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Dismantling the Federal War: A Comprehensive Drug Framework (The Drug Reform Act)

For most of the past century the United States has In October 2020, the United States will mark the 50th adopted increasingly punitive toward the anniversary of Congress’ enactment of the Controlled possession, use and distribution of ; and, particularly Substances Act, which authorized and launched in the last 50 years, has built a massive regime to enforce the harsh drug war policies sought by the Nixon those policies. Congress and states have adopted harsher Administration. In this moment, Congress must recognize sentencing, including mandatory minimums and “three the failed experiment in and move the country strikes” , established far-reaching and oppressive in a new direction. asset forfeiture schemes, opened the door to broad While refocusing the federal strategy requires significant exceptions to the Fourth Amendment for drug searches, and comprehensive changes, the first step must be to and fostered incentives for aggressive and militarized pivot from the central premise of the existing federal policing in the alleged pursuit of drugs. approach to drugs: the idea that controlling unauthorized Prohibition and the drug war have failed. Punitive and use is something that should be policies have achieved no reduction in supplies or enforced and punished. Instead, the federal approach prices, but instead have created illicit markets that have should be health focused, evidence-based, and fostered violence and unnecessarily risky and harmful respectful of self-determination. conditions for people who use drugs. They have led to The DPA proposal for decriminalization, the militarized tactics that thwart the spirit of the constitution Reform Act, takes these first steps in dismantling the and have led to the deaths of countless Black and Brown punitive apparatus built up over the past 50 years. To people. And the drug war apparatus has cost the federal begin refocusing federal drug policies, the legislation hundreds of billions of dollars in direct shifts the authority for classifying and regulating enforcement and incarceration costs, and collateral controlled substances from the Drug Enforcement impacts on the lives of those caught in its path. Administration (DEA) to the National Institutes of Health The time has come to try a new approach: (NIH) within the Department of Health and Human drug decriminalization. Services (HHS). While drug decriminalization cannot fully repair our The legislation eliminates criminal penalties for all broken and oppressive criminal legal system or the harms possession of personal-use quantities of controlled of an unregulated drug market, shifting from absolute substances, and shifts federal resources away from futile prohibition to drug decriminalization helps restore enforcement strategies to supportive to protect individual liberty, protect against some police abuses, the and safety. better assist those in need, and save tax dollars. Additionally, the bill: The concept is neither new nor radical. Other nations, • Eliminates the inequitable and harsh sentencing including Portugal, have successfully decriminalized constructs, such as mandatory minimums drug personal use quantities of drugs and achieved meaningful conspiracy offenses, that have significantly led to mass improvements in treating problematic drug use and incarceration; reducing the harms of policing drugs. Support for eliminating criminal penalties for drug possession is • Provides for decarceration and expungement of growing across the U.S. and around the world. In addition to records for those imprisoned under the current system; the , leading medical, public health, and • Eliminates collateral consequences of drug human rights groups have endorsed drug decriminalization, convictions, including denial of public benefits and including: United Nations, World Health Organization, educational loans, for individuals who have been International Federation of Red Cross and Red Crescent convicted of drug offenses; and, Societies, American Public Health Association, Human Rights Watch, American Civil Liberties Union, Movement • Abolishes the enforcement agencies that have for Black Lives, NAACP, Latino Justice, National Latino been primarily responsible for creating the harmful Congreso, Organization of American States. enforcement strategies of the past.

Dismantling the Federal Drug War: 1 A Comprehensive Drug Decriminalization Framework The Act

Specifically, theDrug Policy Reform Act the Office of National Drug Control Strategy (ONDCP), (DPRA) proposes the following components: Bureau of International Control and Enforcement Affairs (INCLE).Prohibit spending by other federal agencies on international drug 1. Shift Regulatory Authority interdiction efforts (including by Customs and Border Substitute the National Institutes of Health (NIH) for Protection and the Coast Guard). the Drug Enforcement Administration (DEA) as the agency responsible for classifying drugs pursuant to 5. Prohibit Funding to States for Drug the Controlled Substance Act (CSA). Enforcement the use of grant funding to states provided 2. Define Personal Use Thresholds Prohibit through any federal program for the investigation, Establish a rulemaking task force, led by NIH and arrest, prosecution or incarceration in relation to including, among other stakeholders, persons who alleged drug possession violations. use drugs, advocates for communities disparately impacted by past prohibitionist policies, organizations 6. Prohibit the Distribution of Military representing public defenders, treatment Equipment to State Law Enforcement professionals, and representatives of for Drug Enforcement service providers to draft a rule defining “personal use Eliminate federal programs, like the Department of quantities” and procedures for facilitating voluntary Defense 1033 Program, that facilitate the transfer access to services for those seeking addiction of military equipment to state, local, and tribal law treatment. enforcement for counter activities. a. Any qualifying thresholds and criteria developed pursuant to this subsection shall not categorically 7. Remove Added Penalties for Offenses disqualify circumstances involving the presence Involving Drugs of scales, individual packaging, currency, “cutting” a. Repeal separate offenses for criminalizing the agents, and similar items. possession of certain tools for manufacturing b. Requires that such thresholds and criteria be controlled substances, use of communications regularly reviewed and updated based on peer- equipment and advertising for sales of controlled reviewed scientific analysis. substances, and fraudulent representations in the sale of controlled substances (21 U.S.C. § 843); 3. Eliminate Criminal Penalties b. Repeal criminal penalties for attempt and a. Repeal criminal penalties for simple possession conspiracy (21 U.S.C. 846), “continuing criminal of a controlled substance (amend 21 U.S.C. § 844, enterprise” (21 U.S.C. § 848), and specified strike 21 U.S.C. § 844a)); transportation offenses (21 U.S.C. §849); b. Repeal criminal penalties for possession with c. Repeal mandatory minimum sentencing (21 U.S.C. intent to distribute personal use quantities of § 851) and sentencing enhancements (34 U.S.C. § a controlled substance (as defined in rules 12522, §12521 (“drug-free” zones). promulgated by the personal-use task force created herein) (amend 21 U.S.C. § 841(b) to 8. Prohibit Surveillance Technologies eliminate all carceral and monetary sentences and Prohibit federal agencies from using location-tracking replace with thresholds established by the task technologies, cell-site simulators, and predictive- force rulemaking body). policing technologies for the investigation of solely drug-related offenses in the absence of particularized 4. Eliminate Federal Drug Enforcement suspicion of a violent offense. Apparatus Defund the Drug Enforcement Administration (DEA),

Dismantling the Federal Drug War: 2 A Comprehensive Drug Decriminalization Framework The Drug Policy Reform Act

9. Prohibit No-Knock Warrants 15. Protect Voting Rights Prohibit the issuance of any warrant by a federal Establish that the right of an individual who is a citizen judicial official authorizing the entry of a premises of the United States to vote in any election for federal without providing meaningful notice to occupants, office shall not be denied or abridged because that identification as law enforcement, and statement individual has been convicted of a drug-related of purpose. Additionally, codify and strengthen criminal offense. requirements for execution of any federal warrant to ensure compliance with the knock and announce rule. 16. Repeal Civil Asset Forfeiture Repeal statutes authorizing civil asset forfeitures (21 10. Expunge Criminal Records U.S. Code §§ 853 and 881). Mandate automatic retroactive record destruction for prior federal drug convictions. 17. Eliminate Immigration and Removal Consequences 11. Decarcerate Amend immigration code to eliminate drug offenses Mandate the automatic reopening of sentencing as “aggravated felony” for removal purposes and proceedings for individuals convicted solely of permanent to entering the United States, or to offenses related to the possession of personal use deny any other immigration benefit. quantities of controlled substances; require immediate pending resentencing and dismissal of 18. Repeal Land Use proceedings for all qualifying individuals. Repeal the code criminalizing “maintaining drug- involved premises.” 12. Repeal Ban on Federal Benefits for Needy Families 19. Reinvest Funds in Supportive Programs Repeal bans on federal financial assistance for Establish a grant program to reinvest federal funding individuals with drug convictions: for health related / state incentives (separate and a. TANF and food/nutrition benefits (21 U.S. Code distinct from the Edward Byrne Memorial Formula § 862a); Grant Program). b. Educational benefits (20 USC § 1091(r)); a. Authorize a grant program administered by the Department of Health and Human Services c. Prohibit Authorities from denying (HHS) with awards to be allocated by a board of access to housing (i.e. supersede/strike 24 CFR § stakeholders, including people from communities 982.553). most harmed by drug law enforcement as well as 13. Eliminate Drug Testing people who use drugs, to: a. Drug Testing for Federal Benefits: Repeal code i. Provide social, health, and other services permitting drug testing federal beneficiaries (21 to communities most harmed by drug law U.S. Code § 862b) and explicitly prohibit drug enforcement; testing for receipt of federal benefits; ii. Expand access to low barrier substance use b. Drug Testing Individuals on Probation and disorder treatment, including medications for Parole: Eliminate drug testing as a condition of addiction treatment, that is evidence-informed, federal probation and parole; trauma-informed, culturally responsive, patient- centered, and non-judgmental; 14. Prohibit Employment Discrimination iii. Fund harm reduction services, including Establish a federal prohibition on inquiring about for establishment and operation of safe- criminal record for employment and Incentivize states consumption facilities; to adopt “ban the box” legislation.

Dismantling the Federal Drug War: 3 A Comprehensive Drug Decriminalization Framework The Drug Policy Reform Act

iv. Assist states in creating or expanding non- 23. Expand Research police crisis intervention programs; Require the and Mental Health v. Assist states in creating or expanding pre-arrest Services Administration (SAMSHA), in cooperation with diversion programs. the National Institutes of Health, to expand research b. Require that states enact legislation on harms of , harm reduction services, decriminalizing possession of personal-use effectiveness of non-prohibitionist models of , quantities of controlled substances to be eligible safe supply, and treatment, and patterns of drug use. for any grants pursuant to this subsection. 24. Require Data Collection 20. Remove Barriers to Medications for Require that states and localities receiving any federal Addiction Treatment funding make publicly available in “real time” uniform Amend codes restricting medications for addiction data regarding enforcement of drug laws, including treatment, primarily and , to tracking arrests for drug possession and distribution ensure equitable and wide-scale access. offenses, possession of , public use or intoxication, loitering, and all other drug-related 21. Amend Findings and Intent violations. Amend the findings in Title 21 Chapter 13 to articulate a. Reporting standards shall include details regarding the harms of criminalization (21 U.S.C. § 801) and the tactics used leading to such arrests (including health and reparative justice intent of the Act. any use of force), the alleged substances and a. Strike all subsections after (21 U.S.C. § 801(1)); quantities recovered, and demographic data for b. Add statements to describe poor outcomes under persons arrested; enforcement-focused policies following passage b. Additionally, states and localities shall be of Controlled Substances Act of 1970, including required to submit an annual report identifying billions of dollars spent on enforcement since expenditures on drug offense enforcement; 1973, millions of arrests (1.6 annually in 2020) for c. The Department of Justice shall be required within drug offenses and collateral consequences, rise one year to develop uniform standards for data in incarceration, racially disparate impacts, health reporting in consultation with specified entities outcomes, and no evidence of significant impact and in cooperation with the “personal use task on supply or prices; force” established by this Act, and further required c. Add statements to describe the need for to procure and deploy technology for local use harm-reduction, health, reparative justice, and within 18 months of the enactment of this Act. consumer-safety focus in federal approach to drug use. 25. Reform International Drug Policy Express the sense of Congress that the President 22. Provide Evidence-Based Drug Education should submit amendments to the United Nations to Shift all addiction prevention programs within the Amend the United Nations Convention against Illicit jurisdiction of the Department of Justice to the Traffic in Narcotic Drugs and Psychotropic Substances Department of Health and Human Services and of 1988 to explicitly provide greater explicitly proscribe the Department of Justice flexibility to pursue alternative, non-punitive strategies from using appropriated funds for “drug education” to address problematic drug use. programs.

Dismantling the Federal Drug War: 4 A Comprehensive Drug Decriminalization Framework