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October 22, 2014

Does new DOJ appointee want to decriminalize all drug possession ... and would that be so bad?

The questions posed by the title of this post are prompted by this recent commentary authored by Cully Stimson and titled "The New Civil Rights Division Head Wants to Decriminalize Possession of All Drugs." Here are excerpts:

So who supports decriminalizing cocaine, heroin, LSD, methamphetamine, ecstasy and all dangerous drugs, including marijuana? No, it’s not your teenage nephew. It’s President Obama’s new acting head of the Justice Department’s Civil Rights Division, Vanita Gupta. In 2012, Gupta wrote that “states should decriminalize simple possession of all drugs, particularly marijuana, and for small amounts of other drugs.” (Emphasis mine).

Last week, President Obama appointed Vanita Gupta to the position of acting head. According to the Washington Post, the administration plans to nominate her in the next few months to become the permanent assistant attorney general for the Civil Rights Division. Her views on sentencing reform – a bi-partisan effort in recent years – have earned her qualified kudos from some conservatives. But her radical views on drug policy – including her opinion that states should decriminalize possession of all drugs (cocaine, heroin, LSD, ecstasy, marijuana etc.) should damper that support of those conservatives, and raise serious concerns on Capitol Hill....

To begin, she believes that the misnamed war on drugs “is an atrocity and that it must be stopped.” She has written that the war on drugs has been a “war on communities of color” and that the “racial disparities are staggering.” As the reliably-liberal Huffington Post proclaimed, she would be one of the most liberal nominees in the Obama administration.

Throughout her career, 39-year old Gupta has focused mainly on two things related to the criminal justice system: first, what she terms draconian “mass incarceration,” which has resulted in a “bloated prison population, and second, the war on drugs and what she believes are its perceived failures.

She is particularly open about her support for marijuana legalization, arguing in a recent CNN.com op-ed that the “solution is clear: …states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.”...

But Gupta does not stop with marijuana. In calling for all drugs to be decriminalized – essentially legalizing all dangerous drugs – Gupta displays a gross lack of understanding of the intrinsic dangers of these drugs when consumed in any quantity.

Heroin, LSD, ecstasy, and methanqualone are Schedule I drugs, which are defined as “the most dangerous drugs of all the drug schedules with potentially severe psychological or physical dependence.” Cocaine, methamphetamine, Demerol and other drugs are Schedule II drugs, defined as “drugs with a high potential for abuse…with use potentially leading to severe psychological or physical dependence.”

Sound public policy must be based on facts, not radical unsafe, and dangerous theories.

I concur 100% with the statement at the end of this commentary that "sound public policy must be based on facts," and that it why I am more than a bit troubled that this commentary quite false asserts that Gupta's seemingly reasonable suggestion that persons should not be deemed criminals for possessing a small amount of a narcotic is tantamount to advocacy for "legalizing all dangerous drugs."

The term "decriminalize" in this context means to treat in a less-serious regulatory manner like we treat traffic offenses. Nobody would assert that we have "essentially legalized" all speeding and other traffic offenses because we only respond to the offense with fines and limited criminal sanctions. Likewise, advocacy for decriminalizing simple possession of small amounts of drugs is not the equivalent of endorsing a fully legalized marketplace for drugs comparable to what we are seeing in a few states now with marijuana.

That all said, I think Vanita Gupta's suggestion that states decriminalize simple possession of drugs as a way to de-escalate the drug war, as well as Cully Stimson's obvious concerns with such a suggestion, are very legitimate issues for engaged political and public policy debate.  (For the record, I would generally support most state drug-decriminalization efforts, though I also would generally advocate that criminal sanctions kick in based on possession of larger dealer-size quantities of certain drugs.)   I am pleased to see this commentary, even in a effort to assail a new DOJ nominee, start to bring overdue attention to these important modern drug-war issues.  But I hope in the future Mr. Stimson and others will make and understand the important distinction between advocating for decriminalization and advocating for full legalization.

October 22, 2014 at 11:41 AM | Permalink


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I recently read an interesting law review article on SSRN by Professor Pfaff of Fordham. The article is entitled "The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options." I believe the article is going to be published by Harvard. Pfaff is a statistics guy, and his research has debunked the idea that the "War on Drugs" has led to our huge increase in the prison population. According to Professor Pfaff's research, "a majority of the prison growth has come from locking up violent offenders, and a large majority of those admitted to prison never serve time for a drug charge." Another interesting part of Professor Pfaff's article is his critique of Michelle Alexander's book "The New Jim Crow," which so many in academia have blindly accepted (and taught to their students) as the Gospel truth. The article details the statistical flaws in Alexander's work, which Pfaff refers to as "deeply flawed." According to the article, "that drug offenders comprise only a relatively small share of prison populations also undermines another common criticism of the War on Drugs, namely that drug incarcerations explain the racial imbalance in prison populations." Those who are seriously interested in understanding these issues and who care about trying to objectively evaluate information before taking positions should read Professor Pfaff's article.

Posted by: Anon | Oct 22, 2014 2:37:00 PM

The "war on drugs" leads to various activities of a violent nature that would not likely otherwise occur -- see various things arising during the Prohibition (alcohol)-- so to me it's somewhat hard to differentiate in the way suggested by the first comment.

I assume this is the article noted:


A red flag comes up in the abstract -- we hear of a "direct incarceration of drug offenders" (and even there 1 in 5 is pretty significant) ... anyway, we also are told that the "war" can be a problem:

"in more indirect -- and much harder to measure -- ways. Drug enforcement could contribute to overall social instability in high-crime, high-enforcement communities, or at least to the perception of instability, in ways that may trigger more enforcement by police and prosecutors, even if crime rates are relatively low and falling. Furthermore, while prior drug offenses do not appear to trigger formal recidivist statutes, they may alter prosecutorial charging decisions for later non-drug offenses, but prosecutorial charging behavior is currently impossible to measure with existing data."

Finally, even though the War on Drugs has played only a secondary role in prison growth, there are over 200,000 people in state prison every day on drug charges, and states appear eager to reduce the scope of drug-related incarcerations"

That's rather enough. The abstract also notes "few offenders are in prison on marijuana charges" -- the article is clear that marijuana arrests are a major issue. The fact tens of thousands of people undergo arrest, spend short times in lock-up, are in the system and over the years were denied various major benefits is pretty serious stuff. Plus, given the prison population is so high, even a fraction means thousands are in prison for marijuana alone.

Ultimately, the article doesn't dispute that directly and indirectly drug criminalization has a serious effect. The concern amounts to scope. That's fine for sensible policy. But, bottom line, shades of degree doesn't suddenly make Michelle Alexander etc. wrong. Even if she overcompensates, even if a fraction of her concerns are correct, it is pretty striking.

Posted by: Joe | Oct 22, 2014 3:10:48 PM

Great back and forth here, Anon and Joe, and know that I highlighted this article when it first hit SSRN:


For the record, I strongly believe John Pfaff is doing some of the most important current work on the empirical back-story of modern mass incarceration (though he fails, in my view, for not engaging more with the lead-crime research). Moreover, as Joe nicely highlights and as John's work itself rightly notes, there are some critical limits on the what the numbers really represent, especially as think about the relationship between use of guns and drug trafficking (e.g., technically Weldon Angelos is serving a federal mandatory minimum of 55 years' imprisonment for possessing guns (while dealing marijuana) and only served one day for selling marijuana --- but absent the modern drug war, he arguably would never have gotten the attention of authorities and certainly would not have spent well over a decade in prison already with 40+ more years to go).

Posted by: Doug B. | Oct 22, 2014 3:21:23 PM

I appreciate the comment and will rest on my remarks generally.

Don't know the author cited, but his caveats do make me respect him more. Also, I have not read Michelle Alexander's book.

Posted by: Joe | Oct 22, 2014 3:37:57 PM

I don't entirely disagree with what Joe has said. My broader point is that all too often people just latch onto the media (and many in academia) who state in conclusory fashion that the "War on Drugs" is the direct cause of our rise in incarceration. People who make such claims often never really look into the data the way Professor Pfaff has. I think his work is all the more remarkable because it is clear from reading his article (as well as other things he has written) that he really doesn't have a dog in the fight. In other words, his work is objective in the sense that so much work in this area (including that by Michelle Alexander and others) is not. So much work in the area of criminal justice is driven by an agenda---liberal former defense attorneys who now work at law schools and produce biased work vs. law and order advocacy groups who produce biased work. What is distressing to me is that so many people are just given one side of the argument, especially those who attend law schools that seem to be more interested in pushing a perspective instead of presenting both sides of a debate and letting the students use their critical thinking skills to reach their own conclusions.

Posted by: Anon | Oct 22, 2014 5:20:17 PM

Stimson loses credibility when he fails to note that, in addition to heroin, LSD, ecstasy and meth, marijuana is a Schedule I drug.

Posted by: AFPD | Oct 22, 2014 7:06:20 PM

My sister has gotten into drugs over the past several years. She has been in and out of trouble the whole time. In this latest round of problems, we need to find a great drug offense lawyer who can help her get a just punishment. I wish I could get her off, but she probably should have a fair punishment at this point.


Posted by: Bryan Flake | Oct 23, 2014 1:48:03 PM

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