divert more culpable traffickers into treatment. In November, 2002, Nevada and Arizona voters will face marijuana decriminalization ballot initiatives, San Franciscans will vote on whether the city should grow and distribute medical marijuana, and Ohioans will decide whether lower-level drug offenders should be sent to treatment rather than prison.20
In a single stroke, the "drug profits for drug treatment" initiative would reorient drug policy in two important ways. First, it would substitute treatment for incarceration of lesser drug offenders. It's long been known that treatment is a more effective (and obviously more humane) method of addressing drug dependence than punishment.21 Second, by redirecting forfeited assets to treatment rather than to the budget of the seizing agencies, the initiative would terminate a prodigious economic incentive that has made law enforcement agencies dependent on drug enforcement to maintain their budgets. Severing law enforcement agencies from this financial conflict of interest frees them to set more rational crime control priorities. I will discuss the merits of each reform in turn.
Drug treatment would seem an obvious and important component of drug policy, and it was - for a very brief period during Nixon's first term, just before he declared the War on Drugs as we know it today. Richard Nixon's initial drug policy reserved a large place, and more than half of the drug control budget, for drug treatment.22 The impetus for this was crime reduction. Nixon's theory was that by reducing the demand for drugs, treatment would also reduce the number Page 231 of drug related crimes.23 Nixon's plan worked remarkably well, as Michael Massing recently documented in his book The Fix.24 The initial effort-a methadone program established in 1969 in Washington, D.C.25-produced a substantially reduced recidivism rate for enrollees, and contributed to a reduction in D.C.'s 1970 crime rate when rates nationally were escalating.26Then in 1971, Nixon appointed a specialist in drug treatment, Jerome Jaffe, as director of the Special Action Office for Drug Abuse Prevention (SAODAP)- the first "drug czar".27 Coupled with a five-fold funding increase for drug policy,28 the number of treatment centers across the country increased exponentially.29 According to Massing's study, one effect was that for the first time in seventeen years, national crime rates fell. The 1972 rate was 3% lower than the year before,30 and the D.C. rate fell by 26.9%.31 While some of the latter decrease could be attributed to an increase in...