The answer is far from clear. But the battle lines are already being drawn in Congress and in statehouses across the country.
Is the drug war back on the nation’s agenda?
That depends on whom you ask. But uncertainty over the answer begins with President Donald Trump himself.
Nearly two decades ago, in a Miami speech to 700 Florida business executives, he offered policy prescriptions that would have pleased most drug reformers.
“You have to legalize drugs,” Trump told the executives, at a time when the cocaine crisis was ravaging south Florida. Speaking at an awards ceremony hosted by the Miami Herald, he declared, “You have to take the profit away from these drug czars.”
Today, such views are becoming mainstream—shared by advocates on both the left and right. But if the administration’s budget released this week is any guide, those views now have little traction in Washington. Instead, Trump’s new “law-and-order” justice team seems bent on pursuing the zero-tolerance enforcement policies that he described in his Miami speech as a “joke.”
The President’s 2018 budget package supports a federal drug control budget of $27.8 billion—with the bulk (56 percent) going to supply reduction strategies such as increased interdiction and enforcement. That’s in contrast to the Obama administration’s “Drug Policy for the 21st Century,” which emphasized demand reduction programs such as treatment and prevention over law enforcement efforts.
While some drug reformers maintained Obama was still being over-cautious in backing away from zero-tolerance drug enforcement policies, his administration was the first in history to propose more funding for drug treatment and prevention than for enforcement and interdiction.
Trump’s budget also exposes some sharp differences between the new administration and legislators on both sides of the aisle who have been supporting efforts to reduce the fiscal and human costs of mass incarceration (joined by state and local officials)—efforts that include changing, if not reversing, the now four-decade old combative approach to drug enforcement.
How that conflict plays out remains to be seen. But the President’s budget suggests reformers who want to prevent the country from sliding back into the punishment-oriented and law-enforcement-dominated strategies that characterized the so-called War on Drugs” have an uphill battle ahead of them.
One clear indication of which way the wind is blowing: the Trump budget calls for $84 million in new funding for the federal prison system in anticipation of a swell of inmates caught up in the administration’s new enforcement initiatives.
Earlier this month, Attorney General Jeff Sessions issued new charging policy guidelines that instruct federal prosecutors to disregard one of the game-changing moves taken by the Obama administration on drug prosecutions. A 2013 memo issued by then-Attorney General Eric Holder recommended that prosecutors avoid seeking mandatory minimums and sentencing enhancements for nonviolent drug defendants with no ties to criminal trafficking organizations or extensive criminal histories.
Noting that these efforts resulted in “unduly harsh sentences and perceived or actual disparities that do not reflect our Principles of Federal Prosecution,” the memo added that “long sentences for low-level, nonviolent drug offenses do not promote public safety, deterrence and rehabilitation.”
Such sentences are a major reason why the U.S. has led the world in per capita incarceration rates. Although it’s unclear what impact the Holder memo has had on drug prosecutions, the release of thousands of federal prisoners jailed for nonviolent drug offenses contributed to an overall drop in the nation’s prison population in 2015 to its lowest level since 2002—a decline that was further fueled by the decision of many states to re-think their own “tough on crime” sentencing strategies.
Sessions believes, however, that such “soft” sentencing is responsible for recent crime spikes in many cities, and the increase in the proposed funding for the federal prison system seems to many critics an implicit acknowledgment that the new policies will reverse the prison-population decline.
“Donald Trump is pushing an outdated approach to criminal justice that virtually everyone now recognizes is a staggering waste of money,” Sen. Daylin Leach, a Democrat from Pennsylvania, told The Crime Report.
The effort to reform drug enforcement strategy has strong support from leading Republicans and even conservative stalwarts like the Koch brothers. That raises questions about whether the Administration’s tightening of drug policies will actually succeed.
“Trump can tinker with federal criminal justice policy, but he won’t be able to reverse the cultural shift that has occurred across the nation,” predicted Leach.
Will the hardline rhetoric make a difference at the state level? Responses so far have been varied.
States Rethink Drug Policy
The Florida Senate rejected a bill this month that would have created new mandatory minimums for trafficking the synthetic opioid fentanyl. In Pennsylvania, however—where prison reform measures led to the largest drop in the state inmate population in four decades—Republican lawmakers have been advancing a measure to re-introduce mandatory minimum sentences for some drug crimes.
One key driver of drug policy reform has been the spreading opioid epidemic. And in this area, the lines between hardliners and reformers seem blurred. During the campaign, Trump put it high on his agenda, giving special weight to addressing the issue as a public health problem rather than a law enforcement problem—and that appeared to resonate with voters. Many of the epidemic’s victims are in states that voted Republican last November.
The new budget proposes $10.8 billion to support recent legislation aimed at expanding treatment for substance abuse, such as the Comprehensive Addiction and Recovery Act (CARA)—which was passed by Congress last year to improve state programs in drug treatment and overdose prevention.
That’s a slight increase over 2017 continuing resolution levels; nevertheless it represents a drop from the $13.2 billion earmarked for treatment efforts in 2016. The new budget earmarks $128 million for CARA-related programs—$25 million less than 2017—with most of those cuts coming from a reduction in Targeted Enhancement Grants to expand the availability of medication-assisted treatment, an evidence-based approach that uses suboxone and methadone to help reduce drug dependency.
The mixed signals—a renewed emphasis on treatment combined with cuts—make it hard to draw conclusions about White House policy.
Adding fuel to the skeptics’ concerns, Health and Human Services Secretary Tom Price, sparked an outcry from the medical community during a multi-state opioid “listening tour” when he stigmatized people on opioid replacement drugs like methadone and buprenorphine.
“If we’re just substituting one opioid for another, we’re not moving the dial much,” Price said of MAT, according to the Charleston Gazette-Mail. “Folks need to be cured so they can be productive members of society and realize their dreams.”
The President’s decision to tap Dr. Elinore McCance-Katz, a respected addiction expert and a strong proponent of medication assisted treatment, to head the Substance Abuse and Mental Health Services Administration has eased some anxieties. But critics worry that any progress on treatment will be undercut by massive cuts to social services programs and health care.
The President has also proposed $150 million in new funding toward law enforcement strategies specifically to address the opioid crisis. This includes an extra $30 million for the Drug Enforcement Administration that will be used to expand the agency’s Tactical Diversion Squads —which investigate doctors and pharmacies suspected of being “pill mills”—and to hire more U.S. attorneys to pursue federal drug cases against them.
According to budget documents the money will also be used to help the DEA implement forthcoming recommendations by Attorney General Jeff Sessions’ recently created Task Force on Crime Reduction and Public Safety. Officials say the task force will work closely with Trump’s Commission on Combating Drug Addiction and the Opioid Crisis— led by New Jersey Governor Chris Christie—to develop the details.
Sessions named Steve Cook, former head of the National Association of Assistant US Attorneys — a conservative group of U.S. Attorneys strongly opposed to criminal justice reform — to lead his crime reduction task force.
Adding doubt to the importance placed by the new administration on the treatment approach, a new report from the Congressional Budget Office this week projected that Trump’s signature health care bill, which passed the House on May 4, would leave 23 million people without health insurance (including support for substance-abuse programs and counseling) over the next decade.
“What’s often overlooked… is that economic safety net programs and overall health care services are also critical [in treating addiction],” said Leo Beletsky, an expert in public health and law at Northeastern University. “If Trump succeeds in slashing resources to those programs, the opioid crisis will spiral into something a lot more deadly.”
The Drug War Abroad
In other areas, Trump has evoked the specter of an expanding drug war by connecting his proposals to build a ‘Great Wall’ on the southern border with Mexico with effort to stem addiction. Among other things he proposes hiring 1,500 new federal border and immigration agents to block international drug trafficking—one of the centerpieces of previous Washington policy—and i asking Congress to funnel more than $2.6 billion to border enforcement.
Critics like Beletsky argue such strategies have not been successful in the past—and are not likely to be successful in the future.
“Given the dynamics of the illicit drug supply chains, I can predict with 100 percent confidence that [border enforcement] will do nothing to stem the flow of illegal drugs to the US,” Beletsky said. “In fact, ramping up interdiction efforts at the US-Mexico border may exacerbate the problem by making fentanyl and other cheap synthetic drugs that much more attractive to dealers.”
The shifts in criminal justice policy—including drug policy—have already elicited a vocal backlash from current and former public officials in both political parties, including Republican Sen. Mike Lee of Utah, and former Attorney General Holder—who issued a statement calling the effort “dumb on crime.”
Last week, 15 Democratic state Attorneys General joined in, with a letter admonishing the new administration’s tough on crime stance.
“Pursuing the toughest criminal penalties against defendants is an outdated approach that has not lowered recidivism rates or reduced crime,” said Lisa Madigan, the Attorney General of Illinois.
“We need the Justice Department to be at the forefront of implementing proven policies to reform our criminal justice system in ways that lower prison populations and make our communities safer.”
The criticism isn’t limited to Democrats. Brett Tolman, the U.S. Attorney for Utah during the Bush administration, says the administration’s rhetoric signals a failure to recognize that state and local policy changes have already saved taxpayer dollars on unnecessary incarceration, with little or no impact on crime rates.
“I think there is a shift in the mindframe, which is unfortunate because even many conservative states have recognized that this is not the solution,” he told The Crime Report.
But the other side in the battle over the future of drug policy is equally vocal. Many prosecutors—particularly those in sparsely populated, cash-strapped counties—view mandatory minimum sentences as a crime-fighting tool.
Lisa Lazzari-Strasiser, the District Attorney of Somerset County, Pennsylvania, says mandatory minimums are “desperately needed.” Without them, she said in testimony in Harrisburg this week, DA’s have no “leverage” to pursue bigger game like drug kingpins.
“We have nothing to get them to sit down at a table and tell them how much time they’re going to spend in jail if they don’t move up the food chain,” she explained. “It gives smaller communities (the ability) to attack and at least fight this battle on an even playing field.”
Who will win the debate? The jury is out.
Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, questions how much impact Sessions hardline strategy will have at the grassroots level, given the momentum of reform. “How far this gets implemented and with what kind of energy I think is really an open question,” he said in a recent article in The Hill.
One unknown is whether even the expected increase in federal drug prosecutions will significantly reverse the policy changes that are already underway in jurisdictions around the country.
“[The feds] could increase their volume somewhat but they don’t have the resources to take enough cases to make a big difference,” said a veteran prosecutor in Pennsylvania, who asked to comment off the record, citing office policy.
Under the Supremacy Clause of the Constitution, the federal government technically takes precedence over state and local jurisdictions in prosecuting a number of drug and firearms offenses. However, it frequently relies heavily on local law enforcement to help build a case.
Asked what would happen if local cops and DAs simply avoided cooperating with their federal counterparts, the prosecutor conceded that such an outcome could create an unprecedented challenge for the Trump administration.
“If the case originates in the state system it would be hard for [the Feds] to just start snatching those cases,” he told The Crime Report. “They have never done that in the past.”
For the time being, Sessions’ best bet may be to stack the deck in his favor. Shortly after his confirmation he fired more than 40 U.S. Attorneys. As of last month, the Department of Justice had yet to hire a single replacement; but finding individuals who share Sessions’ drug war fervor is almost surely a top priority.
And the ultimate question is whether voters’ apparent support for Trump’s “law and order” rhetoric during the campaign will extend to policies that effectively criminalize friends and family for nonviolent drug offenses, or treat victims of the opioid crisis as a law enforcement problem rather than a health issue.
Voters (most recently in Philadelphia) have been rejecting tough-on-crime prosecutors in favor of DAs who favor more evidence-based approaches.
Nevertheless, some law enforcement officials who have spent years in the drug war’s trenches argue that still leaves room for a more focused approach—if the administration is able to resolve its mixed signals.
“There is no appetite from where I am sitting for going back to retail drug prosecutions.” said Jerry Daley, Executive Director of the Philadelphia-Camden High Intensity Drug Traffic Area (HIDTA) program. “Nobody is really looking to prosecute those cases aggressively. But when it comes to drug traffickers, well that’s a different story.”
That opens the possibility of a re-calibrated anti-drug strategy that mixes a public health approach with aggressive pursuit of kingpins and drug cartels.
There’s no sign of that yet, but as the Trump White House has already demonstrated, policymaking is anything but predictable.
One example: last week Washington was in a tizzy over rumors that the Office of National Drug Control Policy (ONDCP)—long a centerpiece of the nation’s combative drug war strategy but which has been shifting towards a public health approach under recent drug “czars”—would be gutted in the budget proposals.
When the budget details were finally made public, the ONDCP was untouched.
Christopher Moraff is a frequent contributor to The Crime Report. Readers’ comments are welcome.