Congress on Speed: Partisan Conflict Led to Many Problems in 1986 Drug Law

Today, the 112th Congress is stalled, mired in partisan conflict. Last week, the votes of 43 Republican senators blocked the proposal of Senator Jim Webb (D-VA) to create a National Criminal Justice Commission to study and recommend improvements to the criminal justice system. But in the 111th Congress, the proposal passed the House on a voice vote in 2010. This proposal, endorsed by the National Sheriffs Association, the International Association of Chiefs of Police, and the ACLU, had bi-partisan support last year. This year, however, partisan conflict has blocked the measure.

Other times, partisanship has led Congress to move too fast, and that produced trouble. Twenty-five years ago last Thursday (Oct. 27), President Reagan signed the Anti-Drug Abuse Act of 1986, after less than ninety days of jockeying between the Democratic House and Republican Senate.

The political wrangling was triggered by the cocaine death of Maryland basketball star Len Bias on June 19, 1986 as he celebrated signing with the Boston Celtics. In the media blitz following his tragedy, House Speaker "Tip" O'Neill from Boston spotted political opportunity for Democrats to claim anti-drug leadership in time for the election. Eager to complete a package before the August campaigns, the bills were very hastily written. Having spent many hours in the Speaker's conference room helping to write the law as counsel to the House Crime Subcommittee, I was invited to the White House twenty-five years ago. I've followed the results of that law closely.

The law's best known blunders were the long sentences for small amounts of drugs. Congress finally acknowledged the unfairness of crack sentencing and its racial disparity when it passed the Fair Sentencing Act of 2010. But many other features of the 1986 law were also bad policy.

The Drug-Free Schools program of 1986 got about $12 billion over twenty years. Every evaluation found it did not reduce drug use. The Administration finally eliminated this waste last year when the proof of its ineffectiveness at last overcame its political attractiveness -- $500 to 600 million per year in contracts and salaries.

The "designer drug" law we wrote in 1986 prohibited classes of drugs before they could even be invented and before they could be found to be beneficial or harmful. The presumption behind this ban, that any new drug would be "dangerous" and "bad," stigmatizes and deters discovery of new potentially beneficial drugs. Like most of the other provisions of the 1986 law, this one failed to do anything to prevent the spread of "ecstasy," synthetic cannabis such as "spice" and "K2," and stimulants marketed as "bath salts."

The National Forest System Drug Control Act of 1986 was supposed to protect the National Forests from marijuana cultivation. It was a fine idea, but the "protection" was not thought through. Expanded surveillance of urban electricity usage and scanning for temperature anomalies by drug agents encouraged by the potential riches from property forfeitures led to large-scale and destructive marijuana plantations over-running more than 61 National Forests by 2009.

For years after 1986, America's foreign relations were poisoned by the requirement that the U.S. president certify that other nations provided "maximum achievable" cooperation to our drug fight. This was not pass-fail grading, this was "A+ or fail" grading. The arrogant law offended our neighbors and allies. When the U.S. "decertification" humiliated Colombia, it played into the hands of Colombian terrorists -- the FARC, ELN and AUC. After extensive behind the scenes protests by our allies, Congress finally eliminated this requirement.

Today, heroin profits fund the Taliban enemies of U.S. troops. Mexico is awash with the blood of more than 40,000 drug war victims. HIV is still being conveyed to tens of thousands of Americans each year due to lack of access to new needles. Fatal drug overdoses exceed deaths due to motor vehicle crashes. After twenty-five years, the drug problem is more lethal than ever.

Members of Congress said ad nauseam the Anti-Drug Abuse Act was "sending a message" of zero-tolerance toward drugs. Yet every year since its passage, America has grown thousands of tons of the world's strongest marijuana, produced hundreds of millions of doses of synthetic drugs, and sent tens of billions of dollars into the accounts of drug traffickers around the world.

In reality, only one side of the street paid attention to Congress's message: law enforcement. In minority communities, the sincere effort of most police to protect and serve became invisible behind the language and conduct of the war on drugs, with many officers routinely treating people of color as drug-tolerating scum. Every year, pursuant to search warrants, tens of thousands of doors were broken down, homes were ransacked, family members were held at gun point and pets were shot. "Sweeping the streets" has stained the legitimacy of the justice system.

At last rejecting zero tolerance, many police are curtailing homicide and drug market chaos with enforcement strategies that effectively communicate deterrence. As anti-violence pioneer David M. Kennedy reports in his new book, Don't Shoot, these strategies work in every size city and with every drug market.

When justice agencies communicate credible threats of punishment for significant violations, even long time offenders change behavior. Judge Steve Alm's Hawai'i's Opportunity with Probation Enforcement (HOPE) program got most hardcore addicts to quit once they understood his message that a failed drug test always meant some time in jail. This type of honest, direct communication is the opposite of Congress's claim to be "sending a message" to people who don't read newspapers and don't watch C-SPAN.

The panic of 1986 is gone. The Gallup Poll reports a majority of adults support legalizing marijuana. Harvard professor Jeffrey Miron estimated the 2008 federal tax revenue would yield $5.82 billion if marijuana were legal. Saving the $4 billion spent on federal marijuana enforcement annually, legalization could reduce the deficit by almost $10 billion per year. I've suggested this deficit-reducing idea to Congress's Joint Select Committee on Deficit Reduction. The House Co-Chair acknowledged my letter.

Of course, the "super committee" is moving very quickly to find $1500 billion in savings, perhaps too fast to give serious consideration to a controversial change like marijuana legalization. Yet whatever monumental recommendations the Committee does make to change the federal government, the Pentagon, tax law, health care and the rest of the economy will be subject to hasty and superficial consideration, utterly insufficient to evaluate the potential consequences before Congress votes (if it votes at all). After all, whatever is proposed may likely be rejected through more partisan paralysis.

If Congress were functioning properly, it would take the time to consider the many potential improvements in drug policy that could save lives by preventing overdose, reducing the spread of HIV, and lessening violence, preventing crime, and saving money. With a commitment to governing, instead of grandstanding, Congress could make a careful analysis and weigh the alternatives. Getting this kind of analytical background is the idea behind creating a National Criminal Justice Commission. Senator Webb thinks that the Commission idea has suffered a setback, but is not dead. Perhaps its life is in hands not on Capitol Hill.