Here are 10 ways the world of drug policy changed in the year of the pandemic
A pandemic, civil unrest, national elections—2020 has been a year of tumult that couldn't be done with soon enough. But when it comes to drug policy, it wasn't all bad; in fact, it was a pretty good year, with several drug reform initiatives getting approved. Here's a roundup of the biggest drug policy stories of 2020.
1. How the Pandemic Is Affecting Drug Use and Drug Policy
Just as it has infiltrated every aspect of American life, the effect of the coronavirus pandemic has been felt in the world of drugs and drug policy. Social distancing requirements early in the pandemic—when many drug reform initiative campaigns were in the midst of signature-gathering drives—proved particularly lethal to marijuana legalization efforts in the heartland as initiative campaigns in Arkansas, Missouri, Nebraska, North Dakota, and Oklahoma all succumbed. It also helped end a Washington state drug decriminalization campaign, with organizers there opting instead to go the legislative route.
Amidst the layoffs, shutdowns, and social distancing imposed due to the pandemic, drug use jumped. In July, the specialty laboratory Millennium Health reported that its analysis of more than half a million urine drug test results found large increases in the use of four illicit drugs during the coronavirus pandemic. Since March, when the pandemic was declared "a national emergency," the lab found a 32 percent increase for non-prescribed fentanyl, a 20 percent increase for methamphetamine, a 10 percent increase for cocaine, and a 12.5 percent increase for heroin. In September, another study by Millennium Health and the U.S. Department of Health and Human Services "found that drug test positivity rates for cocaine, fentanyl, heroin and methamphetamine have increased nationwide during the COVID-19 pandemic." The study was based "on urine drug test results from 150,000 patients between Nov. 14 and July 10," said a Times of San Diego article. The pandemic almost certainly also has had an impact on fatal drug overdoses (see below).
One of the most striking impacts of the pandemic has been on policing. Early on, big cities began to forgo drug arrests and prosecutions as a discretionary luxury they could no longer afford as they struggled with the coronavirus. In Philadelphia, Baltimore, and Chicago, police or prosecutors announced they would not arrest or would not prosecute small-time drug possession cases. In March, prosecutors from more than 30 cities, including Baltimore, New York, San Francisco, and St. Louis, signed on to an open letter urging local governments to make a change in the face of COVID-19. They called for police to "[a]dopt cite and release policies for offenses which pose no immediate physical threat to the community, including simple possession of controlled substances." They also called for the release of people being held solely because they can't come up with cash bail and for reducing jail and prison populations "to promote the health and safety of staff, those incarcerated, and visitors." These were not intended as permanent moves, but perhaps politicians, police and prosecutors will take the opportunity to break their addiction to punishing drug users and sellers by going cold turkey amidst the pandemic.
Advocates for marijuana legalization folded the pandemic into their arguments for ending federal marijuana prohibition. More than 30 state attorneys general cited the pandemic in calling for Congress to pass the Secure and Fair Enforcement (SAFE) Banking Act, which would allow state-legal marijuana businesses to gain access to banking and financial services. The House Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act coronavirus relief bill, passed in May, included a handful of criminal justice and drug policy reforms, mostly aimed at reducing the prison population during the pandemic, but also included language in support of allowing marijuana businesses to have access to the banking system.
COVID-19 was also cited as making it even more imperative to pass the Marijuana Opportunity Reinvestment and Expungement (MORE) Act (H.R. 3884). Over the summer, as the pandemic simmered, a coalition of justice and drug reform groups, collectively known as Marijuana Justice Coalition, called on Congress to pass the bill, arguing that legalization was especially urgent in the context of the coronavirus pandemic and nationwide protests over police brutality. Given the current situation, "marijuana reform as a modest first step at chipping away at the war on drugs is more relevant and more pressing than ever before," the coalition wrote in a letter to Congress, according to Marijuana Moment. That was followed by an even broader assemblage of 125 religious, human rights, and drug reform groups calling for passage of the bill. "[T]he circumstances of 2020 have made the failed War on Drugs even more untenable and amplified the voices of those demanding transformation in our criminal legal system. In the face of the evolving COVID-19 pandemic and a growing national dialogue on unjust law enforcement practices, marijuana reform as a modest first step at chipping away at the War on Drugs is more relevant and more pressing than ever before. The MORE Act remains the most effective and equitable way forward," the groups said. The MORE Act passed in December.
2. The Uprising Against Police Violence and Racism Leads Efforts to End Unjust No-Knock Warrants
It all started with the release of a video of George Floyd dying under the knee of a Minneapolis police officer over an alleged minuscule offense in May, but as people took to the streets all over the country, the name Breonna Taylor also loomed large. The 26-year-old Black EMT was gunned down by Louisville police in a misbegotten "no-knock" drug raid (it might be more accurate to call them "home invasion raids") in March, and her killing not only powered months of street demonstrations in her hometown, but it also engendered howls of outrage and promises of reform from politicians around the land. And it brought heightened scrutiny to business as usual in the war on drugs.
As the streets overflowed with protesters in May, nearly four dozen members of Congress called for an independent investigation of the raid, calling Taylor's death "an unspeakable tragedy that requires immediate answers and accountability," according to a letter sent by the members of Congress. That was followed by a bevy of bills in Congress, including the Justice in Policing Act, which would ban no-knock warrants in federal drug cases. House Democrats pushed the bill through in three weeks in June. Republicans in the Senate responded with Senator Tim Scott's Justice Act, which wouldn't ban no-knock raids, but would increase federal reporting requirements for no-knock raids and use of force. But the GOP bill never moved in Senator Mitch McConnell's Senate. As with so many measures passed by the House, McConnell's domain was where a congressional response to the crisis went to die.
But some states and localities actually enacted laws or ordinances aimed at reining in no-knocks. The Louisville metro council banned no-knock search warrants by unanimously passing "Breonna's Law" in June. Other cities, including Indianapolis, Memphis, Minneapolis, San Antonio, and Santa Fe, moved to either restrict or ban no-knocks. And while several states saw efforts to join Oregon and Florida as the only two states that banned no-knock warrants before Taylor's death, the only state where recent efforts have come to fruition so far is in Virginia, where Governor Ralph Northam (D) signed into law House Bill 5099, which bars police from breaking into a home or business to conduct a raid without first announcing their presence.
3. In a Historic Move, the House Votes to End Federal Marijuana Prohibition
Breaking almost entirely along party lines, the House voted to approve the MORE Act on December 4. The MORE Act would effectively end federal pot prohibition by removing marijuana from the Controlled Substances Act's list of scheduled substances and eliminating federal criminal penalties for its possession, cultivation and sale. The bill would not affect state laws that criminalize marijuana, but it would end the conflict between states that have already legalized marijuana and federal law.
The bill also includes strong social equity provisions, including the creation of a fund to support programs and services for communities devastated by the war on drugs, a provision for expungement of past federal marijuana offenses, and a provision that bars the federal government from discriminating against people for marijuana use. The latter would protect immigrants from being deported for past marijuana convictions and would ensure that earned benefits are not denied to marijuana users. The historic vote marks the first time either chamber of Congress has voted for legalization. But there was virtually no chance that the Republican-led Senate would have taken up—let alone approved—the measure in the remaining days of the last session, meaning this is a battle that will continue in the next Congress.
4. Psychedelic Drug Law Reform Wins
Denver made history in May 2019 by becoming the first city in the United States to effectively decriminalize a psychedelic drug—psilocybin-bearing magic mushrooms—and as a psychedelic reform movement spread across the land, 2020 saw other important advances. As the year went on, three more cities—Ann Arbor, Oakland, and Santa Cruz—passed similar ordinances, and on Election Day, voters in Oregon approved the groundbreaking Measure 109, the Oregon Psilocybin Services Act, with 56 percent of the vote. It will create a program to allow the administration of psilocybin products, such as magic mushrooms, to adults 21 and over, for therapeutic purposes. People will be allowed to buy, possess, and consume psilocybin at a psilocybin services center, but only after undergoing a preparation session and under the supervision of a psilocybin service facilitator.
And on the East Coast, Washington, D.C., voters approved Initiative 81, the Entheogenic Plant and Fungi Policy Act of 2020, with 76 percent of the vote. The measure will have police treat natural plant medicines (entheogens) as their lowest law enforcement priority. The measure also asks the city's top prosecutor and its U.S. attorney not to prosecute such cases. This string of psychedelic reform victories has generated momentum that is likely to result in more pushes in more places in 2021 and beyond. Since Election Day, activists in San Francisco and Washington state have announced plans for decriminalization, New Jersey State Senator Teresa Ruiz (D) has filed a bill to downgrade the offense of magic mushroom possession, and California State Senator Scott Wiener (D) has announced he plans to file a bill that would decriminalize the possession of psilocybin mushrooms and other psychedelics.
5. Oregon Decriminalizes Drugs
With the passage by voters of Measure 110, the Drug Addiction Treatment and Recovery Act, Oregon broke new ground by becoming the first state to decriminalize the possession of personal use amounts of all drugs, including cocaine, heroin, and methamphetamine. The quantities decriminalized are up to 1 gram of heroin, up to 1 gram or five pills of MDMA, up to 2 grams of methamphetamine, up to 40 units of LSD, up to 12 grams of psilocybin, up to 40 units of methadone, up to 40 pills of oxycodone, and up to 2 grams of cocaine. That's thousands of drug arrests that now will not occur in Oregon—and Oregon can set an example for other states to follow.
6. Red State or Blue State, Voters Choose Legal Marijuana When Given the Chance
The November election saw marijuana legalization on the ballot in four states and medical marijuana on the ballot in two states. They all won. Evenly-divided Arizona saw Proposition 207: The Smart and Safe Arizona Act cruising to victory with 60 percent of the vote, while in blue New Jersey, Public Question 1 garnered a resounding 67 percent of the vote. But the really surprising results were in two red states: In Montana, Constitutional Initiative 118 and its companion Initiative 190 won with 58 percent and 57 percent of the vote, respectively, while in South Dakota, Constitutional Amendment A won with 54 percent of the vote. Both those states are red states, with Trump taking 57 percent of the vote in Montana and 62 percent in South Dakota. It was the same story with medical marijuana, as Mississippi approved Initiative 65 with 74 percent of the vote, while South Dakota's Measure 26 won with 70 percent of the vote. Marijuana for adult use is now legal in 15 states and medical marijuana is now legal in 35 (plus D.C.).
7. Progressive Prosecutors Win
The November 3 elections didn't just end the reign of Donald Trump and bring drug reform victories at the state level; they also ushered in a new crop of progressive prosecutors who will have the ability to affect the conduct of the war on drugs at the local level. Led by George Gascón, who was elected prosecutor of the nation's most populous county, Los Angeles County, and running on progressive platforms that included confronting police misconduct, ramping down the war on drugs, and shrinking prison populations, progressives won prosecutor races in Detroit (Oakland County), Orlando (Orange and Osceola counties), and two large Colorado districts long held by Republicans. Progressives didn't win everywhere they ran, but the shift from "law and order" district attorneys toward progressives that began with Kim Foxx in Chicago and Larry Krasner in Philadelphia really gathered momentum in 2020.
8. A Tough Year for Safe Injection Sites
Safe injection sites (also called supervised injection facilities or supervised consumption services) are a proven harm reduction intervention with 120 in operation in 10 countries around the world, but no legal ones are operating in the United States. It looked like that would change in 2020, but it didn't. A proposed site in Philadelphia got the final go-ahead from a federal judge in February, but the local U.S. attorney then tried to block the facility's opening, with a hearing on the earlier stay held in October and the decision from the bench still pending. Things were also looking good in San Francisco after the board of supervisors okayed a pilot program in June, but the state-level bill that would have allowed the city to proceed, Assembly Bill 362, died in the Senate after passing the Assembly. A similar fate befell a Massachusetts safe injection site bill, House Bill 4723, which managed to win a committee vote but then stalled. Maybe there will be gains for this harm reduction method in 2021.
9. Asset Forfeiture Reforms
Asset forfeiture, especially civil asset forfeiture (without a criminal conviction), is increasingly unpopular, with 35 states and the District of Columbia approving reforms between 2014 and 2019. A September poll by YouGov found that only 26 percent support allowing police to seize cash or property from someone without a criminal conviction. According to a Forbes article, "59 percent of Americans oppose 'allowing law enforcement agencies to use forfeited property or its proceeds for their own use.' … Opposition to equitable sharing [a federal program that allows state and local police to evade state laws against civil asset forfeiture] was even higher, with 70 percent against the program."
Here are some reasons why: In March, in Georgia, the department of revenue got caught spending millions of dollars in seized cash on "engraved firearms, pricey gym equipment, clothing, personal items, even $130 sunglasses." That same month, in Michigan, Macomb County prosecutor Eric Smith was hit with a slew of criminal charges for allegedly taking funds seized from drug and other suspects for his own personal use, including "a personal security system for his house, country club parties, campaign expenses and to buy flowers and make-up for his secretaries." In July, in Chicago, the city agreed to a $5 million payout to settle a class-action lawsuit filed by two people whose vehicle was seized after a passenger was arrested for marijuana possession. The settlement will apply to hundreds of other cases where drivers had their vehicles impounded as part of drug cases. Also in Michigan, the Wayne County Sheriff's office faces a similar lawsuit for seizing thousands of cars and other property belonging to residents without criminal convictions.
Such abuses helped New Jersey become the 16th asset forfeiture reform state when Governor Phil Murphy (D) signed into law a bill mandating comprehensive disclosure and transparency requirements for the system of civil asset forfeiture in January. Unfortunately, the few remaining non-reform states are tough nuts to crack, as we saw with reform bills killed in Arizona, Georgia, Kentucky, and Tennessee. But, at least Tyson Timbs, the Indiana man whose seized Land Rover resulted in a 2019 Supreme Court decision scaling back civil asset forfeiture, finally got his Land Rover back—six years after it was seized over a drug bust.
10. America Keeps ODing
Amidst all the death in the pandemic, the ongoing epidemic of drug overdose deaths got short shrift in 2020, but Americans are continuing to die by the tens of thousands. In July, the CDC reported preliminary data showing that after declining for the first time in decades in 2018, fatal ODs rose by 4.6 percent in 2019. There's a lag in data for 2020, but initial reports suggested bad news ahead. As mentioned earlier, specialty laboratory Millennium Health reported in its July analysis of more than half a million urine drug tests that they found large increases in the use of fentanyl, heroin, cocaine, and methamphetamine during the pandemic. Also in July, the Washington Post reported that fatal ODs have jumped and keep jumping during the pandemic. The Post's data showed overdose deaths up "18 percent in March, 29 percent in April and 42 percent in May." The Post pointed to "continued isolation, economic devastation and disruptions to the drug trade" as contributing factors. And in December, fears of rising overdose deaths got some confirmation, with the CDC reporting that in the 12-month period ending in May 2020, overdose deaths hit an all-time high of 81,000.
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