Ending the Drug War Won't End Mass Incarceration - But It's a Necessary First Step

The United States has reached a turning point in its epidemic of mass incarceration. A consensus is growing across the country – from the White House and both aisles of Congress to cities and states of all sizes – that enough is enough. The nation is finally engaged in a frank discussion of how to get out of this mess.

The momentum is heartening but not nearly enough. We’ve only scratched the surface – feel-good rhetoric, a few dozen pardons – while leaving the larger, unjust, racist system intact.

 We must do more. Ending the war on drugs – a major driver of incarceration – is crucial. Nearly half a million people, whose most serious offense was a drug law violation (which by definition means nonviolent) are incarcerated today. That’s ten times the number in 1980. The burden of incarceration falls overwhelmingly on black people and Latinos, although rates of drug use and sales are scarcely different among people of different races and ethnicities.

 Here are three steps that local, state and federal governments can take to dismantle the drug war:

1. Eliminate mandatory minimum sentences. Half of the federal prison population is incarcerated for a drug offense. Most weren’t drug kingpins, but rather low-level sellers, couriers, middlemen. For many, there’s no good public safety reason to keep them behind bars for lengthy periods. As President Obama suggested last month, we need to get rid of draconian sentencing laws entirely.

2. Eliminate criminal penalties for possession of all drugs. Almost 50,000 people are admitted to state prisons each year for drug possession. Tens of thousands more languish in local jails, either awaiting trial or serving a sentence. Instead of arresting and incarcerating them, let’s give them a citation and offer them treatment if needed. That’s what Portugal started doing nearly 15 years ago. The sky didn’t fall – but rates of drug arrests, incarcerations, disease and overdose deaths did. The St. Louis Post-Dispatch argued, “Sentencing reform is fine, [but] decriminalizing drugs would be better” – a policy that’s supported by the American Public Health Association, World Health Organization, Human Rights Watch and many others. 

Some cities and states are already moving in this direction. Californians approved a law in 2014 (Prop. 47) that changed six low-level crimes, including drug possession and petty theft, from felonies to misdemeanors – already significantly easing jail overcrowding and saving millions. Seattle, Washington, instituted an innovative program known as “Law Enforcement Assisted Diversion,” or LEAD, in which police divert people suspected of certain drug offenses (including low-level sales) to harm reduction based services instead of arresting and booking them. Several other communities have implemented LEAD or are considering it.

3. Eliminate probation and parole revocations for drug-related violations. More than a million people are currently on probation or parole for drug offenses. Depending on their state, many will be incarcerated or re-incarcerated for minor technical violations – commonly drug possession or failing a drug test. This also applies to the almost four million other people under correctional supervision whose original offenses did not involve drugs. Closing this revolving door is vital to turning the tide on mass incarceration.

Of course, ending the drug war will not end mass incarceration. As various commentators have noted, even if we liberated all people imprisoned for drug offenses, incarceration would persist at levels unthinkable anywhere else in the world. Other, more controversial measures must also be considered – including diverting people who sell drugs, who commit property offenses, even who commit violent crimes.

But if widely adopted, these three reforms would make a real dent in the incarceration epidemic – far more so than anything else we’ve tried to date.

This piece first appeared on the Drug Policy Alliance Blog.