Congress Set to Escalate War on Drugs, Despite Decades of Failure and Unaffordable Price Tag

Federal legislation that would criminalize possession and sales of chemical compounds found in products such as "K2," "Spice," and "bath salts" will be voted on in the House Judiciary Committee tomorrow and is expected to pass. It has already passed the House Energy and Commerce Committee, so the next step would be the full House. Similar legislation is sailing through the Senate.

The Judiciary Committee is also considering legislation tomorrow that makes it a federal crime to plan to commit a drug offense in another country that would be illegal if it was actually committed in the U.S. – even if the offense is actually legal in the other country.

Both bills would subject more Americans to mandatory minimum sentencing and increase prison expenses that taxpayers have to pay — at a time when members of Congress are cutting drug education, treatment and prevention citing the need to reduce federal expenses.

"Prohibition didn't work for alcohol, it hasn't worked for marijuana, and it's not going to work for synthetic drugs," said Bill Piper, director of national affairs for the Drug Policy Alliance. "Policymakers have two choices – continue with prohibition and hand more drugs over to organized crime to profit from and fill U.S. jails with even more non-violent offenders, or regulate these drugs to protect both public health and safety. Instead of continuing to do what doesn't work, policymakers should try something new for once."

Provoked by extensive media coverage of several tragic events involving young people who allegedly consumed a synthetic drug, lawmakers in more than a dozen states have passed laws criminalizing synthetic drugs. In November 2010, the Drug Enforcement Administration (DEA), acting in accordance with its emergency scheduling authority, temporarily added several chemical compounds found in synthetic marijuana products into Schedule I of the federal Controlled Substances Act.

Federal lawmakers are now weighing whether to permanently place many of the chemical compounds found in synthetic drug products under Schedule I. Drug policy reform advocates point out that prohibiting a substance creates a lucrative illicit market that benefits organized crime, and that a more safe and effective approach would be to strictly regulate these drugs so that the federal government can control potency and establish age controls to keep the drugs out of the hands of young people.

In 2009, advocates persuaded legislators in Maryland to pass legislation that regulates and taxes Salvia, another drug that many states have criminalized in recent years.

A second bill under consideration would authorize U.S. criminal prosecution of anyone in the U.S. suspected of conspiring with one or more persons, or aiding or abetting one or more persons, to commit at any place outside the United States an act that would constitute a violation of the U.S. Controlled Substances Act if committed within the United States. These penalties apply even if the controlled substance is legal or semi-legal under some circumstances in the other country. An American treatment provider working with doctors in England, Denmark, Germany, or Switzerland to provide heroin-assisted treatment and sterile syringes to heroin users in those countries could face arrest. So could an otherwise law-abiding American planning with some friends to use marijuana in the Netherlands while on vacation there.

Even when applied against drug traffickers, the conspiracy will would likely perpetuate injustice. Under U.S. drug conspiracy laws a person can be found guilty even when there are no drugs or other physical evidence involved. The uncorroborated word of someone pointing fingers to get a reduced sentence is all it takes. Moreover anyone convicted of being part of a drug conspiracy is punished not for the offense they actually committed but for all the offenses committed by members in the conspiracy. This has led to very low-level, impoverished, first-time offenders receiving mandatory minimum sentences that are decades long. Conspiracy laws drive the so-called "girlfriend problem" whereby too many women are sentenced to harsh sentences for the crimes of their abusive partners.

"The war on drugs has proven time and time again to be a war on families and communities, especially communities of color," said Piper. "The U.S. can't incarcerate its way out of its drug problems and should stop trying. The only way out of the drug war mess is to start treating drug use as a health issue instead of a criminal justice issue."

"Even as legislators increasingly embrace drug policy reforms, the knee-jerk criminalization of these drugs demonstrates that elected officials still tend to prohibit first, and ask questions later," said Grant Smith, federal policy coordinator for the Drug Policy Alliance. "Outright criminalization would only drive the demand for these drugs to the black market, which provides no age restrictions or other regulatory controls. Product labeling requirements, as well as marketing, branding and retail display restrictions, are proven to reduce youth access to tobacco products and impulse tobacco purchases among adults. This approach is working for tobacco, a far more harmful drug that has contributed to more deaths than alcohol and illicit drugs combined. As a result of education initiatives and age restrictions, tobacco use has declined dramatically over time despite its legality for adults."