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August 14, 2016

Realistic (though incomplete) discussion concerning how marijuana reform is not a panacea for mass incarceration

Marc Mauer has this timely and effective new commentary in The Hill headlined "Can Marijuana reform end mass incarceration?". Any regular reader of this blog knows that the only simple and accurate answer to this question is "no," but the commentary provides a fuller accounting of some reasons why I see many possible positive synergies between sentencing reform and marijuana reform movements. Here are excerpts:

This week’s DEA decision to keep marijuana classified as a Schedule I drug (categorized as having no medical potential and a high potential for abuse) has disappointed advocates for drug policy reform. They contend that marijuana is less dangerous and addictive than drugs like cocaine and heroin, or even alcohol.  But many reformers also argue that marijuana reform is the first step in ending mass incarceration.  In many respects this appears to be wishful thinking.

There’s no question that the “war on marijuana” is overblown and unproductive. Since the early 1990s the focus of drug arrests nationally has shifted from a prior emphasis on cocaine and heroin to increasing marijuana arrests.  By 2014 marijuana accounted for nearly half of the 1.5 million drug arrests nationally. But while this elevated level of marijuana enforcement is counterproductive in many respects, there is little evidence to indicate that it has been a substantial contributor to mass incarceration.  Of the 1.5 million people in state or federal prisons, only about 40,000 are incarcerated for a marijuana offense.  The vast majority of this group is behind the walls for selling, not using, the drug, often in large quantities.  We could debate whether even high-level marijuana sellers should be subject to lengthy incarceration, but they constitute less than 3% of the prison population.

In other respects, though, marijuana law enforcement imposes substantial costs on the justice system.  Few marijuana arrests may result in a prison term, but they consume enormous resources through police time making arrests and court appearances, probation and parole revocations, and time spent in local jails following arrest or serving a short sentence. And all of this activity comes with public safety tradeoffs.  Time spent by police making marijuana arrests is time not spent responding to domestic violence disputes or guns on the streets.

While it may be misleading to portray the marijuana reform movement as the beginning of the end of mass incarceration, there are ways in which we could transform the national dialogue to make a more direct link.  For a start, we should call attention to the parallels between marijuana and the overall drug war.  In particular, the drug war has prioritized supply reduction through international interdiction campaigns and a heavy-handed law enforcement response.  This approach has had little impact on either drug availability or price, and has drained resources from more effective allocations to prevention and treatment programming.

The racial disparities of marijuana law enforcement are emblematic of the drug war as well, with African Americans more than three times as likely to be arrested for a marijuana offense as whites, despite similar rates of use. Such outcomes bring to mind the vast disparities in crack cocaine arrests, as well as the use of “stop and frisk” policing tactics often premised on drug law enforcement, and exacting a substantial toll in communities of color....

There is reason for hope that change may be at hand. National drug policy is shifting toward a greater emphasis on treatment approaches to substance abuse, and thoughtful leaders in law enforcement are serving as models for how to engage communities in collaborative efforts for promoting public safety.  The national debate on drug policy is worthwhile on its own, but we should also seek to extend that conversation into the realm of mass incarceration.

For reasons both practical and political, it is appropriate for Mauer and others to be quick to note that marijuana reform will not "end" mass incarceration. At the same time, given that a wealth of other reforms at the state and national level over the last decade has done no more than keep incarceration levels flat, a reduction of 40,000 prisoners in state and federal prisons would still mark a significant achievement in these modern times. Moreover, and as Mauer suggested, national marijuana reform not only could help demonstrate that public-health and regulatory approaches to drug issues are more cost-effective than criminal justice prohibitions, but also could provide a significant source of new public revenue for prevention and treatment programming.

One of many reasons I have become so interested in marijuana reform developments is because I have grown so frustrated in recent years at the seeming inability (or unwillingness) of elite policy-makers (especially in DC) to take bold action to deal with modern mass incarceration. Tellingly, modern marijuana reform in the United States is a ground-up movement that has been engineered at the local and state level despite disconcerting and persistent opposition by elite policy-makers (such as the Obama Administration at its DEA).  I continue to fear that elite policy-makers will continue to fail to see that the vast marijority of Americans are eager to move dramatically away from blanket federal marijuana prohibition, though I also expect a lot of significant developments in this space once we get through the 2016 election cycle.  With nearly 25% of the US population in numerous states that will be voting on marijuana reforms this November (most notably California and Florida), this election year will be the closest possible to a national referendum on marijuana prohibition.  If reform wins big with voters in most states this fall, I think elite policy-makers will finally fully appreciate which way these reform winds are now blowing.

In the meantime, here are some recent highlights on related front from my blogging efforts of late over at Marijuana Law, Policy & Reform

August 14, 2016 at 03:18 PM | Permalink

Comments

My concern is that marijuana reform is sucking all the air out of the room leaving no space for debate on other topics in the criminal justice area. I am highly dubious that drug reform is going to serve as any kind of vanguard or wedge that will break down support for mass incarceration. My (pessimistic) view is that at best drug reform is playing the prison bed version of musical chairs, at worst drug reform will fail to live up to the hype and make mass incarceration worse by discouraging future reform efforts.

Posted by: Daniel | Aug 14, 2016 5:04:49 PM

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