Surrender Imminent?

The war on drugs is straining Ohio's criminal justice system and has failed to reduce drug use for decades. Experts say decriminalization and legalization could be part of the solution.

Sep 4, 2013 9 AM

A fter 42 years, the war on drugs has imposed enormous costs on Ohio and the rest of the country, pushing state budgets and prison systems to their limits. But little can be said for the actual gains: Drug abuse continues to be a problem in many communities, and nationwide drug use has trended up in the past couple decades. Meanwhile, Ohio and the nation have made some strides through sentencing reform in the past few years to limit the war’s budgetary impact. The changes are supposed to give convicts better chances at rehabilitating and finding employment, making it easier to avoid the life of crime that got them into trouble in the first place. That way, they’re not cycling through the criminal justice system as much and holding up prison costs. The concept, in theory, benefits both individuals and society as a whole.

In 2012, Gov. John Kasich signed a bill that made it easier for convicts to expunge their records of low-level crimes. The bill also weakened the punishment for possessing marijuana-related paraphernalia, such as bongs and pipes, so it no longer carries a jail sentence. The latter change in particular has been long in the making in Ohio, which was one of the first 10 states to decriminalize marijuana in the 1970s; since then, possession hasn’t carried a prison sentence but is still penalized with a fine.

At the federal level, Attorney General Eric Holder announced on Aug. 12 that federal officials will no longer pursue mandatory minimum sentences for certain low-level, nonviolent drug offenders.

But with Ohio’s prison population once again on the rise after years of falling, many groups are beginning to reconsider whether sentencing reform alone will be enough to keep state budgets down. As it stands, Ohio’s prison system is at 131-percent inmate capacity and expected to rise to 139 percent by 2019, according to Ohio Department of Rehabilitation and Correction Director Gary Mohr.

If Mohr’s estimates are correct, Ohio’s prison system will by 2019 breach a capacity barrier previously set by the nation’s highest court. Citing “cruel and unusual punishment,” the U.S. Supreme Court in 2011 ordered California to lower its prison population to 137.5 percent capacity after the system reached nearly double its intended numbers.

Many advocates know firsthand how difficult it is to bring up rethinking the war on drugs without invoking a slew of stereotypes involving black crime, welfare mothers, drug addicts, stoners and hippies. Even President Barack Obama joked when asked about marijuana legalization in his first presidential town hall in 2009, in which 3.5 million voted on what questions to ask the president.

“There was one question that was voted on that ranked fairly high: That was whether legalizing marijuana would improve the economy and job creation. I don’t know what this says about the online audience,” Obama joked, chuckling. “The answer is no, I don’t think that is a good strategy to grow our economy.”

But academics, former criminal justice officials and civil libertarians are now asking Ohio and the federal government to seriously consider more decriminalization and legalization. They argue the war on drugs has clearly failed to produce meaningful results in the past few decades. By pointing to examples set by other states and countries, reformers hope to show just how much potential lies in a completely different approach.

It may have seemed like a joke to Obama in 2008, but some states are now moving in that direction with federal permission. In 2012, Washington and Colorado became the first two states to approve fully legalizing marijuana. On Aug. 28, the U.S. Department of Justice announced it wouldn’t interfere with legalization in those states.

In other words, the Obama administration, just four years after joking about the prospects of legalization, is now letting two states seriously pursue it. That, critics of the war on drugs claim, may represent a shift that Ohio would be foolish to ignore.

• • •

Since President Richard Nixon declared the war on drugs in 1971, federal, state and local governments have spent more than $1 trillion fighting illegal drugs. In Ohio, a 2010 Cato Institute report found the war on drugs costs nearly $833 million each year. But all that cash has failed to bring down drug use, at least since the 1990s, or meet the war’s basic economic goals.

Since 1975, Monitoring the Future, a University of Michigan project, has been surveying national drug use among high school seniors. While the survey recorded a drop in drug use throughout the 1980s, the trend has remained up since the early 1990s.

Specifically, annual use of illicit drugs among high school seniors was at 39.7 percent in 2012, up from 27.1 percent in 1992 but down from 48.1 percent in 1976. When excluding marijuana, the use rate for high school seniors was 17 percent in 2012, up from 14.9 percent in 1992 but down from 25.4 percent in 1976.

While Monitoring the Future doesn’t have as much data on other age groups, the data it does have shows college students and young adults using more illicit drugs than they did in 1991, even when controlling for marijuana. The only downward trend is among eighth-graders and high school sophomores, who use non-marijuana illicit drugs less than they used to, but even those groups appear to be using marijuana more than they did in 1991.

The failure comes as little surprise to those who study the issue through economics. In the simplest economic terms, the main intent of the war on drugs is to increase prices by cutting supply. That way, the thinking goes, Americans won’t be able to afford their drug habits.

Isaac Campos, a drug history professor at the University of Cincinnati and author of Home Grown: Marijuana and the Origins of Mexico’s War on Drugs, argues that concept is faulty in the first place.

“Anybody who’s taken Economics 101 can point out that when the price goes up, it becomes more attractive to the potential sellers of the drug,” Campos explains, calling the phenomenon the “profit paradox.”

Besides, most drug prices have actually dropped in the past few decades. According to the Office of National Drug Control Policy, the inflation-adjusted price of pure cocaine dropped from a median of $803.46 per gram in 1981 to a median of $136.71 per gram in 2007 — an 83-percent drop. Crack, heroin and meth dropped at similar rates.

Only marijuana rose in median price in the long term, going from a median of $2.56 per gram in 1981 and $13.07 per gram in 1991 to $13.89 per gram in 2007. Meanwhile, marijuana use has actually trended up since 1991, according to Monitoring the Future.

Richard Isaacson, spokesperson for the Detroit division of the Drug Enforcement Agency that oversees Ohio, Kentucky and Michigan, says the statistics are the wrong way to look at it: “That premise is kind of interesting. We haven’t cured cancer or prevented poverty. There are a lot of things that haven’t been prevented, but that doesn’t mean you stop trying to wage the good fight.”

Anne Ralston, spokesperson for the Ohio State Highway Patrol (OSHP), says there have been recent successes in Ohio’s war on drugs. Shortly after Kasich took office, OSHP prioritized enforcement against drug and criminal activity to match the importance of traffic safety efforts, which is traditionally seen as OSHP’s main role. As a result, state police forces have seized more drugs in the past few years, according to Ralston.

Campos argues that those types of victories don’t do much in a global market. If there’s any effect, it’s a simple market shift. One example: After the United States took broader steps to crack down on cocaine in Colombia, the trade transitioned to Mexico.

Today, 95 percent of cocaine comes into the United States through Mexico, according to a 2011 U.S. Senate report.

Campos says that trend has stuck around the globe: Because the drug trade is so lucrative, it’s impossible for government officials to clamp down on every supplier at once. Government action might briefly stifle some areas and supplies, but the market is always going to move to a different source in the long term.

Put another way, the market might turn to different players, but it will continue playing the same game.

• • •

Supporters of the war on drugs insist that even discussing legalization of any kind, whether medicinal or recreational, increases drug use. That, they say, is why the war on drugs has failed to prevent drug use since the 1990s.

When CityBeat asked Isaacson, of the Drug Enforcement Agency, if drug enforcers believe legalization might increase use rates, he snapped, “It does increase use rates. Just having the discussion does. We’ve seen it.”

Mary Haag, executive director of the Coalition for Drug Free Greater Cincinnati, agrees. She specifically points to Colorado, which approved legalizing medical marijuana in 2000 and marijuana for recreational use in 2012. She says drug use among youth went up as a result of legalization in that state.

When CityBeat asked these groups for evidence, they pointed to data that looked at narrow categories and timeframes. One of those data points came from an August 2013 report from the Rocky Mountains High Intensity Drug Trafficking Areas (HIDTA), which found an increase in drugged driving: “From 2006 to 2011, traffic fatalities decreased in Colorado 16 percent, but fatalities involving drivers testing positive for marijuana increased 114 percent.”

But, in the long term, use rates have remained relatively flat since medical marijuana began receiving approval in different states.

A 2012 study from researchers at the University of Colorado at Denver, University of Oregon and Montana State University looked at drug use data from 1993 through 2009. It concluded, “Our results are not consistent with the hypothesis that the legalization of medical marijuana caused an increase in the use of marijuana and other substances among high school students. In fact, estimates from our preferred specifications are consistently negative and are never statistically distinguishable from zero.”

Data from Youth Risk Behavior Surveillance System (YRBSS) makes this point even more clearly: Between 1995 — a year before California became the first state to legalize medical marijuana — and 2011, reported marijuana use in the past 30 days among youth dropped from 25.3 percent to 23.1 percent.

In Colorado alone, between 2005 — the earliest year in which data is available — and 2011, reported marijuana use in the past 30 days among youth dropped from 22.7 percent to 22.0 percent.

So not only did marijuana use fail to rise among Colorado youth while the state continued on with medical marijuana legalization and pursued full-on legalization, but the state’s reported marijuana use remained below national averages.

• • •

For the American Civil Liberties Union (ACLU), one of the biggest concerns with the war on drugs is what it calls a “mass incarceration” of Americans and the generations of decay the practice perpetuates.

Today, the United States has the largest prison population in the world. Even though it only makes up 5 percent of the world population, the country holds a quarter of the world’s entire prison population. The ACLU attributes much of that to the United States’ harsh drug enforcement policies.

In Ohio, the mass incarceration problem is felt through much bigger strains on the state budget. Cost concerns are the primary reason Kasich’s administration in 2011 sold one of Ohio’s prisons to Corrections Corporation of America, a company that has, by most independent accounts, botched its handling of the prison and made the facility more violent and dangerous (“From the Inside,” issue of May 29). Cost concerns are also why Kasich and legislators approved sentencing reform in 2012.

Despite the changes, the issue is about to get worse, according to the Ohio Department of Rehabilitation and Correction (ODRC). The latest ODRC data shows Ohio prisons’ inmate capacity at 131 percent, and it’s supposed to rise to 139 percent by 2019, which would surpass a ceiling previously set by the U.S. Supreme Court in a ruling against California.

The amount of people in Ohio prisons for drug offenses in January 2013 was 7,101, more than 14 percent of the total prison population, according to census data from ODRC. That’s down from 8,723, or about 17.5 percent of the prison population, in 2007.

ODRC estimates that each inmate costs roughly $23,000 a year. At that price, that means Ohio’s 7,101 imprisoned drug offenders are costing Ohio taxpayers nearly $164 million every year. Meanwhile, Ohio has saved more than $37 million a year by reducing its drug offender population since 2007.

But inmate costs are only a small part of the expenditures. Putting drug offenders in prison with higher enforcement and aggressive legal action carries its own costs. Once inmates are released, they impose extra costs on society if they can’t get a job and have to receive social services or help from others.

On an individual level, the war on drugs is effectively throwing convicts into a vicious cycle: After being charged and imprisoned for drug trafficking, finding full-time, quality work becomes an insurmountable task for former convicts. Facing their records and odds, many make ends meet by resorting to the one act that got them in trouble to begin with: drug trafficking.

That’s the point made by Dominic Duren, a former convict and director of the HELP Program, a local nonprofit headed by Marianist Brother Mike Murphy that helps set up former convicts with work.

“Without this support, I could easily be somebody that’s involved in some type of criminal activity just to provide for my family — not because I’m trying to do wrong, but just to put food on the table,” Duren says.

The HELP Program provides a variety of services to people with misdemeanors and felonies to try to put them back to quality work.

John Clark, a 36-year-old Cincinnati resident, is one of those people getting support from the HELP Program. With multiple drug-related convictions from 2008 on his record, Clark has been unable to land a truly full-time job. But with the backing of the HELP Program, Clark is now trying to get his record expunged to make it easier to find work.

“Once you make it out of (prison) and complete everything, you shouldn’t really be judged for it again,” says Clark, who told CityBeat he’s currently staying at a friend’s apartment while working part-time through a temp agency. “They constantly judge you over and over and over for your past no matter what good you’ve done since then.”

Beyond the prison and criminal record issues, the ACLU is also concerned about how the war on drugs is impacting generations of black men who are charged and convicted as criminals at higher rates than whites. In a report titled “The War on Marijuana in Black and White,” the ACLU found that “billions of dollars (are) wasted on racially biased arrests.”

The ACLU report ranked Ohio No. 11 for marijuana-related arrests in 2010. Marijuana has been decriminalized in Ohio since 1975, but marijuana-related paraphernalia, such as bongs and pipes, carried a potential jail sentence until 2012.

The ACLU found a huge racial disparity among those arrests. In Ohio, blacks were more than four times more likely to be arrested for marijuana possession. Nationwide, the disparity is 3.73 times.

The statistics might help explain why the black unemployment rate has remained more than twice as high as the white unemployment rate since 1963, even as black communities have made great strides toward equality. The numbers also might explain why Ohio’s prison inmates are 46.1 percent black, even as the state’s overall population is 12.5 percent black.

Some law enforcement officials point out that, because of socioeconomic trends, blacks are more likely to be involved with drug trafficking and gang activity. They argue marijuana possession is usually heaped on top of other drug-related charges to extend sentences.

But the ACLU remains critical of the disparity, pointing to data from the National Survey on Drug Use and Health that shows 14 percent of blacks and 12 percent of whites have used marijuana within the past month — a relatively similar rate.

Federal and state officials from OSHP and the Drug Enforcement Agency told CityBeat that any racial disparity in enforcement isn’t intended. They referenced established policies and guidelines that try to maintain fairness regardless of race and ethnicity. OSHP in particular cited statistics that show traffic stops, which are the basis for many investigations, are fairly representative of Ohio’s racial make-up.

Still, the ACLU report shows there is some racially unequal enforcement, regardless of whether it’s intended or socioeconomically justifiable.

• • •

Presented firsthand with the failures, some former criminal justice officials are speaking out against the war on drugs. Law Enforcement Against Prohibition (LEAP), an organization created to lobby for the end of the war, now has 100,000 members, including former cops, judges and prosecutors.

One of those LEAP members is Howard Rahtz, a former captain of the Cincinnati Police Department and author of Drugs, Crime and Violence: From Trafficking to Treatment. He joined LEAP shortly after retiring in 2007 — a decision in part inspired by his up-close experience with the war on drugs and its failures.

“It’s a waste of money and causing more problems than it solves,” Rahtz says.

According to Rahtz, the better solution to America’s drug problem can be found in Portugal.

In 2001, Portugal decriminalized all drugs. Just like legalization and decriminalization opponents do today, Portuguese skeptics insisted the policy would be disastrous for the small country, which has about nine-tenths the population of Ohio.

The results, according to a 2009 Cato Institute paper: Drug-related deaths dropped from 400 in 1999 to 290 in 2006. Between 2001 and 2007, illegal drug use declined among teens but increased for young adults aged 20 to 24. From 2000 to 2006, the rates of HIV caused by sharing dirty needles dropped.

At the same time, decriminalization allowed many more drug addicts to seek treatment.

“The most substantial barrier to offering treatment to the addict population was the addicts’ fear of arrest,” wrote Glenn Greenwald, the paper’s author and a reporter who’s now known for his breaking coverage of U.S. surveillance programs. “One prime rationale for decriminalization was that it would break down that barrier, enabling effective treatment options to be offered to addicts once they no longer feared prosecution. Moreover, decriminalization freed up resources that could be channeled into treatment and other harm reduction programs.”

With Portugal’s model in mind, Rahtz is pushing a few ideas for reform: Legalize marijuana, tax and regulate it, put the revenue into rehabilitation programs and decriminalize all other drugs.

By offering more rehabilitation services, Rahtz says the government could reduce the amount of addicts, who he says are the high-volume customers for drug cartels.

“Today in Cincinnati, if one of these high-volume customers wants to get some help for his addiction, he’s more likely to be put on a waiting list than he is to be put into treatment,” Rahtz explains. “We need to change that.”

Campos, the drug history professor from UC, would take a slightly different approach. He would legalize marijuana along with watered-down doses of cocaine. He would also establish a maintenance-dose program that provides repetitive doses of heroin to addicts alongside rehabilitation services; in theory, the program would allow heroin addicts to get treatment without succumbing to harsh withdrawal symptoms. A similar program has been successful in reducing heroin abuse and drug-related crimes in Switzerland.

A 2010 Cato report goes even further than Rahtz or Campos: It calls for total legalization of all drugs and taxing them at rates similar to tobacco and alcohol. That would bring in nearly $589 million in annual tax revenue to Ohio, according to the report. Legalizing only marijuana would raise roughly $205 million a year for Ohio, more than one-third of complete legalization of all drugs.

Legalization would also hit major revenue sources for drug cartels, which could help take down their criminal operations around the world. A 2010 study from the RAND Corporation found legalizing marijuana in California would reduce cartels’ revenue by 20 percent by shifting about 85 percent of the U.S. market to the Golden State. Presumably, nationwide legalization would have an even larger impact.

Campos says estimates related to the drug trade are difficult for him to believe because the industry is underground and secretive, but he agrees legalization would help kill off the cartels.

Some supporters of the war on drugs argue that cartels would simply fill the lost revenue with other sources, such as kidnapping ransoms, paid protection and illegal gun sales. Campos says the claim is ridiculous.

“At first (cartels) would try to do other business, but the fact is that there’s nothing as profitable and easy to sell in the black market as drugs,” he says. “How much easier is it to move two kilos of cocaine, which are worth $50,000 or so, across the U.S. border than it is to move $50,000 worth of assault rifles?”

Given the stories, statistics and experiences of other countries and some states, Rahtz says it’s only a matter of time until bigger reform ideas reach U.S. leaders. There already might be signs of change now that U.S. officials are allowing Washington and Colorado to carry on with their legalization plans.

The Ohio Rights Group is also pushing a 2014 ballot initiative that would legalize medical marijuana and industrial hemp, which could provide the next logical step toward broader legalization and decriminalization in the state.

Rahtz argues the progress signifies a broader movement as politicians abandon their old “tough on crime” rhetoric for a more sensible approach that involves previously mocked ideas, such as legalization and decriminalization.

“There’s not a politician in the world that wants to be accused of being ‘soft’ on anything,” he says. “But I think that’s going to change in the near future.” ©