Fifty years ago — on June 17, 1971 — then-President Nixon declared the “War on Drugs,” stating that “drug abuse” was “public enemy number one.” Nixon’s declaration was a pretextual political strategy and it was racist.
John Ehrlichman, President Nixon’s domestic affairs aide, admitted, “We knew we couldn’t make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin and then criminalizing both heavily, we could disrupt those communities… Did we know we were lying about the drugs? Of course we did.”
Of course they did.
Nixon’s speech came shortly after the enactment of the Controlled Substances Act, which criminalized drugs and the people who use them. Since then, the United States has adopted increasingly punitive drug laws, but long prison sentences and far-reaching civil sanctions have failed to reduce rates of drug use, the availability or pricing of commonly used drugs, or rates of drug overdose.
The drug war has not solved any problems associated with drug use, but it has caused a lot of harm. Our country has wasted hundreds of billions of taxpayer dollars subjecting our own people to mass criminalization and incarceration, burdening people with debilitating criminal records, dividing families, and disproportionately harming communities of color. Black people are 26 percent of those arrested despite making up just 13.4 percent of the U.S. population, and despite the fact that Black and white people use and sell drugs at similar rates.
During his candidacy, President Biden acknowledged many of the drug war’s gravest mistakes. He declared: “No one should be incarcerated for drug use alone” and promised to “end, once and for all, the federal crack and powder cocaine disparity.” Biden committed to “decriminalize the use of cannabis and automatically expunge all prior cannabis use convictions,” and explained that people struggling with “substance use disorders should have access to affordable, quality care long before their situations escalate and they interact with the criminal justice system.”
It’s time to end the drug war and to refocus our nation’s approach to drug use. The scientific community has made clear that health and harm-reduction tactics are far more effective means of addressing drug use than criminalization. American voters agree. A recent poll conducted by ACLU and Drug Policy Alliance (DPA) found that 66 percent of Americans, across political lines, support ending criminal penalties for drugs and replacing them with a health-centered approach.
It is time we listened.
On this 50th anniversary of the Drug War, President Biden must make good on his campaign promises and dismantle this rotten system. He must take immediate actions to mitigate the harms the drug war has inflicted on people and communities — especially people and communities of color. He must also begin building a new comprehensive drug policy system that is based on public health principles rather than mass criminalization and incarceration.
That’s why we at ACLU and DPA came together to identify ten actions President Biden can take now to demonstrate that he’s serious about ending the drug war. These actions include broad use of the clemency power, new priorities for criminal and immigration enforcement, and a commission to develop legislation that would repeal all drug war laws and replace them with health and science-based laws.
President Biden must use his clemency power to significantly reduce the prison population by granting commutations to people incarcerated for drug offenses — including those serving mandatory minimum sentences and those still harmed by the crack/powder sentencing disparity. Nearly half of the people in federal prison are there for drug offenses; the president has unfettered power to change this. President Biden must also pardon all persons convicted of simple possession.
We’re also urging President Biden to direct the DOJ to divert resources away from the drug war’s worst policies. As a start, federal prosecutors must stop charging drug offenses that trigger mandatory minimum sentences, stop prosecuting marijuana offenses, stop urging courts to revoke probation, parole, and supervised release on the basis of positive drug tests and drug possession, and start advocating for sentences that do not punish crack cocaine offenses more harshly than powder cocaine offenses.
President Biden must also stop punishing immigrants for drug possession. Current law gives the attorney general and the Department of Homeland Security the discretion to impose harsh consequences on immigrants for drug possession. President Biden could put a stop to this by ordering the relevant officials to abandon enforcement practices that target immigrants and jeopardize their ability to obtain legal status because of drug possession or employment in state-sanctioned marijuana industries.
Finally, fifty years after the enactment of the disastrous Controlled Substances Act, the president must convene a commission to propose an entirely new legislative framework for regulating drugs, led largely by those who have been most impacted by the drug war. The commission must propose legislation to repeal and replace the Controlled Substances Act and amend all other federal laws that rely upon punitive drug war strategies including those relating to health, housing, employment, child welfare, immigration, public benefits, and education.
Biden can declare an end to the drug war and he has the power to unilaterally make enormous changes. The road map we’re giving him is here.
Emma A. Andersson is a senior staff attorney with the ACLU’s Criminal Law Reform Project. Her practice includes litigation relating to police practices, indigent defense reform, marijuana law reform, and federal and state sentencing. Grey Gardner is a senior staff attorney at Drug Policy Alliance and an expert in criminal justice reform policy and litigation. Grey has a diverse background in criminal defense litigation, legislative analysis, and political advocacy.